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Wiest, J.
December 11, 1939, at about 1 o’clock in the afternoon, plaintiff, while crossing Main street in the village of Carson City, was struck by the left fender of defendant’s automobile and injured. Upon trial by jury plaintiff had verdict for $550. Defendant’s motions for directed verdict and a new trial on the ground that plaintiff was guilty of contributory negligence were denied.
The day was bright and view of traffic unobstructed. Main street runs east and west and plaintiff was using the crosswalk in the business district at the east intersection of Main and Mercantile streets. Plaintiff testified that, before she stepped from the curb to cross the street, she looked at the suspended traffic light at the intersection and it was in her favor and an automobile from the east had come to a stop at the intersection, so she started to cross, passed in front of the stopped automobile and proceeded without again looking at the traffic light or making further observation of traffic; that, when about the center of the street and, whether south of the center or not she could not tell exactly, defendant’s automobile, coming from the west, struck her.
"While she was crossing, the traffic light changed. It is true, she testified on cross-examination:
“Q. If you had looked to the west you could have seen this carl
“A. No, sir. I did look.
“Q. You did look and didn’t see it?
“A. No, sir.”
But on re-examination by her own counsel she stated:
“When I testified that I looked to the west and didn’t see this car I referred to when I looked at the light and that was before I crossed in front of the Blackmer car and was when I was on the north edge of Main street just before I started across. At that time I looked to the west and didn’t see any car coming.”
The court instructed the jury:
“I think I stated that in substance, and that is this, that if while she was passing from one side of the street to the other and while she was making her progress along that line if the light changed in the meantime, she continued to have the right to pass to the other side of the street before the defendant could start his car in such a way and to such an extent as to collide with her. She had the right, in other words, having started to cross the street and uninterruptedly proceeding for that purpose, she had the right to cross to the other side of the street even though the light did change in the meantime.”
This instruction was erroneous in wholly failing to include the duty of plaintiff to use reasonable care and in ignoring her own testimony showing total want of care on her part.
The rule, applicable to plaintiff’s own testimony, is stated in DeJager v. Vandenberg, 288 Mich. 136 (6 N. C. C. A. [N. S.] 341), and cases there cited. See, also, Beaulieu v. City of Detroit, 293 Mich. 364.
Traffic lights change and one starting to cross a street under their protection is still required to observe the change, if any, removing the protection and to employ reasonable care in proceeding into the path of released traffic. The drivers of released traffic must observe pedestrians caught by change of light and exercise reasonable care to avoid striking them.
In the case at bar if the driver of defendant’s automobile was guilty of negligence plaintiff was guilty of contributory negligence under her own testimony as a matter of law. Under the evidence plaintiff may not invoke the rule of subsequent negligence.
“To apply the theory of subsequent negligence, the plaintiff’s negligence must have come to rest and defendant must have discovered such negligence in time and with the ability to avoid the accident and have failed to do so. Wells v. Oliver, 283 Mich. 168; Szost v. Dykman, 252 Mich. 151; Cline v. Killing-beck, 288 Mich. 126.” Gallagher v. Walter, 299 Mich. 69, 77.
The motion of defendant for a directed verdict should have been granted. The judgment is reversed, without a new trial, and with costs to defendant.
Chandler, C. J., and Boyles,, North, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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] |
Stone, J.
The single question presented in this proceeding is the amount of the mortgage tax which is payable to the county treasurer upon the offering for record of the land contract described. The stipulated facts are that George and Sarah McLean, on October 24, 1914, entered into a contract with Charles and Ida Barkume for the sale of a certain described lot of land in the city of Detroit for the sum of $1,900, the exact wording of the contract being in part as follows:
“The said parties of the first part, in consideration of the sum of Nineteen Hundred ($1,900) dollars to be to them duly paid, hereby agree to sell unto the parties of the second part,” etc. And further: “for the sum of Nineteen Hundred ($1,900) dollars, which the said parties of the second part hereby agree to pay the parties of the first part as follows: One Hundred ($100) dollars at the date hereof, and the remaining eighteen hundred dollars in monthly installments of twenty ($20) dollars or more per month including interest,” etc. Also: “Said monthly payments to start on delivery of this contract,” etc.
On the reverse side of the contract was indorsed the following:
“Received the $100.00 on delivery hereof.
[Signed] “George McLean.”
The vendors, on June 6, 1917, executed and delivered a deed of this property to the relator, also showing the contract to said relator.
On February 18, 1918, relator tendered the contract and $9 to the county treasurer and requested him and his deputies to accept same and give a certificate in compliance with section 3, Act No. 91, Pub. Acts 1911 (1 Comp. Laws 1915, § 4270). It was the contention of the relator that this sum was the correct amount upon which a mortgage tax could be charged upon said contract. The deputy treasurer in charge of the collection of mortgage taxes, advised later that the mortgage tax was computed according to the treasurer’s directions at the sum of $9.50. A petition for a mandamus was filed in the circuit court of Wayne county setting forth the facts and praying that respondent show cause why an order should not be entered directing him to accept said sum of $9 as payment of the mortgage tax upon said land contract in accordance with the statute, and give to relator a certificate showing that the sum of $1,800 is the amount secured by said contract, and the sum of $9 is the tax thereon.
An order to show cause was duly made and served upon respondent, who answered the petition, and the matter was heard upon the stipulated facts. The circuit court held with the relator, and the respondent brings the matter here by certiorari for review.
The amount here involved is small, but it is claimed by both parties that the question raised is one of considerable importance to the State, and to parties desirous of recording land contracts, and that there is at present no uniformity among the various counties in the method of computing the tax. The question is, What was the principal debt or lien secured by this contract when it was signed?
Section 1 of the act of 1911 provides that for the purposes of the act all indebtedness secured by liens upon real property should constitute that class of credit upon which the act imposes a specific tax, and that the word “mortgage” should include every mortgage or other instrument by which a lien is created over, or imposed upon real property, and shall include executory contracts for the sale of real property.
Section 2 provides that a tax of fifty cents for each one hundred dollars, and each remaining major fraction thereof of the principal debt or obligation which was, or under any contingency might be, secured by a mortgage upon property situated within this State, recorded on or after January 1, 1912, was imposed on each such mortgage and should be collected and paid as therein provided, with certain exceptions which are not material here.
Section 3 provides that the tax shall be paid to, and collected by the treasurer of the county, to whom it shall be presented, who shall as one of his official duties compute and collect the taxes due thereon, and shall certify on said mortgage the amount secured thereby, and the amount of taxes received by him; which certificate shall be recorded by the register of deeds as a part of the record of the mortgage.
Section 6 of the act provides that the owner of any mortgage which then was, or which might be recorded before January 1,1912, might present to the county treasurer an affidavit setting forth the amount of principal secured thereby which was unpaid, and might pay a like tax upon such amount.
The contract in question appears to have been signed at its date. When it was delivered does not appear. It has been held that actual delivery of a contract is not essential to its validity; and that any overt act like signing, which may be fairly deemed to express the obligor’s intention to be bound, is sufficient.
It is manifest that at the time the contract was signed by the parties thereto, nothing had been paid thereon. It provided that the sum of $1,900 was to be paid in the future, the language being: “Nineteen hundred dollars to be to them duly paid.” Under the terms of the statute it is “the' amount secured thereby” which controls. It would be cpnceded, of course, that if the $100 was not paid when the contract was executed then it stood as security for $1,-900. It seems to us. that by the terms of the contract there was a period of time after its signing when it was security for $1,900.
Had the $100 been paid at any time subsequent to the signing, even on the same day, or subsequent to the delivery of the contract, there would have been a time when the sum secured by the contract was $1,-900. If a contingency had arisen by which the $100 was not paid at all, the same result would follow. It is the language of the contract which should control. Had the contract stated in substance “$100 which sum has been heretofore paid,” or $100 the receipt of which is hereby acknowledged,” we would have a different question before us.
It seems to us that the county treasurer can only be guided by what appears upon the face of the instrument; and if that fails to show the first payment to have been made before the execution of the contract, then the tax must be paid on the full consideration stated therein. Nor do we think that the county treasurer can be governed or controlled by the indorsement on the reverse side of the contract. It is no part of the contract, and should not be considered by that officer. It is only as to those instruments which were recorded before the act took effect, where the treasurer can consider affidavits, or other extrinsic proof as to the amount of principal which is unpaid, and collect a tax thereon only, as appears by section 6 of the act. In our opinion the amount secured by the contract was the sum of $1,900, and the tax due and payable thereon was $9.50.
•The judgment of the circuit court is therefore reversed and the writ of mandamus dismissed.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred. | [
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Steere, J.
Plaintiffs are husband and wife and own as tenants by entirety a farm of 60 acres, a portion of which, consisting of about 3.32 acres, lies within the corporate limits of the village of Morenci, Lena-wee county, adjacent to its so-called “Oak Grove” public cemetery. Owing to available space for burial being nearly exhausted in Oak Grove and a need for larger burial grounds in that community the village authorities desired and claimed it necessary to secure from plaintiffs this adjoining three and a fraction acre piece of land.
On August 13, 1917, the village council passed a resolution, with various recitals as to conditions and demands, declaring it necessary for the public welfare of its inhabitants that the village of Morenci acquire and own within its corporate limits a place of burial south of and contiguous to its old Oak Grave cemetery, in draining and beautifying which it had expended large sums of money and that for such proposed public improvement it was deemed necessary to obtain the piece of land in question belonging to plaintiffs. To that end a committee was appointed by the council to confer with plaintiffs and ascertain on what terms it could be obtained. This the committee did and later reported to the council in writing that plaintiffs refused to convey said land to the village for the purpose proposed at a less price than $1,000 per acre, or $3,332. On receipt of this report the council by resolution, with recital that the price demanded was deemed so exorbitant and unreasonable it was not warranted in agreeing to pay the same, determined it was unable to agree with the owners for the purchase of said described land, that it had become a public necessity to take the same for the proposed necessary public improvement without consent of the owners and directed the village attorney to institute condemnation proceedings to acquire the same before a justice of the peace residing in said village. The prescribed statutory steps were then taken for such condemnation pursuant to chapter 13 of the general village law, now found in 1 Comp. Laws. 1915, beginning with compiler’s section 2784 on page 1104.
On being served with summons in the condemnation ' proceedings plaintiffs filed a bill of complaint with the circuit court in chancery of Lenawee county, on September 13, 1917, asking an injunction to restrain, and end the condemnation. An order to show cause, with a preliminary restraining order, was granted and on September 22, 1917, a written showing in response to such order and a motion to dismiss plaintiffs’ bill for want of jurisdiction were filed by defendant. On September 27, 1917, an answer was filed, a hearing and argument had on the showing made and an opinion filed by the court, followed by an order, filed October 6, 1917, the concluding paragraphs of which are as follows:
“After reading the pleadings in said cause and listening to the argument of counsel, it is ordered by this court that said temporary restraining order is continued until a full hearing can be had in said cause upon the issue raised in said proceedings as to the disability of said justice of the peace, Leon D. Mowry, to proceed with said condemnation proceedings.
“It is further ordered that the proceedings complained of in said bill of complaint, up to the filing of said petition with said Leon D. Mowry, justice of the peace, are regular and valid, and that said village of Morenci may, if it sees fit to do so, discontinue said proceedings before said Leon D. Mowry, and proceed before any other justice specified in said statutes to take jurisdiction over said proceedings.”
From this order plaintiffs have appealed, their claim of error involving, as stated in their counsel’s brief,
“but one question in this court to determine, and that was whether the circuit court erred in holding that the bill filed by plaintiffs should be dismissed without a hearing upon the allegations therein contained.”.
Plaintiffs’ grounds of complaint against Justice Mowry were that he is also the village assessor, and an interested party, having expressed his views as to the value of the land sought to be condemned both by his records and in other ways, which defendant denied in its answer and showing in response to the court’s order to show cause. As to this, the circuit judge expressed the view that, while the offices of justice and village assessor are not incompatible yet, in view of the objection raised, it was advisable to take the condemnation proceedings before some justice entirely disinterested, stating in answer to inquiry of counsel that the bill should be dismissed “so far as the fraud charge is concerned,” subsequently filing the order quoted, from which plaintiffs have appealed for the reason stated in counsel’s brief.
' While in the opinion reviewing questions raised and discussed at the hearing of defendant’s showing in response to the order to show cause why a preliminary injunction should not issue and the temporary restraining order previously made should not be continued, the court stated plaintiff’s bill should be dismissed as to the charge of fraud, it was not specifically so provided in the order made. Technically the order made and entered is but the refusal, upon a ’showing against an application for an injunction, to grant the injunction or to continue a previously made interim restraining order, except as,, to defendant’s proceeding with the condemnation before a justice to whom plaintiffs objected because an interested or prejudiced party. But conceding that the order made in connection with the opinion filed amounts to a denial of plaintiffs’ right to be heard upon the charge of fraud as set out in their bill, and is in effect a dismissal of the same as to them, we find no occasion to disturb the order appealed from.
The property in question, which is a part of plaintiffs’ farm lying adjacent to defendant’s cemetery, is agricultural land, properly fenced, but without buildings, wells or other improvements upon it. The gist of plaintiffs’ complaint is that taking this land for cemetery purposes would disastrously contaminate and pollute the immediate environments of their home, and a green-house they maintain near by; that the addition of this tract to the old cemetery would bring the new south cemetery line 202 feet neare'sr their house and 192 feet nearer their wells than before, the present distances being 685 feet from the house and 575 feet from the wells; that there are other available lands, belonging to persons named, adjacent to the old cemetery and suitable for cemetery purposes; that taking their land for the proposed enlargement is not a public necessity and the village council, without regard to the true facts though familiar with them, fraudulently and maliciously based its resolution “upon a false and fraudulent statement of facts.”
The council embodied in its resolution a statement “ of conditions and reasons for the proposed improvement, the portion nearest approximating what plaintiffs charge as intentionally false and fraudulent being:
“And whereas, the land surrounding said cemetery is not suitable or available for cemetery purposes, except on the south side of said cemetery and within the corporate limits of said village of Morenci, and whereas it is not practical at this time to extend the limits of said cemetery in any other than a southerly direction.”
Such introductory recitals are in their nature largely conclusions or expressions of opinion, not directly an essential of the resolution and determination required as a jurisdictional initial step in the statutory proceedings to take- private property for public use. The resolution by the council, which must contain a determination of necessity, is neither judicial or final. Its legal force and effect being an official determination by the village council which inaugurates and authorizes the proceedings, in which the position of the council is .rather that of a petitioner asserting in prescribed form for adjudication in the proper tribunal the necessity of proposed public improvements and taking, specified private property for public use, which must, however, ultimately be determined by a jury trial in judicial proceedings for which the statute provides. People v. Village of Brighton, 20 Mich. 57; Horton v. City of Grand Haven, 24 Mich. 465; Powers’ Appeal, 29 Mich. 504; Detroit City Railway v. Mills, 85 Mich. 634; Commissioners of Parks v. Moesta, 91 Mich. 149; Detroit Water Com’rs v. Lorman, 158 Mich. 608.
It is not questioned that these proceedings are in conformity with the statute, showing upon their face jurisdiction and all prescribed requirements observed. The charges of fraud and falsehood in plaintiffs’ bill all center in their essentials to the question of necessity of taking their land for a proposed public improvement which is the exact controlling question tendered issuably for determination in a legally constituted forum before a jury where the burden of proof rests upon defendant, where full opportunity is given plaintiffs to appear and be heard upon the facts and law, present proofs and make whatever defense they desire, with the further right of appeal and retrial in • the circuit court from which appeal lies for review in this court. The circuit court correctly found and held that no such fraud was charged in plaintiffs’ bill of complaint as warranted its assumption of jurisdiction to exclusion of the regular statutory proceeding provided for trying the controlling issues involved.
The order appealed from is affirmed, with costs in favor of defendant.
Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Moore, J.
This case was commenced in justice’s court and appealed to the circuit court, where it was tried without a jury. The case is brought here by writ of error.
The judge made findings of fact and law as follows:
“Findings of Facts.
“1. On August 6, 1916, defendant applied for insurance in plaintiff company; policy No. 5668 was issued to defendant on August 7, 1906. The annual assessment period of plaintiff company extends from August 1, of any year to August 1, of the following; the books are closed on that date for levying assessments, and the assessments are payable in October following. Defendant paid all assessments levied against him until the assessment of 1909, which was for losses and expenses of the company from August 1, 1908, to August 1, 1909; the amount was $3.75; the $3.75 appears^ on the 1909 assessment roll, although the plaintiff did not introduce or produce the roll for that year.
“2. Defendant claims that in the latter part of August, 1908, he paid what assessments were due against him and surrendered his policy for cancellation ; that he gave his policy to Berling Price, the then local director of, the company. Mr. Price testified that he mailed the policy to plaintiff and paid the assessment of 1908, which would pay defendant’s obligations up to August 1, 1908. Mr. Holden, the secretary of the company, testified that he did not receive the policy. It is the claim of the plaintiff that the defendant not having paid the $3.75 due plaintiff for losses and expenses from August 1, 1908, to August 1, 1909, that the same was properly assessed in. 1909 for the entire 1909 assessment in the sum of $8.75. Plaintiff claims that no other assessment was made against defendant as he was off the active list of members on February 1, 1910, and no losses and expenses of the company were assessed against him or his policy since that date, and that his name did not appear on any assessment roll issued by the company until the year 1914.
“3. Article 10 of the articles of association of the plaintiff provide: * * * (The article is here quoted.)
“Section 26 of the by-laws of plaintiff provide * * * (The section is here quoted.)
“4. It is the claim of the defendant that he did not receive notice of the assessment made August 1, 1909, but if said assessment was made that he, the defendant, ceased to be a member on October 1, 1909, according to the by-laws No. 26 of said plaintiff company, and if he was owing anything to plaintiff at that time for losses and expenses between the date of the 1909 assessment and the date when he ceased to be a member that the statute of limitation would run against such claim from said last mentioned date.
“Conclusions of Law:
“From the foregoing findings of fact, I conclude as matter of law:
“1. That sufficient proof was offered to entitle the application of defendant to be received; it appearing that the defendant received the policy issued thereunder and paid several assessments thereon.
“2. That sufficient proof was offered to show that defendant’s name appeared on the assessment roll of plaintiff for the year 1909 for losses and expenses of the company assessed or levied against him or his policy to August 1, 1909, in the sum of $3.75.
“3. I am of opinion that all sums due the plaintiff from the defendant were due and payable to it October 1, 1909, and the statute of limitations began to run from that time.”
The court found that as the suit was commenced December 29, 1915, the statute of limitations had run and entered judgment for the defendant.
The attention of the court was called to the fact that he had stated the claims of the parties in paragraphs two and four instead of making findings of fact, and amendments were proposed which were overruled and exceptions were duly taken.
The appellant insists that the second and fourth paragraphs are mere recitals of the claims of the parties and are not findings of fact, and that the other two paragraphs are not sufficient to be made the basis of the judgment.
The case presented is unlike White v. Gypsum Co., 168 Mich. 288, where the findings, though loosely drawn, were in fact made. In the instant case the claims of the parties were recited but no findings were made as to which of the claims were true, and there is nothing upon which to base the judgment. See Yelverton v. Steele, 40 Mich. 538; Downey v. Andrus, 43 Mich. 65; Steele v. Matteson, 50 Mich. 313.
It is unnecessary to discuss the other questions.
Judgment is reversed, and a new trial granted, with costs to the plaintiff.
Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Fellows, J.
The parties to this case were married May 18, 1894, and have one child, a daughter, who was 20 years old at the time this bill was filed. The record discloses that they had but little means at the time of their marriage and that during their married life they accumulated some property, which will presently be more specifically referred to. Their home life seems to have been a contented one until another woman entered the life of this husband. The parties were then living together in Detroit, and divorce proceedings in the Wayne circuit resulted. A reconciliation seems to have been effected through the interposition of the daughter; but it was not permanent, and plaintiff claims to have taken up his residence at Ypsilanti in Washtenaw county, where he filed this bill charging defendant with acts amounting to extreme cruelty. The defendant answered claiming the benefit of a cross-bill. Upon the hearing the plaintiff introduced no proof to sustain his bill and decree passed for defendant upon the cross-bill. Both parties appeal, and the sole question here argued or considered by them is the amount of alimony awarded.
At the time of the separation the parties were living at 327 Lincoln avenue, Detroit. This property was owned by them as tenants by the entirety, and is variously estimated to be worth from $8,500 to $13,-000. It is incumbered for $3,000. The furniture does not appear to have been elaborate but was comfortable; the parties do not agree as to its value. It includes a piano given the daughter by her father upon her graduation after the separation. Some repairs are needed on the home and additional furniture required to enable defendant to take roomers, as she has been doing in one or two instances.
The plaintiff is a builder and contractor and owns 573 out of 600 shares of the G. L. D. Peterson Company, which company conducts the business. This company, according to its annual report, has $6,000 invested in real estate, $500 in personal property, and $106.90 in cash. As we read this record the real estate consists of encumbered property and interests in land contracts, and it is doubtful if plaintiff’s estimates of the value of these equities is far out of the way. In addition to plaintiff’s interest in the Lincoln avenue property and his interest in the company, he also owns an automobile, has a small place at an inland lake said to be worth $150, and some lots in Sandwich, Ontario.- These lots are not readily salable and are worth from $1,000 to $1,500. The company and plaintiff both owe some debts, a portion attributable to the business operations and some for the support of defendant. Due to war-time conditions, building operations are not extensive at the present time.
The decree of the court below awarded to the defendant the Lincoln avenue property, including the furniture, subject to the mortgage, the same to be in lieu of dower or other interest in plaintiff’s property, made an allowance for attorney’s fees and costs, and provided the necessary detail to effectuate its provisions. .The plaintiff insists that this decree is most inequitable. He insists that the Lincoln avenue property is worth $13,000; that the value of the property left for him, after the provision for the wife, has decreased, due to shrinkage in real estate values in De troit, and his counsel, in the brief, has submitted a computation showing the value of the property given to defendant to be $11,000, while plaintiff, after payment of his debts will have less than $5,00t). On the other hand, defendant insists that the property given her is overvalued, while that of plaintiff is undervalued, and her counsel submits a computation showing that plaintiff’s property is worth approximately $9,-000, while the property going to defendant is worth much less. We cannot accept either .of these claims at par. The shrinkage in values of the real estate involved is general; it applies as well to the property awarded to one as to the other.
The allowance of alimony cannot be measured by a yard stick. Each case must be determined by its own peculiar facts. The learned circuit judge made a painstaking effort to work out an equitable division of the property these parties have together accumulated. In the main we are impressed he succeeded. But we think sufficient account was not taken of the fact that repairs on the Lincoln avenue property are imperatively needed, and that new furniture must be put into some of the rooms to make them available for roomers, the only remunerative use to which the house may be devoted. We are, therefore, constrained to add to the property decreed to the defendant the sum of $1,-000, which shall be a lien on plaintiff’s property. In all other regards the decree of the court below will be affirmed. The defendant will recover her costs in this court.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. | [
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] |
Marilyn Kelly, P.J.
This case arose out of the collapse of the Diamond Mortgage Company. Plaintiff was the assignee of defendant Peach’s mortgage. After the assignment, Peach paid off the mortgage in full. The prepayment was made through the servicing company, Diamond Mortgage, which failed to forward it to plaintiff before going bankrupt. Plaintiff brought this action to foreclose on Peach’s mortgage. The trial judge granted him summary disposition.
Defendants argue on appeal that Diamond Mortgage had actual or apparent authority to accept prepayment of the mortgage. They argue also that payments they made prior to receiving actual notice of the mortgage’s assignment effected a pro tanto discharge of the mortgage. Also, since the note was not properly executed, plaintiffs security interest was lost. Finally, Peach is entitled to credit for payments she made to the servicing agent until notified to pay another. We reverse.
Defendant Peach financed the purchase of her house though Commerce Mortgage Corporation. Commerce assigned the note and mortgage to Commerce Mortgage Investments, Ltd. (cmi), an affiliate of Diamond Mortgage. Cmi assigned the mortgage and note to A.J. Obie, Inc., which assigned them to plaintiff as security for his investments. Plaintiff considered Obie, cmi, and Diamond to be one and the same. In fact their mailing addresses were identical. Plaintiff was aware of the servicing agreement between cmi and Diamond which authorized Diamond to collect principal and interest due on mortgages.
In time, defendants Dennis and Cheryl Fend purchased the Peach property from Peach. Defendant Great Lakes Federal Savings and Loan closed the transaction between Peach and the Fends and made the prepayment of the mortgage to Diamond Mortgage. Diamond Mortgage filed bankruptcy, never turning over to plaintiff the amount owing. After discovering Diamond’s fraud, plaintiff demanded payment from the Fends and then initiated this action to foreclose on the Peach mortgage.
Defendants argue initially that the trial court erred in granting summary disposition, because Diamond Mortgage had actual or apparent authority as plaintiff’s agent to receive a prepayment of the mortgage. A motion for summary disposition under MCR 2.116(0(10) tests whether there is factual support for a claim. Courts are liberal in finding a genuine issue of material fact. St Paul Fire & Marine Ins Co v Quintana, 165 Mich App 719, 722; 419 NW2d 60 (1988). Where there is a disputed question of agency, any testimony, either direct or inferential, tending to establish agency creates a question of fact for the jury to determine. Jackson v Goodman, 69 Mich App 225, 230; 244 NW2d 423 (1976), citing Miskiewicz v Smolenski, 249 Mich 63, 70; 227 NW 789 (1929).
An agency relationship may arise when there is a manifestation by the principal that the agent may act on his account. 1 Restatement Agency, 2d, § 15, p 82. The test of whether an agency has been created is whether the principal has a right to control the actions of the agent. Little v Howard Johnson Co, 183 Mich App 675; 455 NW2d 390 (1990).
In this case, a fact question exists concerning whether Diamond acted as plaintiffs agent. A jury could find that plaintiff had control over Diamond, since he could have terminated Diamond’s collection activities. That fact was evidenced by a showing that, at the time in question, he was collecting payments from another mortgagor, directly.
The authority of an agent to bind the principal may be either actual or apparent. Actual authority may be express or implied. Implied authority is the authority which an agent believes he possesses. After the agency relationship and the extent of the agent’s authority have been shown, the principal has the burden of proving that the agent’s authority was limited. 3 Am Jur 2d, Agency, § 359, p 870.
An agent has implied authority from his principal to do business in the principal’s behalf in accordance with the general custom, usage and procedures in that business. See 1 Restatement Agency, 2d, §36, p 124. However, the principal must have notice that the customs, usages and procedures exist. Id.
In the case on appeal, defendants argue that it is a usual practice in the mortgage industry for servicing companies to accept prepayments. Whether this custom does in fact exist and whether plaintiff had knowledge of it are fact questions not properly disposed of in a motion for summary disposition.
Moreover, there exists in this case a genuine issue of material fact as to whether Diamond Mortgage had apparent authority. Apparent authority may arise when acts and appearances lead a third person reasonably to believe that an agency relationship exists. 3 Am Jur 2d, Agency, § 19, p 524.
Apparent authority must be traceable to the principal and cannot be established by the acts and conduct of the agent. Smith v Saginaw Savings & Loan Ass’n, 94 Mich App 263, 271; 288 NW2d 613 (1979). In determining whether an agent possesses apparent authority to perform a particular act, the court must look to all surrounding facts and circumstances. Id. The question here is whether an ordinarily prudent person, conversant with mortgage lending, would be justified in assuming Diamond had the authority to accept prepayment of the mortgage. Id., 271-272.
Plaintiff argues that no apparent authority could exist, because he had recorded the assignment of the mortgage; a reasonable person would have made the prepayment only to the noteholder.
However, plaintiff’s recording does not answer the question whether Diamond Mortgage had authority to accept prepayments for plaintiff. Defendants were never given notice that they were required to forward payments directly to plaintiff as opposed to his servicing agent. A question of fact exists whether, based on plaintiff’s actions, defendants were reasonable in their belief that Diamond had authority to accept the prepayment.
Finally, there is a genuine issue of material fact as to whether plaintiff is estopped from denying that Diamond Mortgage had apparent authority to accept prepayments.
Whenever a principal has placed an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in assuming that such agent is authorized to perform in behalf of the principal the particular act, and such particular act has been performed, the principal is estopped from denying the agent’s authority to perform it. [Central Wholesale Co v Sefa, 351 Mich 17, 26-27; 87 NW2d 94 (1957), citing Faber v Eastman, Dillon & Co, 271 Mich 142, 145; 259 NW 880 (1935).]
Based on our conclusion that summary disposition was inappropriate in this case, we decline to address defendants’ remaining issues.
Reversed and remanded. We do not retain jurisdiction. | [
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Per Curiam.
Respondent General Motors Corporation appeals as of right from the August 22, 1990, order of the Oakland Circuit Court reversing the decision of the State Tax Commission and ordering gm to pay taxes to petitioners Orion Township and Lake Orion Community Schools.'We affirm the trial court’s determination, but remand to the tax commission for implementation of the proper relief.
In 1980, the township created an "industrial development district” (idd) comprised of 597 acres of property owned by gm. Pursuant to the creation of this district and the operation of 1974 PA 198, currently codified at MCL 207.551 et seq.) MSA 7.800(1) et seq., gm was granted, with respect to its construction of a new plant, a tax exemption, known commonly as an industrial facilities exemption certificate (ifec), in the amount of $440,224,000, which was subsequently increased to $538,746,000. In 1987, gm sought an additional twelve-year ifec covering personal property intended to replace obsolete equipment at its plant property that it valued in the amount of $29,700,000. The township denied gm’s application and, on a remand from the tax commission, stated as its reasons the fact that the property constituted primarily "replacement facilities,” which did not entitle gm to an exemption in an idd.
The tax commission, on appeal, determined that $5,908,904 of the property installed by gm, and the function it performed, was entirely new to the plant and, because that property did not constitute "replacement facilities,” accordingly entitled gm to an ifec in that amount. The tax commission also determined that the remaining $23,791,096 of the property constituted "replacement facilities.” While the tax commission noted its longstanding administrative interpretation that "replacement facilities” within an idd were not eligible for an ifec, and that gm was accordingly not entitled to an exemption, it also noted that its prior practice resulted in ifecs being granted even where the "replacement facility” was located in an idd. Accordingly, the tax commission concluded:
As a result of the above, even though the Commission feels that the property in issue is a "Replacement Facility” and that an exemption certificate should not be approved because the property is located in an Industrial Development District, to deny the certificate on those grounds would run contrary to past practice and constitute administrative discrimination. Absent judicial direction, the Commission feels that it is constrained to overrule the denial of the application by Orion Township.
The township appealed this decision to the Oakland Circuit Court in accordance with the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. The circuit court reversed the decision of the tax commission, finding that the property that constituted a "replacement facility,” in the amount of $23,791,096, did not entitle gm to an ifec and ordering gm to pay petitioners, as "the respective taxing units,” the taxes not paid on that amount.
On appeal, gm first argues that the property constituted a "new facility” under the act and accordingly entitled it to an exemption within an idd. Under the Administrative Procedures Act, the circuit court reviews the findings of the tax commission, like those of all administrative agencies, to ensure that its decision was supported by competent, material, and substantial evidence on the whole record. This Court utilizes an identical standard. Blue Water Isles Co v Dep’t of Natural Resources, 171 Mich App 526, 531; 431 NW2d 53 (1988).
Under MCL 207.552(3); MSA 7.800(2X3), a "replacement facility” is defined as industrial property that is intended to replace or restore obsolete industrial property either on contiguous or the same land, or on vacant noncontiguous land located within the same "plant rehabilitation district” (prd) of the local governmental unit. Under MCL 207.552(4); MSA 7.800(2)(4), "new facility” is defined as "new industrial property other than a replacement facility to be built in a plant rehabilitation district or industrial development district.” The primary distinction between classification of property as a "replacement facility” and as a "new facility” is the manner in which the táx is calculated and, as a result, the amount of the industrial facilities tax due. See MCL 207.564; MSA 7.800(14).
In this matter, gm agreed before the tax commission that the property that the tax commission ultimately determined constituted a "replacement facility” was intended to replace older property, previously located within the same facility, and performed the same function. We find that the tax commission’s determination that this property constituted a "replacement facility” under the definition contained within the act is supported by competent, material, and substantial evidence on the whole record. This determination, when taken into consideration with-the definition of a "new facility” under the act, precludes a finding that the property constituted a "new facility.” Accordingly, we conclude that the circuit court was correct in upholding the tax commission’s determination.
We also believe that the circuit court was correct. in its reversal of the tax commission’s award of an ifec to gm based solely on its past practices. While the controlling principle of taxation under both the federal and state constitutions is the equal treatment of similarly situated taxpayers, Edward Rose Bldg Co v Independence Twp, 436 Mich 620, 640; 462 NW2d 325 (1990), successful assertion of a claim that a party has been denied equal protection in the imposition of a tax requires that the party show that the taxing authority "has failed to tax similarly situated enterprises and that its failure to do so was intentional and knowing, rather than mistaken or the result of inadvertence.” MCI Telecommunications Corp v Dep’t of Treasury, 136 Mich App 28, 36-37; 355 NW2d 627 (1984).
Gm has made no such showing, relying instead on the commission’s prior errors in support of its assertion that it is entitled to an ifec. However, prior mistakes must be corrected, not compounded by continued error. See Michigan Oil Co v Natural Resources Comm, 71 Mich App 667, 683; 249 NW2d 135 (1976), aff'd 406 Mich 1; 276 NW2d 141 (1979). Accordingly, we conclude that the tax commission erred in determining that a failure to award gm the requested ifec would be discriminatory and that the circuit court correctly reversed the decision of the tax commission.
We would note our concern over the tax commis sion’s longstanding position, which is apparently also shared by the Commerce Department, that ipecs may be granted for "replacement facilities” only when those facilities are located in plant rehabilitation districts, and not idds, given the absence of any apparent statutory authority for this position. However, we conclude that this issue has been waived by gm’s acceptance of this longstanding position before the commission and gm’s failure to include the issue within its statement of questions presented on appeal. Accordingly, we decline to address it. Joyce v Vemulapalli, 193 Mich App 225, 228; 483 NW2d 445 (1992); Check Reporting Services, Inc v Michigan National Bank-Lansing, 191 Mich App 614, 628; 478 NW2d 893 (1991).
Even though we have determined that the circuit court was correct in its reversal of the commission’s award of the requested ifec, we conclude that the relief ordered by the circuit court was inappropriate.
Gm argues that it is entitled to a remand to the tax commission for an assessment of the property’s value. In support of its argument, gm correctly notes that the tax commission has the authority to place corrected assessments on the current assessment rolls for property incorrectly reported or omitted in the current or prior two years. MCL 211.154(1); MSA 7.211(1). However, gm fails to note that the tax commission has already determined the value of the property, which it also determined constituted a "replacement facility,” establishing that value at $23,791,096. Had the tax commission not erroneously determined that gm was entitled to an ifec, tax would have been computed on that amount. Gm’s sole remedy to challenge this valuation was a timely appeal to the Michigan Tax Tribunal, an option that it chose not to exercise. MCL 205.731; MSA 7.650(31). See also Nicholson v Birmingham Bd of Review, 191 Mich App 237, 239-240; 477 NW2d 492 (1991). The commission’s determination that the property was valued at $23,791,096 was sufficient to enable the circuit court to order the payment of taxes based upon that valuation.
Accordingly, we conclude that the tax commission has assessed the property that is the subject of this appeal and that a valid tax may be imposed on that amount. However, because the circuit court is not given the power to levy or collect taxes, the remedy that it should have ordered was a remand to the commission with directions to enter the value of the "replacement facility,” as determined in its decision, onto the tax rolls and for the collection of the applicable taxes and interest. We order such relief.
Given our resolution of this matter, we decline to consider whether the commission correctly determined that its grant of the requested ifec would not impair the financial soundness of the Lake Orion Community Schools. In any event, we would note that this issue has not been preserved for appellate review because of the circuit court’s failure to address it. McKelvie v Mt Clemens, 193 Mich App 81, 86; 483 NW2d 442 (1992).
We affirm the circuit court’s decision, but modify the relief ordered, remanding this matter to the tax commission to proceed in accordance with this opinion. | [
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Per Curiam.
The people appeal by leave granted from an order of the Oakland Circuit Court that peremptorily reversed a district court order denying defendant’s motion to withdraw a 1984 plea of guilty of operating a motor vehicle under the influence of liquor, MCL 257.625; MSA 9.2325. We reverse.
When a motion to withdraw a guilty plea is brought after sentencing, a trial court’s decision will not be reversed absent a clear abuse of discretion resulting in a miscarriage of justice. People v Winegar, 380 Mich 719, 730-731; 158 NW2d 395 (1968) ; People v Rettelle, 173 Mich App 196, 200; 433 NW2d 401 (1988). A review of the 1984 plea transcript shows that defendant was advised of his Boykin/Jaworski rights before the acceptance of his plea. That defendant’s plea was freely, voluntarily, and understandingly made may be inferred from the district court’s acceptance of the plea. Guilty Plea Cases, 395 Mich 96, 126; 235 NW2d 132 (1975). Although defendant is correct that he was not informed of two of the three statutory consequences of his conviction as required by MCL 257.625(9); MSA 9.2325(9) at the time of his plea, defendant does not argue that because of this omission his plea was not made understandingly. Finally, defendant argues that the factual basis for his plea was inadequate. If defendant is correct, then the proper remedy would be to remand this case to allow the prosecutor to establish the missing elements. People v Mitchell, 431 Mich 744, 749-750; 432 NW2d 715 (1988). Although the factual basis established at the plea proceeding was scant, defendant does not argue that the prosecutor would be unable to prove the offense.
At the time of the hearing on defendant’s motion to withdraw his plea, MCR 6.201(E)(7)(b) (now MCR 6.610[E][7][b]) provided that if the trial court determined that a deviation from the requirements of the court rules occurred, but that the deviation did not affect substantial rights of the defendant, then the defendant would be permitted to withdraw his plea only if it would not cause substantial prejudice to the people because of reliance on the plea. In this case, the district court found that the deviations described above did not affect substantial rights. We agree. Defendant is no longer subject to the statutory consequences of which he should have been warned before acceptance of his 1984 plea, and does not claim that a factual basis for his plea cannot be shown. Moreover, the prejudice to the people if defendant was permitted to withdraw his plea is manifest; five years elapsed between the time of defendant’s plea and his motion to withdraw, thereby greatly hampering the people’s ability to prove the offense.
We conclude that the district court’s denial of defendant’s motion to withdraw his plea was not a clear abuse of discretion that resulted in a miscarriage of justice. Hence, the circuit court’s peremptory reversal of the district court’s order was erroneous.
Reversed. _
Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969); People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972).
Our holding does not restrict a defendant’s right to challenge the constitutionality of a prior conviction in circuit court. People v Moore, 391 Mich 426, 440-441; 216 NW2d 770 (1974). | [
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Griffin, J.
Plaintiffs brought this products liability action against defendant, Square D Company, following the death of plaintiffs’ decedent, Chester W. Skinner. Mr. Skinner was electrocuted by his own homemade tumbling machine on which he had installed a switch manufactured by defendant. Plaintiffs appeal as of right a circuit court order entering summary disposition in favor of defendant pursuant to MCR 2.116(0(10). We affirm.
i
This is a tragic case. Plaintiffs’ decedent was in the business of cleaning and finishing metal parts. To this end, Mr. Skinner routinely used a homemade tumbling machine that he had designed and built himself. Essentially, the machine consisted of a large metal drum mounted on a frame. Rough metal parts were placed inside the drum along with a quantity of abrasive detergent. An electric motor then rotated the drum in one direction to wash the parts. After allowing the drum to rotate for a period of time, the operator would reverse the direction of the tumbler and the finished parts would be ejected from the drum.
Because of the way Mr. Skinner had designed the machine, reversing the direction of the drum’s rotation was a dangerous task. The motor that turned the drum was controlled by a switch manufactured by defendant. Mr. Skinner had connected the Square D switch to the motor by using three wires with insulated "alligator clips” on the ends. In order to reverse the direction of the machine, the operator was required to disconnect two of the alligator clips from the motor by hand and reverse them. For obvious reasons, it was important for the operator to make sure that the Square D switch was in the off position before disconnecting the wires from the motor.
On February 21, 1986, Mr. Skinner was in his shop, working in the room with the tumbling machines. Mrs. Skinner and two other women, Beulah McBride and Violet Whiting, were in another room, racking parts. Suddenly, the women heard Mr. Skinner cry out. They ran into the room where Mr. Skinner was, and found him standing with his hands above his head, each hand grasping an alligator clip. Electric current was passing through Mr. Skinner’s body. Aware of what was happening, Mr. Skinner cried out to the women,' "don’t touch me”! He then freed his left hand from the alligator clip and reached for the Square D switch. Mr. Skinner threw the switch into the off position, twisted, and fell over dead.
II
It is plaintiffs’ theory in this case that a defect in the design of the Square D switch proximately caused Mr. Skinner’s electrocution. Plaintiffs allege that the switch was defective because it had a large "dead zone” that allowed the switch to be positioned in such a way that it would appear to the operator to be off when it was actually on.
Defendant argues, and the trial court agreed, that even assuming the switch was defective, there is no evidence that Mr. Skinner was actually confused or misled by the position of the switch at the time he was electrocuted. Thus, defendant submits, no genuine issue of material fact exists concerning whether the alleged defect proximately caused Mr. Skinner’s death. After a thorough review, we are constrained to agree with defendant’s argument.
It is well established in Michigan law that a prima facie case for products liability requires proof of a causal relationship between the defect and the damage of which the plaintiffs complain. Mulholland v DEC Int'l Corp, 432 Mich 395, 415; 443 NW2d 340 (1989). It is also true that a prima facie case does not require that a plaintiff offer evidence that positively excludes every other possible cause. Rather, it is enough if the plaintiff can establish a logical sequence of cause and effect, notwithstanding the existence of other plausible theories, although other plausible theories may also have evidentiary support. Id.
The element of causation, however, cannot be established solely on the basis of theory or conjecture. Jordan v Whiting Corp, 396 Mich 145, 151; 240 NW2d 468 (1976). It is the plaintiff who bears the burden of proving causation, and where the matter is one of pure speculation or conjecture, it becomes the duty of the trial court to direct a verdict for the defendant. See Mulholland, supra at 416-417, n 18, quoting Prosser & Keeton, Torts (5th ed), § 41, p 269. Similarly, mere conjecture does not meet the burden of proof imposed on a party opposing a motion for summary disposition to come forward with documentary evidence indicating that a genuine issue of material fact exists. Little v Howard Johnson Co, 183 Mich App 675, 683; 455 NW2d 390 (1990).
Applying these principles to this case, we are persuaded that the trial court did not err in granting defendant’s motion for summary disposition. Throughout this litigation, both sides have advanced various theories regarding how the accident occurred. However, at no time did plaintiffs advance a plausible theory regarding how the defective switch caused the accident. We agree with the following observations contained in defendant’s brief:
Throughout the course of this litigation, plaintiffs have failed to appreciate that their burden is not simply to produce evidence that the switch could possibly, theoretically be confusing to someone at some time. They must produce evidence from which a jury could reasonably conclude that Mr. Skinner was in fact confused by the Square D switch on the machine he was operating just before he was electrocuted and that this confusion led to his death. See . . . Derbeck v Ward, 178 Mich App 38, 44 [443 NW2d 812] (1989); and Jubenville v West End Cartage, Inc, 163 Mich App 199 [413 NW2d 705] (1987).
The absurdity of plaintiffs’ confusion theory is exposed as soon as one realizes that the operator of the tumbling machine did not depend upon the way the switch handle appeared to determine whether the machine was "on” or "off.” Even if Mr. Skinner pushed the handle of the switch incompletely or even if it somehow teased its way into an ambiguous position, Mr. Skinner could not have thought the machine was off if in fact it was still running! The noise of the tumbler barrel and the motor is deafening and the motion of the barrel is continuous. Thus, even if Mr. Skinner were careful and tried to turn the machine, off before unfastening and refastening the alligator clips, he would have had to have known that the switch had not turned the power off because the machine would still have been running. He could not have ignored the roar of the motor and overlooked the tumbler as it turned continuously directly in front of him! [Emphasis in original.]
The scenarios advanced by plaintiffs in an attempt to establish causation are well characterized by defendant as "Agatha Christie theories.” We acknowledge that proximate cause is usually a question of fact and that summary disposition is appropriate only in exceptional cases. See Derbeck v Ward, supra. In this case, we have carefully reviewed all plaintiffs’ scenarios and find none to be supported by fact or reason. Without a plausible theory of causation, plaintiffs’ claim must fail and summary disposition is warranted. For this reason, we conclude that the trial court did not err in granting defendant’s motion for summary disposition.
m
We turn now to plaintiffs’ remaining arguments on appeal. Plaintiffs next contend that the trial court erred in granting defendant summary disposition without ruling specifically on plaintiffs’ separate claims of failure to insulate and failure to warn. We disagree.
Plaintiffs argue that the Square D switch was defective because it was not made of insulated material and that there is evidence that this defect contributed to Mr. Skinner’s electrocution. We find this argument disingenuous and accordingly reject it. It does appear that the experts agree that when Mr. Skinner grabbed the switch, he provided a secondary ground for the current that increased the magnitude of the shock he received. The testimony relied on by plaintiffs, however, does not indicate that it was only at that instant that the shock became fatal. Contrary to plaintiffs’ assertion, Dr. Klingler, a witness for the plaintiffs, did not conclude that it was the act of shutting the power off that caused Mr. Skinner’s death:
Q. [attorney for the defendant]: Is it your opinion that if the operating mechanism on this switch had been insulated, that Mr. Skinner would not have been electrocuted?
A. [Dr. Klingler]: I just don’t know. He may have received an extreme shock. He may still have been electrocuted.
I don’t know. I can’t say about that.
Dr. Klingler also admitted that his testimony was speculative. When asked if Mr. Skinner could have been electrocuted before he had a chance to reach for the switch, Klingler replied, "Oh, sure.” Similarly, the pathologist who conducted an autopsy, Dr. Kallet, testified that Mr. Skinner had already completed the circuit by the time he grabbed for the switch, with the current entering his right hand and exiting through the balls of his feet. We find no basis for relief on this issue.
Finally, plaintiffs contend that a question of fact exists regarding whether defendant was negligent in failing to place a warning label on the defective switch box. Our finding that plaintiffs have not shown that the defect was a proximate cause of the accident renders this issue moot.
Affirmed.
Jansen, P.J., concurred. | [
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Neff, P.J.
Plaintiffs appeal as of right from the circuit court’s order granting summary disposition to defendants. We affirm.
In their amended complaint, plaintiffs alleged that defendants committed legal malpractice when they failed to carry out the estate plan of May Hubbard Shippey by which plaintiffs would have received certain real estate. Plaintiffs also set forth a third-party-beneficiary theory, alleging that defendants breached their contract with Mrs. Shippey to properly draft testamentary documents and that Mrs. Shippey intended that plaintiffs directly benefit from that contractual arrangement.
i
The allegations of plaintiffs’ complaint are summarized as follows: On January 30, 1980, May Hubbard Shippey executed a will, one provision of which would convey to plaintiffs, if they survived her, an approximately 67.95-acre parcel of property located on Elk Lake in Antrim County. That parcel is referred to by the parties as the "original purchase” parcel. After the execution of that will, Mrs. Shippey told plaintiffs that she had decided to immediately convey the parcel to them. On July 24, 1980, she instructed defendant Rollert to effectuate her intent to convey that parcel to plaintiffs while reserving a life estate for her in the house and 5.3 acres of surrounding property. That parcel is referred to by the. parties as the "homestead” parcel.
On February 4, 1981, defendant Kuhn filed a deed he had prepared that conveyed to plaintiffs the original purchase parcel less the homestead parcel. However, the homestead parcel was not conveyed in that deed subject to Mrs. Shippey’s life estate.
On February 2, 1982, Mrs. Shippey executed her last known will, which was prepared by defendant Zimmerman. That will did not convey the homestead parcel to plaintiffs. Mrs. Shippey died on June 30, 1989.
n
The circuit court’s order states that summary disposition was granted pursuant to MCR 2.116(C) (10). However, a full reading of the decision and the case law cited therein reveals that the court actually decided the issue on the ground that plaintiffs failed to state a claim upon which relief can be granted. An order granting summary judgment under the wrong court rule may be reviewed under the correct rule. Johnson v Davis, 156 Mich App 550, 553; 402 NW2d 486 (1986).
hi
The precise question raised is one of first impression in Michigan. That question is whether persons claiming to be intended beneficiaries of a will can maintain an action against the attorney who drafted the will where no attorney-client relationship exists between those persons and the attorney.
Plaintiffs concede that, pursuant to Pantely v Garris, Garris & Garris, PC, 180 Mich App 768, 778; 447 NW2d 864 (1989), an element of an action for legal malpractice is the existence of an attor ney-client relationship. However, plaintiffs argue for the abrogation of that element. Plaintiffs rely on Friedman v Dozorc, 412 Mich 1; 312 NW2d 585 (1981), and cases from foreign jurisdictions for their argument.
Friedman involved a negligence claim brought by a physician against the attorneys who had represented the adverse party in a previous unsuccessful malpractice suit against the physician. Our Supreme Court held that the physician had failed to state an actionable negligence claim because an attorney owes no duty to an adverse party in litigation. Id. at 16. The Court based that holding on its conclusion that
the public policy of maintaining a vigorous adversary system outweighs the asserted advantages of finding a duty of due care to an attorney’s legal opponent. [Id. at 25.]
The Court went on to address other arguments of the physician and amici, one of which was that privity of contract no longer shields a professional from liability to foreseeable third parties. While noting that it had held in Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974), that an abstracter of title is subject to liability to foreseeable third parties who rely on the abstract, the Court stated that it was basing its decision in Friedman on public policy considerations and not on the privity of contract doctrine. Friedman at 28.
In Cramer v Metropolitan Savings Ass’n (Amended Opinion), 136 Mich App 387, 397-398; 357 NW2d 51 (1984), this Court interpreted Friedman to mean that lack of duty, and not the privity doctrine, is the proper ground for summary disposition of a claim of legal malpractice against an adversarial attorney.
In a more recent case, our Supreme Court considered the question whether an insurance company could maintain a malpractice action against the attorney it hired to defend its insured. Atlanta Int’l Ins Co v Bell, 438 Mich 512; 475 NW2d 294 (1991). In the lead opinion in that case, Justice Brickley observed that traditional legal doctrine mandates that only a person in the privity of an attorney-client relationship could sue an attorney for malpractice. Id. at 518. The essential purpose of that rule is to prevent consideration of the interests of those outside the relationship from interfering with the attorney’s duty to loyally represent a client. Id.
Justice Brickley went on to note, however, that the situation in Bell demonstrated that the lack of an attorney-client relationship by itself was an inadequate predicate for the analysis of malpractice liability, in view of the fact that the situation in Bell did not present a conflict between the interests of the insurer and the policy concerns of attorney loyalty. Id. at 520. He went on to resolve the issue under the principle of equitable subrogation. Id.
Thus, both in Friedman and in the lead opinion in Bell, the issue of attorney malpractice was addressed in terms other than the doctrine of privity.
IV
Some foreign courts have decided the issue in terms of privity, refusing on the ground that an attorney has no duty to nonclients to find a cause of action for legal malpractice where no attorney-client relationship exists. Dickey v Jansen, 731 SW2d 581 (Tex App, 1987); Lilyhorn v Dier, 214 Neb 728; 335 NW2d 554 (1983); Viscardi v Lerner, 125 AD2d 662; 510 NYS2d 183 (1986).
Other courts have ruled that an attorney may be liable to named beneficiaries of a will where the intent of the testator, as discernible from the face of the instrument, was frustrated either by faulty drafting or by improper attestation.
For instance, in Guy v Liederbach, 501 Pa 47; 459 A2d 744 (1983), the Pennsylvania Supreme Court found that the named legatee had a cause of action as an inténded third-party beneficiary of the contract between the testator and her attorney to draft a will where the legacy was voided because the legatee witnessed the will, as the attorney instructed.
In Lucas v Hamm, 56 Cal 2d 583; 364 P2d 685 (1961), the plaintiffs alleged that the defendant attorney agreed with the testator to prepare a will by which the plaintiffs were to be the beneficiaries of a trust. However, in drafting the instrument, the attorney violated the rule against perpetuities, resulting in the plaintiffs receiving less than intended. The court concluded that the plaintiffs could recover as third-party beneficiaries, because the main purpose of the testator in reaching the agreement with the attorney was to benefit the persons named in the will.
In Heyer v Flaig, 70 Cal 2d 223; 449 P2d 161 (1969), the testatrix retained the defendant attorney to draft a will and told the attorney that she wanted her entire estate to pass to her daughters, the plaintiffs. She also told the attorney that she intended to marry. She did in fact marry ten days after executing the will. The will purported to leave the entire estate to the daughters, but failed to mention the husband, who claimed a portion of the estate as a posttestamentary spouse. Id. The Supreme Court of California ruled that the plain tiff daughters had stated a cause of action in tort based on the attorney’s duty to the intended testamentary beneficiaries. Id.
In a subsequent California case, the appellate court characterized the views expressed in Lucas and Heyer as follows:
[A]n attorney may be held liable to the testamentary benefíciaries only if the above stated test is fully met, that is, if due to the attorney’s professional negligence the testamentary intent expressed in the will is frustrated and the beneüciaries clearly designated by the testator lose their legacy as a direct result of such negligence. [Ventura Co Society for the Prevention of Cruelty to Children and Animals, Inc v Holloway; 40 Cal App 3d 897, 903; 115 Cal Rptr 464 (1974) (emphasis in original)].
The court in Ventura cited Lucas and Heyer for the proposition that an attorney who undertakes to prepare a will assumes a duty to the intended beneficiaries as well as to the client and that lack of privity does not preclude an action based on either a third-party-beneficiary theory or a negligence theory.
A Florida appellate court adopted the quoted language from Ventura in ruling that the plaintiff did not state a cause of action where there was no indication from the will that the intent of the testator had been frustrated. DeMaris v Asti, 426 So 2d 1153, 1154 (Fla App, 1976). The court went on to say:
There is no authority—the reasons being obvious —for the proposition that a disappointed beneficiary may prove, by evidence totally extrinsic to the will, the testator’s testamentary intent was other than as expressed in his solemn and properly executed will.
Other jurisdictions have followed the California and Florida courts. In Schreiner v Scoville, 410 NW2d 679, 682 (Iowa, 1987), the Supreme Court of Iowa concluded:
[A] lawyer owes a duty of care to the direct, intended, and specifically identifiable beneficiaries of the testator as expressed in the testator’s testamentary instruments.
In Kirgan v Parks, 60 Md App 1, 12; 478 A2d 713 (1984), the court held:
[A] testamentary beneficiary (or one claiming to be an intended beneficiary) has no cause of action against the testator’s attorney for alleged negligence in drafting the will when, as in this case, the will is valid, the testamentary intent as expressed in the will has been carried out, and there is no concession of error by the attorney. [Emphasis in original.]
We have found only one jurisdiction in which an unnamed beneficiary was found to have stated a cause of action. In Hale v Groce, 304 Or 281; 744 P2d 1289 (1987), the plaintiff alleged that the defendant attorney was instructed by his client to prepare testamentary instruments in which a specified sum to the plaintiff was to be included. The gift was not included in either the will or the related trust. The complaint alleged a claim that the attorney had negligently failed to include the bequest. The plaintiff also alleged a claim that the attorney had failed to carry out a contractual promise to the client and that the plaintiff was the intended beneficiary of that promise.
The Supreme Court of Oregon held that the complaint stated claims under both theories,
as the intended beneficiary of defendant’s profes sional contract with the decedent and a derivative tort claim based on breach of the duty created by that contract to the plaintiff as its intended beneficiary. [Id. at 283.]
The court stated that it believed that the plaintiff was a "classic 'intended’ third-party beneficiary of the lawyer’s promise to his client.” The court went on to say that under third-party analysis, the contract creates a "duty” to the intended beneficiary, the negligent nonperformance of which gives rise to an action in negligence. Id. at 286.
We disagree with the result reached in Hale. We believe that where the intent of the testator as expressed in the testamentary instrument is not frustrated, an attorney owes no duty that will give rise to a cause of action to persons not named in the instrument. However, we express no view regarding an attorney’s liability to direct and intended beneficiaries named in the instrument where the intent of the testator, as expressed within the four corners of the instrument, has been frustrated. That situation is not before us.
In the present case, plaintiffs do not allege that they were named in the will or that the testator’s intent, as expressed in the instruments, was frustrated. Therefore, the circuit court’s order granting summary disposition to defendants is affirmed. | [
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Per Curiam.
In this products liability action, plaintiffs appeal from the grant of summary disposition to defendants, following the trial court’s decision to strike the testimony of plaintiffs’ only expert witness. We affirm.
Plaintiff Danny R. Green (hereafter plaintiff) was the owner of a 1986 Ford pick-up truck that was involved in an accident in the early hours of New Year’s Day, 1987. A friend of plaintiff’s, Greg Hornfischer, was driving the truck; plaintiff was asleep in the passenger seat.
The accident occurred on a two-lane, paved highway in Ohio as Hornfischer and plaintiff were en route to visit plaintiff’s sister. Hornfischer testified that he was driving approximately forty miles per hour when he saw a sign warning of a curve ahead and reducing the speed limit to thirty-five miles per hour. The road, in fact, curved sharply to the left, at an angle of approximately ninety degrees.
Hornfischer testified that he applied the brakes when he saw the sign, at a distance variously estimated at fifty, one hundred, or two hundred feet before the curve. After he stepped on the brakes "everything went crazy.” The truck "started shaking and shuttering.” Hornfischer was unable to recall what happened next: the truck went off the road, flipped over at least once, and landed on its wheels in a ditch that ran parallel to the road. Both plaintiff and Hornfischer were injured.
The accident was investigated by a deputy sheriff, Officer Miller. He inspected the road surface without finding any tire marks "on the roadway prior to its [the truck’s] entering the ditch.” He then issued a citation to Hornfischer for failure to control the vehicle, because "his stated speed contributed to the cause of the accident.” Two of plaintiff’s relatives, John Bukovich and Gail Bukovich, also inspected the accident scene. They both observed some skid marks on the road and the shoulder, either before the point at which the road curved or "a little ways into” the curve. No one observed any skid marks "in” the curve itself.
The truck was pulled from the ditch soon after the accident by a tow truck operator, Dale Bloomfield. Bloomfield found that the truck’s wheels were locked when he attempted to tow it out of the ditch. He was able to free the rear wheels by running the truck back and forth for a short distance on the highway. He testified that the rear wheels were freed simultaneously, although he was not able to observe the right rear wheel himself from inside the cab of the wrecker. Plaintiff’s nephew, Gail Bukovich, who arrived at the scene just before the towing operation began, testified that he saw one rear wheel break free first and the other break free during the second attempt.
The truck was returned to Michigan, where plaintiff filed suit in the Macomb Circuit Court, naming Ford Motor Company, the manufacturer of the truck, and Jerome-Duncan, Inc., the dealership that had sold him the truck, as defendants. Plaintiff’s theory was that a defect in the design of the truck had caused the brakes to lock when Hornfischer applied them as he approached the curve. The lock-up allegedly caused the truck to skid, run off the road, and flip over.
Plaintiff engaged the services of an expert witness, Dr. Rudolph Limpert, an automotive engi neer with special expertise in brakes and braking systems. Plaintiff deposed Dr. Limpert on January 24, 1989; the deposition was videotaped for use at trial. Dr. Limpert had not inspected the accident scene in person and based his opinion on deposition testimony (Hornfischer, both Bukovichs, plaintiff, Bloomfield, and Officer Miller), photographs, the police report, and the truck itself.
After some calculation, Dr. Limpert determined that the lock-up and skid happened after the truck had entered the curve. He estimated that the earliest point where the lock-up could have occurred was "thirty to sixty feet” before the end of the curved portion of the road, "approximately three-quarters of the way through the curve.”
Dr. Limpert’s conclusion was that the brakes had "locked up” when Hornfischer pressed the brake pedal, causing the skid and the accident. He testified that when the truck was only "lightly” loaded (the driver, one passenger and no cargo would be a "light” load), applying the brakes would send too much hydraulic pressure to the rear wheels, causing them to lock. This problem could have been avoided, he said, if the manufacturer had incorporated a "proportioning” valve into the brake system. The valve would have automatically adjusted the pressure transmitted to the rear wheels according to the weight on the rear axle, preventing the brakes from locking and causing a skid.
During the deposition, defense counsel questioned Dr. Limpert about some of his conclusions, which were inconsistent with portions of the factual evidence that had previously been obtained. Dr. Limpert’s responses essentially discounted the fact witnesses’ testimony. On one point, he said that Hornfischer "does not know what happened” when he applied the brakes. On another, he agreed that his theory of the accident would predict that both rear wheels, having locked up together, would be freed at the same time;. Gail Bukovich, however, had seen them break free individually. Dr. Limpert asserted that he did not think Gail Bukovich could see both rear wheels at the same time. In addition, Dr. Limpert said that a vehicle speeding around a curve would leave marks "in the beginning of the curve,” although he did not specifically relate this phenomenon to plaintiff’s accident.
After Limpert’s deposition, defendants moved to strike his testimony, citing its inconsistencies with the factual record. Specifically, defendants pointed to the absence of skid marks on the curved portion of the roadway, the presence of skid marks before or a short distance into the curve, Hornfischer’s testimony that he had applied the brakes well before reaching the curve, and Gail Bukovich’s testimony that the rear wheels "unlocked” separately rather than together. The court granted defendants’ motion in an order dated August 8, 1989.
Defendants promptly brought a motion for summary disposition pursuant to MCR 2.116(0(10), arguing that, without Dr. Limpert’s testimony, plaintiff had no expert testimony to offer at trial and, hence, no case. The court granted the motion on March 5,1990. Plaintiff appeals.
The value of éxpert testimony is recognized under the Michigan Rules of Evidence:
If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. [MRE 702.]
In addition, MRE 703 provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. The court may require that underlying facts or data essential to an opinion or inference be in evidence. [Emphasis supplied.]
See also, e.g., Kohn v Ford Motor Co, 151 Mich App 300, 314; 390 NW2d 709 (1986).
The requirements for the admission of expert testimony are:
(1) the witness must be an expert; (2) there must be facts which require an expert’s interpretation or analysis; and (3) the witness’ knowledge must be peculiar to experts rather than to lay persons. [Jack Loeks Theatres, Inc v Kentwood, 189 Mich App 603, 611; 474 NW2d 140 (1991), citing O’Dowd v Linehan, 385 Mich 491, 509-510; 189 NW2d 333 (1971).]
The decision whether to admit expert testimony is within the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of discretion. King v Taylor Chrysler-Plymouth, Inc, 184 Mich App 204, 214; 457 NW2d 42 (1990). See also Mach v General Motors Corp, 112 Mich App 158, 164-165; 315 NW2d 561 (1982) (alleged defect in bulldozer); Miller v Ochampaugh, 191 Mich App 48, 63; 477 NW2d 105 (1991) (dram-shop liability). The trial court abuses its discretion in an evidentiary matter where its ruling has no basis in law or fact. Mulholland v DEC Int’l Corp, 432 Mich 395, 411; 443 NW2d 340 (1989).
An expert witness need not rule out all alternative causes of the effect in question, but he must have an evidentiary basis for his own conclusions. Id. at 414. This Court has held that an expert’s opinion was objectionable because it was based on assumptions that did not accord with the established facts. Thornhill v Detroit, 142 Mich App 656, 658; 369 NW2d 871 (1985). In Thornhill, a wrongful death action, it was critical to the plaintiffs expert’s theory of the case for the decedent to have been "frothing at the mouth” for only a limited time before the defendants (an ems crew) came on the scene. There was testimony, however, that the "frothing” had begun earlier. The trial court excluded the testimony of the plaintiffs expert, id. at 661, and this Court affirmed. "[T]he opinion was irrelevant to the issues at trial as framed by the facts.” Id.
We are convinced that the Thornhill rationale is applicable to the case at hand. Dr. Limpert’s explanation of the accident required the truck’s brakes to have locked at a point well into the curve. It would also predict the presence of skid marks at the point where the lock-up began. Yet the only skid marks that were observed were either before the curve or a short distance into it. Those skid marks, indeed, were consistent with an alternative explanation, that the driver (Hornfischer) had entered the curve too fast and begun to skid then, when he applied the brakes.
Hornfischer’s testimony is also inconsistent with Dr. Limpert’s analysis. While plaintiff is correct that Hornfischer was uncertain about his distance from the curve when he began to brake, there is no doubt that he testified that he braked when he saw the "Curve Ahead” sign, which was obviously before he reached the curve. In addition, Hornfischer explicitly described the truck’s response to his applying the brake as "shaking and shuttering” or "going crazy,” neither of which terms describes the sensations associated with a brake lock-up.
Dr. Limpert’s theory would also require both the rear wheels to have locked up together, because the braking system sent too much hydraulic pressure to them. both. That theory would also predict that the two rear wheels would "unlock” together. Yet the only witness who was actually able to observe both rear wheels during the towing operation, was Gail Bukovich (Bloomfield testified that he could see only the left rear wheel) and he was unequivocal that the wheels were freed up separately.
When questioned about these inconsistencies, Dr. Limpert was not able to reconcile them other than by disparaging the witnesses’ powers of observation. Thornhill, then, would direct that Limpert’s testimony be excluded. The trial court did not abuse its discretion when it struck the Limpert deposition, i.e., there was a basis both in law and fact for its decision. Without Limpert’s testimony, plaintiff had no proof that the truck was defective when it left defendants’ control and, thus, no basis for his claim. Summary disposition was proper under MCR 2.116(0(10).
Affirmed. Costs to defendant.
Rosemary Green’s claims are derivative of her husband’s.
Jerome-Duncan was included because it had performed repair work on the truck’s brakes several weeks before the accident. Jerome-Duncan was later dismissed as a defendant by stipulation of the parties and the case proceeded solely as a products liability action against Ford Motor Company. | [
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Per Curiam.
The people appeal by leave granted from defendant’s, sentence of lifetime probation following his conviction of delivery of 50 or more but less than 225 grams of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). We vacate and remand for resentencing.
Defendant’s sentence was based on MCL 333.7401(4); MSA 14.15(7401)(4), which authorizes departure from the minimum term of imprisonment set forth at subsection 2(a)(iii) upon a finding by the trial court of substantial and compelling reasons to do so. The people argue that the trial court erred in ruling that MCL 333.7401(4); MSA 14.15(7401)(4) permitted imposition of lifetime probation for delivery of 50 or more but less than 225 grams of cocaine. We agree.
MCL 333.7401(3); MSA 14.15(7401)(3) provides:
A term of imprisonment imposed pursuant to subsection (2)(a) . . . shall be imposed to run consecutively with any term of imprisonment imposed for the commission of another felony. An individual subject to a mandatory term of imprisonment under subsection (2)(a) ... shall not be eligible for probation, suspension of that sentence, or parole during that mandatory term, except and only to the extent that those provisions permit probation for life, and shall not receive a reduction in that mandatory term of imprisonment by disciplinary credits or any other type of sentence credit reduction. [Emphasis added.]
The only oifenses within the Public Health Code for which lifetime probation is allowed are possession with intent to deliver or delivery of less than fifty grams of certain controlled substances, § 7401(2)(a)(iv), or possession of twenty-five to fifty grams of certain controlled substances, MCL 333.7403(2)(a)(iv); MSA 14.15(7403)(2)(a)(iv). Defendant was thus not convicted of an offense for which lifetime probation is specifically authorized.
Further, it is clear by reference to the probation statute that probation is not available when a defendant has been convicted under § 7401(2)(a) (iii), as defendant was. MCL 771.1(1) and (3); MSA 28.1131(1) and (3) provide, in relevant part:
(1) In all prosecutions for felonies or misdemeanors, except murder, treason, criminal sexual conduct in the first or third degree, robbery while armed, and major controlled substance offenses not described in subsection (3), if the defendant has been found guilty upon verdict or plea, and if it appears to the satisfaction of the court that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant shall suffer the penalty imposed by law, the court may place the defendant on probation under the charge and supervision of a probation officer.
(3) The sentencing judge may place a defendant on life probation pursuant to subsection (1) if the defendant is convicted for a violation of section 7401(2)(a)(iv) or 7403(2)(a)(iv) of the public health code ... or conspiracy to commit either of those 2 offenses. [Emphasis added.]
Because defendant did not commit either of the two offenses for which lifetime probation is authorized in the probation statute, and no such punishment is authorized by the Public Health Code, his probationary sentence is plainly illegal. See People v Larkins, 142 Mich App 679; 369 NW2d 882 (1985). We therefore vacate defendant’s sentence of lifetime probation and remand for resentencing.
Although a probationary term is not authorized, defendant may still be sentenced to an indeterminate sentence departing below the statutory minimum, provided the court finds substantial and compelling reasons for such a departure. MCL 333.7401(4); MSA 14.15(7401X4). Permissible factors to consider when deciding whether departure is appropriate were recently set forth in People v Windall Hill, 192 Mich App 102; 480 NW2d 913 (1991). These factors should be considered on re-sentencing if an indeterminate sentence departing from the statutory minimum is imposed.
Finally, we conclude that the people have not presented sufficient reasons to justify resentencing before another judge.
Vacated and remanded for resentencing. We retain no further jurisdiction. | [
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Per Curiam.
Plaintiffs appeal from an April 9, 1990, order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8) in this action seeking a writ of mandamus and damages for defendants’ failure to schedule a referendum on the question of township incorporation. We reverse.
In 1989, the board of supervisors of China Township, St. Clair County, adopted a resolution of intent to incorporate as a charter township. Pursuant to MCL 42.3a(2)(b); MSA 5.46(3a)(2)(b), plaintiffs circulated petitions of disagreement to place the question of incorporation before the township voters on a referendum ballot. Although plaintiffs timely submitted petitions containing a sufficient number of signatures to require that the question of incorporation be submitted at the next general or special election, the question was not placed on the November 1989 general election. The township board found four of the seven petitions submitted invalid because they allegedly failed to conform to statutory requirements. Specifically, the petitions were deemed invalid because both Alton Van Horn and his wife, Donna Van Horn, signed four of the petitions as "co-circulators.”
Plaintiffs filed this action seeking a writ of mandamus and damages for the township’s actions. The circuit court granted defendants’ motion for summary disposition, finding the four contested petitions failed to comply with MCL 168.544c; MSA 6.1544(3), which governs the form and contents of nominating petitions circulated under the Election Law.
On appeal, plaintiffs claim the trial court erred in ruling the petitions invalid as petitions circulated under the authority of the general election law, MCL 168.544c(9); MSA 6.1544(3X9), where the petitions were circulated pursuant to the authoriz ing statute for referendums on the incorporation of townships, MCL 42.3a; MSA 5.46(3a), rather than pursuant to the general election law. We agree with plaintiffs and find the petitions of disagreement valid under the authorizing statute for referendums on township incorporation, MCL 42.1 et seq.; MSA 5.46(1) et seq.
MCL 42.3a(4); MSA 5.46(3a)(4) provides:
The petition under subsection (2)(b) shall be signed by not less than 10% of the number of electors of the township voting for township supervisor at the last election in which a supervisor was elected. The township clerk shall check the signatures on the petitions with those of the electors signing the petitions as they appear on the registration cards of the township. If petitions bearing the required number of signatures of electors have been filed, the clerk shall do and perform all acts required for the submission of the question of incorporation at the next general or special election. The wording of the ballot shall be in accordance with section 2.
There is no question that plaintiffs have met the requirements set forth for the circulation of the petitions authorized under this section. Because the petitions were circulated pursuant to this statute and not under the general election law, compliance with the authorizing statute is sufficient. Renne v Oxford Twp, 5 Mich App 415; 146 NW2d 819 (1966), aff'd on other grounds 380 Mich 39; 155 NW2d 852 (1968).
Reversed and remanded for further proceedings. | [
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Per Curiam.
In this premises liability action, plaintiffs appeal as of right an order granting summary disposition to defendant pursuant to MCR 2.116(0(10). We affirm.
Plaintiffs’ decedent, Gary M. Berry (hereafter plaintiff), was killed in an accident on defendant’s premises on October 5, 1987. Defendant operates an automobile scrap yard and salvage operation in Wayne, Michigan. Plaintiff, a part-time mechanic, frequently purchased spare parts from defendant. On other occasions, he was permitted to remove parts from the yard without paying for them. He was quite familiar with the premises and was allowed to move around unescorted.
On the date of the accident, plaintiff went to defendant’s scrap yard to obtain a battery cable for a Chrysler Cordoba, which he identified to defendant’s employees only as "a Chrysler.” He told the owner he had no money, but was allowed to go into the yard anyway.
Battery cables can usually be removed from a Chrysler vehicle from above, once the hood is open, but the Cordoba is an exception. The cables must be removed from underneath the car. Defendant owned both a "hi-lo truck” and another piece of equipment known as a "bobcat,” either of which could be used to raise a car body off the ground. Plaintiff, however, did not ask for defendant’s assistance in raising the Cordoba. Rather, without defendant’s knowledge, he obtained two "bumper jacks” from other cars in the yard and used them to elevate the front of the car. None of defendant’s employees observed plaintiff’s actions or helped him to raise the vehicle. Plaintiff was killed when one of the jacks slipped from under the car body, which fell on him and crushed his chest.
Plaintiffs brought the present action, alleging various counts of negligence against defendant. Following discovery, defendant moved for summary disposition pursuant to MCR 2.116(0(10) (no genuine issue of material fact). The trial court granted the motion. "[Defendant’s employees] had no knowledge of what happened [after plaintiff went out into the yard]. There is no evidence of any knowledge. . . . [T]here was no notice that there was a dangerous condition on this lot.... ”
A motion under MCR 2.116(0(10) tests the factual support for a claim. It is properly granted only if it is impossible for the nonmovant’s claim to be supported by evidence at trial because of some deficiency that cannot be overcome. Perez v KFC Nat'l Management Co, Inc, 183 Mich App 265, 267; 454 NW2d 145 (1990). The party opposing the motion, however, has the burden of showing a genuine issue for trial. Mirza v Maccabees Life & Annuity Co, 187 Mich App 76, 80; 466 NW2d 340 (1991). MCR 2.116(G)(4). The reviewing court must determine whether the kind of record that might be developed would leave open an issue of fact upon which reasonable minds might differ. Wert v Afton, 190 Mich App 3, 4; 475 NW2d 403 (1991). If all reasonable persons would agree that "the injury caused [to] plaintiff was too insignificantly connected to or too remotely affected by the defendant’s negligence,” summary judgment is proper. Davis v Thornton, 384 Mich 138, 142-143; 180 NW2d 11 (1970). In addition, there is no error if summary disposition of a factual issue is granted if that issue is not material to decision of the case. See Spencer v Ford Motor Co, 141 Mich App 356, 363; 367 NW2d 393 (1985).
On appeal, plaintiffs assert that three genuine issues of material fact preclude summary disposition. We disagree.
i
Plaintiffs first claim that the court should have allowed the jury to decide if plaintiff was a business invitee or a mere licensee. It is basic to the concept of "business invitee” that the presence of the plaintiff on the defendant’s premises be intended to benefit the landowner as well as the visitor. There must be some benefit conferred on the landowner. See, e.g., Gage v Ford Motor Co, 102 Mich App 310, 318; 301 NW2d 517 (1980); Leveque v Leveque, 41 Mich App 127, 130-132; 199 NW2d 675 (1972). Because plaintiff’s presence was intended solely for his own benefit, not defendant’s, he is properly considered a licensee. In any case, plaintiff’s status at the time of the accident is not necessary for decision of this case. A landowner’s duty to a business invitee is to disclose known defects that the visitor is unlikely to discover on his own. Miller v Miller, 373 Mich 519, 524; 129 NW2d 885 (1964). "The mere existence of a defect or danger is not enough to establish liability.” McCord v United States Gypsum Co, 5 Mich App 126, 129; 145 NW2d 841 (1966), citing Kroll v Katz, 374 Mich 364, 373; 132 NW2d 27 (1965), and Prosser, Torts (2d ed), p 459.
The present case is complicated because plaintiffs cannot identify the alleged "defect” on defendant’s property. Initially, plaintiffs complained of the presence of unsafe bumper jacks. On appeal, however, this argument has been abandoned. Plaintiffs now allege that the "inherent muddiness of the unlevel ground” made the use of jacks dangerous. This Court need not consider an argument raised for the first time on appeal. Bloemsma v Auto Club Ins Ass’n (After Remand), 190 Mich App 686, 692; 476 NW2d 487 (1991).
It is plain that plaintiff’s use of the jacks, not the jacks themselves, created the "hazard” (to the extent that one existed) on defendant’s property. Plaintiff, a mechanic and regular visitor to defendant’s salvage yard, knew the risks of using bumper jacks to elevate an automobile body. Rea sonable minds could not find that the jacks presented a "hidden” danger of which plaintiff should have been warned, even if he were found to be a business invitee.
n
Plaintiffs next contend that a factual question exists regarding whether defendant owed a duty to plaintiff to foresee the danger of plaintiff’s using the bumper jacks to raise the Cordoba. The existence of a legal duty is a question of law for the court to decide. Moning v Alfono, 400 Mich 425, 436-437; 254 NW2d 759 (1977). Closely related to the question of duty is that of proximate cause. Balcer v Forbes, 188 Mich App 509, 511; 470 NW2d 453 (1991). "Both duty and cause depend on foreseeability—whether it is foreseeable that the actor’s conduct may create a risk of harm to the victim, and whether the result of that conduct and intervening causes were foreseeable.” Johnson v Bobbie’s Party Store, 189 Mich App 652, 660; 473 NW2d 796 (1991).
Ordinarily, the determination of proximate cause is left to the trier of fact, but "if reasonable minds could not differ regarding the proximate cause of the plaintiff’s injury, the court should rule as a matter of law.” Vsetula v Whitmyer, 187 Mich App 675, 682; 468 NW2d 53 (1991). See also Richards v Pierce, 162 Mich App 308, 317; 412 NW2d 725 (1987).
No Michigan case is squarely on point. Defendant relies on Murday v Bales Trucking, Inc, 165 Mich App 747; 419 NW2d 451 (1988), which is instructive although not dispositive. In Bales, a child was injured when a pile of sand collapsed on her as she was digging a tunnel into it. She sued, alleging that the sand pile was an attractive nui sanee. The plaintiff argued that because the defendants knew that children played on their property, they should have known that the children were digging in the sand pile and acted accordingly. Id. at 748-749, 753.
This Court affirmed the grant of summary disposition to the defendant:
[B]efore a defendant can be said to have tolerated or acquiesced to conduct of a third party unrelated to him, he must know or have reason to know of such a condition. . . .
[P]laintiff reasons that because defendants knew children played there [on defendant’s property] it is reasonable to conclude that defendants should have also recognized that the land, which was used for excavating purposes, presented an unreasonable risk of harm. We are not persuaded .... [Id. at 753],
Two cases from other jurisdictions also illustrate how proximate cause may be decided as a matter of law.
In Holbrook v Peric, 129 Ill App 3d 996; 85 Ill Dec 163; 473 NE2d 531 (1984), the plaintiff was injured when his car struck a truck. The truck was last in a procession of three trucks that were sweeping the shoulder of an expressway near Chicago; the truck was stopped on the shoulder at the time. The plaintiff alleged that he had insufficient warning of the truck’s presence, despite its several lights and warning signs. Id. at 997-998. His theory was that a sign on the truck’s tailgate caused him to become "disoriented” and strike the truck. The court upheld the trial court’s grant of summary disposition, holding that reasonable minds could only conclude that the defendant’s alleged acts were not the proximate cause of the plaintiffs injury. The court also rejected the contention that the doctrine of comparative negligence "diminishes the need to protect remotely negligent defendants from liability,” noting that if the case had been tried, "the court would have been required to direct a verdict in favor of defendants based on proximate cause.” Id. at 1001.
Sharp v Fairbanks North Star Borough, 569 P2d 178 (Alas, 1977), also presented a foreseeability question. The plaintiff was a child who was on his way home from an athletic event that the defendant school district had allowed him to participate in, but had not sponsored. Id. at 180. The plaintiff went out for lunch with a classmate and his mother; they stopped at a filling station, where the mother told the boys to pump the gas. Fuel spilled on the plaintiff’s clothing, which his friend then intentionally ignited, injuring the plaintiff. After settling with the mother, the plaintiff sued the school district, alleging that its lack of supervision over the tournament had led to his injuries. The court held, as a matter of law, that the actions of the classmate’s mother "constituted an unforeseeable superseding cause” and that the school district was not liable as a matter of law. Id. at 184.
In the present case, plaintiff’s use of the bumper jacks to raise the Cordoba body was not reasonably foreseeable by defendant. Deposition testimony revealed that bumper jacks were not used by defendant’s employees or other customers because a hydraulic jack was available. The owner provided an affidavit that he had never known plaintiff to use bumper jacks to elevate a car body and that he had no notice that plaintiff would need to raise the unidentified Chrysler to obtain the desired part. Defendant could not have reasonably predicted plaintiff’s unusual course of action. Defendant’s alleged negligence in permitting the jacks to remain in the scrapped vehicles cannot have been the proximate cause of plaintiffs death.
Further, Michigan recognizes a duty on the part of an adult plaintiff to exercise reasonable care for his own safety and protection; see SJI2d 10.04 ("It was the duty of the plaintiff, in connection with this occurrence, to use ordinary care for his own safety .... ”). See also Jaworski v Great Scott Supermarkets, Inc, 403 Mich 689, 700; 272 NW2d 518 (1978); Wigginton v Lansing, 129 Mich App 53, 61; 341 NW2d 228 (1983). As the Court said in Hale v Cooper, 271 Mich 348, 354; 261 NW 54 (1935):
[D]efendants were entitled to assume that others using the highway in question would under the circumstances at the time use reasonable care themselves and take proper steps to avoid the risk of injury.
See also Sheahan v Northeast I R C R Corp, 212 Ill App 3d 732; 156 Ill Dec 816; 571 NE2d 796 (1991) (defendant railroad not required to anticipate that the plaintiff’s decedent would disregard warning at gate crossing).
iii
Finally, plaintiffs claim that a factual issue arises regarding whether defendant’s alleged violation of a City of Wayne ordinance, 832.15(B), constitutes "evidence of negligence.” This argument is without merit. The ordinance regulates "the stacking or piling of material within [a] junk yard,” requiring that it "not endanger . . . customers . . . . ” Plaintiffs death was not caused in any way by the "stacking or piling” of material. A jury could not possibly find that defendant’s alleged violation of the ordinance was even evidence of negligence. Further, violation of an ordinance has no bearing on the question of duty. Ward v Frank’s Nursery & Crafts, Inc, 186 Mich App 120, 135; 463 NW2d 442 (1990).
No material factual issues remain for consideration. Summary disposition was properly granted.
Affirmed. Costs to defendant. | [
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] |
Opinion reported at 407 Mich 394 adhered to on reconsideration. The stay of proceedings previously entered is dissolved.
Case below, Court of Appeals No. 78-277, per curiam opinion of November 13,1978. | [
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On order of the Court, this is to advise that the Court is considering a proposal to amend GCR 1963, 857. Before determining whether it should be adopted, changed before adoption, or rejected, this notice is given to afford any interested person the opportunity to comment on the form or the merits of the proposal, the text of which is as follows:
(The present language is to be repealed and replaced by the following language unless otherwise indicated below:)
Rule 857. Preparing, Piling, and Serving Briefs and Appendices in Calendar Cases.
.1 Preparing.
(1) Briefs and appendices may be produced by ordinary typographic methods, including typewriting, or by any duplicating or copying process which produces a clear black image on white paper. All briefs and appendices shall be produced in clear type on opaque, unglazed paper 8-1/2 inches by 11 inches in size. The type used shall be in a size no smaller than standard pica typewriting, with double spacing between lines of text. In case of doubt, the clerk may approve in advance a sample of the type or paper to be used. Copies of the reporter’s transcript and other court documents may be inserted in the appendix provided that they are produced on pages 8-1/2 inches by 11 inches in size and are clearly legible. Use of the copy-reduction process on larger court documents in order to comply with the page-size requirement is permitted.
(2X3) (Unchanged.)
(4) Separately bound appendices shall be similarly endorsed, but shall be designated as appendices instead of briefs. All briefs and appendices shall be securely bound, and briefs and appendices of more than 100 pages shall be printed on both sides of the pages.
(5) The clerk shall refuse to accept any brief or appendix not prepared in substantial conformity with the rules. The submission to the clerk of a nonconforming brief or appendix does not satisfy the time limitations for filing briefs and appendices.
(6) References to "printed” or similar references in these rules refer to a method of production described in this rule.
.2 — .5 (Unchanged.)
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption in its present form. Timely comments will be substantively considered and your assistance is appreciated by the Court.
A copy of this order will be given to the secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in GCR 1963, 933. Comments on this proposal may be sent to the Supreme Court clerk within 60 days after it is published in the State Bar Journal. | [
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The complaint for superintending control in the nature of mandamus is considered. Pursuant to GCR 1963, 865.1(7), it is ordered that the elected judges of the Common Pleas Court of Detroit select a judge from their number by process of blind draw to conduct the preliminary examination in the case of People v Townsend (Recorder’s Court Docket No. 80-06994). The State Court Administrator shall be advised of the name of the judge so selected and he shall forthwith assign that judge for the purpose described. This action is taken solely to preclude even the possibility of public concern over the impartiality of the forum and should not be construed as a finding of partiality or bias on the part of any of the judges of the Recorder’s Court for the City of Detroit. See Wayne County Board of Comm’rs v Wayne Circuit Judges, 403 Mich 860 (1978). The motion for stay becomes moot and is denied. We retain no jurisdiction.
Ivan E. Barris and David F. DuMouchel, Special Assistant Prosecuting Attorneys, for plaintiff Special Wayne Prosecutor. Cornelius Pitts for defendant Leonard Townsend. | [
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Per Curiam.
Plaintiff’s husband died on December 29,1973, as a result of acute alcoholic intoxication. An autopsy disclosed that the deceased had a blood alcohol level of .37 percent. Dr. Spitz, who performed the autopsy, testified, by deposition, that the abnormally high blood alcohol level resulted in fluid accumulation in decedent’s lungs which caused a strain on his heart and, ultimately, his death. There was no evidence of external injury, other than a superficial abrasion which was unrelated to the cause of death.
Defendant insurance company paid plaintiff $10,000, the face amount of an accidental death and dismemberment policy issued to decedent. Plaintiff filed suit when defendant refused to pay an additional $10,000 under the double indemnity provision in the policy which provides coverage for "accidental bodily injuries which are evidenced by a visible contusion or wound on the exterior of the body (except in case of drowning or internal injuries revealed by an autopsy) * * *”.
The district court found no cause of action in favor of defendant, holding that the cause of death did not fall within the policy’s definition of accidental bodily injury. The circuit court reversed, finding that the policy was ambiguous and construing it to include death from alcoholic intoxication.
The Court of Appeals agreed with the district court, holding that plaintiff had failed to meet the threshold requirement of establishing a "visible contusion or wound on the exterior of the body” which caused the death. This Court reversed the Court of Appeals by order, stating that the medical testimony of Dr. Spitz "presented a jury-submissible question as to whether the deceased suffered 'internal injuries revealed by an autopsy’ ”. We remanded to the Court of Appeals to decide whether injury or death resulting from voluntary intoxication can constitute "accidental injury or death”. 403 Mich 832 (1978). On remand, the Court of Appeals, Cavanagh, P.J., dissenting, answered this question in the negative. Collins v Nationwide Life Ins Co, 90 Mich App 399; 282 NW2d 8 (1979). We disagree with the Court of Appeals resolution of this issue and, accordingly, remand to the district court for further proceedings consistent with this opinion.
At the outset, it is important to note that a distinction has arisen in many states between the term "accidental means” and the terms "accident”, "accidental death”, and, as used in the policy at issue, "accidental bodily injuries”. This distinction is succinctly explained in 10 Couch, Insurance (2d ed), § 41:28, pp 49-50:
"[Accidental death is an unintended and undesigned result arising from acts voluntarily done, whereas death by accidental means is a result arising from acts unintentionally done or events undesignedly occurring. The term 'accidental means’ refers to the occurrence or happening which produces the result, rather than the result; it is concerned with the cause of the harm rather than the character of the harm.” (Footnotes omitted.)
All of the cases relied upon by the Court of Appeals majority in the instant case involve policies containing the more restrictive language requiring death from "accidental means”. Reliance on these cases was error, as the language in the policy before us requires only that the insured sustain "accidental bodily injuries”. Thus, the inquiry is not whether the "agency effecting the death or injury can be termed accidental”, 90 Mich App 401. Rather, the inquiry is whether the injury itself was accidental.
We also disagree with the Court of Appeals definition of the term "accidental” which would require that the consequences of decedent’s act must not be reasonably foreseeable in order to be termed "accidental”. The proper test for determining whether an accidental injury or death has occurred for purposes of an insurance policy such as the one before us was stated in Minton v Stuyvesant Life Ins Co, 373 F Supp 33, 35 (D Nev, 1974), a case also involving death caused by acute alcoholic ingestion.
"The courts, however, which have been concerned only with interpreting and applying the term "accident” have, with substantial uniformity, reached the conclusion that if death results from the voluntary act of the victim, but the result is unexpected, unanticipated and unforeseen, it is an accidental death.”
The Court of Appeals requirement that the consequences of decedent’s act must not be reasonably foreseeable improperly utilizes the definition of foreseeability set forth in tort cases. However, neither the level of foreseeability requisite for tort liability nor for criminal recklessness is sufficient to render a mishap a "nonaccident” when conduct is measured against the terms of an accidental death insurance policy. Marsh v Metropolitan Life Ins Co, Inc, 70 Ill App 3d 790; 388 NE2d 1121 (1979).
The question is not whether the death was reasonably foreseeable, but whether the death was in fact foreseen by the insured. In order to defeat recovery under a double indemnity provision, as involved herein, the insured must have intended or expected that his conduct would in all probability result in his death. Negligence alone is not sufficient to prevent the death from being an accident within the meaning of the policy.
We find that this construction of the policy language, absent specific definition by the insurer, most closely comports with what the insured expects when he contracts to insure against the unexpected. One who purchases an accidental death policy intends to provide benefits to his beneficiary in the event he should suffer death resulting from accident as opposed to death resulting from other means, such as suicide, disease or natural death.
"Insurance policies upon which the public relies for security in case of accident should be free from fine distinctions which few can understand until pointed out by lawyers and judges * * Knight v Metropolitan Life Ins Co, 103 Ariz 100, 104; 437 P2d 416, 420 (1968).
In conclusion, we hold that where an insured dies as the result of an intentional act, such as voluntary intoxication, but did not intend or expect death to result, such death is accidental for the purposes of an accidental death policy as involved herein. In the instant case, although the decedent’s introduction of alcohol into his body was intentional, the factfinder must determine whether he intended or expected it to have fatal consequences. In addition, the jury must determine whether the deceased suffered "internal injuries revealed by an autopsy” in accordance with our previous order in this case.
In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the judgment of the Court of Appeals and remand to the district court for further proceedings consistent with this opinion. Costs to appellant.
Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
In pertinent part, the insurance policy provides:
"Upon receipt of due proof that an employee, while insured for accidental death and dismemberment benefits under the policy, has sustained accidental bodily injuries which are evidenced by visible contusions or wounds on the exterior of the body (except in the case of drowning or internal injuries revealed by an autopsy) and that such injuries have resulted within ninety days from the date of their occurrence and without other contributing cause, in any of the losses set forth below, the company will pay to such employee, if living, otherwise to the beneficiary, the amount of insurance specified for such loss in the following table of losses, * *
There are six specific exclusions, none of which is at issue here.
See, e.g., Minton v Stuyvesant Life Ins Co, 373 F Supp 33 (D Nev, 1974); Catania v State Farm Life Ins Co, 95 Nev Adv 147; 598 P2d 631 (1979); Pilcher v New York Life Ins Co, 25 Cal App 3d 717; 102 Cal Rptr 82 (1972); Beckham v Travelers Ins Co, 424 Pa 107; 225 A2d 532 (1967); 166 ALR 469; 52 ALR2d 1083; 44 Am Jur 2d, Insurance, § 1221, p 67; 10 Couch, Insurance, § 41.28, p 47.
A growing number of states have rejected this distinction which Mr. Justice Cardozo in his now-famous dissent in Landress v Phoenix Mutual Life Ins Co, 291 US 491; 54 S Ct 461; 78 L Ed 934 (1934), prophesied would "plunge this branch of the law into a Serbonian Bog”. See, e.g., Catania v State Farm Life Ins Co, supra; and Beckham v Travelers Ins Co, supra, and the cases cited therein. The Supreme Court of Colorado, commenting on this quotation, stated, "Whatever kind of a bog that is we concur.” Equitable Life Assurance Society v Hemenover, 100 Colo 231, 235; 67 P2d 80 (1937). It is unnecessary for us to determine if Michigan recognizes this distinction because the language of the policy we are concerned with allows us to avoid |he "Serbonian Bog”.
See, also, Ashley v Agricultural Life Ins Co of America, 241 Mich 441; 217 NW 27 (1928), for a similar definition of "accidental” used in the context of construing an "accidental means” policy.
See, also, Gulf Life Ins Co v Nash, 97 So 2d 4 (Fla, 1957), where the Court said:
"It seems to me that such doctrine of foreseeability is a doctrine totally unsuited and unadaptable in construing accident policies. Moreover, the rationale of these cases seems to be founded not only in the doctrine of foreseeability but intrinsically in negligence on the part of the insured. Were we to make this principle a part of the law of this State, it would not only do violence to the reason for buying accident insurance but if it did not preclude recovery in a great majority of deaths arising from accidents, it would place an almost insurmountable burden on the insured to enforce liability.” | [
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Fitzgerald, J.
The existence and scope of the felony-murder doctrine have perplexed generations of law students, commentators and jurists in the United States and England, and have split our own Court of Appeals. In these cases, we must decide whether Michigan has a felony-murder rule which allows the element of malice required for murder to be satisfied by the intent to commit the underlying felony or whether malice must be otherwise found by the trier of fact. We must also determine what is the mens rea required to support a conviction under Michigan’s first-degree murder statute.*
Facts
In Thompson, defendant was convicted by a jury of first-degree felony murder as the result of a death which occurred during an armed robbery. The trial judge instructed the jury that it was not necessary for the prosecution to prove malice, as a finding of intent to rob was all that was necessary for the homicide to constitute first-degree murder. The Court of Appeals held that reversible error resulted from the trial court’s failure to instruct the jury on the element of malice in the felony-murder charge.
In Wright, defendant was convicted by a jury of two counts of first-degree felony murder for setting fire to a dwelling causing the death of two people. The trial court instructed the jury that proof that the killings occurred during the perpetration of arson was sufficient to establish first-degree murder. **The Court of Appeals reversed the convictions, holding that it was error to remove the element of malice from the jury’s consideration.
Defendant Aaron was convicted of first-degree felony murder as a result of a homicide committed during the perpetration of an armed robbery. The jury was instructed that they could convict defendant of first-degree murder if they found that defendant killed the victim during the commission or attempted commission of an armed robbery. The trial court refused defendant’s request to in struct on lesser included offenses. The Court of Appeals affirmed and we remanded the case to the trial court for entry of a judgment of conviction of the lesser included offense of second-degree murder and for resentencing. Defendant subsequently filed an application for reconsideration with this Court.
In Thompson and Wright we granted leave to appeal limited to the question: "Whether the Court of Appeals erred in reversing the murder conviction in this case because of the lack of an instruction on a requirement for finding malice in a felony-murder situation.”
In Aaron, we granted leave to appeal to consider whether defendant’s conviction of first-degree murder could be reduced to second-degree murder where the jury was instructed only on felony murder.
II. History of the Felony-Murder Doctrine
Felony murder has never been a static, well-defined rule at common law, but throughout its history has been characterized by judicial reinterpretation to limit the harshness of the application of the rule. Historians and commentators have concluded that the rule is of questionable origin and that the reasons for the rule no longer exist, making it an anachronistic remnant, "a historic survivor for which there is no logical or practical basis for existence in modern law”.
The first formal statement of the doctrine is often said to be Lord Dacres’ case, Moore 86; 72 Eng Rep 458 (KB, 1535). Lord Dacres and some companions agreed to enter a park without permission to hunt, an unlawful act, and to kill anyone who might resist them. While Lord Dacres was a quarter of a mile away, one member of his group killed a gamekeeper who confronted him in the park. Although Lord Dacres was not present when the killing occurred, he, along with the rest of his companions, was convicted of murder and was hanged. Contrary to the construction placed on this case by those who see it as a source of the felony-murder rule, the holding was not that Lord Dacres and his companions were guilty of murder because they had joined in an unlawful hunt in the course of which a person was killed, but rather that those not present physically at the killing were held liable as principals on the theory of constructive presence. Moreover, because they had agreed previously to kill anyone who might resist them, all the members of the group shared in the mens rea of the crime. Thus, because Lord Dacres’ case involved express malice, no doctrine finding malice from the intention to commit an unlawful act was necessary or in fact utilized.
Another early case which has been cited for the origin of the felony-murder doctrine was decided after Lord Dacres’ case. In Mansell & Herbert’s case, 2 Dyer 128b; 73 Eng Rep 279 (KB, 1558), Herbert and a group of more than 40 followers had gone to Sir Richard Mansfield’s house "with force to seize goods under pretence of lawful authority”. One of Herbert’s servants threw a stone at a person in the gateway which instead hit and killed an unarmed woman coming out of Mansfield’s house. The question was agreed to be whether the accused were guilty of murder or manslaughter. Since misadventure was not considered, it can be assumed that the throwing of the stone was not a careless act but that the servant who threw the stone intended at least to hit, if not kill, some person on Mansfield’s side. Although the court divided, the majority held that if one deliberately performed an act of violence to third parties, and a person not intended died, it was murder regardless of any mistake or misapplication of force. The minority would have held it to be manslaughter because the violent act was not directed against the woman who died. Thus, Her bert’s case involved a deliberate act of violence against a person, which resulted in an unintended person being the recipient of the violent act.
Some commentators suggest that an incorrect version of Dacres’ case, which was repeated by Crompton, formed the basis of Lord Coke’s statement of the felony-murder rule:
"If the act be unlawful it is murder. As if A. meaning to steale a deere in the park of B., shooteth at the deer, and by the glance of the arrow killeth a boy that is hidden in a bush: this is murder, for that the act was unlawfull, although A. had no intent to hurt the boy, nor knew not of him. But if B. the owner of the park had shot at his own deer, and without any ill intent had killed the boy by the glance of his arrow, this had been homicide by misadventure, and no felony.
"So if one shoot at any wild fowle upon a tree, and the arrow killeth any reasonable creature afar off, without any evill intent in him, this is per infortunium [misadventure]: for it was not unlawful to shoot at the wilde fowle: but if he had shot at a cock or hen, or any tame fowle of another mans, and the arrow by mischance had killed a man, this had been murder, for the act was unlawfull.”
The above excerpt from Coke is, along with Lord Dacres’ and Herbert’s cases, most often cited as the origin of the felony-murder doctrine. Unfortunately, Coke’s statement has been criticized as completely lacking in authority. "A telling historical comment on the essential non-logic of the rule is made by those who see its genesis as a blunder by Coke in the translation and interpretation of a passage from Bracton.” The passage from Bracton is as follows:
"But here it is to be distinguished whether a person is employed upon a lawful or unlawful work, as if a person has projected a stone towards a place across which men are accustomed to pass, or whilst a person pursues a horse or an ox, and some one has been struck by the horse or the ox, and such like, this is imputed to his account. But if he was employed in a lawful work, as if a master is flogging his scholar for the sake of discipline, or if when a person was casting down hay from a cart, or cutting into a tree and such like, if he had taken as diligent care as he could, by looking out and by calling out, * * * or the master not exceeding moderation in flogging his scholar, blame is not imputable to him.” (Emphasis added.)
This authority, however, does not support Coke’s unwarranted extension which Stephen termed "astonishing” and "monstrous”. As one writer points out:
"It can be seen at a glance that all Bracton intends to convey by this is that the killing in the cases he mentions would be unlawful; he in no way states that it would amount to murder ('murdrum’), which term indeed had quite a special and peculiar significance at the time at which he wrote, being properly confined to crimes of the nature of secret assassinations. Bracton, in fact, was too familiar with the Roman law * * * to have made such a mistake.”
Stephen notes also that the example Bracton uses would not come within the category of murder as Bracton defines it.
In addition to his citation to Bracton, Coke cites three cases to support his statement of the felony-murder rule. Yet Stephen, "upon careful search into Coke’s authority”, concludes that Coke’s statement of the rule is "entirely unwarranted by the authorities which he quotes”. Another early writer, commenting on the harsh doctrine propounded by Coke, states, " 'This is not distinguished by any statute but is the common law only of Sir Edward Coke’.”
At early common law, the felony-murder rule went unchallenged because at that time practi cally all felonies were punishable by death. It was, therefore, "of no particular moment whether the condemned was hanged for the initial felony or for the death accidentally resulting from the felony”. Thus, as Stephen and Perkins point out, no injustice was caused directly by application of the rule at that time.
Hale, in his Pleas of the Crown, refused to extend the doctrine to include all unlawful acts and instead gave examples of killings resulting from unlawful acts, some of which he said were murders and others manslaughter. Stephen understood Hale as requiring an act which was intended to inflict bodily injury of some kind or else the killing would be manslaughter.
Chief Justice Holt, writing in Rex v Keate, Comberbach 406; 90 Eng Rep 557 (KB, 1697), said that Coke’s statement was a very exaggerated proposition of law and that for unintentional homicides to constitute murder there must be an in tent to commit a felony or a design to do mischief toward a person.
Foster stated that an unintentional killing resulting from an unlawful act would amount to murder only if done "in the prosecution of a felonious intention”. Stephen, commenting on Foster’s statement of the rule, said, "[T]he one rule is less bad than the .other, principally because it is narrower.” The only authority cited by Foster is the dictum of Holt, C.J., in Rex v Plummer, Kelyng 109; 84 Eng Rep 1103 (1701), which cited no other authority than Coke for the requirement of a felonious design. Foster’s position was reiterated by Hawkins, Blackstone and East.
Case law of Nineteenth-Century England reflects the efforts of the English courts to limit the application of the felony-murder doctrine. See, e.g., Regina v Greenwood, 7 Cox, Crim Cas 404 (1857); Regina v Horsey, 3 F & F 287; 176 Eng Rep 129 (1862), culminating in Regina v Serné, 16 Cox, Crim Cas 311 (1887). In the latter case, involving a death resulting from arson, Judge Stephen instructed the jury as follows:
"[I]nstead of saying that any act done with intent to commit a felony and which causes death amounts to murder, it should be reasonable to say that any act known to be dangerous to life and likely in itself to cause death, done for the purpose of committing a felony which causes death, should be murder.”
In this century, the felony-murder doctrine was comparatively rarely invoked in England and in 1957 England abolished the felony-murder rule. Section 1 of England’s Homicide Act, 1957, 5 & 6 Eliz 2, c 11, § 1, provides that a killing occurring in a felony-murder situation will not amount to murder unless done with the same malice aforethought as is required for all other murder.
Thus, an examination of the felony-murder rule indicates that the doctrine is of doubtful origin. Derived from the misinterpretation of case law, it went unchallenged because of circumstances which no longer exist. The doctrine was continuously modified and restricted in England, the country of its birth, until its ultimate rejection by Parliament in 1957._
III. Limitation of the Felony-Murder Doctrine in the United States
While only a few states have followed the lead of Great Britain in abolishing felony murder, various legislative and judicial limitations on the doctrine have effectively narrowed the scope of the rule in the United States. Perkins states that the rule is "somewhat in disfavor at the present time” and that "courts apply it where the law requires, but they do so grudgingly and tend to restrict its application where circumstances permit”.
The draftsmen of the Model Penal Code have summarized the limitations imposed by American courts as follows:
(1) "The felonious act must be dangerous to life.”
(2) and (3) "The homicide must be a natural and probable consequence of the felonious act.” "Death must be 'proximately’ caused.” Courts have also required that the killing be the result of an act done in the furtherance of the felonious purpose and not merely coincidental to the perpetration of a felony. These cases often make distinctions based on the identity of the victim (i.e., whether the decedent was the victim of the felony or whether he was someone else, e.g., a policeman or one of the felons) and the identity of the person causing the death.
(4) "The felony must be malum in se."
(5) "The act must be a common-law felony.”
(6) "The period during which the felony is in the process of commission must be narrowly construed.”
(7) "The underlying felony must be 'independent’ of the homicide.”
Some courts, recognizing the questionable wisdom of the rule, have refused to extend it beyond what is required. "[W]e do want to make clear how shaky are the basic premises on which [the felony-murder rule] rests. With so weak a foundation, it behooves us not to extend it further and indeed, to restrain it within the bounds it has always known.” Commonwealth ex rel Smith v Myers, 438 Pa 218, 227; 261 A2d 550, 555 (1970). "We have thus recognized that the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application. Indeed, the rule itself has been abandoned by the courts of England, where it had its inception. It has been subjected to severe and sweeping criticism.” People v Phillips, 64 Cal 2d 574, 582-583; 51 Cal Rptr 225; 414 P2d 353, 360 (1966).
Other courts have required a finding of a separate mens rea connected with the killing in addition to the intent associated with the felony. In State v Millette, 112 NH 458, 462; 299 A2d 150, 153 (1972), the Court stated:
"Neither the legislature nor our court ever adopted a presumption of malice from the commission of an unlawful act whether felony or misdemeanor. While language in our cases defining murder may be construed to presume malice from a homicide occurring during the commission of the named inherently dangerous felonies [citations omitted] malice remains an indispensable element in the crime of murder. 'Malice is not an inference of law from the mere act of killing; but like any other fact in issue, it must be found by the jury upon competent evidence.’ ”
This Court has held, at least with killings occurring during commission of non-enumerated felonies, that malice may be inferred but the nature of the felonious act must be considered. People v Jeffrey Carter, 387 Mich 397, 422; 197 NW2d 57 (1972). Similarly, New Mexico has declared that where a non-first-degree felony (this category would include many of Michigan’s enumerated felonies) is involved, the presumption that the defendant has the requisite mens rea to commit first-degree murder "is a legal fiction we no longer can support”. State v Harrison, 90 NM 439, 442; 564 P2d 1321 (1977).
The Iowa Supreme Court has recently ruled that the issue of malice aforethought necessary for murder must be submitted to the jury and that it may not be satisfied by proof of intent to commit the underlying felony. State v Galloway, 275 NW2d 736, 738 (Iowa, 1979).
Many state legislatures have also been active in restricting the scope of felony murder by imposing additional limitations.
Kentucky and Hawaii have specifically abolished the felony-murder doctrine. The commentary to Hawaii’s murder statute is instructive as to that state’s reasoning in abolishing the doctrine:
"Even in its limited formulation the felony-murder rule is still objectionable. It is not sound principle to convert an accidental, negligent, or reckless homicide into a murder simply because, without more, the killing was in furtherance of a criminal objective of some defined class. Engaging in certain penally-prohibited behavior may, of course, evidence a recklessness sufficient to establish manslaughter, or a practical certainty or intent, with respect to causing death, sufficient to establish murder, but such a finding is an independent determination which must rest on the facts of each case.
* * *
"In recognition of the trend toward, and the substantial body of criticism supporting, the abolition of the felony-murder rule, and because of the extremely questionable results which the rule has worked in other jurisdictions, the Code has eliminated from our law the felony-murder rule.”
Ohio has effectively abolished the felony-murder rule. It defines as involuntary manslaughter the death of another proximately resulting from the offender’s commission or attempt to commit a felony.
Seven states have downgraded the offense and consequently reduced the punishment. Alaska, Louisiana, New York, Pennsylvania and Utah have reduced it to second-degree murder. Minnesota classifies felony murder as third-degree murder (with the exception of a killing in the course of criminal sexual conduct in the first or second degree committed with force or violence, which is punished as first-degree murder) which involves a sentence of not more than 25 years. Wisconsin makes felony murder a class B felony which is punishable by imprisonment not to exceed 20 years.
Three states require a demonstration of mens rea beyond the intent to cause the felony. The Arkansas statute states that the defendant must cause the death "under circumstances manifesting extreme indifference to the value of human life”. Delaware’s first-degree murder statute requires that the defendant cause death recklessly in the course of a felony or with at least criminal negligence in the course of one of the enumerated felonies. It defines as second-degree murder death caused with criminal negligence in the course of non-enumerated felonies. New Hampshire’s capital and first-degree murder statutes require that death be caused knowingly in connection with certain enumerated felonies while its second-degree murder statute requires that death be caused "recklessly under circumstances manifesting an extreme indifference to the value of human life”.
Some of the limitations on the felony-murder doctrine which have been imposed by the courts, as mentioned above, have been codified by statute. These limitations include restrictions on the underlying felony, requiring that it be forcible, violent or clearly dangerous to human life, that death be proximately caused, that death be a natural or probable consequence or a reasonably foreseeable consequence of the commission or attempted commission of the felony, that the felon must have caused the death, and that the victim must not be one of the felons.
Other restrictions of the common-law rule include the enumeration of felonies which are to be included within the felony-murder category, and the reduction to manslaughter of killings in the course of non-enumerated felonies. The commentary following New York’s revision of its felony-murder statute, deleting "any felony” and inserting specifically enumerated felonies, states: "The purpose of the indicated limitations is to exclude from felony murder, cases of accidental or not reasonably foreseeable fatality occurring in the course of a non-violent felony.” The limitation is a response to a significant aspect of the common-law felony-murder rule — the fact that it ignores the relevance of factors, e.g., accident, which mitigate culpability.
Finally, a limitation of relatively recent origin is the availability of affirmative defenses where a defendant is not the only participant iri the commission of the underlying felony. The New York statute provides, as do similar statutes of nine other states, an affirmative defense to the defendant when he:
"(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and
"(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and
"(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and
"(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”
The commentary to the New York statute states that the provision is premised "upon the theory that the felony-murder doctrine, in its rigid automatic envelopment of all participants in the underlying felony, may be unduly harsh * * *”. The comment acknowledges that there may be some cases where it would be "just and desirable to allow a non-killer defendant of relatively minor culpability a chance of extricating himself from liability for murder, though not, of course, from liability for the underlying felony”.
The numerous modifications and restrictions placed upon the common-law felony-murder doctrine by courts and legislatures reflect dissatisfaction with the harshness and injustice of the rule. Even though the felony-murder doctrine survives in this country, it bears increasingly less resemblance to the traditional felony-murder concept. To the extent that these modifications reduce the scope and significance of the common-law doctrine, they also call into question the continued existence of the doctrine itself.
IV. The Requirement of Individual Culpability for Criminal Responsibility
"If one had to choose the most basic principle of the criminal law in general * * * it would be that criminal liability for causing a particular result is not justified in the absence of some culpable mental state in respect to that result * * *.”
The most fundamental characteristic of the felony-murder rule violates this basic principle in that it punishes all homicides, committed in the perpetration or attempted perpetration of proscribed felonies whether intentional, unintentional or accidental, without the necessity of proving the relation between the homicide and the perpetrator’s state of mind. This is most evident when a killing is done by one of a group of co-felons. The felony-murder rule completely ignores the concept of determination of guilt on the basis of individual misconduct. The felony-murder rule thus "erodes the relation between criminal liability and moral culpability”. People v Washington, 62 Cal 2d 777; 44 Cal Rptr 442; 402 P2d 130 (1965).
The felony-murder rule’s most egregious violation of basic rules of culpability occurs where felony murder is categorized as first-degree murder. All other murders carrying equal punishment require a showing of premeditation, deliberation and willfulness while felony murder only requires a showing of intent to do the underlying felony. Although the purpose of our degree statutes is to punish more severely the more culpable forms of murder, People v Garcia, 398 Mich 250, 258; 247 NW2d 547 (1976), an accidental killing occurring during the perpetration of a felony would be punished more severely than a second-degree murder requiring intent to kill, intent to cause great bodily harm, or wantonness and willfulness. Furthermore, a defendant charged with felony murder is permitted to raise defenses only to the mental element of the felony, thus precluding certain defenses available to a defendant charged with premeditated murder who may raise defenses to the mental element of murder (e.g., self-defense, accident). Certainly, felony murder is no more reprehensible than premeditated murder.
LaFave & Scott explain the felony-murder doctrine’s failure to account for a defendant’s moral culpability as follows:
"The rationale of the doctrine is that one who commits a felony is a bad person with a bad state of mind, and he has caused a bad result, so that we should not worry too much about the fact that the fatal result he accomplished was quite different and a good deal worse than the bad result he intended. Yet it is a general principle of criminal.law that one is not ordinarily criminally liable for bad results which differ greatly from intended results.”
Termed as a "somewhat primitive rationale” it is deserving of the observation made by one commentator that "the felony-murder doctrine gives rise to what can only be described as an emotional reaction, not one based on logical and abstract principles”.
Another writer states:
"It is an excuse based on the rough moral notion that a man who intentionally commits a felony must have a wicked heart, and therefore 'ought to be punished’ for the harm which he has done accidentally. It is to guard against this kind of reasoning that our modern rules of evidence exclude in most cases any communication to the jury of a prisoner’s previous misdeeds.”
This Court has previously recognized this principle in a context analogous to the felony-murder situation:
"Every assault involves bodily harm. But any doctrine which would hold every assailant as a murderer where death follows his act, would be barbarous and unreasonable.” Wellar v People, 30 Mich 16, 20 (1874).
While it is understandable that little compassion may be felt for the criminal whose innocent victim dies, this does not justify ignoring the principles underlying our system of criminal law. As Professor Hall argues in his treatise on criminal law:
"The underlying rationale of the felony-murder doctrine — that the offender has shown himself to be a 'bad actor,’ and that this is enough to exclude the niceties bearing on the gravity of the harm actually committed —might have been defensible in early law. The survival of the felony-murder doctrine is a tribute to the tenacity of legal conceptions rooted in simple moral attitudes. For as long ago as 1771, the doctrine was severely criticized by Eden [Baron Auckland], who felt that it 'may be reconciled to the philosophy of slaves; but it is surely repugnant to that noble, and active confidence, which a free people ought to possess in the laws of their constitution, the rule of their actions.’ ”
The United States Supreme Court has reaffirmed on several occasions the importance of the relationship between culpability and criminal liability.
"[T]he criminal law * * * is concerned not only with guilt or innocence in the abstract but also with the degree of criminal culpability.” Mullaney v Wilbur, 421 US 684, 697-698; 95 S Ct 1881; 44 L Ed 2d 508 (1975).
"The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory 'But I didn’t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.” Morissette v United States, 342 US 246, 250-251; 72 S Ct 240; 96 L Ed 288 (1952).
"Whether a death results in the course of a felony (thus giving rise to felony-murder liability) turns on fortuitous events that do not distinguish the intention or moral culpability of the defendants.” Lockett v Ohio, 438 US 586, 620; 98 S Ct 2954; 57 L Ed 2d 973 (1978) (Mr. Justice Marshall’s concurring opinion).
The failure of the felony-murder rule to consider the defendant’s moral culpability is explained by examining the state of the law at the time of the rule’s inception. The concept of culpability was not an element of homicide at early common law. The early definition of malice aforethought was vague. The concept meant little more than intentional wrongdoing with no other emphasis on intention except to exclude homicides that were committed by misadventure or in some otherwise pardonable manner. Thus, under this early definition of malice aforethought, an intent to commit the felony would in itself constitute malice. Furthermore, as all felonies were punished alike, it made little difference whether the felon was hanged for the felony or for the death.
Thus, the felony-murder rule did not broaden the concept of murder at the time of its origin because proof of the intention to commit a felony met the test of culpability based on the vague definition of malice aforethought governing at that time. Today, however, malice is a term of art. It does not include the nebulous definition of intentional wrongdoing. Thus, although the felony-murder rule did not broaden the definition of murder at early common law, it does so today. We find this enlargement of the scope of murder unacceptable, because it is based on a concept of culpability which is "totally incongruous with the general principles of our jurisprudence” today.
As Professor Hall observed in his treatise on criminal law:
"The modern tendency has been to oppose policy-formation such as that embodied in or extended from the felony-murder doctrine. It has insisted on a decent regard for the facts and on sanctions that represent fair evaluation of these facts and not of the supposed character of the offender. Most emphatically the progressive tendency has been to repudiate the imposition of severe penalties where bare chance results in an unsought harm.”
V. The Felony-Murder Doctrine in Michigan
A. Murder and Malice Deñned
In order to understand the operation of any state’s felony-murder doctrine, initially it is essential to understand how that state defines murder and malice.
In Michigan, murder is not statutorily defined. This Court early defined the term as follows:
"Murder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, in the peace of the state, with malice prepense or aforethought, either express or implied.” People v Potter, 5 Mich 1 (1858). See, also, People v Scott, 6 Mich 287, 292 (1859); Maher v People, 10 Mich 212, 218 (1862); People v Garcia, 398 Mich 250, 258; 247 NW2d 547 (1976).
Thus, malice aforethought is the "grand criterion” which elevates a homicide, which may be innocent or criminal, to murder. However, "[t]he nature of malice aforethought is the source of much of the confusion that attends the law of homicide”. People v Morrin, 31 Mich App 301, 310-311; 187 NW2d 434 (1971), Iv den 385 Mich 775 (1971). See, also, Moreland, Law of Homicide (Indianapolis: Bobbs-Merrill, 1952), pp 205-206. Over-broad and ill-considered instructions on malice have plagued appellate courts for decades. See, e.g., People v Morrin, supra; People v Borgetto, 99 Mich 336; 58 NW 328 (1894); Nye v People, 35 Mich 16 (1876).
We agree with the following analysis of murder and malice aforethought presented by LaFave & Scott:
"Though murder is frequently defined as the unlawful killing of another 'living human being’ with 'malice aforethought’, in modern times the latter phrase does not even approximate its literal meaning. Hence it is preferable not to rely upon that misleading expression for an understanding of murder but rather to consider the various types of murder (typed according to the mental element) which the common law came to recognize and which exist today in most jurisdictions:
"(1) intent-to-kill murder;
"(2) intent-to-do-serious-bodily-injury murder;
"(3) depraved-heart murder [wanton and willful disregard that the natural tendency of the defendant’s behavior is to cause death or great bodily harm]; and
"(4) felony murder.”
Under the common law, which we refer to in defining murder in this state, each of the four types of murder noted above has its own mental element which independently satisfies the requirement of malice aforethought. It is, therefore, not necessary for the law to imply or for the jury to infer the intention to kill once the finder of fact determines the existence of any of the other three mental states because each one, by itself, constitutes the element of malice aforethought.
Our focus in this opinion is upon the last cate gory of murder, i.e., felony murder. We do not believe the felony-murder doctrine, as some courts and commentators would suggest, abolishes the requirement of malice, nor do we believe that it equates the mens rea of the felony with the mens rea required for a non-felony murder. We con strue the felony-murder doctrine as providing a separate definition of malice, thereby establishing a fourth category of murder. The effect of the doctrine is to recognize the intent to commit the underlying felony, in itself, as a sufficient mens rea for murder. This analysis of the felony-murder doctrine is consistent with the historical development of the doctrine.
The question we address today is whether Michigan recognizes the felony-murder doctrine and, accordingly, the category of malice arising from the underlying felony. The relevant inquiry is first whether Michigan has a statutory felony-murder doctrine. If it does not, it must then be determined whether Michigan has or should have a common-law felony-murder doctrine.
B. Statutory Felony Murder
Michigan does not have a statutory felony-murder doctrine which designates as murder any death occurring in the course of a felony without regard to whether it was the result of accident, negligence, recklessness or willfulness. Rather, Michigan has a statute which makes a murder occurring in the course of one of the enumerated felonies a first-degree murder:
"Murder which is perpetrated by means of poison, lying in wait, or other wilful, deliberate, and premeditated killing, or which is committed in the perpetration, or attempt to perpetrate arson, criminal sexual conduct in the first or third degree, robbery, breaking and entering of a dwelling, larceny of any kind, extortion, or kidnapping, is murder of the first degree, and shall be punished by imprisonment for life.” MCL 750.316; MSA 28.548.
The Michigan Legislature adopted verbatim the first-degree murder statute of Pennsylvania, the statute we have today. In creating the statutes which divided murder into degrees, it was the intention of the Pennsylvania Legislature to reform the penal laws of that state by making punishment more proportionate to the crime and, in particular, to narrow the category of capital offenses. It was not its apparent intention to adopt by statute the common-law felony-murder rule. The provision covering murder in the course of the enumerated felonies was added when the bill creating the degree statutes was being debated on second reading by a motion on the floor. In Commonwealth ex rel Smith v Myers, supra, 224, the Pennsylvania Supreme Court stated:
"Clearly this statutory felony-murder rule merely serves to raise the degree of certain murders to first degree; it gives no aid to the determination of what constitutes murder in the first place.”_
Michigan case law also makes it clear that the purpose of our first-degree murder statute is to graduate punishment and that the statute only serves to raise an already established murder to the first-degree level, not to transform a death, without more, into a murder.
"The statute does not undertake to define the crime of murder, but only to distinguish it into two degrees, for the purpose of graduating the punishment.” People v Doe, 1 Mich 451, 457 (1850). See, also, People v Samuel Scott, supra, 293.
"It speaks of the offense as one already ascertained and defined, and divides it into degrees * * *.” People v Potter, supra, 6 (emphasis added).
"Neither murder nor manslaughter is defined in our statutes. The [first-degree murder statute] simply classifies a murder perpetrated in a particular manner as murder in the first degree. It has no application until a murder has been established People v Charles Austin, 221 Mich 635, 644; 192 NW 590 (1923) (emphasis added).
Examples of decisions from other states which have murder statutes identical or similar to Michigan’s first-degree murder statute in that they also use the term "murder” and which have concluded that the statute is merely a degree-raising device include the following: Commonwealth ex rel Smith v Myers, supra; Commonwealth v Exler, 243 Pa 155; 89 A 968 (1914); State v Millette, supra; Warren v State, 29 Md App 560, 565; 350 A2d 173, 178 (1976); Evans v State, 28 Md App 640; 349 A2d 300 (1975), aff'd 278 Md 197; 362 A2d 629 (1976); State v Galloway, supra; Grant v State, 60 Tex Crim 358; 132 SW 350 (1910); Pharr v State, 7 Tex Crim 472, 477 (1879); State v Shock, 68 Mo 552 (1878).
In Evans, the Court said:
"It is sometimes falsely asserted that [Md Code Ann, art 27,] §§ 408-410 constitute the felony-murder doctrine in Maryland. That is not true. The felony-murder doctrine * * * is the common law rule — defining one of the at-least three varieties of implied malice — which raises a homicide resulting from the perpetration or attempted perpetration of a felony to the murder level generally. It is only at that point, after the felony-murder rule has already operated, that §§ 408-410 come into play to provide further that in the case of certain designated felonies, the already established murder shall be punished as murder in the first degree.” 28 Md App 640, 686, fn 23.
Galloway is particularly noteworthy as it is a 1979 Iowa Supreme Court case concerning a question similar to the one involved here. The defendant there requested that an instruction be given which would require the jury to find that he shot the victim with malice aforethought while attempting to perpetrate the crime of robbery. The trial court refused to give the instruction and the Supreme Court reversed. The Galloway court said:
"Under the rule at common law the instruction given by the trial court would have been correct. * * *
"But the Iowa statute differs from the common law and differs from the statutes of many other states. * * * The effect of the Iowa statute is to make murders which occur in connection with the perpetration of the named felonies ñrst-degree murder. This has been our rule for many years. [Citation omitted.]
"Under this rule it was error for the trial court not to include the language requested. Malice aforethought is a necessary element for murder. [Iowa Code (1977)] § 690.1. And murder must be committed in order to implement our felony-murder rule.” 275 NW2d 738.
Professor Perkins is in accord:
"Such a statute, let it be emphasized, makes no attempt to define murder. 'It has no application until a murder has been established.’ If the homicide meets the requirements of murder in general, and is shown to have been committed in any of these ways, then the statute applies and makes the killing murder in the first degree. If the death would not otherwise be murder at all this statute does not make it first degree murder, because it speaks of all 'murder’ so perpetrated — not all 'homicide.’ ” Perkins, Criminal Law (2d ed), p 90.
Thus, we conclude that Michigan has not codified the common-law felony-murder rule. The use of the term "murder” in the first-degree statute requires that a murder must first be established before the statute is applied to elevate the degree.
C. Common-Law Felony Murder in Michigan
The prosecution argues that even if Michigan does not have a statutory codification of the felony-murder rule, the common-law definition of murder included a homicide in the course of a felony. Thus, the argument continues, once a homicide in the course of a felony is proven, under the common-law felony-murder rule a murder has been established and the first-degree murder statute then becomes applicable. This Court has ruled that the term murder as used in the first-degree murder statute includes all types of murder at common law. People v Samuel Scott, supra, 292-293. Hence, we must determine whether Michigan in fact has a common-law felony-murder rule.
Our research has uncovered no Michigan cases, nor do the parties refer us to any, which have expressly considered whether Michigan has or should continue to have a common-law felony-murder doctrine. While there are some cases containing language which may be construed as assuming the existence of such a rule in Michigan, the language is clearly dictum as the question was neither at issue nor expressly considered. "It 'is a well-settled principle that a point "assumed without consideration is of course not decided”.’ ” People v Allen, 39 Mich App 483, 499; 197 NW2d 874 (1972) (Levin, P.J., dissenting), adopted 390 Mich 383; 212 NW2d 21 (1973).
However, our finding that Michigan has never specifically adopted the doctrine which defines malice to include the intent to commit the underlying felony is not the end of our inquiry. In Michigan, the general rule is that the common law prevails except as abrogated by the Constitution, the Legislature or this Court. Const 1963, art 3, § 7.
This Court has not been faced previously with a decision as to whether it should abolish the felony-murder doctrine. Thus, the common-law doctrine remains the law in Michigan. Moreover, the assumption by appellate decisions that the doctrine exists, combined with the fact that Michigan trial courts have applied the doctrine in numerous cases resulting in convictions of first-degree felony murder, requires us to address the common-law felony-murder issue. The cases before us today squarely present us with the opportunity to review the doctrine and to consider its continued existence in Michigan. Although there are no Michigan cases which specifically abrogate the felony-murder rule, there exists a number of decisions of this Court which have significantly restricted the doctrine in Michigan and which lead us to conclude that the rule should be abolished.
The first of these decisions is People v Pavlic, 227 Mich 562; 199 NW 373 (1924), cited by Perkins as the leading American decision regarding the types of felony included within the felony-murder rule. In Pavlic, defendant was convicted of involuntary manslaughter as a result of selling moonshine whiskey to the deceased, the drinking of which, followed by exposure to the weather, resulted in his death. Defendant argued that he was not guilty of manslaughter because the selling of intoxicating liquor at that time was a felony and where death results from the commission of a felony, the homicide is murder and not manslaughter. The Pavlic Court said:
"Notwithstanding the fact that the statute has declared it to be a felony it is an act not in itself directly and naturally dangerous to life. So if one in the commission of such an act unintentionally causes the death of another, he is not guilty of murder, nor is he guilty of manslaughter unless he commits the act carelessly and in such a manner as manifests a reckless disregard of human life.”
Pavlic’s requirement that the act be "in itself directly and naturally dangerous to life” is a significant inroad into the felony-murder rule. It is not a large step from requiring such a degree of dangerousness to allowing a jury to infer intent to kill, intent to do great bodily harm or wanton and willful disregard from the nature of and circumstances surrounding a defendant’s acts.
The next case relevant to our inquiry is People v Andrus, 331 Mich 535; 50 NW2d 310 (1951), involving an unarmed robbery in which the victim died as the result of a beating administered during the crime. The jury returned a verdict of manslaughter which the defendant contended was error because the proofs indicated murder in the first degree because the homicide was committed in the perpetration of a robbery. The Andrus Court, citing People v Treichel, 229 Mich 303; 200 NW 950 (1924), held that lesser included offenses were proper:
"Conceding that the verdict might have been guilty of murder in the first degree because committed in the perpetration of a burglary, the Court declined to hold that such verdict was the only one permissible. Attention was directed to testimony indicating that defendants did not make their attack on their victim with the intention of killing him, and did not anticipate that such result would follow. As in the case at bar, the proofs indicated a purpose to prevent interference with the contemplated search for money. Clearly, had defendants intended to kill Frank Cline they would not have resorted to tying his hands and feet with the clothesline which English had taken into the store. The record indicates that in charging the jury as stated the trial judge followed the decision in the Treichel Case. In view of the analogous situation presented there, he was justified in doing so.”
We have subsequently held that there are lesser included offenses in. felony murder and that second-degree murder is a necessarily lesser included offense of first-degree murder. People v Andrew Carter, 395 Mich 434; 236 NW2d 500 (1975); People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975); People v Paul, 395 Mich 444; 236 NW2d 486 (1975). One obvious reason for this holding is that a jury is always entitled to disbelieve evidence of the felony so that the felony-murder rule would not come into play. However, the above-quoted language in Andrus illustrates that the Court primarily was concerned with lack of intent to kill. The practical effect of Andrus, while not specifically abolishing intent to commit a felony as a category of malice, is to allow the jury not to find malice even though they may find that the intent to commit a felony existed.
In People v William Austin, 370 Mich 12; 120 NW2d 766 (1963), this Court adopted the Pennsylvania Redline limitation on the felony-murder rule. The Austin Court held that the killing of a felon by the intended robbery victim was a justifiable homicide and that the felony-murder rule would not be extended to hold the co-felons accountable for the death. In People v Jeffrey Carter, supra, 411, we spoke further of this limitation:
"Finally, to constitute murder, even though malice . may be implied from felonious acts, the killing must be attributable to the accused. So, in People v [William] Austin, 370 Mich 12 (1963), the killing of one of three robbers by the victim of the attempted robbery was held to be justifiable homicide. It was not a killing committed by the felons.”
People v Jeffrey Carter is also significant because there we held that when a non-enumerated felony is involved, the jury must be allowed to consider the nature of the felony:
"Both murder and manslaughter deal with the wrongful killing of another person. If there has been a killing during the commission of one of the felonies enumerated under first-degree murder, this establishes the degree. If the killing occurs during the commission of some other felony, malice may be implied but the nature of the felonious áct must be considered. Many felonies are not inherently dangerous to human life. To hold that in all cases it is murder if a killing occurs in the commission of any felony would take from the jury the essential question of malice.”
The effect of this decision is to greatly reduce the scope of Coke’s unlawful act doctrine and Foster’s "any felony” rule. Furthermore, we perceive no logical reason why cases involving the enumerated felonies should be treated differently than those involving non-enumerated felonies for the purpose of establishing malice. The enumerated felonies are not necessarily inherently dangerous to human life. Those which may be seen as inherently dangerous to human life when viewed in the abstract may not be so dangerous when viewed in light of the circumstances of a particular case. This is especially true in light of our conclusion that Michigan’s first-degree murder statute enumerates felonies solely for the purpose of elevating the degree of murder committed in the perpetration or attempted perpetration of those felonies. The statute nowhere indicates an intention to enumerate felonies for the purpose of defining malice.
Our review of Michigan case law persuades us that we should abolish the rule which defines malice as the intent to commit the underlying felony. Abrogation of the felony-murder rule is not a drastic move in light of the significant restrictions this Court has already imposed. Further, it is a logical extension of our decisions as discussed above.
We believe that it is no longer acceptable to equate the intent to commit a felony with the intent to kill, intent to do great bodily harm, or wanton and willful disregard of the likelihood that the natural tendency of a person’s behavior is to cause death or great bodily harm. In People v Hansen, 368 Mich 344, 350; 118 NW2d 422 (1962), this Court said that "[mjalice requires an intent to cause the very harm that results or some harm of the same general nature, or an act done in wanton or wilful disregard of the plain and strong likelihood that such harm will result”. In a charge of felony murder, it is the murder which is the harm which is being punished. A defendant who only intends to commit the felony does not intend to commit the harm that results and may or may not be guilty of perpetrating an act done in wanton or willful disregard of the plain and strong likelihood that such harm will result. Although the circumstances surrounding the commission of the felony may evidence a greater intent beyond the intent to commit the felony, or a wanton and willful act in disregard of the possible consequence of death or serious injury, the intent to commit the felony, of itself, does not connote a "man-endangering-state-of-mind’’. Hence, we do not believe that it constitutes a sufficient mens rea to establish the crime of murder.
Accordingly, we hold today that malice is the intention to kill, the intention to do great bodily harm, or the wanton and willful disregard of the likelihood that the natural tendency of defendant’s behavior is to cause death or great bodily harm. We further hold that malice is an essential element of any murder, as that term is judicially defined, whether the murder occurs in the course of a felony or otherwise. The facts and circumstances involved in the perpetration of a felony may evidence an intent to kill, an intent to cause great bodily harm, or a wanton and willful disregard of the likelihood that the natural tendency of defendant’s behavior is to cause death or great bodily harm; however, the conclusion must be left to the jury to infer from all the evidence. Otherwise, "juries might be required to find the fact of malice where they were satisfied from the whole evidence it did not exist”. Maher v People, supra.
VI. Practical Effect of Abrogation of the Common-Law Felony-Murder Doctrine
From a practical standpoint, the abolition of the category of malice arising from the intent to commit the underlying felony should have little effect on the result of the majority of cases. In many cases where felony murder has been applied, the use of the doctrine was unnecessary because the other types of malice could have been inferred from the evidence.
Abrogation of this rule does not make irrelevant the fact that a death occurred in the course of a felony. A jury can properly infer malice from evidence that a defendant intentionally set in motion a force likely to cause death or great bodily harm. See, e.g., Guilty Plea Cases, 395 Mich 96, 131; 235 NW2d 132 (1975); People v Haack, 396 Mich 367, 375; 240 NW2d 704 (1976). Thus, whenever a killing occurs in the perpetration or at tempted perpetration of an inherently dangerous felony, People v Pavlic, supra, in order to establish malice the jury may consider the "nature of the underlying felony and the circumstances surrounding its commission”, People v Fountain, 71 Mich App 491, 506; 248 NW2d 589 (1976). If the jury concludes that malice existed, they can find murder and, if they determine that the murder occurred in the perpetration or attempted perpetration of one of the enumerated felonies, by statute the murder would become first-degree murder.
The difference is that the jury may not find malice from the intent to commit the underlying felony alone. The defendant will be permitted to assert any of the applicable defenses relating to mens rea which he would be allowed to assert if charged with premeditated murder. The latter result is reasonable in light of the fact that felony murder is certainly no more heinous than premeditated murder. The prosecution will still be able to prove first-degree murder without proof of premeditation when a homicide is committed with malice, as we have defined it, and the perpetration or attempted perpetration of an enumerated felony is established. Hence, our first-degree murder statute continues to elevate to first-degree murder a murder which is committed in the perpetration or attempted perpetration of one of the enumerated felonies.
As previously noted, in many circumstances the commission of a felony, particularly one involving violence or the use of force, will indicate an intention to kill, an intention to cause great bodily harm, or wanton or willful disregard of the likelihood that the natural tendency of defendant’s behavior is to cause death or great bodily harm. Thus, the felony-murder rule is not necessary to establish mens rea in these cases.
In the past, the felony-murder rule has been employed where unforeseen or accidental deaths occur and where the state seeks to prove vicarious liability of co-felons. In situations involving the vicarious liability of co-felons, the individual liability of each felon must be shown. It is fundamentally unfair and in violation of basic principles of individual criminal culpability to hold one felon liable for the unforeseen and unagreed-to results of another felon. In cases where the felons are acting intentionally or recklessly in pursuit of a common plan, the felony-murder rule is unnecessary because liability may be established on agency principles.
Finally, in cases where the death was purely accidental, application of the felony-murder doctrine is unjust and should be precluded. The underlying felony, of course, will still be subject to punishment. The draftsmen of the Model Penal Code report that juries are not disposed to accept unfounded claims of accident in Ohio where all first-degree murder requires a purpose to kill.
Thus, in the three situations in which the felony-murder doctrine typically has applied, the rule is either unnecessary or contrary to fundamental principles of our criminal law.
"It is submitted that this is one of the most persuasive arguments in favor of abolition of the doctrine: it is not necessary to the establishment of criminal liability in the majority of cases in which it has been applied, and its application to those cases in which death occurred wholly by accident — i.e., without intent or likelihood of harm — is contrary to the modern trend toward establishment of culpability as the basis of criminal liability.”
"[I]t is unsatisfactory and inelegant to have a rule of law which, whenever it is applied, is either unnecessary (as in the case where dangerous violence is knowingly used) or unjust (as in the case where the risk of death is not foreseen).”
The Pennsylvania Supreme Court has called the felony-murder rule "nonessential”, and the commentators to the Hawaii statute abolishing felony murder concluded that "[t]he rule certainly is not an indispensable ingredient in a system of criminal justice”. The penal code of India has done away with felony murder and the doctrine "is also unknown as such in continental Europe”. England, the birthplace of the felony-murder doctrine, has been without the rule for over 20 years and "its passing apparently has not beén mourned”. One writer suggests that the experience in England demonstrates that its demise would have little effect on the rate of convictions for murders occurring in the perpetration of felonies.
We are in full agreement with the following conclusion of the Model Penal Code draftsmen:
"We are, in any case, entirely clear that it is indefensible to use the sanctions that the law employs to deal with murder, unless there is at least a finding that the actor’s conduct manifested an extreme indifference to the value of human life. The fact that the actor was engaged in a crime of the kind that is included in the usual first degree felony-murder enumeration or was an accomplice in such crime will frequently justify such a finding. * * * But liability depends, as we believe it should, upon the crucial finding. The result may not differ often under such a formulation from that which would be reached under the present rule. But what is more important is that a conviction on this basis rests upon sound ground.”
VII. Conclusion
Whatever reasons can be gleaned from the dubious origin of the felony-murder rule to explain its existence, those reasons no longer exist today. Indeed, most states, including our own, have recognized the harshness and inequity of the rule as is evidenced by the numerous restrictions placed on it. The felony-piurder doctrine is unnecessary and in many cases unjust in that it violates the basic premise of individual moral culpability upon which our criminal law is based.
We conclude that Michigan has no statutory felony-murder rule which allows the mental element of murder to be satisfied by proof of the intention to commit the underlying felony. Today we exercise our role in the development of the common law by abrogating the common-law felony-murder rule. We hold that in order to convict a defendant of murder, as that term is defined by Michigan case law, it must be shown that he acted with intent to kill or to inflict great bodily harm or with a wanton and willful disregard of the likelihood that the natural tendency of his behavior is to cause death or great bodily harm. We further hold that the issue of malice must always be submitted to the jury.
The first-degree murder statute will continue to operate in that all murder committed in the perpetration or attempted perpetration of the enumerated felonies will be elevated to first-degree murder.
This decision shall apply to all trials in progress and those occurring after the date of this opinion.
In Aaron, the judgment of conviction of second-degree murder is reversed and this case is remanded to the trial court for a new trial. In Thompson and in Wright, the decisions of the Court of Appeals are affirmed and both cases are remanded to the trial court for new trial.
Coleman, C.J., and Kavanagh, Levin, and Blair Moody, Jr., JJ., concurred with Fitzgerald, J.
Compare People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976); People v Martin, 75 Mich App 6; 254 NW2d 628 (1977); People v Wright, 80 Mich App 172; 262 NW2d 917 (1977); People v Robert G Thompson, 81 Mich App 348; 265 NW2d 632 (1978); People v Hansma, 84 Mich App 138; 269 NW2d 504 (1978); People v Wilson, 84 Mich App 636; 270 NW2d 473 (1978); People v Langston, 86 Mich App 656; 273 NW2d 99 (1978); People v Dietrich, 87 Mich App 116; 274 NW2d 472 (1978); People v Derrick Smith, 87 Mich App 584; 274 NW2d 844 (1978); People v Hines, 88 Mich App 148; 276 NW2d 550 (1979), with People v Till, 80 Mich App 16; 263 NW2d 586 (1977); People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978); People v Butts, 85 Mich App 435; 271 NW2d 265 (1978); People v Lovett, 85 Mich App 534; 272 NW2d 126 (1978).
MCL 750.316; MSA 28.548.
"In other words, if you believe the evidence beyond a reasonable doubt, that the defendant, Robert Thompson, killed the decedent, Mary Emma Hendry, that at the time of such homicide the said defendant was perpetrating or attempting to perpetrate said assault upon the deceased, Mary Emma Hendry, with intent to rob, then it is not necessary for the state to prove a premeditated design or intent. And you should find the defendant, Mr. Thompson, guilty of murder in the first degree, under count two of the information.
"Now, what I’m saying, members of the jury, is that then there may be with [sic] the intent to commit a robbery but without the intent of injuring anyone. If in this frame of mind he enters a place, and in committing or attempting to commit the robbery he kills a person, that killing would be murder under the law even though there was no ill will, hatred or malevolence toward the person killed. Because the evil intent to commit the robbery carries over to make that crime murder in the first degree under the law in this state.”
People v Robert G Thompson, supra, 350.
"Defendant is charged with a crime of murder in the first degree. The law insofar as it applies to the case states that all murder which shall be committed during and as a result of the committing or attempting to commit arson shall be murder in the first degree. The defendant pleads not guilty to this charge. To establish this charge the people must prove each of the following elements beyond a reasonable doubt: first, that Joe Thomas and Odel Barnes died on or about October 3rd, 1975; second, that the death [sic] was caused by the defendant or that occurred as the direct result of the commission of the crime of arson, that is that Joe Thomas and Odel Barnes died as the result of an arson of the dwelling at 420 South Washington, Ypsilanti, Michigan; third, that at the time of the burning which caused the death of Joe Thomas and Odel Barnes the defendant consciously intended to commit the crime of arson; fourth, that at the time of the burning which caused the death of Joe Thomas and Odel Barnes the defendant was committing the crime of arson.
"For murder of the first degree there must be proof beyond a reasonable doubt that the killing occurred as a result of the crime of arson and that the defendant was at the time engaged in committing, or attempting to commit, or was aiding another in the commission of that crime.”
People v Wright, supra, 179.
People v Aaron, 63 Mich App 230; 234 NW2d 462 (1975).
396 Mich 843 (1976).
402 Mich 938 (1978).
403 Mich 821 (1978).
Moreland, Kentucky Homicide Law With Recommendations, 51 Ky L J 59, 82 (1962).
See, e.g., Crum, Causal Relations and the Felony-Murder Rule, 1952 Wash U L Quarterly 191; Morris, The Felon’s Responsibility for the Lethal Acts of Others, 105 U of Pa L Rev 50, 58 (1956). Note, Recent Extensions of Felony Murder Rule, 31 Ind L J 534, fn 3 (1956).
"Le Seignor Dacres & auters accord de enter en un pke & de hunter la, & de tuer touts que eux resisteront: & accordant al ceo ils entront en le Park, & un vient al un de eux, Et demand, que il avoit de faire la; & 1’auter luy occide, le seignor esteant un quarter dun mile de cest leiu, & ríen scavoit de ceo: uncore ceo fuit adjudge murder en luy, & en touts ses companions. Et auxi un auter vient en un Orchard, pur gatherer pears & un a luy vient & rebuke luy, & il luy tua, le quel fuit adjudge murder.”
Kaye, The Early History of Murder and Manslaughter, Part II, 83 L Quarterly Rev 569, 578-579, 593 (1967); see, also, King v Borthwick, 1 Doug 207, 212; 99 Eng Rep 136, 138-139 (KB, 1779).
Note, Felony Murder as a First Degree Offense: An Anachronism Retained, 66 Yale L J 427, 430, fn 23 (1957) (hereinafter cited as Anachronism Retained); Recent Developments, Criminal Law: Felony-Murder Rule-Felon’s Responsibility for Death of Accomplice, 65 Colum L Rev 1496, fn 2 (1965) (hereinafter cited as Felon’s Responsibility).
Anachronism Retained, fn 15 supra, p 431, fn 23; Recent Cases, Criminal Law — Homicide, 59 Dickinson L Rev 183, 185 (1955); Recent Decisions, Criminal Law — Murder—Felony Murder Rule, 9 Duquesne L Rev 122,123 (1970).
Taken from the syllabus of Dyer. 2 Dyer’s Reports, translated by John Vaillant (1794). Further evidence of the defendants’ intentions is supplied by the following excerpt from Herbert’s case: "And the party who came to take the goods proclaimed, and said (before his coming) 'that he would make him a Cokes who kept the goods;’ and said also, 'that he would make him to know the basest in his house.’ ”
Kaye, fn 14 supra, 578.
Id., pp 581, 586, 589.
2 Mich Criminal Jury Instructions (Ann Arbor: Institute of Continuing Legal Education), Felony-Murder Commentary, pp 16-107 -16-109.
Kaye, fn 14 supra, p 593. The holding in Dacres’ case regarding constructive presence was discussed in Herbert’s case. However, Brooke, one of the judges in Herbert’s case, was later to misconstrue the holding in Dacres’ case, forgetting that.it was not the unlawful hunt which made the killing murder in Dacres’ case, rather it was the agreement to kill beforehand and the theory of constructive presence which combined to require the convictions of murder for Lord Dacres and his companions. Id.
Coke, Third Institutes (1797), p 56.
2 Torcia, Wharton’s Criminal Law (14th ed), § 145, p 204; Hurst, Criminal Law — The Felony-Murder Doctrine Repudiated, 36 Ky L J 106 (1947); Moesel, A Survey of Felony Murder, 28 Temple L Quar terly 453 (1955); 3 Stephen, Sir James Fitzjames, A History of the Criminal Law of England (London: MacMillan, 1883), p 57; Constructive Murder, 65 The Law Times 291 (1878) (hereinafter cited as Constructive Murder); 7A Hawaii Rev Stat, § 707-701, Commentary, p 345.
Professors Moreland and Perkins also give explanations for the origin of the felony-murder rule. Moreland sees the felony-murder rule as an extension of the doctrine of malice aforethought. For this proposition he cites Lambard, who states:
" 'And therefore if a thief do kill a man whom he never saw before and whom he intended to rob only, it is murder in the judgment of law, which implyeth a former malicious disposition in him rather to kill the man than not to have his money from him.’ ” 3 Stephen, fn 23 supra, pp 50-51.
Moreland observes that this was an attempt to justify the rule as an inference of fact in order to satisfy the definition of malice aforethought prevailing at that time. But, in Moreland’s opinion, it does not carry conviction as such. Moreland, Law of Homicide (Indianapolis: Bobbs-Merrill, 1952), p 14.
Stephen, commenting on the above passage from Lambard, states:
"The law can hardly be justified in 'presupposing’ that a thief 'carryeth that malicious mind that he will achieve his purpose though it be with the death of him against whom it is directed,’ from the fact that he trips a man up in order to rob him and happens to kill him.” 3 Stephen, fn 23 supra, p 51.
Perkins contends that the primary purpose of the felony-murder rule was to deal with homicides committed during unsuccessful attempted felonies. An attempt to commit a felony was only a misdemeanor at common law. The felony-murder rule placed the defendant in the position he would have been in had the felony been successful without the homicide, for in either case it would be a capital crime. Perkins, Criminal Law (2d ed), p 44.
Felon’s Responsibility, fn 15, supra, p 1496, fn 2.
2 Bracton, De Legibus Angliae (1879), p 277. One commentator questions whether this statement actually represents the law as it existed in Bracton’s time. He also notes that the examples mentioned by Bracton are distinguished by willful action in the face of manifest danger to human safety. Wilner, Unintentional Homicide in the Commission of an Unlawful Act, 87 U of Pa L Rev 811 (1939).
3 Stephen, fn 23 supra, p 57.
Id., p 65.
Constructive Murder, fn 23 supra, p 292.
3 Stephen, fn 23 supra, p 58.
"The first is the passage in Bracton already observed upon, in which Bracton says, that if a man unintentionally kills another in doing an unlawful act, 'hoc imputatur ei.’ He does not say that such an act amounted to murder, and it would not fall under the definition of murder which he gives, nor does he say that such an offence was in his day punishable with death. As I have already said, he says that the punishment of homicide in his day was various (poena homicidii commissi facto variatur). As to the punishment given in this particular class of cases he is silent. The rest of Coke’s authorities are three passages from the Year-books. The first is found not in the Year-books themselves but in FitzHerbert, Corone, 354, and is from the iter of Northampton in the third Edward III. This entry says that a jury found that a man killed a child by misadventure, having thrown a stone which fell on the child, whereupon the justices remanded him to wait for the king’s pardon, and refused to let him out of prison on mainprise, but directed the sheriff to treat him humanely. This has obviously nothing to do with the matter. The first case referred to in the Year-books is 2 Hen 4, 18. The only case I can find to which this can possibly refer is No. 6 in 2 Hen 4, p 18, which is a well-known authority as to the liability of a man whose fire burns the goods of another. In the course of the argument Thyrning says that if a man kills another by misadventure the slayer forfeits his goods and must get his pardon. The Year-book of 11 Hen 7, p 23a, which is the other authority cited, says that if two men fight with sword and buckler by consent and one kills the other it is felony, unless they fight by the king’s command; also that it is felony to kill a man by beating him, though without the intention of killing him. This, no doubt, says that to kill a man by an illegal act of personal violence is felony, though the act is not intended to kill, and it may be that the word 'felony’ means murder and not manslaughter, as the last remark seems to refer to instances of premeditated violence; but be this as it may, it is a long way from the proposition for which Coke cites it.” Id., pp 57-58.
6 Hobbes, English Works (1840), Dialogue of the Common Laws, pp 86, 87, as quoted in Moesel, fn 23 supra, p 453, fn 3.
By a practice known as "benefit of clergy” a defendant could avoid the death penalty. At early law, members of the clergy could be tried only by an ecclesiastical court. The test for determining entitlement to the benefit was the ability to read. The effect of the benefit was to shield from the death penalty those who qualified for its protection since a court of the Church could not pronounce a judgment of blood. However, a series of statutes in the late Fifteenth and early Sixteenth Centuries removed the more culpable homicides from the protection of the benefit of clergy. 12 Hen 7, c 7 (1496); 4 Hen 8, c 2 (1512); 23 Hen 8, c 1, §§ 3, 4 (1531); 1 Edw 6, c 12, § 10 (1547). Anachronism Retained, fn 15 supra, pp 428-429; Perkins, A Re-examination of Malice Aforethought, 43 Yale L J 537, 542-543 (1934); Moesel, fn 23, supra, p 455.
Commonwealth v Redline, 391 Pa 486, 494; 137 A2d 472, 476 (1958). Accord, Powers v Commonwealth, 110 Ky 386, 414; 61 SW 735, 741 (1901); Perkins, fn 24 supra, p 44; 2 Torcía, fn 23 supra, § 147, p 212; 3 Stephen, fn 23 supra, pp 75-76; LaFave & Scott, Criminal Law, p 546, fn 4.
3 Stephen, fn 23 supra, pp 75-76; Perkins, fn 24 supra, p 44.
1 Hale, Pleas of the Crown, p 465. See also Perkins, fn 24 supra, p 38; Moreland, fn 24 supra, p 42.
3 Stephen, fn 23 supra, p 65.
See, also, Wilner, fn 26 supra, p 812; 3 Stephen, fn 23 supra, p 69.
Foster, Crown Law (2d ed, 1791), p 258. See also 3 Stephen, fn 23 supra, p 75.
Id.
Id.
1 Hawkins, Pleas of the Crown (8th ed, 1824), p 86; 4 Blackstone, Commentaries (Hammond ed, 1898), pp 192, 200-201; 1 East, Pleas of the Crown (1803), pp 255-260. See also Moreland, fn 24 supra, p 42; Moesel, fn 23 supra, p 453; Perkins, fn 33 supra, p 559.
In Greenwood, defendant was charged with murder and rape of a child under ten. The trial judge instructed the jury that if they found that the prisoner had intercourse with the victim and she died from its effects, then that act being a felony, this would in itself be such malice as to justify them in returning a verdict of murder. The jury retired, but returned and told the judge that they were satisfied that the defendant had raped her and that her death resulted therefrom, but they were not agreed on finding defendant guilty of murder. The trial judge told them that under these circumstances, they could ignore the doctrine of constructive malice if they saw fit and find the defendant guilty of manslaughter, which they did.
In Horsey, defendant was charged with murder in connection with wilfully setting fire to a stack of straw. The fire had spread to a barn and burned to death a man, possibly a tramp, who, unknown to defendant, was inside the barn. The defendant had already been convicted of the arson. The trial judge instructed the jury that where a defendant in the course of committing a felony caused the death of a human being, that was murder even though he did not intend it. And though it may appear unreasonable, it was the law and it was their duty to act upon it. However, obviously disliking the rule, the judge instructed the jury that if they found that the victim came in after defendant set fire to the stack of straw, that the victim’s own act intervened between the death and the act of defendant. Thus his death could not be the natural and probable consequence of defendant’s act. Seizing upon this "preposterous loophole” (Moreland, fn 24 supra, p 43), the jury found defendant not guilty.
Prevezer, The English Homicide Act: A New Attempt to Revise the Law of Murder, 57 Colum L Rev 624, 635 (1957).
Hawaii, Kentucky and Ohio.
Perkins, fn 24 supra, p 44.
Model Penal Code (Tentative Draft No 9, 1959), § 201.2, Comment 4, p 37. See also Perkins, fn 24 supra, p 43; 2 Torcía, fn 23 supra, § 147, pp 212-214; LaFave & Scott, fn 34 supra, pp 547-558; Michael & Wechsler, Criminal Law and Its Administration (Chicago: Foundation Press, 1940), pp 213-218; Adlerstein, Felony-Murder in the New Criminal Codes, 4 American Journal of Criminal Law 249 (1976); Ludwig, Foreseeable Death in Felony Murder, 18 U of Pittsburgh L Rev 51 (1956); Seibold, The Felony-Murder Buie: In Search of a Viable Doctrine, 23 Catholic Lawyer 133 (1978); State v Harrison, 90 NM 439, 441; 564 P2d 1321, 1323 (1977).
The Model Penal Code creates a rebuttable presumption of recklessness manifesting extreme indifference to the value of human life if the actor was engaged in the commission, attempted commission or flight after commission of robbery, rape by force or intimidation, arson, burglary, kidnaping or felonious escape. The draftsmen of the code would have liked to have followed the British example by dispensing with felony murder but "such a course was thought to be impolitic”. Wechsler, Codiñcation of Criminal Law in the United States: The Model Penal Code, 68 Colum L Rev 1425, 1446-1447 (1968).
See, e.g., People v Pavlic, 227 Mich 562; 199 NW 373 (1924); Commonwealth v Bowden, 456 Pa 278; 309 A2d 714 (1973); Jenkins v State, 230 A2d 262 (Del, 1967), aff'd 395 US 213; 89 S Ct 1677; 23 L Ed 2d 253 (1969); State v Moffitt, 199 Kan 514; 431 P2d 879 (1967); People v Washington, 62 Cal 2d 777; 44 Cal Rptr 442; 402 P2d 130 (1965); People v Phillips, 64 Cal 2d 574; 51 Cal Rptr 225; 414 P2d 353 (1966); People v Goldvarg, 346 Ill 398; 178 NE 892 (1931); State v Thompson, 280 NC 202; 185 SE2d 666 (1972); People v Jeffrey Carter, 387 Mich 397; 197 NW2d 57 (1972); Pliemling v State, 46 Wis 516; 1 NW 278 (1879); People v Golson, 32 Ill 2d 398; 207 NE2d 68 (1965); Wade v State, 581 P2d 914 (Okla Crim App, 1978).
In determining whether a particular felony is "inherently dangerous”, California courts look to the elements of the felony in the abstract and not to the specific factual circumstances. Other courts consider both the nature of the felony and the individual factual circumstances. See Adlerstein, fn 47 supra, pp 252-253 and citations therein. See also Anno: What felonies are inherently or foreseeably dangerous to human life for purposes of felony-murder doctrine, 50 ALR3d 397.
See, e.g., People v Louis Scott, 29 Mich App 549; 185 NW2d 576 (1971); Wade v State, fn 48 supra; State v Mauldin, 215 Kan 956, 958; 529 P2d 124, 126 (1974); State v Glover, 330 Mo 709; 50 SW2d 1049 (1932); State v Diebold, 152 Wash 68; 277 P 394 (1929); People v Treichel, 229 Mich 303; 200 NW 950 (1924); Jenkins v State, fn 48 supra; State v Moffitt, fn 48 supra; Pliemling v State, fn 48 supra; State v Leopold, 110 Conn 55; 147 A 118 (1929); Powers v Commonwealth, fn 34 supra.
See, e.g., Commonwealth v Redline, fn 34 supra; Jackson v State, 92 NM 461; 589 P2d 1052 (1979); People v Jeffrey Carter, fn 48 supra; People v William Austin, 370 Mich 12; 120 NW2d 766 (1963); People v Washington, fn 48 supra; Commonwealth ex rel Smith v Myers, 438 Pa 218; 261 A2d 550 (1970); Commonwealth v Campbell, 89 Mass (7 Allen) 541; 83 Am Dec 705 (1863); People v Wood, 8 NY2d 48; 167 NE2d 736 (1960); Sheriff v Hicks, 89 Nev 78; 506 P2d 766 (1973); State v Canola, 73 NJ 206; 374 A2d 20 (1977); People v Morris, 1 Ill 3d 566; 274 NE2d 898 (1971); Morris, fn 12 supra, pp 69-74; Crum, fn 12 supra. See also Anno: Criminal liability where act of killing is done by one resisting felony or other unlawful act committed by defendant, 56 ALR3d 239.
See, e.g., People v Samuel Scott, 6 Mich 287 (1859); People v Pavlic, fn 48 supra.
See, e.g., Commonwealth v Exler, 243 Pa 155; 89 A 968 (1914); State v Burrell, 120 NJL 277; 199 A 18 (1938).
See, e.g., People v Archie Smith, 55 Mich App 184; 222 NW2d 172 (1974), aff'd in part 396 Mich 825 (1976); State v Diebold, fn 49 supra; People v Hüter, 184 NY 237; 77 NE 6 (1906); People v Walsh, 262 NY 140; 186 NE 422 (1933); Huggins v State, 149 Miss 280; 115 So 213 (1928); State v Taylor, 173 La 1010; 139 So 463 (1931); State v Montgomery, 191 Neb 470; 215 NW2d 881 (1974); State v Golladay, 78 Wash 2d 121; 470 P2d 191 (1970), overruled on other grounds State v Arndt, 87 Wash 2d 374; 553 P2d 1328 (1976); People v Joyner, 32 App Div 2d 260; 301 NYS2d 215 (1969), rev’d 26 NY2d 106; 257 NE2d 26; 308 NYS2d 840 (1970); State v Opher, 38 Del 93; 188 A 257 (1936). See also Anno: What constitutes termination of felony for purpose of felony-murder rule, 58 ALR3d 851.
See, e.g., Garrett v State, 573 SW2d 543 (Tex Crim App, 1978); People v Moran, 246 NY 100; 158 NE 35 (1927); State v Fisher, 120 Kan 226; 243 P 291 (1926); State v Severns, 158 Kan 453; 148 P2d 488 (1944); State v Shock, 68 Mo 552 (1878); People v Hüter, fn 53 supra; People v Ireland, 70 Cal 2d 522; 450 P2d 580; 75 Cal Rptr 188 (1969). See also Anno: Application of felony-murder doctrine where the felony relied upon is an includable offense within the homicide, 40 ALR3d 1341. Particularly noteworthy are People v Wilson, 1 Cal 3d 431; 462 P2d 22; 82 Cal Rptr 494 (1969), and People v Sears, 2 Cal 3d 180; 465 P2d 847; 84 Cal Rptr 711 (1970), in which the California Supreme Court, while recognizing that the first-degree felony-murder statute literally required defendant’s convictions, refused to uphold such convictions because "the statutory source of the rule does not compel us to apply it in disregard of logic -and reason”. People v Wilson, supra, 441.
See also People v Washington, fn 48 supra, 134; People v Henderson, 19 Cal 3d 86, 92-93; 137 Cal Rptr 1; 560 P2d 1180, 1183 (1977).
See the authorities cited in fn 47 supra.
Ky Rev Stat, § 507.020.
Hawaii Rev Stat, § 707-701.
7A Hawaii Rev Stat, § 707-701, Commentary, p 347.
Ohio Rev Code Ann, § 2903.04 (Page).
Manslaughter by definition does not require malice. As the primary purpose of the felony-murder rule is to supply malice from the underlying felony, the rule has no usefulness as such in Ohio.
Alas Stat, §§ 11.41.110,11.41.115.
La Rev Stat Ann, § 14:30:1.
NY Penal Law, § 125.25 (McKinney).
Pa Cons Stat Ann, tit 18, § 2502 (Purdon).
Utah Code Ann, § 76-5-203(1).
Minn Stat Ann, §§ 609.185, 609.195.
Wis Stat Ann, §§ 940.02(2), 939.50(3)(b).
Ark Stat Ann, § 41.1502.
Del Code, tit 11, § 636.
Id., §635.
NH Rev Stat Ann, §§ 630:1, 630:l-a, 630:l-b.
See, e.g., Ala Code, § 13A-6-2; 111 Ann Stat, ch 38, § 9-1 (SmithHurd); Iowa Code Ann, § 707.2; Minn Stat Ann, § 609.Í85; Mont Rev Codes Ann, § 94-5-102; Tex Penal Code Ann, tit 5, § 19.02 (Vernon).
See, e.g., Ohio, fn 60 supra.
See, e.g., Wis, fn 68 supra.
See, e.g., Me Rev Stat, tit 17-A, § 202.
See, e.g., Alabama, fn 73 supra; Ark, fn 69 supra; Cal Penal Code, §§ 187-189 (West); Miss Code Ann, § 97-3-19; NY, fn 64 supra; ND Cent Code, § 12.1-16-01; Or Rev Stat, § 163.115; Wash Rev Code Ann, § 9A.32.030.
See, e.g., Colo Rev Stat, § 18-3-102; Conn Gen Stat, §§ 53a-54c; NJ' Rev Stat Ann, § 2C:ll-3a; NY, fn 64 supra, Or, fn 77 supra; Utah, fn 66 supra; Wash, fn 77 supra.
The majority of states which have a statutory felony-murder rule enumerate the felonies included.
See, e.g., Idaho Code, § 18-4003; La, fn 63 supra.
NY, fn 64 supra, 39 McKinney’s Consolidated Laws of NY Ann, Part 1, Commentary, p 400.
Alas, fn 62 supra; Ark, fn 69 supra; Colo, fn 78 supra; Conn, fn 78 supra; Me, fn 76 supra; NJ, fn 78 supra; ND, fn 77 supra; Or, fn 77 supra; Wash, fn 77 supra.
NY, fn 64 supra.
Id., 39 McKinney’s Consolidated Laws of NY Ann, Part 1, Commentary, p 401.
Id.
Gegan, Criminal Homicide in the Revised New York Penal Law, 12 NY L Forum 565, 586 (1966). See, also, Crum, fn 12, supra; 9 Duquesne L Rev 122 (fn 16 supra).
A good example of this point is provided by one of the cases involved here. In People v Wright, the trial judge instructed that as to the intent element of the possible verdicts, first-degree murder required intent to commit the crime of arson, second-degree murder required intent to kill or that defendant "consciously created a very high degree of risk of death to another with knowledge of its probable consequences”, and involuntary manslaughter involved willful, wanton and reckless disregard of the consequences. Thus, a higher degree of culpability was required for second-degree murder and involuntary manslaughter than for first-degree murder.
LaFave & Scott, fn 34 supra, p 560.
LaFave & Scott, fn 34 supra, p 554. The authors include the following footnote:
"No doubt this explains the history of the felony-murder doctrine * * ’ by which we start with the proposition that death resulting from the commission of a felony is murder without limitation; through the imposition of limitations; and down to a modern tendency to abolish the doctrine altogether * * Id., pp 554-555, fn 54.
Note, 31 Ind L J 534, fn 12 supra, p 543.
Turner, The Mental Element in Crimes at Common Law, 6 Cambridge L J 31, 43 (1938).
Eden (later Lord Auckland), Principles of Penal Law (1771), pp 206-210.
Hall, General Principles of Criminal Law (Indianapolis: BobbsMerrill, 1947), p 455.
Anachronism Retained, fn 15 supra, p 428. Some commentators see the felony-murder rule as a direct descendant of this time where the results of an act were punished irrespective of the actor’s intent. See, e.g., Note, 31 Ind L J 534, fn 12 supra, p 535; Turner, fn 91 supra, pp 43, 55.
2 Pollock & Maitland, History of English Law (2d ed), p 469; Anachronism Retained, fn 15 supra, p 439. Perkins, fn 33 supra, p 545; Moreland, fn 24 supra, p 10.
Fns 33-35.
First Report From His Majesty’s Commissioners on Criminal Law (1834), p 29. (In: Parliamentary Papers [1834], Vol 26, p 105.)
Hall, fn 93 supra, p 460.
[Malice aforethought] is the grand criterion which now distinguishes murder from other killing.” 4 Blackstone, fn 42 supra, p 198.
People v Charles Austin, 221 Mich 635, 644; 192 NW 590 (1923); Maher v People, 10 Mich 212, 217-218; 81 Am Dec 781 (1862); People v Morrin, 31 Mich App 301, 310; 187 NW2d 434 (1971).
LaFave & Scott, Criminal Law, p 528. In this opinion, we continue to use the term "malice” for the sake of convenience. However, we will narrowly define the term to avoid making it the "misleading expression” referred to by LaFave & Scott. We see no reason why trial judges, in instructing on the mental element required for first-degree murder committed in the course of an enumerated felony, need specifically refer to the term "malice”. Juries may simply be instructed that they must find one of the three elements described later in this opinion.
of course, first-degree premeditated murder requires proof of the specific intent to cause death. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976).
See, e.g., the dicta in the following three cases: People v Potter, 5 Mich 1, 7 (1858):
"Now, at the common law, if a mortal blow was malicious, although not given with intent to kill, or if death ensued from an act accompanying an unlawful collateral act, or under circumstances which showed general malice, such as a reckless disregard of the safety or lives of others, the killing would be murder, and would be punishable in the same manner as though perpetrated with the deliberate design of taking the life of the victim.”
People v Samuel Scott, 6 Mich 287, 293 (1859):
"Each grade of murder embraces some cases where there is a direct intent to take life, and each grade also embraces offenses where the direct intent was to commit some other crime. As the law names all of the offenses, an attempt to commit which renders the person who takes life guilty of murder in the first degree, no difficulty can arise in defining the degree of any murder committed, without the actual design either of taking life or of doing bodily harm to the person assailed.”
Wellar v People, 30 Mich 16,19 (1874):
"It is not necessary in all cases that one held for murder must have intended to take the life of the person he slays by his wrongful act. It is not always necessary that he must have intended a personal injury to such person. But it is necessary that the intent with which he acted shall be equivalent in legal character to a criminal purpose aimed against life. Generally the intent must have been to commit either a specific felony, or at least an act involving all the wickedness of a felony.”
See, also, Clark & Marshall, A Treatise on the Law of Crimes (7th ed), pp 636, 640; LaFave & Scott, Criminal Law, pp 529, 545; 1 Anderson, Wharton’s Criminal Law & Procedure, § 243, p 527; Stephen, General View of the Criminal Law of England, p 116.
While we recognize that certain opinions of this Court would seem to require that a jury infer the intention to kill from the intention to commit great bodily harm, we construe that language as dictum. See, e.g., Guilty Plea Cases, 395 Mich 96, 131; 235 NW2d 132 (1975); People v Haack, 396 Mich 367, 375; 240 NW2d 704 (1976). In any event, to the extent that such language deviates from the common law, we note that none of the juries in the instant cases was instructed that they must infer the intention to kill from the intention to commit the underlying felony. No opinion of this Court has specifically addressed whether the common law should be modified to require that the intention to kill must be inferred from the intention to do great bodily harm or from the wanton and willful disregard for life and we leave that question for an appropriate case. Nor do we read People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971), as resolving this question. We understand the three examples of implied malice set forth in Morrin as being treated in law as functionally equivalent (while not identical) to intent to kill, each substituting as malice in its own right. Our opinion today is limited to the question of whether we should continue to recognize the common-law rule which allows the mental element of murder to be satisfied by proof of the intention to commit the underlying felony.
Some courts and commentators have suggested that the felony-murder rule abolishes the requirement of malice aforethought. This is mistaken.
"Confusion results from the assumption sometimes entertained that the felony-murder rule results in conviction of murder where the killing has been without malice. Nothing could be farther from the common-law concept which is that one perpetrating or attempting to perpetrate a dangerous felony 'possesses a malevolent state of mind which the law calls "malice”; * * *’ in other words the intent to engage in such a felony is malice aforethought." Perkins, fn 24, p 45.
Others suggest that the "malice” or mens rea necessary for the felony is the same as the "malice aforethought” required for non-felony murder. This is also incorrect.
"[T]he mens rea or 'malice’ necessary for the felony is in every instance different from the mens rea or 'malice aforethought’ required for murder; but for certain killings the law will allow the latter to be conclusively proved from the former. This is not to identify them at all — it is merely to say that in certain cases proof of the particular state of mind required for murder will be established by the mens rea of certain felonies; it will be malice 'implied’ rather than 'express.’ The difference is significant for it preserves the felony-murder rules as a mens rea-imposing mechanism and avoids the reification of malice * * Morris, fn 12 supra, pp 60-61.
See, supra, p 712.
In 1969, the Michigan Legislature amended the statute to add to the enumerated felonies the crimes of kidnapping, extortion and larceny of any kind. 1969 PA 331.
It is interesting to note that Pennsylvania had made at least two substantive changes to the statute which we adopted in 1837 and still have. Before 1974, the Pennsylvania statute made a criminal homicide murder in the first degree if done in the commission or attempted commission of the enumerated felonies. In 1974, the Pennsylvania murder statute was substantially changed, requiring an intentional killing for first-degree murder and designating felony murder as second-degree.
Keedy, History of the Pennsylvania Statute Creating Degrees of Murder, 97 U of Pa L Rev 759, 771-773 (1949); People v Potter, 5 Mich 1, 6; 71 Am Dec 763 (1858); People v Fountain, fn 1 supra, 498-499; Felony Murder Commentary, fn 20 supra, pp 16-111, 16-112.
As the Galloway Court noted, the Iowa first-degree murder statute has since been legislatively modified. See Iowa Code Ann, § 707.2.
This is an overly simplified statement of the common-law rule. As pointed out in Part II of this opinion, the felony-murder rule at common law was reinterpreted and redefined and progressively diminished. Furthermore, kidnapping and extortion were not felonies at common law. See Clark & Marshall, A Treatise on the Law of Crimes (7th ed), §2.02, p 111. Thus, under the definition of felony murder requiring that the unlawful act shall be a felony, killings in the course of these crimes would not have amounted to murder at common law. See Torcía, Clariñcation of the Felony-Murder Statute?, 63 Dickinson L Rev 119, 120 (1959).
See, e.g., People v Samuel Scott, fn 51 supra, 292-293; Wellar v People, 30 Mich 16, 18-19 (1874); People v Page, 198 Mich 524, 536; 165 NW 755 (1917); People v Crandell, 270 Mich 124, 126; 258 NW 224 (1935); People v Wright, 315 Mich 81, 87; 23 NW2d 213 (1946). Samuel Scott and Wellar do not even involve felony-murder charges. As to Page, see Note, The Felony-Murder Doctrine in Michigan, 25 Wayne L Rev 69, 71-72 (1978).
See, also, People v Duffield, 387 Mich 300, 308; 197 NW2d 25 (1972); In re Sanderson, 289 Mich 165, 174; 286 NW 198 (1939); In the Matter of Lamphere, 61 Mich 105, 108; 27 NW 882 (1886); Bugbee v Fowle, 277 Mich 485, 492; 269 NW 570 (1936); Bassier v J Connelly Construction Co, 227 Mich 251, 257; 198 NW 989 (1924); Bean v McFarland, 280 Mich 19, 21; 273 NW 332 (1937); Myers v Genesee County Auditor, 375 Mich 1, 7; 133 NW2d 190 (1965); Placek v Sterling Heights, 405 Mich 638, 656-657; 275 NW2d 511 (1979); Gruskin v Fisher, 405 Mich 51, 58; 273 NW2d 893 (1979).
"[Tjt is for this Court to decide whether a common-law rule shall be retained unless the Legislature states a rule that is inconsistent with or precludes a change in the common-law rule.” Gruskin v Fisher, fn 111 supra, p 58.
Perkins, fn 24 supra, p 40.
The prosecutors in Thompson and Wright argue that Andrus is not a felony-murder case. They base this contention on the statement of the Court, found at page 541, that "[i]n the case at bar the attack on Frank Cline which resulted in his death, and the alleged robbery, involved the same facts and circumstances”. This statement is taken out of context, as it is in response to a joinder-of-counts argument. The defendants in Andrus claimed the defense of alibi. The jury was charged on a felony-murder theory. See Michigan Supreme Court Records and Briefs (86-87 October Term, 1951), Docket No. 86, Record on Appeal, p 590.
The Andrew Carter Court also gave the following definitions of first- and second-degree murder:
"First-degree murder is second-degree (common-law) murder plus an element, viz., either premeditation or the perpetration or attempt to perpetrate an enumerated felony. People v Allen, 390 Mich 383; 212 NW2d 21 (1973). Conversely, second-degree murder is first-degree murder minus premeditation or the enumerated felony.” 395 Mich 437-438.
Commonwealth v Redline, fn 34 supra.
The problem of causation which is frequently at issue in a felony-murder factual situation and which is relevant with or without the existence of a felony-murder rule is not at issue here. See, e.g., People v Podolski, 332 Mich 508; 52 NW2d 201 (1952).
Perkins, fn 24 supra, p 46.
It appears that this was a concern of the jury in People v Wright, involved here. The jury sent a communication to the judge after they had begun deliberations, asking if conviction of arson required conviction of first-degree murder or whether they could return a verdict of arson in conjunction with second-degree murder or involuntary manslaughter. The trial judge stated that he was unable to answer the question because he would be directing a verdict, and instead reinstructed the jury on the available verdicts. The jury returned shortly thereafter with a verdict of first-degree felony murder.
Seibold, fn 47 supra, p 135, fn 4.
Id., p 153.
Model Penal Code, fn 47 supra, p 39.
Seibold, fn 47 supra, p 135, fn 4.
Turner, fn 91 supra, p 66.
Commonwealth ex rel Smith v Myers, fn 51 supra, p 226.
7A Hawaii Rev Stat, § 707-701, Commentary, p 346.
Model Penal Code, fn 47 supra, p 36.
Seibold, fn 47 supra, p 137.
Id., p 159.
Model Penal Code, fn 47 supra, p 39. | [
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Levin, J.
A statute makes it a misdemeanor to solicit a person injured as a result of an accident for the purpose of making a claim for damages or prosecuting an action based on the injury. Woll, -Posner and Keane, who are lawyers, were indicted under the statute. They contend that the statute is void for vagueness and because it deprives them of equal protection of the law. Woll further contends that the statute is inapplicable to workers’ compensation cases.
We hold:
1) The Legislature intended that the statute apply to workers’ compensation cases, at least where the claim arises out of an accident. Because of ambiguity in the expression the statute did not, however, provide the notice requisite for a criminal statute that workers’ compensation claims were within its ambit. We therefore give prospective effect only to our construction that the statute applies to the solicitation of workers’ compensation cases arising out of an accident.
2) The limitation to prosecution of personal injury claims does not deny equal protection of the law. The Legislature could properly conclude that solicitation of personal injury claims presents a risk of harm significantly different from solicitation of other legal business, including personal injury defense, and that a special criminal disincentive was needed to discourage such behavior.
3) While the statute may be unconstitutional because of overbreadth, the overbreadth can be cured by a limiting construction. The statute when so construed can be applied retroactively to the complained-of conduct, because, although the statute is overbroad, it provided adequate warning that it proscribed in-person solicitation of the kind that the Legislature can prohibit.
4) The indictments must, however, be dismissed because the grand juries’ assessment of the evidence had not theretofore been circumscribed by a construction limiting the grand juries’ discretion; the grand juries, applying a literal construction of the statute, may have indicted and an amended indictment may have been filed for conduct protected by the First Amendment. Since the statute provided adequate warning that it proscribed conduct that can be prohibited, dismissal is without prejudice to reindictment after a limiting construction is placed on the statute.
5) None of the parties have considered in their briefs what would constitute a proper limiting construction. Woll sought a declaratory judgment. We remand his case to the Court of Appeals so that it can determine a limiting construction consistent with the First Amendment.
I
The Court of Appeals held the statute unconstitutional in Posner and Keane and constitutional in Woll. We granted leave to appeal to resolve the conflict, limited to whether the statute is unconstitutionally overbroad in that it infringes protected areas of freedom of speech and expression, and whether it violates the equal protection guarantees of the Michigan and United States constitutions and, in Woll, additionally, to whether the statute applies to workers’ compensation cases.
Posner and Keane
Posner and Keane were indicted by a citizens’ grand jury on a charge of conspiracy to solicit personal injury claims. After preliminary examination they were bound over for trial and an amended indictment was filed.
The Recorder’s Court denied motions to dismiss which alleged that the statute is unconstitutional because it denies equal protection and is vague in failing to give adequate notice of its proscription and in being overbroad.
The Court of Appeals granted interlocutory appeal. Without reaching the equal protection claim, it held that the statute is unconstitutionally over-broad, and dismissed the indictment.
Woll
Woll filed a complaint for declaratory judgment and injunctive relief against the Attorney General and Wayne County Prosecuting Attorney. He alleged that he is an attorney engaged in a personal injury and workers’ compensation practice, that an actual controversy exists because any attorney engaged in such a practice would be liable for prosecution under the statute and, additionally, because there was already underway an inquiry into his activities by a law enforcement agency.
Woll claimed that the statute is unconstitutional because it denies equal protection of the law and because it is vague in i) failing to provide adequate notice of the conduct prohibited, ii) infringing on protected areas of speech (overbreadth) and iii) conferring excess discretion on governmental authorities. Woll also sought to have the statute, if constitutional, construed as inapplicable to workers’ compensation cases.
Within the month, Woll was indicted by a citizens’ grand jury on charges of solicitation of personal injury claims, conspiracy to solicit personal injury claims, obstruction of justice and conspiracy to obstruct justice. The following day the Attorney General filed a counterclaim in Woll’s declaratory judgment action asking the court to construe the statute in "a manner consistent” with the constitutions of the United States and Michigan.
The circuit court held that the statute denied equal protection of the law and was unconstitutionally overbroad. The Court of Appeals held that the facial overbreadth doctrine is inapplicable to a statute addressed to commercial speech and that the statute as applied to Woll is not unconstitutional on vagueness or equal protection grounds.
II
Woll contends that the statute does not prohibit the solicitation of workers’ compensation claims. He argues that it "should be construed in a narrow manner, consistent with the doctrine that penal statutes are to be strictly construed, so that the [statutory] term 'person injured as the result of an accident’ does not apply to workers’ compensation cases”.
A
The statute applies to "[a] person * * * who shall * * * solicit a person injured as the result of an accident * * * for the purpose of representing that person in making a claim for damages or prosecuting an action or causes of action arising out of a personal injury claim * * *”.
Woll contends that the Worker’s Disability Compensation Act is a specific statute which comprehensively addresses the entire subject matter of workers’ compensation claims and a general statute such as the solicitation statute does not apply. This aid to construction is inapplicable where, as here, there is no conflict between the statutes.
Similarly, while a criminal statute is strictly construed, we understand that to mean only that persons are entitled to fair warning that the conduct is proscribed and that the courts will not by construction stretch the meaning beyond the terms of the statute to include conduct outside the legislative intendment. "The rule of strict construction confines an offense to the words of the statute, but it permits the words not only to be read naturally but to be given a meaning in harmony with the purpose and intent of the law as far as may be done without distortion of language.” In construing a criminal statute, as any other statute, we seek to determine and implement the legislative purpose.
B
As originally enacted in 1912, the Worker’s Disability Compensation Act covered "accidental” injury. The solicitation statute, enacted in 1925, speaks of solicitation of a person "injured as the result of an accident”. Since the workers’ compensation statute covered accidental injury, the language of the solicitation statute in terms includes the solicitation of workers’ compensation claims. An injury resulting from accident undergoes no transformation when it also arises "out of and in the course of’ employment; the "person injured” is nevertheless "injured as the result of an accident”.
The term "personal injury claim” describes a workers’ compensation claim as well as a claim in tort.
While "action” or "causes of action” sounds in common-law pleading, the alternative phrase of the solicitation statute, "in making a claim for damages”, can mean either a claim in tort or for workers’ compensation. An injured worker who has suffered a specific loss or who requires medical attention or is disabled from earning wages has suffered "damages” no less than if the workers’ compensation act had not been enacted and his claim for recovery could only be asserted in a court of law. Although a worker seeks "compensation” rather than a money judgment, he asserts a "claim for damages”.
Woll argues that whatever rationales support the general prohibition, they are inapposite to workers’ compensation because attorneys’ fees in workers’ compensation cases are supervised. But attorney fees have always been subject to judicial supervision and contingent fees in personal injury suits are now regulated by court rule.
There is no contemporaneous legislative history or construction by a court on the question whether the solicitation statute applies to workers’ compensation cases. Because it appears to have been primarily directed to the solicitation of claims brought in a court of law its meaning could be confined to the solicitation of such claims.
We perceive, however, a larger legislative purpose, one directed to the protection of injured persons against importuning, the protection of defendants against those who would drum up claims and the protection of the judicial system from being overloaded with claims which otherwise would not be presented. If the scope of the statute were limited to the precise evil which apparently occasioned its enactment (the solicitation of automobile negligence claims), it arguably would not apply to the solicitation of cases which were not major sources of litigation or the entitlements for which did not exist at the time of its enactment, e.g., product liability and malpractice cases and no-fault automobile actions against an insurer.
The risks of importuning of clients and fomentation of litigation are as real in the workers’ compensation area as in general personal injury litigation. Crowded dockets are a problem in the workers’ compensation field as well as in general personal injury litigation. As with other personal injury claims, insubstantial workers’ compensation claims have coercive value as "nuisance suits”.
We are persuaded that, absent some evidence or a contemporaneous construction that the Legislá ture did not intend to include the solicitation of personal injury claims for which recovery could be sought under the workers’ compensation statute, we should construe the solicitation statute to include the solicitation of such claims because they are within the policy underlying the statute.
While we conclude that the statute is directed to the solicitation of workers’ compensation claims as well as tort claims, we concede that a different construction could be placed upon the statute. It is especially important that a criminal statute provide fair warning of the conduct proscribed so that persons affected can conform their conduct to the statutory requirement. Fairness requires that the construction that the solicitation of workers’ compensation claims is included be given prospective effect only.
Ill
We address next the contention that the solicitation statute denies equal protection of the law in that it singles out solicitation of personal injury claims, leaving all other forms of solicitation of employment by attorneys untouched.
A
When a statute is challenged on equal protection grounds, the first and, some have said, the decisive question, is the appropriate test — minimum rationality, means scrutiny or strict scrutiny.
The Court of Appeals in Woll (the issue was not reached in Posner and Keane) applied the tradi tional minimum rationality test as did the judges who first considered the challenge. Under that test a statute will be upheld if the challenged classification bears a rational relation to a legitimate state interest. We are urged to apply the "strict scrutiny” ("compelling state interest”) test, on the ground that the statute interferes with First Amendment rights.
It is not contended that "strict scrutiny” is triggered whenever a statute regulates speech or conduct within the scope of the First Amendment. Rather, it is claimed that the classification represents a direct interference with protected freedoms because it is based on the content of the speech — a proposal to provide representation in prosecuting a personal injury claim is banned, but a proposal to provide representation in any other sort of lawsuit is permitted.
In Police Dep’t of Chicago v Mosley the United States Supreme Court indicated that the state must show a compelling state interest to justify discrimination based on content. But the activity regulated in Mosley — protest through peaceful picketing — lies near the core of First Amendment guarantees. The Court’s concern about government interference with the free flow of ideas was central to the Court’s decision:
"To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship, is content control. Any restriction on expressive activity because of its content would completely undercut the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’ ’,
The solicitation statute simply does not implicate the interests the Court protected in Mosley.
It is urged, citing Button, Trainmen, United Mine Workers, and United Transportation Union, that equally important First Amendment interests are involved in the regulation of attorney solicitation. In Button the civil rights litigation solicited was itself a form of political expression. In the other three cases the associational rights of the clients, members of labor unions, were involved. Here, however, it is apparent that the solicitation charges grew out of proposed commercial transactions not involving associational rights or political expression.
In commercial speech, the speaker "does not wish to editorialize on any subject, cultural, philosophical, or political. He does not wish to report any particular newsworthy fact, or to make generalized observations even about commercial matters.” The United States Supreme Court has cautioned against hasty application of First Amendment precedents to such speech. It has also indicated that in-person solicitation merits even less protection than other forms of commercial speech.
In light of the lesser protection given to solicitation, we conclude that Mosley does not require "strict scrutiny” of the solicitation statute. Although First Amendment protection has been extended to some forms of solicitation by attorneys, in-person solicitation in a commercial context is not accorded protection as a fundamental right and, hence, does not trigger strict scrutiny of a statute regulating such conduct when it has been challenged on equal protection grounds. We hold that the statute should be tested against the ra tional relationship standard applicable to economic legislation generally: The inquiry is whether "the classification challenged [is] rationally related to a legitimate state interest”.
B
It is asserted that the solicitation statute is unconstitutional under any equal protection standard because the special treatment of personal injury claims is arbitrary and capricious. We conclude that the classification is rationally related to interests which the state may legitimately advance.
We turn first to an identification of the interests sought to be advanced by the solicitation statute.
In Ohralik v Ohio State Bar Ass’n, 436 US 447, 460; 98 S Ct 1912; 56 L Ed 2d 444 (1978), the United States Supreme Court said that "[i]n addition to its general interest in protecting consumers and regulating commercial transactions, the State bears a special responsibility for maintaining standards among members of the licensed professions”. It continued that protection of the public from those aspects of solicitation involving "fraud, undue influence, intimidation, overreaching, and other forms of 'vexatious conduct’ ” is a legitimate state interest. The Court said that in-person solicitation may "provide a one-sided presentation” and "encourage speedy and perhaps uninformed decisionmaking” without "an opportunity for comparison or reflection” and "critical comparison of the 'availability, nature, and prices’ of legal services.” The Court also said that there is a risk that the lawyer’s pecuniary self-interest will interfere with his exercise of judgment on behalf of his client.
In Kelley v Judge of Recorder’s Court of Detroit, 239 Mich 204, 212-213; 214 NW 316; 53 ALR 273 (1927), in rejecting an equal protection challenge to the solicitation statute, this Court did not specifically identify the interest sought to be advanced by the statute. It did indicate, however, that personal injury claims were "inviting to litigation and exploitation”.
Hightower v Detroit Edison Co, 262 Mich 1, 7-8; 247 NW 97; 86 ALR 509 (1933), subsequently listed the following evils associated with "ambulance chasing”: "(1) fomenting litigation with resultant burdens on the courts and public purse, (2) subor nation of perjury, (3) mulcting of innocent persons by judgments, upon manufactured causes of action and perjured testimony, and by settlements to buy peace, and (4) defrauding of injured persons having proper causes of action, but ignorant of legal rights and court procedure, by means of contracts which retain exorbitant percentages of recovery and illegal charges for court costs and expenses and by settlements made for quick return of fees and against the just rights of the injured persons.”
In sum, the United States Supreme Court, in Ohralik, identified as state interests protecting consumers, regulating commercial transactions and maintaining standards among members of the licensed professions, and this Court, in Hightower, spoke as well of the impact of solicitation on defendants and the judicial system resulting from drummed-up litigation.
Neither Ohralik nor Hightower was an equal protection case; the challenge in Ohralik was on First Amendment grounds and Hightower presented a constructional issue. While equal protection analysis requires us to identify the state interest sought to be advanced by the challenged statute, since we decide that there are one or more legitimate state interests which would be furthered by this statute and that the challenged classification is sufficiently related to the furtherance of each interest, we see no need to attempt to particularize which interest — the protection of the client against overreaching by soliciting lawyers or the protection of defendants and the justice system from the fomentation of litigation — was in the forefront of the legislative decision.
C
We turn to the question whether the limitation to personal injury claims is sufficiently related to the furtherance of the state interests involved.
We conclude that personal injury claims as a class have distinguishing characteristics which justify special treatment in light of the state interests involved.
In Kelley v Recorder’s Court Judge this Court, in rejecting an equal protection challenge to this statute, made observations concerning the special attributes of personal injury claims which are also pertinent today:
"[T]here exists a marked difference between injuries inflicted on the person and injuries done to property, plainly recognizable in fact and reasonably distinguishable in law. Property, whether personal or real, has as a rule some fairly determinable market value susceptible of definite proof, within limits beyond which neither evidence nor expectation can range. Market value for personal injuries is unknown. The measure of damages and rules of proof are distinctly different in injury to property and personal injury cases. Pain and suffering, disfiguration, permanency, humiliation and other personal elements foreign to property which have no distinct standard of money measurement are permissible elements of damages in the latter. This may and often does in the minds of many give rise to great expectations and surrounds such claims with a tempting atmosphere of speculation unknown to property tort actions inviting to litigation and exploitation as generally known and so indicated by the proportion of such actions crowding our courts.”
We are persuaded that there is greater likelihood of harm to the client as the result of the solicitation of personal injury claims than of other claims. Personal injury claims, in contrast with general civil litigation and personal injury defense, are almost universally handled on a contingent fee basis and there is no fixed dollar value for the claimant’s injuries. The combination of these factors creates opportunities for taking advantage of the client.
The absence of a fixed dollar value allows a lawyer to cloud the mind of the client with promises of large awards. Expectations may be created that cannot be realized, and the client thereby exploited. Even when there is reality to the promise, the allure of the potential gain and the absence of client financial obligation may create the belief that there is nothing to lose and everything to gain by entering into the arrangement. The client may do so without reflection and comparison. He may even feel pressured to do so for fear of losing the opportunity presented by the lawyer. As a result he may lose the opportunity for better representation.
Claimants in general civil litigation are less likely to be exploited by the creation of expectations that cannot be realized and, because they generally have a financial obligation to the lawyer, are more likely, as are defendants, to compare and reflect before accepting a lawyer’s proposal for representation.
Also characteristic of personal injury practice is a high volume of claims which has substantially contributed to the overloading of the justice system and also presents problems for defendants faced with a large number of claims. The system depends upon negotiated settlement to dispose of most cases and puts defendants, as well as plaintiffs, under pressure to settle; the cost of defense also puts pressure on defendants to settle. This characteristic of personal injury claims, in combination with the contingent fee, may encourage some lawyers to emphasize quantity rather than quality of representation, to settle claims for. less than their full value and to prepare for trial less adequately; the absence of a fixed dollar value often prevents clients from evaluating the result and detecting deficient representation. Discouraging solicitation of claims which would add to the volume may tend to improve the quality of representation. High volume coupled with contingent fee compensation of lawyers is not characteristic of general civil litigation or personal injury defense.
We are also persuaded that there is greater likelihood of harm to the justice system and defendants as the result of the solicitation of personal injury claims than of other claims. The same characteristics of the personal injury claim practice — high volume, the contingent fee, absence of a fixed standard — encourage the bringing of marginal and nuisance claims, an imposition on the justice system and defendants, especially insurers and deep pocket defendants. The pressures to settle make it impractical to insist on a disposition on the merits of all such claims. Where the claimant seeks out the lawyer it is less likely that the claim is marginal or nuisance than where the lawyer seeks out the claimant. Barring the solicitation of personal injury claims discourages the fomentation of litigation and is rationally related to a legitimate state interest in discouraging the bringing of marginal and nuisance claims.
In arguing that the risks of solicitation are not limited to personal injury claims, some specific points are made:
(1) undue influence depends on the circum stances of the solicitation, and not on the type of claim being solicited — the statute does not prohibit a lawyer from approaching an injured person to solicit representation in a property damage action, but a person who has recuperated from his injury may not be approached regarding a personal injury claim;
(2) the fomenting of litigation is possible in any context, and lawyers who bring public interest, civil rights and consumer class actions instigate lawsuits that would not otherwise be brought;
(3) other sorts of claims, such as arson and property damage claims, are equally susceptible to being brought fraudulently; and
(4) unwarranted settlements may be as readily procured in stockholder derivative and consumer class actions.
It is further claimed that if personal injury litigation is distinguishable, then the prohibition should extend to injury defense as well.
We respond:
(1) Because of the contingent fee (absence of financial obligation to the lawyer) and the potential of a large award, even a healthy solicited person is less likely to make an informed decision when a personal injury claim rather than property damage or other general civil litigation is involved;
(2) The volume of public interest, civil rights and consumer class actions is considerably less than that of personal injury claims. Because such actions present novel and often important issues, the defendant is more likely to defend than to settle. The prospect of large pecuniary gain for the client is not the basis on which his or her participation in the action is solicited. While some such actions are brought with a view to justifying large legal fees, it is federal and state policy to encourage such actions as a means of enforcing statutes aimed at commercial and other practices contrary to the public interest.
(3) While property damage claims can be brought fraudulently, the volume of such claims has not created the same pressures to settle as personal injury claims; also, persons who have such claims are less readily found than personal injury claimants and the value of such claims is more certain.
(4) There is little risk of imposition on the claimant in a stockholder derivative or consumer class action, and they do not clog the dockets.
In sum, it is the coincidence of many factors that distinguishes personal injury claims; pointing to particular risks of harm in other litigation, including personal injury defense, does not render the classification irrational.
It is also contended, based on a provision of the Revised Judicature Act which voids all solicited agreements, that “if the Legislature has seen fit to treat all forms of solicitation as equal in the civil arena, then a criminal defendant charged with solicitation should be given the same evenhanded treatment”.
While that statute bars solicitation of any legal business and renders solicited contracts, contingent or otherwise, void, it does not follow that the classification of the solicitation statute is invalid in singling out the solicitation of personal injury claims for the additional penalties of a criminal statute. The Legislature could properly conclude that an added deterrent was necessary to discourage the solicitation of personal injury claims. A decision to solicit depends in part on an assess ment of the likely gain and risk of loss. In most areas of litigation the threat of invalidating the contract may be sufficient to discourage the solicitation. In the personal injury area the presence of a potential for indeterminate gain, a high volume of cases making the invalidation of any single contract less important, and the absence of a fixed dollar value which might encourage clients to police the quality of representation, make the sanction of invalidation less efficacious. In addition, because most injured persons are taken to hospitals and identified, personal injury claimants are more readily solicited than general civil litigants. Also such claimants, in contrast with commercial litigants and personal injury defendants, generally do not have retained legal counsel. We conclude that the Legislature could properly decide that the invalidation of solicited contracts was not an adequate deterrent and that a special criminal disincentive was necessary to discourage the solicitation of personal injury claims.
We do not mean to disparage the role played by the personal injury bar. Still we must conclude that the Legislature could appropriately find that a special measure was necessary to prevent solicitation in that field.
The limitation to personal injury claims bears a rational relation to the state interests sought to be furthered by the solicitation statute. The lawyers in these cases are not denied equal protection of the law.
IV
We turn to the contention that the statute is void for vagueness.
A statute may be challenged for vagueness on the grounds that it
—is overbroad, impinging on First Amendment freedoms, or
—does not provide fair notice of the conduct proscribed, or
—is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed.
A
The primary challenge is on the ground of over-breadth.
It is asserted that
—the prohibition against solicitation would allow application of the statute to activities meant to advance valid associational interests found to be protected in the United Transportation Union and other cases and to a form of political expression found to be protected in In re Primus and National Ass’n for the Advancement of Colored People v Button, 371 US 415; 83 S Ct 328; 9 L Ed 2d 405 (1963), and_
—the prohibition against "directly or indirectly soliciting” could reach truthful advertising given First Amendment protection in Bates v State Bar of Arizona, and
—in the context of in-person solicitation for pecuniary gain, the blanket prohibition is too broad because under Ohralik, such activities can be proscribed only when done in circumstances that present a significant danger of overreaching or undue influence.
An overbreadth challenge does not require that the challenger show he is injured by the overinclusiveness of the statute. He can rely on the rights of hypothetical third persons and may obtain a declaration of the statute’s non-enforceability without showing that the conduct he himself engaged in is constitutionally protected. An over-breadth challenge thus does not depend on the factual context of the case at hand. It is irrelevant that the litigant himself is charged under the statute with expression or conduct different than those he asserts the statute overinclusively proscribes.
A successful overbreadth challenge thus permits a person charged with speech or conduct violative of a statute to escape punishment based on the First Amendment rights of others impinged upon by the statute although under a narrower, properly drawn statute, his speech or conduct could be punished because it is not so protected. Accordingly, it would be no answer to the overbreadth challenge that the solicitations here represented a significant danger of overreaching or undue influence and were not meant to advance valid associa tional interests and were not a form of political expression and were not truthful advertising.
It is "because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression”, that the Court does not inquire whether the litigant’s "own rights of free expression are violated”.
But not every First Amendment right supports an overbreadth challenge. In Bates the United States Supreme Court held that the overbreadth doctrine does not apply "to professional advertising, a context where it is not necessary to further its intended objective”. The Court reasoned that "[s]ince advertising is linked to commercial well-being, it seems unlikely that such speech is particularly susceptible to being crushed by overbroad regulation”.
In Ohralik the United States Supreme Court declared that the lawyer could not "make a successful overbreadth argument in view of the Court’s observation in Bates”, and said: "Commercial speech is not as likely to be deterred as noncommercial speech, and therefore does not re quire the added protection afforded by the over-breadth approach”.
Accordingly, the overbreadth challenge here based on Bates and Ohralik must be rejected because the United States Supreme Court has held that the overbreadth doctrine has no application to commercial speech of the kind involved in those cases.
This still leaves the question whether an over-breadth challenge may be advanced based on the associational rights protected in United Transportation Union and the rights of political expression protected in Primus and Button.
In Broadrick v Oklahoma, 413 US 601, 615-616; 93 S Ct 2908; 37 L Ed 2d 830 (1973), the United States Supreme Court declared that "where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep”. (Emphasis supplied.) Applying the real and substantial test, the Court concluded that the statute there presented was "not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied”.
In a subsequent case, the Court indicated that the exhibition of motion pictures is conduct as well as speech. It concluded that the deterrent effect of an ordinance prohibiting the showing of films containing nudity by a drive-in movie theater when its screen is visible from a public street or place was "both real and substantial”, and that the statute was void for overbreadth.
Recently, in rejecting a challenge to the constitutionality of an ordinance zoning adult theaters, the Court emphasized still another factor in deciding that the overbreadth challenge was insubstantial. The Court said that the exception to the "traditional rules of standing” is "justified by the overriding importance of maintaining a free and open market for the interchange of ideas". (Emphasis supplied.) It concluded that the ordinance would not have a "significant deterrent effect on the exhibition of films protected by the First Amendment”. It said that there is "a less vital interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic expression than in the free dissemination of ideas of social and political significance”. This was not "the kind of threat to the free market in ideas and expression that justifies the exceptional approach to constitutional adjudication recognized” in some of its earlier cases.
The associational activities protected in United Transportation Union and the form of political expression protected in Primus and Button involve conduct as well as speech — the solicitation of clients, the same kind of conduct which the solicitation statute seeks to regulate.
Accordingly we are obliged to assess the over-breadth by the real and substantial test enunciated in Broadrick.
We are inclined to the view that the solicitation statute does not represent "the kind of threat to the free market in ideas and expression that justifies the exceptional approach to constitutional adjudication recognized” in some of the decisions of the United States Supreme Court.
That Court’s decision in United Transportation Union holding that an injunction based on this very solicitation statute was unconstitutional, and its observation that "the principle here involved cannot be limited to the facts of this case”, makes it highly unlikely that any union would be deterred from engaging in the activities found there to be protected.
One must strain to imagine a case in which prosecuting a claim based on injury from an accident would be a form of political expression of the kind protected in Primus and Button.
It appears therefore that the overbreadth challenges based on United Transportation Union, Primus, and Button are not real and substantial. We do not, however, place our holding on that ground.
B
Any overbreadth of the solicitation statute can be cured by a limiting construction._
In Broadrick the United States Supreme Court said that "[application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. Facial overbreadth has. not been invoked when a limiting construction has been or could be placed on the challenged statute.” (Emphasis supplied.)
We are unpersuaded by the argument that a limiting construction should not be placed on the solicitation statute because so much rewriting would be necessary that we would be intruding on the legislative function. Our construction does not involve rewriting but, rather, a statement of exceptions to the statute’s otherwise blanket prohibitions. It is no intrusion on the power of the Legislature to engraft exceptions to a broad prohibition when no violence is done to the Legislature’s central intent and when without such exceptions the statute must fall.
We find this case analogous to People v Bricker. Bricker, prosecuted under the criminal abortion statute, resisted prosecution on the ground that although the statute prohibited all abortions the United States Supreme Court had held that the state could not prohibit abortions in certain circumstances. We said that we are bound to preserve the constitutionality of statutes by construction, if possible, and that prior constructions are not controlling. We concluded that a construction consistent with the legislative intent could be applied:_
’’When the Legislature adopted the statutes prohibiting most abortions there was little or no reason to question their constitutionality. The medical and other developments which influenced the United States Supreme Court to decide Roe [v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973)] and Doe [v Bolton, 410 US 179; 93 S Ct 739; 35 L Ed 2d 201 (1973)] as it did were far ahead.
* * *
"The central purpose of this legislation is clear enough — to prohibit all abortions except those required to preserve the health of the mother. The Supreme Court now requires other exceptions. They can properly be read into the statutes to preserve their constitutionality.
* * *
"In light of the declared public policy of this state [to prosecute abortion] and the changed circumstances resulting from the federal constitutional doctrine elucidated in Roe and Doe, we construe § 14 of the penal code to mean that the prohibition of this section shall not apply to 'miscarriages’ authorized by a pregnant woman’s attending physician in the exercise of his medical judgment; the effectuation of the decision to abort is also left to the physician’s judgment; however, a physician may not cause a miscarriage after viability except where necessary, in his medical judgment, to preserve the life or health of the mother.” (Emphasis supplied.)
So, too, with the solicitation statute, there was little or no reason to question its constitutionality at inception. It admitted of no exceptions, but the United States Supreme Court now requires that some be made.
Earlier in this opinion we identified protection of the client against overreaching by lawyers and the protection of defendants and the justice system from the fomentation of litigation as possible legislative purposes of the solicitation statute. The exception which we now engraft onto the statute to meet the requirements of the United States Supreme Court is consonant with both purposes.
We construe the solicitation statute to mean
that its prohibition applies only to solicitations which are done primarily to advance the pecuniary interest of a lawyer who solicits or in whose interest solicitation is committed.
C
The lawyers here cannot seriously contend that they did not have fair notice of the statute’s proscription. Again, we find Bricker controlling. The defendant in that case was not a physician and therefore the Roe and Doe abortion decisions gave no protection to his conduct. His conduct legitimately could be punished, and he had adequate notice that the Legislature had chosen to punish it. His conviction was therefore affirmed.
Reliance on People v Dempster is misplaced. That case concerned the construction of the words "commercial paper” in the Uniform Securities Act. We read the commercial paper exemption in light of the purpose of the Uniform Securities Act, and concluded that the exemption applied to a smaller class of documents than that encompassed by the definition of "commercial paper” in § 3-805 of the Uniform Commercial Code. We held, though, that this new construction could have prospective application only, saying:
"This Court is not able, within the bounds of due process, to 'interpret’ a criminal statute which contains an ambiguous exemption such that it results in conviction of the defendant charged in the specific case. That is not the 'fair warning’ demanded by the Constitution.”
That the bar on retrospective application operates only when there is an issue of "fair notice” is made clear by the Court’s citation of Freund, The Supreme Court and Civil Liberties, 4 Vand L Rev 533, 541 (1951):
"The objection of vagueness is twofold: inadequate guidance to the individual whose conduct is regulated, and inadequate guidance to the triers of fact. The former objection could not be cured retrospectively by a ruling either of the trial court or the appellate court, though it might be cured for the future by an authoritative judicial gloss.” (Emphasis supplied.)
Where "fair notice” is not an issue, retroactive application is permitted.
D
We do find, however, that due process rights would be violated unless a limiting construction is applied before prosecution. It was noted at the outset that there are three species of vagueness challenges. We have rejected the claim that this statute, even absent construction, fails to give adequate notice of the conduct proscribed.. We have also held that the overbreadth challenge, to the extent based upon United Transportation Union and Primus and Button, failed because of the limiting construction we place on the statute. No limiting construction was necessary to address the overbreadth challenge based on Bates and Ohralik because the overbreadth doctrine does not apply to commercial speech.
Nonetheless, a limiting construction, making the statute expressly inapplicable to activities protected by Bates and Ohralik, is necessary to prevent violation of a due-process right akin to that which protects one from application of a law so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed.
If prosecution were to proceed without benefit of a limiting construction, a person might be convicted for acts within the literal terms of the solicitation statute which cannot, by reason of Bates and Ohralik, be proscribed. Unless the trier of fact has been apprised of the limiting construction, it cannot properly be said that either its assessment of the evidence or its finding was guided by such construction.
In Shuttlesworth v Birmingham the United States Supreme Court reversed a conviction based on an ordinance prohibiting persons from standing on a sidewalk in such a way as to obstruct free passage, or from standing on a sidewalk after having been requested by any police officer to move on. As written, the ordinance suffered from an obvious constitutional defect. The Alabama Supreme Court subsequently construed the ordinance always to require a showing that the accused blocked free passage. The United States Supreme Court concluded that, although the ordinance was not unconstitutional as construed, the defendant’s conviction should be reversed:
"In any event, the trial court in the present case was without guidance from any state appellate court as to the meaning of the ordinance.
"The trial court made no findings of fact and rendered no opinion. For all that appears, the court may have found the petitioner guilty only by applying the literal — and unconstitutional — terms of the ordinance. * * * Because we are unable to say that the Alabama courts in this case did not judge the petitioner by an unconstitutional construction of the ordinance, the petitioner’s conviction under § 1142 cannot stand.”
Shuttlesworth was applied in Ashton v Kentucky. The defendant was convicted of common-law criminal libel. The trial judge charged that the offense is committed by publication of any writing “calculated to create disturbances of the peace, corrupt the public morals, or lead to any act, which, when done, is indictable”. The Kentucky Court of Appeals affirmed the conviction, but redefined the crime as publication of a defamatory falsehood, with malice; it ruled that criminal liability could not be predicated on a breach of peace. Reversing the conviction, the United States Supreme Court cited Shuttlesworth for the proposition that
"where an accused is tried and convicted under a broad construction of an act which would make it unconstitutional, the conviction cannot be sustained on appeal by a limiting construction which eliminates the unconstitutional features of the act, as the trial took place under the unconstitutional construction of the act.”
In addition to the risk that a defendant might be convicted without a finding that he engaged in prohibited conduct there is the risk that a belated construction may deprive a defendant of an opportunity to make out a valid defense.
The indictment charging Posner and Keane with violation of the solicitation statute merely states the grand jury’s conclusion, and gives no indication of the nature of the activities the grand jury found probable cause to believe had occurred. For all that appears, that grand jury may have only found that they engaged in conduct, albeit within the literal scope of the statute, too innocuous to prohibit consistent with Ohralik. We believe that the concerns voiced in Shuttlesworth and Ashton prevent Posner and Keane from being forced to stand trial without a grand jury having found probable cause to believe a violation of the statute, as construed, occurred. For this reason, the indictment must be quashed, without prejudice to reindictment on the basis of the statute as construed.
Count I of Woll’s indictment charges conspiracy to solicit personal injury claims and Count II charges solicitation of personal injury claims. The second paragraph of Count I describes some activities with particularity; all the activity so described centers on the solicitation of workers’ compensation claims. We have held that the application of the solicitation statute to workers’ compensation will be prospective only. To the extent, if at all, the indictment concerns the solicitation of non-workers’ compensation personal injury claims it also fails to give any indication of the nature of the activities the grand jury found probable cause to believe occurred. Woll’s indictment should therefore also be dismissed, again without prejudice to reindictment for the solicitation of non-workers’ compensation personal injury claims.
E
Woll sought a declaratory judgment and the Attorney General counterclaimed seeking a limiting construction of the statute. The parties limited their argument to the issue of facial invalidity, and did not address the question of how the statute should properly be read should that argument fail.
At this time we can provide only a partial limiting construction. Because of Bates, we hold that the solicitation statute does not apply to truthful advertising by a lawyer.
The United States Supreme Court held in Ohralik that in-person solicitation for pecuniary gain could be prohibited as a prophylactic measure in circumstances in which there is a risk of overreaching, undue influence, or other evils.
The implication of the Court’s holding is that such solicitation cannot be punished unless it occurs in circumstances presenting such risks. The task, then, is to define what circumstances can be said to present risks of the evils that the state may legitimately attempt to avoid.
We have previously determined that the prophylactic measure cannot be so broad as to prohibit all lawyer solicitation for remuneration. In State Bar Grievance Administrator v Jaques (On Remand), Jaques did not directly approach potential clients; instead, he was found to have asked a union official to recommend his services to others. We held that the disciplinary rule could not reach such conduct because in that situation there was no significant danger of overreaching.
Ohralik still might be read as allowing a prohibition of all communications with potential clients by the lawyer or someone acting solely for him, but even this may be too broad a proscription. Consider, for example, a runner who distributes business cards. One might say that Ohralik protects such conduct because the potential client has an opportunity to reflect before calling the lawyer. On the other hand, there is a risk of overreaching and undue influence — untrue representations might be made by the runner. The risk that some runners might make untrue representations might be thought to justify a ban on the distribution of business cards as a prophylactic measure.
The determination of the allowable scope of state regulation in light of Ohralik should not be made without benefit of briefing and argument.
We
—dismiss the indictments against Posner and Keane without prejudice to reindictment, and
—remand Woll’s cause to the Court of Appeals with the direction that it modify the judgment of the circuit court consistent with this opinion and for briefing and argument on the proper limiting construction of the solicitation statute. Posner, and Keane, the State Bar and other appropriate interested persons shall be allowed to file briefs amicus curiae in the Court of Appeals.
No costs, a public question.
Coleman, C.J., and Kavanagh, Williams, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Levin, J.
"A person, firm, copartnership, association or organization of any kind, either incorporated or unincorporated, or any of the officers, agents, servants, employees, or members of any such person,- firm, copartnership, association or organization of any kind, either incorporated or unincorporated, or of any division, bureau or committee of that association or organization, either incorporated or unincorporated, who shall directly or indirectly, individually or by agent, servant, employee, or member, solicit a person injured as the result of an accident, his administrator, executor, heirs or assigns, his guard ian, or members of the family of the injured person for the purpose of representing that person in making a claim for damages or prosecuting an action or causes of action arising out of a personal injury claim against any other person, firm or corporation, or to employ counsel for the purpose of that solicitation, is guilty of a misdemeanor, and shall upon conviction thereof, if a natural person, be punished by a fine not to exceed $500.00, or by imprisonment for a term not to exceed 6 months, or both. The same penalties shall apply upon conviction to a member of a copartnership, or an officer or agent of a corporation, association or other organization, or an officer or agent, who shall consent to, participate in, or aid or abet a violation of this section upon the part of the copartnership of which he is a member, or of the corporation, association or organization of which he is such an officer or agent. A contract entered into as a result of such solicitation is void. This subsection shall not affect an unsolicited contract entered into by a person, firm, or corporation with an attorney duly admitted to practice law in this state.” MCL 750.410(1); MSA 28.642(1).
The foregoing reflects amendments made by 1975 PA 125 which appear to be stylistic and not substantive. Posner and Keane were indicted for violation of, and Woll’s complaint speaks to, the statute as it read before the 1975 amendments.
People v Posner, 79 Mich App 63; 261 NW2d 209 (1977).
"That an actual controversy exists between the plaintiff and the defendants herein in that any attorney in the State of Michigan who is involved in the representation of clients in personal injury actions and workers’] compensation cases, as the plaintiff is, would be liable for prosecution under the solicitation statute, irrespective of how scrupulously the attorney would attempt to conform his conduct to the said statute, in that the statute is so vague, overbroad, and infringes upon protected areas of freedom of speech and expression to the extent that it makes it virtually impossible for a person of reasonable and ordinary intelligence to conform his conduct to the statute as is more fully described * * * infra.”
"That an additional actual controversy exists between plaintiff and defendants by reason of the fact that within the last several weeks, there has been, and continues to be, an ongoing inquiry by a certain state law enforcement body, the existence, nature and areas of activities of which are well known to the defendants herein beyond peradventure, involving plaintiff, which matters are presumptively protected by the secrecy provisions of the Michigan Code of Criminal Procedure, namely, MCL 767.4a; MSA 28.944(1), so that plaintiff will refrain from detailing the nature of such activities in this complaint, but will, of course, disclose the scope thereof, insofar as known to him, to the court in camera should defendants deny the existence of an actual controversy in their answers to this complaint.”
"That assuming arguendo that plaintiff has standing and this court has jurisdiction, this honorable court is respectfully urged to construe the solicitation statute in a manner consistent with both the constitutions of the United States and the State of Michigan, that the solicitation statute may not be applied to impinge upon protected areas of free speech and expression, but may be applied to prohibit the solicitation of persons injured for the purpose of representing such person in making a claim for damages or prosecuting any action or causes of action arising out of any personal injury claim.”
Woll v Attorney General, 80 Mich App 721, 733; 265 NW2d 23 (1978).
Id., p 736.
The circuit judge in Woll declared that the statute only applies to solicitation of a person actually injured. We reject that construction as we are persuaded that the Legislature sought to proscribe the solicitation of the groundless as well as meritorious personal injury claim.
MCL 418.101 et seq.; MSA 17.237(101) et seq.
State Highway Comm’r v Detroit City Controller, 331 Mich 337; 49 NW2d 318 (1951).
People v Goulding, 275 Mich 353; 266 NW 378 (1936).
Hightower v Detroit Edison Co, 262 Mich 1, 7; 247 NW 97; 86 ALR 509 (1933). Similarly, see People v Hall, 391 Mich 175, 189-190; 215 NW2d 166 (1974).
1912 (1st Ex Sess) PA 10.
Adams v Acme White Lead & Color Works, 182 Mich 157; 148 NW 485 (1914).
1925 PA 280.
The workers’ compensation statute provides that compensation shall be payable in respect to "[a]n employee, who receives a personal injury arising out of and in the course of his employment * * MCL 418.301(1); MSA 17.237(301X1) (emphasis supplied).
MCL 418.858; MSA 17.237(858).
gcr 1963, 928.
People v Dempster, 396 Mich 700; 242 NW2d 381 (1976); People v Neumayer, 405 Mich 341, 368; 275 NW2d 230 (1979); People v Bloss (On Remand), 394 Mich 79, 81; 228 NW2d 384 (1975).
US Const, Am XIV; Const 1963, art 1, § 2.
" 'When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations. * * * Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest.’ ” Friedman v Rogers, 440 US 1, 17; 99 S Ct 887; 59 L Ed 2d 100 (1979), quoting New Orleans v Dukes, 427 US 297, 303; 96 S Ct 2513; 49 L Ed 2d 511 (1976).
Under this test, the classification must be necessary to further a compelling state interest. See Note, Developments in the Law: Equal Protection, 82 Harv L Rev 1065 (1969).
Such an argument would surely fail. Oklahoma’s "Hatch Act”, prohibiting state employees from engaging in partisan political activity, was challenged in Broadrick v Oklahoma, 413 US 601, 607, fn 5; 93 S Ct 2908; 37 L Ed 2d 830 (1973), on the equal protection ground that the prohibition applied only to classified state employees. The Court dismissed the challenge in a footnote, saying "the legislature must have some leeway in determining which of its employment positions require restrictions”. A standard of "some leeway” is hardly "strict scrutiny”.
Police Dep’t of Chicago v Mosley, 408 US 92, 95; 92 S Ct 2286; 33 L Ed 2d 212 (1972).
Mosley sought to enjoin enforcement of an ordinance that prohibited picketing within 150 feet of any school while it is in session, but exempted "peaceful picketing of any school involved in a labor dispute”. The Court noted that "[t]he central problem with Chicago’s ordinance is that it describes permissible picketing in terms of its subject matter”, id., p 95, and held that:
"[Selective exclusions from a public forum must be carefully scrutinized. Because picketing plainly involves expressive conduct within the protection of the First Amendment * * * discriminations among pickets must be tailored to serve a substantial governmental interest.” Id., pp 98-99.
One might even read Mosley as announcing a per se rule of invalidity: "The regulation 'thus slip[s] from the neutrality of time, place, and circumstance into a concern about content.’ This is never permitted.” Id. It has not, however, been so read.
In Young v American Mini Theatres, 427 US 50, 65-66; 96 S Ct 2440; 49 L Ed 2d 310 (1976), reh den 429 US 873; 97 S Ct 191; 50 L Ed 2d 155 (1976), the United States Supreme Court upheld a Detroit ordinance regulating the location of movie theaters based on the content of the films displayed at the theaters. Justice Stevens, speaking for a plurality of the Court, made the following observations regarding the Mosley decision:
"This statement, and others to the same effect, read literally and without regard for the facts- of the case in which it was made, would absolutely preclude any regulation of expressive activity predicated in whole or in part on the content of the communication. But we learned long ago that broad statements of principle, no matter how correct in the context in which they are made, are sometimes qualified by contrary decisions before the absolute limit of the stated principle is reached. When we review this Court’s actual adjudications in the First Amendment area, we find this to have been the case with the stated principle that there may be no restriction whatever on expressive activity because of its content.”
Justice Powell, the fifth member of the Court majority, did not join that section of Justice Stevens’ opinion. In his concurring opinion, though, he also found that Mosley did not control:
"Respondents would have us mechanically apply the doctrines developed in other contexts. But this situation is not analogous to cases involving expression in public forums or to those involving individual expression or, indeed, to any other prior case. The unique situation presented by this ordinance calls, as cases in this area so often do, for a careful inquiry into the competing concerns of the State and the interests protected by the guarantee of free expression.” Id., p 76 (emphasis supplied).
Mosley, supra, pp 95-96.
National Ass’n for the Advancement of Colored People v Button, 371 US 415; 83 S Ct 328; 9 L Ed 2d 405 (1963).
Brotherhood of Railroad Trainmen v Virginia State Bar, 377 US 1; 84 S Ct 1113; 12 L Ed 2d 89 (1964).
United Mine Workers of America v Illinois State Bar Ass’n, 389 US 217; 88 S Ct 353; 19 L Ed 2d 426 (1967).
United Transportation Union v State Bar of Michigan, 401 US 576; 91 S Ct 1076; 28 L Ed 2d 339 (1971).
Virginia State Board of Pharmacy v Virginia Citizens Consumer Council, 425 US 748, 761; 96 S Ct 1817; 48 L Ed 2d 346 (1976).
"Because of the special character of commercial speech and the relative novelty of First Amendment protection for such speech, we act with caution in confronting First Amendment challenges to economic legislation that serves legitimate regulatory interests. Our decisions dealing with more traditional First Amendment problems do not extend automatically to this as yet uncharted area. See, e.g. [Ohralik v Ohio State Bar Ass’n, 436 US 447, 462, fn 20; 98 S Ct 1912; 56 L Ed 2d 444 (1978)] (overbreadth analysis not applicable to commercial speech). When dealing with restrictions on commercial speech we frame our decisions narrowly, 'allowing modes of regulation [of commercial speech] that might be impermissible in the realm of noncommercial expression.’ ” Friedman v Rogers, fn 21 supra, p 11, fn 9.
"|T]n-person solicitation of professional employment by a lawyer does not stand on a par with truthful advertising about the availability and terms of routine legal services, let alone with forms of speech more traditionally within the concern of the First Amendment.” Ohralik v Ohio State Bar Ass’n, 436 US 447, 455; 98 S Ct 1912; 56 L Ed 2d 444 (1978), reh den 439 US 883; 99 S Ct 226; 58 L Ed 2d 198 (1978).
See discussion of Young v American Mini Theatres, fn 25 supra.
Ohralik, supra.
Friedman v Rogers, fn 21 supra, p 17.
"The state interests implicated in this case are particularly strong. In addition to its general interest in protecting consumers and regulating commercial transactions, the State bears a special responsibility for maintaining standards among members of the licensed professions.
"[A]ppellant has conceded that the State has a legitimate and indeed 'compelling’ interest in preventing those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of 'vexatious conduct.’ * * * We agree that protection of the public from these aspects of solicitation is a legitimate and important state interest.” Ohralik v Ohio State Bar Ass’n, supra, pp 460, 462.
Id., p 462.
Id., pp 457-458.
"A lawyer who engages in personal solicitation of clients may be inclined to subordinate the best interests of the client to his own pecuniary interests. Even if unintentionally, the lawyer’s ability to evaluate the legal merit of his client’s claims may falter when the conclusion will affect the lawyer’s income. A valid claim might be settled too quickly, or a claim with little merit pursued beyond the point of reason. These lapses of judgment can occur in any legal representation, but we cannot say that the pecuniary motivation of the lawyer who solicits a particular representation does not create special problems of conflict of interest.” Id., p 461, fn 19.
In Hightower v Detroit Edison Co, 262 Mich 1; 247 NW 97 (1933), we observed that one of the evils associated with ambulance chasing was:
"[Djefrauding of injured persons having proper causes of action, but ignorant of legal rights and court procedure, by means of contracts which retain exorbitant percentages of recovery and illegal charges for court costs and expenses and by settlements made for quick return of fees and against the just rights of the injured persons.”
See also Ohralik, supra, p 461.
Kelley v Judge of Recorder’s Court of Detroit, 239 Mich 204, 213; 214 NW 316; 53 ALR 273 (1927).
MCL 600.919(2); MSA 27A.919(2).
Grayned v Rockford, 408 US 104, 108-109; 92 S Ct 2294; 33 L Ed 2d 222 (1972).
United Transportation Union v State Bar of Michigan, 401 US 576; 91 S Ct 1076; 28 L Ed 2d 339 (1971), where the United States Supreme Court invalidated an injunction based on the solicitation statute because of the union members’ First Amendment right to help and advise each other in securing effective legal representation.
It is argued that the UTU decision was a declaration of the statute’s total invalidity. We read UTU as proscribing only the unconstitutional application of the statute. The Court did not specifically consider the constitutionality of the solicitation statute.
Brotherhood of Railroad Trainmen v Virginia, fn 28 supra; United Mine Workers of America v Illinois State Bar Ass’n, fn 29 supra.
In re Primus, 436 US 412; 98 S Ct 1893; 56 L Ed 2d 417 (1978).
Bates v State Bar of Arizona, 433 US 350; 97 S Ct 2691; 53 L Ed 2d 810 (1977).
Ohralik v Ohio State Bar Ass’n, 436 US 447; 98 S Ct 1912; 56 L Ed 2d 444 (1978).
Broadrick v Oklahoma, fn 23 supra, pp 610-612.
The Court declared that this exception to the general principle that "a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court” and that "constitutional rights are personal and may not be asserted vicariously”, was "carved out in the area of the First Amendment” in recognition "that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society”.
Bates v State Bar of Arizona, supra, p 381.
The Court added that an advertiser disseminating information about a product or service that he provides presumably "can determine more readily them others whether his speech is truthful and protected”.
Ohralik v Ohio State Bar Ass’n, supra, p 462, fn 20.
The Court explained that as the unprotected behavior "moves from 'pure speech’ toward conduct and that conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct”, the function of the overbreadth doctrine "attenuates”. The uncertain prediction that the broadly worded statute "may deter protected speech to some unknown extent” must at some point, said the Court, give way to the state’s interest in “enforcing the statute against conduct that is admittedly within its power to proscribe.” (Emphasis supplied.)
Erznoznik v Jacksonville, 422 US 205, 216; 95 S Ct 2268; 45 L Ed 2d 125 (1975).
Young v American Mini Theatres, supra, pp 60, 61.
For the reasons stated in the accompanying text and because "the limited amount of uncertainty in the ordinances is easily susceptible of a narrowing construction” the Court said "we think this is an inappropriate case in which to adjudicate the hypothetical claims of persons not before the Court”. Finally, the Court declared that an "exhibitor’s doubts as to whether a borderline film may be shown in his theater, as well as in theaters licensed for adult presentations, [did not involve] the kind of threat to the free market in ideas and expression that justifies the exceptional approach to constitutional adjudication recognized” in some of its earlier cases.
United Transportation Union v State Bar of Michigan, fn 45 supra, p 585.
Broadrick v Oklahoma, supra, p 613.
People v Bricker, 389 Mich 524; 208 NW2d 172 (1973).
MCL 750.14; MSA 28.204.
Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973); Doe v Bolton, 410 US 179; 93 S Ct 739; 35 L Ed 2d 201 (1973).
People v Bricker, supra, pp 529-530.
Cf. People v Neumeyer, 405 Mich 341; 275 NW2d 230 (1979). The issue that divided the Court in that case is not present here. The Court’s power, in a proper case, to save a statute by construction was not questioned by the dissenting Justices.
For this reason we cannot fault the Legislature for having set a "too large” net. The statute in United States v Reese, 92 US 214; 23 L Ed 563 (1875), was void ab initio.
The suggestion that Reese applies whenever the construction can be accomplished only by "adding words” to the statute is simplistic. Bricker "added words” to the statute. See, also, United States v Harriss, 347 US 612; 74 S Ct 808; 98 L Ed 989 (1954) (adding qualification that statute, requiring registration of expenditures for the purpose of influencing the passage or defeat of any legislation, applied only to direct communication with congressmen); United States v Congress of Industrial Organizations, 335 US 106; 68 S Ct 1349; 92 L Ed 1849 (1948) (statute prohibiting union from making any expenditure in connection with an election held inapplicable to money spent publishing union house organ that contained political endorsements). In Winters v New York, 333 US 507, 514; 68 S Ct 665; 92 L Ed 840 (1948), the New York Court of Appeals had construed a state statute punishing possession of written material devoted to criminal deeds and stories of lust and bloodshed as applicable only to the massing of such stories in such a way as to incite the reader to crimes against the person. The United States Supreme Court held that “[t]he interpretation by the Court of Appeals puts these words in the statute as definitely as if it had been so amended by the legislature.” (Emphasis supplied.) The situation in Marchetti v United States, 390 US 39, 59-60; 88 S Ct 697; 19 L Ed 2d 889 (1968), was altogether different:
"[T]he imposition of use-restrictions would directly preclude effectuation of a significant element of Congress’ purposes in adopting the wagering taxes. Moreover, the imposition of such restrictions would necessarily oblige state prosecuting authorities to establish in each case that their evidence was untainted by any connection with information obtained as a consequence of the wagering taxes; the federal requirements would thus be protected only at the cost of hampering, perhaps seriously, enforcement of state prohibitions against gambling. We cannot know how Congress would assess the competing demands of the federal treasury and of state gambling prohibitions; we are however, entirely certain that the Constitution has entrusted to Congress, and not to this Court, the task of striking an appropriate balance among such values. We therefore must decide that it would be improper for the Court to impose restrictions of the kind urged by the United States.” (Emphasis supplied.)
The Supreme Court observed in In re Primus, fn 47 supra, p 438, fn 32, that "[n]ormally the purpose or motive of the speaker is not central to First Amendment protection, but it does bear on the distinction between conduct that is 'an associational aspect of "expression” ’ * * * and other activity subject to plenary regulation by government. * * * In Ohralik v State Bar Ass’n, [supra], the lawyer was not engaged in associational activity for the advancement of beliefs and ideas; his purpose was the advancement of his own commercial interests. The line, based in part on the motive of the speaker and the character of the expressive activity, will not always be easy to draw, * * * but that is no reason for avoiding the undertaking.” (Citations omitted.)
The limitation announced in the text is based on our reading of the decisions of the United States Supreme Court and is designed to remove from the prohibition of the statute those activities protected by the Button through Primus line of cases.
If the bringing of the lawsuit which is the object of the solicitation is, for the lawyer or his organization, a form of political expression, then the primary purpose of the solicitation is not the advancement of the lawyer’s pecuniary interest, so the statute would not apply to it.
Similarly, where an association operates a bona Bde legal assistance or referral program, the resulting solicitations sure done to advance the First Amendment associational interests of that association or its members, and therefore are not done primarily to advance a lawyer’s pecuniary interests; the attorney who participates in a bona Bde program of this sort shares in the association’s First Amendment protection even if he personally participates solely for his own pecuniary gain.
Even if the unifying purpose of an organization is ultimately the advancement of its members’ pecuniary interests, the legal programs it sponsors may still be beyond the reach of the statute. See, e.g., International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v National Right to Work Legal Defense & Educational Foundation, Inc, 192 US App DC 23; 590 F2d 1139 (1978) (Right to Work Foundation, which sponsors litigation by union members against unions that represent Foundation contributor’s employees may still be a bona Bde independent legal aid organization). The statute would apply, however, to an association that " 'is a mere sham to cover what is actually nothing more than an attempt’ * * * by a group of attorneys to evade a valid state rule against solicitation for pecuniary gain”. In re Primus, supra, p 428, fn 20 (citations omitted).
Union members have a First Amendment right to work for their mutual aid and protection, and because of this the activities of a union official acting as a liaison between union members and attor neys chosen by the union are not within the scope of the statute even if the official is remunerated for services so performed. United Transportation Union, fn 45 supra. But the activities of all those who can point to affiliation with a labor union are not necessarily beyond the statute’s reach: where the official’s pecuniary involvement so overwhelms his role as union representative that he properly can be termed an agent solely of the attorney and not of the union, claims based on First Amendment associational rights might be dismissed as pretext.
The trial court properly rejected the claim that the statute is so poorly drafted that it is utterly incomprehensible to a man of reasonable intelligence.
See fn 60, supra.
In People v Howell, 396 Mich 16, 24-29; 238 NW2d 148 (1976), we affirmed a conviction for acts antedating construction of a previously vague statute. Defendants in Howell also could not allege that the vagueness resulted in lack of adequate notice.
People v Dempster, 396 Mich 700; 242 NW2d 381 (1976).
MCL 451.501 et seq.; MSA 19.776(101) et seq.
People v Dempster, supra, p 715.
See, also, Winters v New York, fn 62 supra, pp 514-515: "We assume that the defendant, at the time he acted, was chargeable with knowledge of the scope of subsequent interpretation.”
The United States Supreme Court has indicated that where a limiting construction is placed on a statute to eliminate overbreadth the statute may be applied retrospectively to conduct occurring before the limiting construction was added. See Dombrowski v Pfister, 380 US 479, 491, fn 7; 85 S Ct 1116; 14 L Ed 2d 22 (1965); United States v Thirty-Seven Photographs, 402 US 363, 375, fn 3; 91 S Ct 1400; 28 L Ed 2d 822 (1971).
It is a separate question whether a statute may be applied retroactively when it fails to give fair notice of its proscription and still another question whether it can be so applied where a limiting construction is added, not to cure overbreadth, but to eliminate indefiniteness.
See fn 44, supra, and accompanying text.
Shuttlesworth v Birmingham, 382 US 87; 86 S Ct 211; 15 L Ed 2d 176 (1965).
"Literally read, therefore, the second part of this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration. It 'does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat.’ Cox v Louisiana, 379 US 536, 579 [85 S Ct 453; 13 L Ed 2d 471 (1965)] (separate opinion of Mr. Justice Black). Instinct with its ever-present potential for- arbitrarily suppressing First Amendment liberties, that kind of law bears the hallmark of a police state.” Shuttlesworth v Birmingham, supra, pp 90-91.
Id., p 92.
Ashton v Kentucky, 384 US 195; 86 S Ct 1407; 16 L Ed 2d 469 (1966).
Id., p 198.
"In any case the shifting theories underlying the charge, the conviction, and the decision on appeal, leave considerable doubt as to the precise nature of Royal’s offense and of the proof and legal arguments that might have been able to establish innocence." Royal v Superior Court of New Hampshire, Rockingham County, 531 F2d 1084, 1087 (CA 1, 1976), cert den 429 US 867; 97 S Ct 178; 50 L Ed 2d 147 (1976) (emphasis supplied).
Cf. United States v Conlon, 481 F Supp 654 (D DC, 1979) (giving statute narrow construction and dismissing indictment without prejudice to reindictment). Cf., also, Royal, supra, p 1088: "And while the danger to others might be cured by a narrowing construction on appeal, the unfairness of Royal’s standardless arrest, prosecution and trial could not.” (Emphasis supplied.) The Ashton rationale is thus not limited to the trier’s findings of fact.
This is not to say that a conviction under a statute whose vagueness is subsequently cured on appeal can never stand. In People v Howell, fn 66 supra, defendant Helzer was convicted of gross indecency. We held that an "act of gross indecency” was unconstitutionally vague in that it gave the trier of fact excessive discretion to determine whether a crime was committed. Prior decisions affirming convictions under the statute for acts identical to those with which defendants were charged provided defendants with fair notice that their conduct was proscribed. We therefore construed the term as prohibiting only certain specific acts. Helzer’s conviction was nonetheless affirmed because we were able to say with certainty that the jury convicted Helzer for committing one of the specifically proscribed acts.
The United States Supreme Court could not be so assured in Shuttlesworth v Birmingham, supra, p 92:
"Upon the evidence before him, the trial judge as finder of the facts might easily have determined that the petitioner had created an obstruction, but had subsequently moved on. The court might alternatively have found that the petitioner himself had created no obstruction, but had simply disobeyed Patrolman Byars’ instruction to move on. In either circumstance the literal terms of the ordinance would apply; in neither circumstance would the ordinance be applicable as now construed by the Alabama Court of Appeals.”
Although the offending publication was part of the record in Ashton v Kentucky, supra, there was no assurance that the jury found it to be defamatory rather than merely likely to cause a breach of peace. Cf. Thompson v Gaffney, 540 F2d 251 (CA 6, 1976), cert den 429 US 1078; 97 S Ct 823; 50 L Ed 2d 798 (1977), reh den 430 US 960; 97 S Ct 1611; 51 L Ed 2d 811 (1977) (saving construction of disorderly conduct ordinance came three years after conviction; habeas corpus denied because trial transcript was not before court, so presumption of regularity prevented finding that trial judge improperly charged jury).
State Bar Grievance Administrator v Jaques (On Remand), 407 Mich 26; 281 NW2d 469 (1979).
See Comment, Attorney Solicitation: The Scope of State Regulation After Primus and Ohralik, 12 U Mich J L Reform 144, 165-166 (1978). | [
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Blair Moody, Jr., J.
On June 27, 1976, Virginia Marie Kania was found dead of multiple stab wounds. The evidence indicated that the victim was babysitting at the home of Julie Fields. The defendant, Lee Arthur McDonald, and others were attending a party there. Some evidence existed that alcohol and narcotics were consumed by the persons at the party. In the early hours of the morning, most of the guests left the house to have breakfast. Defendant and the victim remained. The evidence indicated they were asleep on two different couches located in the same room.
Sometime later, the victim was discovered dead in the backyard of the Fields’ residence. It appeared she had been raped. From the condition of the interior of the house and the injuries sustained by the victim, it was apparent that a violent struggle had occurred. Over an hour later, defendant was found unconscious in a field. He had blood stains on his clothing and bite marks on his left hand. During an interview at the police station, defendant made an incriminating statement. This statement was admitted into evidence at trial following a Walker hearing. Defendant McDonald was prosecuted for murdering the victim during the perpetration or attempted perpetration of a rape. He was found guilty of first-degree murder but mentally ill by a Wayne County jury. MCL 768.36, 750.316; MSA 28.1059, 28.548. He was sentenced to life imprisonment. On appeal to the Court of Appeals, his conviction was affirmed. 86 Mich App 5; 272 NW2d 179 (1978). We granted defendant’s application for leave to appeal. 406 Mich 1009 (1979).
Defendant raises several questions for our consideration. In particular, this Court directed the parties to address the issue of whether a first-degree murder conviction can be based on the commission of a murder during the perpetration or attempted perpetration of a "rape” after the recent simultaneous repeal of the carnal knowledge statute, MCL 750.520; MSA 28.788, and the enactment of the criminal sexual conduct law, MCL 750.520a et seq.; MSA 28.788(1) et seq.
Defendant argues that because the former statute punishing rape was repealed and replaced by the present statute punishing criminal sexual conduct the offense known as rape no longer exists. As a result, the crime of first-degree murder based on rape could not properly be charged in an information. We are not persuaded by this argument.
We find the Legislature intended that the repealed carnal knowledge statute define rape for purposes of the first-degree murder statute. The conduct proscribed by the former carnal knowledge statute upon which a first-degree murder conviction was based is also presently prohibited under the criminal sexual conduct act. Consequently, the Legislature did not intend to abrogate such conduct as an aggravating circumstance required for first-degree murder. Rape, as formerly defined under the carnal knowledge law, survives for purposes of prosecution under the first-degree murder statute. We find no merit to the other issues raised by the defendant. We therefore affirm the Court of Appeals.
I
The first-degree murder statute in Michigan provided the following:
"All murder * * * which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder of the first degree”. MCL 750.316; MSA 28.548. (Emphasis added.)
This statute with its inclusion of the criminal act of rape has existed in one form or another since 1837. See 1838 RS pt 4, tit 1, ch 3, § l. The crime of rape has likewise been part of Michigan statutory law since 1837. At that time, the common-law definition was adopted as the statutory standard. See id., § 15. Underlying the criminal statutes of this state is the common law. See, generally, Const 1963, art 3, §7; MCL 750.505; MSA 28.773. See also Bugbee v Fowle, 277 Mich 485, 492; 269 NW 570 (1936).
The statutory codification proscribing rape which existed immediately prior to the present criminal sexual conduct statute was enacted in 1931. See 1931 PA 328, § 520. This enactment, known as the "carnal knowledge” statute, basically recodified what had been in effect under prior law. In pertinent part this provision reads as follows:
"Any person who shall ravish and carnally know any female of the age of 16 years, or more, by force and against her will, or who shall unlawfully and carnally know and abuse any female under the full age of 16 years, shall be guilty of a felony * * *. Such carnal knowledge shall be deemed complete upon proof of any sexual penetration however slight.” MCL 750.520; MSA 28.788.
This statute continued to incorporate the common-law definition of rape — "the carnal knowledge of a woman by force and against her will”. See People v Crosswell, 13 Mich 427, 432 (1865); Moran v People, 25 Mich 356, 359 (1872). Statutory evolution raised the age of consent from 10 to 16 years. For an account of the development of this statute, see 4 Gillespie, Michigan Criminal Law & Procedure (2d ed), §§ 2175-2181.
Accordingly, at the time the first-degree murder statute was last recodified in 1931, the conduct historically known as rape was prohibited by the carnal knowledge statute. As it exists in the first-degree murder statute, we are convinced that the term "rape” was intended to encompass the course of conduct originally proscribed at common law and subsequently codified and slightly altered by various statutes through the years.
Even though the provisions of the carnal knowledge statute were replaced by the present criminal sexual conduct statute, the first-degree murder statute and its included designation of rape were in no way altered. Absent express legislative action to amend the first-degree murder statute, the definition of "rape” as the proscribed conduct used by trial judges since the last codification of felony murder in 1931 continued in force.
Defendant was not tried and convicted of rape, but of first-degree murder committed in the perpetration or attempted perpetration of rape. The new criminal sexual conduct statute, while enlarging the scope of sexual activity proscribed by its terms, continues the historic prohibition of the conduct for which defendant was prosecuted under the first-degree murder statute. MCL 750.520b, 750.520d; MSA 28.788(2), 28.788(4). We therefore cannot accept the assertion that defendant was tried for a crime not cognizable under the laws of Michigan. Conduct proscribed as “rape” is presently defined and has been defined throughout the state’s history in a form süfficient to apprise persons in defendant’s position of proscribed criminal behavior. This defendant was thus provided adequate notice of conduct for which he was subject to punishment.
We therefore do not hesitate to hold that the passage of the present criminal sexual conduct statute and repeal of the former carnal knowledge statute did not affect the concept of rape in the first-degree murder statute. The first-degree murder statute is a separate statute which punishes a course of conduct defined under its provisions.
It is to be noted that the first-degree murder statute has now been amended by the Legislature so as to conform to the new criminal sexual conduct law. See 1980 PA 28, amending MCL 750.316; MSA 28.548, effective March 7, 1980. In this case, however, which is controlled by the prior law, it was appropriate to use as the definition of rape the one previously used by trial judges. According to the elements required' under that definition, the instruction given at defendant’s trial was sufficient.
We thus conclude that no statutory charging error occurred in the prosecution of this case for murder committed during the perpetration or attempted perpetration of a rape.
II
Defendant also argues that he was denied constitutional equal protection as a male by being prosecuted for rape under the first-degree murder statute because Michigan now recognizes that women as well as men can commit conduct constituting criminal sexual conduct, but only men could be charged with first-degree murder committed in the perpetration or attempted perpetration of a rape. See US Const, Am XIV; Const 1963, art 1, §2. When reviewing an allegedly unconstitutional distinction drawn on the basis of sex, we must determine whether the classification distinguished by the statute is reasonable and rests "upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike”. Reed v Reed, 404 US 71, 76; 92 S Ct 251; 30 L Ed 2d 225 (1971), quoting from FS Royster Guano Co v Virginia, 253 US 412, 415; 40 S Ct 560; 64 L Ed 989 (1920). See also Craig v Boren, 429 US 190, 197; 97 S Ct 451; 50 L Ed 2d 397 (1976); Manistee Bank & Trust Co v McGowan, 394 Mich 655, 670-671; 232 NW2d 636 (1975).
What defendant claims here is that defining rape as it had previously been defined in the carnal knowledge statute rather than defining rape as conduct proscribed by the criminal sexual conduct act, means that instances may arise which would create a distinction based on sex. Defendant as a male may be prosecuted for murder in cases where a female committing the same act may not be prosecuted. This potential exists due to the extended reach of the present criminal sexual conduct statute. For example, a woman may now be prosecuted for criminal sexual conduct involving forced fellatio, cunnilingus, or insertion of an object or body part into the vagina of a woman or rectum of a man or woman. Such conduct could not be prosecuted as to a woman under the first-degree murder statute.
Defendant is correct in isolating this distinction. However, if the classification as drawn in the first-degree murder statute violates equal protection, then most rape laws violate equal protection. This position has been rejected in various other jurisdictions, both Federal and state. See, e.g., Moore v Cowan, 560 F2d 1298 (CA 6, 1977); State v Kelly, 111 Ariz 181; 526 P2d 720 (1974), cert den 420 US 935; 95 S Ct 1143; 43 L Ed 2d 411 (1975). Even under the Equal Rights Amendment, statutes proscribing rape by males would remain defensible because they are based on a biological fact unique to males. See Brown, Emerson, Falk & Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale U 871, 954-961 (1971). The classes drawn are physiologically different and equal treatment is thus not constitutionally required. Further, rape by males presents a significant criminal problem in our society. This is not equally true of rape by women. The Legislature was justified in isolating and applying criminal sanctions to such behavior. The classification involved rests upon differences which have a substantial relation to the important governmental object advanced by the legislation. See Craig v Boren, supra, 429 US 197; Manistee Bank & Trust Co v McGowan, supra, 671. See also State v Witt, 310 Minn 211, 215-218; 245 NW2d 612, 616-617 (1976).
Apparently, the Legislature believed the act of rape an inherently dangerous crime which justified inclusion in the statute. See People v Pavlic, 227 Mich 562; 199 NW 373 (1924); People v Carter, 387 Mich 397, 422; 197 NW2d 57 (1972). We see no arbitrary classification. Reed v Reed, supra, 404 US 76; Manistee Bank & Trust Co v McGowan, supra, 671.
Ill
As to defendant’s other claims of error, we find no reversible error in the trial court’s unobjectedto instruction that the people must prove beyond a reasonable doubt the victim’s death was "caused by an act of the defendant or that he consciously created a very high degree of risk of death for another with the knowledge that it probably would cause death”. The implication of guilt defendant perceives in the charge — that the court considered it proven that the defendant killed the deceased— is totally unfounded.
Neither do we find the unobjected-to instruction on character evidence erroneous. The instructions were mutually agreed upon by the parties before being read to the jury. No reason is shown to declare this instruction to be in error.
Finally, as to the sufficiency of the evidence presented on the elements of first-degree murder in the perpetration or attempted perpetration of rape, we are convinced that "the record evidence could reasonably support a finding of guilt beyond a reasonable doubt”. Jackson v Virginia, 443 US 307, 318; 99 S Ct 2781; 61 L Ed 2d 560 (1979). Defendant and the victim were last seen together, sleeping on separate couches in the same room of Julie Fields’ Romulus residence. The victim was found dead shortly afterward with multiple lacerations, stab wounds and a badly fractured skull. Two abrasions were discovered on the victim’s labia minora, which testimony indicated was consistent with forced penetration of the vagina. A tremendous struggle was demonstrated by the condition of the room where the two were last seen. The victim’s 10-year-old brother had heard an angry voice shouting obscenities and another voice crying. Defendant was found unconscious in a field an hour and a half after the murder was discovered with blood, on his clothing and bite marks on his left hand. Defendant’s fingerprint was lifted from a broken plastic leg of a piece of furniture found in a room in the Field’s residence. During interrogation, defendant admitted involvement in the murder. We thus find that, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”. Jackson v Virginia, supra.
Consequently, having considered defendant’s various allegations of error and finding a sound basis for the jury’s conviction, we affirm the decision of the Court of Appeals.
Coleman, C.J., and Kavanagh, Williams, Fitzgerald, Ryan, and Levin, JJ., concurred with Blair Moody, Jr., J.
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
This provision read as follows:
"All murder which shall be perpetrated by means of poison or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree, and shall be punished by death; and all other kinds of murder shall be deemed murder of the second degree, and shall be punished by confinement in the penitentiary for life, or any term of years, at the discretion of the court trying the same.” (Emphasis added.)
This provision read as follows:
"If any person shall ravish and carnally know any female, of the age of ten years or more, by force and against her will, or shall unlawfully and carnally know and abuse any female child under the age of ten years, he shall be punished by imprisonment in the state prison for life.”
This section of article 3 reads as follows:
"The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.”
This statute provides for prosecution of common-law crimes as follows:
"Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court.”
Although an initial proposal relative to criminal sexual conduct legislation, recommended revision of other existing statutes, including the first-degree murder statute, MCL 750.316; MSA 28.548, none of the preliminary or final drafts contained language regarding such revision. Senate Bill No. 1207 of 1974; 2 Michigan Senate J (1974) 963-965; 1974 PA 266. It might thus be concluded that when the criminal sexual conduct statute was enacted the Legislature did not intend to repeal or affect the existing use of the carnal knowledge statute to define rape in the first-degree murder statute.
These provisions read as follows:
"Sec. 520b. (1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:
"(a) That other person is under 13 years of age.
"(b) The other person is at least 13 but less than 16 years of age and the actor is a member of the same household as the victim, the actor is related to the victim by blood or aflmity to the fourth degree to the victim, or the actor is in a position of authority over the victim and used this authority to coerce the victim to submit.
"(c) Sexual penetration occurs under circumstances involving the commission of any other felony.
"(d) The actor is aided or abetted by 1 or more other persons and either of the following circumstances exists:
"(i) The actor knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless.
"(ii) The actor uses force or coercion to accomplish the sexual penetration. Force or coercion includes but is not limited to any of the circumstances listed in subdivision (f)(i) to (v).
"(e) The actor is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon.
"(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. Force or coercion includes but is not limited to any of the following circumstances:
"(i) When the actor overcomes the victim through the actual application of physical force or physical violence.
"(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.
"(iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, 'to -retaliate’ includes threats of physical punishment, kidnapping, or extortion.
"(iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes which are medically recognized as unethical or unacceptable.
''(v) When the actor, through concealment or by the element of surprise, is able to overcome the victim.
''(g) The actor causes personal injury to the victim, and the actor knows or has reason to know that the victim is mentally defective, mentally incapacitated, or physically helpless.
"(2) Criminal sexual conduct in the first degree is a felony punishable by imprisonment in the state prison for life or for any term of years.”
"Sec. 520d. (1) A person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exists:
"(a) That other person is at least 13 years of age and under 16 years of age.
"(b) Force or coercion is used to accomplish the sexual penetration. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(l)(f)(i) to (v).
"(c) The actor knows or has reason to know that the victim is mentally defective, mentally incapacitated, or physically helpless.
"(2) Criminal sexual conduct in the third degree is a felony punishable by imprisonment for not more than 15 years.”
As presently constituted the first-degree murder statute reads as follows:
"Murder which is perpetrated by means of poison, lying in wait, or wilful, deliberate, and premeditated killing, or which is committed in the perpetration, or attempt to perpetrate arson, criminal sexual conduct in the first or third degree, robbery, breaking and entering of a dwelling, larceny of any kind, extortion, or kidnapping, is murder of the first degree, and shall be punished by imprisonment for life.”
The trial court gave the following jury instruction relative to rape:
"Now for the crime of rape, the prosecution must prove each of the following elements beyond a reasonable doubt.
"Now as used in this case, a male person perpetrates a rape if he engages in sexual penetration with a female person under circumstances in which force or coercion is used to accomplish the sexual penetration.
"As used in this case, sexual penetration means any intrusion however slight of a male penis into the genital opening of a female’s body but emission of semen is not required.
"The term force and coercion means the actual ^physical force by the defendant or any action sufficient to create a reasonable fear of dangerous consequences.”
The trial court instructed the jury in part as follows:
"Now the law recognizes that a person of good character is not likely to commit a crime which is contrary to his nature. Evidence of good character may by itself create a reasonable doubt and justify a verdict of not guilty.
"However, if the evidence of good character along with all the other evidence in the case creates a reasonable doubt of the defendant’s guilt, then you must find him not guilty.” | [
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] |
On Rehearing.
Clark, C. J.
Rehearing granted in Thomas v. Morton Salt Co., 253 Mich. 613, involved rehearing in this case, 254 Mich. 179. The Thomas Case, having been affirmed again, ante, 231, this case must have like result.
We are now asked to set aside the award as inadequate. This point was not raised on certiorari, nor urged before decision, and may not be considered now. Booker v. Grand Rapids Medical College, 156 Mich. 95 (24 L. R. A. [N. S.] 447).
Affirmed.
McDonald, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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North, J.
Plaintiffs Albert Eugene Sheahan and Agnes Sheahan, husband and wife, are owners of the fee in a farm containing substantially 100 acres located in Vernon township, Isabella county, Michigan. The plaintiffs James A. Sheahan and Mary A. Sheahan, husband and wife, have a life estate in this property. The plaintiffs, other than Mr. and Mrs. James A. Sheahan, have a two-thirds interest in the oil and gas on this property and in the royalties received therefrom. On the 2d day of July, 1928, the plaintiffs James A. Sheahan and Mary A. Sheahan signed a lease to the Athens Gas Corporation for the purpose of mining and operating for oil and gas on this property, laying pipe lines, and granting to the lessee certain other rights incident thereto. A second lease between these parties of substantially the same purport 'was dated July 2, 1928, but acknowledged May 9, 1929. On the 16th day of May, 1929, the Athens Gas Corporation assigned its interest as lessee to the Dixie Oil Company, a Louisiana corporation licensed in Michigan. By their bills of complaint plaintiffs seek cancellation of the lease. They allege that it was obtained through misrepresentation, fraud, and duress, and further, that at the time of its. execution the Athens Gas Corporation was a foreign corporation unlawfully doing business in Michigan in that it had not been licensed in said State, and plaintiffs claim that in consequence thereof the lease in suit is void under the statute (2 Comp. Laws 1929, § 10120).
The Athens Gas Corporation filed its application for permission to do business in this State March 16, 1929; but the certificate of authority so to do was not issued until May 16, 1929. In behalf of the defendants, it is claimed that the Athens Gas Corporation at the time of the consummation of this lease was not doing business in Michigan; that in any. event since it had already made an application which was subsequently granted it should not be held that the lease in question was taken in violation of the statute (2 Comp. Laws 1929, § 10120); that plaintiffs, in accepting rentals under the lease after it was assigned to the Dixie Oil Company and for other reasons, have estopped themselves from denying its validity in the hands of this company as assignee; and further, that it would be inequitable under the circumstances of this case to grant plaintiffs the relief sought.
Plaintiffs’ claim that the lease was procured through misrepresentation, fraud, and duress seems to have been abandoned. At least it is not urged in this court. The trial judge dismissed plaintiffs ’ bill of complaint, holding (1) it was not proven that the Athens Gas Corporation was doing business unlawfully in the State of Michigan at the time of entering into the lease, and (2) in any event the lease was binding upon plaintiffs after its assignment to the Dixie Oil Company. Plaintiffs have appealed.
■ The testimony as to the facts and circumstances upon which plaintiffs base their claim that on and before the date of the lease the Athens Gas Corporation was doing business in Michigan without being legally authorized is in decided conflict. The defendant's claim the lease with plaintiffs and all the other leases in which the Athens Gas Corporation appeared to have an interest, with one exception, were secured by independent lease brokers, forwarded to the corporation’s home office in Pittsburg, Pennsylvania, and there purchased by it if the particular lease as submitted seemed to be desirable; and further, that the lease here in suit was executed by the lessee .at its home office in Pittsburg. However, since we find the case controlled by another phase of the. record, it is not necessary to definitely review and pass upon the circuit judge’s finding that the “Athens Gas Corporation was not, on May 9, 1929, doing business within the State of Michigan.”
The decree dismissing plaintiffs’ bill of complaint is clearly entitled to affirmance because this record discloses that the suit is entirely without equity. Plaintiffs seek cancellation. This remedy is not one of right; but rather one of grace, to be granted or withheld as the equity of the case requires. Hathaway v. Hudson, 256 Mich. 694.
“As in the case of specific performance, relief by way of cancellation lies within the sound discretion of the court, to be exercised according to what is reasonable and proper under the circumstances of each particular case. ” 4 B. C. L. p. 487.
See, also, 9 C. J. p. 1161, citing many cases, and 2 Story’s Equity Jurisprudence, § 934.
This record disclosed that, prior to instituting the suit, one Edmund E. Johnston approached these plaintiffs and numerous other landowners who had entered into oil and gas leases of like character, induced them to sign contracts with him by which he undertook to institute litigation in the names of the respective landowners and secure cancellation of the outstanding leases; and, in the event of such relief being obtained, the gas and oil rights in the lands were to be leased to Johnston. Unexecuted forms of the Johnston lease were attached to the contracts. In each of these contracts Johnston recited that the lease he proposed to defeat “was obtained from the parties by trickery, deceit and misrepresentation.” As to the Sheahan lease this recital waS wholly false. This also appears to be the situation from the records filed in this court in companion cases. (See Fetters v. Wittmer Oil & Gas Properties, ante, 310; Wild v. Pure Oil Co., post, 356; Flood v. Johnston, post, 354.) This and other suits to carry out Johnston’s scheme were instituted by. him in the names of the various lessors. In the instant case there is no showing that the lessors were in any way dissatisfied with the lease until Johnston intermeddled and fostered this litigation. After acquiring this lease, the defendant Dixie Oil Company, with the full knowledge and consent of the plaintiffs, instituted and financed litigation do clear the title to plaintiffs’ land. Further, plaintiffs accepted rentals from the Dixie Oil Company after it became the assignee of the original lessee. No offer is made to place defendants in statu, quo. Windisch v. Mortgage Security Corp., 254 Mich. 492. Johnston has had full control of the suit at bar, has paid all the expenses, and is the person who hopes to profit by its successful prosecution in equity. Indirectly Johnston is in a court of equity attempting to obtain by irregular methods leases which the Dixie Oil Company as an innocent purchaser now holds. Equity does not encourage sharp practice. The remedy here sought by way of cancellation, not being a matter of right, equity will not lend its aid or grant relief. The decree entered in the circuit court is affirmed, with costs to appellees.
Potter, Sharpe, Pead, Wiest, and Btjtzel, JJ., concurred with North, J. Clark, C. J., and McDonald, J., concurred in the result. | [
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] |
Sharpe, J.
The defendant Hutto (hereafter referred to and spoken of as the defendant) was in the employ of the Pressed Steel Auto Parts Corporation of Bryan, Ohio, in charge of experimental work for a number of years prior to 1922. This company let a contract for the construction of pistons to the Bryan Pattern & Machine Company, and at defendant’s request the plaintiff, then a resident of Detroit, went to Bryan and became superintendent of the Bryan company plant. They worked in the same factory building, and became well acquainted. There was discussion between them over the development of a tool for the grinding of pistons, and in May of that year the defendant quit his employment and rented a small shop and began experimenting on the construction of such a tool, spoken of by the witnesses as a “lapp.” Plaintiff also quit his employment at Bryan in the summer of that year, and returned to Detroit. Defendant soon after followed him, and lived in plaintiff’s home for a time. A shop in the rear of the house of plaintiff’s father was secured and some machinery furnished by plaintiff. A tool was finally developed, but did not prove satisfactory. Defendant continued with his experimental work, and early in 1923 one was produced which proved successful, and a patent for it was applied for by defendant.
On March 2,1923, the defendant had prepared and submitted to plaintiff the following:
“This day these articles of agreements entered into by and between one M. C. Hutto, first party, and Paul Henze, second party.
“That said first party is the inventor of and is the holder and owner of the following inventions: The Hutto cylinder lapp. The Hutto cylinder hone. The Hutto cylinder grinder. The Hutto crankshaft lapp. The Hutto crankshaft grinder.
‘ ‘ That in consideration of certain money advanced by said second party to said first party, and other valuable consideration, the said first party hereby agrees and does agree to give the said second party hereto twenty-five per cent, of all the net profits received by said inventions, and each and all thereof, by the said first party.
“Said profits shall be all money received by said first party, after the expenses are paid, either in the manufacturing or selling of said inventions, or in anywise in disposing of said inventions.
‘‘ Said second party agrees to help in any capacity in the manufacturing and selling of said inventions that may be best; but does not have to devote all his time until his profits reach the sum of three hundred and fifty dollars per month. ’ ’
This agreement was signed by both parties. In July of that year a meeting was held, at which plaintiff and defendant and Carl Henze, a brother of plaintiff, who had advanced some money in the enterprise, and others were present, and at which John C. Meissner, a public accountant, was also present at the request of the defendant. There was discussion concerning the organization of a corporation and the several interests the parties should have therein. A later meeting was held, at which the contract of March 2d was produced by the defendant and used by Meissner in the computations made by him as to the amount of stock to which each of the parties was entitled.
Articles of association were executed on September 28, 1923, with capital stock fixed at $25,000, divided into 250 shares of $100 each; 143 shares were allotted to the defendant, 58 to the plaintiff, 15 to plaintiff’s brother Carl, and the balance to three other persons. This division was apparently satisfactory to plaintiff, as he made affidavit attached thereto, which was filed with the secretary of State. The name assumed was “Hutto Engineering Company.” There were several increases in the capital stock, and a reorganization on October 20, 1926, under the name of “Hutto Engineering Co., Inc.,” under which both preferred and non-par stock was issued. The share allotted to plaintiff was apparently in the same proportion to that allotted to defendant as in the original articles, except that certain sales had been made by them both.
It appears that plaintiff was in the employ of the corporation as superintendent for some time, but left at the request of the defendant on August 2, 1926. The bill of complaint herein was filed on March 1, 1929. In it plaintiff alleged that in 1922, before either of them left Bryan for Detroit, an agreement was entered into between them that, in consideration of plaintiff’s assisting defendant in the development of his invention, defendant would pay to him * ‘ one-half' of all moneys, property or other things” that he should thereafter receive by reason thereof; that he rendered such assistance, boarded defendant at his home in Detroit, and expended a considerable sum of money in aid thereof; that, at the time the written agreement above quoted was entered into, defendant promised him that when the corporation was formed he would receive this 25 per cent, in stock and an additional .25 per cent, so as to make his interest therein equal to that of the defendant; that his after demands therefor were met with indifference or excuses, and that he was rightfully entitled to 30,671% shares of the non-par stock then owned by the defendant, and that defendant had made sale of a part of said stock and received therefor a sum in excess of $1,000,000. In his prayer for relief he prayed for an injunction to restrain further sales, for an accounting as to profits received, and for specific performance of the agreement under which he was to receive the stock above referred to.
An amended bill was filed by leave of the court on February 20, 1930, and after the proofs had been submitted. In it he claimed that by virtue of the agreement between him and defendant he was entitled to 40,895% shares of the non-par stock issued to defendant. There were other allegations somewhat at variance with those in the bill first filed.
The proofs were submitted in open court. The trial court, while apparently impressed with the testimony submitted by plaintiff to establish the oral contract for an equal division of the profits arising out of the invention, alluded to the written contract of March 2,1923, and the fact that plaintiff attended all of the meetings resulting in the organization of the corporation and the issue of the stock thereof “without a word or notice to any one that he claimed an interest greater than that for which his stock was issued,” and concluded that he was not entitled to relief in a court of equity. A decree was entered dismissing the bill, from which plaintiff has taken an appeal.
At the time the written contract of March 2d was entered into, plaintiff was about 45 years of age. He was at that time acting as superintendent of the Gray & Hawley Manufacturing Company, manufacturers of “mufflers and cut-outs.” Just before that time he had served in a similar capacity for a manufacturing firm at Bryan, Ohio, as before stated. If there was an oral agreement between him and the defendant under which he was to have a one-half interest in the invention, it almost passes human understanding to believe that he would have signed the written contract, plainly worded as it was, and in which it was agreed that he should receive but 25 per cent, of the net profits of the inventions. If it be conceded that these parties were at the time warm personal friends and had the utmost confidence in each other, the presentation of this written agreement to plaintiff for his signature, when there was ho reason for making one which should state other than the truth as to the interest to which he was entitled under the claimed oral contract, would naturally arouse the suspicion of any person familiar with the effect of written instruments as plaintiff then was by reason of the executive positions in corporations in which he had served.
The corporation was afterwards organized and about 25 per cent, of the interest therein to which defendant was entitled was allotted to plaintiff in shares of stock. It is difficult, indeed, to credit his testimony that he permitted this to be done at defendant’s request and in order that he might retain control of the company, without even a suggestion on his part that the stock to which he was entitled should be transferred by defendant to him and held without reissue, or at least without having some memorandum in writing to show that he was entitled thereto.
The written contract was executed on March 2, 1923. The record does not disclose that any writing in the nature of a demand, or expressive of any effort on plaintiff’s part to secure the performance of the parol agreement, passed between the parties, and the first written evidence of his claim thereunder is found in the bill of complaint filed on March 1, 1929, about six years thereafter. He was, as he felt wrongfully, discharged by defendant in August, 1926, and yet his bill of complaint was not filed for nearly three years after that time.
Plaintiff’s testimony as to the parol agreement was supported by that of other witnesses, who testified that they had heard defendant say that plaintiff was entitled to an equal share in the business. Had this testimony been submitted within a short time after the statements were said to have been made, it would be more convincing. Defendant admits that plaintiff was to have a share in the net profits of the business and that he so stated, but denies that it was to be an equal share, and the witnesses might have so understood and be honest in their statements without the word “equal” having been used. There was proof of statements by plaintiff that he was to have but a one-quarter interest therein.
In Russell v. Miller, 26 Mich. 1, 16, it was said:
“Where parties have had verbal conversations concerning property of small value, and it after-wards becomes of great value, their recollections are apt to be biased-by the rise, and a very vague'talk may become transformed into an agreement, without the interested party being conscious how far he has deceived himself. This tendency is so familiar that we can put little reliance on the acts or statements made after the value has begun to increase. * * * But the acts of the parties are stronger than their words, even when freshly reported. And throughout the case, Miller appears to have acted openly as proprietor of what was in his own name, and Russell has done the reverse, and acted as owners do not act.”
Plaintiff’s right to recover depends entirely upon the establishment of the parol agreement by a preponderance of the evidence. If it be conceded that more weight be given to the testimony of his witnesses in support thereof than to that opposed to it, we have yet to consider in its bearing thereon the written contract executed by him and the written evidence of his acceptance of its provisions and his apparent satisfaction therewith for a period of nearly six years.
In Wenzel v. Kieruj, 168 Mich. 92, 98, this court said:
“We understand the rule of law to be that prior mutual understandings of the parties aire unimportant, when they have signed a contract covering the subject-matter, since the latter includes and covers all such prior negotiations and agreements. In Rumely & Co. v. Emmons, 85 Mich. 511, 517, this court said:
“ ‘It is a well-settled rule of law that, when the parties have reduced their contract to writing, it must he presumed that the writing contains the whole of the agreement, and all parol contemporaneous agreements are merged therein.’ * * *
“The general rule is that you cannot import into a written agreement a prior parol agreement which alters the terms or legal effect of the written agreement. ’ ’
See, also, Smith v. Mathis, 174 Mich, 262, and Ogooshevitz v. Arnold, 197 Mich. 203.
The decree dismissing the hill of complaint is affirmed, with costs to appellees.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Per Curiam.
Defendant and counter-plaintiff, Auto Club Insurance Association (acia), appeals as of right from a June 13, 1986, order* of the Wayne Circuit Court granting summary disposition to plaintiffs and counter-defendants John Hofmann, D.C., and Richard Herfert, D.C., on acia’s counterclaim.
Hofmann and Herfert are chiropractors who have treated patients with health insurance through Blue Cross & Blue Shield of Michigan (bcbsm) and who are additionally entitled to no-fault insurance through acia. Hofmann and Herfert allegedly received partial payment for their services from bcbsm, billing the balance to acia. For some unspecified period of time, it was the practice of acia to pay the additional amounts claimed by Hofmann and Herfert.
On January 4, 1985, Hofmann and Herfert filed an action in circuit court seeking, inter alia, a declaratory judgment providing that certain procedures and devices commonly prescribed by Hofmann and Herfert were approved within the chiropractic practice in the State of Michigan. Acia had allegedly refused to pay chiropractors for the procedures and devices on the ground that chiropractors are unauthorized to perform those procedures or prescribe the devices.
On February 22, 1985, acia filed its counterclaim seeking, inter alia, reimbursement or restituton for payments previously made to Hofmann and Herfert on claims for payment in addition to that made by bcbsm. Acia alleged in its counterclaim that the payments made by it to Hofmann and Herfert violated both the no-fault automobile insurance act, 1972 PA 294, MCL 500.3101 et seq.; MSA 24.13101 et seq., and the chiropractors’ contracts with bcbsm as construed in Dean v ACIA, 139 Mich App 266; 362 NW2d 247 (1984), lv den 422 Mich 918 (1985).
Hofmann and Herfert subsequently moved for summary disposition on the counterclaim pursuant to MCR 2.116(C)(8). Hofmann and Herfert argued that acia was not entitled to restitution because (1) Dean should be applied prospectively only, (2) the payments were made under a mistake of law, rendering them "voluntary,” and (3) Hofmann and Herfert have changed their positions such that it would be unfair to require repayment. The circuit court granted the motion by an order dated July 15, 1986.
The sole issue on appeal is whether the trial court erred by granting summary disposition pursuant to MCR 2.116(C)(8). As we have previously held:
A motion under this subrule tests the legal sufficiency of the pleadings alone. All well pled allegations must be taken as true. The motion should be denied unless the alleged claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover. Hankins v Elro Corp, 149 Mich App 22; 386 NW2d 163 (1986). [Dzierwa v Michigan Oil Co, 152 Mich App 281, 288; 393 NW2d 610 (1986).]
In Dean, supra, 273-274, we held:
[T]he Legislature did not intend to allow participating health care providers to seek additional reimbursement from no-fault insurers over and above the bcbsm reimbursement rate. The no-fault act was as concerned with the rising cost of health care as it was with providing an efficient system of automobile insurance. And there is little doubt that the legislation governing health care corporations (bcbsm), MCL 550.1101 et seq.; MSA 24.660(101) et seq., had as its chief concern the affordability of health care. See generally the discussion in Blue Cross & Blue Shield of Michigan v Insurance Comm’r, 403 Mich 399; 270 NW2d 845 (1978). Accordingly, plaintiffs may not participate in the bcbsm health care plan and then frustrate the legislative attempt to contain health care costs by simply seeking payment on the excess from no-fault insurers.
Hofmann and Herfert have conceded that the substantive aspect of acia’s counterclaim is simply "Dean revisited.” However, the procedural aspect of the counterclaim — reimbursement for claims previously paid — was not addressed in Dean. Thus, the initial question raised in this appeal is simply whether Dean should be given "retroactive” effect to allow acia reimbursement for claims it erroneously paid prior to Dean.
As explained in King v General Motors Corp, 136 Mich App 301, 306; 356 NW2d 626 (1984), lv den 422 Mich 871 (1985):
The general rule is that decisions of Michigan appellate courts are to be given full retroactivity unless limited retroactivity is preferred where justified by (1) the purpose of the new rule, (2) the general reliance upon the old rule, and (3) the effect of full retroactive application of the new rule on the administration of justice. Tebo v Havlik, 418 Mich 350, 360-361; 343 NW2d 181 (1984); People v Longwish, 109 Mich App 15, 18-19; 310 NW2d 893 (1981), lv den 413 Mich 887 (1982). See also the late Justice Moody’s article entitled Retroactive Application of Law-Changing Decisions in Michigan, 28 Wayne L Rev 439 (1982). [Accord, Moorhouse v Ambassador Ins Co, Inc, 147 Mich App 412, 421; 383 NW2d 219 (1985).]
Here the purpose of the new rule, as explained in Dean, was to further the legislative goal of providing economical systems of health and auto insurance. That purpose can only be furthered by retroactive application of the Dean rule. Moreover, since Dean addressed an issue of first impression, there was no "old rule” upon which Hofmann and Herfert might have relied. Finally, since there was no reliance upon an overturned rule of law, we perceive of no complications or inequities which would necessarily result from full, retroactive application. Cf. Maurer v McManus, 161 Mich App 38; 409 NW2d 747 (1987). We can therefore only conclude that Dean should be given full, retroactive application.
The other arguments raised by Hofmann and Herfert merit only summary comment. Restitution may be imposed under the equitable theory of implied contract or quasi-contract to prevent the unjust enrichment of one party at the expense of another. 66 Am Jur 2d, Restitution & Implied Contracts, §§ 1-3, pp 942-946. A mistake of either law or fact will entitle a party to restitution unless it is inequitable or inexpedient for restitution to be granted. 66 Am Jur 2d, Restitution & Implied Contracts, § 13, pp 956-957. See also Schwaderer v Huron-Clinton Metropolitan Authority, 329 Mich 258, 271; 45 NW2d 279 (1951). We view the apparently contrary holding in Montgomery Ward & Co v Williams, 330 Mich 275, 285; 47 NW2d 607 (1951), as obiter dictum. A quasi-contractual obligation arises when a defendant receives a benefit from a plaintiff which is inequitable for the defendant to retain. Colonial Village Townhouse Cooperative v City of Riverview, 142 Mich App 474, 476; 370 NW2d 25 (1985), lv den 424 Mich 881 (1986). Acia pled those elements in its counterclaim. Thus, to the extent that acia’s claim is construed as one for restitution, it is not so clearly unenforceable as a matter of law that no factual development could justify a right to recovery. The circuit court therefore erred in granting summary disposition pursuant to MCR 2.116(C)(8). Dzierwa, supra. The trial court’s order of summary disposition on the counterclaim must therefore be reversed.
Reversed._
It is conceded by both parties that summary disposition would not be dispositive of Hofmann and Herfert’s claim and that claim is not addressed further in this opinion.
Since the matter has not been addressed on appeal, we have not considered the effect of any statute of limitations on acia’s counterclaim.
We are not persuaded, at this juncture, that acia’s claim is or need be one in quasi- or implied contract. | [
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Weaver, P.J.
Plaintiff appeals as of right from a Kent Circuit Court judgment of no cause of action in favor of defendant. We affirm.
FACTS
On May 20, 1982, plaintiff and his friend, the defendant herein, were preparing to leave a restaurant when plaintiff discovered that his car would not start. While plaintiff was trying to fix the car, he asked defendant to start the engine, but due to defendant’s inexperience with manual transmission vehicles, the car lurched forward and knocked plaintiff over a concrete retaining wall. Although shaken, plaintiff declined defendant’s suggestion to go to the hospital, whereupon the parties talked jovially and plaintiff drove defendant home.
However, due to pain in his shoulder and neck, two days after the accident plaintiff went to the hospital, where he was x-rayed and given a cervical collar and a prescription. A few days later plaintiff was also examined by neurosurgeon Dr. Lynn S. Hedeman, who ordered a myelogram for plaintiff’s upper and lower back. After performance of the myelogram on June 14, 1982, because blood had been seen and because plaintiff suffered a spasm and severe pain during the process of dye removal, the radiologist was forced to leave the dye in plaintiff’s spinal area.
Whereas plaintiff had experienced minor discomfort but had still been able to walk into the hospital before the myelogram was performed, he left the hospital in a wheelchair, unable to walk, and remained in this condition for approximately six months. At trial, Dr. Hedeman testified that in some people the dye could cause arachnoiditis, an inflammation of the spinal canal lining which might result in severe pain, disability, and objective damage.
Although plaintiff did not return to Dr. Hedeman after the myelogram, on Dr. Hedeman’s recommendation plaintiff was examined by Dr. Walter M. Braunohler on June 22, 1982. Dr. Braunohler’s examination revealed both arachnoiditis and deterioration of a lower back disc. Dr. Braunohler prescribed an anti-inflammatory medicine and recommended that plaintiff avoid any bending, lifting, twisting, or reaching.
The diagnosis of arachnoiditis was confirmed by another neurologist. Although plaintiff’s condition improved during the time of his further visits to Dr. Braunohler between January of 1983 and March of 1984, plaintiff’s continued experiencing of residual symptoms caused Dr. Braunohler to write a letter on March 5, 1986, declaring plaintiff permanently disabled from any occupation that required bending, stooping, or heavy lifting.
Prior to the accident on May 20, 1982, plaintiff had been involved in three other accidents in which he sustained injuries with residual effects. Subsequent to his release from military service in 1969 and prior to the accident of May 20, 1982, plaintiff had been working at various jobs requiring strenuous physical exertion.
Plaintiff testified at trial that, as a result of the 1982 myelogram, he was unable to walk without the aid of crutches or a cane for approximately six months and that when his condition stabilized he was unable to climb ladders, carry heavy equipment, or do repetitive bending or stooping. At the time of trial, plaintiff had begun doing full-time light assembly work and also did bookkeeping and inventory.
The jury returned a judgment of no cause of action in favor of defendant. Plaintiff appeals as of right.
SERIOUS IMPAIRMENT OF BODY FUNCTION
On appeal, plaintiff argues that, because it was not disputed that the myelogram caused plaintiffs arachnoiditis, the trial court should have determined pursuant to MCL 500.3135; MSA 24.13135, as a matter of law, the existence of serious impairment of body function and that the court erred by allowing the jury to decide this issue instead. We disagree.
The guidelines for resolving this issue were recently set forth in DiFranco v Pickard, 427 Mich 32; 398 NW2d 896 (1986). DiFranco held that, even where evidentiary facts are undisputed, if reasonable minds might differ as to whether the plaintiff suffered a serious impairment of body function, the issue must be submitted to the jury. Id. at 58.
In this case, unrefuted testimony of two physicians clearly established that plaintiff’s contraction of arachnoiditis resulted from the dye which remained in his spinal area subsequent to the myelogram. Since reasonable minds could only conclude that plaintiff’s contraction of arachnoiditis resulted from the myelogram, there was no material factual dispute on this point. There was, however, disagreement concerning the nature and extent of plaintiff’s other complained-of injuries. There was also disagreement as to whether plaintiff’s disabilities, excluding his contraction of anachnoiditis, flowed from the 1982 accident or from prior injuries and their residual effects.
Because reasonable minds could differ as to the nature and extent of plaintiff’s injuries other than arachnoiditis, there existed a material factual dispute on this point. Therefore we pose the following questions to find out if reasonable minds could also differ about whether the impairment which is the subject of this litigation resulted from injuries other than arachnoiditis. If so, the trial court was correct in submitting to the jury the issue of serious impairment of body function.
First, which body function was impaired due to injuries sustained in the accident of May 20, 1982? Id. at 67. This question is answered by plaintiff’s testimony that his ability to walk and move his back was impaired by the myelogram-induced arachnoiditis.
Second, was the impairment serious? Id. To qualify as serious, the impairment need not be of an important body function or of the entire body. Id. at 39-40. Nor need the impairment be permanent. Id. at 68. The paramount consideration is the effect of the injury on plaintiff’s body functions, not the effect of the injury on plaintiff’s life. Id. at 68-69. Factors to consider include "the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors.” Id. at 39-40. A plaintiff must introduce evidence, usually by medical testimony, which establishes a physical basis for subjective complaints of pain and suffering. Id. at 74-75.
Here, reasonable minds would agree that plaintiffs impairment lasted at least six months and did not require extensive treatment or hospitalization, since plaintiff needed no corrective surgery. Id. at 68. Reasonable minds would also agree that plaintiffs medical testimony established that the myelogram-induced arachnoiditis precluded him from occupations that required bending, stooping, or heavy lifting, thereby preventing his return to strenuous physical work.
However, the "relevant factor” of plaintiffs previous injuries might cause reasonable minds to disagree on the seriousness of the 1982 impairment. Testimony established that reasonable minds could differ as to whether and to what extent plaintiffs back problems were caused by the 1982 accident and to what extent they were caused by plaintiffs previous injuries. Because the trial court was required to view the evidence in a light most favorable to the nonmoving party and, if reasonable minds could differ, to let the jury decide whether there existed a serious impairment of body function, id. at 69, the trial court did not err in submitting the impairment issue to the jury.
PROXIMATE CAUSE
Raising the issue for the first time on appeal, plaintiff contends that foreseeability of the development of arachnoiditis was a legal and not a factual issue and hence the question of proximate cause was improperly submitted to the jury.
This Court will generally decline to consider issues raised for the first time on appeal. Trail Clinic, PC v Bloch, 114 Mich App 700, 711; 319 NW2d 638 (1982), lv den 417 Mich 959 (1983). However, review may be granted if failure to consider an issue would result in manifest injustice, if considering the issue is necessary to a proper determination of the case, or if the question is one of law concerning which the necessary facts have been presented. Deeb v Berri, 118 Mich App 556, 562; 325 NW2d 493 (1982); Loper v Cascade Twp, 135 Mich App 106, 111; 352 NW2d 357 (1984). We accept review of this question because the issue of proximate cause is necessary to a proper determination of the case.
Causation in fact is one aspect of, and distinguishable from, legal or proximate cause. Moning v Alfono, 400 Mich 425, 438-439; 254 NW2d 759 (1977), reh den 401 Mich 951 (1977), supplemental order 402 Mich 958 (1978). The question of fact as to whether the defendant’s conduct was a cause of the plaintiff’s injury must be separated from the question as to whether the defendant should be legally responsible for the plaintiff’s injury. Pros ser & Keeton, Torts (5th ed), § 42, pp 272-273, 279. Legal cause is often stated in terms of foreseeability. See McMillan v State Highway Comm, 426 Mich 46, 61-62; 393 NW2d 332 (1986).
If facts bearing upon aspects of proximate cause other than causation in fact are not in dispute and if reasonable minds could not differ about applying the legal concept of "proximate cause” to those facts, then the issue is one of law for the court. But if reasonable minds could differ, the issue of "proximate cause” is for the jury to decide based on the court’s instructions as to the law. Id. at 63, n 8. Hence, where reasonable minds might , differ regarding application of the reasonableness of the risk of harm, the question is best left to the jury. 426 Mich 63.
Whether the plaintiff’s injury and damage was proximately caused by the defendant’s negligent acts is generally a question for the jury. Michigan Sugar Co v Employers Mutual Liability Ins Co of Wisconsin, 107 Mich App 9, 14; 308 NW2d 684 (1981), Iv den 417 Mich 1046 (1983). An intervening cause is not an absolute bar to liability if it is foreseeable. Taylor v Wyeth Laboratories, Inc, 139 Mich App 389, 402; 362 NW2d 293 (1984), lv den 423 Mich 852 (1985). Consequences of a doctor’s negligent acts in treating the plaintiff’s original injury are considered foreseeable. Gulick v Kentucky Fried Chicken Mfg Corp, 73 Mich App 746, 750; 252 NW2d 540 (1977). Hence, whether the doctor’s intervening negligent act constitutes a superseding proximate cause is a question for the jury. Young v EW Bliss Co, 130 Mich App 363, 369; 343 NW2d 553 (1983). And where there could exist a reasonable difference of opinion as to foreseeability of a particular risk, as to reasonableness of a defendant’s conduct with respect to that risk, or as to the character of the intervening cause, the issue is for the jury. Scott v Allen Bradley Co, 139 Mich App 665, 672; 362 NW2d 734 (1984).
In this case, plaintiff complained of injury resulting from the myelogram which was prescribed after the 1982 accident caused by defendant. There could be a reasonable difference of opinion as to foreseeability of the risk of plaintiff’s injuries, the reasonableness of defendant’s conduct with respect to it, and the character of the intervening cause. Thus the issue of "proximate cause” was for the trier of fact and was properly submitted to the jury.
MOTION IN LIMINE
Finally, plaintiff argues that it was error for the trial court to deny his motion in limine to exclude evidence of benefits received 'from collateral sources. We disagree.
It is true that, under the "collateral source” rule, where an injured person is compensated from a source independent of the wrongdoer, such compensation will not lessen damages recoverable from the wrongdoer. Blacha v Gagnon, 47 Mich App 168, 171; 209 NW2d 292 (1973). However, evidence bearing on an injured person’s incentive to work is admissible in the trial court’s discretion. Id. at 173-174. Accord, Gallaway v Chrysler Corp, 105 Mich App 1, 7; 306 NW2d 368 (1981), lv den 413 Mich 853 (1982).
We find no abuse of discretion here. Subsequent to the litigated accident, plaintiff performed work, did household chores, and attended school, but he did not avail himself of opportunities for rehabilitation and was involved in other litigation to obtain additional benefits. In denying plaintiff’s motion in limine, the judge commented that incentive to work was a legitimate question and that where the extent of prior work activities and injuries were at issue the defendant was allowed to try to prove plaintiff’s untruthfulness. Twice during trial and again in his charge to the jury, the judge carefully gave limiting instructions for the jury to consider evidence of plaintiff’s collateral benefits only as to their bearing on motivation or incentive to resume regular employment. Hence we do not believe that admission of this evidence was an abuse of the trial court’s discretion, since the evidence was more probative than prejudicial.
Affirmed.
During the first incident, in early 1968, when plaintiff was serving in the Marine Corps in Viet Nam, plaintiff sustained shrapnel and fragment wounds in the neck, forehead, arms and side. Plaintiff suffered from postconcussion syndrome and experienced side effects through 1972. The second incident in late 1968, while plaintiff was still in the Marines, resulted in plaintiff’s loss of three fingers and his honorable medical discharge and disability rating of sixty percent— thirty percent related to the loss of fingers and thirty percent to the postconcussion syndrome. Between June, 1982, and March, 1985, plaintiff received monthly Veterans Administration benefits in connection with these injuries.
Plaintiff’s third injury occurred in September of 1980 when he fell from a ladder at work. One of two evaluating physicians indicated temporary total disability; the other indicated a ten percent permanent impairment of the right shoulder, and advised plaintiff to refrain from repetitive twisting, lifting, bending, or use of his right arm and shoulder. Plaintiff received settlement payments in workers’ compensation and related no-fault litigation, as well as disability insurance benefit payments.
MCL 500.3135; MSA 24.13135 provides in pertinent part:
(1) A person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.
In this respect DiFranco overturned prior law which held that where there existed a factual dispute as to the nature and extent of a plaintiff’s injuries, but where the dispute was not material to determining whether the plaintiff suffered serious impairment of a body function, the trial court was to decide as a matter of law whether the threshold requirement of serious impairment of body function had been met. Cassidy v McGovern, 415 Mich 483, 502; 330 NW2d 22 (1982), reh den 417 Mich 1104 (1983).
Before reaching the question of serious impairment of body function, the jury was given a special verdict form and told to answer questions concerning negligence as well as plaintiff’s economic and noneconomic loss claims. The jury was instructed not to address the issue of serious impairment of body function if certain questions were answered in the negative.
Because the jury rendered a verdict of no cause of action based on its findings that (Í) plaintiff sustained no economic work loss damage beyond three years and (2) defendant’s negligence was not a proximate cause of plaintiffs injury, the jury never reached the question of whether plaintiffs injury resulted in a serious impairment of body function. However, a finding of no serious impairment of body function would not have been against the great weight of the evidence. Therefore this Court must affirm the jury’s findings of fact as reflected in the verdict. DiFranco, supra at 59.
Foreseeability — whether it is foreseeable that the actor’s conduct may create a risk of harm to the victim, and whether the result of that conduct and intervening causes were foreseeable — concerns whether the defendant’s acts are so significant and important a cause of the plaintiffs injury that the defendant should be held legally responsible. 426 Mich 61-62.
Before trial, plaintiff moved in limine to exclude evidence of plaintiff’s Veteran’s Administration disability benefits, workers’ compensation award, disability insurance and no-fault insurance under the "collateral source” rule and as unfairly prejudicial pursuant to MRE 403. Defendant countered that the information was admissible because relevant to dispute plaintiff’s claim that he could not rehabilitate himself and that it was also relevant to show plaintiff’s lack of motivation and incentive to work, since plaintiff already had a source of income. | [
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] |
M. J. Kelly, J.
Plaintiffs, Mary Moody, her husband and their daughter, filed the instant action against Mary Moody’s former employer, defendant, Westin Renaissance Company. The complaint alleged defendant breached a duty owed plaintiffs pursuant to the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., when defendant failed to take appropriate action to restrain the conduct of an employee who had been sexually harassing Mary Moody. Defendant moved for a declaration of rights, seeking to have the trial court rule that a prior Michigan Employment Security Commission referee’s determination in favor of plaintiff was not dispositive on the issues of liability in the present case. By leave granted, defendant appeals from the trial court’s ruling that the mesc referee’s determination was conclusive as to the issue of liability in the instant action. We reverse.
Plaintiff Mary Moody was employed as a semi-chef at the Westin Hotel from January, 1982, until May, 1983. Moody claims that during this period she was subjected to sexual and emotional harassment by a fellow employee, James Sills. Moody alleges she informed management about the sexual harassment, but little or nothing was done.
On May 3, 1983, the last day Moody worked at Westin, there was a confrontation between her and Sills in a stairwell in defendant’s restaurant. Sills allegedly made physical contact with Moody and made threats against her safety. Plaintiff then quit her job and sought unemployment benefits.
Initially, the mesc determined that Moody was ineligible for benefits since she had voluntarily quit her job. However, that decision was appealed and following a hearing before a referee the earlier determination of disqualification was reversed. The referee’s decision reflected that there had been a long-standing "very simmering situation” between Moody and a co-employee, "the employer had been placed on notice” of the allegations, "and that appropriate action was not taken by the employer in response thereto.”
The referee held that benefit disqualification was not appropriate since Moody left her job for good cause attributable to her employer. Defendant did not appeal from that determination.
However, defendant now appeals from the subsequent decision of the trial court that the earlier mesc referee’s determination was conclusive as to the issue of liability in the present case. Defendant argues that a determination of an mesc referee cannot be used to collaterally estop a party from litigating issues of liability in a subsequent sex discrimination suit.
Generally, the doctrine of collateral estoppel will apply to administrative determinations which are adjudicatory in nature where a method of appeal is provided and where it is clear that it was the legislative intention to make a determination final in the absence of an appeal. See Senior Accountants, Analysts & Appraisers v Detroit, 399 Mich 449; 249 NW2d 121 (1976).
The question presented in the present case is whether a determination by an mesc referee can be used in a subsequent civil action involving a claim of sexual harassment to collaterally estop defendant from litigating the issue of its tort liability. Section 11(b)(1) of the Employment Security Act provides in part:
Information obtained from any employing unit or individual pursuant to the administration of this act, and determinations as to the benefit rights of any individual shall be held confidential and shall not be disclosed or open to public inspection other than to public employees in the performance of their official duties pursuant to this act in any manner revealing the individual’s or the employing unit’s identity. However, any information in the commission’s possession that may affect a claim for benefits or a charge to an employer’s rating account shall be available to interested parties. Except as provided in this act, such information and determinations shall not be used in any action or proceeding before any court or administrative tribunal unless the commission is a party to or a complainant in the action or proceeding, or unless used for the prosecution of fraud, civil proceeding, or other legal proceeding pursuant to subdivision (2). Any report or statement, written or verbal, made by any person to the commission, any member of the commission, or to any person engaged in administering this law shall be a privileged communication, and a person, firm, or corporation shall not be held liable for slander or libel on account of a report or statement. Such records and reports in the custody of the commission shall be available for examination by the employer or employee affected. [MCL 421.11(b)(1); MSA 17.511(b)(1).]
Recently, this Court found that the Workers’ Compensation Appeal Board erred when it referred to the prior exclusion of a plaintiff’s mesc records by a workers’ compensation hearing officer. See Wojciechowski v General Motors Corp, 151 Mich App 399; 390 NW2d 727 (1986). The Wojciechowski Court held that records of the mesc could not be used in any action or proceeding before any court or administrative tribunal unless the mesc was a party to the action or proceeding. Id. at 406.
The trial court in this case relied on Sias v General Motors Corp, 372 Mich 542; 127 NW2d 357 (1964), to support its conclusion that the aforementioned statute only prohibits the use of mesc records as a basis for a libel or slander action. However, this narrow reading of MCL 421.11(b)(1); MSA 17.511(b)(1) has been rejected as misplaced because Sias was decided prior to the statute’s 1965 amendment adding the prohibition against use of mesc records and determinations in a judicial or administrative proceeding unless the mesc is a party to the action. Wojciechowski, supra at 407. Where statutory language is clear and unambiguous, judicial interpretation that varies the plain meaning of the statute is precluded. See Nerat v Swacker, 150 Mich App 61, 64; 388 NW2d 305 (1986), lv den 426 Mich 857 (1986); Hiltz v Phil’s Quality Market, 417 Mich 335, 343; 337 NW2d 237 (1983). Since § 11(b)(1) on its face prohibits the use of mesc determinations in judicial proceedings unless the mesc is a party, the statute’s unambiguous language is not open to judicial interpretation. Such determinations should not be used to collaterally estop a party from litigating issues in a subsequent civil suit in circuit court.
We disagree with the recent decision by a panel of this Court in Storey v Meijer, Inc, 160 Mich App 589; 408 NW2d 510 (1987). That panel held that the statute was inapplicable because "defendant does not seek to use the mesc determination of ineligibility for unemployment benefits in the current action; rather, defendant seeks to use the mesc’s finding of fact that plaintiff was discharged for employee theft.” Storey, supra, at 594. We think that whether it is called a finding of fact or a determination it collides dead solid against the statute. We further believe that it was just such situations as were presented in Storey and in the case at bar which motivated the Legislature to isolate mesc determinations within the narrow confines of eligibility for benefits, leaving resolution of labor disputes, civil rights violations and contract disputes to forums more uniquely adapted to resolution of those disputes.
We note also that the Storey Court may have relied to some extent on a recently decided federal case, Polk v Yellow Freight System, Inc, 801 F2d 190 (CA 6, 1986). In Polk the Sixth Circuit Court of Appeals, applying Michigan law, held that an mesc determination that the plaintiff was discharged for misconduct precluded the plaintiff’s subsequent action in circuit court for breach of an implied contract of employment. Polk dismissed the § 11(b)(1) statute in a footnote. It stated that the statute applies only to "internal determinations,” not to the referee’s or the board of review’s decision. Polk, supra at 194, n 6. We do not see the word internal in the statute and we do not understand the rationale of that decision.
Cases in other jurisdictions have also held that unemployment compensation determinations do not act as collateral estoppel in subsequent civil actions. See Ferris v Hawkins, 135 Ariz 329; 660 P2d 1256 (Ariz App, 1983), where the Arizona Court of Appeals rejected plaintiffs argument that his ex-employer was collaterally estopped from litigating the propriety of his discharge since that issue had already been decided in his favor at proceedings under Arizona’s employment security act; Pratt v Local 683, Film Technicians, 260 Cal App 2d 545; 67 Cal Rptr 483 (1968), where the California Court of Appeals ruled that a determination of the California unemployment insurance appeals board could not be used to collaterally estop litigation by an employee for breach of his employment contract; Hunt v OSR Chemicals, Inc, 85 AD2d 681; 445 NYS2d 499 (1981), where the New York Supreme Court, Appellate Division, held that an unemployment security commission finding was not preclusive in a breach of contract action.
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M. J. Kelly, P.J.
Defendant was tried before a jury on an information charging him with three counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). The jury returned verdicts of guilty on two of the counts but acquitted defendant on the third count. On July 8, 1985, defendant was sentenced to a term of from six to twenty years in prison. Psychological counseling and therapy were recommended. We reverse.
Defendant contends on appeal that the trial court abused its discretion when it refused to dismiss a juror for cause, as requested by defense counsel, and that, as a result, defendant was denied his right to be tried before a fair and impartial jury. On voir dire, juror David Mayotte revealed that he was a police officer in Essexville, a community neighboring Hampton Township, the location of the instant offense. Juror Mayotte had, in other cases, worked quite closely with the police officers involved in this case, some of whom were also his social friends. Mayotte knew the prosecuting attorney in this case rather well because he had participated as a witness in numerous cases tried by that same prosecutor. Mayotte had been a police officer for ten years and had investigated first-degree criminal sexual conduct cases approximately five times. He was not, however, associated with the investigation of this case and had heard nothing about it prior to reporting for jury duty.
In answer to the direct questions posed to him by both the trial court and the defense attorney, Mayotte indicated that he believed he could be fair and impartial to both sides and render an impartial verdict based on the evidence submitted at trial. Juror Mayotte stated that he would not treat the testimony of a police officer differently than that of any other witness and that he believed every person should be judged innocent until proven guilty beyond a reasonable doubt.
Defendant challenged the juror for cause. The trial court denied the challenge on the ground that juror Mayotte had indicated he could render an impartial verdict. After counsel indicated that he had exhausted his peremptory challenges, the trial court asked both attorneys to approach the bench. Following a discussion off the record, the trial court inquired again whether defense counsel had any peremptory challenges, to which defense counsel responded, "no.” Juror Mayotte was selected as the thirteenth juror.
Jurors are presumed to be competent and impartial and the burden of proving otherwise is on the party seeking disqualification. McNabb v Green Real Estate Co, 62 Mich App 500, 505; 233 NW2d 811 (1975). The dismissal of prospective jurors is governed by MCR 2.511(D), which provides:
(D) Challenges for Cause. The parties may challenge jurors for cause, and the court shall rule on each challenge. A juror challenged for cause may be directed to answer questions pertinent to the inquiry. It is grounds for a challenge for cause that the person:
(1) is not qualified to be a juror;
(2) has been convicted of a felony;
(3) is biased for or against a party or attorney;
(4) shows a state of mind that will prevent the person from rendering a just verdict, or has formed a positive opinion on the facts of the case or on what the outcome should be;
(5) has opinions or conscientious scruples that would improperly influence the person’s verdict;
(6) has been subpoenaed as a witness in the action;
(7) has aready sat on a trial of the same issue;
(8) has served as a grand or petit juror in a criminal case based on the same transaction;
(9) is related within the ninth degree (civil law) of consanguinity or affinity to one of the parties or attorneys;
(10) is the guardian, conservator, ward, landlord, tenant, employer, employee, partner, or client of a party or attorney;
(11) is or has been a party adverse to the challenging party or attorney in a civil action, or has complained of or has been accused by that party in a criminal prosecution;
(12) has a financial interest other than that of a taxpayer in the outcome of the action;
(13) is interested in a question like the issue to be tried.
If a party shows that a prospective juror comes within one of the categories enumerated in the court rule, then the trial court is without discretion to retain that juror, who must be excused for cause. McNabb, supra at 506-507, People v Lamar, 153 Mich App 127, 134-135; 395 NW2d 262 (1986), and Bishop v Interlake, Inc, 121 Mich App 397; 328 NW2d 643 (1982). Otherwise, the decision to excuse for cause is within the discretion of the trial court.
The question in this case is whether juror Mayotte should have been excused for bias under MCR 2.511(D)(3). Since juror Mayotte stated that he believed he could render an impartial verdict, we are not confronted with a situation in which a prospective juror clearly reveals a bias or prejudice on voir dire. Contrast People v Skinner, 153 Mich App 815; 396 NW2d 548 (1986), where the juror expressed a preconceived notion that a ten-year-old victim of sexual misconduct would not testify falsely. However, a juror’s subjective belief that he or she is capable of rendering a fair verdict is only one factor to be considered in determining whether that juror is impartial.
We are persuaded that juror Mayotte should have been disqualified from hearing the instant case. The fact that juror Mayotte was a police officer is not of itself sufficient to warrant an inference of bias. Nor is the mere fact that he was acquainted with the prosecuting attorney and sev eral prosecution witnesses. What troubles us in this case is the nature of juror Mayotte’s relationship with the prosecutor and certain prosecution witnesses and the materiality of that relationship to his ability to judge the instant case. It is undisputed that the juror worked closely with the prosecutor and certain police witnesses over a course of ten years. The very nature of this relationship necessarily includes the elements of cooperation and trust in the successful prosecution of criminal defendants, especially where the offense is perpetrated within the Essexville-Hampton Township community. Not only did juror Mayotte work closely with the prosecuting attorney and certain witnesses in a way that was relevant to his ability to judge this criminal matter, but he was also a friend of some of the witnesses, with the friendship extending beyond the employment setting. Significantly, the credibility of the police witnesses was material to the resolution of this case since they testified about certain statements made to them by defendant before he was charged with this offense, which statements were inconsistent with certain facts developed on investigation.
In People v Hannum, 362 Mich 660, 666-667; 107 NW2d 894 (1961), defendant was granted a new trial because one of the jurors had failed to disclose on voir dire that he was a township police officer and special deputy sheriff. The Supreme Court asked whether "any experienced trial lawyer, or for that matter, the public generally” could conclude in good faith that a local police officer was able to "consider impartially the case of a defendant charged with a crime committed in the community?” The court unambiguously answered its own question: "We think not,” and concluded that defendant had been denied his right to an impartial jury. Although the statutes and court rules in effect at the time Hannum was decided have since been amended or repealed, we are persuaded that the same inferences of bias may be drawn in the instant case. We note that juror Mayotte, himself, indicated on voir dire some doubt as to whether he would be allowed to sit in a criminal matter.
Since we have found that a new trial is necessary, we need not address the issues raised in defendant’s supplemental brief, with two exceptions. We are persuaded that the evidence introduced at trial is sufficient to support defendant’s conviction of first-degree criminal sexual conduct. The complainant, who was fourteen years old at the time of this incident, testified that she was babysitting for a neighbor’s seven-year-old son on the night of November 12, 1983, when defendant entered the apartment and forced her to submit to several sexual acts, including penetration. Although defendant testified that the complainant consented, complainant’s testimony, if believed, would allow a rational trier of fact to conclude beyond a reasonable doubt that defendant committed two acts of criminal sexual conduct in the first degree. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979).
Second, we reject defendant’s claim that he was denied his right to a speedy trial. The delay in bringing defendant to trial was less than eighteen months and is thus not presumptively prejudicial. People v Collins, 388 Mich 680, 695; 202 NW2d 769 (1972). A significant portion of the delay is attributable to defendant’s request in late 1984 that complainant undergo a psychiatric evaluation. Defendant requested an adjournment of the trial date in October of 1984 and in November of 1984. Moreover, there is no evidence that defendant has suffered any prejudice as a result of the delayed trial. Although defendant claims on appeal that the delay prevented the minor child for whom the complainant was babysitting from recalling the night in question, the boy’s testimony does not support this claim. There is no dispute but that the child was sleeping at the time defendant was in the apartment with the complainant. The testimony of several witnesses establishes that complainant woke the child up and ran to her mother’s after defendant had left the apartment. Complainant was hysterical and crying at the time. The minor child testified about the incident at trial, corroborating complainant’s version of the events.
Reversed and remanded for a new trial.
E. F. Oppliger, J., concurred. | [
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Weaver, J.
Respondent Marilyn Sterling (hereafter respondent) appeals as of right from a probate court order terminating the parental rights to her three minor children. We affirm.
Respondents Marilyn and Larry Sterling were married in April of 1972, after the birth of Eunice Joy Moore in February of 1971. Although separated, Mr. and Mrs. Sterling remain married. Mr. Sterling is in arrears on his child support payments for in excess of $9,000. There are paternity questions concerning all of Mrs. Sterling’s children. At issue is the termination of her parental rights only as to the three youngest children, Cory Donnial B.B. Sterling, born in October of 1977, Marci Christina Moore, born in December of 1981, and Ger’l Jameel Sterling, born in January of 1983. Mr. Sterling has not appealed.
These proceedings were initiated by a complaint filed by a Berrien County Department of Social Services children’s protective services worker. The worker alleged that Mrs. Sterling was a drug addict who had been evicted from her home due to nonpayment of rent and was living with her elderly father; that she was an unemployed adc recipient who would give some of her food stamps to her father and sell the rest for drugs; that during the approximately three years respondent had been "shooting up” and before she was evicted, she would often leave her children for several days, causing the oldest child, Eunice Joy, to miss school in order to care for her younger siblings; that respondent would also leave the children, without adequate provision and without notice of her whereabouts, with her father for periods of increasing length; and that the father lived on a retirement pension and could not support the children during these absences, so he had finally contacted the police for help in locating his daughter.
The preliminary hearing resulted in an order for temporary removal of the children from their home and foster placement with their maternal aunt, Madine Williams. Several other hearings followed, only the first of which respondent attended. At the June 13, 1984, hearing, the parties stipulated to the court’s jurisdiction under MCL 712A.2(b)(l); MSA 27.3178 (598.2)(b)(l). They also stipulated to the admission of reports submitted by the dss worker, a dss children’s foster care specialist and a psychologist.
The reports indicated that respondent had been a good mother before her dependency on alcohol, cocaine and heroin began some five years previously, when her own mother died and her oldest daughter (not involved in these proceedings) was institutionalized for mental retardation; that because respondent had been upset during the preliminary hearing, she left after listening to the complaint; that because she wanted to get her children back she later went for treatment to the Share House in Detroit but stayed only a few days, left without notice and shortly thereafter was jailed for disorderly conduct and assaulting an officer; that respondent seemed generally disinterested in substance abuse counseling and other forms of treatment; that the boys were placed in foster care; that the girls were placed with respondent’s sister, Madine Williams, and were supervised by respondent’s father while Ms. Williams worked; and that respondent had visited the girls but never asked to see the boys. Respondent testified that she had not used drugs for about nine months; in fact, she denied having a drug problem.
The court accepted dss’s recommendations, declaring the children temporary wards of the court —the girls to remain with Madine Williams and the boys to remain in foster care. The court then scheduled a review and possible termination hearing to be held in six months.
At the hearing on December 5, 1984, reports were admitted from a different dss foster care specialist, an outreach counselor and the same psychologist. The reports recounted respondent’s long absences (up to more than two months), her numerous missed appointments with outreach and substance abuse counselors, her sporadic visitation of the children and her continued denial of drug addiction.
The court continued the status quo and scheduled another review and possible termination proceeding to be held in six months. However, the hearing date was continued when the children’s guardian ad litem withdrew due to a conflict of interest. That date was likewise rescheduled to allow Mr. Jameel Jabbaar, who unexpectedly appeared alleging paternity of Marci and Ger’l, to retain counsel.
At the hearing on November 20, 1985, the court admitted reports from dss and the psychologist, all reiterating respondent’s missed appointments, sporadic visitation, continued and increasingly long absences (up to three months), and her chameleon-like attitude toward drug rehabilitation. The reports also discussed problems developing with child placement; Madine Williams was vacillating in her willingness to continue support of the girls, thereby precipitating their placement in foster care. After respondent allegedly visited the girls when she was "high” and told Eunice about her life on the streets, Ms. Williams declined to have respondent visit the girls at her home; she then refused to take the girls at all, although she later agreed to take Marci without Eunice. Eunice herself wished to avoid foster care, preferring to live with her mother or father; however, the father was awaiting sentencing for his criminal conviction of uttering and publishing.
The dss foster care specialist testified that during the last six months respondent saw Eunice only once or twice and had no communication at all with the three younger children. She also failed to appear for the hearing after receiving a specific reminder the previous day and an offer of transportation. The dss specialist suggested retaining Eunice as a temporary ward of the court to await placement with her father upon his possible receipt of probation, but recommended that rights to the other three children be terminated. She also testified that Jameel Jabbaar, the alleged father of Marci and Ger’l, had several criminal convictions, was not recognized by the children as their father, had submitted no plan for their care and never kept any appointments concerning their placement. Although placement for Marci was still possible with her aunt, the specialist thought that such placement would be detrimental, especially to Eunice, and that the interests of all the children would be best served if the three younger children stayed together.
After reviewing applicable law and the standard of review, and after making findings of fact, the court ordered Eunice a temporary ward of the court with placement in foster care until, with her guardian’s approval, she could live with her father. The court ordered Cory, Marci and Ger’l permanent wards of the court, with all parental rights of Marilyn and Larry Sterling terminated. The written order entered on November 27, 1985, also determined that Jameel Jabbaar was not the father of the children and therefore he was without standing. The court made a similar determination regarding Cory’s alleged father, one William Magee. The court’s order stated that clear and convincing evidence showed, pursuant to MCL 712A.19a(b) and (e); MSA 27.3178(598.19a)(b) and (e), that the father and mother had abandoned their minor children and failed to provide a stable or fit home for them. Marilyn Sterling appeals as of right.
On appeal, respondent argues that because her neglect of the children was not intentional or blameworthy her rights cannot be terminated and that rights to Marci in any event should not be terminated because placement with her maternal aunt is still possible. Dss responds that proof of culpable conduct is not required to terminate parental rights, and that clear and convincing evidence supports the probate court’s decision. We agree with dss and affirm.
STANDARD OP REVIEW
Findings of fact which support termination of parental rights will not be reversed unless they are clearly erroneous. In re Cornet, 422 Mich 274, 277; 373 NW2d 536 (1985). Even if there is evidence to support them, findings are considered clearly erroneous when, on the basis of all the evidence, the reviewing court develops the definite and firm conviction that a mistake was made. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). We find no mistake here.
Before terminating parental rights, the court must find clear and convincing evidence establishing grounds for permanent termination. In re Schejbal, 131 Mich App 833, 836; 346 NW2d 597 (1984). MCL 712A. 19a; MSA 27.3178(598.19a) specifically enumerates examples of grounds for termination. In re Sharpe, 68 Mich App 619, 623-625; 243 NW2d 696 (1976). Section 19a provides in pertinent part:
Where a child remains in foster care in the temporary custody of the court following the initial hearing . . ., the court may make a final determination and order placing the child in the permanent custody of the court, if it finds any of the following:
(b) The child is left with intent of desertion and abandonment by his parent or guardian in the care of another person without provision for his support or without communication for a period of at least 6 months. The failure to provide support or to communicate for a period of at least 6 months shall be presumptive evidence of the parent’s intent to abandon the child. If, in the opinion of the court, the evidence indicates that the parent or guardian has not made regular and substantial efforts to support or communicate with the child, the court may declare the child deserted and abandoned by his parent or guardian.
(e) The parent or guardian is unable to provide a fit home for the child by reason of neglect.
The probate court in its order terminating parental rights found clear and convincing evidence that both parents abandoned the three younger children pursuant to § 19a(b) and were unable to provide a fit home by reason of neglect pursuant to § 19a(e).
ABANDONMENT
Respondent’s assertion that she never intended to abandon her children, and therefore could not have her parental rights terminated under § 19a(b), is countered by the statute itself, which declares that failure to provide support or to communicate for six months shall be presumptive evidence of a parent’s intent to abandon the child. MCL 712A.19a(b); MSA 27.3178(598.19a)(b). There was unrefuted testimony at the termination hearing that respondent was not supporting her children and had had no contact at all with the three youngest ones during the preceding six months. Therefore, clear and convincing evidence supports the probate court’s findings that the children were abandoned pursuant to § 19a(b).
NEGLECT
Respondent relies on a recent line of appellate court cases which favor a showing of culpable conduct before parental rights may be terminated for "neglect” under § 19a(e). In re Bailey, 125 Mich App 522; 336 NW2d 499 (1983); In re McDuel, 142 Mich App 479; 369 NW2d 912 (1985); In re Tedder, 150 Mich App 688; 389 NW2d 149 (1986). In Bailey the Court found that mentally retarded parents were not neglectful within the statute’s meaning if the neglect arose solely from their limited mental abilities, since such limitation was insufficient to establish intent or culpability. Bailey, supra, p 527. McDuel opined that physical incapacity, multiple sclerosis and confinement to a wheelchair, could not constitute statutory neglect, since acts or omissions pursuant to such incapacity were not blameworthy. McDuel, supra, p 486. Tedder further held that a characterological disorder, paranoid schizophrenia, was inadequate to demonstrate statutory neglect since conduct arising from the disorder was not blameworthy. Tedder, supra, pp 698-699.
We decline to follow Bailey, McDuel and Tedder because we are convinced that a finding of culpability or intent to neglect is not a legislative requirement for the termination of parental rights under § 19a(e).
The Michigan juvenile code, MCL 712A.1 et seq.; MSA 27.3178(598.1) et seq., provides no definition of "neglect.” The notion of a culpability requirement appears to be derived from the conclusion that the jurisdictional section, MCL 712A.2(b); MSA 27.3178(598.2)(b), provides such a definition,
Bailey, supra, p 527. This statutory language confers upon the juvenile division of the Michigan probate courts jurisdictional power over a minor child
(1) Whose parent or other person legally responsible for the care and maintenance of the child, when able to do so, neglects or refuses to provide proper or necessary support, ... or other care necessary for his or her health or morals, or who is deprived of emotional well-being, or who is abandoned by his or her parents, guardian, or other custodian, or who is otherwise without proper custody or guardianship.
(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, or other custodian, is an unfit place for the child to live in. [MCL 712A.2(b); MSA 27.3178(598.2)(b).]
The Court in Bailey concluded without explanation that the "when able to do so” language of § 2(b)(1) was a foundational requirement for "neglect” in order to terminate parental rights under § 19a(e). We believe this to be a misreading of the two sections.
The term "when able to do so” appears in only one of the five parallel dependent clauses starting with "whose” or "who.” It does not appear in § 2(b)(2) at all; it only appears in § 2(b)(1), and then only in the first dependent clause. Reading the statute in this context, we believe that the "when able to do so” § 2(b)(1) type of neglect contemplated by the first clause is the failure by parents "to provide proper or necessary support, education . . ., medical, surgical, or other care necessary” when they can afford financially to do so. Thus, while the "when able to do so” limitation of § 2(b)(1) makes it unacceptable to remove children from parents merely because they are without financial means to act, § 2(b)(2), containing no "when able to do so” limitation, makes it acceptable to remove children from parents when the "home or environment, by reason of neglect . . ., is an unfit place for the child to, live in.”
Therefore it is clear that the culpability implied in the term "when able to do so” refers only to the failure-to-provide-support type of neglect found in the first clause of § 2(b)(1) and cannot reasonably be applied to the unfit-home type of neglect found in § 2(b)(2) or in § 19a(e).
It is evident that the underlying purpose of the statutory scheme is to protect children from an unfit homelife. The purpose is not to punish bad parents by terminating their parental rights. If the probate court may take jurisdiction over minor children living in an unfit home, but may not terminate parental rights because it finds no culpability or intent to neglect, the statute’s purpose is defeated. Such a reading of the statute would create the anomalous effect of either forcing children into foster care for an indefinite period, as the Court sanctioned in McDuel, supra, p 490, or returning them to homes known to be unfit. Surely the Legislature did not intend, as allowed in Tedder, for a child to suffer long-term damage in the unfit home of a schizophrenic parent and be precluded from the statutory relief afforded by termination of parental rights.
Further, we decline to follow In re Kellogg, 157 Mich App 148; 403 NW2d 111 (1987), a recent case in the Bailey, McDuel, Tedder line of cases. In Kellogg, the trial court, recognizing the mother had a history of depression, alcohol abuse and attempted suicide, found under § 19a(e) that the mother was unable to provide a fit home for the child by reason of neglect and terminated her parental rights, stating that the mother "simply does not have the necessary psychological make-up to provide the mothering that the child should have.” Id., p 155. A panel of this Court reversed the termination of the mother’s parental rights because "[n]o evidence showed intent or culpability in her neglect of Amanda” since the neglectful mother "approached the dss for help in caring for Amanda when her depression became severe.” Kellogg, supra, p 154. Under this reasoning it would appear that a parent may be neglectful and not be subject to termination of parental rights as long as he or she asks for help. This seems far from the purpose of the statute, which is to protect a child from an unfit home. The statute uses the word "neglect,” not "culpable neglect,” as grounds for terminating parental rights.
Although we believe the above analysis ample to demonstrate the error of interpreting a culpability or blameworthiness requirement for § 19a(e), we also note that the proceeding to terminate parental rights is civil and not criminal. We believe it is a mistake to read into a civil proceeding the mens rea requirement denoting culpability, intent, or blameworthiness normally associated with criminal proceedings.
Finally, we recognize that recent panels of this Court have affirmed termination orders under § 19a(e) without a finding of culpability or blameworthiness. In re Riffe, 147 Mich App 658, 671-672; 382 NW2d 842 (1985), lv den 424 Mich 904 (1986); In re Slis, 144 Mich App 678, 688; 375 NW2d 788 (1985); In re Harmon, 140 Mich App 479, 483; 364 NW2d 354 (1985). We think that if the Legislature had thought it necessary to find culpability or blameworthiness under § 19a(e), it would have said so. See McDuel, supra, p 487.
Because we decline to follow the reasoning of Bailey and its progeny, we affirm the lower court’s finding that respondent is unable to provide a fit home for the children by reason of neglect. Clear and convincing evidence supports this finding.
BEST INTERESTS OF THE CHILD
Respondent’s last argument is that termination of parental rights was not clearly in the best interests of the child Marci, since placement with her maternal aunt was still available. Dss responds that Marci’s placement with her aunt would not be in the child’s best interest, and that the aunt was an unreliable placement, her previ ous rejection of the children having already necessitated their placement in foster care.
Once statutory grounds for termination have been established by clear and convincing evidence, the trial court considers the best interests of the child. Schejbal, supra, p 836. The court then enters findings of fact under the clear and convincing evidence standard. Slis, supra, p 685.
In this case the statutory grounds were met. After considering the recommendations of all the caseworkers and counselors, the court entered detailed findings of fact and conclusions of law summarizing respondent’s history of involvement with community services, her failed attempts to accept responsibility for herself or her children and the bleak prospect of her ever becoming a fit parent. The court also noted the aunt’s unreliability on the custody issue. Pointing out that placements with a relative had already been tried and that dss had taken all reasonable steps to provide for the children’s return home, 'the court determined it to be in the best interests of the children to terminate parental rights as to all three children, including Marci.
Clear and convincing evidence supports the court’s decision. The court was not under a duty to place the child with relatives. In re Futch, 144 Mich App 163, 170; 375 NW2d 375 (1984).
CONCLUSION
We affirm the lower court’s decision to terminate respondent’s parental rights. Having considered all of the evidence throughout the process of several hearings, having entered detailed findings of fact and conclusions of law under a clear and convincing evidence standard, and having consid ered the best interests of the children, the court’s actions were proeedurally correct. Once entered, the court’s findings may not be reversed unless from a review of the evidence they appear to be clearly erroneous. Here, the findings were not clearly erroneous; respondent left her children in the care of others without adequate provision and without communication for over six months; therefore, she was deemed to have abandoned them. MCL 712A.19a(b); MSA 27.3178(598.19a)(b). Likewise, we find no mistake in the court’s determination that respondent was unable to provide a fit home for her children by reason of neglect, it being unnecessary to establish culpability or blameworthiness. MCL 712A.19a(e); MSA 27.3178(598.19a)(e). Nor was the court mistaken in its decision to place the child Marci in foster care.
Affirmed.
However, the Court upheld termination of parental rights on the basis of mental deficiency or illness, interpreted pursuant to § 19a(c). Bailey, supra, pp 528-529.
The Court in McDuel appeared to be influenced by the trial court’s inappropriate substitution of the word "physical” for the statutory ground of "mental” incapacity described in § 19a(c). McDuel, supra, pp 483-484, 489-490.
In Bailey, supra, the Court stated:
Neglect per se is defined neither in Michigan’s statute nor case law. In general, however, MCL 712A.2(b); MSA 27.3178(598.2)(b) provides the basis for the assumption of jurisdiction by the juvenile division of the probate court. This statute would seem to support appellants’ argument that a termination for reasons of neglect requires a finding of some intent or culpability. Jurisdiction over a child may be assumed when a parent who is "able to do so” fails to properly care for the child. Several cases have found neglect and affirmed termination of parental rights.
Review of the findings in the present case do not support termination of appellants’ rights for the reason of neglect as anticipated by statute and case law. Nevertheless, we find the findings to have been justified pursuant to subsection (c). [Id., pp 527-528. Citations omitted.]
The following diagram of MCL 712A.2(b); MSA 27.3178(598.2)(b) shows that the principal or independent clause is followed by a series of five parallel dependent clauses, all starting with "whose” or "who.” In order to highlight the significant aspects of this structure, we have emphasized several terms:
Sec. 2. Except as otherwise provided in this section, the juvenile division of the probate court shall have:
(b) Jurisdiction in proceedings concerning any child under 17 years of age found within the county:
(1) Whose parent or other person legally responsible for the care and maintenance of the child, when able to do so, neglects or refuses to provide proper or necessary support, education as required by law, medical, surgical, or other care necessary for his or her health or morals,
or who is deprived of emotional well-being,
or who is abandoned by his or her parents, guardian, or other custodian,
or who is otherwise without proper custody or guardianship.
(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, or other custodian, is an unfit place for the child to live in. | [
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] |
Per Curiam.
Defendant appeals as of right from an order of the Ogemaw Circuit Court granting declaratory judgment in favor of plaintiff. We affirm.
Defendant Wayne K. Zimmerman, the owner of an excavating business, insured his 1978 International dump truck through plaintiff, Auto-Owners Insurance Company. The policy’s coverage included bodily injury and property damage liability arising from the ownership, maintenance or use of an insured automobile. However, "automobile” was defined to exclude "a motor vehicle of other than the private passenger or utility type while used with a trailer unless a premium [was] charged for such trailer . . . .”
Plaintiff’s agent had informed defendant that, unless an extra premium was paid to insure the trailer, the dump truck itself would not be insured while pulling the trailer. However, defendant chose not to insure the trailer. On August 24, 1982, defendant’s employee was involved in an accident while driving the dump truck. The dump truck was pulling a flat-bed trailer.
As a result of the accident, defendant was sued by two separate parties. When the plaintiff insurer sought a declaratory judgment, the trial court found that the insurance contract unambiguously denied coverage and that defendant had been so informed prior to the accident. Defendant appeals as of right.
Defendant argues that the insurance policy was ambiguous and against public policy and therefore should be construed against the insurer to provide coverage. We disagree and affirm the trial court’s decision.
Although defendant claims not to have read the insurance policy prior to the accident, he nevertheless is held to a knowledge of its terms and conditions. Usher v St Paul Fire & Marine Ins Co, 126 Mich App 443, 447; 337 NW2d 351 (1983). Defendant also claims not to understand the policy now that he has read it. However, we deem the policy’s terms and conditions to be unambiguous. In order to determine whether an ambiguity exists, an insurance policy should be read as a whole. Murphy v Seed-Roberts Agency, Inc, 79 Mich App 1, 8; 261 NW2d 198 (1977). In this case, one section of the policy provided for coverage arising out of the ownership, maintenance or use of the insured automobile; but in another section the policy, in defining "automobile,” specifically excluded coverage for commercial trucks when pulling a trailer, unless an extra premium was paid.
If a contract fairly admits of but one interpretation, it is not ambiguous. Raska v Farm Bureau Mutual Ins Co of Michigan, 412 Mich 355, 362; 314 NW2d 440 (1982). Not only do we believe this particular contract to fairly admit of but one interpretation, but the trial court found that plain tiff’s agent had informed defendant of noncoverage if the dump truck was pulling a trailer, unless the extra premium was paid. Defendant chose not to pay the premium. Under the circumstances, it is difficult to attribute an ambiguity to the policy’s language.
Nor do we believe the insurer’s terms and conditions to be against public policy. Defendant cites no authority for this assertion; therefore, we need not consider it on appeal. Raska, supra, p 362. In any event we find no violation of public policy in the insurer’s request that defendant purchase coverage for commercial trucks while pulling trailers. See Zamani v Auto Club Ins Ass'n 124 Mich App 29; 333 NW2d 373 (1983); Johnson v Michigan Educational Employees Mutual Ins Co, 137 Mich App 205; 357 NW2d 329 (1984), lv den 422 Mich 852 (1985). The remaining thrust of defendant’s argument is the alleged ambiguity which has already been discussed and rejected.
Defendant also assigns error to the trial court’s refusal to let him introduce evidence that the trailer was not a cause or a part of the accident. We find no error. Although there appear to be no Michigan cases on point, courts in other jurisdictions have opined that, when the towing of a trailer is disallowed by a policy’s terms, it is irrelevant whether the trailer was causally connected with an accident. Nationwide Mutual Ins Co v Edwards, 67 NC App 1, 4; 312 SE2d 656, 658 (1984); State Farm Mutual Automobile Ins Co v Bass, 192 Tenn 558, 562; 241 SW2d 568, 569 (1951); Waddey v Maryland Casualty Co, 171 Tenn 112, 117; 100 SW2d 984, 986 (1937). In consonance with the reasoning of these cases, we uphold the trial court’s determination that the trailer’s causal connection to the accident was beyond the scope of trial in this case.
Affirmed.
Pawlicki v Hollenbeck, 250 Mich 38; 229 NW 626 (1930), upon which defendant relies, contained neither a trailer exclusion nor a definition of automobile excluding the insured vehicle when used with a trailer. | [
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Per Curiam.
In June, 1982, plaintiffs, Sean O’Keefe and Kathleen Billmieir, were laid off by defendant Department of Social Services. Defendant Michigan State Employees Association was their exclusive union representative. The collective bargaining agreement between the dss and the msea established layoff and recall procedures. This lawsuit originated in the interpretation of those procedures.
Basically, the agreement provided that recall was to be made in the inverse order of seniority. Seniority was defined as "length of service at a level, including service at a higher level.” "Level” was defined as the "Civil Service position comparison equivalent level.”
On October 18, 1982, the dss and the msea entered into a "letter of understanding” in which they defined how seniority would be computed for purposes of recalls, commencing in October, 1982, and also specified that the msea would "remove as an issue for arbitration the issue of layoff by level within a class series.” This letter of understanding was apparently not ratified by the employees affected. The msea constitution in effect at that time provided that the msea, when acting as an exclusive representative, "shall not enter into any unit-wide agreement, excluding ground rules, unless the agreement has been ratified by the Association members in the affected unit.” The collective bargaining agreement provided that the "msea, through an authorized Officer or Staff Representa tive, may grieve an alleged violation concerning the application or interpretation of this Agreement.”
Plaintiffs were recalled under the letter of understanding later than certain other employees, to whom they would have been senior under what they allege to be the clear and unambiguous definition of seniority prior to the letter of understanding.
Plaintiffs initially filed individual grievances. O’Keefe also filed a "group grievance.” On January 29, 1983, the msea arbitration committee declined to arbitrate O’Keefe’s "group grievance” on the ground that no provision of the collective bargaining agreement had been violated. O’Keefe appealed that decision to the msea president, but did not appeal to the next higher levels of appeal, namely, the msea board of directors and general assembly. The msea constitution and bylaws required union members to exhaust all intra-union remedies before resorting to any court or administrative body.
On January 4, 1983, before the decision of the arbitration committee, O’Keefe filed an unfair labor practice charge against the msea and the dss, which was reviewed by the Michigan Civil Service Commission (mcsc), Bureau of Labor Relations, Hearing Division. The hearing officer dismissed O’Keefe’s charge in a decision and order dated August 23, 1983. The hearing officer held that the msea’s handling of O’Keefe’s grievances did not constitute a breach of the duty of fair representation and that any violation of the underlying collective bargaining agreement would be contractual, not giving rise to a violation of the employer relations policy rule. In particular, the hearing officer held as follows regarding such a breach of contract:
The undersigned Administrative Law Judge hereby adopts and adheres to the consistent policy of the Michigan Employment Relations Commission in refusing to decide mere contract interpretation questions under the heading or guise of an unfair labor practice. . . .
When an exclusive representative and an employer negotiate a grievance procedure for the express purpose of deciding contractual disputes, merc has reasoned and the undersigned agrees, it is normally inappropriate for an Unfair Labor Practice hearing officer to step in and determine what the parties to the contract meant by particular language. The only exception recognized by merc is that where the contractual violation and the employer’s conduct amounts to a complete renunciation of the agreement, the resulting breach may constitute evidence of a failure to bargain in good faith. In. the instant case the exception is not applicable because the allegedly violated layoff and recall provisions constitute only a small portion of the overall agreement and it cannot reasonably be argued that their violation is a renunciation of the entire contract.
The fact that the instant charge was filed against the Union in addition to the employer does not alter the essential nature of the complaint as being a contractual dispute which should be resolved via the grievance procedure rather than by an unfair labor practice proceeding. [Citations omitted.]
On May 7, 1984, the employee relations board denied leave to appeal because O’Keefe had not timely filed his appeal and, in any event, he had no meritorious basis for appeal. The mcsc affirmed that decision as its final decision. Plaintiff did not appeal the mcsc final decision to the circuit court.
While administrative review of the hearing officer’s decision was pending, plaintiffs filed suit against the dss and the msea in the United States District Court for the Eastern District of Michigan on October 24, 1983. In an order entered November 2, 1984, the United States District Court dismissed the case without prejudice as to state court remedies under state law.
On December 12, 1984, plaintiffs filed the action which forms the basis for this appeal in the Saginaw Circuit Court. The complaint alleged deprivation of due process rights, violation of civil rights under 42 USC 1983, violation of the right of fair representation, violation of the right to fair treatment, and breach or impairment of contractual rights. On May 2, 1985, the msea filed a motion for summary disposition under MCR 2.116(C)(4)-(7) on the grounds that (a) the subject matter was within the exclusive jurisdiction of the mcsc, (b) plaintiffs failed to fully exhaust their administrative remedies after their claims were heard by a hearing officer, and (c) plaintiffs failed to exhaust their intra-union remedies.
On July 11, 1985, the circuit court entered an opinion granting summary disposition to the msea and the dss on the specific grounds that plaintiffs had failed to exhaust both their administrative remedies and their intra-union remedies. The court seems not to have addressed the question of whether the subject matter was within the exclusive jurisdiction of the mcsc, nor used that issue as a basis of its decision. Plaintiffs filed a motion for reconsideration, which was denied. They then filed a motion to set aside the orders granting summary disposition and denying reconsideration based on the Supreme Court decision in Demings v City of Ecorse. The motion was denied on January 14, 1986. Plaintiff Billmieir has not appealed. Plaintiff O’Keefe appeals as of right.
Plaintiffs first argument appears to be a response to the msea’s allegation at the circuit court level that the mcsc had exclusive jurisdiction to hear the subject matter of the dispute. As the circuit court neither based its decision on this allegation nor mentioned the allegation in its opinion, we need not respond to plaintiffs argument.
Plaintiff next raises a set of arguments apparently meant to respond to the circuit court’s determination that plaintiff failed to exhaust his administrative remedies. We note at the outset that, while the exhaustion doctrine as described in MCL 24.301; MSA 3.560(201) appears by its terms to apply only to appeals from administrative decisions, it has been applied in cases where the only action brought was brought in the circuit court. There is no reason not to apply the doctrine to cases where suits have been brought in administrative agencies but not carried to their final point of appeal. No purpose would be served by requiring exhaustion in cases never brought to an agency and in cases appealed from an agency, but not in cases originally brought in an agency and later brought before a court.
In the first argument with which he attempts to obviate the need for exhaustion of administrative remedies, plaintiff says that his complaint contained constitutional claims which could not be addressed by the mcsc. This would make no difference, however, as it is clear that some of the claims, most notably the claim that defendant msea violated plaintiffs right to fair representation, were within the jurisdiction of the mcsc. The fact that the agency could not provide all of the relief requested does not obviate the requirement that plaintiff exhaust the available administrative remedies before the circuit court acquires jurisdiction. Further, the mere presence of a constitutional issue does not excuse the exhaustion requirement where, as here, there are other issues in controversy.
Plaintiff also argues that the hearing officer never decided the merits of plaintiff’s contractual claim. Plaintiff cites the above quoted language from the hearing officer’s opinion regarding his contractual claim, as well as defendants’ arguments at the administrative level, that interpretation of the contract by the hearing officer was inappropriate. Plaintiff reasons that, because a central part of his claim was never decided by the hearing officer, he should not have been required to exhaust further administrative remedies. As previously noted, however, the mere fact that some of plaintiff’s claims were not addressed does not excuse him from pursuing the entire administrative process. In IBM v Treasury Dep’t, this Court held:
Exhaustion of administrative remedies serves several policies: (1) an untimely resort to the courts may result in delay and disruption of an otherwise cohesive administrative scheme; (2) judicial review is best made upon a full factual record developed before the agency; (3) resolution of the issues may require the accumulated technical competence of the agency or may have been entrusted by the Legislature to the agency’s discretion; and (4) a successful agency settlement of the dispute may render a judicial resolution unnecessary.
Exhaustion of administrative remedies is not an inflexible condition precedent to judicial consideration, however, and will not be required if review of the agency’s final decision would not provide an adequate remedy, i.e., if it would run counter to the policies which underlie the doctrine. [Citations omitted.]
Here, review of the agency’s final decision by direct appeal to the circuit court could provide an adequate remedy. Were the circuit court, in its appellate guise, to reverse the mcsc holding that the union had not breached its duty of fair representation, plaintiff would have been able to obtain relief. His failure to resort to the appellate process precluded the circuit court from making such an appellate decision.
We also examine in turn each of the specific policies cited in the IBM case. As to the first policy, the filing of suit in the circuit court, instead of timely appeal to the employee relations board, would disrupt the cohesive administrative scheme. As to the second policy, obviously there was a full factual record before the hearing officer, so that resort to the court did not run counter to that policy. As to the third, the constitution itself specifically entrusts the making of rules and regulations covering personnel transactions and the regulation of all conditions of employment in the classified service to the mcsc. Further, the mcsc has considerable expertise in such matters as fair representation law. Finally, and most importantly, plaintiff’s success at the administrative level would have made resort to the circuit court unnecessary.
Plaintiff argues that, because the hearing officer did not decide the contract issues in the case, the decision on the fair representation issue had no effect on his claim against the employer. Plaintiff then cites the United States Supreme Court deci sion in Vaca v Sipes, which seems to us to oppose his position. Vaca holds that individual employees may sue a private employer for breach of a collective bargaining agreement under § 301 of the Labor Management Relations Act (lmra), provided that the employee can prove that the union, as bargaining agent, breached its duty of fair representation in its handling of the employee’s grievance. It makes no difference whether the employee sues the union alone, the employer alone, each separately, or both together. In Michigan, even though we have no statutory provision similar to § 301 of the lmra, this Court found a similar right of suit for employees coming under the public employment relations act in Demings v City of Ecorse:
In Michigan, a public employee’s union is granted the same power of exclusive representation by § 11 of pera as is granted unions in the private sector by § 9 of the nlra. As in the private sector, the power of exclusive representation implies the duty to represent fairly. The statutory grant of the power of exclusive representation might infringe on the due process rights of a member of a bargaining unit absent the implication of a duty to represent fairly. We think that, for public employees, the existence of the right to fair representation must be implied from the grant to unions of exclusive bargaining rights. In the present case, the duty to fairly represent its members in the grievance procedure must be implied from the union’s exclusive control over the procedure. Having concluded that the duty of the public employee’s union exists, we have no doubt that a cause of action exists under state law where the duty is breached. Plaintiff is claiming that the city breached its contract with him; his claim of the union’s bad faith precludes the employer from barring his claim by relying on plaintiff’s failure to pursue the exclusive grievance procedures provided under the contract. Plaintiff’s cause of action is the same as that of an employee in the private sector. [Emphasis added, citations omitted.]
Not only do the Civil Service Commission rules give the same right of exclusive representation, they also explicitly impose a duty of fair representation. Thus, the same logic applied to other public employees in Demings should apply doubly to classified civil service employees. The rights of civil service employees to sue for breach of collective bargaining agreements are, therefore, subject to the same limitations as those of private employees under Vaca, or public employees under Demings. Thus, plaintiff could only sue in contract if he had first proved breach of the duty of fair representation by msea. The hearing officer specifically found that msea did not breach its duty of fair representation. Plaintiff did not appeal this decision to the circuit court, but instead brought a new action.
It is established law in this state that the doctrines of res judicata and collateral estoppel apply to administrative determinations which are adjudicatory in nature where a method of appeal is provided and where it is clear that it was the legislative intention to make the determination final in the absence of an appeal. Under the doctrine of collateral estoppel, where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action. Thus, the hearing officer’s determination that there was no breach of the duty of fair representation would be conclusive, preventing an action for breach of contract against the employer. The failure to exhaust administrative remedies on the fair representation claim is fatal to a circuit court determination of the contract claim.
Because plaintiffs failure to exhaust his administrative remedies requires affirmance regardless of whether he actually exhausted his intra-union remedies, we do not address that latter issue.
Affirmed.
423 Mich 49; 377 NW2d 275 (1985).
See Doster v Estes, 126 Mich App 497, 513-515; 337 NW2d 549 (1983); International Business Machines v Dep’t of Treasury, 75 Mich App 604, 610; 255 NW2d 702 (1977).
Civil Service Commission Rules 6-8.2, 6-12.1.
Eyde v Lansing Twp, 105 Mich App 370, 376; 306 NW2d 797 (1981), aff'd 420 Mich 287 (1984); Attorney General v Diamond Mortgage, 102 Mich App 322, 325, 327; 301 NW2d 523 (1980), rev’d on other grounds 414 Mich 603 (1982).
75 Mich App 604, 610; 255 NW2d 702 (1977).
Const 1963, art 11, § 5.
386 US 171; 87 S Ct 903; 17 L Ed 2d 842 (1967).
29 USC 185.
Id., 386 US 183-187.
Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104, 123-124; 252 NW2d 818 (1977).
MCL 423.201 et seq.; MSA 17.455(1) et seq.
127 Mich App 608, 616-617; 339 NW2d 498 (1983), aff'd and modified on other grounds 423 Mich 49 (1985).
Civil Service Commission Rules 6-5.2, 6-5.4, 6-8.2.
Senior Accountants, Analysts & Appraisers Ass’n v Detroit, 399 Mich 449, 457-458; 249 NW2d 121 (1976). | [
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Wahls, J.
Plaintiff, Township Oil Company, appeals as of right from the Macomb Circuit Court’s order granting summary disposition in favor of defendant, State Bank of Fraser. Plaintiff sought to recover damages for breach of contract from defendant, a depository bank, for certain negotiable instruments plaintiff had received. Defendant moved for and was granted summary disposition on two grounds: (1) that there was a pending action between the same parties based on the same cause of action in district court, MCR 2.116(C)(6) and (2) that the period of limitation had expired, MCR 2.116(C)(7). We affirm on the former ground.
This case arises out of the alleged mishandling of checks. Plaintiff was a gasoline wholesaler and maintained a checking account with defendant. Plaintiff had accepted checks from one of its customers, Esser Enterprises, and deposited the checks with defendant. Plaintiff then delivered gasoline to Esser on a daily basis, apparently in reliance on the fact that the checks had been honored. After approximately two weeks, plaintiff was notified by defendant that the checks had been returned because of insufficient funds.
Plaintiff contends that this two-week delay was due to the mishandling of these checks by both Esser’s bank, Bank of Commerce, and defendant. Specifically, plaintiff contends that defendant was notified by the Bank of Commerce that two of Esser’s checks were not covered with sufficient funds and a stop payment order had been placed on all the checks, but that defendant, in breach of its express contract with plaintiff, failed to timely notify plaintiff. Plaintiff asserts that, as a result of this breach, it suffered substantial damages because it had delivered approximately $73,000 worth of gasoline and other products to Esser during the two-week delay which it would not have delivered had defendant timely notified plaintiff.
Plaintiff initially sued Bank of Commerce on December 14, 1976, in circuit court. In May, 1979, the circuit court removed the case to the district court because mediation determined that the probable value of the suit was less than the $10,000 jurisdictional amount of the circuit court. In January, 1980, plaintiff amended its complaint to add defendant as a codefendant and to increase the damages to an amount in excess of $10,000. Defendant moved for accelerated judgment based on the statute of limitations. In July, 1983, this Court determined that the period of limitation had not run on the claim of an express contract and remanded for further proceedings.
In August, 1984, plaintiff filed a motion for voluntary dismissal because the amount in controversy exceeded $10,000, causing the district court to lose jurisdiction. That motion was denied. Plaintiffs request for leave to appeal to the circuit court was also denied on the basis that the issues presented were not ripe for appellate review. Plaintiff did not appeal that case further; rather, it filed this action in circuit court claiming damages of at least $50,000.
Plaintiff argues that the circuit court erred in granting summary disposition pursuant to MCR 2.116(C)(6) because it is seeking a different relief. Dismissal is proper when "[a]nother action has been initiated between the same parties involving the same claim.” MCR 2.116(C)(6) [formerly GCR 1963, 116.1(4)].
The court rule is a codification of the former plea of abatement by prior action. See Rene J DeLorme, Inc v Union Square Agency, Inc, 362 Mich 192; 106 NW2d 754 (1961); Chapple v National Hardwood Co, 234 Mich 296, 297; 207 NW 888 (1926). Abatement protects parties from the harassment of new suits filed by the same plaintiffs involving the same questions as those in pending litigation. Chapple, supra, p 298. [Ross v Onyx Oil & Gas Corp, 128 Mich App 660, 666; 341 NW2d 783 (1983).]
In order for a pending action to abate a subsequent action, the two suits must be based on the same, or substantially the same, cause of action and request for relief. Id.
Dismissal was properly granted in the instant case. The instant suit is virtually identical to the suit pending in district court. The only difference is that the instant suit requests higher damages. An increase in the amount of money damages alleged is insufficient to avoid dismissal. Petosky Asphalt Paving Co v Malow, 363 Mich 13, 14; 108 NW2d 768 (1961); J D Candler Roofing Co, Inc v Dickson, 149 Mich App 593; 386 NW2d 605 (1986); Ross, supra, 666-667.
We note, however, that to the extent the circuit court granted summary disposition pursuant to MCR 2.116(C)(7) on the basis that plaintiff’s claim was barred by the statute of limitations, it erred. Plaintiff’s claim is based on breach of contract, which claim is subject to a six-year period of limitation. MCL 600.5807(8); MSA 27A.5807(8). The alleged breach occurred in February, 1976. Plaintiff’s district court action was amended in 1980 to include defendant as a party. Upon the filing of the amended complaint in 1980 and service upon defendant, the period of limitation was tolled. MCL 600.5856(1); MSA 27A.5856(1). A pe riod of limitation is tolled during the time a suit is pending, "even if the court of original filing lacked subject-matter jurisdiction over the controversy.” Annabel v CJ Link Lumber Co, 115 Mich App 116, 121; 320 NW2d 64 (1982), rev’d on other grounds 417 Mich 950 (1983).
Finally, plaintiff argues that the district court lacks jurisdiction in the original case because the amount requested in that suit is now over the jurisdictional limit of $10,000. Since jurisdiction is a legal question which must be decided by the court, and since the district court action in the original case has not been appealed to this Court, we decline to address this issue.
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J. B. Sullivan, J.
This is a products liability action arising from injuries to plaintiff, Paul A. Kinzie, eighteen years old, who was injured when a lawn mower which he was riding up a ramp having a twenty-six degree incline tipped over, spilling gasoline on him. The gasoline ignited, causing severe burns to fifty percent of his body. Following trial, the jury rendered a verdict for the plaintiff in the amount of $5,000,000, reduced to $1,000,000 because plaintiff was found to be eighty percent comparatively negligent. Defendants appeal alleging that the trial court abused its discretion in permitting testimony from the plaintiff’s expert, Donald Van Kirk, the trial court improp erly denied defendants’ motion for a directed verdict or judgment notwithstanding the verdict, the verdict was contrary to the great weight of the evidence, and the verdict was grossly excessive. We affirm.
Plaintiff claimed that the lawn mower’s dashboard fuel gauge was unreasonably dangerous because it was secured in position only by a grommet of epdm rubber (ethylene propylene dinam monomer) which plaintiff alleged swells and eventually deteriorates when it comes in contact with gasoline. Plaintiff also alleged that the fuel gauge was the likely source of the gasoline which fed the fire because improper tolerances in the blueprints for the rubber grommet connecting the gauge in the fuel tank resulted in an unnecessary gap, allowing leaks.
Defendants objected to the testimony of plaintiff’s expert, Donald Van Kirk. It is well settled that the determination of an expert witness’ qualifications is within the discretion of the trial court and will not be overturned on appeal unless it can be shown that the court abused its discretion. People v Hawthorne, 293 Mich 15, 23; 291 NW 205 (1940). MRE 702 states:
If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Although an expert’s qualifications may be overshadowed by those of the opposing experts, "such a consideration goes to the weight of the evidence rather than the admissibility.” People v Whitfield, 425 Mich 116, 123-124; 388 NW2d 206 (1986). Extensive examination with respect to Van Kirk’s qualifications revealed that he had a Bachelor of Science degree in electrical engineering as well as a Master of Science degree in engineering mechanics with training focused on bioengineering. Van Kirk had been employed by Ford Motor Company for almost two years as a product design engineer and also, by Wayne State University, where he participated in a research program involving the study and reconstruction of automobile accidents to test the tolerance of the human body in crashes and to help design safer vehicles. He studied more than 4,000 accidents, conducted fifty to sixty crash tests and has prepared papers on accident reconstruction. He also did research on automobile crashes for Ford Motor Company and, while there, was responsible for the design of a vehicle’s fuel system and helped design a fuel gauge and fuel line. He testified that in the course of his work he considered the use of epdm rubber in the fuel system, but ruled it out because it was discovered that gasoline caused it to swell, become gummy and deformed and also to become brittle and crack after it dried.
Van Kirk further testified that he reviewed thirty-seven technical articles concerning lawn mower design and accidents and read approximately one hundred blueprints pertaining to the design of the lawn mower involved in the accident. Additionally, he conducted twenty hours of tests in an attempt to reconstruct the accident with an exemplar lawn mower. Unfortunately, the lawn mower involved in the accident was destroyed and neither party was able to conduct any tests using it.
Defendants challenged Van Kirk’s qualifications in that he had never designed a lawn mower or a fuel system for one. His experience had not in volved a riding lawn mower, nor was he familiar with the industry-wide standards governing the manufacture of lawn mowers prior to preparing for this case. He conceded that he was not a rubber expert. In ruling that Van Kirk was qualified to testify as an expert, the trial judge stated as follows:
Well, I am governed by Rule 701. It’s a two-pronged test. First I have to determine that recognized scientific, technical, or other specialized knowledge will assist the trier of fact either to understand the evidence, or to determine the fact in issue. I think it’s pretty clear that in this case it could be helpful to the jury to have expert testimony about what happened and why. The second matter for me to consider is whether he is a witness qualified as an expert by knowledge, skill, experience, training or education. Well, he is certainly with respect to some of the things that would be of assistance to the trier — to the jury to understand the evidence, and to determine what happened, and he has some limited knowledge that’s greater than the jury’s as the result of his study for this particular case concerning the materials that went into the fuel gauge and gas tank and the cap, and I am going to let him testify and leave it up to the jury what weight they are going to give his opinion on the matters where he has the least competence.
In later reaffirming his ruling in response to defendants’ motion for judgment notwithstanding the verdict, the judge went on to say:
Was it error to permit plaintiffs expert to testify? As I said earlier, I think the expert was qualified, but barely.
At trial, Van Kirk testified that, in his opinion, the gasoline which caused plaintiffs burns came at least in part from leakage around the fuel gauge caused by the deterioration of the epdm rubber. He stated that safer designs were available for a gauge such as a screw-on dashboard gauge or a gauge-in-fuel-cap design. He also testified that a nonvented gas cap was safer in the event of a rollover accident.
Our Supreme Court has held that "[t]he critical inquiry with regard to expert testimony is whether such testimony will aid the factfinder in making the ultimate decision in the case.” People v Smith, 425 Mich 98, 105; 387 NW2d 814 (1986). Here, the testimony was beyond the lay person’s range of knowledge and, therefore, helpful to the jury and properly admitted. Although Van Kirk’s qualifications may have appeared inferior when compared with those of the experts offered by defendants, this alone does not serve to disqualify him. The qualifications of the opposing experts go to the weight to be given to their testimony, not the admissibility. Therefore, the testimony was properly admitted.
The trial court denied defendants’ motion for directed verdict or judgment notwithstanding the verdict. When faced with such motions, the court must view the evidence in the light most favorable to the plaintiff and determine whether a prima facie case has been established. Matras v Amoco Oil Co, 424 Mich 675, 681; 385 NW2d 586 (1986).
To withstand a directed verdict in a products liability action, plaintiffs need not establish the exact nature of the alleged defect but must show through direct or circumstantial evidence a reasonable probability that the defect is attributable to the manufacturer or seller. Kupkowski v Avis Ford, Inc, 395 Mich 155, 161; 235 NW2d 324 (1975). [Chambers v General Motors Corp, 123 Mich App 619, 621; 333 NW2d 9 (1982).]
However, the plaintiff is required to present evidence concerning both the magnitude of the risk involved and the reasonableness of the alternative design. Owens v Allis-Chalmers Corp, 414 Mich 413, 429; 326 NW2d 372 (1982). Here, plaintiff, having been instructed to mow the lawn, entered the shed where the mower was stored and checked its gasoline level. Unaware of signs inside the shed warning that the mower was not to be driven in or out of the shed but pushed only, he backed it out without difficulty. He then filled the tank and testified that he screwed the fuel cap securely back in place. He testified that, while he smoked cigarettes and carried a lighter, he was not smoking as he proceeded to drive the mower back up the ramp which was built, at a twenty-six degree incline. When the mower began to slide backward, he braked. The front end tipped over backwards off the ramp, landing on top of him. He was almost instantly engulfed in flames which severely burned his face, arms, chest, back and a small portion of his legs.
Van Kirk testified that the vented fuel cap was defective because in case of a lawn mower tip-over, which the literature indicated was a common problem, gasoline would drain out of the vent hole in the cap. He testified that an alternative design was available in the form of a nonvented fuel cap. The parties stipulated that the fuel tank itself had not leaked and none of the experts believed that the cap itself had come off.
Defendants’ expert, George Wahl, called by plaintiff as an adverse witness, testified that the screw-on type dashboard gauge design was available at the time the machine was manufactured. In fact, it had been used on an earlier model but, he said, the switch to the press-fit gauge used on this machine was made for safety reasons. He also pointed out, and plaintiffs expert conceded, that in studies done on lawn mower accidents there had been no reports of a rollover in which the operator had been burned by a fuel-fed fire. Wahl did acknowledge, however, that defendant had discontinued the dashboard gauge design and had gone to the gauge-in-fuel-cap design. He further testified that the vent hole was necessary for fuel to drain out of the tank during normal usage.
Therefore, plaintiff did demonstrate that lawn mower tip-overs were common enough to be foreseeable and the defense conceded as much. Plaintiff presented enough evidence from which the jury could conclude that the lawn mower’s dashboard fuel gauge was designed in such a way that the predictable deterioration of the epdm rubber created a foreseeable risk of gas leakage in the case of a rollover accident. While plaintiff denied that he was smoking at the time, and there was no testimony to the contrary, it would not appear to be unforeseeable that lawn mower operators might, indeed, be smoking and that leakage of gasoline would in such instances present a hazard. Van Kirk did concede that he knew of no lawn mower manufacturer using a nonvented cap. Nonetheless, it is an established fact that gasoline did leak and did ignite causing the injuries. Therefore, the trial judge did not err in denying defendants’ motion for directed verdict or judgment notwithstanding the verdict.
Defendant also argues that the verdict was against the great weight of the evidence. The trial judge denied the motion, stating:
Viewing the evidence in the light most favorable to plaintiff, would all reasonable men have to agree that AMF’s design of the fuel system on its mower was in no way negligent and did not share in anyway the blame for the fire? I think this should be answered, "No.” However, you want to balance risk-utility or contemplate foreseeability, a jury could rightly conclude that a riding lawn mower ought not pour gasoline on the operator if it tips over onto him.
It was undisputed that plaintiffs injuries were caused from a fuel-fed fire. The dispute centered on the source of the gasoline. A jury could conclude from the evidence presented that this was a result of defective design or from carelessness on the part of the plaintiff. There was sufficient evidence from which the jury could conclude that the fault lay in the design. We find that there was sufficient evidence to support the verdict and, accordingly, the court did not err.
Finally, defendants contend that the jury verdict was excessive and should shock the judicial conscience. In Stevens v Edward C Levy Co, 376 Mich 1; 135 NW2d 414 (1965), our Supreme Court held that "[c]ourts are reluctant to disturb verdicts of juries for personal injuries on the ground that the amount is excessive.” Id. at 5, quoting Cleven v Griffin, 298 Mich 139; 298 NW 482 (1941). Because of the severe burns suffered by the plaintiff covering fifty percent of his body and leaving him grotesquely disfigured, we are not inclined to upset the jury’s award. He has already undergone surgery at least ten times and will require more in the future. Testimony showed that he is totally disabled, his social life devastated, and he now suffers severe psychiatric and emotional problems. The jury’s reduction of the award by eighty percent for plaintiffs own negligence shows that it did not ignore plaintiffs part in causing the injuries. The verdict is affirmed.
M. J. Kelly, P.J., concurred. | [
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J. M. Graves, Jr., J.
Following a jury trial, defendant was convicted of first-degree murder, MCL 750.316; MSA 28.548, possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), felonious assault, MCL 750.82; MSA 28.277, and carrying a concealed weapon, MCL 750.227; MSA 28.424. Defendant was sentenced to mandatory life imprisonment on the first-degree murder conviction, imprisonment of from two to four years on the felonious assault conviction to run concurrently with the life sentence, imprisonment of from two to five years on the concealed weapons conviction to run concurrently with the life sentence, and the mandatory two-year consecutive term of imprisonment on the felony-firearm conviction. Defendant appeals as of right and we affirm.
The offenses occurred on May 20, 1985, in Grand Rapids, Michigan. Defendant was charged with the murder of Joyce Tucker and the assault of Darnell Beasley. The testimony established that on May 20, 1985, Beasley and the decedent, Joyce Tucker, had lunch together at Tucker’s residence. As Beasley and Tucker were getting ready to leave Tucker’s house, defendant appeared at the door, walked in and went to speak to Tucker. Tucker told defendant she could not talk to him then and that she had to go back to work. Defendant offered Tucker a ride back to work and she informed him that she already had a ride. Defendant then got angry, pulled out a pistol and pointed it at Beas ley, asking him what he was doing there. Defendant held Tucker with one hand and had the gun pointed toward Beasley with the other. When Tucker moved, defendant turned his head and Beasley was able to run out the door and escape. Beasley ran to a neighbor’s house and informed her that someone was trying to kill Joyce Tucker and him. The neighbor then ran to find Tucker’s mother. Tucker’s mother ran down to Tucker’s apartment and discovered Tucker dead on the floor in front of the door. An autopsy showed that there were seven gunshot wounds caused by six bullets. The cause of death was listed as multiple gunshot wounds to the chest and back.
Defendant testified in his own defense and stated that he and Tucker had been involved in a relationship for seven years and had a six-year-old child. Defendant admitted that in March of 1985 he wrote Tucker a letter threatening to kill her if he found his child called another man "Daddy.” Defendant explained that he wrote this letter because Tucker was not visiting him in jail and was going to take his child away. Defendant was released from jail on April 2, 1985, and went looking for Tucker, but was unable to find her until April 14 when he found her at her church. He denied having a gun or knife at that time. Defendant was arrested for felonious assault on April 16, 1985, and released from jail on May 18, 1985. He testified that he did not try to contact Tucker until May 20, 1985. He admitted that he was carrying a gun in his coat pocket that day, but claimed that he had bought it two months before and that he carried the gun because he lived in a bad neighborhood.
As for the May 20 incident, defendant explained that he pointed the gun at Beasley only when he heard Tucker tell Beasley to "get him” and when he saw Beasley make a move like he was reaching for something. After Beasley left the apartment, defendant and Tucker began arguing. Defendant admitted shooting Tucker, but stated that he did not know when that was, where she was standing or what was said before he shot her. Defendant testified that he was angry and upset and that he did not intend to shoot Tucker when he went there.
Defendant raises two issues regarding the admission of evidence at trial. First, defendant contends that the trial court committed error requiring reversal by admitting Tucker’s prior recorded testimony concerning a felonious assault allegedly perpetrated by defendant against Tucker.
After the jury was impaneled, the trial court approved a motion by the prosecutor to permit the prosecution to read to the jury testimony of Tucker given at a prior preliminary examination in which defendant was charged with feloniously assaulting Tucker with a knife. The charge arose out of an incident which occurred on April 14, 1985, when defendant met Tucker in the church parking lot. The trial court ruled that such evidence was admissible based on People v Morris, 139 Mich App 550; 362 NW2d 830 (1984). We agree.
Under Morris, the prior recorded testimony of a homicide victim may be admissible pursuant to MRE 804(b)(1). However, if the prior testimony contains allegations of prior similar bad acts (as here), the testimony must also be admissible pursuant to the four-pronged test enunciated in People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982). Morris, supra at 557. Both of these conditions are met in the instant case. Thus, the trial court did not abuse its discretion in admitting Tucker’s prior testimony into evidence.
On appeal, defendant does not contend that Tucker’s prior testimony does not meet the requirements of MRE 804(b)(1). Rather, defendant argues that the admission of the testimony violates the Supreme Court’s ruling in Golochowicz, supra. In Golochowicz, the Supreme Court ruled that, because of the potential for prejudice which inheres in the admission of similar uncharged bad acts, bad acts or similar acts evidence is inadmissible except for a few narrowly defined circumstances. Golochowicz, supra at 308. The exceptions to the general rule are codified in MRE 404(b), which authorizes admission of a defendant’s prior conduct to show "motive, opportunity, intent, preparation, scheme, plan or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material . . . .” Golochowicz, supra at 309, requires that to admit evidence of a defendant’s prior bad acts
(1) there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced; (2) there must be some special quality or circumstance of the bad act tending to prove the defendant’s identity or the motive, intent, absence of mistake or accident, scheme, plan or system in doing the act and, in light of the slightly different language of MRE 404(b) we add, opportunity, preparation and knowledge; (3) one or more of these factors must be material to the determination of the defendant’s guilt of the charged offense; and (4) the probative value of the evidence sought to be introduced must not be substantially outweighed by the danger of unfair prejudice.
Here, all four prongs of the Golochowicz test are satisfied. First, there was substantial evidence that defendant actually perpetrated the alleged bad act at issue, i.e., the felonious assault. Tucker testified that on April 14, 1985, in the parking lot of her church, defendant held a six-inch switchblade or razor up to her chest and threatened to do something terrible to her if she did not go with him to his mother’s house to talk.
Second, evidence of a prior assault is admissible to show motive or intent, factors listed in MRE 40403), particularly where the defense of accident is asserted. Morris, supra at 557. Defendant argues that there was no special quality or circumstance of the prior bad act to meet the second prong of the Golochowicz test. We do not agree. The degree of similarity of the prior bad acts to the charged offense which must be shown when the evidence of the prior bad acts is being admitted to show that the act on trial was not inadvertent, unintentional, accidental, or done without guilty knowledge is not as great a degree of similarity as must be shown where a common scheme, plan, or design is sought to be proved. People v Doyle (On Remand), 129 Mich App 145, 151; 342 NW2d 560 (1983). Defendant’s prior assault of the victim with a weapon showed sufficient similarity to the charged offense to meet the second prong of Golochowicz.
Third, a central issue in the case at bar was whether defendant had the requisite intent to commit first-degree murder. Thus, one of the MRE 404(b) factors was material to the case. Defense counsel sought a manslaughter conviction, arguing that there was no premeditation or deliberation and that the killing took place in the heat of passion. Defendant also initially told some relatives that the killing was accidental.
Finally, the probative value of the evidence substantially outweighed the danger of unfair prejudice. Defendant was charged with murdering Tucker. Tucker’s testimony showed that defendant feloniously assaulted her a month prior to her killing. This is highly probative of defendant’s motive and intent to kill and, thus, the probative value of this testimony substantially outweighed the danger of unfair prejudice.
The trial court did not err in admitting Tucker’s prior testimony, since all four prongs of the Golochowicz test were met.
Next, defendant contends that the trial court committed error requiring reversal by allowing Beasley to testify in person after he had been declared unavailable and his preliminary examination testimony had been read to the jury. Defendant argues that the occurrence placed undue emphasis on Beasley’s testimony, resulting in unfair prejudice to defendant.
On the morning of the second day of trial, the court conducted a hearing to determine whether the prosecution had exercised due diligence in trying to locate Darnell Beasley, a res gestae witness. The court ruled that due diligence had been exercised, that the witness was unavailable, and that Beasley’s preliminary examination testimony could be read to the jury. The prosecution opened its proofs by having Beasley’s preliminary examination testimony read to the jury.
At the beginning of the third day of trial, defense counsel moved for a mistrial because Beasley, the witness whose prior testimony had been read to the jury, had been located in Pennsylvania and the prosecution intended to put Beasley on the stand to testify. Defense counsel opposed such testimony and moved for a mistrial, arguing that it would be unduly prejudicial to have Beasley’s testimony heard twice by the jury. The trial court postponed its ruling on the motion until the witness could actually testify. Beasley testified as to the events of May 20, 1985, leading up to Tucker’s death. The testimony basically reiterated what Beasley had said during the preliminary examination. Before Beasley’s testimony, the trial judge gave the jury two curative instructions: (1) that Beasley’s testimony should be given no greater or lesser weight although he was, in effect, testifying twice; and (2) that they were to totally disregard the reading of the preliminary examination transcript and rely solely on Beasley’s live testimony.
We find that no error resulted from the trial court’s allowing Beasley to testify at trial even though his preliminary examination testimony had been read to the jury after the prosecutor had shown that Beasley was unavailable. Defendant does not contest the court’s finding that Beasley was unavailable, rather, defendant argues that the live testimony placed undue emphasis on Beasley’s testimony, resulting in unfair prejudice to defendant. We do not agree.
The prosecution has a duty to exercise due diligence in its efforts to locate and produce all res gestae witnesses. People v Pearson, 404 Mich 698, 732-733; 273 NW2d 856 (1979). The prosecution was acting in accordance with these requirements when it moved that the court should allow Beasley’s preliminary examination testimony to be introduced on the basis that Beasley was unavailable to testify at trial. As it turned out, Beasley was located. The prior reading of his preliminary examination testimony should not preclude Beasley from testifying against defendant.
We disagree with defendant that the occurrence gave Beasley’s testimony such undue emphasis that unfair prejudice to defendant resulted. Beasley’s live testimony basically reiterated what Beasley testified to during the preliminary examination. Further, the court instructed the jury that Beasley’s testimony should be given no greater weight even though he was in effect testifying twice and that the jury should totally disregard the reading of Beasley’s preliminary examination testimony. We find that these instructions cured any possible undue emphasis and unfair prejudice to defendant.
While a search of Michigan case law reveals that this issue has never been previously addressed, in the context of these particular facts we cannot declare that the trial court abused its discretion. Trial testimony is often repetitious and can be excluded if needless. See MRE 403. Further, the trial judge is permitted to read back testimony to a jury when requested, and the practice is not considered "undue emphasis” on testimony. Indeed, a trial court abuses its discretion if it absolutely refuses a jury’s request that certain portions of the testimony be read back. See People v Howe, 392 Mich 670, 675-676; 221 NW2d 350 (1974); accord, People v Harvey, 121 Mich App 681, 684; 329 NW2d 456 (1982). Likewise, in the instant situation no undue influence was placed on Beasley’s testimony by allowing Beasley to testify in person regarding the events which took place on May 20, 1985.
Defendant’s convictions and sentences are affirmed. | [
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] |
C. W. Simon, Jr., J.
Plaintiff, Harmer Sargent III, brought suit against his former employer, defendant, Browning-Ferris Industries, asserting claims sounding in wrongful discharge and breach of contract. The trial court granted summary disposition in favor of defendant after determining that plaintiff’s claims were either preempted by federal law or governed by § 301 of the National Labor Management Relations Act (nlmra), 29 USC 185. In the latter event, the trial court found plaintiff’s claims defective on several grounds. Plaintiff appeals as of right. We affirm.
Defendant was in the business of waste disposal and employed truck drivers and other laborers for this purpose. Hazardous liquid waste hauling employees, such as plaintiff, were represented by Teamsters Local 283. Other employees were represented by Teamsters Local 247.
In March, 1983, defendant notified Local 283 that it was discontinuing its hazardous liquid waste hauling operation. In accordance therewith, defendant and Local 283 executed a closure agreement on April 11, 1983. The agreement provided for the termination of employees represented by Local 283 on April 14, 1983, with certain separation benefits. Two union representatives, including plaintiff who was then union steward, signed the agreement on behalf of Local 283.
The instant suit was one of several actions brought by plaintiff after his employment was terminated. In 1984, plaintiff filed a claim for workers’ compensation benefits and obtained $2,-400 pursuant to a redemption agreement.
At the core of the plaintiff’s other actions was an allegation that defendant had continued in the hazardous liquid waste disposal business, despite the closure agreement, and was assigning work previously performed by Local 283 employees to Local 247 employees.
First, on January 4, 1984, plaintiff filed an unfair labor practice charge with the National Labor Relations Board (nlrb). The charge was withdrawn on February 10, 1984. Next, in October, 1984, plaintiff brought his complaint to Walker Quillico and George Vitale, the business agent and president of Local 283, respectively. George Vitale allegedly investigated the complaint and, on December 2, 1984, advised plaintiff that he found no evidence that Local 283 work was being performed by Local 247 employees.
On December 11, 1984, plaintiff filed civil rights charges with the Equal Employment Opportunity Commission, alleging reverse race discrimination. The eeoc deferred the matter to the Michigan Department of Civil Rights. On August 30, 1985, the eeoc issued a notice of right to sue to plaintiff and terminated any further proceedings on the charges.
The instant suit was filed on April 15, 1985. Although defendant petitioned for a removal of plaintiff’s cause of action to the federal district court, the federal district court denied the petition, apparently because it was untimely. Defendant thereafter moved for summary disposition, which was granted by the trial court.
On appeal, plaintiff challenges the trial court’s ruling on three bases, with one basis being a general allegation that summary disposition was inappropriate because material issues of fact and law existed. Such generalities, however, are insufficient to bring an issue before this Court. "It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims . . . Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959), and see Cornforth v Borman’s, Inc, 148 Mich App 469, 479; 385 NW2d 645 (1986).
Plaintiff also claims that the trial court erred in granting summary disposition to defendant based on federal preemption. In reviewing this issue, our first concern is the appropriate standard of review. While defendant moved for summary disposition under MCR 2.116, defendant did not identify the subsection on which the motion was based. This deficiency, however, was harmless since it was clear that the motion was based on the court’s lack of subject matter jurisdiction, MCR 2.116(C)(4), and the parties were not prejudiced by the deficiency. See Barrera v Bechtel Power Corp, 144 Mich App 237, 240; 375 NW2d 362 (1985), and Jones v Employers Ins of Wausau, 157 Mich App 345, 349-350; 403 NW2d 130 (1987), lv den 428 Mich 899 (1987). Consequently, summary disposition was properly granted if the pleadings showed that defendant was entitled to judgment as a matter of law, or the affidavits and other proofs showed that there was no genuine issue of material fact. MCR 2.116(G)(2) and 2.116(I)(1).
The preemption doctrine at issue in this case was set forth in San Diego Building Trades Council v Garmon, 359 US 236; 79 S Ct 773; 3 L Ed 2d 775 (1959). When Garmon preemption exists, the state court has no power to adjudicate the subject matter of the case. International Longshoremen’s Ass’n, AFL-CIO v Davis, 476 US 380, 392-393; 106 S Ct 1904; 90 L Ed 2d 389 (1986). This doctrine basically requires a balancing of federal and state interests to determine whether the court must yield to the primary jurisdiction of the nlrb over the labor dispute. Martin v Associated Truck Lines, Inc, 801 F2d 246, 249 (CA 6, 1986).
The well-established approach to this doctrine, as applied to this case, required the trial court to first determine whether the conduct which plaintiff sought to make the basis of liability was actually or arguably protected or prohibited by the nlmka. Local 926, International Union of Operating Engineers, AFL-CIO v Jones, 460 US 669, 676-677; 103 S Ct 1453; 75 L Ed 2d 368 (1983); Gannon, 359 US 244. If the conduct at issue is arguably subject to either § 7 or § 8 of the nlmra, then deference must be given to the nlrb’s exclusive jurisdiction. Jones, 460 US 676-677; Garmon, 359 US 245.
When, however, conduct which is arguably subject to the nlmra is only a peripheral concern of the nlmra, or touches concerns deeply rooted in local feelings and responsibilities, then, in the absence of compelling congressional direction, it should not be inferred that Congress intended to preempt state action. Jones, 460 US 676; Garmon, 359 US 243-244. This question requires a sensitive balancing of federal and state interests. Jones, supra. The critical inquiry is whether the controversy presented to the state court is identical to or different from that which could have been, but was not, presented to the nlrb. Serrano v Jones & Laughlin Steel Co, 790 F2d 1279 (CA 6, 1986).
Here, the trial court found, and we agree, that the conduct at issue was arguably subject to § 8(a)(5) of the nlmra, 29 USC 158(a)(5). That section provides that it is an unfair labor practice for an employer to refuse to bargain collectively with a representative of its employees. To bargain collectively means
the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party .... [29 USC 158(d).]
The employer’s duty to bargain in good faith encompasses the duty to bargain in good faith over the effects of its decision resulting in the partial closure of its operations. Penntech Papers, Inc v NLRB, 706 F2d 18, 26-27 (CA 1, 1983), cert den 464 US 892 (1983).
Plaintiff’s claims in the present case arose out of a closure agreement bargained for between defendant and representatives of plaintiff’s union and were based on an allegation that defendant continued in the hazardous waste disposal business notwithstanding the agreement. Arguably, this allegation evidences bad faith bargaining and, thus, brought plaintiff’s claims within the purview of §§ 8(a)(5) and 8(d) of the nlmra.
We find no merit in plaintiff’s claim that the challenged conduct was only a peripheral concern of the nlmra. The failure of an employer to bargain in good faith about the terms and conditions of employment strikes at the heart of a basic concern of the nlmra. Serrano, supra, 790 F2d 1287. Nor do we find merit in plaintiff’s argument, made for the first time on appeal, that this controversy is deeply rooted in local feelings and concerns because defendant’s alleged conduct of assigning work previously performed by Local 283 employees to unqualified waste haulers endangered the entire community. In "local interest” cases, there must exist a significant interest in protecting the citizen from the "challenged con duct.” Id., p 1285. The conduct about which plaintiff complains deeply implicates labor relations founded on a collective bargaining process. While the qualifications of hazardous waste haulers and the danger their work may create are certainly matters of great local concern, these matters are irrelevant to plaintiffs claims.
We, therefore, conclude that plaintiffs state claims were preempted by the nlmra. The trial court correctly granted summary disposition to defendant for lack of subject matter jurisdiction. MCR 2.116(C)(4) and 2.116(I)(1).
Finally, plaintiff contests the alternative basis of summary disposition granted in favor of defendant by the trial court. Plaintiff argues that his state breach of contract claim was not "preempted” by § 301 of the nlmra, 29 USC 185. This argument is flawed for several reasons. First, the Garmon preemption doctrine has no application to a § 301 claim. Allis-Chalmers Corp v Lueck, 471 US 202; 105 S Ct 1904; 85 L Ed 2d 206 (1985). A state court has jurisdiction over § 301 claims to enforce collective bargaining agreements. Lueck, supra, and see Packer v Dana Corp, 149 Mich App 64; 385 NW2d 727 (1986), lv den 425 Mich 874 (1986). Secondly, we find no merit in plaintiffs effort to distinguish the closure agreement from a collective bargaining agreement by characterizing it as an independent "settlement” agreement. The closure agreement, while limited in scope, was clearly executed as part of a collective bargaining process. Thus, for plaintiff to proceed at all in the trial court, it would have been necessary to treat his claim as a § 301 claim.
In the present case, the trial court determined that plaintiff’s contract claim was governed by § 301, but found the claim deficient on four grounds: (1) it was barred by the six-month period of limitation; (2) plaintiff failed to proceed against the union for breach of a duty of fair representation; (3) plaintiff failed to exhaust internal union remedies; and (4) plaintiff lacked standing.
On appeal, plaintiff does not address the trial court’s grant of summary disposition in favor of defendant based on the statute of limitations. Indeed, the relief which plaintiff seeks appears to be a reinstatement of his state breach of contract claim, notwithstanding the applicability of § 301. Since, however, plaintiff could only proceed under § 301 and the statute of limitations issue must necessarily be resolved for plaintiff to proceed, we conclude that this issue has been abandoned and that plaintiff is not entitled to the relief which he seeks. Roberts & Son Contracting, Inc v North Oakland Development Corp, 163 Mich App 109, 111; 413 NW2d 744 (1987).
In passing, we note that the trial court’s grant of summary disposition in favor of defendant based on the statute of limitations was correct. MCR 2.116(C)(7) and 2.116(I)(2), Packer, supra, and see Ray v Organization of School Administrators & Supervisors, Local 28, AFL-CIO, 141 Mich App 708; 367 NW2d 438 (1985). While plaintiff did not file his breach of contract claim until April, 1985, the proofs presented by defendant in moving for summary disposition show that plaintiff was aware of defendant’s alleged improper practice of continuing in the hazardous waste disposal business since at least January, 1984, when plaintiff filed an unfair labor practice charge with the nlrb on this basis. In the proceedings below, the only argument made by plaintiff in opposing defendant’s motion for summary disposition, relying on Sevako v Anchor Motor Freight, Inc, 792 F2d 570 (CA 6, 1986), was that the limitation period was still open because defendant’s alleged improper practice of operating the hazardous waste disposal business was a continuing one. At issue in Sevako, however, was an action for breach of a collective bargaining agreement and breach of the union’s duty of fair representation to its members, a hybrid § 301 action. In the present case, plaintiff has not alleged any breach of fair representation on the part of his union. To the contrary, plaintiff alleges that he had no internal union body to address his grievance to because Local 283 was dissolved. Consequently, Sevako is inapplicable to this case.
We conclude that the trial court correctly granted summary disposition in favor of defendant. None of the arguments raised by plaintiff demonstrate error. Moreover, from a stipulation and order filed with the trial court subsequent to this appeal, it appears that Walter Sargent filed a virtually identical complaint against defendant on February 14, 1986, and has agreed that the decision in the instant case will also apply to his suit. Consequently, our decision to affirm the trial court’s grant of summary disposition in favor of defendant should also apply to Walter Sargent’s complaint.
Affirmed.
29 USC 185(a) states:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. | [
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ON REMAND
PER CURIAM.
This case is before us on remand from our Supreme Court for reconsideration of our prior decision in this matter in light of the Legislature’s recent passage of the Nonrecourse Mortgage Loan Act, 2012 PA 67, MCL 445.1591 et seq. (the NMLA or Act 67). Wells Fargo Bank v Cherryland Mall Ltd Partnership, 493 Mich 859 (2012). On reconsideration, we reject plaintiffs constitutional challenges to the NMLA and hold that it bars plaintiffs claims.
I. FACTS AND PROCEDURAL HISTORY
The facts are set forth at length in our original opinion, Wells Fargo Bank, NA v Cherryland Mall Ltd Partnership, 295 Mich App 99; 812 NW2d 799 (2011). Briefly, defendant Cherryland Mall Limited Partnership secured an $8.7 million commercial mortgage-backed securities (CMBS) loan using a mall it owned as collateral. Defendant David Schostak signed a guaranty. Generally, CMBS financing involves the lender agreeing not to pursue recourse liability against the borrower or its owner; in return, the asset used as collateral, which is known as “a single purpose entity,” as well as money that flows from that asset, is isolated pursuant to “separateness covenants” and narrow limitations on the lender’s agreement not to pursue recourse liability. These limitations set forth in “limited recourse provisions',” are referred to as “recourse triggers” or “carveouts,” and are generally related to “bad acts.”
In this case, plaintiff ultimately commenced foreclosure by advertisement when defendant Cherryland failed to make a payment or payments. Plaintiff successfully bid $6 million, leaving a roughly $2.1 million deficiency. It sued defendants seeking to recover the deficiency. Relative to the deficiency, defendants appealed the trial court’s holding that defendant Schostak, “as guarantor, was liable for the entire loan deficiency on the basis of the trial court’s conclusion that insolvency was a violation of Cherryland’s [single purpose entity] status . ...” Id. at 107.
This Court affirmed, concluding that Cherryland’s failure to remain solvent “breached the covenant to maintain its status as [a single purpose entity] and triggered the full recourse provision of the mortgage.” Id. at 126. Paragraph 13 of the note provides:
Notwithstanding anything to the contrary in this Note or any of the Loan Documents, . .. the Debt shall be fully recourse to Borrower in the event that.. . Borrower fails to maintain its status as a single purpose entity as required by, and in accordance with the terms and provisions of the Mortgage .... [Id. at 110.]
Paragraph 9 of the mortgage provides, in pertinent part:
Single Purpose Entitv/Separateness. Mortgagor covenants and agrees as follows:
(f) Mortgagor is and will remain solvent and Mortgagor will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
Defendant Schostak had signed a guaranty that included the following provision:
Notwithstanding anything to the contrary in the Note or any of the Loan Documents,... (B) Guarantor shall be liable for the full amount of the Debt and all obligations of Borrower to Lender under the Loan Documents in the event that: .. . (iii) Borrower fails to maintain its status as a single purpose entity as required by, and in accordance with the terms and provisions of the Mortgage ....
This Court concluded, consistent with the trial court, that ¶ 9(f) was a single purpose entity requirement and that insolvency was a violation of single purpose entity status. Wells Fargo Bank, NA, 295 Mich App at 114-125. Further, any failure to remain solvent, regardless of the reason, was a violation. Id. at 125.
This Court acknowledged the argument that its holding would “indicate economic disaster for the business community in Michigan,” but concluded that its job was not “to save litigants from their bad bargains or their failure to read and understand the terms of a contract.” Id. at 126. Moreover, in response to the argument that the contracts should not be enforced because they are against public policy, we noted that it was up to the Legislature to address matters of public policy. Id. at 127.
Defendants sought leave to appeal in the Supreme Court. While the application was pending, the Legislature passed the NMLA.
II. THE NMLA
The NMLA applies “to the enforcement and interpretation of all nonrecourse loan documents in exist ence on, or entered into on or after, the effective date of [the NMLA],” which was immediately effective on March 29, 2012. MCL 445.1595. 2012 PA 67, enacting § 1, provides, in pertinent part:
The legislature recognizes that the use of a post closing solvency covenant as a nonrecourse carveout, or an interpretation of any provision in a loan document that results in a determination that a post closing solvency covenant is a nonrecourse carveout, is inconsistent with this act and the nature of a nonrecourse loan; is an unfair and deceptive business practice and against public policy; and should not be enforced.
MCL 445.1593, the operative provision at issue, provides:
(1) A post closing solvency covenant shall not be used, directly or indirectly, as a nonrecourse carveout or as the basis for any claim or action against a borrower or any guarantor or other surety on a nonrecourse loan.
(2) A provision in the documents for a nonrecourse loan that does not comply with subsection (1) is invalid and unenforceable.
“Post closing solvency covenant” is defined as
any provision of the loan documents for a nonrecourse loan, whether expressed as a covenant, representation, warranty, or default, that relates solely to the solvency of the borrower, including, without limitation, a provision requiring that the borrower maintain adequate capital or have the ability to pay its debts, with respect to any period of time after the date the loan is initially funded. The term does not include a covenant not to file a voluntary bankruptcy or other voluntary insolvency proceeding or not to collude in an involuntary proceeding. [MCL 445.1592(d).]
III. ANALYSIS
Plaintiff argues that the NMLA did not invalidate the guaranty because in the guaranty defendant Schostak relinquished his right to future defenses and waived any statutory rights regarding the invalidity, illegality, or unenforceability of the guaranty. Further, plaintiff argues that the NMLA violates: (1) the Contract Clauses of the United States and Michigan Constitutions, US Const, art I, § 10 and Const 1963, art 1, § 10, (2) the due process protections of US Const, Am XTV and Const 1963, art 1, § 17, and (3) the separation of powers doctrine, Const 1963, art 3, § 2. We conclude that the guaranty provisions are invalid and unenforceable under the NMLA and that the constitutional challenges to the act must fail.
A. THE GUARANTY
Plaintiff argues that defendant Schostak agreed that his liabilities and obligations were “unconditional,” “irrevocable,” and “absolute” in §§ 1.1 and 1.3 of the guaranty. Further, Schostak relinquished his right to “any existing or future offset, claim or defense” in §§ 1.4 and 2.10 of the guaranty, including a defense based on any statutory right. In article II and § 2.4 of the guarantee, Schostak waived any statutory rights regarding the “invalidity, illegality or unenforceability of. . . any document or agreement executed in connection with the Guaranteed Obligations,” agreeing that his obligations would not be “released, diminished, impaired, reduced or adversely affected” even if Cherryland had valid defenses. Assuming for purposes of analysis that these provisions would contractually bind defendant Schostak, we nonetheless conclude that they are invalid and unenforceable.
The guaranty is being invoked because, since it became insolvent, Cherryland “fail[ed] to maintain its status as a single purpose entity” as required by the mortgage. Again, MCL 445.1593(1) and (2) of the NMLA provides that “[a] post closing solvency covenant shall not be used, directly or indirectly, as a nonrecourse carveout or as the basis for any claim or action against.. . any guarantor” and that any provision in the documents for a nonrecourse loan that purports to use a nonrecourse carveout as the basis for a claim against a guarantor “is invalid and unenforceable.” (Emphasis added.) To the extent that provisions in the guaranty, which is one of the documents for a nonrecourse loan, purport to impose liability on defendant Schostak as guarantor on the basis of the postclosing solvency covenant, they are invalid and unenforceable.
B. CONTEACT CLAUSES
Preliminarily, we note that “ ‘[statutes are presumed to be constitutional, and courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.’ ” In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38, 490 Mich 295, 307; 806 NW2d 683 (2011), quoting Taylor v Gate Pharm, 468 Mich 1, 6; 658 NW2d 127 (2003). US Const, art I, § 10 states, in part: “No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” Similarly, Const 1963, art 1, § 10 provides: “No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted.” The “state constitutional provision is not interpreted more expansively than its federal counterpart.” Attorney General v Michigan Pub Serv Comm, 249 Mich App 424, 434; 642 NW2d 691 (2002); see also AFT Mich v Michigan, 297 Mich App 597, 609; 825 NW2d 595 (2012) (“the two provisions are interpreted similarly”). “It has been said that the purpose of the Contract Clause is to protect bargains reached by parties by prohibiting states from enacting laws that interfere with preexisting contractual arrangements.” In re Certified Question, 447 Mich 765, 777; 527 NW2d 468 (1994).
In arguing that the NMLA is an unconstitutional impairment of contract, plaintiff relies primarily on Sturges v Crowninshield, 17 US (4 Wheat) 122, 199-201; 4 L Ed 529 (1819), and Walker u Whitehead, 83 US (16 Wall) 314, 318; 21 L Ed 357 (1873), which held that states could change a remedy if no substantial contract rights were impaired but could not discharge the obligations of a debtor. However, in Blue Cross & Blue Shield of Mich v Governor, 422 Mich 1; 367 NW2d 1 (1985), the Court recognized that there has been a movement away from this absolute bar to contract impairment. The Court stated, id. at 20:
Beginning with the landmark case of Home Building & Loan Ass’n v Blaisdell, 290 US 398; 54 S Ct 231; 78 L Ed 413 (1934), the modern United States Supreme Court has construed the Contract Clause as not prohibiting a state from exercising its police power to abrogate private or public contracts if reasonably related to remedying a social or economic need of the community. Under modern Contract Clause analysis, a balancing approach has been adopted by the courts, weighing the degree of the impairment of the contractual rights and obligations of the parties against the justification for the impairment as an act of the state’s police power to implement legislation for a legitimate public purpose. Michigan courts have followed this lead. See Van Slooten u Larsen, 410 Mich 21; 299 NW2d 704 (1980) (see in particular Justice Levin’s dissenting opinion); Metropolitan Funeral System Ass’n v Ins Comm’r, 331 Mich 185, 194 ff.; 49 NW2d 131 (1951), and federal cases cited therein.
Plaintiff maintains that the balancing test applies only to retroactive state laws that “impair contractual obligations not involving the impairment of debts,” and that Sturges and Walker still control when the issue is debt relief. However, in Keystone Bituminous Coal Ass’n v DeBenedictis, 480 US 470, 503; 107 S Ct 1232; 94 L Ed 2d 472 (1987), the Court noted that, while the primary focus of the Contract Clause was “pre-existing debtor-creditor relationships that obligors were unable to satisfy,” “[e]ven in such cases, the Court has refused to give the Clause a literal reading.” Currently, whether a state statute violates the Contract Clause is determined by reference to a three-step inquiry set forth in Energy Reserves Group, Inc v Kansas Power & Light Co, 459 US 400; 103 S Ct 697; 74 L Ed 2d 569 (1983). First, courts must determine whether the state law has operated as a substantial impairment of a contractual relationship. Id. at 411. If it constitutes a substantial impairment, the court must look at whether the justification for the state law is based on a significant and legitimate public purpose. Id. at 411-412. If a legitimate public purpose can be identified, the court looks at whether the adjustment of “ ‘the rights and responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation’s] adoption.’ ” Id. at 412, quoting United States Trust Co of New York v New Jersey, 431 US 1, 22; 97 S Ct 1505; 52 L Ed 2d 92 (1977). With respect to this third inquiry, “ ‘[as] is customary in reviewing economic and social regulation, .. . courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure’ ” unless the state is one of the contracting parties. Energy Reserves Group, Inc, 459 US at 412-413, quoting United States Trust Co of New York, 431 US at 22-23.
1. SUBSTANTIAL IMPAIRMENT
Defendants assert that the original parties to the CMBS loan at issue understood and intended at the time of contracting that the loan would be nonrecourse in the event of insolvency. In Energy Reserves Group, Inc, 459 US at 411, the Court noted that “state regulation that restricts a party to gains it reasonably expected from the contract does not necessarily constitute a substantial impairment.” However, despite indications that this may have been the original parties’ intent, this Court previously concluded that “the mortgage, as incorporated into the note, unambiguously required Cherryland to remain solvent in order to maintain its [single purpose entity] status.” Wells Fargo Bank, NA, 295 Mich App at 128. Moreover, defendant Schostak unambiguously agreed that he would “be liable for the full amount of the Debt and all obligations of Borrower to Lender under the Loan Documents” if Cherryland failed “to maintain its status as a single purpose entity as required by, and in accordance with the terms and provisions of the Mortgage ....” We question the sufficiency of the evidence to summarily state that plaintiffs reasonable expectation, despite unambiguous contract language to the contrary, was that the loan would remain nonrecourse in the event of insolvency. Moreover, we note the absence of guidance on whether the assignee’s reliance on the contract would give way to the original parties’ intent for purposes of discerning whether there has been a substantial impairment within the meaning of the Contract Clause. However, for the reasons that follow we conclude that there was a significant and legitimate public purpose for the NMLA and that the remedy provided by the legislation was appropriate. Accordingly, we need not reach a conclusion on the substantial impairment question.
2. SIGNIFICANT AND LEGITIMATE PUBLIC PURPOSE
On February 29, 2012, there was a meeting of the Senate Economic Development Committee at which Senate Bill 992, the precursor to the NMLA, was discussed. At the meeting, it was represented that the original opinion in this case had changed the nature of nonrecourse mortgage loans. It was also represented that: (1) the proposed act would “set the course where it was intended to be,” (2) allowing nonrecourse loans to become recourse due to insolvency “would irreparably harm the, the current environment for investment in Michigan,” (3) the legislation would maintain the status quo, and (4) the failure to pass the proposed act “would basically eliminate nonrecourse loans in Michigan,” leading to a collapse of nonrecourse lending, a decrease in tax revenues, and “a major foreclosure issue.” Transcript of hearing on SB 992, Senate Economic Development Committee (February 29,2012), pp 5, 8,12,18-19. Further, a commercial mortgage banking firm representative testified that over 50 percent of its $2.8 billion in current nonrecourse loans could qualify as insolvent, making loans recourse, which would be catastrophic. Id. at 19.
Plaintiff characterizes this reaction and defendants’ representations as the “ ‘Sky is Falling’ Hyperbole.” Plaintiff asserts that not all nonrecourse loans have non-recourse carveouts for insolvency, and that defendants “have manufactured this trumped-up industry crisis” “to rescue [defendant] Schostak.” However, as noted in the original opinion in this case, “ ‘the Legislature possesses superior tools and means for gathering facts, data, and opinion and assessing the will of the public.’ ” Wells Fargo Bank, NA, 295 Mich App at 127, quoting Woodman v Kera LLC, 486 Mich 228, 246; 785 NW2d 1 (2010) (opinion by YOUNG, J.). Moreover, while the NMLA will benefit defendant Schostak, we have found no evidence that the act was intended solely for his benefit.
At the hearing before the Senate Economic Development Committee, there was no quantification of the actual number of CMBS loans that might have language making a loan recourse in the event of insolvency. However, the testimony suggested that the affected loans would by no means be limited to those currently involved in litigation. For example, developers testified that they would be unable to get necessary financing for continued development because, when applying for financing, they would have to list contingent liabilities based on potential deficiencies arising from postclosing solvency covenants. Transcript of Hearing on SB 992, Senate Economic Development Committee (February 29, 2012), pp 12, 14, 18. Moreover, Senator Arlan Meekhof, who sponsored the bill, testified:
Many of the loans that are existing, that have already been written, even if they change the language in the future in nonrecourse loans will make many of the borrowers unfinanceable because there will be a concern by the lenders that there would be a stringing liability that was never expected on their financial statement. [Id. at 10.]
Further, there was testimony indicating that loan documents for CMBS loans were standardized and routinely included the problematic language. Given this testimony, there is no support for plaintiffs contention that the loans affected by this legislation were relatively limited. We have no reason to question the representations that there will be a collapse of nonrecourse lending in Michigan if CMBS loans routinely become recourse and that tax revenues, as well as foreclosures, will be affected. And we note that Energy Reserves Group, Inc, 459 US at 412, identifies “remedying of a broad and general social or economic problem” as a “significant and legitimate public purpose . . . .”
Nonetheless, Energy Reserves Group, Inc, also indicates that “[t]he requirement of a legitimate public purpose guarantees that the State is exercising its police power, rather than providing a benefit to special interests.” Id. This legislation benefits defendant Schostak. Plaintiff suggests that defendant Schostak used political influence to get the legislation passed for his individual advantage. If true, this would militate in favor of a finding that the bill was intended to benefit special interests. However, the testimony before the Senate Economic Development Committee suggests that the legislation would have far greater impact than just benefiting defendant Schostak.
The legislation does benefit commercial developers generally, a group that would constitute a “special interest.” However, it appears that the Legislature was motivated by a broad and general economic problem, one alluded to in our prior opinion:
We recognize that our interpretation seems incongruent with the perceived nature of a nonrecourse debt and are cognizant of the amici curiae’s arguments and calculations that, if accurate, indicate economic disaster for the business community in Michigan .... Wells Fargo Bank, NA, 295 Mich App at 126.]
That developers benefited when the Legislature took action to stabilize the CMBS industry will not undermine the legislation because the purpose was not to benefit developers but to avert a broader economic problem of immense proportion in the interest of the public good. This was a legitimate public purpose that shows that the Legislature was properly exercising its police power.
3. REASONABLE AND APPROPRIATE CONDITIONS
In Energy Reserves Group, Inc, the Supreme Court held that “ ‘courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure’ ” when the contract is between private parties. Energy Reserves Group, Inc, 459 US at 412-413 (citation omitted); see also Keystone Bituminous Coal Ass’n, 480 US at 504-505. In the present case, the concern was that economic development in this market would significantly diminish because lenders would not extend loans to those commercial developers with contingent liabilities arising from existing CMBS loans with the provision allowing them to become recourse in the event of insolvency. The legislation in effect erased the concern by making the provision invalid and unenforceable. The holding in Energy Reserves Group, Inc, included that the adjustment to “ ‘the rights and responsibilities of contracting parties [must be based] upon reasonable conditions and [be] of a character appropriate to the public purpose justifying [the legislation’s] adoption.’ ” Energy Reserves Group, Inc, 459 US at 412, quoting United States Trust Co of New York, 431 US at 22. While this measure invalidates the provisions that gave rise to plaintiff’s entitlement to the deficiency, we note that the remaining provisions of the lending documents remain in effect. Plaintiff has not proposed any lesser measure that could have accomplished the legislative objective. Thus, in deference to the Legislature, we conclude that the Contract Clauses allow for such legislation.
C. SUBSTANTIVE DUE PROCESS
The Fourteenth Amendment of the United States Constitution states that no “State [shall] deprive any person of life, liberty, or property, without due process of law .. . .” Similarly, Const 1963, art 1, § 17 provides that no person shall “be deprived of life, liberty or property, without due process of law.”
[A]lthough the text of the Due Process Clauses provides only procedural protections, due process also has a substantive component that protects individual liberty and property interests from arbitrary government actions regardless of the fairness of any implementing procedures. ... The right to substantive due process is violated when legislation is unreasonable and clearly arbitrary, having no substantial relationship to the health, safety, morals, and general welfare of the public. [Bonner v City of Brighton, 298 Mich App 693, 705-706; 828 NW2d 408 (2012).[ ]
In Gen Motors Corp v Romein, 503 US 181; 112 S Ct 1105; 117 L Ed 2d 328 (1992), the Court stated: “Retroactive legislation presents problems of unfairness that are more serious than those posed by prospective legislation, because it can deprive citizens of legitimate expectations and upset settled transactions. For this reason ‘[t]he retroactive aspects of [economic] legislation, as well as the prospective aspects, must meet the test of due process’: a legitimate legislative purpose furthered by rational means.” Id. at 191, quoting Pension Benefit Guaranty Corp v R A Gray & Co, 467 US 717, 730; 104 S Ct 2709; 81 L Ed 2d 601 (1984). Similarly, Michigan Courts “analyze whether a plaintiffs due process rights have been violated [by determining] ‘whether the legislation bears a reasonable relation to a permissible legislative objective.’ ” Phillips v Mirac, Inc, 470 Mich 415, 436; 685 NW2d 174 (2004), quoting Detroit v Qualls, 434 Mich 340, 366-367 n 49; 454 NW2d 374 (1990). In Kentucky Div, Horsemen’s Benevolent & Protective Ass’n, Inc v Turfway Park Racing Ass’n, Inc, 20 F3d 1406, 1414 (CA 6, 1994), the court stated:
Because “legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality,” Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 49 L. Ed. 2d 752, 96 S. Ct. 2882 (1976), “judgments about the wisdom of such legislation remain within the exclusive province of the legislative and executive branches,” Pension Benefit Guaranty Corp. [, 467 US at 729], if the “statute is supported by a legitimate legislative purpose furthered by rational means.” Id. In fact, Congress has “absolutely no obligation to select the scheme that a court later would find to be the fairest, but simply one that was rational and not arbitrary.” National R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry.Co., 470 U.S. 451, 477, 84 L. Ed. 2d 432, 105 S. Ct. 1441 (1985).
The party challenging the legislation on due process grounds bears the burden of rebutting the presumption that there was a rational basis. Qualls, 434 Mich at 366. Moreover, “ ‘where the legislative judgment is supported by “any state of facts either known or which could reasonably be assumed,” although such facts may be “debatable,” the legislative judgment must be accepted. Carolene Products Co v Thompson, 276 Mich 172, 178; 267 NW 608 (1936).’ ” Qualls, 434 Mich at 366, quoting Shavers v Attorney General, 402 Mich 554, 614; 267 NW2d 72 (1978). Stated more emphatically:
[T]he party challenging a legislative enactment subject to rational basis review must “ ‘negative every conceivable basis which might support it.’ ” See, e.g., Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S. Ct. 1001, 35 L. Ed. 2d 351 (1973) (quoting Madden v. Kentucky, 309 U.S. 83, 88, 60 S. Ct. 406, 84 L. Ed. 590 (1940)). “Under rational basis review, it is ‘constitutionally irrelevant [what] reasoning in fact underlay the legislative decision.’ ” Craigmiles [ v Giles, 312 F3d 220,224 (CA 6, 2002)] (alteration in original) (quoting R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179, 101 S. Ct. 453, 66 L. Ed. 2d 368 (1980)). “[W]e will be satisfied with the government’s ‘rational speculation’ linking the regulation to a legitimate purpose, even ‘unsupported by evidence or empirical data.’ ” Id. (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313, 113 S. Ct. 2096,124 L. Ed. 2d 211 (1993)). Thus, if a statute can be upheld under any plausible justification offered by the state, or even hypothesized by the court, it survives rational-basis scrutiny. See Berger [ v City of Mayfield Heights, 154 F3d 621, 624-626 (CA 6,1998)] (speculating as to the City Council’s possible motivations for passing the challenged ordinance). [American Express Travel Related Servs Co, Inc v Kentucky, 641 F3d 685, 690 (CA 6, 2011).]
Here, there were concerns that existing CMBS loans with postclosing solvency covenants would result in commercial developers not qualifying for financing to pursue continued economic development in Michigan, that tax revenues would be affected, and that foreclosures would increase, all during a period of economic recovery in this state. The means chosen to address these concerns, declaring the covenants invalid and unenforceable, were not arbitrary. Rather, they rationally addressed the identified problem. There was no substantive due process violation.
D. SEPARATION OF POWERS
Plaintiff argues that the NMLA violates the Separation of Powers Clause, Const 1963, art 3, § 2, by depriving this Court of its exclusive power to interpret and enforce the contract in the case pending before it. Const 1963, art 3, § 2 states that “[t]he powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” In Kyser v Kasson Twp, 486 Mich 514, 535; 786 NW2d 543 (2010) (finding that the judiciary had interfered with the legislative zoning powers of a township), the Court quoted Massachusetts v Mellon, 262 US 447, 488; 43 S Ct 597; 67 L Ed 1078 (1923), explaining that
“[t]he functions of government under our system are apportioned. To the legislative department has been committed the duty of making laws; to the executive the duty of executing them; and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts. The general rule is that neither department may invade the province of the other and neither may control, direct or restrain the action of the other.”
In Detroit Mayor v Arms Technology, Inc, 258 Mich App 48; 669 NW2d 845 (2003), the plaintiffs brought public nuisance and negligence actions against the defendants relative to the marketing and distribution of firearms. The trial court dismissed the negligence claims, but held that the nuisance claims were viable and that MCL 123.1102, which prohibits local regulation of firearms, did not prohibit the plaintiffs’ claims. While the actions were pending, the Legislature passed MCL 28.435, subsection (9) of which reserved the bringing of such actions to the state and expressly barred a political subdivision from bringing such an action. Further, subsection (13) provided:
Subsections (9) through (11) are intended only to clarify the current status of the law in this state, are remedial in nature, and, therefore, apply to a civil action pending on the effective date of this act.
This Court held:
At its core, plaintiffs’ separation-of-powers challenge hinges on the fact that the enactment of MCL 28.435(9)-(13) effectively overrides the trial court’s finding that plaintiffs are not prohibited by MCL 123.1102 from bringing this action. Plaintiffs vigorously assert that this statutory enactment “overturns a judicial decision” or, alternatively, “seeks to compel a judicial decision in favor of defendants.” We find plaintiffs’ arguments to be misplaced.
First, we note that the trial court’s ruling regarding MCL 123.1102 did not constitute a final judgment because it did not dispose of all claims and adjudicate all the rights and liabilities of the parties. MCR 7.202(7)(a)(i); Allied Electric Supply Co, Inc v Tenaglia, 461 Mich 285, 288; 602 NW2d 572 (1999). Because the trial court’s order was not a final judgment that the statute required to be reopened, the order was subject to revision by the Legislature^] [Detroit Mayor, 258 Mich App at 65.]
Quoting Plaut v Spendthrift Farm, Inc, 514 US 211, 226-227; 115 S Ct 1447; 131 L Ed 2d 328 (1995), the Court explained:
“Congress can always revise the judgments of Article III courts in one sense: When a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly. See United States v. Schooner Peggy, 5 U.S. 103, 1 Cranch 103, 2 L. Ed. 49 (1801); Landgraf v. USI Film Products, 511 U.S. 244, 273-280, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994).... [A] distinction between judgments from which all appeals have been foregone or completed, and judgments that remain on appeal (or subject to being appealed), is implicit in what Article III creates: not a batch of unconnected courts, but a judicial department composed of‘inferior Courts’ and ‘one supreme Court.’ Within that hierarchy, the decision of an inferior court is not (unless the time for appeal has expired) the final word of the department as a whole. It is the obligation of the last court in the hierarchy that rules on the case to give effect to Congress’s latest enactment, even when that has the effect of overturning the judgment of an inferior court, since each court, at every level, must ‘decide according to existing laws.’ Schooner Peggy, supra, at 109.” [Detroit Mayor, 258 Mich App at 65-66.]
This Court concluded, id. at 66,
consistent with the principles articulated in Plaut, that plaintiffs cannot show that the enactment of MCL 28.435 violates the Michigan Constitution simply because it was enacted after the trial court ruled on the applicability of MCL 123.1102.
Plaintiff suggests that Plaut is inapplicable because it involved Article III federal courts. However, Detroit Mayor indicates that a state court would be required to apply retroactive legislation to a pending case as long as the appeal process is ongoing.
Plaintiff also argues that, to the extent that the Legislature can pass retroactive legislation clarifying a law it previously enacted, it cannot retroactively interpret a private contract it had no role in drafting. Plaintiff points out that defendants have cited no cases “in which a Michigan court blessed a statute directing the outcome of an appeal of a judgment enforcing a private contract right.” However, the legislation does not “interpret” the contract or direct this Court or any court to do anything. It declares that the postclosing solvency covenant is invalid, unenforceable, and against public policy. This may have the effect of invalidating plaintiffs entitlements based on the contract, but if so it will be because the courts apply the new law, not because the Legislature has directly dictated the outcome in this case.
IV ATTORNEY FEES AND COSTS
The parties reached a stipulation regarding the amount of damages should defendants lose on appeal. The stipulation provided for a $260,000 award for costs and expenses, including attorney fees, but defendants claimed that they agreed to pay this amount only if plaintiff prevailed on the claim for the roughly $2.1 million deficiency. The trial court agreed with plaintiff that, pursuant to the stipulation, plaintiff was entitled to the award of $260,000 on the basis of the success with “Motion No. 4”; this motion dealt with an entitlement to $61,958 from defendant Schostak for a misapplication of rents. In the original opinion in this case, we determined that it was unnecessary to address this issue because we held that plaintiff was entitled to the deficiency. Because we have concluded on remand that plaintiff is not entitled to the deficiency, we must now reach the merits of this issue.
“A ‘stipulation,’... is an agreement, admission, or concession made in a judicial proceeding by the parties or their attorneys, respecting some matter incident thereto. Its purpose is generally stated to be the avoidance of delay, trouble, and expense.” [Eaton Co Bd of Co Rd Comm’rs v Schultz, 205 Mich App 371, 378-379; 521 NW2d 847 (1994), quoting 73 Am Jur 2d, Stipulations, § 1, p 536.]
“Stipulated orders that are accepted by the trial court are generally construed under the same rules of construction as contracts.” Phillips v Jordan, 241 Mich App 17, 21; 614 NW2d 183 (2000). “ '[W]hen parties have freely established their mutual rights and obligations through the formation of unambiguous contracts, the law requires this Court to enforce the terms and conditions contained in such contracts, if the contract is not “contrary to public policy.” ’ ” Holmes v Holmes, 281 Mich App 575, 594; 760 NW2d 300 (2008), quoting Bloomfield Estates Improvement Ass’n, Inc v Birmingham, 479 Mich 206, 213; 737 NW2d 670 (2007). “A contract must be interpreted according to its plain and ordinary meaning.” Holmes, 281 Mich App at 593.
“Under ordinary contract principles, if contractual language is clear, construction of the contract is a question of law for the court. If the contract is subject to two reasonable interpretations, factual development is necessary to determine the intent of the parties and summary disposition is therefore inappropriate. If the contract, although inartfully worded or clumsily arranged, fairly admits of but one interpretation, it is not ambiguous. The language of a contract should be given its ordinary and plain meaning.” [Id. at 594, quoting Meagher v Wayne State Univ, 222 Mich App 700, 721-722; 565 NW2d 401 (1997) (citations omitted).]
In this case, the stipulation was placed on the record. The first paragraph established the deficiency amount as being $2,142,697.86 and provided “that the sum of $260,000 is the reasonable amount of legal costs and expenses, including reasonable attorneys fees in prosecuting this action through the date of entry of the judgment only.” The next paragraph established that judgment on count I would be entered against defendant Cherryland in the same amount as against the guarantor and summarized the dispositions of counts II through V including the disposition of count IV regarding the “assignment of rents.” Paragraph 3 addressed the disposition of count VI and in ¶ 4, there was an agreement “not to make any claims to the receiver for recovery of any or all portion of the fees ordered to be disgorged under motion Number 5 ruled by the Court” and that “this amount shall be credited against the judgment upon payment.”
Considering the stipulation in its entirety, we conclude that the language is unambiguous. The parties agreed to an amount of $260,000 relative to the entire action and made no stipulation regarding the amount due for any of the individual counts. Indeed, the issue of costs, expenses, and attorney fees was addressed at the outset before any of the individual counts were mentioned. There is simply nothing in this stipulation that indicates an agreement to $260,000 in costs, expenses, and attorney fees for count IV Consequently, the trial court erred by providing for an award of $260,000 in costs, expenses, and attorney fees in the order granting summary disposition with regard to count IV Because there was no stipulation on that issue, we remand for a determination whether plaintiff is entitled to costs, expenses, and attorney fees with respect to count IV
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
CAVANAGH, P.J., and SAWYER and METER, JJ., concurred.
See also In re Certified Question, 447 Mich at 777. Plaintiff maintains that the obligations at issue in Energy Reserves Group, Inc, did not involve the impairment of debts but, in setting forth the framework for analysis of Contract Clause issues, the Court did not qualify application on the basis of the nature of the contract right impaired.
The minutes of the February 29, 2012, committee meeting can be found at <http://www.senate.michigan.gov/committees/ Default.aspx?commid=50>. The minutes indicate that there was an audio recording of the meeting “available upon request for a minimum fee.” Defendants have provided an unofficial transcript of the meeting. Plaintiff has not raised any issue regarding the accuracy of this transcript.
Plaintiff represents that defendant David Schostak is cochief executive officer of defendant Schostak Brothers & Co., Inc., and that Robert Schostak is cochairman and cochief executive officer. Plaintiff further represents that Robert Schostak is “a high ranking Republican Party leader in Michigan, with many years of involvement in assisting the party’s candidates to gain election in the legislature.” We note that Robert Schostak has been chairman of the Michigan Republican Party since January 2011, was finance chairman through the 2010 election cycle, and has served on campaign fundraising teams for prominent Republicans. See <http://www.migop.org/index.php/about/parfy-leadership/>.
It is noteworthy that the legislation was opposed in the Senate by five senators: two (of 12) democrats and three (of 26) republicans. 2012 Journal of the Senate 23 (March 7, 2012), p 321. In the House, it was passed by 97 votes to 12 votes; the nays were from 10 republicans and two democrats. 2012 Journal of the House 29 (March 20, 2012), p 427. The legislation had bipartisan support.
When a state law is challenged on substantive due process grounds, the plaintiff need not demonstrate a deprivation of a liberty or property interest. See American Express Travel Related Servs Co, Inc v Kentucky, 641 F3d 685, 688-689 (CA 6, 2011). | [
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SAAD, J.
The city of Flint Transportation Department (hereafter “defendant”) appeals the trial court’s denial of its motion for summary disposition. For the reasons set forth below, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
I. FACTS AND PROCEEDINGS
This case arises out of an automobile accident that occurred July 20, 2009. Plaintiffs vehicle was sideswiped by a dump truck owned by defendant and driven by defendant’s employee, defendant David Sisco. Plaintiff testified that he and Sisco were traveling at approximately 10 to 15 miles an hour when the accident occurred. At the time, plaintiff was covered under an auto insurance policy issued by defendant Auto Club Insurance Association (ACIA). A police officer determined that Sisco was at fault for the accident. Plaintiff asked Sisco to call an ambulance and medical personnel subsequently examined plaintiff and then left the scene. Thereafter, plaintiffs mother drove plaintiff to Hurley Medical Center. The hospital discharged plaintiff the same day with a final diagnosis of lower back pain and a doctor prescribed ibuprofen and a muscle relaxant for him. The discharge instructions directed plaintiff to increase his activity “as tolerated” and to follow up with his primary-care doctor.
Plaintiff did not seek further treatment until October 10, 2009. Plaintiff testified that his back pain made it more and more difficult to get out of bed in the morning so, on the advice of a friend, he went to the Mundy Pain Clinic for physical therapy. Thereafter, on February 12, 2010, plaintiff went to the clinic, complaining of neck and back pain, spasms, and weakness. He underwent a nerve-conduction study and an electromyography (EMG) test and the results were normal. However, the doctor noted that plaintiff appeared to have bilateral sacroiliac joint inflammation.
Later, on March 13, 2010, an MRI showed no injury to plaintiffs sacroiliac joints, but showed a herniated disc in plaintiffs lumbar spine. An EMG performed on April 15, 2010, showed that plaintiff had a pinched nerve at the same place on his lumbar spine. Plaintiff alleges that, because of the accident, he was unable to work at his job as a custodian at a barber shop. He further claims that he was unable to perform chores around the house, he could not sit or stand for long periods, he was unable drive, bend, or lift more than 5 to 10 pounds, and he could no longer play softball or basketball with his son and the young people he mentored.
Defendant filed a motion for summary disposition and argued that, under the motor vehicle exception to governmental immunity, MCL 691.1405, plaintiff may only recover for bodily injury and property damage and that plaintiffs no-fault insurer, ACIA, is liable for his economic damages, including medical expenses. Defendant maintained that plaintiffs claims for emotional damages are not contemplated in the motor vehicle exception. Moreover, defendant argued that it is not liable for any damages because plaintiff failed to establish a serious impairment of body function. In response, plaintiff argued that he is seeking bodily injury and emotional damages from defendant and is legally entitled to both. Plaintiff asserted that he sustained an objectively manifested injury to his back and that the evidence shows that the injury affected his ability to live his normal life because it prevented him from working and participating in his prior recreational activities.
The trial court denied defendant’s motion for summary disposition on the ground that genuine issues of material fact remained in dispute about whether the auto accident caused plaintiffs injuries and whether plaintiff suffered a serious impairment of a body function. The court also ruled that, should he prove his claim, plaintiff is entitled to recover damages for pain and suffering from defendant because the limitation to recovery for bodily injury “embraces and encompasses pain and suffering associated with the bodily injury . . . .” Defendant appeals that ruling.
II. DISCUSSION
A. STANDARDS OF REVIEW AND APPLICABLE LAW
Defendant filed its motion for summary disposition pursuant to MCR 2.116(C)(7) and (10). “A trial court’s ruling on a motion for summary disposition is reviewed de novo.” Burise v City of Pontiac, 282 Mich App 646, 650; 766 NW2d 311 (2009). “A trial court properly grants summary disposition under MCR 2.116(C)(7) when a claim is barred because of immunity granted by law.” Petipren v Jaskowski, 294 Mich App 419, 424; 812 NW2d 17 (2011). “When reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a court must examine the documentary evidence presented and, drawing all reasonable inferences in favor of the nonmoving party, determine whether a genuine issue of material fact exists.” Dextrom v Wexford Co, 287 Mich App 406, 415-416; 789 NW2d 211 (2010). Further, “[t]he applicability of governmental immunity and the statutory exceptions to immunity are also reviewed de novo on appeal.” Moraccini v Sterling Hts, 296 Mich App 387, 391; 822 NW2d 799 (2012).
Under the governmental tort liability act (GTLA), MCL 691.1407(1), “[e]xcept as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.” As this Court explained in Petipren, 294 Mich App at 425:
“The existence and scope of governmental immunity was solely a creation of the courts until the Legislature enacted the GTLA in 1964, which codified several exceptions to governmental immunity that permit a plaintiff to pursue a claim against a governmental agency.” Duffy v Dep’t of Natural Resources, 490 Mich 198, 204; 805 NW2d 399 (2011). The statutory exceptions must be narrowly construed. Maskery v Univ of Mich Bd. of Regents, 468 Mich 609, 614; 664 NW2d 165 (2003). A plaintiff bringing suit against the government must plead in avoidance of governmental immunity. Odom [v Wayne Co, 482 Mich 459, 478-479; 760 NW2d 217 (2008)].
This case requires our interpretation of the motor vehicle exception to governmental immunity, MCL 691.1405, which provides: “Governmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner . ...” As our Supreme Court explained in Lash v Traverse City, 479 Mich 180, 187; 735 NW2d 628 (2007):
When interpreting a statute, our primary obligation is to ascertain and effectuate the intent of the Legislature. To do so, we begin with the language of the statute, ascertaining the intent that may reasonably be inferred from its language. When the language of a statute is unambiguous, the Legislature’s intent is clear and judicial construction is neither necessary nor permitted.
It is undisputed that David Sisco worked for defendant and that the trial court ruled that he negligently operated the dump truck in a manner that led to the collision with plaintiffs vehicle, though the parties dispute whether the collision caused plaintiffs pinched nerve and herniated disc.
B. EMOTIONAL INJURIES
In his complaint, plaintiff claimed he sustained injuries from “shock and emotional damage” as well as pain and suffering. Plaintiff also testified that he felt stress and disappointment that he cannot provide for his son as he had in the past and could not participate in certain activities he did before his injury. As discussed below, we hold that such damages are precluded under MCL 691.1405 because a governmental agency may only be liable for “bodily injury” and “property damage.”
The trial court ruled that “bodily injury” encompasses emotional damages of the kind claimed by plaintiff. Thus, at issue is the scope and meaning of “bodily injury” in MCL 691.1405. As our Supreme Court explained in Wesche v Mecosta Co Rd Comm, 480 Mich 75, 84; 746 NW2d 847 (2008): “This [statute] is clear: it imposes liability for “bodily injury” and “property damage” resulting from a governmental employee’s negligent operation of a government-owned motor vehicle. The waiver of immunity is limited to two categories of damage: bodily injuiy and property damage.” In Wesche, our Supreme Court considered the meaning of “bodily injury” for purposes of the motor vehicle exception and opined:
Although the GTLA does not define “bodily injury,” the term is not difficult to understand. When considering the meaning of a nonlegal word or phrase that is not defined in a statute, resort to a lay dictionary is appropriate. Horace v City of Pontiac, 456 Mich 744, 756; 575 NW2d 762 (1998). The word “bodily” means “of or pertaining to the body” or “corporeal or material, as contrasted with spiritual or mental.” Random House Webster’s College Dictionary (2000). The word “injury” refers to “harm or damage done or sustained, [especially] bodily harm.” Id. Thus, “bodily injury” simply means a physical or corporeal injury to the body. {Wesche, 480 Mich at 84-85.]
Thus, under Wesche, defendant’s immunity is waived only for claims of “physical or corporeal injury to the body.” Id. at 85. And the Court in Wesche made clear that the limitation on the waiver of immunity with regard to “bodily injury” pertains even if a plaintiff seeks damages for other injuries after also meeting the requirement of proving a “bodily injury.” As the Court explained, MCL 691.1405 limits recovery to bodily in jury or property damage and “does not state or suggest that governmental agencies are liable for any damages once a plaintiff makes a threshold showing of bodily injury or property damage.” Wesche, 480 Mich at 85-86. Had the Legislature intended to simply create a threshold that, once established, would permit noneconomic or emotional damages, it would have done so explicitly and, in the motor vehicle exception, it did not. Id. at 86. In so holding, the Court in Wesche rejected the rationale of Kik v Sbraccia, 268 Mich App 690, 709-710; 708 NW2d 766 (2005), vacated in part 268 Mich App 801 (2005), that, in the motor vehicle exception, the Legislature intended to permit damages for something more than physical harm, including pain and suffering damages, as long as a threshold of “bodily injury” was met. Wesche, 480 Mich at 85-86.
The holding in Wesche also comports with caselaw and our rules of statutory construction. Indeed, our jurisprudence interpreting and applying the GTLA instructs that no expansive reading of the motor vehicle exception is appropriate or permitted. “The immunity from tort liability provided by the governmental immunity act is expressed in the broadest possible language; it extends to all governmental agencies and applies to all tort liability when governmental agencies are engaged in the exercise or discharge of governmental functions.” McLean v McElhaney, 289 Mich App 592, 598; 798 NW2d 29 (2010), citing Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 156; 615 NW2d 702 (2000). Thus, as recognized by the Court in Wesche, the immunity conferred to defendant here is broad. In contrast, because the Legislature clearly intended to limit the exposure of governmental entities to tort litigation, the small number of exceptions to that immunity must be read and construed narrowly, as in Wesche. Nawrocki, 463 Mich at 149.
As discussed, “[t]he primary objective in construing a statute is to ascertain and give effect to the Legislature’s intent.” McLean, 289 Mich App at 597-598. MCL 8.3 provides that, “[i]n the construction of the statutes of this state, the rules stated in [MCL 8.3a to MCL 8.3w] shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature.” Accordingly, we are bound to follow the Legislature’s further directive that “[a]ll words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” MCL 8.3a.
Again, if given, a definition in a statute controls, and “bodily injury” is undefined in MCL 691.1405. Haynes v Neshewat, 477 Mich 29, 35; 729 NW2d 488 (2007). Unquestionably, “bodily injury” could be considered a term of art that has acquired a unique legal meaning in our jurisprudence and, in such cases, “ [i]t is presumed that the Legislature in using a term which has a well-defined meaning at the time of a legislative enactment intended that meaning to be employed.” Paprocki v Jackson Co Clerk, 142 Mich App 785, 791; 371 NW2d 450 (1985). The meaning of “bodily injury,” and the differences among claims for “bodily injury,” “personal injury,” and emotional or psychological injuries are manifest in our caselaw. In criminal cases, our courts have clearly defined “bodily injury” to mean physical damage to a person’s body. People v Cathey, 261 Mich App 506, 514; 681 NW2d 661 (2004), citing MCL 777.33(1). Our courts have interpreted coverage for “bodily injury” in insurance policies as not encompassing those for mental suffering unless there exists some physical manifestation of the mental suffering, which is clearly lacking here. See State Farm Fire & Cas Co v Basham, 206 Mich App 240, 243; 520 NW2d 713 (1994), citing Nat’l Ben Franklin Ins Co of Mich v Harris, 161 Mich App 86, 90; 409 NW2d 733 (1987), and Farm Bureau Mut Ins Co of Mich v Hoag, 136 Mich App 326, 332, 335; 356 NW2d 630 (1984). In State Farm Mut Auto Ins Co v Descheemaeker, 178 Mich App 729; 444 NW2d 153 (1989), this Court explained that, when a policy defines “bodily injury” as “ ‘bodily injury to a person and sickness, disease or death which results from it,’ ” it is “unambiguous and has been understood as contemplating ‘actual physical harm or damage to a human body.’ ” Id. at 732, quoting Hoag, 136 Mich App at 334-335. “Nonphysical injuries, such as humiliation and mental anguish, that lack any physical manifestations do not constitute a ‘bodily injury.’ Hoag, [136 Mich App at 335; Harris, 161 Mich App at] 89. Therefore, it follows that other nonphysical injuries, such as a loss of consortium, society and companionship, which lack any physical manifestations, are also not bodily injuries.” State Farm, 178 Mich App at 732.
In considering the meaning of an undefined term of art it is also appropriate to consult a legal dictionary for guidance and to consider its meaning as developed at common law. People v Flick, 487 Mich 1, 11; 790 NW2d 295 (2010). As the Court recognized in Allen v Bloomfield Hills Sch Dist, 281 Mich App 49, 56; 760 NW2d 811 (2008), “Black’s Law Dictionary (7th ed), p 789 . . . defines ‘bodily injury’ as ‘[p]hysical damage to a person’s body.’ ” See also Black’s Law Dictionary (9th ed), p 856. In contrast, Black’s defines “personal injury” to include “mental suffering,” which is also in keeping with our caselaw. Id. at 857. As set forth in Alfieri v Bertorelli, 295 Mich App 189, 198; 813 NW2d 772 (2012), “the modern definition of a ‘personal injury’ [refers] to any invasion of a personal right, not only bodily injuries. Black’s Law Dictionary (9th ed).” Further, “[i]n the tort context, an ‘injury’ is generally understood to mean ‘[a]ny wrong or damage done to another, either in his person, rights, reputation, or property.’ Black’s Law Dictionary (6th ed), p 785.” Karpinski v St John Hospital-Macomb Ctr Corp, 238 Mich App 539, 543; 606 NW2d 45 (1999).
Thus, it is clear from myriad cases and lay and legal resources that, if the Legislature wanted to permit plaintiffs to recover within the motor vehicle exception damages for pain and suffering or emotional shock or stress, it could have done so by providing for “personal injury” or emotional damages in the statute. See, for example MCL 600.6301; Potter v McLeary, 484 Mich 397, 422 n 30; 774 NW2d 1 (2009). Instead, in drafting MCL 691.1405, the Legislature chose to specifically limit the waiver of immunity to bodily injury and property damage. Thus, the Wesche definition of “bodily injury” is clearly correct, regardless whether we view “bodily injury” as a legal term of art or consider its commonly understood meaning. Because “bodily injury” encompasses only “a physical or corporeal injury to the body,” Wesche, 480 Mich at 85, the trial court erroneously ruled that plaintiff may recover damages for pain and suffering and “shock and emotional dam age.” Such damages simply do not constitute physical injury to the body and do not fall within the motor vehicle exception.
C. SERIOUS IMPAIRMENT THRESHOLD
A plaintiff making a tort claim for excess damages under the motor vehicle exception must, as a threshold, show a serious impairment of body function as set forth in the no-fault act, MCL 500.3135. Hardy v Oakland Co, 461 Mich 561, 566; 607 NW2d 718 (2000). Here, the trial court ruled that plaintiff raised a genuine issue of material fact about whether he sustained a threshold injury pursuant to McCormick v Carrier, 487 Mich 180, 215-216; 795 NW2d 517 (2010). Defendant asks this Court to consider plaintiffs injuries under the standard set forth in Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004), but Kreiner was explicitly overruled by our Supreme Court in McCormick, 487 Mich at 222, and we are bound by stare decisis to follow the standard in McCormick. Tenneco Inc v Amerisure Mut Ins Co, 281 Mich App 429, 447; 761 NW2d 846 (2008).
To establish a serious impairment of body function under McCormick, a plaintiff must show:
(1) an objectively manifested impairment (observable or perceivable from actual symptoms or conditions) (2) of an important body function (a body function of value, significance, or consequence to the injured person) that (3) affects the person’s general ability to lead his or her normal life (influences some of the plaintiffs capacity to live in his or her normal manner of living). [McCormick, 487 Mich at 215.]
As this Court explained in Nelson v Dubose, 291 Mich App 496, 498-499; 806 NW2d 333 (2011):
McCormick shifted the focus from the injuries themselves to how the injuries affected the plaintiffs body function. McCormick, 487 Mich at 197. This shift eased the burden on the plaintiff to show how the impairment prevented the plaintiff from leading a normal life. Now, the plaintiff has to show that the plaintiffs ability to lead a normal life has been affected by comparing the plaintiffs life before and after the injury. Id. at 200, 202-203.
“[A]n ‘objectively manifested’ impairment is commonly understood as one observable or perceivable from actual symptoms or conditions.” McCormick, 487 Mich at 196. Plaintiff testified that, when defendant’s truck collided with his vehicle, there was a “violent jerk” and he felt immediate pain in his middle and lower back. Plaintiff further testified that his back pain persisted after the accident and that he underwent physical therapy, electronic stimulation, and manipulation under anesthesia. Over time, he was also prescribed stronger pain medications and additional muscle relaxants. Medical documents show that, while plaintiff showed no noticeable back problem on an EMG in February 2010, in March and April, tests showed a herniated disc and pinched nerve in plaintiffs back. While plaintiff underwent these tests several months after the accident and, as the trial court noted, a question of fact remains whether the accident actually caused this condition, plaintiff raised an issue of fact regarding the existence of an objectively manifested impairment.
Plaintiff also presented evidence to raise a question of fact about whether the impairment was to an important body function and whether it affected his ability to lead a normal life. These questions require a case-by-case determination “because what may seem to be a trivial body function for most people may be subjectively important to some, depending on the relationship of that function to the person’s life.” Id. at 199. Further, “ [determining the effect or influence that the impair ment has had on a plaintiffs ability to lead a normal life necessarily requires a comparison of the plaintiffs life before and after the incident.” Id. at 202. Plaintiff testified that, for several months after the accident, his back pain prevented him from working, he needed assistance running errands because he could not drive, he needed someone else to cut the grass, rake leaves, do laundry, clean the house, cook, and grocery shop. He further testified that he could not sit or stand for long periods and, therefore, could not attend sporting events or participate in various recreational activities he had enjoyed before the collision. Accordingly, the trial court correctly denied defendant’s motion for summary disposition on this ground.
While the trial court correctly ruled that genuine issues of material fact remain in dispute, because this case involves the application of governmental immunity, and because defendant brought its motion under both MCR 2.116(C)(7) and (10), the proper remedy in this case is for the trial court to hold a full evidentiary hearing to determine whether plaintiff did, indeed, suffer a serious impairment of body function and whether the collision caused his injury. Dextrom, 287 Mich App at 432. As this Court explained in Strozier v Flint Community Sch, 295 Mich App 82, 87-88; 811 NW2d 59 (2011):
This issue involves an interesting conundrum that arises when motions for summary disposition are brought under both MCR 2.116(0(10) and (7). Under MCR 2.116(0(10), when a court determines that a genuine issue of material fact exists, it must deny the motion for summary disposition and allow the fact-finder to resolve the disputed issues of fact at a trial. Dextrom [,287 Mich App at 430]. However, as this Court stated in Dextrom, “[a] trial is not the proper remedial avenue to take in resolving the factual questions under MCR 2.116(C)(7) dealing with governmental immunity.” Id. at 431.
We further reiterate that “the motor-vehicle exception applies only to liability for ‘bodily injury and property damage,’ “ Wesche, 480 Mich at 87 n 12, and plaintiff is only entitled to such excess damages should he prevail on the merits.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Sawyer, P.J., and Meter, J., concurred with Saad, J.
We reject plaintiffs claim that this Court lacks jurisdiction to decide this appeal. As this Court recently stated in Seldon v Suburban Mobility Auth for Regional Transp, 297 Mich App 427, 436; 824 NW2d 318 (2012), under MCR 7.203(A) and MCR 7.202(6)(a)(v), “this Court has jurisdiction to decide an appeal of right from an order denying governmental immunity under MCR 2.116(C)(7) or ‘denying a motion for summary disposition under MCR 2.116(0(10) based on a claim of governmental immunity,’ but the appeal is limited to ‘the portion of the order with respect to which there is an appeal of right.’ ” However, the Seldon Court also recognized that “[i]n Walsh v Taylor, 263 Mich App 618, 625; 689 NW2d 506 (2004), this Court interpreted the provisions and opined that ‘regardless of the specific basis of the trial court’s ruling on a motion for summary disposition, whenever the effect is to deny a defendant’s claim of immunity, the trial court’s decision is, in fact, “an order denying governmental immunity,” ’ and is reviewable under MCR 7.203(A) and MCR 7.202(6)(a)(v).” Sheldon, 297 Mich App at 436. Both the issues raised by defendant on appeal relate to whether it is immune from suit, and this Court has jurisdiction to review both issues.
However, plaintiffs reliance on Allen to support his claimed damages is misplaced. In Allen, the Court considered whether the plaintiff suffered a brain injury in the vehicle accident and whether the brain injury constituted a “bodily injury” under MCL 691.1405. Allen, 281 Mich App at 50-51. Here, while plaintiff presented evidence that he sustained a “bodily injury” to his back, his claim for emotional injuries is not one for which he may recover for the reasons set forth in Wesche. Unlike in Mien, here, there is no evidence that plaintiff had an objectively manifested brain injury that might have caused his claimed emotional injuries. Id. at 59-60. | [
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Wilder, P.J.
Defendant appeals as of right from his bench trial conviction of possession with intent to deliver 225 to 649 grams of cocaine, MCL 333.7401(2)(a)(ii). He was sentenced to a term of imprisonment for 240 to 360 months. We affirm.
I. FACTS AND PROCEDURAL HISTORY
On October 21, 1998, at some time between 11:30 and 11:45 P.M., a Chevrolet Cavalier, driven by defendant, passed Officer John Hopkins of the Baroda-Lake Township Police Department, who was patrolling eastbound traffic on I-94. At that time, Officer Hopkins, who was parked in the median between the eastbound and westbound lanes of 1-94, noticed that defendant’s view was obstructed by objects hanging from the rearview mirror in violation of MCL 257.709(l)(c). Officer Hopkins began to follow defendant because of this violation and observed defendant’s car weaving in its lane and speeding, in viola tion of MCL 257.642(l)(a) and MCL 257.628(4). Officer Hopkins executed a traffic stop, informed defendant that he was stopped because of the view obstruction, and because his vehicle was weaving and speeding, and requested defendant’s driver’s license, vehicle registration, and proof of insurance. Defendant promptly provided these items to Officer Hopkins. Defendant also informed Officer Hopkins that he had borrowed the vehicle from his mother. After learning that the vehicle was not registered to defendant, Officer Hopkins asked defendant to get out of the vehicle, which he did. Officer Hopkins then patted defendant down for weapons and asked him to sit in the back of the patrol car.
While in the patrol car, Officer Hopkins ran defendant’s name through the Law Enforcement Information Network (lein). The LEIN check indicated that defendant had two outstanding warrants for domestic violence and unpaid child support; therefore, defendant was placed under arrest. Following defendant’s arrest, Officer Hopkins searched the vehicle and found a black leather jacket with a bulge in the sleeve. Officer Hopkins then reached into the sleeve and pulled out a newspaper flyer wrapped around a bag containing 261 grams of cocaine.
Before trial, defendant moved to suppress the evidence found in the vehicle on the grounds that (1) Officer Hopkins’ stated reasons for stopping defendant were a pretext, (2) no probable cause existed to stop defendant, (3) defendant did not provide consent to search the vehicle, and (4) under the totality of the circumstances, the cocaine must be suppressed as “fruits of the poisonous tree.” Following a suppression hearing held on January 7, 1999, the trial court denied defendant’s motion to suppress.
Defendant’s bench trial commenced on March 25, 1999. During trial, defendant testified that he and his codefendants, who were passengers in defendant’s vehicle at the time of the stop, had gone to Chicago to pay a parking ticket and then gotten haircuts from Kirk Hamill, a friend of defendant’s. Defendant also testified that that they arrived too late to pay the ticket, so he left $30 with Hamill and asked him to pay the ticket on defendant’s behalf. Defendant claimed that while they were at Hamill’s barbershop, Hamill used the telephone, received a telephone call shortly thereafter, and asked defendant to accompany him outside. Defendant further testified, that once outside, Hamill requested his vehicle key, another vehicle arrived, defendant went back inside the barbershop, and then approximately fifteen to twenty minutes later, Hamill returned to the barbershop and informed defendant that he had put a package in defendant’s coat and that he needed it taken to a car wash in Muskegon Heights and given to a man named Kevin Washington. The trial court did not find defendant’s testimony to be believable, instead finding that defendant knew that the package contained contraband and that actual possession of the cocaine had been proved beyond a reasonable doubt. Accordingly, the trial court found defendant guilty as charged and sentenced him to twenty to thirty years’ imprisonment.
n. THE STOP OF DEFENDANT
A. THE INITIAL STOP OF DEFENDANT
On appeal, defendant argues that the reasons given for the traffic stop were a pretext and that the trial court clearly erred in denying his motion to suppress the evidence. We disagree. This Court’s review of a lower court’s factual findings in a suppression hearing is limited to clear error, and those findings will be affirmed unless we are left with a definite and firm conviction that a mistake was made. People v Custer, 242 Mich App 59, 64; 618 NW2d 75 (2000), rev’d in part on other grounds 465 Mich 319; 630 NW2d 870 (2001). See also People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983), and People v Lombardo, 216 Mich App 500, 504; 549 NW2d 596 (1996). In addition, we review de novo the lower court’s ultimate ruling with regard to the motion to suppress. Custer, supra; People v Garvin, 235 Mich App 90, 96; 597 NW2d 194 (1999).
Here, defendant has only provided this Court with excerpts of testimony taken at the suppression hearing. He has failed to provide a transcript of the trial court’s factual findings or legal conclusions as required by MCR 7.210(B)(1)(a). Thus, because we are unable to review the trial court’s factual findings or the legal reasons given for suppressing the evidence, this issue has been waived. People v Anderson, 209 Mich App 527, 535; 531 NW2d 780 (1995); People v Wilson, 196 Mich App 604, 615; 493 NW2d 471 (1992). In any event, we note that Officer Hopkins testified during the preliminary examination, the suppression hearing, and the trial that he intended to stop defendant because defendant’s view was being obstructed by air fresheners dangling from the rearview mirror of the vehicle. Since both defendant and his mother testified that there was at least one air freshener hanging from the rearview mirror, the record supports the conclusion that defendant may have been in violation of MCL 257.709(1)(c). Although defendant denied it, we also note that Officer Hopkins testified that defendant’s vehicle was weaving in its lane and speeding just before being stopped. Hence, Officer Hopkins also had probable cause to believe that defendant was in violation of MCL 257.642(1)(a) and MCL 257.628(4). Because Officer Hopkins had probable cause to believe defendant was in violation of three traffic laws, the stop was permissible. People v Kazmierczak, 461 Mich 411, 421, n 8; 605 NW2d 667 (2000); People v Chambers, 195 Mich App 118, 121-122; 489 NW2d 168 (1992). See also United States v Taylor, 955 F Supp 763, 765 (ED Mich, 1997), quoting United States v Ferguson, 8 F3d 385, 391 (CA 6, 1993) (“ ‘[S]o long as the officer has probable cause to believe the traffic violation has occurred or was occurring, the resulting stop is not unlawful and does not violate the Fourth Amendment.’ ”), and Whren v United States, 517 US 806, 813; 116 S Ct 1769; 135 L Ed 2d 89 (1996) (expressly adopting the Ferguson test for determining the reasonableness of an automobile stop). Consequently, on the basis of the record before us, we find that Officer Hopkins’ stop of defendant’s vehicle was legitimate.
B. THE EXTENSION OF THE STOP
Defendant also argues, for the first time on appeal, that because he was being stopped for a minor traffic violation and since he immediately provided Officer Hopkins with all requested documents, the stop should have only lasted as long as was necessary to write a citation. This issue was not raised below; therefore, it has not been preserved for review. People v Stanaway, 446 Mich 643, 694; 521 NW2d 557 (1994); People v Hamacher, 432 Mich 157, 168; 438 NW2d 43 (1989). Nonetheless, because defendant claims that this search violated his fundamental constitutional rights, People v Grant, 445 Mich 535, 547; 520 NW2d 123 (1994); People v McRunels, 237 Mich App 168, 172; 603 NW2d 95 (1999), and since the issue is a question of law and the necessary facts have been presented, we will review the issue. Grant, supra at 553; People v Lumsden, 168 Mich App 286, 292-293; 423 NW2d 645 (1988).
Defendant’s basic claim is that the cocaine was seized as a result of an unlawful search because the intervening detention between the stop and the finding of outstanding warrants was not justified. Specifically, defendant argues that because he cooperated with Officer Hopkins there was no reason to place him in the police car or to investigate any further. When a defendant claims that evidence should be suppressed as a result of an unlawful seizure, the court must ask whether the evidence was gained by exploitation of the alleged illegality. People v Lambert, 174 Mich App 610, 616-617; 436 NW2d 699 (1989). Here, defendant was placed under arrest after a LEIN check revealed two outstanding warrants. After his arrest, the vehicle was searched. Accordingly, the vehicle was searched in a valid search incident to an arrest. People v Fernengel, 216 Mich App 420, 422-423; 549 NW2d 361 (1996), citing New York v Belton, 453 US 454, 460; 101 S Ct 2860; 69 L Ed 2d 768 (1981), and United States v Hudgins, 52 F3d 115, 119 (CA 6, 1995). See also People v Bullock, 440 Mich 15, 26; 485 NW2d 866 (1992). Because Officer Hopkins’ decision to place defendant in the patrol car in no way contributed to the finding of the cocaine, we find that suppression of the evidence was not warranted. Fernengel, supra at 423-424; Lambert, supra at 617-618.
In addition, we find defendant’s reliance on People v Burrell, 417 Mich 439; 339 NW2d 403 (1983), where our Supreme Court noted that “[a] detention following a stop for ... a minor [traffic] violation would be justified only for the length of time necessary to write a citation[,]” id. at 453, unpersuasive. There, the Court disapproved of the officer’s continued detainment of the defendants after a lein check indicated that the driver had a valid driver’s license and that the vehicle was not stolen. Id. However, the Court expressed no opinion regarding whether an officer could run a lein check as a matter of course and, instead, seemed to suggest that a LEIN check was an appropriate way to ensure that a stopped driver had a valid driver’s license and was not in possession of a stolen vehicle. Id. Here, defendant stated he was driv ing a vehicle registered to his mother. Thus, it was appropriate for Officer Hopkins to run a lein check to verify the identity of the registered owner.
Finally, we note that a review of Michigan cases demonstrates a recognition that the running of LEIN checks of vehicle drivers is a routine and accepted practice by the police in this state. See People v Combs, 160 Mich App 666, 668; 408 NW2d 420 (1987) (LEIN check conducted on driver of vehicle stopped in median of highway). See also People v Hubbard, 209 Mich App 234; 530 NW2d 130 (1995), and People v Oliver, 192 Mich App 201, 203; 481 NW2d 3 (1991) (vehicle stopped after it was discovered the license plate belonged to another vehicle); Young v Barker, 158 Mich App 709, 714; 405 NW2d 395 (1987) (lein check performed when vehicle stopped on highway and the plaintiff did not have a license); People v Bell, 74 Mich App 270, 276; 253 NW2d 726 (1977) (a LEIN check two days before justified the officer’s stop of the driver’s vehicle); People v Portman, 73 Mich App 366, 369; 251 NW2d 589 (1977) (rolling lein check performed on vehicle with outdated license plate).
In addition, we note that in at least two circuits the United States Court of Appeals has held that an officer conducting a routine traffic stop may run computer checks on the driver’s license, the vehicle registration papers, and on whether the driver has any outstanding warrants or the vehicle has been reported stolen. See United States v Mendez, 118 F3d 1426, 1429 (CA 10, 1997), citing United States v Elliot, 107 F2d 810, 813 (CA 10, 1997); United States v White, 81 F3d 775, 778 (CA 8, 1996). See also Taylor, supra at 766. Once the computer check “confirms the driver has produced a valid license and proof of entitlement to operate the car, the driver must be permitted to proceed on his way, without further delay by police for additional questioning.” Mendez, supra, citing United States v Anderson, 114 F3d 1059, 1064 (CA 10, 1997). Here, the lein check indicated that defendant had two outstanding warrants. In addition, Officer Hopkins testified that the lein check took about five minutes to complete and this testimony was not contradicted by defendant; instead, defendant simply testified that Officer Hopkins told him it would take about ten to fifteen minutes to confirm the warrants after they were discovered by lein. Thus, Officer Hopkins had a valid reason to extend the stop and to continue to ask defendant questions. Mendez, supra at 1429-1430, citing Anderson, supra at 1064; Elliot, supra at 813. Further, as stated in People v Walker, 58 Mich App 519, 523-524; 228 NW2d 443 (1975), we find that
[a] lein check is an unobtrusive investigative tool employed by the police to retrieve information regarding an individual’s driving record and to determine whether there are any outstanding warrants for his arrest — all matters of public record. As such, a lein check does not involve an unlawful disregard for individual liberties.
Accordingly, because this amount of time is a minimal invasion in light of the substantial governmental interest in arresting citizens wanted on outstanding warrants, see State v Lopez, 873 P2d 1127, 1133 (Utah, 1994), we find Officer Hopkins’ use of the lein check in this case did not violate defendant’s constitutional rights.
m. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also claims that he was denied the effective assistance of counsel by his counsel’s decision not to call certain witnesses to testify on his behalf. Because defendant failed to move for a new trial or request a Ginther hearing below, our review of this issue is limited to mistakes apparent on the appellate record. People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000), citing People v Marji, 180 Mich App 525, 533; 447 NW2d 835 (1989). If the record does not contain sufficient detail to support defendant’s ineffective assistance claim, then he has effectively waived the issue. Sabin, supra.
Decisions regarding what evidence to present and whether to call or question witnesses are presumed to be matters of trial strategy, and this Court will not substitute its judgment for that of counsel regarding matters of trial strategy. People v Rockey, 237 Mich App 74, 77; 601 NW2d 887 (1999), citing People v Mitchell, 454 Mich 145, 164; 560 NW2d 600 (1997), and People v Barnett, 163 Mich App 331, 338; 414 NW2d 378 (1987). Further, “a defendant must overcome a strong presumption that the assistance of his counsel was sound trial strategy, and he must show that, but for counsel’s error, the outcome of the trial would have been different.” Sabin, supra at 659, citing Stanaway, supra at 687. Here, defendant claims that his counsel was ineffective because counsel failed to call the codefendants, Hamill, or defendant’s mother as witnesses. However, the record does not suggest how any of these witnesses would have benefited defendant’s case, and defendant has not provided this Court with affidavits indicating what the proposed testimony of the codefendants or Hamill would have been. Further, with regard to the character evidence that would have been presented by defendant’s mother, counsel attempted to offer this testimony; however, the trial court correctly sustained the prosecution’s objection that it was irrelevant testimony. Therefore, defendant has failed to overcome the presumption that his counsel’s decision not to call those witnesses was sound trial strategy. Sabin, supra; Rockey, supra.
IV. SENTENCING
A. PROPORTIONALITY OF SENTENCE
Defendant next argues that his sentence is disproportionate. However, defendant was sentenced to the mandatory minimum sentence of 240 months, which, as a legislatively mandated sentence, is presumptively proportionate. People v Williams, 189 Mich App 400, 404; 473 NW2d 727 (1991). The factors raised by defendant in an effort to reduce the sentence — strong family background, prior work history, and no prior drug-related offenses — do not overcome this presumption of proportionality. People v Daniel, 207 Mich App 47, 54; 523 NW2d 830 (1994). Remorse, another factor raised by defendant, is also a factor that the Michigan Supreme Court has disapproved of as a basis for departure from the mandatory minimum sentence. People v Daniel, 462 Mich 1, 6; 609 NW2d 557 (2000).
B. NEW SENTENCING GUIDELINES
Defendant’s final argument is that he should have been sentenced under the new sentencing guidelines. This issue is without merit. Defendant’s sentence was based on events that occurred on October 21, 1998. This Court has clearly stated that because the legislative intent of MCL 769.34 was that the statute would only have prospective application, the new guidelines will only be applied to offenses committed on or after January 1, 1999. See People v Reynolds, 240 Mich App 250, 253-254; 611 NW2d 316 (2000). See also Administrative Order No. 1998-4, 459 Mich clxxv, and Administrative Order No. 1988-4, 430 Mich ci.
V. CONCLUSION
In sum, (1) the initial stop of defendant was legitimately based on probable cause that three traffic violations had been committed, (2) Officer Hopkins did not violate defendant’s constitutional rights by running a LEIN check of his driver’s license, which check revealed two outstanding warrants, (3) defendant has failed to persuade us that he did not receive effective assistance of counsel, (4) defendant’s sentence was proportionate, and (5) defendant was properly sentenced under the judicial sentencing guidelines of 1988.
Affirmed.
MCL 333.7401 provides, in part:
(1) Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver, a controlled substance ....
(2) A person who violates this section as to:
(a) A controlled substance classified in schedule 1 or 2 that is ... a narcotic drug . . . and:
(ii) Which is in the amount of 225 grams or more, but less than 650 grams, of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for not less than 20 years nor more than 30 years.
Officer Hopkins was actually employed by both the Baroda-Lake Township Police Department and the Berrien County Sheriffs Department. On the night in question he was working as an officer for the police department.
MCL 257.709(l)(c) provides, in part:
(1) A person shall not drive a motor vehicle with any of the following:
* *
(c) A dangling ornament or other suspended object except as authorized by law which obstructs the vision of the driver of the vehicle.
MCL 257.642(l)(a) states, in part:
(1) When a roadway has been divided into 2 or more clearly marked lanes for traffic the following rules in addition to all others consistent with this act shall apply:
(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver first ascertained that the movement can be made with safety.
MCL 257.628(4) states:
A person who fails to observe an authorized speed or traffic control sign, signal, or device is responsible for a civil infraction.
Defendant has not provided a transcript of the trial court’s ruling on this issue; therefore, we are unable to recite the reasons given by the trial court for denying the motion.
The codefendants were acquitted of all charges and are not a part of this appeal.
We also note that several states have adopted this approach. See State v Ybarra, 156 Ariz 275, 276; 751 P2d 591 (1987); People v Rodriguez, 945 P2d 1351, 1360 (Colo, 1997); People v Eyler, 132 Ill App 3d 792, 798; 87 Ill Dec 648; 477 NE2d 774 (1985); State v DeMarco, 263 Kan 727, 729, 733; 952 P2d 1276 (1998); State v Bartholomew, 258 Neb 174, 179; 602 NW2d 510 (1999); State v Lopez, 873 P2d 1127, 1133 (Utah, 1994).
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
Defendant asserts that his mother would have testified that he was a professional singer; however, because the prosecution never asserted financial status as a motive for transporting the drugs, defendant’s profession or ability to make a living was irrelevant to this case. See MRE 401 and 402.
MCL 769.34 states, in part:
(1) The sentencing guidelines promulgated by order of the Michigan supreme court shall not apply to felonies enumerated in part 2 of chapter XVH committed on or after January 1, 1999.
(2) Except as otherwise provided in this subsection or for a departure from the appropriate minimum sentence range provided for under subsection (3), the minimum sentence imposed by a court of this state for a felony enumerated in part 2 of chapter XVII committed on or after January 1, 1999 shall be within the appropriate sentence range under the version of those sentencing guidelines in effect on the date the crime was committed. | [
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] |
Grant, J.
(after stating the facts). The first error alleged is that the court erred in permitting the prosecuting attorney to indorse the names of two witnesses upon the information on the day of the trial, and before the jury was sworn to try the case. The prosecuting attorney testified that he gave notice to one of the defendant’s attorneys immediately upon receiving information that these two witnesses were essential. That was the 22d day of January, — eight days before the trial. We think the prosecuting officer moved promptly, and that the court committed no error in allowing their names to be indorsed.
A deputy sheriff testified that he followed the tracks .of a vehicle from the scene of the burglary out upon a highway, and that he met two men in a buggy. He was permitted to state what these two men said to him about meeting a buggy, describing it, the condition of the horse, etc. Subsequently the court, upon motion, struck this testimony out. It is urged that it was of a damaging character, and that the injury to the defense was not cured by striking it out. We do not think the testimony was of such a character, under the record, as to justify a reversal of the case for the error, if error it was, which the court itself cured by striking out the testimony. We cannot assume that the jury were so forgetful of their duty as to hot disregard this testimony after it was stricken out.
It is next urged that the court erred in permitting an officer to testify that the wife of the defendant, at the time the room was searched, stated that the room and the bed in which the goods were found were hers, and in admitting in evidence the goods found, done up in cretonne, and hid in the bed upon which she was then lying. It was openly proved by other testimony that this was her room, that her husband occupied it with her, and that many of his letters were found there. Even if this testimony had been excluded, no doubt could have existed in the mind of the jury that this was Mrs. Gregory’s room, and was occupied by her and her husband. The point is without merit.
It is next urged that it was error to permit the introduction of evidence to show the finding of the burglarious tools upon the premises of Mrs. Snover at the time of the respondent’s arrest. It is true that this was some time after the alleged burglary. The testimony .on the part of the prosecution tended to show that he was the only one •living upon the farm where the tools were found, and that he worked the farm during the years 1897 and 1898, and that he alternated between the farm and the boarding house of Mrs. Snover, where his wife lived. We think the testimony was properly admitted.
We find no error upon the record, and the judgment is affirmed.
Hooker, O. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Montgomery, J.
This case has once been before the court on demurrer to the bill of complaint, and is reported in 123 Mich. 321 (82 N. W. 125), to which reference should be had for an understanding of some of the questions involved. As the case was there presented, we held that, upon the face of the bill, the complainant was entitled to relief, but the case was remanded, with leave to the defendants to answer over. An answer has since been filed, and the case determined upon proofs taken, and the bill dismissed. Complainant appeals.
As the case is now presented, the following facts appear: Prior to October, 1889, Amos Bissell and George N. Bis-sell were general copartners under .the firm name of Amos Bissell & Son. The land which is the subject of this controversy was in fact copartnership property, but was deeded to them as tenants in common by Oscar Demott on November 19, 1869, by a warranty deed, which was of record. In October, 1889, Amos Bissell died. On December 27, 1892, George N. Bissell and Hannah Bissell made a contract with defendant John Peter Johnson to sell him the land for $629.40. On September 26, 1893, George N. Bissell assigned this contract to his wife, Hannah Bissell, as security for the repayment of her notes loaned to him. On November 14, 1893, Hannah Bissell assigned this contract to complainant. On November 23, 1893, George N. Bissell, individually and as survivor of the firm of Amos Bissell & Son, conveyed to one Brooks, as receiver of George N. Bissell individually and of said firm, the land in question. On November 20, 1894, said Brooks, as receiver, executed a deed to Philip H. Potter. These two last-mentioned deeds were recorded April 2, 1895, after the levy of defendant, hereinafter referred to. On March 3, 1898, George N. Bissell, by quitclaim deed, conveyed to complainant. On the same date the heirs of Potter conveyed to complainant. The defendant bank caused a levy to be made on this land on December 19, 1894, and a sale under the execution was made on April 15, 1895.
The first question presented is as to the effect of these conveyances. The statute (3 Comp. Laws, § 9224) provides for the filing of notice of a levy with the register of deeds, and further provides that, upon such notice being filed, “such levy shall be a lien thereon from the time when such notice shall be so deposited; and the lien thus obtained shall, from the filing of such notice, be valid against all prior grantees and [mortgagees] mortgages of whose claims the party interested shall not have actual nor constructive notice.” This statute scarcely requires construction, and it is clear that as to rights claimed by virtue of conveyances from George N. Bissell, directly or indirectly, and not recorded at the time the levy was made, the defendant’s levy is entitled to priority. See Corey v. Smalley, 106 Mich. 257 (64 N. W. 13, 58 Am. St. Rep. 474).
The next question is whether the complainant is entitled to priority over the defendant as a firm creditor. As before stated, the conveyance to the Bissells gave no indication upon the face of the record that the parties were other than tenants in common. There was no notice that the two grantees were copartners, and, under such circumstances, the creditor levying on the land would be justified in assuming that the lands were held by the two parties as tenants in common. See Hammond v. Paxton, 58 Mich. 393 (25 N. W. 321). But the claim is made that the evidence showed that there was actual notice that these were copartnership lands. Unfortunately for this contention, the complainant’s evidence fails upon this branch of the case. Mr. Lemuel Clute was a witness in his lifetime, and the question of notice depended upon his recollection and that of Judge Vernon H. Smith, the president of the defendant bank. Judge Smith does not recollect any conversation in which notice of the copartnership was given to him, nor that he had any knowledge of it prior to the time of the levy and sale under the execution. Mr. Clute’s testimony, while entirely candid, was of a distinctly negative character. He testified:
“ It seems to me that the judge and I must have talked it over on that theory. If he didn’t say that he didn’t recollect it as such, I should feel sure that we did. That is all.”
We think that this testimony is not sufficiently positive to justify us in basing a finding upon it, — certainly not sufficient to justify us in overturning the conclusion of the circuit judge. We find, then, that on the face of the record there was no notice that these lands were copartnership lands. The defendant had the right to assume that the parties were tenants in common. George N. Bissell was the sole heir at law of his father, and the title was fully vested in him, subject only to the rights of creditors •of Amos Bissell, who, as such, should .pursue his property.
But it is claimed that this complainant is entitled to a prior equity by reason of its position as creditor of the firm of Amos Bissell & Son; and, upon the averments as made in the bill of complaint, this court, when the •case was-here before, intimated that such equity existed. But the case presents itself in a very different aspect after the proofs have been introduced. It appears now that Amos Bissell died in 1889; that the complainant then held a claim against Amos Bissell & Son; that, after the death of Amos Bissell, new notes were accepted from time to time, made by George N. Bissell, indorsed by Hannah Bissell and Amos Luther, until 1893, at which time judgments were taken against these parties upon the notes. Can it be said'that these obligations so sued upon were firm debts ? We think not. It was not within the power of the surviving partner to continue to give firm paper after the dissolution of the copartnership by the death of one member. See Matteson v. Nathanson, 38 Mich. 377; Potter v. Tolbert, 113 Mich. 486 (71 N. W. 849). And while it may be a question of fact as to whether it was the intention to discharge the estate, yet, in view of the fact that George N. Bissell was the sole heir of the deceased partner, and was continuing the business in a manner entirely unauthorized by the law relating to the winding up of copartnership affairs, it must, be assumed that the complainant, in continuing to extend this paper from time to time, elected to accept his personal responsibility, rather than that of the estate of the deceased partner. See Childs v. Pellett, 102 Mich. 558 (61 N. W. 54); Smith v. Shelden, 35 Mich. 42 (24 Am. Rep. 529). It must be held, then, that the bank, in. accepting the assignmenc from Hannah. Bissell, received it, not in payment of a debt of the late copartnership, but in payment-of a debt of George N. Bissell, upon which Hannah Bissell was a surety.
The decree dismissing the bill will be affirmed, with costs.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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Montgomery, J.
This is a contest over the probate of the will of George Jerome Parker. On the trial at the circuit the two questions of. undue influence and mental incapacity were submitted to the jury, and a verdict denying- probate of the will was rendered. The proponent brings error.
At the close of the testimony the proponent made a motion to withdraw the case from the consideration of the jury, and in this court contends that there was no evidence tending to show either mental incapacity' or undue influence.
As to the question of undue influence, it may be said that there was no direct proof that at the very time the will was executed any solicitation on behalf of the legatees was made. For evidence of undue influence we must look elsewhere. The immediate relatives of the deceased were Alice London and May Parker, nieces. There was testimony tending to show that the relations between the deceased and these nieces were friendly, and had always been so. The deceased was a farm laborer, who had accumulated about $3,500 through his labor and savings. About two years before his death, a cancer made its appearance upon his lip. He then had an operation, and the cancer was removed, which gave temporary relief. About a year later, another cancer appeared upon his hand. Another operation was performed, btífc, a short time afterwards, the disease manifested itself in a serious form in his right armpit, and it progressed so rapidly after its first appearance that within a few months he was taken to a hospital, where another operation was performed to l’emove the same.
For two years prior to his death he had a room in the basement of a building called the “Melrose Flats,” where he did his own cooking. During the summer prior to his death he had been in the habit of calling upon his friends in the country south of the city, and during this time he declared to some of his friends that he expected his property to go to his heirs, and had no intention of making a will. There is some testimony of other declarations inconsistent with this. In the latter part of October he became so bad that he was taken to the residence of his aunt, Jane McKenzie. At this time he had been sick two or three months, and was not in condition to do any work. He could hot use his right arm. jete was weak, and getting weaker every day, and had the attendance of a doctor nearly every day. He died on the 30th of November.
On the 3d of November proponent called at Mrs. McKenzie’s, and took Mr. Parker in his buggy, and conveyed him to his place in the country, some eight miles distant. At this time there was testimony tending to show that he was in such a condition that he had been unable for more than a week to keep anything on his stomach except whisky sling, that he could not eat solid food, and that for a week before he went to Wilson’s he had not sat up all day. When Wilson proposed his going, Mrs. McKenzie said that Mr. Parker was very weak, and suggested that it was a long ride out to Wilson’s place for so weak a man. Before Wilson took decedent away, he had had the attendance of one Andrew Wright as a nurse, who dressed his arm, put on his clothes, and assisted him up and down stairs. He had also had the attendance of a doctor.
On the 12th of November Wilson brought decedent back to the city, took him to his room in the basement of the Melrose Flats, built a fire, and left decedent there,' while he went to find some one to prepare a will. Judge Perkins was found, and visited the room where decedent was, and prepared the will in the presence of Wilson, and it was duly signed and witnessed. Decedent was then taken back to Mrs. McKenzie’s. Mr. Wright, his former attendant, was sent for and attended him. He was found in such a weak condition that he had to be carried upstairs, and the nurse remained with him until about midnight. The doctor was also called in. He continued from this time to grow worse, and died on the 30th of November following.
The will bequeathed to the two nieces $200 each. It gave to his aunt, Jane McKenzie, $500. It gave to the proponent, Wilson, $300, to Wilson’s wife $200, to Wil son’s son $100, and to three Huntley children $100 each; the Huntleys being relatives of Wilson. It provided for a monument, at a cost of $100, and made the proponent, Wilson, residuary legatee.
We have not attempted, and shall not attempt, a detailed statement, in this connection, of all the testimony bearing upon the question of decedent’s condition. The opportunity for the exercise of undue influence was certainly present, and, taken in connection with the fact that the will was made largely in favor of the proponent, under whose influence decedent was, together with the suspicious fact of his having taken him to this cold room in the basement of the Melrose Flats, instead of returning him to his relative’s, and having the will executed there, we think justified the submission of the question of undue influence to the jury. . As was said in Rivard v. Rivard, 109 Mich. 98 (66 N. W. 681, 63 Am. St. Rep. 566):
“Undue influence is largely a matter of inference from facts and circumstances surrounding the testator, his character and mental condition as shown by the evidence, and the opportunity possessed by the beneficiary for the exercise of such control.”
It is true that cases may be so clear that, even where opportunity and motive are shown, the court may be justified in withdrawing the question of fact from the consideration of the jury. But we do not find this such a case.
As to the question of mental capacity, Dr. William Clark, who was the attendant of the decedent before he went to the country and after he returned, in answer to the question:
“Then he was in that condition of mind, or body and mind, where he was easily influenced, carried away by the surroundings ?” replied :
“Yes, I think he might be influenced.
“ Q. You give that as your opinion as a physician, and knowing the man ?
“ A. Well, I don’t know as it is a medical question, but that is the opinion I have of a man in that condition, —he could be influenced by those who were kind to him. I have expressed an opinion in relation to Mr. Parker that his will would have been made in favor of some one else had he been in their charge at the time. * * * I told somebody, shortly after Mr. Parker died, that if Mr. Parker had been at Huntley’s, or at any other place instead of Wilson’s, they would probably have got his property had they done as Wilson did.”
It is true this testimony does not go the length of showing absolute mental incapacity. But there was testimony by other witnesses tending to show a want of mental capacity, if their testimony is held competent. It is contended, however, that some of the testimony offered upon this branch of the case was incompetent. ■ The question as to whether the opinions of the witnesses Woodard, Wright, and London were receivable rests upon whether a proper foundation was laid by a statement of facts within the knowledge of the witnesses respectively. Without reciting at length the testimony of these different witnesses, an examination of the record satisfies us that there was sufficient to justify the court in receiving the opinions of the witnesses. The criticism -as to the foundation goes rather to the weight of the testimony than to its admissibility.
The other questions presented do not require discussion.
The judgment will be affirmed.
Hooker, C. J., and Moore, J., concurred with Montgomery, J. | [
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Grant, J.
(after stating the facts). The ruling of the judge appears to have been based upon the theory that the declaration disclosed a case prima facie privileged, and that it was fatally defective in not alleging that the publication was not within the privilege, or that the defendant exceeded her privilege. Counsel for the plaintiff insist that the averment that the statements were false and malicious negatives every possibility of pertinency, materiality, and relevancy. We do not so understand the •rule. If statements made in the course of judicial proceedings, in pleadings or in argument, are relevant, material, or pertinent to the issue, their falsity or the malice of their author is not open to inquiry. They are then absolutely privileged. Hoar v. Wood, 3 Metc. (Mass.) 193, 197; Maulsby v. Reifsnider, 69 Md. 143 (14 Atl. 505); Moore v. Bank, 123 N. Y. 420 (25 N. E. 1048, 11 L. R. A. 753); 2 Stevens, Mich. Prac. § 275. It is only necessary that the language be pertinent, or, as some authors say, relevant. Chief Justice Shaw in Hoar v. Wood said:
“In determining what is pertinent, much latitude must be allowed to the judgment and discretion of those who are intrusted with the conduct of a cause in court, and a much larger allowance made for the ardent and excited feelings with which a party, or counsel, who naturally and almost necessarily identifies himself with his client, may become animated, by constantly regarding one side only of an interesting and animated controversy, in which the dearest rights of such party may become involved. ”
Where a party shows in his declaration a publication-presumptively privileged, it is his duty, in order’ to recover, to prove that the words spoken were not pertinent or relevant, and that they were not spoken bona fide. Mower v. Watson, 11 Vt. 536 (34 Am. Dec. 704); Henry v. Moberly, 6 Ind. App. 490 (33 N. E. 981); McNabb v. Neal, 88 Ill. App. 571; Johnson v. Brown, 13 W. Va. 71. If it be necessary to prove this, it is equally necessary to-allege it. All the information the declaration gives is that the words complained of were uttered in an answer to a bill in chancery filed to obtain a partition of lands.. For all that appears there may have been averments or allegations in the bill in chancery to which the averments of the answer were responsive.
Did the failure to demur waive the objection? The defective statement of a cause of action is waived by a failure to demur. But in such cases the declaration must state a case. Material averments, essential to maintain a. cause of action, are not waived. Parker v. Armstrong, 55 Mich. 177 (20 N. W. 892); Schindler v. Railway Co., 77 Mich. 136 (43 N. W. 911).
It is urged by the defendants that pleadings are absolutely privileged, and that no action of libel based thereon will lie. In England they are held absolutely privileged. In this country the authorities are divided. The question has not been directly decided by this court. This court in Hart v. Baxter, 47 Mich. 198 (10 N. W. 198), recognized that there was a limit to the privilege, and approved the rule as stated in Hoar v. Wood, 3 Metc. (Mass.) 193. The statement was purely dictum, and was made after the court had decided the question that the statements complained of there were relevant, and therefore privileged. The same remark is true of many of the ■cases cited in 18 Am. & Eng. Enc. Law (2d Ed.), 1024. The question is an important one. Inasmuch as it is not necessary to now decide the question, we refrain from ■expressing any opinion.
Judgment is affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Long, J.
This is a suit on a fire-insurance policy. The policy was for $500, dated August 22,1898, for three years, covering the household goods in plaintiff’s cottage at Edi son. Beach, situate between one and two miles from his photograph gallery in Port Huron. The policy was the usual Michigan standard form. The plea was the general issue, with notice: First, a vacancy for more than 10 days prior to the fire; second, failure to furnish proofs of loss. The case was tried before a jury, who returned a verdict in favor of plaintiff. Defendant brings error.
The policy provides that it shall be void if the building therein described be or become vacant or unoccupied, and so remain for 10 days, provided a loss shall occur while such breach continues. It also further provides that no officer, agent, or representative shall have power to waive any of the provisions of the policy, except such as are made the subject of agreement by the policy, and that, as to such provisions, no officer or agent shall have such power unless the waiver be written on or attached to the policy; nor shall any privilege or permission affecting the insurance be claimed by the insured unless so written or attached.
It appears that on August 22, 1898, Manes, the local agent, issued the policy to the plaintiff on the furniture, and delivered it to the plaintiff, received the premium therefor, and, remitted it to the company. About November 14, 1898, the plaintiff also held a policy in the Western Insurance Company, covering the house or cottage. He applied to Manes to have the matter so arranged that he might be away from the house a part of the time for about two months. With the plaintiff’s consent, the policy in the Western Insurance Company was canceled, and a new policy issued in the Washington Insurance Company, containing a five months’ vacancy clause. Manes was the agent of this company, as well as the Illinois Insurance Company. He told the plaintiff he did not think it necessary to have vacancy permits; that the policies would be good without them. But the plaintiff desired to have no doubt about the matter, and insisted upon having the permits arranged for, and handed the Illinois policy to Manes for that purpose. Manes, at his own suggestion, went to Detroit to arrange for the consent of the Illinois Insurance Company to the granting of a five months’ vacancy permit, and the plaintiff paid him $3 therefor. Manes did go to Detroit, and on his return told the plaintiff that the permit had been attached to the Illinois policy. The policy was not given back to the plaintiff, but was sent either by Manes,' or Bamlet & Miller, the Detroit agents of the defendant company, to the company at its head office, who canceled it without plaintiff’s knowledge. Thereafter the plaintiff moved a portion of his furniture to his photograph gallery in Port Huron, going back to the cottage from time to time, sleeping there a portion of the time, and taking some of his meals there. He had boarded up the windows of the cottage all around, only going there occasionally.
The fire occurred January 5, 1899. It appeared that, after the fire, a man by the name of Miller, of the firm of Bamlet & Miller, came to Port Huron to adjust the loss. He directed the plaintiff to make out proofs of loss, and agreed to mail plaintiff a printed list of household goods, which the plaintiff was to fill out. The plaintiff made out the list, and testified that he showed the same to Miller, who said it was all right. On February ?th the plaintiff wrote the company, stating that, after waiting 30 days, he learned that, through some fault of the Detroit agency, his policy had been canceled; that he got np satisfaction from the local office, — and asked that the company write him about his loss. On the same day plaintiff’s attorney also wrote the company of the loss sustained by the plaintiff, and asked when plaintiff could expect payment of his insurance. After these letters were written, a man by the name of Corry came to Port Huron, having in his possession the policy issued to the plaintiff, and it is claimed by the plaintiff that Corry then stated to him that the defendant company denied all liability; and thereafter no proofs were forwarded to the company. The plaintiff testified that, when Corry appeared with the policy at Port Huron, he was introduced to him by Manes as the adjusting agent of the company.
The court charged the jury as to the defendant’s contentions as follows:
“Now, the defendant in this case, as I have told you, admits the issuing of the policy. It admits that it was legally executed, and that it was not canceled by the delivery to Manes, and the word ‘ Canceled ’ written upon it; and the company makes no claim whatever under the word ‘Canceled.’ So you may consider the policy as valid, unless defeated by a failure to comply with the conditions as to occupancy and proofs of loss. Defendant claims that, under this policy, plaintiff has lost all right, because from some time in November or December, 1898, up to the time of the fire, in January, 1899, the house in which the furniture was stored was vacant or unoccupied, against the form and condition of this policy. The defendant also claims that in the fall of 1898 Mr. Morgan permanently removed from this residence, and took up his residence downtown in the gallery, intending to- remain away until warm weather, or at least until after February, 1899. Defendant also claims a failure by the plaintiff to make any proofs of loss as required by the policy; and the defendant also denies the plaintiff’s claim that such proofs have ever been in any way waived by the defendant company.
“Now, gentlemen, as to whether this house was vacant or unoccupied, — I am using the words of the policy now, —I have concluded to leave the question to you. I will tell you what the law means by ‘vacant or unoccupied,’ in reference to a dwelling house. For a dwelling house to be in a state of occupation, there must be in it the presence of human beings as at their customary place of abode; not absolutely and uninterruptedly .continuous, but that must be the place of usual return and habitual stoppage. It is not sufficient, therefore, that furniture, tools, or other chattels may be left in the building, or that it is occasionally visited or inspected by some one, or is used and controlled, though not inhabited, by a tenant, or is used temporarily as a place of abode, or that unsuccessful efforts have been made to procure an occupant; and occupancy by one who has conspired to burn the building will not be considered occupancy. Referring back to the definition, a dwelling house, to be in a state of occupancy, must have in it the presence of human beings as at their customary place of abode; not absolutely and uninterruptedly continuous, but that must be the place of usual return and habitual stoppage. Then temporary absence, either on pleasure or from accident or for business purposes, does not constitute a dwelling vacant or unoccupied, within the terms of this policy; and I charge you that if Mr. Morgan left the place only temporarily, and if it was his permanent home, and if he intended to return to it; if, as you ordinarily view houses and homes, it was his residence and his home, and that this was only a temporary absence, —why, then, that absence would not defeat his policy. But if he left it, as is claimed by the defendant here, with the intention of remaining permanently downtown all winter, and not to return until spring, or until February, with the definite purpose in his mind to live down here during that time, then his absence would not be what the law calls a temporary absence, and his policy would be avoided, unless the company assented to the absence or vacancy, or want of occupancy, as is contended, to which I will refer later.
“Now, I charge you, gentlemen, that from what was said and done here by Mr. Manes in introducing Mr. Miller to Mr. Morgan as defendant’s State agent, in connection with the fact that Miller inspected this property, and directed Morgan as to how to make out his loss, and in connection with, the fact that the schedule which was made out in pursuance to that direction comes from the company, and is produced here by the company, and in view of the fact that Mr. Corry, when he came here, brought the plaintiff’s policy with him, I charge you that those men had authority to represent the defendant company, and that whatever they did was binding upon the defendant company; and if you find that Mr. Corry said to the plaintiff that this company repudiated all liability, because the policy was canceled, that would excuse the plaintiff from making any other proof of loss. If you find that Mr. Corry did not say that, why, then, the plaintiff, not having made his regular proof of loss under the policy, is not entitled to recover. So that you will ascertain whether the company, through its representative, Mr. Corry, repudiated all liability under this policy, and claimed that it was canceled; and, if you find that that was not done, then I charge you that the papers — the list of goods furnished here by Mr. Morgan — would not be a compliance with the conditions of his policy, and would not be a proof of loss, and he would not be entitled to recover. * * *
“I shall have to repeat a little, in giving some requests which I am called on to give here. If you find from the evidence that the policy of insurance sued upon in this case was delivered by the plaintiff to E. E. Manes, the agent of the defendant, for the purpose of securing a vacancy permit, and if, at the time of the fire, the policy was in the hands of the insurance company upon the plaintiff’s understanding that it was there for the purpose aforesaid, and the agent had neglected to return it to him, and if you find that the agent, by mistake, had written the word ‘Canceled’ upon the policy, and left it with the State agent of the company, I charge you (it is conceded here that the word ‘ Canceled ’ shall have no effect) those acts, if you find that Manes agreed to indorse a vacancy permit upon it, and told Mr. Morgan that it was already indorsed, would constitute a waiver of that condition of the policy requiring that vacancy permit, and, so far as that condition is concerned, plaintiff would be entitled to recover.
“I charge you, also, that if you find that, at the time of the fire, plaintiff was only temporarily absent from his dwelling house, and left his household furniture, etc., in the house with the intention of returning, that the premises would not be unoccupied and vacant, within the meaning of this policy, and, if otherwise liable, this company would be responsible for the loss. At the same time, in giving you this request, I remind you again of the definition which I have given you of what constitutes occupancy of a dwelling house.
“It is claimed by the defendant that it is not liable, because the plaintiff failed to furnish proofs of loss, verified, within 60 days after the fire. .Now, I charge you that this is a clause in the policy that an insurance company has a right to waive strict compliance with; and when it does waive such proofs of loss, either expressly, or by a course of conduct calculated to throw the insured off his guard, as by a distinct ref usal to pay the loss, based on some other defense, so that proofs are not furnished within the time fixed by the policy, it cannot afterwards take advantage of the delay, and set it up as a defense to an action on the policy. I therefore charge you that if the defendant, through its agents who had in charge the adjustment of the plaintiff’s loss, denied liability and refused payment upon the sole ground that the policy was canceled at the time of the fire, and- for that reason there is no liability existing on the part of the insurance company, then I charge you that this would be a waiver of the right of the insurance company to require the proofs of loss mentioned in the policy of insurance, and, if the defendant is otherwise liable, plaintiff would be entitled to recover.”
We think this charge presented to the jury all the questions which, under the testimony in the case, were proper to be submitted, and that the learned circuit judge correctly stated the law, under the circumstances shown. We think that, when Corry appeared at Port Huron in possession of the policy, which he had apparently received from the home office, the plaintiff might well have regarded him as the agent of the company, authorized to make statements that the company denied liability, and that he was therefore justified from that moment in withholding any proofs of loss, and that this statement, under our decisions, amounts to a waiver of proofs of loss.
We think, also, that the plaintiff, under the statement of Manes, the agent of the company who issued the policy, collected the premium, and received the $3 for the vacancy permit, had a right to rely upon such statement that the vacancy permit had been issued and attached to the policy.
Prom a careful examination of the record, we are satisfied that the case was fairly submitted to the jury.
The judgment must be affirmed.
The other Justices concurred. | [
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] |
Per Curiam.
During the summer of 1901 a county-drain was established. Proceedings were taken for the purpose of apportioning assessments and letting contracts. September 3, 1901, the relator, as supervisor for his township, filed an application with the respondent for the purpose of having said assessment reviewed. The respondent was of the opinion that, until the township of which relator was supervisor had authorized the supervisor to take •action, the supervisor could not take the appeal, and de■clined to grant the appeal. The sole question in this matter is, Can the supervisor of the township take the appeal provided for in section 2 of chapter 5 of Act No. 272 of the Public Acts of 1899, without the authority of the people of the township at a township meeting, and without the authority of the township board?
The statute now in force provides as follows:
“Any township or townships assessed a per cent, for benefits for the construction of any drain, that may conceive itself or themselves aggrieved by the assessment made by the county drain commissioner, may, within ten days after the date of review provided for in section 1 of this chapter, appeal therefrom as hereinafter provided. The supervisor of any township desiring to take such appeal shall make application to the probate court of the proper county for the appointment of a board of review.”
The difficulty in determining the question rests solely in deciding who is the proper person or body to pass upon the question whether the township conceives itself aggrieved by the assessment made by the county drain commissioner, and upon the question whether the township desires to appeal therefrom.
Prior to the amendment of 1899 the statute read:
‘ ‘ Any township assessed a per cent, for benefits for the construction of any drain, which may conceive itself aggrieved by the assessment made by the county drain commissioner, may, within fifteen days after the day of review, as provided in section 1 of this chapter, appeal therefrom as hereinafter provided. The township board of any township desiring'to take such appeal shall pass a resolution to that effect, authorizing the supervisor, or, in his absence or inability to act, some other member of said board, to make application to the probate court of the proper county for the appointment of a board of review.” 2 Comp. Laws, § 4353.
It would hardly be claimed that, under the statute as it then existed, a special election must be held before the appeal could be taken. We think it very significant that the legislature, by the amendment of 1899, should limit the time for taking the appeal from 15 days to 10 days, and, instead of requiring the appeal to be made by the township board, conferred that power upon the supervisor. In this connection it is well to call attention to the language of section 1, chapter 4, as to who shall appear for the township' upon the review of the assessment by the county drain commissioner: “ On such review the supervisor or commissioner of highways of any township may appear on behalf of such township.” Section 2336, 1 Comp. Laws, also provides:
“The supervisor of each township shall be the agent for his township for the transaction of all legal business, by whom suits may be brought and defended, and upon whom all process against the township shall be served.”
Taking all of these provisions of the statute into consideration, the changes made in the law by the amendment of 1899, and the fact that the 10-days time in which an appeal can be taken is not sufficient time in which to hold an election,- we conclude the supervisor is by the statute made the agent of the township for the purpose named in the statute, and is authorized to take the appeal on the-part of the township.
The judge of probate is instructed to entertain the appeal.
Long, J., did not sit. | [
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Hooker, C. J.
The defendant was charged with a violation of the liquor law. The following is a copy of the substance of the information:
“At the township of South Haven, and in the county aforesaid, and on divers days and times between that day and the 17th day of October, A. D. 1901, in a certain building there situate, did then and there keep a certain place, to wit, a drug-store, where vinous, malt, brewed, fermented, spirituous, and intoxicating liquors, and mixed liquors and beverages a part of which were intoxicating, were sold, stored for sale, given away, and furnished, he, the said Jesse E. Goodrode, not being then and there engaged in so keeping such place as a druggist or registered pharmacist, and not so keeping such place, or so selling, storing for sale, giving away, and furnishing such liquors, under and in compliance with the restrictions and requirements imposed upon druggists and registered pharmacists by the general laws of the State of Michigan; the aforesaid keeping of said place where the above-described liquors were sold, kept for sale, given away, and furnished being contrary to the provisions of a certain resolution adopted by the board of supervisors of the county of Van Burén, State of Michigan, on the 4th day of March, A. D. 1890, in pursuance of the provisions of Act No. 207 of the Public Acts of the State of Michigan for the Year 1889, and the acts amendatory thereto; the aforesaid keep ing of said place where the above-described liquors were sold, kept for sale, given away, and furnished having then and there been done as aforesaid by the said Jesse E. Goodrode in violation of and contrary to the provisions of said Act No. 207 of the Public Acts of the State of Michigan for the Year A. D. 1889 and the amendments thereto, and contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”
Upon arraignment his counsel moved to quash the information upon several grounds, viz.:
“ 1. For the reason that said information does not charge against the respondent any crime or offense known to the laws of the State of Michigan or the statutes thereof.
“2. For the reason that said information alleges that the said respondent is a druggist, and then charges him with having, on the 3d day of May, 1901, at the township -of South Haven, county aforesaid, and on divers days and times between that day and the 17th day of October, 1901, in a certain building there situate,, kept a certain place, to wit, a drug-store, where vinous, malt, brewed, fermented, spirituous, and intoxicating liquors, and mixed liquors and beverages part of which were intoxicating, were sold, stored for sale, given away, and furnished in violation of the law. That there are therefore charged in this information several distinct and independent offenses, and it is therefore bad for duplicity.
“3. For the reason that the information charges the respondent with being a druggist, and at the same time having kept a place where intoxicating liquors were sold, stored for sale, furnished, and given away. That it is therefore inconsistent, and does not specifically inform the respondent as to what charge or offense he will be put on trial for.
“4. For the reason that under the information now on . file, and the law applicable to cases of this kind, the respondent is not informed as to what offense he will be put upon' trial for.”
Section 1 of Act No. 183 of the Public Acts of 1899 reads as follows:
“That it shall be unlawful for any person directly or indirectly, himself or by his clerk, agent, or employé, to manufacture, sell, keep for sale, give away, or furnish any vinous, malt, brewed, fermented, spirituous, or intoxicating liquors, or any mixed liquor or beverages any part of which is intoxicating, or keep a saloon or any other place where any such liquors are manufactured, sold, stored for sale, given away, or furnished, in any county of this State on and after the first dáy of May next following after the adoption by the board of supervisors of such county of a resolution prohibiting the same, as provided in section thirteen of this act, so long as such resolution remains unrepealed: Provided, however, that the provisions of this section shall not apply to druggists or registered pharmacists in selling any such liquors under and in compliance with the restrictions and requirements imposed upon them by the general laws of this State and section twenty-five of this act, as amended.”
It will be noticed that there are but two classes of persons who are exempted from the operation of this section, and they are druggists and registered pharmacists. It seems to be the theory of defendant’s counsel that the local option act has no bearing upon these two classes, and that they may sell liquor. at will, answering only under the general liquor act, of which section 5381 of the Compiled Laws is a part. This is a misapprehension, for there is a limitation upon the exemptions as to these classes. They are exempted only when acting in compliance with the restrictions of the general act, and of section 25 of the act of 1899. The language of the proviso is that the provisions of the act shall not apply to such persons ‘ ‘ in selling any such liquors under and in compliance with,” etc. In all other cases they are liable. By turning to section 16 of the act of 1899, we find the penalty which is imposed upon “any person who shall violate this act.” The information states that the defendant kept a place, etc., but not as a druggist or registered pharmacist under and in compliance with law, etc. The section quoted, viz., section 1 of Act No. 183, makes the keeping of a place, etc., an offense. The information has charged the defendant with doing so, and expressly stated that he was not within the proviso. In the case of Maynard v. Eaton Circuit Judge, 108 Mich. 202 (65 N. W. 760), cited in support of respondent’s action, it was said:
“We held in Bishopp v. Hillsdale Circuit Judge, 94 Mich. 461 (53 N. W. 1093), that a druggist might properly be informed against under this section for selling liquor, if the information negatived the terms of the exception. It was there said that this section does not exempt druggists from the provisions of the act, but only exempts such as sell under and in accordance with the restrictions imposed upon them by the laws of the State.” .
In the late case of People v. Utley, 129 Mich. 628 (89 N. W. 349), this question was again discussed.
It is competent to charge this offense in the manner adopted. It is in the language of the statute, and apprises the defendant that he is charged with the continuing act of beeping a place for the unlawful' sales of liquor. All kinds of unlawful sales are admissible in support of the charge, and it is hot necessary to set forth specific "sales. In this respect it is different from an information charging one with making a sale in violation of law. In such case it has been usual and necessary to state to whom the sale was made, and, if all sales were not unlawful, to show that it was unlawful by stating wherein it was so. In this case the defendant might lawfully keep a place to sell as a druggist or pharmacist under and in compliance with law. The information says that he has not done this, and any other keeping is illegal.
We think there is but one offense charged, viz., the keeping of a place, although the information does charge -that it was a place where various binds of liquor were sold, stored for sale, given away, and furnished in violation of law. It may not be necessary to prove all these, and it is also true that it constitutes a single offense within the period charged, for which but one penalty can be imposed should the defendant be convicted.
We are of the opinion that the writ should be granted, ' and it will be so ordered.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
{after stating the facts). No attempt is made to sustain the validity of the tax. Its stock was assessable to the stockholders at their places of residence. 1 Comp. Laws, §§ 3831, 3836; Lenawee Co. Sav. Bank v. City of Adrian, 66 Mich. 273 (33 N. W. 304).
It is first objected, on behalf of the defendant, that plaintiff cannot recover, because it is limited to the reason stated in the protest, viz., excessive valuation. This protest was not made under the statute, which requires the grounds for the protest to be stated, and limits the protest to the reasons therein stated. This was a tax paid under a threat of levy, and in a suit brought to recover it back the taxpayer is not limited to the reasons stated in the pro test. Babcock v. Township of Beaver Creek, 64 Mich. 601 (31 N. W. 423).
It is urged that the plaintiff should have applied to the board of review to correct the assessment, and that, having failed to do so, it is now estopped to contest it. This rule does not apply to a case where the assessment is absolutely void and the property is not subject to taxation. City of Detroit v. Wayne Circuit Judge, 127 Mich. 604 (86 N. W. 1032).
Judgment affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Hooker, C. J.
Battle Creek river, at the point covered by the controversy before us, is upwards of 100 feet wide. It is crossed by a bridge on Main street, in the city of Battle Creek. This bridge is about 300 feet above the junction of Battle Creek with Kalamazoo river, and the rights in dispute' pertain to the Battle Creek river immediately below the bridge. A cobblestone dam, a couple of feet high, joins the left bank of the river (looking down the stream) at a point 5 or 6 feet below the bridge. It extends out into the stream, at nearly right angles, for a distance, when it strikes down stream on a tangent, at about 45 deg., to a point approximately in the center of the stream. From that point it turns still farther down stream, nearly parallel with the stream, for 40 or 50 feet, when it turns directly down stream to a point near the corner of complainants’ mill. The effect of this construction is to turn the water to the right side of the river, and the last section of the dam conducts the water, as a flume would do, to an undershot wheel, which moves the complainants’ machinery. The mill stands over the stream, is supported on piles, and fronts upon the bridge. It covers but little less than half of the width of the stream. The accompanying plat will show the situation.
The defendants own the bed of the river between the center line and the easterly bank, having acquired title from Staples, who in turn took it from Walter Clark, the common grantor, from whom both parties to the suit derive title. In each of the deeds going to make defendants’ title the following provision is found, viz.: ‘£ Reserving all use of the water power, said party of the second part .not to obstruct the same in any manner.” The bill in the cause is filed to enjoin the defendants from driving piles in the bed of the river, upon their premises, upon which to set a building. The proof shows that they intended to drive round piles a foot in diameter. Four were to have been driven parallel with and just below the bridge, above the dam, the nearest 4 feet therefrom, said four piles extending from the center of the stream to the east bank, 12|- feet distant from each other. It was also proposed to drive below the first row, at intervals of 12-J- feet each way, similar piles, to the number of 32, all but one of which would have been below the dam. It was the complainants’ contention that these piles would obstruct the flow of water, within the meaning of the reservation, especially those below the dam, which it was contended would tend to prevent the water from clearing away from the wheel, thereby injuring the power through backwater. A number of witnesses testified that these piles would obstruct the flow of water appreciably; others, that they would not. The learned circuit judge, who saw the premises, was of the opinion that the complainants might be harmed if these piles were driven, and granted the relief prayed.
After an examination of the testimony, we are of the opinion that they would have no appreciable effect. The defendants paid a valuable consideration for this land. They are entitled to make any use of it that does not obstruct the water to complain"ants’ injury, and they should not be compelled to forego such use for complainants’ accommodation, unless there is a well-grounded apprehension of injury. We think that is lacking.
The decree is reversed, and the bill dismissed, with costs of both courts.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
(after stating the facts). Plaintiffs’ evidence does not support the theory of the special count in their declaration. The money paid to defendant by Harvey Clippinger was not an advance or a loan. It was not paid to him upon any promise, express or implied, to pay it back. The check was given as a payment for the money due from A. J. Clark & Co. to defendant by Mr. Clippinger, who was in charge of A. J. Clark & Co.’s business at Lansing, and who was their agent, and not in any sense the agent of defendant.
The rule is well established that one copartner cannot use the partnership funds in payment of the individual debt of a partner, or the debts of others, except by the assent, express or implied, of all the partners. Plaintiff Charles almost immediately had knowledge of the issue of the firm check to the defendant, and its payment. It was Ms duty to move promptly in repudiating the transaction. He failed to do so for nearly a year. By this course he must be held to have ratified it. Silence for so long a time, with full knowledge of all the facts, is a ratification, and precludes the partnership from suit to recover the money. Undoubtedly Harvey gave defendant the- firm check in payment, supposing that his principals, Clark & Co., would promptly reimburse him. They did promptly send him their check in payment, but they had no funds in bank to meet it, and the check was protested. If Harvey or Charles had moved seasonably in notifying defendant of the protest, and that they should hold him responsible for the unauthorized payment by Harvey, defendant w'ould undoubtedly be liable. Casey v. Carver, 42 Ill. 225; Marine Co. v. Carver, Id. 66; Johnson v. Crichton, 56 Md. 108; Story, Partn. § 133. Defendant was entitled to prompt notice of repudiation by the plaintiffs, in order that he might proceed seasonably against his debtors, Clark & Co.
Judgment is affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long., J., did not sit. | [
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Montgomery, J.
This is an action to recover damages for the breach of a contract. Judgment was rendered for the plaintiff under the direction of the circuit judge. Defendant brings error.
The defendant had a contract right in land suitable for the manufacture of lime. Plaintiff had, prior to November 25, 1899, advanced to the defendant $800, to aid him in constructing a limekiln. On the date last mentioned a further contract was made between the parties, which provided, in effect, that defendant should construct and finish by January 1, 1900, a suitable and proper limekiln, with the capacity of an output of 125 barrels of merchantable lime per day; that he should sell to the plaintiff, at the kiln, the entire output of said limekiln for one year from January 1, 1900, at the price of 46 cents per barrel, and at 30 cents per barrel in bulk; that the advancements so made by the plaintiff should be repaid by deducting 5 cents on each barrel of lime purchased. The plaintiff, on his part, undertook to furnish at least $1,400 in cash, in amounts as required by defendant, upon the defendant furnishing written statements showing that such money was to pay for labor and material entering into the construction of said kiln. He also agreed to furnish certain brick and fire clay. The contract contained a further clause as follows:
“It is further covenanted that, if first party [plaintiff} fails to perforin his part of this contract, second party can immediately terminate the same, paying to first party the sum so advanced by him, with -interest, and paying for the said material and transportation; and if second party [defendant] fails to perform his part of the contract, first party can demand such payment within ninety days, and that thereafter the said indebtedness shall be due and payable.”
It is contended by the defendant that the circuit judge erred in holding that the plaintiff had fully performed his contract. The undisputed testimony shows that the plaintiff-furnished $1,300 in cash, and such materials as were required, making a total of $2,019.22. It appears that the plaintiff, on two or three occasions, wrote defendant letters which indicate that he was not prepared to send all the money -required. But, after these letters were written, the defendant, it would appear, asked for and received other moneys of the plaintiff, and it must be assumed that the failures to comply strictly with the contract as to the * time of payment were waived. Furthermore, it does not appear that defendant ever furnished to plaintiff the statements required by the terms of the contract, showing that the money was intended to pay for labor and material entering into the construction of the kiln, or for wood, and the cutting thereof, or other purposes necessary in the construction and operation of the kiln. Indeed, this language would import that the $1,400 would not all be required for the construction of the kiln, but that some portion of it, at least, would be reserved for use in the operation, as, for instance, sufficient to furnish a. supply of wood, or for other purposes necessary in the operation. That defendant did not understand that the contract had been broken is apparent from his letter of January 24th, .in which he writes the plaintiff, not asking for more money, but saying:
“ I am very near ready to start my kiln, and would like to have you, at your earliest convenience, send me a full statement of money and all material that I have got from you up to date, so I may know just how we stand up to date. It will take me about a week or two to get ready. I have got to get a few logs in yet, to complete my shed floor, and a few castings for my car. ”
In response to this the itemized statement was sent as requested, but on February 3d defendant wrote plaintiff that he had sold out his property, and it transpired that he had sold the property without making provision for fulfilling his contract with plaintiff. We think the circuit judge was right in directing a verdict for plaintiff.
The remaining questions relate to the question of damages. It is contended by defendant that the contract furnishes its own measure of damages, which is the repayment, with interest, of the amount advanced. Reliance is had upon a portion of the language above quoted, namely:
‘ ‘ If second party fails to perform his part of the contract, first party can demand such payment within ninety days, and thereafter the said indebtedness shall be due and payable.”
We do not think this provision was intended to provide a measure of damages in case of a breach by the defendant. Under the terms of the contract, the indebtedness to plaintiff would not grow due except from day to day, and until the production of the kiln was sufficient to repay the indebtedness at five cepts per barrel. The evident purpose of this provision was to make the indebtedness incurred payable instanter in case the defendant failed to perform his contract. It has no bearing upon the question of the further damages which the plaintiff would suffer by a breach of the contract.
It is further contended that the judgment was excessive, in any event, for the reason that the contract contained an agreement that “the output of said kiln shall be at least, outside of the months of November, December, January, and February, twenty thousand barrels each year,” and that the effect of this was to exclude the output of November, December, January, and February from the defendant’s obligation to furnish the output of the kiln to plaintiff. We do not so construe the language. By another portion of the contract defendant was required to furnish the entire output of the kiln to the plaintiff at the price agreed upon. By this provision he guarantees that the production shall be 20,000 barrels each year, exclusive of the production of these months, and whatever the production in these months might be the plaintiff would be entitled to receive under his contract at the price agreed upon. The evidence does not show conclusively how much lime would be produced during these months, but it does show that the production would be at the rate of 125 barrels per day; and the circuit judge limited the recovery to the profit on 24,000 barrels, being the amount which plaintiff was compelled to purchase elsewhere. We think defendant cannot complain as to the amount.
The judgment will be affirmed, with costs.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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] |
Montgomery, J.
Defendant was convicted of having in his possession and under his control wild ducks, with intent to ship them beyond the limits of the State. The complaint was made under section 2 of Act No. 196 of the Public Acts of 1893, being 2 Comp. Laws, § 5805. The defendant, by his counsel, contends that Act No. 196 of the Public Acts of 1893 has been repealed by subsequent legislation.
In 1897 the legislature passed Act No. 159 (2 Comp. Laws, § 5760 et seq.), entitled “An act to revise and amend the laws for the protection of game.” This act contained a provision that “all other acts and parts of acts in conflict with or inconsistent with the provisions of this act are hereby repealed; but nothing contained in the provisions of this act shall be construed in any wise to repeal .or abridge any of the provisions of Act No. 196 of the Pub- lie Acts of 1893.” In 1901 the legislature passed Act No. 217, entitled “An act to revise and amend the laws for the protection of game and birds.” In the repealing section various statutes are named and repealed, among which is Act No. 159 of the Public Acts of 1897; and a general provision reads, “All other acts and parts of acts in conflict with or inconsistent with the provisions of this act are hereby repealed.” Act No. 196 of the Public Acts of 1893 was not, in-terms, repealed.
It is contended, however, that the effect of repealing Act No. 159 of the Public Acts of 1897 was to repeal Act No. 196 of the Public Acts of 1893, under the doctrine announced in Moody v. Seaman, 46 Mich. 74 (8 N. W. 711), where it was held that where a statutory provision was repeated, without change, in what purported to be an amendatory act, and the latter was afterwards repealed, the original provision was repealed also. We think this is not at all in point, and that the rule is wholly inapplicable to the question here involved. The provisions of the act of 1893 were not repeated in the act of 1897, nor do they derive their force in any way from the later enactment. On the contrary, by express terms it was declared that the act of 1897 should not be construed as a repeal of the act of 1893. The effect was to leave the act of 1893 in force, and having the same force, precisely, as if the act of 1897 had not been adopted.
Whether the act of 1901 operates as a repeal of the act of 1893, therefore, must depend upon whether its provisions are inconsistent with those of the earlier act. In the case-of People v. Huntley, 112 Mich. 569 (71 N. W. 178), we laid down the rule that a revisal, under a title similar to the present, repealing all acts repugnant to the provisions thereof, does not affect statutes which are omitted, and which are not repugnant to its provisions; and that the rule of implied repeal is clearly inapplicable where the revising statute declares what effect it is intended to have upon the former law, as where it declares that it shall operate as a repeal of such provisions of the earlier laws as are inconsistent with it, as this is regarded as a decía ration that it shall repeal only such provisions, and leave unaffected such as are not inconsistent.
It is contended that the act of 1901 is inconsistent with the act of 1893, for the reason that it provides that all game or game birds transported under cover shall be plainly marked on the outside of the package such game or game birds are shipped in, with the name of the consignor and the consignee, the initial point of billing, and the destination, together with an itemized statement of the quantity of game or game birds contained therein. Can this provision be said to be inconsistent with the provisions of the act of 1893 prohibiting the transportation of game from the State ? We think not. On the contrary, we agree with counsel for the people that these provisions are, rather, supplementary to the provisions of the act of 1893, and provide a means to aid the officers in detecting an infringement of the law. It is lawful to ship within the State, and, if the packages are marked for shipment within the State, it would furnish some evidence, at least, to the officers, that no further investigation would be required; and, if the legislature deemed that it was no offense to ship game out of the State, it is difficult to conceive why it should have been at all necessary to provide for thus plainly marking packages for shipment, as the public authorities would be in no way concerned with the question of the destination of such shipment.
It is contended that, as applied to the present case, this prosecution infringes the privileges and immunities granted to citizens by the fourteenth amendment to the Federal Constitution. The argument is that this game was taken on premises belonging to defendant, and that he is therefore privileged to do with it what he chooses. The fallacy in the argument consists in the assumption that the person who may shoot game has an absolute property right in the dead animals. It has frequently been held that game is the property of the State, and that the State has a right to make such restrictions as to its taking and use as it sees fit. See American Express Co. v. People, 133 Ill. 649 (24 N. E. 758, 9 L. R. A. 138, 23 Am. St. Rep. 641); Geer v. Connecticut, 161 U. S. 530 (16 Sup. Ct. 600).
It is further contended that the proceeding authorized by this statute is not due process of law. All that is before this court upon defendant’s appeal is his conviction for a misdemeanor. It is not essential that we determine whether the seizure of the ducks was or was not a lawful act; but, upon that subject, see the case of Osborn v. Charlevoix Circuit Judge, 114 Mich. 655 (72 N. W. 982).
We find no error in the case. The conviction will be affirmed.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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Long, J.
This action is in assumpsit, commenced by writ of attachment, to recover upon six promissory notes given by the defendants to the Commercial National Bank of Saginaw, and indorsed by plaintiff. The declaration is on the common counts, with copies of notes attached, and notice that they would be given in evidence under the money counts. Defendants pleaded the general issue, and gave notice of recoupment, the notice being as follows:
“That the several notes upon which the action is based, copies of which are attached to the declaration in this 'cause, were executed by these defendants pursuant to a certain contract made and entered into between the said plaintiff and these defendants on or about August 1,1898, which said contract was, in substance .and effect, as follows, and arose under the following conditions, that is to say: That on and prior to August 1, 1898, the said defendants were engaged in the business of manufacturing heading, and had in the village of Beaverton, Gladwin county, Michigan, a heading mill, well equipped for and used in said business, and of the value of, to wit, $5,000; that the heading business so carried on by said defendants was of great profit to said defendants, and that they were making in said business large sums of money monthly, viz., the sum of $500 per month; that on or about August 1, 1898, the said plaintiff represented to said defendants that an arrangement could be made to the material benefit and profit of both said plaintiff and said defendants if the said defendants would abandon their said business of manufacturing heading at their said mill at Beaverton, and remodel the said mill into a stave mill, ■and enter upon the business of manufacturing staves; the cost and expenses of so remodeling said heading mill, and of purchasing materials and supplies for such stave business, and getting the said stave business established, being estimated to be the sum of about $20,000; and, upon such representations so made by said plaintiff, it was then and there mutually agreed between the said plaintiff and the said defendants that the said plaintiff should and would indorse the notes of the said defendants to the amount of $20,000, as the same was needed for the purpose of installing said stave mill and establishing in said stave business; ' that the said defendants were to use the money so obtained upon said notes in tearing down and remodeling the said heading mill, and in putting up a new stave mill, and in manufacturing staves. It was further agreed that the said defendants were to' have a store in connection with their said mill, and were to pay for all supplies, timber, and labor used in said stave business out of said store as far as possible, and that the defendants were to look after the management of said business and the manufacturing of said staves; that the said business was to be carried on at Beaverton, Gladwin county, Michigan; and that the defendants were to purchase their stock of groceries and. supplies for their said store from said plaintiff, who was interested in a wholesale grocery store in Saginaw, Michigan,, and was doing a wholesale grocery business under the firm name of George A. Alderton & Co. It was further agreed that said business of manufacturing staves should be carried on by said defendants as long as they could get timber in that locality. It was further agreed that the said plaintiff, in addition to the profits derived from the sale of the said groceries and supplies which he should make to the defendants under said agreement, was to have a reasonable compensation for his indorsement on said notes.
‘ ‘ The said defendants will further give in evidence and ' insist on the said trial that they have fully performed the said agreement according to the terms and true intent and meaning thereof in all things on their part to be fulfilled and performed, but that the said plaintiff did not nor would fulfill or perform the said agreement on his part, but has wholly failed so to do in this, to wit: That after said defendants had entered upon the performance of said contract by fitting up their said mill at Beaverton with proper machinery and appliances, and remodeling the same from a heading mill to a stave mill, purchasing a large amount of timber supplies, and all things necessary to successfully carry on their part of said contract, and after the said defendants had expended for such purpose not only the entire proceeds of the said notes upon which this action is based, but also all of the individual funds of said defendants which they were able to raise to put into said business, the- said plaintiff refused to indorse any more notes for the said defendants, or to assist the said defendants in procuring any further funds for the prosecution of said business; that, by reason of such refusal of said plaintiff to indorse the notes of the defendants pursuant to the terms of said agreement, the defendants were wholly unable to continue the business of manufacturing staves, and were obliged to close up their said business, and dispose of their said stave mill and of their stock of materials, supplies, machinery, etc., on hand, for the best prices obtainable for the same, to the great damage and loss of the defendants, whereby the said defendants have been greatly injured and have sustained damages to a large amount, to wit, the sum of $10,000.
“That by reason of the action of said plaintiff in the premises in inducing these defendants to remodel their said heading mill and abandon said business of manufacturing heading for the purpose of engaging in the stave business, and then refusing to carry out his contract or agreement to indorse the notes of the said defendants to raise the funds necessary for the prosecution of the said stave business, the said defendants have been and were deprived of the profits which they would have made in the said heading business, amounting to the sum of $500 per month for the period of at least 10 months, such total loss of profits amounting in all to a large sum, to wit, the sum of $5,000; to the damage of said defendants in the sum of, to wit, $5,000.
“That at the time when the said plaintiff so refused to carry out his said contract, whereby the said defendants were obliged to abandon the said stave business, the said defendants had on hand a large quantity, to wit, 1,000 cords, of bolts which they had purchased or manufactured for the purpose of manufacturing the same into staves, and, if the said plaintiff had complied with his said contract, the said defendants would have manufactured .the said bolts' into staves, and would have realized large profits therefrom; and, by reason of the action of the said plaintiff in refusing to carry out his said agreement, the said defendants were prevented from manufacturing said bolts into staves, and from making the profits which they otherwise would have made therefrom, to wit, the sum of $1,500, thereby sustaining damages to a large amount, to wit, to the sum of $1,500.
“That, at the time said plaintiff so refused to carry out his said contract, the said defendants had on hand a large quantity, to wit, 500,000 feet, of logs suitable to make bolts to be manufactured into staves, and which they had purchased and gotten out for that purpose; and if said plaintiff had complied with his said contract the said defendants would have manufactured the said logs into staves, and would have realized large profits therefrom; but that, by the action of the said plaintiff in refusing to carry out his said agreement, the said defendants were compelled to have the said logs manufactured into lumber, for which they were not suitable, in order to realize anything out of the same, and were thus deprived of the profits which they would have made could they have manufactured the said logs into staves, to wit, the sum of $3,000, and thereby suffered damages to alargo amount, to wit, the sum of $3,000.”
The cause came on for trial before a jury. Plaintiff’s, counsel, in his opening to the jury, stated:
“These notes, six in number, which, without interest, amount to $5,000, were made payable' to the Commercial National Bank of Saginaw. They were signed by the defendants, Williams Brothers, and on the back of each note was written, ‘George A. Alderton.’ The proof will show that, when the notes fell due, Williams Brothers, whose duty it was to pay them, failed to do so, and the bank demanded payment of Mr. Alderton by reason of his signature on the back of the notes, and he was compelled to take them up by paying the amount due to the bank. ”
The notes were then offered in evidence without objection. Counsel for defendants then made his opening statement to the court and jury, substantially as follows:
“If we show to your satisfaction that growing out of this arrangement of Mr. Alderton with us to furnish indorsements to the amount of $20,000 to enable the defendants to carry on this buisness, and that it was necessary for him to do that to put them on their feet to manufacture staves, and that, because of the failure of him to carry out his contract, these losses were sustained, we shall ask to recoup these damages which these defendants sustained in consequence of their business being broken up, and to sell as best they could, to recoup that against whatever would be Mr. Alderton’s due on the notes which he paid and which he had indorsed; and, if that damage shall equal these notes, it shall be offset against the notes. If it shall amount to more, then we shall expect a verdict for whatever damages they sustained over and above the amount of the notes in question.”
Defendants then offered evidence to show the facts set up in the notice of recoupment. Counsel for plaintiff objected to the introduction of this testimony, for the reason that the notice of recoupment fails to show any breach of the contract sued upon so as to become a matter of recoupment. The court held that the contract sued upon by the plaintiff was separate and distinct from the one set up in the notice, and directed verdict for plaintiff for the amount of the notes and interest, the total being $5,242.39. Defendants bring error. But two questions are raised: (1) Was it admitted or proved that plaintiff paid the notes before suit was brought? (2) Were the defendants entitled to recoup damages under the notice ?
I am of the opinion that payment of the notes must be presumed from the fact that plaintiff had possession of them, and produced- them on the trial. It is admitted that the proceeds of the notes were received by the defendants! It is apparent, therefore, that prior to their maturity the notes were delivered to and held by the bank, which was the payee. As to the payee the plaintiff was a joint maker, and as much bound to pay them at maturity as the defendants. It is admitted that the defendants did not pay them, and the plaintiff having them in possession and producing them on the trial is prima facie evidence that he paid them in full at their maturity, according to his obligation. In McGee v. Prouty, 9 Metc. (Mass.) 547 (43 Am. Dec. 409), it was held that the possession of a promissory note by one of the parties liable to pay it is prima facie evidence of payment, and he is to be treated as a bona fide holder, unless the contrary is made to appear. That court cited in support of this principle: Dugan v. U. S., 3 Wheat. 172; Baring v. Clark, 19 Pick. 220; Northampton Bank v. Pepoon, 11 Mass. 288. In 3 Rand. Com. Paper, § 1475, and 2 Daniel, Neg. Inst. § 1227, the same principle is laid down. In the last-named work it is said, “The possession of the note by. the maker is presumptive evidence that he has paid it. ”
It appears that the notes sued upon were renewals of former ones, which were given in pursuance of the con 'tract mentioned in the notice of recoupment. The claim of the defendants is that the plaintiff agreed in this contract to indorse notes for them in the sum of 120,000, to enable them to carry on their business. It appears that he did indorse notes to the amount of $5,000, and then refused to indorse any more. The notes indorsed were discounted at the bank, and renewed from time to time. The notes sued upon are not the original notes so first given, but renewals of them; and it is the contention of counsel •for plaintiff, and the court below so held, that the plaintiff’s action was not upon the same contract that defendants seek to recoup against.
The notes sued upon were renewals of former ones, and bear date December 18, 1899, December 19, 1899, December 26, 1899, January 18, 1900, February 20, 1900, and March 2, 1900, and form no part of the original contract. Each note rested upon its own consideration, and was a complete and separate contract. The plaintiff was not to furnish money to defendants, but only to indorse for them, leaving them to obtain money, if they could, upon the paper when indorsed, and to pay the notes when they became due. The law implies a promise on the part of the defendants to reimburse the plaintiff in case he had .to pay as conclusively as if a stipulation to that effect had been written in the notes themselves, and the contract so implied is no more open to dispute or variation than if it had been reduced to writing. It is well settled that no damages can be recouped except such as spring out of the contract upon which the suit is brought. Molby v. Johnson, 17 Mich. 382; Forrest v. Johnson, 100 Mich. 321 (58 N. W. 1005); Van Epps v. Harrison, 40 Am. Dec. 323 (s. c., 5 Hill, 63). As the notes sued upon are separate and distinct, and had separate and distinct considerations, from the contract set up in the notice of recoupment, and for the breach of which the defendants seek to recoup, I think the court was not in error in directing the verdict for plaintiff. The cases cited by defendants’ counsel ai;e not in conflict with this rule. In both Batterman v. Pierce, 3 Hill, 171, and Ward v. Fellers, 3 Mich. 281, the damages sought to be recouped grew out of the contracts sued upon.
. The judgment should be affirmed. | [
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Hooker, C. J.
This case was brought in justice’s court, and after trial there appealed to the circuit, where it was tried before a jury, and verdict and judgment rendered for plaintiffs. The plea was the general issue.
It appears that the plaintiffs are doing business at Man-ton, this State; defendants at Grand Rapids. An arrangement was made by which the plaintiffs were to ship to defendants at Grand Rapids one car load of dry beech and maple wood.. The wood was duly shipped. Defendants claim to have inspected it after its arrival at Grand Rapids, and found, as they claim, that it was green wood, and not dry, as agreed. They immediately notified the plaintiffs that they refused to accept the wood, as it did not comply with the contract. It is plaintiffs’ claim that this wood was cut between the 1st and 8th days of September, 1897, and sent to defendants some time in February, 1898; that it was dry wood, and in all respects in compliance with the contact. The railroad car in which the wood was shipped was marked “No. 2024, O., J. & M.” This action is for the price of the wood sold.
On the trial the plaintiffs claimed that the weight of the wood was evidence that it was dry wood, and gave some evidence which, if competent, would tend to support their claim. They called as a witness one James Murphy, who testified that he was yardmaster and weighmaster on the G. R. & I. road. He was asked:
“ Q. Have you the weight of a car weighed on the 19th of February, — 2024, C., J. & M.?
“A. Yes.
“ Q. Will you give the weight of that car ?
“ Defendants’ Counsel: Wait. Did you weigh that car yourself ?
“A. I cannot positively say that I did.
“ Q. You are not able to say, then, that you have any personal knowledge of the weight of that car ?
“A. That is it exactly.
“Defendants’ Counsel: I object to his giving the weight of the car.
‘ ‘ Q. Have yon in your possession a record of the weights of cars at that time ?
“A. I have.
‘ ‘ Q. And that book you have had in your possession all this time ?
“A. Yes, sir.
“ Q. And you keep a correct record there of the weight of cars ?
“A. Yes, sir; of all cars.
“Q. If you did not weigh this car, it was weighed under your supervision ?
“A. -Yes, sir.
“ The Court: Is this the book of original entry? Is that where it is entered right from the scales ?
“A. No, sir; the cars are weighed on a card, and I take the card in and turn it over to my assistant or clerk, and he copies it from the card into this book, and the cards are put into the waste basket generally.
“ Q. Did you compare the weight from the card onto this book ?
“A. Yes, sir.”
The court then asked of defendants’ counsel, “Do you insist upon your objection ?” and counsel stated:
“ There is no rule of law that makes a railroad record of weights and measures admissible. The man who weighed the car should be here, so we can cross-examine him, and see what method he pursued, and what the conditions were, and whether he knows that the weight was correctly taken. The man that weighed the car should be brought in here.”
This objection was overruled by the court, exception taken, and the witness permitted to testify from the record in the book as to the weight of the car. On cross-examination the witness testified:
“ I do not know whether I weighed this car myself. I have no recollection of doing so. All I know is that I have- a book here that states that; and I know that this is our system. The book is not in my handwriting. I made no entries on it, and I could not swear that I made the entry on the card from which this is copied.”
This testimony was given for the purpose of showing that the wood was dry at the time it was put on board the car at Mantón. The only question in the case is whether the wood was dry or not; and therefore the testimony as to its weight became of importance in determining whether the plaintiffs had fulfilled their contract. This was emphasized by the charge of the court in directing the jury that, if they found that this wood was dry when it was loaded on the car at Mantón and shipped to defendants, their verdict should be for plaintiffs. Thus the only important question for our determination is whether the testimony which the court permitted to be given by the witness Murphy was competent. While this witness could not testify that he weighed the car and made the entry on the card, and it was impossible to ascertain who did, because the card was destroyed, the entry W’as made on the book from the card in the regular course of business. Pi’imary evidence of the entry on the card was unattainable, but the witness testified that he compared the entry on the book with the card, thereby, perhaps unnecessarily, re-enforcing the evidence of the books themselves. This evidence was admissible, under the rule that cotemporaneous entries in the regular course of business in his books by one not a party to the cause is- competent. See 1 Greenl. Ev. 16th Ed. § 120a, and cases cited; Lassone v. Boston & Lowell Railroad, 66 N. H. 345 (24 Atl. 902, 17 L. R. A. 525).
Other questions are raised, but we consider them unimportant.
The judgment is affirmed.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Lesinski, C. J.
Defendant Michigan Liquor Control Commission appeals from the decision of the trial court granting the motion of plaintiff Borman’s, Inc., for summary judgment and permanently enjoining defendant commission from revoking plaintiff Borman’s warehouse license.
Borman’s, a Delaware corporation, owns a chain of 77 retail grocery outlets which sell beer and wine, in addition to numerous other products. In order to stock and service its chain of stores, Borman’s also operates a warehouse, which is a central distribution point for a majority of the goods dispensed by its retail outlets. By maintaining its own warehouse, numerous advantages accrue to Borman’s. It is able to dispense with the hiring of independent contractors to store, unpack, repack and distribute its goods to its retail outlets. Borman’s is able to purchase goods at a quantity discount. Additionally, its warehousing system allows it to achieve central inventory control. Borman’s warehouse operation is solely for the benefit of its retail outlets. No sales are made from the warehouse to independent entities.
On May 1, 1969, defendant commission issued Borman’s a warehouse license, allowing it to stock beer and wine at its central warehouse. Borman’s already possessed numerous specially designated merchant (SDM) licenses for its outlets that sold beer and wine. The warehouse license was valid until May 1, 1970, unless it was revoked by defendant prior to that date.
The Michigan Liquor Control Act, MOLA 436.1, et seq.; MSA 18.971, et seq., was amended subsequent to the issuance of the warehouse license. The terms of that amendment in relevant part provide that “no specially designated distributor or specially designated merchant or any other holder of a retailer license shall be eligible to hold any wholesale or warehouse license.” MCLA 436.19d(2); MSA 18-.990(4) (2). Acting pursuant to the amendment, defendant commission demanded that Borman’s return the warehouse license which had been issued it.
In response to the commission’s demand, Borman’s filed this action, asking that defendant commission be enjoined from revoking the warehouse license which it had issued to Borman’s, on the ground that section 19d(2), as amended, of the Michigan Liquor Control Act was unconstitutional. The commission moved for summary judgment, alleging that Borman’s had failed to state a claim upon which relief could be granted. Borman’s urged in reply that the commission’s motion be denied, and moved for judgment on its own behalf. The trial court, in a written opinion, held that section 19d(2) was unconstitutional as applied to Borman’s. Accordingly, judgment was granted for plaintiff Borman’s.
On appeal, the commission contends that section 19d(2) of the Michigan Liquor Control Act is a valid exercise of the police power of the State of Michigan and that section 19d(2) is likewise constitutional in its application to Borman’s. Plaintiff Borman’s, on the other hand, argues that section 19d (2) is violative of both the equal protection and due process clauses of the United States Constitution and the Michigan Constitution.
The guarantee of equal protection of the laws is afforded by both US Const, Am 14, § 1, and Mich Const 1963, art 1, § 2. The Michigan Supreme Court has held that the protection provided by the two clauses is coextensive. Naudzius v Lahr, 253 Mich 216 (1931). In determining whether a given provision is violative of equal protection of the laws, courts must keep in view the strong presumption of constitutional validity which'attaches to legislation. Gauthier v Campbell, Wyant & Cannon Foundry Co, 360 Mich 510 (1960). Thus:
“There is no doubt that State legislatures have a broad range of discretion in establishing classifications in the exercise of their powers of regulation. However, the constitutional guarantees of equal protection are interposed against discriminations that are entirely arbitrary. In determining what is within legislative discretion and what is arbitrary, re-i gard must be had for the particular subject of the State legislation. There must be a relation between the classification and the purposes of the act in ■which it is found.” Fox v Employment Security Commission, 379 Mich 579, 588 (1967).
As part of its policy to control alcoholic liquor traffic within the state, the Legislature has deemed it necessary to separate retailers (specially designated distributors [SDD’s], SDM’s, and other holders of retailer licenses) from warehousers and wholesalers, by prohibiting retailers from holding a warehouse or wholesale license. The position of Borman’s is that, even if such a classification is generally valid, it is over inclusive. Borman’s argues that it should not be placed within the proscribed class because it stores beer and wine only for its own retail outlets, unlike most warehouses. Relevant to the inquiry of whether such a distinction is arbitrary and invidious, both generally and as to Borman’s, is the purpose of both the Michigan Liquor Control Act and the 1969 amendment thereto.
The title of the Michigan Liquor Control Act reads, in part, as follows:
“An act to create a liquor control commission for the control of alcoholic beverage traffic within the state of Michigan, and to prescribe its powers, duties, and limitations; to provide for the control of the alcoholic liquor traffic within the state of Michigan and the establishment of state liquor stores; * # * to provide for the incorporation of farmer cooperative wineries and the granting of certain rights and privileges thereto; to provide for the licensing and taxation thereof, and the disposition of monies received under this act; to provide for the enforcement and to prescribe penalties for violations of this act.”
Thus the purpose of the act itself is broad — to control “alcoholic liquor traffic” within the state. Likewise, the power vested in the states to legislate concerning intoxicating liquors is great. Pursuant to US Const, Am XXI, § 2, such power is unfettered by-even the commerce clause. Ziffrin, Inc v Reeves, 308 US 132, 138; 60 S Ct 163, 167; 84 L Ed 128, 135 (1939). As the United States Supreme Court there stated:
“Without doubt a state may absolutely prohibit the manufacture of intoxicants, their transportation, sale or possession, irrespective of when or where produced or obtained, or the use to which they are to be put. Further, she may adopt measures reasonably appropriate to effectuate these inhibitions and exercise full police authority in respect of them.”
Similarly, the Michigan Supreme Court has recognized the wide latitude given the state to regulate alcoholic beverages. The Court stated in Fitzpatrick v Liquor Control Commission, 316 Mich 83, 96-97 (1946), that:
“The Legislature has seen fit to impose restraints and limitations upon the liquor traffic more drastic than might appear to be necessary if applied to traffic in such ordinary commodities as corn, wheat, shoes, groceries, and similar articles of commerce and trade. The danger inherent in the excessive use of intoxicating liquor and its effect on health, morals and public safety is recognized by many laws seeking to regulate and control its use, for example, drunk driving, intoxication in public places, sale of intoxicating liquor to minors.”
Fitzpatrick upheld against due process and equal protection attacks an amendment to the Michigan Liquor Control Act which provided that all appli cants for a bartender’s license shall be male, with the exception of wives or daughters of male owners of establishments licensed to sell alcoholic liquor. 1945 PA 133, § 19a, repealed by 1955 PA 206. Subsequently, the United States Supreme Court upheld the constitutional validity of the Michigan provision in Goesaert v Cleary, 335 US 464, 465; 69 S Ct 198, 199; 93 L Ed 163, 165 (1948), referring to the regulation of liquor traffic as “one of the oldest and most untrammeled of legislative powers”.
In Beacon Club v Kalamazoo County Sheriff, 332 Mich 412 (1952), appeal dismissed sub nom Eight O’Clock Club v Buder, 343 US 971; 72 S Ct 1077; 96 L Ed 1366 (1952); reh den 344 US 848; 73 S Ct 6; 97 L Ed 659 (1952), it was held that another amendment to the act, prohibiting so-called bottle clubs, was not a denial of equal protection or due process. The Court stated that the act had only one object, the regulation and control of the liquor traffic. 332 Mich 412, 425.
Thus, strong authority supports the great latitude given the state in controlling liquor traffic. However, the state is still bound by constitutional limitations in the exercise of its broad power. Although the state, in the proper exercise of its police power, can regulate or prohibit businesses which are injurious to the public, “it is equally well settled that such regulation is not unlimited in scope, but is subject to the limitations imposed by that [the 14th] amendment”. Glicker v Michigan Liquor Control Commission, 160 F2d 96, 100 (CA 6, 1947). In Goesaert, supra, 335 US 466; 69 S Ct 199; 93 L Ed 165, the United States Supreme Court said that “The Constitution in enjoining the equal protection of the laws upon states precludes irrational discrimination as between persons or groups of persons in the incidence of a law”. It is still necessary, then, to ana lyze the amendment in question in the terms set down hy Fox, supra.
The purpose of the 1969 amendment, which prohibits holders of retail licenses from also possessing a wholesale or warehouse license, can be found in part in the traditional legislative concern with “tied houses” in the liquor industry. “Tied house” statutes are aimed at preventing the integration of manufacturing, wholesale, warehouse, and retail outlets in the liquor industry. The advent of such statutes is not a recent development, as Washington sustained the validity of its “tied house” law in a 1913 test. Lewer v Cornelius, 72 Wash 124; 129 P 911 (1913). It has been a fear, as recognized by the trial court below, that economic power at one level in this four-tiered system (manufacturers, warehouses, wholesalers, and retailers) could be transferred to another level in order to gain control at the second level. Plaintiff Borman’s, in its brief, concedes that the latter concern is a legitimate one for state legislatures.
Several courts have held variations of the “tied house” statute valid against constitutional attack. Affiliated Distillers Brands Corp v Sills, 56 NJ 251; 265 A2d 809 (1970); Grand Union Co v Sills, 43 NJ 390; 204 A2d 853 (1964); Pickerhill v Schott, 55 So 2d 716 (Fla, 1951), cert den 344 US 815; 73 S Ct 9; 97 L Ed 634 (1952); Weisberg v Taylor, 409 Ill 384; 100 NE2d 748 (1951); Sepe v Daneker, 76 RI 160; 68 A2d 101 (1949); State v Zassaro, 128 Conn 160; 20 A2d 737 (1941). We concur with the judgment of these courts. There is a rational relation between the control of liquor traffic and the prohibition that holders of SDD, SDM, or other retailer licenses may not also possess warehouse or wholesale licenses.
Plaintiff Borman’s maintains, however, and the trial court below so found, that the amendment is unconstitutional as applied to it, since Borman’s does not compete with other warehouses, hut merely stores goods for ultimate distribution to its own retail outlets. Through this marketing method, plaintiff can sell beer and wine to consumers at lower levels and sell greater varieties of such beverages. Borman’s argues that it is impossible for it to gain control over retail units that it already owns. The trial court, in accepting plaintiff’s contention, stated that “under these circumstances, there is clearly no possibility of plaintiff perpetrating the ‘tied house evil’ which section 19d(2) allegedly is aimed at preventing”.
Yet, defendant commission points out that, under the warehouse license presently held by Borman’s, it could at any time begin competing with other warehouses, by storing beer and wine for retail outlets other than its own. Borman’s warehouse license contains no conditions limiting its scope to products which are to be sold by its own stores, but is as broad as the license granted to wholesalers that do not hold SDD, SDM, or other retailer licenses. Thus, the potential exists for the abuse at which the amendment was aimed.
Further, defendant Borman’s cannot be heard to complain of the Legislature’s failure to direct the commission to create a special warehouse license for parties that desire to store beer and wine only for their own retail outlets, as does Borman’s. The Michigan Liquor Control Act encompasses a complex regulatory scheme to control alcoholic beverage traffic. In order to accomplish its purpose, it has established several classes of licenses. For example, the act provides for nine different classes of vendors, including SDM’s and SDD’s. MOLA 436.24; MSA 18.995. Further, the act provides for the licensing of brewers, distillers, wine makers, wholesalers and warehouses. MOLA 436.2b, 2g, 2m, 2w; MSA 18-.972(2), (7), (13), (23).
We have already alluded to the wide latitude given the state to exercise its police powers in the regulation of liquor traffic. See Ziffrin, supra; Goesaert, supra; Fitzpatrick, supra; and Beacon Club, supra. On the basis of such authority, the Legislature has the power to differentiate between groups in the alcoholic beverage marketing chain, define classes, and issue licenses accordingly. The Legislature, in the exercise of its power, has not seen fit to establish a special warehouse license for parties in Borman’s situation; i.e., warehouses that stock alcoholic beverages only for their own retail outlets. Consequently, it is apparent that Borman’s cannot claim a discrimination on the part of the Legislature or commission because other parties that desire to warehouse beer and wine for their retail outlets have been granted licenses. All such parties have been denied them, in conformity with the 1969 amendment.
Furthermore, the classification which the Legislature has established, if it possesses a reasonable basis, does not violate the equal protection clause “merely because it is not made with mathematical nicety, or because in practice it results in some inequality.” Lindsley v Natural Carbonic Gas Co, 220 US 61, 78; 31 S Ct 337, 340; 55 L Ed 369, 377 (1911). See, also, Gauthier, supra, and Naudzius, supra. The classification which the Legislature has established in this case does have a reasonable basis, even as to Borman’s.
Two such bases are desires to protect smaller retailers against chain store competition in the alcoholic beverage market, and maintain orderly marketing conditions in that market.
It is apparent that plaintiff Borman’s hy functioning as a vertically integrated economic unit, has a competitive advantage over other retail sellers of beer and wine, even if it does not compete with warehousemen or cannot gain control over the retail outlets which it already owns. By employing economics of scale in its marketing techniques, it can sell its beverages at lower prices, as it states in its brief on appeal. Thus, its stores, by selling at lower prices, gain a competitive advantage over other retail outlets which cannot afford a central warehouse.
The California Department of Alcoholic Beverage Control applied a California statute to a similar situation in Louis Stores, Inc v Department of Alcoholic Beverage Control, 57 Cal 2d 749; 22 Cal Rptr 14 (1962). The department revoked the wholesale license of Louis Stores, which operated a large number of retail grocery stores and held a wholesale beer and wine license, on the ground that Louis Stores failed to comply with a California statute requiring holders of wholesale licenses to carry on business as a bona fide wholesaler by sale to retail licensees other than those owned by the wholesale licensee itself. Louis Stores made no sales except to its own retail outlets. The California Supreme Court, in construing the statute, stated that the record in Louis Stores supported “the implied finding that continuation of the present use of Louis Stores’ wholesale beer and wine license will be contrary to public welfare in that Louis Stores will thus secure the right to maintain an unfair competitive advantage over other retailers who do not have and cannot obtain such licenses and therefore cannot purchase directly from breweries and wineries at prices lower than those charged by wholesalers”. 57 Cal 2d 758-759; 22 Cal Rptr 18-19. The Court added that the provision “is a part of the general system of liquor regulation which includes the establishment of orderly marketing conditions”. 57 Cal 2d 760; 22 Cal Rptr 20. See, also, Borun Bros v Department of Alcoholic Beverage Control, 215 Cal App 2d 503; 30 Cal Rptr 175 (1963).
Other courts have suggested similar reasons for “tied house” legislation. The New Jersey Supreme Court, in Affiliated Distillers Brands Corp, supra, 260; 265 A2d 814, declared that its “decisions have indicated that the Legislature also intended to insure the alcoholic beverage industry remain stable. * * * Price cutting practices at any tier affect the stability of the market”. In Grand Union Co v Sills, supra, 401; 204 A2d 862, the New Jersey Supreme Court held valid a statute designed to limit retail liquor licenses to two per person. The Court noted that the statute was neither irrational nor invidious “to the extent that it is aimed at chain liquor store operations”. 43 NJ 405; 204 A2d 861. Citing the dangers that would result from the concentration of retailing in the hands of economically powerful interests, the Court specifically pointed to the state’s interest in trade stability of the liquor market.
The California Supreme Court spoke to a like problem in Wilke & Holzheiser, Inc v Department of Alcoholic Beverage Control, 65 Cal 2d 349, 362; 55 Cal Rptr 23, 32; 420 P2d 735, 744 (1966), where the retail price maintenance provisions of California’s Alcoholic Beverage Control Act were upheld:
“The legislature may likewise have concluded that giant retailers and chain markets should be afforded no opportunity to use loss leaders in branded liquor to attract customers * # * and thus ultimately to force smaller retailers out of business. Such tactics, the legislature may have thought, would disrupt orderly distribution by endangering the continued validity of one method of marketing; the corner grocery store. The legislature may have decided not to expose these channels of distribution to possible economic destruction through manipulation, by powerful competitors, of so highly volatile and attractive a product as branded liquor.”
One further ground has been put forth to support tied house legislation. Various courts have held that such provisions foster temperance, a valid legislative concern. See Affiliated Distillers Brands Corp v Sills, supra, and Weisberg v Taylor, supra. To the extent that Borman’s warehouse system leads to lower prices and increased consumption, it would run contrary to a legislative goal of temperance.
As the Michigan Supreme Court said in McDaniel v Campbell, Wyant and Cannon Foundry, 367 Mich 356, 360 (1962), it is not necessary that the reasons which would support a classification in a particular case be those which the Legislature considered at the time the act was promulgated. Rather, “it is enough if a state of facts can be conceived which would form a reasonable basis for the classification.” There is such a state of facts here, whether it be a concern for the trade stability of the beer and wine market, a desire to protect the smaller stores vis-a-vis the chains, or an attempt to foster temperance.
Accordingly, section 19d(2) does not violate the equal protection clause of either the United States or Michigan Constitution, in general or as applied to Borman’s.
Plaintiff Borman’s also alleges, and the trial court ruled, that the 1969 amendment violates the due process clause of the Michigan Constitution, Const 1963, art 1, § 17, and the Fourteenth Amendment to the United States Constitution, US Const, Am XIV, § 1. The Michigan Supreme Court set down a general rule to determine due process questions, relied on by the trial court below, in Carotene Products Co v Thomson, 276 Mich 172, 178 (1936):
“The Constitution guarantees to citizens the general right to engage in any business which does not harm the public. * * * The constitutional right to engage in business is subject to the sovereign police power of the State to preserve public health, safety, morals or general welfare and prevent fraud. In the exercise of the police power there must be not only a public welfare to be conserved or public wrong to be corrected, but there must be also a reasonable relation between the remedy adopted and the public purpose. * * *
“The primary determination of public need and character of remedy in the exercise of the police power is in the legislature. Unless the remedy is palpably unreasonable and arbitrary so as needlessly to invade property or personal rights as protected by the Constitution, the Act must be sustained.”
For a similar statement, see Grocers Dairy Co v Department of Agriculture Director, 377 Mich 71 (1966).
As the United States Court of Appeals for the Sixth Circuit said in Glicker, supra, p 98, “the regulation of the liquor traffic in any state is exclusively under the police power of that particular state.” The trial court in the instant case noted that “without question ‘liquor traffic’ within the state is a proper subject for the Legislature’s exercise of its police powers to promote the health, morals, and welfare of the people of Michigan.”
Under the Carotene test, this Court cannot say that there is an unreasonable relation between the remedy adopted, forbidding the holder of an SDD, SDM, or other retailer license from possessing a warehouse license, whether that holder stores goods only for his own retail outlets or for others, and a proper public purpose, to control the liquor traffic. It matters not whether the Legislature in this case is seeking to promote trade stability of that traffic, protect smaller retailers vis-a-vis chain stores, or foster temperance. Such goals are all related to a proper public purpose; control of the liquor traffic. See in this regard, Fitzpatrick, supra, p 92, and Beacon Club, supra, pp 425-426.
Writing for the United States Supreme Court in Dandridge v Williams, 397 US 471, 486; 90 S Ct 1153, 1162; 25 L Ed 2d 491, 502 (1970), Mr. Justice Stewart stated:
“The Fourteenth Amendment gives the Federal courts no power to impose upon the states their views of what constitutes wise economic or social policy.”
Section 19d(2) is violative of neither the equal protection nor due process clauses of the United States and Michigan Constitutions.
The decision of the trial court is vacated, and the case remanded for disposition not inconsistent with this opinion.
Beversed and remanded.
All concurred.
A specially designated merchant is defined as “any person to whom the commission grants a license to sell beer and/or wine at retail for consumption off the premises of such licensed place.” MOLA 436.2q; MSA 18.972(17).
A specially designated distributor is defined as “a person engaged in an established business licensed by the commission to distribute alcoholic liquor other than wine under 16 per cent alcohol by volume and beer in the original package for the commission for consumption off the premises.” MOLA 436.2p; MSA 18.972(16). | [
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Quinn, J.
Defendant was charged with and convicted by jury verdict of armed robbery, MOLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). He was sentenced and he appeals.
Defendant states the first issue raised on appeal as, “Did the court commit error when it failed to grant the defendant’s motion for a mistrial at the time the prosecutor asked the defendant under oath' whether or not he was a heroin addict, and was the question and the testimony elicited thereby prejudicial to the rights of the defendant?” We view this issue in context with the facts developed at trial.
When the prosecution rested, it had established a prima facie case. Defendant waived an opening statement and took the witness stand. His direct testimony established that he was a married man with children, that his wife was in the courtroom and that he (defendant) knew absolutely nothing about the case.
Cross-examination developed that defendant was at home at the time of the alleged offense. That during the day of the alleged offense, he was seeking employment of any kind but he was unable to specify any person he saw or place he went concerning employment. After some testimony that is immaterial to the issue before us, defendant was asked, “Mr. Talaga, it is true you are a heroin addict?”
Defense counsel’s objection was sustained, but the trial judge and counsel then held a conference in chambers at which defense counsel asked for a mistrial. The trial judge denied the mistrial and indicated he would allow the proof in. Again before the jury, the following occurred:
“Q. Mr. Talaga, I will restate my question, is it not true that during the period on or about December 4,1969, that you were a heroin addict?
“A. No, sir.
• “Mr. Miller [for defendant]: I can’t hear the question.
“A. No, sir, not the period of time of December 4th, no sir.
“Q. You were not?
“A. No, sir.
, “Q. Did you ask for treatment? Is that when you were arrested?
“A. Mr. Penzien, I would like to clarify the fact that I was arrested December 17th or 18th, subsequent to December 4th, I was not using it. The middle of November I admitted myself into Lexington to take treatments. That is why. I still stayed clean the latter part of November to Thanksgiving and through the first part of December. You have asked me to admit to drug addiction — I am admitting drug addiction.
“Q. As I understand, you were addicted in November and were addicted at the time of arrest but weren’t addicted at the time of the offense ?
“Mr. Miller: Objection. I believe the defendant has answered the question in regard to drug addiction. I don’t believe the matter should be pursued any further.
“Mr. Pensien [prosecutor]: I am trying to make sure that I understand his testimony.
“The Court: I would be inclined at this point Mr. Penzien, I think it is clear on the record and sustain the objection at this time. I will also sustain it and ask that you not pursue the matter any further.”
There was no further testimony on this topic, and . there was no further proof by either side material to this appeal.
Grant or denial of a mistrial rests in the sound discretion of the trial judge, People v. Qualls (1968), 9 Mich App 689. The extent of cross-examination is left to the sound discretion of the trial judge, People v. Layman (1941), 299 Mich 141, 148, as are questions of relevance and materiality of evidence, People v. Bunker (1970), 22 Mich App 396, 408.
This record does not demonstrate an abuse of discretion either in the denial of mistrial or the extent of the cross-examination. Whether the defendant was a heroin addict at or near the time of the offense was relevant and material to the establishment of a motive for defendant’s commission of the crime charged. Motive, if established, would tend to rebut defendant’s contention that he was at home and knew nothing of the charge made against him.
The information sought relative to defendant’s heroin addiction was also relevant and material on the question of defendant’s credibility.
For lack of objection at trial and for failure to move for new trial, defendant’s issues on identification from photographs, in-court identification, and insufficiency of proof were not preserved for review.
Affirmed.
All concurred. | [
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Moore, J.
The plaintiff sued defendant to recover damages for injuries received by her while in the employ of the defendant. The trial judge directed a verdict in favor of the defendant. The case is brought here by writ of error.
The important question is, Should the judge have allowed the jury to pass upon the case? The plaintiff was injured in October, 1897. She was then 27 years old. The defendant was engaged in the manufacture of crackers, biscuits, and cakes. The plaintiff testified:
“ That October 14, 1897, she was employed by defendant in the icing room in its factory, situated on Wood-bridge street. That she was working on the third floor. That she started to work in 1887, worked until 1890, then left their employ, and went back to work for them in 1895, and then worked continuously for them until October 14, 1897. That she was forelady in the icing department, working on the third floor of defendant’s factory. That her duties were to teach the girls how to put on icing, and how to make it; also how to make marshmallow and put it on cakes. She also had charge of the raisin department, and taught the girls how to clean and pick them. That the defendant had a tank to beat up icing in, and also had a tank to beat up the marshmallow in. These two tanks stood side by side. In beating up icing, I had to put the belt on with my hands, and, when the icing was beat up, I had to push the belt off with my foot. The tank was run by steam, connected with the engine in the basement. The shafting ran on the ceiling of the second floor. That there were from 40 to 50 girls employed in the factory, and from 5 to 8 girls employed in the room where I was working. * * *
“I was hurt on October 14, 1897, at the defendant’s factory in Detroit, Michigan, on the third floor, where I was required to be in the discharge of my duties. I was shifting the belt from the icing tank while it was in operation. I was required to shift the belt with-my foot, and was so instructed by Mr. Coleman, the engineer and foreman of the defendant. The day before the 14th of October, 1897, Mr. Coleman, the foreman, had moved the marshmallow tank close to the icing tank. I had always, previous to that time, pushed the belt from the icing tank to the right with my right foot. On the 13th of October, 1897, Mr. Coleman, foreman of the machinery, had directed me to push the belt connected with the icing machine off to the left with my right foot. I had only pushed the belt off as Mr. Coleman directed two or three times before I was hurt. In obeying the orders given to me. my right foot was caught by the belt, carried up to the pulley, the smaller bones of the foot broken, the ligament torn, and my nervous system shattered. After the marshmallow tank had been placed close to the icing tank, there was no room to push the belt to the right, as was done formerly, but it had then to be pushed to the left with my right foot. This required putting my right foot across my left foot with my hand upon the icing tank. * * *
“ Q. State how such belt was shifted, and why it was thus shifted.
“A. It was shifted with the foot to the left, or towards the machine, because there was no other way to shift it.
“ Q. State what knowledge you had at that time— October 14, 1897 — with regard to the running of such machinery as was used in the room where you were at work.
“ A. All the knowledge I had was that they were running as usual, and I was required to push off the belt. * * * There were two tanks. One, the small one, was used for icing; and the other, a larger one, used for marshmallows. On the 13th of October, 1897, the large tank was moved, and placed close to the icing tank. Before the 14th day of October, 1897, I shifted the belt of the icing tank to the right with my foot, but, after the marshmallow tank had been moved near to the icing tank, the belt could not be shifted to the right with the foot, as we had before done, but I was instructed by Mr. Coleman to slip the belt off to the left with my right foot, and he also requested me to so instruct and teach the others in this department how to slip it off in this way. ”
On the cross-examination she testified:
“ Q. Was it necessary for you, in the performance of your duties, to remove the belt from the pulley on the mixing tank ?
“A. Yes, it was necessary.
“ Q. How many times per day ?
“A. That would depend how busy we were.
“ Q. On what occasions did you remove that belt ?
“A. In order to see how the icing was beat up I had to remove that belt.
“ Q. How many times, in all the course of your employment, did you have to remove the belt in question?
“A. That would be impossible to state. Sometimes three or four times a day; other days not at all.
“ Q. Was it your duty to take off that belt ?
“A. Yes, sir; it was.
“ Q. How had yo,u been accustomed to take off that belt before the accident ?
“A. I had been accustomed to push the belt off with my right foot, to the right, allowing the belt to slip on the floor.
“ Q. How did you take it off at the time of the accident ?
"A. I attempted to push the belt off with my right foot to the left, as I had been instructed, and in some manner unknown to me my foot was carried to the pulley, which caused the accident to my foot, and also slipped the belt off.” ‘
She also testified that she never knew any one else to be hurt in taking off that particular belt.
We then have, according to her testimony, a woman of mature years, of sufficient intelligence so she is put at the head of a department, where she works operating machinery driven by a belt, which she puts on and removes as occasion requires, for a long time, so that she must have become entirely familiar with the belt and its operation. The only change made was the placing near it of a tank, which made it necessary to push the belt to the left, instead of to the right. It is evident that, if there was any danger in operating this belt, it was as apparent to the plaintiff as to any one. In continuing to operate the belt after knowing the manner of its operation, she assumed any risk there might be in so doing. Michigan Cent. R. Co. v. Smithson, 45 Mich. 221 (7 N. W. 791); Schroeder v. Car Co., 56 Mich. 132 (22 N. W. 220); Lamotte v. Boyce, 105 Mich. 545 (63 N. W. 517); Hayball v. Railway Co., 114 Mich. 135 (72 N. W. 145); Juchatz v. Alkali Co., 120 Mich. 654 (79 N. W. 907).
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Memorandum Opinion. Defendant pleaded guilty to murder in the second degree. He was sentenced and he appeals.
An examination of the record and briefs discloses no prejudicial error.
Affirmed. | [
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R. B. Burns, P. J.
MCLA 211.7; MSA 7.7 provides in pertinent part:
“The following property shall be exempt from taxation :
# # #
“Fourth, Such real estate as shall be owned and occupied by library, benevolent, charitable, educational or scientific institutions and memorial homes of world war veterans incorporated under the laws of this state with the buildings and other property thereon while occupied by them solely for the purposes for which they were incorporated.” (Emphasis supplied.)
MCLA 211.9; MSA 7.9 provides in pertinent part:
“The following personal property shall be exempt from taxation, to wit: * * *
“First, The personal property of charitable, educational and scientific institutions, incorporated under the laws of this state.” (Emphasis supplied.)
Relying on the above-emphasized statutory phrase, defendants have continually denied tax-exempt status to plaintiff, a Missouri-chartered, nonprofit corporation.
In a prior appearance before this Court, plaintiff unsuccessfully urged tax-exempt status. American Youth Foundation v Township of Benona, 8 Mich App 521 (1967). Since that decision the Supreme Court of the United States has held that denying tax-exempt status to an otherwise qualified institution because it is incorporated in another state violates the Fourteenth Amendment of the United States Constitution. WHYY v Glassboro, 393 US 117; 89 S Ct 286; 21 L Ed 2d 242 (1968).
The trial court was correct in applying the WHYY case as opposed to the pve-WHYY decision of American Youth Foundation, supra, for resolving the equal protection issue advanced by plaintiff.
Defendants offer no objection to the equal protection phase of the trial court’s holding; quite the contrary, defendants argue that because of the declared unconstitutionality, the exemption statutes in question cannot grant tax-exempt status to either domestic or foreign nonprofit corporations. Plaintiff and the trial court urge preservation of the exemption statutes by severance of the clauses “incorporated under the laws of this State.”
The Michigan Legislature directs us to apply the following rule of construction regarding severability unless such construction would be “inconsistent with the manifest intent of the legislature”:
“If any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given effect without the invalid portion or application, provided such remaining portions are not determined by the court to be inoperable, and to this end acts are declared to be severable.” MCLA 8.5; MSA 2.216 (Emphasis supplied.)
The clear and express intention of the Legislature was to exempt domestic, nonprofit corporations from taxation. Such a clear expression can be upheld by this Court. Those portions of the statutes in question which remain after severing the “domestic corporation” proviso are still operable and can still implement the intent manifested by the Legislature.
Plaintiff is entitled to tax-exempt status.
Affirmed. No costs, a public question being involved.
All concurred.
Michigan's general property tax law provides in MOLA 211.1; MSA 7.1:
“That all property, real and personal, within the jurisdiction of this state, not expressly exempted, shall be subject to taxation.” (Emphasis supplied.)
Plaintiff’s compliance with all other requirements for tax-exempt status is uncontroverted.
See also, 16 Am Jur 2d, Constitutional Haw, § 192, pp 425-427; 2 Sutherland, Statutory Construction (3d ed), § 2404, pp 178-180.
The tax, not the exemption, was found unconstitutional in Cleveland-Cliffs Iron Co v Department of Revenue, 329 Mich 225 (1950). | [
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Moore, J.
The bill of complaint in this case was filed to foreclose a certain mortgage made and executed by one Ada O. Terry, deceased, to complainant. The defendants Alice Terry, Blanche Sullivan, and Stewart Terry are the minor heirs at law and next of kin of the said Ada O. Terry. The defendant George Blass is a prior mortgagee. The principal question involved in the case is the construction to be placed upon the deed through which Ada O. Terry derived title. This deed was given to Ada O. Terry on March 21, 1887, by the heirs at law of one James Chinnery, deceased, who—
“For and in consideration of the sum of two thousand four hundred (2,400) dollars, to them in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, do by these presents grant, sell, remise, release, alien, and confirm unto the said party of .the second part, and her heirs and assigns, all those certain pieces or parcels of land, * * * together with, all and singular, the hereditaments and appurtenances thereunto belonging or in any wise appertaining: To have and to hold the above-described real estate and appurtenances unto the said party of the second part for and during the natural life, only, of her, the said Ada O. Terry, with remainder in fee simple to the heirs of the body of the said Ada O. Terry her surviving, and, in default of such heirs, then remainder in fee simple to all other heirs of her, the said Ada O. Terry.”
The mortgage ‘to complainant sought to be foreclosed was given March 10, 189G, by Ada O. Terry, and the mortgage to George Blass was given by her February 27, 1896. The defendant George Blass answers in the nature of a cross-bill, asking to have his mortgage foreclosed, and that his lien be declared a first lien on said premises, and a prior lien to that of the complainant under his mortgage.
There is another deed in evidence, given by Sarah J. Corwin, guardian, to said Ada O. Terry, of an undivided one-ninth interest in the same lands, reciting that the same is given for the purpose of correcting a supposed error in a former deed; but it does not appear what the former deed was, nor the supposed error contained in it. This deed conveys a one-ninth interest in the land to Ada O. Terry. The record does not show the date of this deed.
The question to be determined is whether the habendum clause of the deed, which upon its face would indicate that a life interest, only, was to be enjoyed in the estate of Ada O. Terry, is repugnant to the ‘ ‘ premises ” of said deed. The circuit judge held that the limitation in the habendum clause of the deed is repugnant to the premises, and the recital in the premises of the deed must control. He found, as a matter of law, that the deed in ■ question conveyed to Ada O. Terry the title in fee simple to said premises, and that the mortgages of the complainant and the defendant George Blass are subsisting liens upon said premises. The minor heirs have brought the case here by appeal.
Was the circuit judge right in this construction ? The rule in Shelley’s Case is abolished in this State by statute. 3 Comp. Laws, § 8810; Bailey v. Bailey, 25 Mich. 188. In Smith v. Smith, 71 Mich. 633 (40 N. W. 21), it is said:
“It is well settled by numerous cases that, when the habendum is repugnant and contrary to the granting clause, it is void. It can only affect the grant when it can be construed as consistent with the premises. It cannot devest the grantee of the legal estate already granted him in the premises, nor can the habendum frustrate a grant complete before, or abridge or lessen the estate granted. Nightingale v. Hidden, 7 R. I. 118; Pynchon v. Stearns, 11 Metc. (Mass.) 316 (45 Am. Dec. 210); 4 Kent, Comm. 468; 2 Bl. Comm. 298; Green Bay, etc., Canal Co. v. Hewett, 55 Wis. 105 (12 N. W. 382, 42 Am. Rep. 701); Huntington v. Lyman, 138 Mass. 205; Hafner v. Irwin, 34 Am. Dec. 390 (20 N. C. 433); Warn v. Brown, 102 Pa. St. 352; Flagg v. Eames, 40 Vt. 23 (94 Am. Dec. 363). It must be conceded that the habendum cannot perform the office of devesting the estate already vested by the granting clause, and it is void if repugnant to the estate granted.”
In the same case it is also said:
“The object to be arrived at by courts in construing deeds or other contracts is to ascertain clearly the intention of the parties. It is said by the court in French v. Carhart, 1 N. Y. 102:
“ ‘It is a cardinal rule in the construction of contracts that the intention of the parties is to be inquired into, and, if not forbidden by law, is to be effectuated. Too much regard is not to be had to the proper and exact signification of words and sentences, so as to prevent the simple intention of the parties from taking effect. And whenever the language used is susceptible of more than one interpretation, the courts will look at the surrounding circumstances existing when the contract was entered into, the situation of the parties, and of the subject-matter of the instrument.’
“It was said by Mr. Justice Cooley in McConnell v. Rathbun, 46 Mich. 305 (9 N. W. 426):
“ ‘ All grants must be construed reasonably, and in the light of the surrounding circumstances.’
“And in that case the circumstances proved by parol testimony controlled the construction of the deed.
“In ascertaining the true meaning of the parties, the entire instrument is to be examined, and provisions apparently inconsistent with each other are to be reconciled, if possible.
“In Smith v. Packhurst, 3 Atk. 136, Lord Chief Justice Willes laid down the rule:
“ ‘ Such a construction should be made of the words in the deed as is most agreeable to the intention of the grantor. * * * We have no power, indeed, to alter the words, or to insert words which are not in the deed; but we may and ought to construe the words in a manner the most agreeable to the meaning of the grantor, and may reject any words that are merely insensible.’ ”
In Powers v. Hibbard, 114 Mich. 533 (72 N. W. 339), it is said:
“It is undoubtedly the rule that wnere an estate is expressly granted, and there follows a reservation, exception, or condition which destroys the grant, it is void, being repugnant to the thing first granted; and the rule is stated by Kent (4 Kent, Comm. 468) that when an estate is expressly granted or demised in the premises of a deed, and the habendum is repugnant to the estate granted or demised, the habendum is void; as, if a grant be to A. and his heirs, habendum to him for life, the habendum would be utterly void. In Smith v. Smith, 71 Mich. 633 (40 N. W. 21), this same rule was stated. This is the extent to which the cases cited by counsel for defendants go. But these rules must be understood and taken in connection with other rules of construction; as, where the grant is uncertain or indefinite concerning the estate intended to be vested in the grantee, the habendum performs the office of defining, qualifying, or controlling. Sumner v. Williams, 8 Mass. 162 (5 Am. Dec. 83). Again, where it is impossible to determine from the deed and the surrounding circumstances that the grantor intended the habendum to control, the granting words will govern; but, if it clearly appears that it was the intention of the grantor to enlarge- or restrict the granting clause by the habendum, the latter must control.
“ In Bassett v. Budlong, 77 Mich. 338 (43 N. W. 984, 18 Am. St. Rep. 404), a quitclaim deed from a husband, purporting to convey to his wife, and to her heirs and assigns forever, the farm on which they resided, but which was declared to be upon certain express conditions and reservations following the habendum clause, viz.: (a) That the grantee should not convey or mortgage the land during the lifetime of the grantor without his written assent, or his joining in the conveyance; (b) that, in case of the death of the grantee prior to the grantor’s decease, the land should revert to him and his assigns, — was held not to convey the land to the grantee in fee simple absolute, but that the effect of the arrangement entered into was that the title should, in the event of the death of either of the parties, pass to the survivor. Certain rules of construction of deeds of conveyance were laid down in that case by Mr. Justice Champlin, as follows:
“1. The proposition that a condition, reservation, or exception which restricts a grant of a fee simple absolute title to land, being repugnant to the granting part of the deed, is void, can only be true in those cases where the repugnancy is such that the intention of the parties cannot be ascertained from the whole instrument, or, if ascertained, cannot be carried into effect in accordance with established principles of law.
“2. Every deed or contract is supposed to express the intention of the parties executing it, and, when the object or .purpose of such instrument is palled into question in a court of justice, the first inquiry is, What is the intention of the parties, as expressed therein ? and it is the duty of the court to so construe said instrument as to carry out such intent, if no legal obstacle lies in the way.
“In Bodine’s Adm’rs v. Arthur, 91 Ky. 53 (14 S. W. 904, 34 Am. St. Rep. 162), it was held that where there is a repugnancy between the granting clause and the habendum of a deed, and it cannot be determined from the whole instrument and the attendant circumstances that the grantor intended that the habendum should control, the granting clause must control; but where it appears from the whole conveyance and the attendant cir cumstances that the grantor intended the habendum to enlarge, restrict, or repugn the granting clause, the habendum must control, for the reason that it is the last expression of the grantor’s wish as to the conveyance. In a note to that case, as reported in 34 Am. St. Rep. 162, the rule is stated that the habendum, though repugnant to the estate previously granted, controls, if it is in accord with the intention of the grantor, — and citing, in support of the proposition, Fogarty v. Stack, 86 Tenn. 610 (8 S. W. 846); notes to Berridge v. Glassey, 56 Am. Rep. 324 (112 Pa. St. 442, 3 Atl. 583), and Bassett v. Budlong, 18 Am. St. Rep. 409 (77 Mich. 338, 43 N. W. 984). See, also, McCurdy v. Mining Co., 3 Nev. 27; Downing v. Birney, 112 Mich. 474 (70 N. W. 1006).
“Who can doubt, upon a reading of the whole instrument urider consideration here, what 'the intention of the parties was as to the estate to be granted, when we take into consideration the attendant circumstances and surroundings of the premises ? ”
See Karchner v. Hoy, 151 Pa. St. 383 (25 Atl. 20).
If we read the whiole of the deed, and seek to find from it the intention of the parties thereto, is it not clear what the intention was ? Is it not clear that it was intended not to convey the title in fee to Mrs. Terry, but to grant to her the right “ to have and to hold the above-described real estate and appurtenances unto the said party of the second part for and during the natural life, only, of her, the said Ada O. Terry, with remainder in fee simple to the heirs of the body of the said Ada O. Terry her surviving, and, in default of such heirs, then remainder in fee simple to all other heirs of her, the said Ada O. Terry?” We think both of these questions must be answered in the affirmative. There is nothing in the habendum repugnant to the granting • clause, but when the two are read together the intention of the parties is clear, and should be respected.
The decree of the court below is reversed, and one will be entered here in accord with this opinion. Appellants will recover costs of this court.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Per Curiam.
Plaintiff has filed an appeal of right from an order setting aside a default against the garnishee defendant. Upon our review of the record, it is clear that such an order is interlocutory in nature and therefore may not be the subject of an appeal of right. G-CR 1963, 806.1.
On May 6, 1970, plaintiff secured a judgment against the principal defendants. An affidavit for writ of garnishment was filed on July 31, 1970, and the garnishment writ was issued on that date. Garnishee summons was served upon garnishee defendant on August 5, 1970, and garnishee defendant thereafter filed a disclosure of liability to the principal defendants. Plaintiff then entered a default against the garnishee defendant for failure of the garnishee defendant to serve a copy of its disclosure upon plaintiff’s attorney; garnishee defendant moved to set aside the default; said motion was granted by the trial court; and plaintiff timely filed a claim of appeal in this Court.
An order setting aside a default is a nonfinal, and hence interlocutory judgment. Quail v Cole, 260 Mich 642 (1932). As such, it may be reviewed by this Court only upon the filing of an application for leave to appeal. Conlon v State Treasurer, 23 Mich App 646 (1970). No application for leave to appeal having been filed, this Court can do no more than dismiss the appeal. Fox v Board of Regents of the University of Michigan, 375 Mich 238 (1965).
The appeal is therefore dismissed. No costs, appellee not having initiated a motion to dismiss pursuant to GCR1963, 817.5.
See also, American Eutectic Welding Alloys Sales Co, Inc, v Grier, 363 Mich 175 (1961); United Insurance Company of America v Goldenberg, 366 Mich 167 (1962); Ordon v Sarko, 371 Mich 689 (1963). | [
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Memorandum Opinion. Defendant appeals his conviction of larceny in a building. MCLA § 750.360 (Stat Ann 1954 Rev § 28.592). He challenges the sufficiency of the evidence and alleges error in the trial court’s charge to the jury.
We have examined the transcript of the evidence and the jury instructions and are satisfied that there is sufficient evidence to support the jury’s verdict and that there was no error in the charge.
Affirmed. | [
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T. M. Burns, J.
Courts must stand prepared to protect the rights of all citizens, including teenagers. Denying a teen-aged litigant access to our courts simply because he happens to be a minor not only tends to lessen the confidence of young people in our legal system but adds credence to the existence of the “generation gap”. And it may even help widen that gap.
In the instant case plaintiff, an eleventh-grade student at Engadine High School in Engadine, Michigan, was suspended from further attendance at said school by reason of his failure to cut his hair to the length prescribed by the school dress code. Plaintiff secured the assistance of the Upper Peninsula Legal Services, Inc.; and on October 23, 1970, he instituted a complaint for mandamus alleging that his suspension from school for not abiding by the school dress code violated his constitutional rights. On the same date, upon plaintiff’s nomination, Janet Forrester of the Upper Peninsula Legal Services staff was appointed by the trial court as plaintiff’s next friend for purposes of the litigation.
Defendants answered and moved to dismiss on numerous grounds one of which was that plaintiff’s natural parents wished the suit to be dismissed. On November 6, 1970, a hearing was held at which the superintendent of schools testified that the plaintiff’s parents agreed with the dress code and desired that plaintiff discontinue the prosecution of this action. A letter to the same effect, signed by the plaintiff’s parents, was submitted.
The trial judge, for purposes of the motion to dismiss, assumed that plaintiff had a constitutional right to wear his hair in the manner that he desired. The court went on to hold, however, that such a right is subject to limitation if there is substantial justification therefor, and that in this instance there was substantial justification in that plaintiff’s parents’ right to control his upbringing was of greater importance. The court concluded by stating that: “This court will not substitute its judgment for that of the boy’s parents”. Plaintiff appeals.
The sole question on appeal is the same question which the trial court faced:
“Should the plaintiff be allowed to continue this lawsuit when the natural parents of the boy (plaintiff) request that the school dress code be applied to their son and that they do not want their son to participate in this lawsuit. In other words, the court must answer the question of whether or not under the factual situation presented to the court, this case should be allowed to continue in view of the position taken by the parents of the child.” (Order and judgment of the trial court.)
This Court must first decide whether a 16-year-old minor may continue, in his own name, a lawsuit against the wishes of his parents.
GOB 1963, 201.3(1) provides: “Any natural person may sue or he sued in his own name”.
The committee comments found in 1 Honigman & Hawkins, Michigan Court Buies Annotated (2d ed), p 445, indicate that this was a new provision intended to remove the common-law incapacity of married women, infants, and incompetents to bring suit. Therefore, the rule clearly provides that a minor child may bring suit in his own name.
Thus while a minor child may bring suit in his own name, GCB1963, 201.5 provides:
“(1) Bepresentation. * * * If an infant or incompetent person does not have such a guardian representing him as plaintiff, the court shall appoint a competent and responsible person to appear as next friend in his behalf who shall be responsible for the costs of the action. * # *
“(2) Appointment of Bepresentative. Appointment of next friend or guardian ad litem shall be made by the court: (1) upon the nomination of an infant party over the age of 14 years, accompanied by the consent in writing of the person to be so appointed; or (2) in the case of an infant party under the age of 14 years or an incompetent party, upon the nomination of the next of kin of such party, or that of any other relative or friend whom the court deems suitable, accompanied by a like consent; or (3) in the event that no such nomination is made or approved within 20 days after service [of] process, upon motion of the court or that of any party. The court in its discretion may refuse to appoint any representative deemed unsuitable.”
The rule makes a distinction between minors over the age of 14 years and minors under the age of 14 years and incompetents. While minors under the age of 14 and incompetents must have their next friend nominated by á relative or friend, minors over the age of 14 may nominate their own next friend. The differentiation between the two classes evidences a recognition on the part of the drafters of the rule that minors over the age of 14 years are sufficiently mature to exercise a greater degree of control over the prosecution or defense of the case.
It is the opinion of this Court that the above-cited sections of GCE 1963, 201, evidence a clear intention to allow minor children 14 years of age or over, who have a duly-appointed next friend, to institute and prosecute suits in this state absent any consent by, and in fact contrary to the wishes of, the minor’s parents. Thus, the only question left for this Court to decide is whether the subject matter of the instant suit is one so peculiar to parental control that their consent is necessary in order that this suit be continued.
The court below held, and defendants argue on appeal, that plaintiff’s parents’ right to control plaintiff’s appearance and behavior justifies the termination of the constitutional attack on the school dress code with which the parents agree, since in this instance, the school board is merely doing, with the parents’ consent, that which the parents could do.
However, we have no conflict here between the boy and his parents. The conflict is between the plaintiff and the school board, and the fact that the parents happen to agree with the dress code is irrelevant. Plaintiff’s parents had the right to tell him that his hair could not exceed the length prescribed by the school dress code. It is quite obvious, however, that they were not exercising that right at the time plaintiff was dismissed from school. Therefore, even though the parents agreed with the school dress code, this does not confer upon the school hoard the right to exercise the control over plaintiff which his parents declined to exercise.
It is the opinion of this Court that the trial court erred in dismissing the plaintiff’s complaint. We have found no authority which would require a minor plaintiff to have the consent of his parents before bringing this suit. Accordingly, the judgment of the trial court must be reversed.
Eeversed and remanded for a hearing on the merits.
All concurred. | [
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] |
T. M. Burns, J.
On November 18,1967, plaintiffs granted to defendant a 90-day option to purchase “6 lots on the corner of Michigan and Fifth Street” in Rogers City. The option provided: “Upon approval of project, this option will be converted to a six- month land contract”. The total purchase price was set at $15,000. .
The “project” involved was the construction by-defendant of a public housing development for the elderly. The approval required was that of the Department of Housing and Urban Development and of the Rogers City Housing Commission. Upon completion of construction, the development was to be sold to the government.
On February 19, 1968, one day after the expiration of the 90-day option, plaintiffs and defendant executed a writing purporting to be a land contract for the sale of “Lots 11, 12, 13, 14, 15 of Block 24”, in Rogers City. The writing acknowledged receipt by plaintiffs-vendors of $500 and provided that the balance of the $15,000 purchase price was to be paid by defendant-vendee on or before August 19, 1968. No provision was made for taking of possession by defendant prior to full payment of the purchase price. The writing, which was a standard form contract, expressly provided that there were to be no monthly payments. Paragraph 8 of the writing is a typical land contract forfeiture clause:
“If the Vendee shall fail to comply with the terms of this contract, the Vendor may take possession of said property and all the improvements thereon and treat the Vendee as a tenant holding over without permission and remove him therefrom and retain any money paid hereon as stipulated damages for non-performance of this contract, and it is hereby expressly understood and declared that time is and shall be taken as of the very essence of this contract. Notice of said forfeiture may be given by registered mail, by depositing the same in post office, addressed to Vendee at his last known address.”
Because all of the signatures on the writing had not been witnessed, nor the writing acknowledged, the Register of Deeds could not, upon defendant’s request, accept the writing for filing. However, the Register of Deeds could and, on February 28, 1969, did accept for filing an affidavit signed by Carl A. Myers, on behalf of defendant, claiming a land contract interest in “Lots 11, 12, 13, 14, 15, of Block 24, Original Plat of Rodgers [sic] City”.
At no time has defendant paid to plaintiffs any money other than one dollar for the original 90-day option and the $500, receipt of which was acknowledged by plaintiffs in the writing of February 19, 1968.
On July 3, 1969, plaintiffs filed suit to remove a cloud from their title to “Lots numbered 11, 12, 13, 14, 15 and 16 of Block 24, of the Original Plat of the Village, now City, of Rogers City”. The cloud sought to be removed was the affidavit of February 27, 1969, filed by defendant. On October 30, 1969, defendant counterclaimed for reformation of the writing purporting to be a contract for the sale of the same lots and for specific performance of the contract as reformed. On June 22, 1970, the trial court submitted a written opinion denying defendant’s counterclaim for reformation, but ordering specific performance of the writing as written. On August 26, 1970, judgment was entered ordering plaintiffs to transfer a warranty deed to defendant upon receipt from defendant of the sum of $14,500 plus interest at the rate of 6% to the date of judgment. Defendant was also ordered to pay any taxes due on the five lots. The balance of the principal and interest were to be paid within 30 days from entry of judgment. The judgment also quieted title to Lot 16 in the plaintiffs.
In support of their complaint to remove a cloud on title, plaintiffs urged at trial that the writing of February 19, 1968, was a six-month extension of the original 90-day option, and that this extended option had expired on August 19, 1968. In response to defendant’s counterclaim for specific performance, plaintiffs claimed that even assuming that the writing of February 19, 1968, was a land contract and not an extended option, defendant had abandoned the contract and, in the alternative, that defendant had failed to make any tender which is a prerequisite to a decree of specific performance.
Defendant responded to plaintiffs’ complaint by contending that the writing of February 19, 1968, was a land contract. In support of its own counterclaim, defendant denied abandonment of the contract and claimed that its repeated offers to close constituted adequate legal tender.
In his opinion of June 22, 1970, the trial judge made the following determinations of fact: (1) the writing of February 19, 1968, was a land contract recognized as such by all parties; (2) defendant did not abandon the contract; (3) prior to August 19, 1968, plaintiffs made several requests of defendant for full payment of all moneys due; (4) although defendant made several oral offers in March and May of 1969 to pay the full purchase price, defendant never made an “actual tender of moneys due under the land contract”; (5) defendant delayed making payment until its negotiations with the Department of Housing and Urban Development and with the Rogers City Housing Commission were successfully concluded; and (6) it was the intention of plaintiffs to retain one lot, namely Lot 16, from the parcel and, therefore, there was no mutual mistake.
The trial court rejected defendant’s counterclaim for reformation on the ground that any possible mistake was not mutual. He granted defendant’s request for specific performance of the contract, hut only as written, on the gTound that defendant had not abandoned the contract.
It is our opinion that it does not matter whether or not the writing be deemed an extension of the original option contract or a land contract. In either case, defendant has lost any rights it may have had therein.
Under the terms of the writing, payment was due on August 19, 1968. Our review of the record indicates, however, that defendant did not attempt to even contact plaintiffs for a closing until some time in September. Even then tender was not made, but defendant only made an offer to close and it is apparent that the offer was contingent on the outcome of defendant’s negotiations with HUD and the Rogers City Housing Commission.
Defendant was repeatedly informed after the due date that the plaintiffs regarded the defendant to be in default. However, rather than tender payment and, if payment was refused, bring suit for specific performance, defendant did nothing until February of 1969 when the affidavit was filed claiming a land contract interest in the property.
The effect of filing the affidavit was, of course, to place a cloud on plaintiffs’ title thus forcing them to bring suit to remove it. In our opinion this maneuver on defendant’s part was insufficient to retain any interest in the property. If defendant wanted the property, it should have tendered payment rather than merely file an affidavit to prevent plaintiffs from selling to anyone else.
Generally, a court of chancery will not grant specific performance unless the party seeking that decree has tendered full performance. See Sterling v Fisher, 356 Mich 634 (1959). Offers to close do not constitute legal tender. Nedelman v Meininger, 24 Mich App 64 (1970).
The effect of upholding plaintiffs’ suit to remove the cloud on their title is, of course, to cause defendant to forfeit the $500 it had paid at the time the contract was entered into. However, since the $500 had been used to keep plaintiffs’ property off the market for a period of six months, we find the amount of forfeiture declared in the contract to be perfectly reasonable. It was simply a reasonable cost to the defendant for keeping the property off the market for six months.
Relief from a forfeiture is discretionary. A defaulting land contract vendee (unlike a defaulting mortgagor) has no absolute right of redemption. Nevertheless, a court of equity has the power to relieve the defaulting vendee from the forfeiture and to compel specific performance by the vendor when, in the court’s judgment, to do otherwise would result in an unreasonable forfeiture. Hubbell v Ohler, 213 Mich 664 (1921); Marble v Butler, 249 Mich 276, 280 (1930); Bilandzija v Shilts, 334 Mich 421 (1952); Rothenberg v Follman, 19 Mich App 383 (1969).
In the instant case the land contract served the same function as an option contract, it kept the property off the market. The amount of the forfeiture is low and represents a reasonable cost of keeping plaintiffs’ property off the market. Therefore, we hold that the forfeiture was not unreasonable but was, rather, a reasonable amount of liquidated damages. It is, therefore, our opinion that the trial court should not have granted specific performance.
Reversed and remanded to the trial court for an order quieting title to all of the property in the plaintiffs.
All concurred. | [
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O’Hara, J.
This is an appeal of right from a jury conviction of the offense of breaking and entering. MCLA § 750.110 (Stat Ann 1971 Cum Supp § 28. 305).
Objection is taken to the instruction that “there are only two verdicts you can return in this case. Either guilty as charged or not guilty”. This is the familiar Lemmons argument.
Prior to Lemmons, it was the settled law of Michigan that (1) error could not be predicated on failure to charge as to lesser included offenses unless requested and (2) the trial court was not obligated to charge as to such offenses unless testimony was adduced which, if believed by the jury, would support conviction of the lesser included offenses.
The Supreme Court, speaking through the late Mr. Justice Dethmers, modified the jurisprudence of Michigan to this extent: where the trial court affirmatively precludes consideration of lesser included offenses, reversible error is committed.
We read Lemmons to mean that there is a distinction between excluding from the jury consideration of lesser included offenses by implication, as in this case, and affirmatively stating that there are no lesser included offenses. Only the latter constitutes reversible error.
"We have studied Lemmons with great care and can come to no other conclusion than that which is reflected in the distinction hereinbefore set forth. If we err in our construction, this case provides a basis for the Supreme Court to speak to the issue and settle it with finality.
In the case at bar, there was no affirmative exclusion; consequently, we affirm.
All concurred.
We note that no instructions were given with respect to lesser included offenses. Defense counsel neither requested such instructions nor objected to the charge as given.
People v. Lemmons (1970), 384 Mich 1.
Also, see People v. Membres (1971), 34 Mich App 224; People v. Busby (1971), 34 Mich App 235. | [
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Per Curiam.
The defendant was convicted by a jury of felonious assault, a violation of MCLA § 750-.82 (Stat Aun 1962 Rev § 28.277), and was sentenced to serve 2-1/2 to 4 years in prison. He now brings this appeal as of right.
The evidence at trial showed the following. The defendant met a group of people, including the complaining witness, at a bar. The individuals in the group were friends, and they all returned to the home of the complaining witness’s sister. Defendant then began making long distance calls against the wishes of the owner of the home so the complaining witness, Bobert Coffey, asked the defendant to leave. Defendant left but several minutes later when Coffey went outside through the back door, defendant attacked Coffey with a knife causing several cuts on his thigh. Coffey called for help, and several individuals came out of the house and separated the two men. Defendant ran away and was eventually picked up in the neighborhood by the police. Defendant raises three issues on appeal which we will discuss in the order presented.
1. Did the trial judge erroneously exclude self-defense from the consideration of the jury?
During their deliberations, the jury presented the following question to the court in written form:
“If a knife is had by another person and the individual defends himself with an object which in its use becomes a deadly weapon, is that individual guilty of felonious assault?”
The trial judge interpreted the question to mean that the jury wanted some information with respect to self-defense but then ruled that self-defense was not an issue in the case and instructed them not to consider it. After the jury brought in a verdict of guilty, defense counsel objected to the exclusion by the judge of self-defense from the jury’s consideration.
Defendant did not take the stand and testify that he had acted in self-defense. Defendant relies on the testimony of several people at the scene who testified that Coffee left the house shortly after defendant from which it could be inferred that Coffey followed defendant and started the fight. Defendant also points to the arresting officers, who stated that defendant told them that he had been assaulted by Coffey.
Accepting the tenuous indications established by inference and the hearsay testimony of the officers that defendant was not the attacker, but rather a person who responded to the attack, the evidence was still not sufficient to support a case for self-defense. In order to make out a case for self-defense three elements must be established: first, it must appear that the defendant was not the aggressor ; second, it must appear to the defendant that he was in danger of suffering grievous bodily injury; and third, it must also be shown by evidence that there was no way open for the defendant to retreat and that his only safety was in repelling the attack by physical means.
The evidence presented by the defendant indicates only the first element of the defense. There appears to have been no evidence of the other two elements. Therefore, even viewing the evidence presented by the defendant in his brief in its best light, there was insufficient evidence presented to the jury to support an instruction on self-defense. Self-defense was not, therefore, before the jury; and the trial judge properly ruled when he eliminated any consideration thereof from their deliberations.
2. Bid the trial judge improperly summarize defendant’s case in his charge to the jury?
Here defendant again argues that the judge should have included an instruction on self-defense. However, we have just ruled that the issue of self-defense was not before the court and that the trial judge acted properly when he excluded it from the jury’s consideration. Defendant’s contention that the issue was raised in defense counsel’s closing argument and therefore should have been included in the trial court’s summary is without merit.
3. Did the trial judge rule improperly when he did not include assault and infliction of injury (MGLA § 750.81a [Stat Ann 1962 Rev §28.276(1)]) as a lesser included offense of the crime charged?
Defendant’s information charged him only with assault and not with any battery. The case of People v. Kynerd (1946), 314 Mich 107, rules that where the major charge of an information charging felonious assault does not include the element of battery, any lesser offense of which battery is an essential element is not included in the offense charged.
Since the crime of assault and infliction of serious injury must include a battery, it is not included in the offense with which the defendant was charged. Therefore, the trial judge did not commit reversible error when he did not inform the jury that assault and infliction of serious injury was a lesser included offense within the information charged.
Affirmed.
1 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 26, p 46, | [
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] |
R. B. Burns, P. J.
The defendants, husband and wife, signed a note as makers in return for a $9,843-.75 loan from plaintiff bank. All of the money was to be used in a business operated exclusively by the husband, John Conaway. The wife, Marion Conaway, received no separate consideration and signed as an accommodation to her husband. Subsequent to the execution of the note, but prior to institution of suit by plaintiff, John Conaway was adjudged bankrupt and was individually discharged.
Both plaintiff and defendants submitted the case to the trial judge on stipulated facts and moved for summary judgment. Although the plaintiff asked for a joint judgment against the defendants restricting execution to entireties and joint property, the trial judge in his opinion stated:
“The only issue of law then before the court is, ‘Is the defendant wife liable for the repayment of the above note when she received no separate consideration, nor did she intend to mortgage or pledge her separate estate to secure the repayment thereof?’ ”
A judgment was entered dismissing the case against John E. Conaway and Marion R. Conaway but neither the opinion nor the judgment reach the critical issue of joint liability.
Property owned by Marion and John Conaway as tenants by the entireties or joint tenants remains subject to a joint judgment against them regardless of Mr. Conaway’s discharge in bankruptcy. Kolakowski v Cyman, 285 Mich 585 (1938).
By virtue of 1917 PA 158; MCLA 557.51 et seq.; MSA 26.181 et seq., a married woman who signs a written instrument as an accommodation to her husband, subjects to execution property held by the entireties or jointly. Ann Arbor Construction Co v Glime, 369 Mich 669 (1963); Benjamin v Bondy, 322 Mich 35 (1948); Rossman v Hutchinson, 289 Mich 577 (1939).
The trial judge erred. A judgment should have been entered for the plaintiff against the defendants jointly with execution limited to entireties and joint property.
Reversed and remanded to the trial court for entrance of a judgment in accordance with this opinion.
All concurred. | [
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O’Hara, J.
This is a case of statutory construction. The statute is the Michigan watercraft tax act as it affected the assessments under the general personal property taxes for the years 1962 and 1963. A subsequent amendment effective May 15, 1963, limits our holding to the tax years above specified. The relevant portion of the statute as it read at the time involved is herewith set forth:
“Sec la. Every vessel, boat or other watercraft, * ** * which is owned by a resident of the state of Michigan * * * shall, prior to the time it is placed into use or navigated upon the waters lying within and surrounding this state, be licensed by the secretary of state and shall be subject to a specific tax, payable annually by its owner, * * * which shall exempt it from the general property tax * * * . Provided, That this specific tax shall not be levied on any boat operated on inland lakes having neither a navigable inlet or outlet.” 1955 PA 73; 1948 CL 207.51a; MSA 7.281(1). (Emphasis supplied.)
“Sec 2. The owner of any vessel, barge, boat or other watercraft as defined in section 1 and section la of this act shall annually, on or before the 1st day of December, file with the secretary of state a verified statement in writing * * * , and shall thereupon pay to said secretary of state the sum of money due to the state as determined by the provisions of sections 1 or la of this act as the case may be: * * * . Upon the payment of said amount the secretary of state shall thereupon issue its receipt for vessels specified in section 1 and a license plate in duplicate for the vessels specified in section la hereof.” 1952 PA 179; 1948 CL 207.52; MSA 7.282.
The underlined proviso is the viscera of this lawsuit. If plaintiff appellee was obligated to pay the specific tax above set forth, clearly it is exempt from the general tax. If it was not obligated to pay the tax, just as clearly the fact of payment does not create the exemption.
Plaintiff paid the specific tax. Defendants assessed the general tax. Plaintiff paid this latter tax under protest and sued to recover the amount.
The trial judge interpreted the statute to obligate payment of the specific tax and entered judgment for plaintiff in the amount of the general tax assessment paid under protest. We examine the question.
If the statute is free of ambiguity, no judicial interpretation is needed or indeed permissible. Manifestly the statute is susceptible of at least two interpretations. If the specific tax is purely upon ownership and payable upon the fact of ownership alone, the learned trial judge was right. If the act is in effect a licensing tax payable when the craft is “placed into use or navigated upon the waters lying within and surrounding this state”, the trial court was in error.
We believe the latter interpretation accords with the legislative intent, as that sometimes elusive concept is judicially determined under the established rules of statutory construction.
We so hold, first because there is nothing in the act which suggests that mere unlicensed ownership is subject to any penalty. There is no sanction imposed by the statute for mere ownership when the required license is not purchased. Rather, it provides:
“Any person liable for the tax imposed under section la of this act who uses or permits the use of any vessel, * * * before, such license has been issued * * * shall be guilty of a misdemeanor * * * .” 1952 PA 179; 1948 CL 207.52a; MSA 7.282(1). (Emphasis supplied.)
We feel it would be illogical to ascribe to the Legislature an intent to tax ownership as such, but impose a penalty only as to use.
Second, and we think equally compelling, is that there is no way we can perceive how the exceptions in the act, which provide for the exemption of “any boat operated on inland lakes having neither a navig'able inlet or outlet”, can he meaningful unless it applies to use as opposed to ownership.
Certainly we take judicial notice of the presence of many inland lakes in our state in which craft in excess of 16 feet overall can he and are operated. Additionally, many such craft can be sold in border cities to residents of sister states and Canada for use and operation in other states or another country. It would be an utter impossibility to determine at the time a craft is on a showroom floor, or even on display in a mooring slip, whether it would be used in waters totally exempt from the act.
In furtherance of our efforts to obtain indicia of legislative intent, we had resort to the House and Senate Journals, hopeful that debate or discussion of the amendment to the act would shed some light upon the intent of the act as originally passed. The journals were nonproductive.
We have considered the past administrative interpretations of the statute and the opinions of the Attorney General relative thereto. In finality, we are forced to the conclusion that the statute in question is a tax on use as opposed to ownership. By “use” we mean “use” in the traditional sense of that word. We exclude therefrom “use” that is simply incidental to demonstration for sale of watercraft by a dealer. In the interests of practicality, we note also that “use” by a bona fide prospective purchaser is not that “use” which imposes the obligation of compliance with the act by the potential purchaser during a reasonable period for demonstration and testing.
For the reasons hereinbefore set forth, we vacate the judgment entered below for plaintiff and find the assessment of the general property tax to have been properly imposed and that appellee was obligated to pay it.
We direct the entry of a judgment of no cause of action. We award no costs, the interpretation of a statute being involved.
All concurred. | [
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] |
Fitzgerald, J.
Frank Lobaido, plaintiff herein, was sentenced on May 1, 1946, to life imprisonment for statutory rape and assault with intent to murder. On November 3, 1965, plaintiff was paroled to Wayne County. On May 1,1967, he was arrested in Detroit for violation of a municipal traffic ordinance and pleaded guilty before a traffic court referee to careless driving. He was fined $60 and released.
Plaintiff was arrested pursuant to a parole violation warrant issued on May 15, 1967, and was returned to custody on June 26, 1967. On July 14, 1967, the Parole Board entered an order which revoked plaintiff’s parole,, finding that plaintiff was “automatically guilty by reason of conviction”. From that order plaintiff brings this mandamus action, asserting that he was denied a formal parole violation hearing as provided for hy the then applicable statute, MCLA § 791.240 (Stat Ann 1954 Rev § 28.2310) ,
The sole question before this Court is whether the conviction of a violation of a municipal ordinance is a conviction of “a felony or misdemeanor under the laws of this state” so as to relieve the Parole Board of the necessity of providing a formal hearing. See MCLA § 791.240, supra.
It has been said that the violation of a municipal ordinance is not a criminal offense in the general sense of the word. As stated in In re Cox (1902), 129 Mich 635, 637: “This Court has held that cases under municipal ordinances proper do not rise to the dignity of criminal proceedings * * * .” In People v. Smith (1906), 146 Mich 193, defendant was arrested upon a warrant for selling goods without a license, contrary to the ordinance. The Court stated that “prosecutions for violations of city ordinances are not criminal cases within the meaning of the term as used in the general laws of the state”. People v. Riksen (1938), 284 Mich 284, reiterated the holding in Smith, supra, and declared, “Nor are such violations criminal cases within the meaning of the statutes and rules for review by this Court”.
This Court is not unmindful of contra case authority. In People v. Hanrahan (1889), 75 Mich 611, 612, syllabus, it is stated: “Whenever a person does an act which is prohibited by law, and is punishable by fine, penalty, forfeiture, or imprisonment, he commits a crime”. However, to come within the auspices of MCLA § 791.240, supra, not only must defendant have committed a crime, but he must be convicted of “a felony or misdemeanor under the laws of this state”. This phrase refers only to violations of state statutes and does not include violations of municipal ordinances, for as stated in Fern nell v. Common Council of Bay City (1877), 36 Mich 186, 190: “The term law, as defined hy the elementary writers, emanates from the sovereignty and not from its creatures. The legislative power of the state is vested in the state legislature, and their enactments are the only instruments that can in any proper sense be called laws”.
We reach the conclusion that a violation of a municipal ordinance is not within the meaning of MCLA § 791.240, supra.
While no single case is dispositive of this issue, it is well settled in other states that a violation of a city ordinance is not a misdemeanor, and prosecution therefor is properly brought in the name of the city. City of Helena v. Kent (1905), 32 Mont 279 (80 P 258, 261). In Pearson v. Wimbish (1906), 124 Ga 701 (52 SE 751, 755), it was held that the violation of a municipal ordinance is not a “misdemeanor” within the meaning of Penal Code 1895, §§ 2, 31, defining misdemeanor and felony, since those sections of the code relate only to offenses against the public laws of the state and not to infractions of local laws of municipalities.
It is unconscionable to believe that when the Legislature passed MCLA § 791.240, supra, it intended that a parolee should arbitrarily be returned to incarceration for violation of a minor municipal traffic ordinance such as careless driving. If this was their intent, then a parolee who absentmindedly jaywalks or one who is driving without a taillight could conceivably be returned to jail without so much as a hearing. This Court places no great burden on the Parole Board in determining that where a pa rolee violates a municipal ordinance, it is not the intent of MCLA § 791.240, supra, that he he returned to prison prior to a full hearing.
The plaintiff is entitled to a full evidentiary hearing as provided by the statute. Failure of the Parole Board to conduct such a hearing within 30 days constituted a waiver of any claim based upon these alleged violations. See Stewart v. Department of Corrections, Parole Board (1969), 382 Mich 474.
Mandamus granted and this matter referred to the Department of Corrections for action consistent with this opinion.
All concurred.
That statute has since been repealed and has been replaced by MOLA Cum Supp § 791.240a (Stat Ann 1971 Cum Supp § 28.2310 [1]). | [
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Memorandum Opinion. Defendant was tried and convicted of unlawfully driving away an automobile of another without authority in violation of MCLA § 750.413 (Stat Ann 1954 Rev § 28.645), and sentenced to a term of four to five years.
Though the defendant has raised many issues, after a most thorough review of the record, we have failed to find any alleged errors which merit discussion. Therefore, we affirm. | [
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Per Curiam.
Defendant raises two issues for appellate review: (1) alleged improper cross-examination of a res gestae witness by the prosecutor, and (2) alleged improper cross-examination of defendant by the prosecutor. Neither of these alleged errors was preserved by objection at trial. We have, nevertheless, considered them and concluded that the defendant is not entitled to a new trial.
Affirmed. | [
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Lesinski, C. J.
Defendants Clarence Rushin and Herman D. Carter, Jr., were convicted by a jury of armed robbery, MCLA 750.529; MSA 28.797. Both defendants appeal as of right.
Defendants were first tried on this charge in a proceeding commencing on December 30,1970. The jury began deliberations on January 5, 1971, and, after deliberating 1 hour and 53 minutes, reached a verdict. The following transpired as the court received the jury’s verdict:
“The Court: * * * Members of the jury, have you agreed upon a verdict and if so, who shall speak for you?
“Juror #11: We have your Honor.
“The Court: Have you agreed upon a verdict?
“Juror # 11: Yes we have.
“The Court: Mr. Foreman, what is your verdict as to Clarence Rushin?
“Juror # 11: Not guilty.
“The Court: What is your verdict as to Mr. Carter?
“Juror #11: Not guilty.
“The Court: Members of the jury please rise. You say upon your oath that you find each of the defendants not guilty, so say you Mr. Foreman, so say you all?
(The jury is nodding yes — not #8.)
“The Court: Members of the jury, you are discharged from further consideration in this case. You can return to the jury assembly room. You are discharged from further consideration in this case.”
The jury left the courtroom at 12:22 p.m. At 12:24 p.m. the trial court called the jury back into the courtroom. The trial judge told the jury that the court reporter had informed him that one of the jurors was indicating the verdict was not his when so asked. Juror # 8 then indicated the verdict was not unanimous. At this point the prosecutor moved that the jury be polled, and Juror # 8 indicated his disagreement with the “not guilty” verdict. The trial court then ordered the jury to continue its deliberations. When the jury still could not agree after further deliberations, the trial judge declared a mistrial.
Before being brought to trial a second time, defendants filed a motion to dismiss the information on double jeopardy grounds, which motion the trial court denied. Defendants were then convicted of armed robbery at the second proceeding.
On appeal, defendants argue that the jury at the first trial returned a valid verdict of acquittal and thereafter were discharged. To have retried them in light of that verdict, defendants urge, was a violation of the double jeopardy clause of the US Const, Am Y, and Mich Const 1963, art 1, § 15.
Whether a jury may be recalled, in a criminal case, after it has been discharged and left the courtroom, in order to amend or alter its verdict, is a case of first impression in the State of Michigan, notwithstanding the people’s contention that this case is controlled by the holding of Routhier v. Detroit, 338 Mich 449 (1953), a civil case. In Routhier, a jury had returned a judgment of $5,000 for the plaintiff in ah automobile negligence suit. The following day the judge called the jury back, and the polling of the jury on its recall revealed that one juror had not agreed to the verdict. The trial court then declared a mistrial. The Michigan Su preme Court approved the procedure adopted by the trial judge on appeal.
Routhier does not, in our opinion, apply to a' criminal proceeding, however. Both the dictates of the double jeopardy clause and the differing nature of the criminal process mandate this conclusion. The double jeopardy clause clearly enunciates a policy of finality in criminal proceedings in favor of the defendant. United States v. Jorn, 400 US 470, 479; 91 S Ct 547, 554; 27 L Ed 2d 543, 553 (1971). Although public policy might weigh heavily in favor of a similar policy in civil causes, there is no constitutional provision which likewise requires such a result.
We also note the quotation from 8 Wigmore on Evidence (3d ed), § 2355, p 704, cited in People v. Pizzino, 313 Mich 97, 105 (1945):
“The act of assent to a verdict is constituted by the express answer to the clerk at the polling in open court, or by the silence which implies an assent. This outward act is final. * * *
“Hence, the fact that the verdict as delivered was by one or more individual jurors not assented to by them in the jury-room, or is different from the one there informally assented to by them, is no ground for later correcting or setting aside the verdict.”
In Pizzino, defendant contended on appeal that the verdict of guilty was not unanimous. Three jurors submitted affidavits indicating they thought defendant was not guilty and one of these stated “that when she was polled by the clerk, she had no intention of voting guilty.” 313 Mich 104. In rejecting defendant’s contention, the Supreme Court pointed out that to allow jurors to impeach their verdict with affidavits “would open the door for tampering with the jury subsequent to the return of their ver diet.” 313 Mich 105. These statements from Pizzino are indicative of a recognition that courts are faced with a far different problem when this problem is raised in a criminal proceeding rather than a civil one.
In other jurisdictions which have faced this problem, several guidelines for determining when a jury-has been finally discharged have been espoused. One view, fostered in Pennsylvania, holds that once the jury has been officially discharged by the judge, it cannot be recalled to amend or alter its verdict. Commonwealth v. Cano, 182 Pa Super 524; 128 A2d 358 (1956), aff'd 389 Pa 639; 133 A2d 800 (1957), cert den 355 US 182; 78 S Ct 267; 2 L Ed 2d 186; Commonwealth v. Johnson, 359 Pa 287; 59 A2d 128 (1948). See, also, West v. State, 228 Ind 431; 92 NE2d 852 (1950).
In Johnson, supra, the foreman announced that the jury had found defendant not guilty. The next morning the prosecutor informed the trial judge that several of the jurors had revealed to him that the verdict as related by the foreman was not a complete verdict. The judge recalled the jurors and ascertained that although they had absolved defendant of guilt on a first-degree murder charge, they had found him guilty of manslaughter. The court then sentenced defendant on the manslaughter charge. In reversing defendant’s conviction, the court stated:
“The established rule is that the verdict as recorded is the verdict of the jury and the latter shall not be allowed to impeach or to alter or amend it after their separation or discharge.” 359 Pa 291; 59 A2d 129.
The court emphasized that:
“If this practice were judicially sanctioned, a jury might acquit a defendant of a crime and then a day, a week or a month later reassemble and declare that the verdict was a mistake, that they intended to find the defendant guilty and would then proceed to do so. To permit such a disorderly practice in the administration of justice is unthinkable. It is the antithesis of due process of law.” 359 Pa 294; 59 A2d 131.
Another view holds that the jury may no longer be recalled when its members have left the courtroom. In a leading case propounding this standard, the Supreme Court of Virginia declared:
“While the jury are in the actual presence of the court and under its control, it can see, without resort to testimony, that the fountain of justice has been kept pure, and that no harm could have come to the accused. Beyond this, we are unwilling to go.” Melton v. Commonwealth, 132 Va 703, 707; 111 SE 291, 293 (1922).
In Melton, the judge discharged the jury, and the jury retired to the jury room to be paid. The judge called them back to the courtroom to correct an error they had made in sentencing. Such was held to be error, for:
“When the court announces their discharge and they leave the presence of the court, their functions as jurors have ended, and neither with nor without the consent of the court can they amend or alter their verdict. The sanctity of jury trials cannot be thus subjected to the hazard of suspicion.” 132 Va 712; 111 SE 294.
In accord with Melton, see Brister v. State, 26 Ala 107 (1855); Hayes v. State, 44 Ala App 499; 214 So 2d 708 (1968); Levells v. State, 32 Ark 585 (1877); People v. Lee Yune Chong, 94 Cal 379; 29 P 776 (1892); Harrell v. State, 43 Okla Cr 278; 278 P 404 (1929); and State v. Brandenberg, 38 NJ Super 561; 120 A2d 59 (1956).
The people contend that this Court should employ the standard set forth in Summers v. United States, 11 F2d 583 (CA 4,1926). The Fourth Circuit Court of Appeals in Summers did state that the important factor was not whether the trial court had officially discharged the jury but rather what was “actually done and acted upon”. 11 F2d 583, 586. The court there said that a jury could remain undischarged despite an official pronouncement to that effect, “if, after such announcement, it remains an undispersed unit, within control of the court, with no opportunity to mingle with or discuss the case with others”. 11 F2d 586. The jury in Summers had not yet left the jury box when they were recalled.
We do not believe that the Summers rule would lead to a different result in this case than the standard promulgated in Melton, supra. The court in Summers stated that the jury must be within control of the court. The jury in the instant ease was no longer within the control of the court when it left the courtroom.
After an examination of the precedents from other jurisdictions, we are convinced that the Melton rule is the wisest course for the courts of this state to follow. Once the jury has been officially discharged and left the courtroom, we hold that it is error to recall it in order to alter, amend or impeach a verdict in a criminal case. As soon as it departs from the courtroom, the jury’s legal duties cease to exist; it no longer functions as a unit charged to perform a solemn task but rather as 12 unsworn members of the community; its relationship to the case has terminated. The Court cannot ascertain the influence to which the jury has been subjected after it has left the courtroom, be it for two minutes or two days. Thus, the jurors are proscribed from deliberating further in the case.
To rule that a jury could be recalled after being discharged and leaving the courtroom would not only offend the policies underlying the double jeopardy clause, but would also serve as an invitation to tamper with the jury after it had completed its deliberations. Thus, the Melton rule does not confer benefits solely on defendants. Rather, it also acts to preserve the integrity of a guilty verdict.
As defendants point out in their brief on appeal, the trial court also committed error in allowing the prosecutor to belatedly poll the jury. Pursuant to GCR 1963, 512.2, parties “may require a poll” of the jury after the verdict is announced. The great weight of authority holds that the right to poll the jury is lost if not timely exercised. The demand to poll the jury should be made after the verdict is announced but before the jury is discharged and leaves the courtroom. United States v. Neal, 365 F2d 188 (CA 6, 1966); United States v. Dye, 61 F Supp 457 (WD Ky, 1945); Hayes v. State, supra; Hammond v. State, 166 Ga 213; 142 SE 895 (1928); State v. Blisak, 26 NJ Misc 197; 58 A2d 711 (1948); State v. Cephus, 241 NC 562; 86 SE2d 70 (1955); Commonwealth v. Schmous, 162 Pa 326; 29 A 644 (1894). If the trial prosecutor in this case had requested that the jury be polled before it was finally discharged, this situation would, most likely, have been avoided.
We rule that the jury’s verdict of acquittal at the first trial was final. The trial court committed error when it recalled the jury and ordered it to continue its deliberations. Additionally, the trial court should not have allowed the prosecutor to poll the jury, since he waived his right by not making a timely request.
As the United States Supreme Court stated in Green v. United States, 355 US 184, 188; 78 S Ct 221, 223-224; 2 L Ed 2d 199, 204 (1957):
“It has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant’s jeopardy, and even when ‘not followed by any judgment, is a bar to a subsequent prosecution for the same offense.’ ”
When defendants were retried for armed robbery, they were placed twice in jeopardy for the same offense, violating the double jeopardy clause of the United States and Michigan Constitutions. Accordingly, defendants’ convictions are reversed, and they are discharged.
Reversed and discharged.
All concurred.
We do not mean to intimate that a jury could not be finally discharged while it still remained in the courtroom, if it was subjected to extrajudicial influences after it had rendered a verdict and been discharged, but before leaving the physical presence of the court. | [
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] |
J. H. Gillis, J.
Plaintiff poses the following two issues, and only these two issues, on appeal before this Court: (1) Are orders entered by a disqualified judge valid and binding upon the parties before the judge to whom the case is reassigned? (2) Was it proper for the trial judge to dismiss with prejudice plaintiff’s entire cause of action in this case? The counterstatement of questions as presented by defendant are as follows: (1) Is a ruling or judg ment made before judicial disqualification void because signed and entered after disqualification? (2) Did the third amended complaint violate the court order of May 5,1970, and GCR 1963,111.1(1) ? (3) Did the trial judge abuse his discretion in dismissing all plaintiff’s claims for violation of the court order of May 5,1970, and GCR 1963,111.1(1) ? Plaintiff focuses his appeal upon the entry of an order dismissing his cause of action with prejudice in the trial court below.
This case arose out of an alleged breach of a public sewer contract and warranties of subsoil conditions together with the claimed wrongful termination of a supplemental agreement entered into during the course of construction. After the filing of two amended complaints by the plaintiff due to lack of specificity and nonseparation of the counts against the several defendants, the action proceeded to a jury trial. After eight days of trial it became apparent to the trial judge that a construction of the supplemental agreement would result in a foreclosing of some of plaintiff’s causes of action. Accordingly, ón May 4, 1970, the court issued a ruling construing said agreement to be a settlement up to its date (May 13, 1968) on all “Section Two” matters (except for any claim for rock excavation), hence, foreclosing all claims regarding them. However, all claims for anything arising after that date could be shown in addition to breaches of the supplemental agreement which would excuse plaintiff’s failure to proceed on “Section One”, making defendant’s termination unlawful.
The court, in directing itself to motions made by defendant to dismiss and/or for summary judgment or for a mistrial, on May 5, 1970, issued further rulings denying the motion to dismiss but granting a mistrial in the case. The trial judge then urged both parties to appeal at this time, if they so desired, any of his prior orders making particular reference to the ruling regarding the effect of the supplemental agreement. The court, in reference to the plaintiff’s pleadings, then stated:
“I question, however, whether they are sufficiently pleaded so that the parties can fairly be put to trial at this stage * * * .
“If no appeal is taken, then the court hereby directs plaintiff after the appellate period has run to amend the pleadings to be more specific on any claims that they wish to present # * # . I have already ruled, I believe sufficiently, the present pleadings in the light of the ruling on the contract are insufficient to enable any party to prepare accurately for a trial # * * .”
On the same day (May 5, 1970) the trial judge voluntarily disqualified himself from further proceedings in the present cause of action, assigning the case to another circuit judge.
“The court also unavoidably participated in numerous conferences in chambers, some off the record at request of counsel, required to deal with daily changing developments during trial. Thereby the court has been necessarily exposed to many conflicts between respective counsel and the parties litigant. Accordingly it is deemed beneficial to all involved for the court at this time voluntarily to disqualify itself from future proceedings, so that the parties may start afresh before both a new jury and a new judge, all pursuant to the schedules determined in open court.”
Subsequently, on May 19, 1970, the disqualified judge issued written orders granting partial summary judgments in conformity with his earlier opinions of May 4 and May 5, 1970. Prior to said orders, plaintiff objected to the court considering the matter on the ground that the voluntary disqualification deprived the judge of authority to perform any act of judicial discretion except to transfer the case. In addressing itself to the issue, the court stated that the disqualification would have no effect “if all that the court is asked to do now is a nunc pro tunc formality, an administrative or ministerial act calling for no new exercise of discretion not already completed on the record — in other words, merely to sign formal orders embodying earlier rulings”. In its opinion on May 19, 1970, the court stressed that its decisions on May 4 and May 5, 1970, were not mere evidentiary questions but rulings of substantive law. The court noted that it had urged immediate appeal of its determinations in the case laying special stress on the importance in future stages of the litigation of the ruling construing the supplemental agreement as a bar to certain claims. It went on to state:
“In the case at bar, the disqualification entered was clearly intended and so worded, to apply to future judicial acts in the case only, and not at all to prevent previously intended legal meaning to be given to judicial acts already finalized.”
In conformity with this latest ruling the trial judge entered partial summary judgment nunc pro tunc as to all claims (excepting that for rock excavation) of plaintiff prior to the date of the supplemental agreement of May 13, 1968.
Over objections, i.e., that the voluntary disqualification terminated such authority, the judge entered an order on June 30, 1970, directing the plaintiff to file an amended complaint to specifically set forth all claims it may have against any party referring particularly to those subsequent to May 13, 1968. Plaintiff, taking the position that the disqualified judge’s rulings and orders had no effect, filed a third amended complaint which did not conform to the prior orders. On motion before the reassigned judge, the defendant moved to dismiss this amended complaint for failure to plead with particularity the claims arising after May 13, 1968, and for violation of the court’s order which foreclosed action on all claims (excluding rock excavation) prior to that date. After an exhaustive examination of the complaint, the motion was granted and an order entered dismissing all of the plaintiff’s claims with prejudice.
In this appeal, plaintiff again challenges the orders entered by the original trial judge after he had disqualified himself. It contends they are void and thus could not be relied upon by the reassigned judge as a ground for dismissal with prejudice.
It is well recognized in a majority of jurisdictions that the disqualification of a judge does not prevent him from performing ministerial acts not involving judicial discretion. State v. Miranda (1966), 3 Ariz App 550 (416 P2d 444, 448); Koll v. State (1941), 143 Tex Cr R 104 (157 SW2d 377); Dotson v. Burchett (1945), 301 Ky 28 (190 SW2d 697, 699). On the other hand, a line of early Michigan cases indicates a contrary result. Horton v. Howard (1890), 79 Mich 642; Bliss v. Caille Brothers Co. (1907), 149 Mich 601; Davis Colliery Co. v. Charlevoix Sugar Co. (1908), 155 Mich 228; In re Hudson Lumber Co. (1942), 301 Mich 77. However, a statement from 1 Callaghan’s Michigan Pleading & Practice (2d ed), § 3.15, p 111, seems particularly applicable here:
“Disqualification, where absolute, while not perhaps jurisdictional, is declared in a number of deci sions to make judicial action ‘void’, but the absolute disqualification provisions of former statutes have not been carried forward into the court rule [GrCE. 1963, 405].”
Apparently, the absolute disqualification provisions of the former statutes and as interpreted by these early cases have not been carried forward into the court rule so as not to have the Michigan rule running contrary to the general rule of other jurisdictions.
It is clear that the act of entering judgment is a “ministerial act” though the rendition of judgment is a judicial act of discretion. Jaqua v. Harkins (1907), 40 Ind App 639 (82 NE 920); Vogel v. Edwards (1940), 283 NY 118 (27 NE2d 806); Darvick v. Darvick (1942), 36 NYS2d 58, 59. The trial judge in his construction of the supplemental agreement found that the pleadings of the plaintiff were not specific enough to enable the defendants to adequately prepare a defense. In the declaration of a mistrial, he specifically ordered the plaintiff to file amended pleadings specifying his claims against the defendants. The ministerial act to effect this was an order directing plaintiff to file a third amended complaint and cannot be in any way regarded as an exercise of discretion. Also, in the construction of the supplemental agreement, the judge ruled that the agreement had the effect of foreclosing any dispute between the parties prior to the date of the supplemental agreement. The later partial summary judgment that was entered by him merely made this provision effective and as such was purely ministerial in nature. They were merely giving effect to the prior rulings.
Finally, in considering the effect of the voluntary disqualification upon these prior rulings themselves, it must be noted that nowhere on the record is there any indication that there was “cause” for disqualification. There being no objection at the time to the disqualification and no “cause” indicated which might invalidate the prior rulings, we find said rulings valid and binding upon the parties.
In Commissioner of Banking v. Berry (1970), 27 Mich App 271, 313, a factual situation somewhat similar to the case at hand was presented. There a judge became disqualified when he appointed a law firm of which his son-in-law was a member as one of two legal representatives of a receiver of a bank. This Court pointed out that the judge was not so disqualified when he previously made the finding that the bank was insolvent and then ordered a receiver appointed. We then held that the technical disqualification was not sufficient to overturn the approval by the court of a sale of the bank’s assets according to an agreement already approved by the bank’s directors before the disqualification arose. Likewise, we are unwilling now to hold that the voluntary disqualification, in and of itself, is sufficient to overturn the prior rulings of law that affected the status of the parties in this case.
Additionally, we conclude that the judge to whom the case was reassigned did not abuse his discretion in dismissing the case with prejudice. GCR 1963, 504.2 provides as follows:
“For failure of the plaintiff to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him * * # . Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits.”
One such, instance in which an involuntary dismissal will operate as an adjudication upon the merits (unless the court in its order for dismissal otherwise specifies) is the situation of a dismissal for failure to prosecute as provided hy subrule 501.3. In accordance with this, 3 Callaghan’s Michigan Pleading & Practice (2d ed), § 32.53, p 111, states:
“It has always been recognized that courts have inherent power to dismiss proceedings where want of further progress therein is due to the obstinate failure or refusal of the claimant or proponent to abide by court rules or directives of the court with respect to the cause. Such recalcitrancy on the part of the complainant is not exactly a want of prosecution, but the practical effect is the same.” (Emphasis supplied.)
In light of the above we find no abuse of discretion in dismissing the case with prejudice where plaintiff intentionally did not comply with a court order.
Affirmed. Costs to appellees.
V. J. Brennan, P. J., concurred.
See committee comments to GCR 1963, 504, § § 5, 7; Rose v. Rose (1968), 10 Mich App 233, 236. | [
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Targonski, J.
On August 12,1970, defendant was tried and convicted by a jury in the Circuit Court for the county of Jackson on a charge of uttering and publishing. Specifically their finding was that the defendant did present a check with intent to injure or defraud knowing said check to be false, forged, or counterfeit; defendant appeals from this verdict.
The information as filed in the Circuit Court for the county of Jackson stated that the defendant, James Walker Owens, on or about April 27th, 1970,
“feloniously did utter and publish as true a certain false, forged and conterfeit check for the payment of money, which said false, forged and counterfeit check is, as follows: a check in the amount of $288.34 drawn on the treasurer of the United States, payable to Russell L. & Christine Cooper. With intent then and there to injure and defraud, he the said James Walker Owens at the time he so uttered and published the said false check for the payment of money as aforesaid, then and there well knowing the same to be false, forged and counterfeit.” (Emphasis added.)
“MSA 28.446, as amended.”
The statute under which the information was drawn is MCLA 750.249; MSA 28.446, which reads as follows:
“Any person who shall utter and publish as true, any false, forged, altered or counterfeit record, deed, instrument or other writing mentioned in the preceeding section, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony, * * * .” (Emphasis added.)
It is readily apparent from a comparison of the information and the statute that the person drafting the information substituted the conjunctive “and” for the disjunctive “or” which appears in the statute. Defendant contends that this is a material alteration of the statute and that the information is defective inasmuch as the offense charged is statutory. Further, defendant makes claim that he was entitled to a jury instruction based upon the charge as it was set out in the information and that the prosecution has to prove beyond a reasonable doubt that the check in question was false, forged and counterfeit. A request for such instruction was made by the defendant at the time of the trial but was denied by the trial court.
In connection with the defendant’s contentions we have examined MCLA 767.45 (1); MSA 28.985 (1) which states:
“The indictment or information shall contain: (1) The nature of the offense stated in language which will fairly apprise the accused and the Court of the offense charged; * * * ,”
In People v William Turner, 26 Mich App 632 (1970), the defendant alleged that the original information as filed in 1958 charged him with second-degree murder while the amended information, filed in 1969, charged him with felony-murder (first-degree murder) and, therefore, the amendment was contrary to law and a violation of rights because it charged him with a crime more severe than that with which he was originally charged. This Court disposed of this issue as follows:
“Turner’s contention is without merit. Both in-formations cited the first-degree murder statute. MCLA §750.376 (Stat Ann 1954 Rev § 28.548). Such a reference by section numbers is expressly authorized by MCLA § 767.57 (Stat Ann 1954 Rev § 28.997).
“ ‘In pleading a statute or a right derived therefrom it is sufficient to refer to the statute by its title, or in any other manner which indentifies the statute and the court must thereupon take judicial notice thereof.’
“Furthermore, the record establishes beyond a doubt that defendant Turner was aware of the crime with which he was charged.” People v William Turner, supra, 637, 638.
In the instant case before us, the defendant was aware of the fact that the offense charged was statutory and he was not misled or prejudiced by the fact that the information as drawn substituted the word “and” for the word “or”, since the information expressly cited the criminal statute upon which the charge was based. Such defect in the information did not prejudice the defendant and he was adequately apprised of the crime with which he was charged. See, People v Walsh, 27 Mich App 100 (1970).
We also take note that MCLA 767.76; MSA 28-.1016 provides, in pertinent part, as follows:
“No indictment shall be quashed, set aside or dismissed' or motion to quash be sustained or any motion for delay of sentence for. the purpose of review be granted, nor shall any conviction be set aside or reversed on account of any defect in form or substance of the indictment, unless the objection to such indictment, specifically stating the defect claimed, be made prior to the commencement of the trial or at such time thereafter as the court shall in its discretion permit. The trial court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. If any amendment be made to the substance of the indictment or to cure a variance between the indictment and the proof, the accused shall on his motion be entitled to a discharge of the jury, if a jury has been impaneled and to a reasonable continuance of the cause unless it shall clearly appear from the whole proceedings that he has not been mislead or prejudiced by the defect or variance in respect to which the amendment is made or that his rights will be fully protected by proceeding with the trial or by a postponement thereof to a later day with the same or another jury.” (Emphasis added.)
This Court in People v Reed, 17 Mich App 696, 697, 698 (1969), disposed of defendant’s claim (1) that the “information was defective on the grounds that it charged him with two crimes in the disjunctive (‘or’) and was therefore duplicitous”, and (2) that “he was denied a fair trial on the ground that he was placed in a perilous position of not knowing the specific crime under which he was charged thereby preventing him from raising a proper defense” with the following observation:
“Defendant did not object to the form of the information until after the people had concluded their proofs. Thus, he waived any alleged error and the trial court correctly denied the motion. MOLA § 767.76 (Stat Ann 1954 Rev § 28.1016).
“Also on appeal this Court will not reverse unless we are satisfied that there was error committed that deprived the defendant of substantial rights or resulted in a miscarriage of justice. MOLA § 769.26 (Stat Ann 1964 Rev §28.1096), People v Amos (1968), 10 Mich App 533. We do not find such error here.”
The defendant in the instant case must have been aware of the defect in the information long before the commencement of trial, but elected to refrain from raising an objection to such defect except for the request for a special jury instruction. Under such circumstances defendant will not be permitted to complain because the trial court denied defendant’s request and corrected such defect by instructing that Michigan law requires the people to prove beyond a reasonable doubt that the check, which defendant allegedly uttered and published, was false, forged or counterfeit. See MCLA 767.76; MSA 28.1016. The information adequately informed defendant of the charge against him and therefore we find no reversible error.
Affirmed.
All concurred. | [
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Bronson, J.
Defendant was convicted of aiding and abetting an armed robbery (MCLA § 750.529 [Stat Ann 1971 Cum Supp § 28.797]) by a jury in the Calhoun County Circuit Court. He was sentenced to a term of five to ten years. This is an appeal of right.
On September 2, 1968, three armed men entered Win Schuler’s Restaurant in Marshall, Michigan, and after tying up the employees, stole in excess of $21,000. Defendant was arrested on September 23, 1969, and charged with aiding and abetting an armed robbery.
Defendant’s trial was held January 7 to 9, 1970. During the jury deliberations, the following letter was sent to the trial judge by juror number 2:
“Judge Coleman. I am Juror No. 2. I am the only one who pleads not guilty! This is my belief. I have eleven people against me or what I feel — I will not and cannot change my plea. No one can make me— they are all mad — this is my belief — will I be forced to plea something I do not wish — please help me? Pm scared — Juror No. 2.”
The trial judge immediately notified both attorneys and a conference was held in chambers. No agreement on a course of action was reached. A bailiff was sent to ask the jury if they could reach a verdict. They requested a few additional minutes. About ten minutes later, the jury announced they had reached a verdict. A verdict of guilty was announced. Defendant’s attorney then asked that the jury be polled and the following occurred:
“Juror No. 2, Judith A. Brown, is your verdict as stated by the foreman?
“Juror Brown: Yes, it is.”
All the other jurors answered in the affirmative. In his finding made at defendant’s attorney’s request, the trial judge stated that he had observed juror number 2 when the verdict was announced and during the polling. She did not appear agitated, upset or unsure. He found the verdict was unanimous and accepted it. Defendant raises six issues on appeal. We will discuss them seriatim.
1) Can a defendant be bound over for trial on a charge of aiding and abetting an armed robbery when all the elements of armed robbery are not present as to defendant?
Defendant argues that since there was no showing that he knew a gun was present or was to be used in the robbery he could not be bound over for the crime charged. Jack Yitale testified at the preliminary examination that he came to Michigan to commit the robbery; that defendant had set up the robbery by giving information on the building, banking procedure, and who would be present; that defendant received 10% of the proceeds; and that defendant dumped the gun used, along with other materials and clothing, in a wooded area following the robbery.
The purpose of a preliminary examination is “to offer proof that an offense not cognizable by a justice of the peace has been committed, and there is probable cause to believe the defendant guilty thereof”, People v. Medley (1954), 339 Mich 486, 492. Based on the evidence there was ample grounds, supported by the circumstances, for believing defendant guilty as an aider and abettor of the crime charged. He was therefore chargeable as a princi pal to armed robbery. MCLA § 767.39 (Stat Ann 1954 Rev § 28.979).
2) Did the trial court err in refusing defendant’s request that the other participants in the crime be made available to testify as res gestae witnesses?
It is the settled law in this state that the prosecution has no obligation to indorse and call a participant in the crime as a res gestae witness. People v. Everett (1970), 27 Mich App 120. See, also, People v. Van Alstine (1885), 57 Mich 69; People v. Resh (1895), 107 Mich 251; People v. Virgil Brown (1969), 15 Mich App 600; People v. Geer (1970), 22 Mich App 47. Defendant’s request was properly denied.
3) Did the trial judge err in allowing a witness to testify, over objection, that he had pled guilty to the same offense?
The defendant argues that allowing Jack Vitale to testify that he had pled guilty to armed robbery made him appear guilty by association and was therefore prejudicial. Defendant relies on Judge Levin’s dissent in People v. Marra (1970), 27 Mich App 1. In that case the defendant was tried for abortion and conspiracy to commit abortion. An accomplice testified to the existence of the conspiracy and that she had pled guilty to the crime. The majority found no error in the admission of her plea since she was called to establish the conspiracy. We need not decide the question.
During examination of Jack Vitale, prior to defendant’s objection, the following occurred:
“Q. Mr. Vitale, why did you come to the State of Michigan?
“A. To plead guilty to this charge.”
When defendant raised his objection, similar unobjected-to testimony was in evidence before the jury. Even if admitting the testimony was error, it is not reversible.
4) Did the prosecutor, in his closing argument, make prejudicial remarks which require reversal even though no objection was raised by defendant’s counsel?
The prosecutor made the following remarks during his closing argument:
“Mr. Brown looks like a nice, decent sort of chap. I’m sure he has a respectable business, a nice wife, maybe even a couple of kids, but it’s another side of Lyle Brown you have seen here in the past three days, we have seen the little man wanting to be the big man, we have seen Lyle Brown’s other side, we have seen the fingerman Lyle Brown, the big operator in the City of Battle Creek bringing in specialists from Chicago. I don’t think the character witnesses know that side of Lyle Brown.”
In People v. Ignofo (1946), 315 Mich 626, the Michigan Supreme Court held it was reversible error for a prosecutor to make a statement of fact in his arguments. The error there was such that it could not be cured by instruction. In the instant case, defendant argues that in the context of the argument the inference was highly prejudicial to him as it was backed by the prestige of the prosecutor’s office. We have considered the prejudicial remarks in the context of the entire summation and do not find them prejudicial. People v. David Smith (1969), 16 Mich App 198. In addition we note that the trial judge repeatedly admonished the jury that it was for it to determine the facts based on what it heard from witnesses, not from the attorneys.
5) Does defendant have a constitutional right to be present at a meeting with the trial judge, held in chambers, where his attorney is present?
Defendant argues that the failure to allow him to to he present at the meeting in chambers at which the note from juror number 2 was discussed denied him his constitutional right to he present at all stages of the trial. He relies on People v. Medcoff (1955), 344 Mich 108, and on the United States Supreme Court cases of Hopt v. Utah (1884), 110 US 574 (4 S Ct 202, 28 L Ed 262), and Snyder v. Commonwealth of Massachusetts (1933), 291 US 97 (54 S Ct 330, 78 L Ed 674).
Medcoff and Hopt give defendant a right to he present when a trial judge investigates outside interference with jury deliberations or juror bias. In the instant case, the trial judge did not make a personal investigation into juror number 2’s note. In fact, an agreement as to what to do was never reached.
In Snyder, the United States Supreme Court held that a defendant had no right to he present when a jury view took place as that was not part of the trial. The Court held that the right existed only when defendant’s presence has a relation, reasonably substantial, to fullness of opportunity to defend against the charge. The basis of the right is to guarantee that defendant will not he denied an opportunity to assert his other constitutional rights. This Court fails to see what right defendant has lost which inhibited his ability to fully defend the charge against him by not being at the meeting in question.
6) Did the trial judge err in failing to take affirmative action after receiving a note from one juror to the effect she was being coerced into finding defendant guilty?
Defendant contends that the trial judge’s failure to investigate the juror’s charges of coercion prevented him from receiving a fair, impartial and un prejudicial verdict. Principal reliance is placed on People v. Levey (1919), 206 Mich 129. That case held it was reversible error for a trial judge to fail to question the entire panel as to whether it could reach an impartial verdict after one juror had been approached on defendant’s behalf.
The prosecutor counters by arguing that a juror may not impeach his own verdict once it is final. In re Merriman’s Appeal (1896), 108 Mich 454. This argument makes much of the fact that when the jury returned its verdict, it was polled and all its members agreed on the verdict. This, however, is not a case of impeachment after the verdict has been finalized by polling the jury. The crucial question before us is whether the judge should have acted to insure that the jury could reach an impartial verdict when internal pressure exists in the jury room.
There is a strong public policy in this state protecting the privacy of the jury room. Both Levey, supra, and the cases cited by the prosecutor, In re Merriman’s Appeal, supra; People v. Pizzino (1945), 313 Mich 97; People v. Van Gamp (1959), 356 Mich 593, are based on this policy. The procedure followed by the trial judge of polling the jury after the verdict was announced and observing the juror in question during this time preserved the public policy in question while protecting the defendant’s right to a verdict reached by 12 individuals. We find no error.
Affirmed.
All concurred. | [
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Quinn, P. J.
Plaintiff brought this action to recover for injuries received when he fell through the roof of a construction project at the AC plant in Flint. By a vote of ten to two, the jury returned a verdict for plaintiff against both defendants, a judgment entered and defendants appeal.
GMC (hereinafter owner) drafted the plans and specifications for the project and employed Darin & Armstrong (hereinafter contractor) as the general contractor. Owner also employed the plumbing subcontractor, but the owner assigned this contract to the contractor. The subcontractor was the employer of plaintiff.
Plaintiff was a journeyman plumber with no experience in industrial pipefitting or steamfitting, although licensed to do such work. When plaintiff was laid off as a house plumber, his union sent him to work for the plumbing subcontractor at the AC project. Plaintiff advised the superintendent of his lack of experience in industrial pipefitting and steamfitting. Plaintiff was sent to work “up in the steel” installing pipe near the ceiling with no safety indoctrination.
When plaintiff went to work February 27, 1967, he was assigned to moving pipe which had been installed too close to the sprinkling system. The pipe to be moved hung from J-hooks attached to an I-beam, and the method used to move the J-hooks the required two feet was to hammer them along the beam.
Approximately the first half of the pipe was moved without difficulty, but the last half was under an area of the roof which had been covered with cement roof slabs. Unable to hammer the J-hooks under the slabs, plaintiff, on his own initiative, went on the roof, pried up the slabs, turned them over and was able to get at the J-hooks. At an area around an uncovered skylight or ventilator, the roof slabs could not be turned over because of the apron on the skylight. To open this area of the roof, plaintiff and his assistant pulled one roof slab out from under the apron about one foot where it rested on a diagonal expansion rod. Plaintiff and his assistant pulled a second roof slab out from under the apron 10-14 inches where it rested on a rod. The point where the latter slab rested on the rod was near the end of the slab, causing it to be sort of a teeter-totter.
The record is unclear as to what happened following the movement of this second slab. Only plaintiff and his assistant were present. Plaintiff testified that in attempting to arise from his knees, he leaned on his hammer, slipped, fell on the teeter-totter slab and he and the slab fell to the floor below. The assistant testified that the last time he saw plaintiff before the fall, the latter was standing near the edge of the teeter-totter slab. The assistant testified that he looked up when plaintiff yelled, and the assistant saw plaintiff feet first in the hole and about up to his chest. Prom the assistant’s testimony, it might be inferred that plaintiff inadvertently stepped on the teeter-totter slab which gave away, causing the fall.
While the reason for the fall is unclear, the cause of the fall is clear. The cause was a hazardous con dition created by plaintiff and his assistant without the direction or knowledge of either defendant.
Much could be written on the many issues raised by this appeal. We believe extensive writing unwarranted, however, because our review of this record convinces us that the trial judge should have granted defendants’ motions for judgment notwithstanding the verdict.
In order to avoid the general rule of nonliability of an owner and contractor to an employee of an independent subcontractor, plaintiff relied on the theory that the construction work being done for the owner by the contractor was inherently dangerous. If the theory is applicable to the facts of this case, then the owner and the contractor owed a nondelegable duty to plaintiff to take all reasonable precautions to ensure plaintiff’s safety, Olah v Katz, 234 Mich 112 (1926).
This record contains no factual support for this theory. There is no testimony that work on the roof was inherently dangerous. On the contrary, plaintiff’s expert testified that it was not. The inherent danger arose through the acts of plaintiff. By seeking to invoke the theory of inherent danger on these facts, plaintiff is attempting to raise himself by his own bootstraps.
Pursuant to the authority of GCR 1963, 820.1(7), an order may enter granting defendants’ motions for judgment notwithstanding the verdict, without costs.
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Per Curiam.
Following a jury trial, defendant was convicted of possession with intent to deliver marijuana, MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c), and attempting to furnish contraband to a prisoner, MCL 750.92; MSA 28.287; MCL 800.281(1); MSA 28.1621(1). He was sentenced to six months’ imprisonment for each conviction, the sentences to run concurrently. He appeals as of right. We affirm in part and remand to the trial court to hear defendant’s motion for a new trial based on the alleged recantation of testimony by a witness.
Before trial, defendant’s motion to dismiss, based on a claim that he was entrapped, was denied. Defendant filed an application for leave to appeal, which this Court denied. At trial, a prison inmate testified on behalf of the prosecution that defendant, a prison guard, was attempting to supply him with marijuana. This testimony was critical to defendant’s conviction because the inmate provided the only testimony regarding intent. He testified that defendant went to the parking lot, where he was ultimately arrested, in order to pick up drugs from a person he believed was the inmate’s girlfriend. The inmate further testified that defendant had agreed to bring the drugs to the inmate once he received them from the girlfriend. Without this testimony, the elements of intent to deliver marijuana and intent to supply the inmate with drugs could not have been proved by the prosecution.
Several months after sentencing, defendant and his wife received the first of numerous communications from the prison inmate. These communications led defendant to the conclusion that the inmate was recanting his testimony. Therefore, defendant moved for a new trial pursuant to MCR 6.431(A)(3). At the time defendant filed his motion, his appeal was pending in this Court. The trial court declined to hear the merits of the motion for a new trial, finding that it was untimely. On appeal, defendant challenges both the trial court’s decision regarding the motion for a new trial and its decision regarding entrapment.
The first issue to be decided on appeal is whether the trial court should have heard defendant’s motion for a new trial. We hold, as did the trial court, that defendant’s motion was untimely. Defendant’s motion was improperly brought pursuant to MCR 6.431(A)(3), because this court rule applies only where a defendant has not yet filed a claim of appeal.
Where a claim of appeal has been filed, MCR 6.431(A)(2) governs a criminal defendant’s motion for a new trial. Pursuant to MCR 6.431(A)(2), a postjudg ment motion in the lower court is timely only if filed in accordance with MCR 7.208(B) or the remand procedure set forth in MCR 7.211(C)(1). Under MCR 7.208(B), defendant had only fifty-six days after the time for the filing of his appellate brief commenced, in this case April 25, 1995, to file his motion for a new trial. He did not file it until July 13, 1995; therefore, the motion for a new trial was untimely. Defendant also did not file a motion to remand by May 23, 1995, the applicable time as prescribed by MCR 7.211(C)(1).
Although the motion was untimely, defendant did not learn that the witness was recanting his testimony until April 24, 1995. Therefore, defendant could not have filed a timely motion for a new trial pursuant to MCR 6.431(A)(2). Defendant’s counsel, however, should have filed a motion for remand when he learned of the alleged recantation. Such a motion could have been timely filed but by the time the trial court denied the motion for a new trial on September 8, 1995, it was also too late to file the motion to remand. Defendant was thus effectively foreclosed from pursuing his motion for a new trial after learning of the recantation.
It is the trial court’s responsibility to determine whether a new trial should be granted on the basis of a witness’ recantation of testimony. People v Canter, 197 Mich App 550, 560; 496 NW2d 336 (1992). To foreclose altogether defendant’s opportunity to bring his motion in the trial court would result in manifest injustice in this case. Defendant did not learn of the recantation within a sufficient amount of time to allow him to directly move for a new trial and his error in pursuing the motion for a new trial without first requesting a remand foreclosed his opportunity to make this motion. Under the circumstances, defendant should have some forum within which to proceed. We remand the case to the trial court, pursuant to MCR 7.216(A)(5), to determine if a new trial is warranted on the basis of the alleged recantation.
Defendant also appeals the lower court’s denial of his pretrial motion regarding entrapment. Utilizing the test set out by the Supreme Court in People v Juillet, 439 Mich 34; 475 NW2d 786 (1991), the trial court found that the conduct of the police in this case would not have induced a normal, law-abiding person to commit a crime. It further held that where there were no inducements, reliance on close relationships, threats, duress, intimidation, or coercion, there was no entrapment.
We hold that the trial court’s finding of no entrapment was not clearly erroneous. The evidence indicated that the inmate voluntarily contacted the police to let them know that defendant had agreed to bring drugs into the prison. The police were not involved until after the deal was made. Defendant was a prison guard and had been accused by an inmate of collaborating with him to provide drugs. Defendant did not demonstrate that the police did anything improper in investigating these obviously serious allegations. We therefore affirm the trial court’s decision that there was no entrapment.
Affirmed in part and remanded for consideration of defendant’s motion for a new trial based on the alleged recantation of the prison inmate. We do not retain jurisdiction.
Concerning the vagaries of the test set forth by the Supreme Court for identifying entrapment in Juillet, see, generally, People v Fabiano, 192 Mich App 523; 482 NW2d 467 (1992), which discusses Juillet, supra, and People v Jamieson, 436 Mich 61; 461 NW2d 884 (1990). However, under any conception of the Juillet — or Jamieson — test, the trial court made a sufficient finding that no entrapment occurred in the instant case. | [
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Per Curiam.
Defendants appeal as of right a judgment establishing the boundary line between plaintiffs’ and defendants’ real property and ordering defendants to remove the fence that they erected on plaintiffs’ property. We affirm.
This case involves a dispute regarding ownership of the western half of a gravel driveway located between plaintiffs’ and defendants’ property. Plaintiffs purchased their home and property on West Genesee Street in Lapeer in December 1962. At that time, Chester and Harriet White, defendants’ predecessor in title, owned the home and property adjacent and to the east of plaintiffs’ home. There was a T-shaped gravel driveway separating the properties, which was located near the eastern boundary of plaintiffs’ property and near the western boundary of the Whites’ property.
Plaintiffs and the Whites peacefully shared the use of the driveway and split the maintenance expenses associated with the driveway the entire time that they were neighbors. At trial, plaintiff husband testified that he and Chester White had conversations regarding ownership of the driveway. The first conversation occurred shortly after plaintiffs moved into their home in 1963. At that time, Chester White asked plaintiff husband if he was aware that the driveway was a shared one. Plaintiff husband responded that he understood that the driveway was shared and that he was to share in the expenses and maintenance of the driveway. According to plaintiff husband, Chester White then stated that they both owned the driveway and that the boundary line was down the middle of the driveway.
According to plaintiff husband, the second conversation between plaintiff husband and Chester White regarding ownership of the driveway occurred five to seven years later. The driveway needed gravel, and plaintiff husband arranged for the gravel to be delivered and spread. At that time, plaintiffs and the Whites split the cost of the gravel and Chester White again indicated to plaintiff husband that the boundary line was down the middle of the driveway.
In 1972, plaintiffs had their property surveyed. The survey of plaintiffs’ property revealed that the entire driveway was on the Whites’ property. After the survey was done, Chester White and plaintiff husband had a third conversation regarding ownership of the driveway. Chester White told plaintiff husband that he did not care about the survey results, plaintiffs owned the western half of the driveway and the Whites owned the eastern half of the driveway. After the survey, plaintiffs continued to use the driveway.
Vivian Bottger was a friend of the Whites. She recalled having a conversation with the Whites around 1974 regarding the ownership of the driveway. According to Bottger, Chester White stated that the driveway used to be Jackson Street and that he and plaintiffs owned and shared the driveway. The reason Bottger still remembered the conversation was that she had moved to Lapeer from Detroit, and she thought that it was honorable that two neighbors could get along and share a common driveway peacefully.
In 1985, Chester White died. Harriet White died in 1989. Defendants purchased the Whites’ home and property in July 1990. Before the purchase, defendants had a stake survey of the Whites’ property done. The survey revealed that the driveway was located on the Whites’ property, but the mortgage report contained a notation that the “drive is also used by the house to the west.” Defendants also spoke to plaintiffs before they purchased the Whites’ house. According to defendant husband, at that time, plaintiffs informed defendants that they shared the driveway, but did not inform defendants that they owned half of the driveway. Defendants apparently purchased the property believing on the basis of the survey that they owned the entire driveway.
Problems between plaintiffs and defendants arose over the use of the driveway. Defendants contacted an attorney. In February 1991, defendants’ attorney sent a letter to plaintiffs informing plaintiffs that defendants would be discontinuing use of the driveway and erecting a fence around their property. The letter also stated that defendants expected plaintiffs to stop using the driveway no later than July 1, 1991. Plaintiffs responded to defendants’ letter by informing defendants that plaintiffs believed that they owned the western half of the driveway. In July or August of 1992, defendants erected a fence about six inches inside their property line as established by the stake survey.
On September 8, 1992, plaintiffs filed an action to quiet title to the western half of the driveway, arguing that they were the owners of that portion of the driveway under the doctrine of acquiescence. The trial court entered a judgment for plaintiffs, in effect determining that, on the basis of the doctrine of acquiescence, the legal boundary line between plaintiffs’ and defendants’ property was the center of the driveway. In so doing, the trial court stated:
In any event, I am satisfied that on a preponderance of the evidence that’s been presented to me that acquiescence did occur. That it occurred at least from 1972 and possibly before that. And that therefore, a portion of the driveway that is shown on the surveys, and I’m referring right now to the Defendants’ Exhibit C, that a portion of the driveway is owned by the plaintiffs and, of course, and a portion is owned by the defendants.
Defendants appeal as of right.
Actions to quiet title are equitable in nature; this Court reviews such actions de novo. Michigan Nat’l Bank & Trust Co v Morren, 194 Mich App 407, 410; 487 NW2d 784 (1992). We review the trial court’s factual findings for clear error. Id.
Defendants argue that the trial court erred in determining that, on the basis of the doctrine of acquiescence, the boundary line between plaintiffs’ and defendants’ property was the center of the driveway. We disagree. There are three theories of acquiescence. These three theories were outlined and explained in Pyne v Elliott, 53 Mich App 419, 426-428; 220 NW2d 54 (1974). They include: (1) acquiescence for the statutory period; (2) acquiescence following a dispute and agreement; and (3) acquiescence arising from intention to deed to a marked boundary. Id.; see also Rock v Derrick, 51 Mich App 704, 708-709; 216 NW2d 496 (1974). The relevant theory in this case is acquiescence for the statutory period. We conclude that the Whites acquiesced that the center of the driveway was the boundary line between their property and plaintiffs’ property for more than the fifteen-year statutory period. MCL 600.5801(4); MSA 27A.5801(4). Therefore, the trial court properly determined that the center of the driveway was the boundary line between plaintiffs’ and defendants’ property on the basis of the acquiescence for the statutory period.
Under this theory of acquiescence, acquiescence to a boundary line may be established where the line is acquiesced in for the statutory period irrespective of whether there has been a bona fide controversy regarding the boundary. Jackson v Deemar, 373 Mich 22, 26; 127 NW2d 856 (1964). In Kipka v Fountain, 198 Mich App 435; 499 NW2d 363 (1993), this Court explained:
The law of acquiescence is concerned with a specific application of the statute of limitations to cases of adjoining property owners who are mistaken about where the line between their property is. Adjoining property owners may treat a boundary line, typically a fence, as the property line. If the boundary line is not the recorded property line, this results in one property owner possessing what is actually the other property owner’s land. Regardless of the innocent nature of this mistake, the property owner whose land is being possessed by another would have a cause of action against the other property owner to recover possession of the land. After fifteen years, the period for bringing an action would expire. The result is that the property owner of record would no longer be able to enforce his title, and the other property owner would have title by virtue of his possession of the land. [Id., 438-439.]
In this case, plaintiffs and the Whites mistakenly treated the center of the driveway as the boundary between their property when it was not the recorded property line. Because the entire driveway was actually on the Whites’ property, plaintiffs’ and the Whites’ treatment of the center of the driveway as the boundary resulted in plaintiffs possessing what was actually the Whites’ land. Until the fifteen-year period expired, the Whites would have had a cause of action against plaintiffs to recover possession of the western half of the driveway. Here, however, the statutory period was satisfied. The Whites, although the true owners of the entire driveway, treated the center of the driveway as the true boundary between their property and plaintiffs’ property from 1963 until 1989, a period of about twenty-six years. In 1972, plaintiffs’ survey revealed that the driveway was actually located on the Whites’ property. Despite this knowledge, the Whites continued to acquiesce to the boundary line being the center of the driveway from 1972 until 1989, a period of seventeen years. As the Supreme Court has noted: “ ‘It has been repeatedly held by this Court that a boundary line long treated and acquiesced in as the true line, ought not to be disturbed on new surveys. Fifteen years’ recognition and acquiescence are ample for this purpose.’ ” Johnson v Squires, 344 Mich 687, 692; 75 NW2d 45 (1956) (citations omitted), quoting Dupont v Starring, 42 Mich 492, 494; 4 NW 190 (1880). The Whites acquiesced that the center of the driveway was the boundary line between their property and plaintiffs’ property for more than fifteen years. Accordingly, the trial court properly determined that plaintiffs owned the western half of the driveway under the doctrine of acquiescence.
Defendants next argue that the trial court erred in admitting certain hearsay testimony. This Court reviews a trial court’s evidentiary rulings for an abuse of discretion. Haberkorn v Chrysler Corp, 210 Mich App 354, 361; 533 NW2d 373 (1995). An error in the admission of evidence is not a ground for vacating, modifying, or otherwise disturbing a judgment unless refusal to take such action would be inconsistent with substantial justice. MCR 2.613(A).
Defendants argue that the trial court abused its discretion in admitting Richard Bahls’ testimony that Chester White made an affirmative remark indicating his agreement when plaintiffs’ predecessor in title, in Chester White’s presence, stated that the driveway used to be Jackson Street, that Jackson Street had been vacated, and that he (plaintiffs’ predecessor in title) owned the western half of the driveway and Chester White owned the eastern half. Defendants also argue that the trial court abused its discretion in admitting plaintiff husband’s testimony that Chester White stated that the middle of the driveway was the boundary line in 1963, again five to seven years later, and in 1972 after plaintiffs had their property surveyed.
P1a.int.iff husband’s testimony that Chester White stated to him that plaintiffs owned the western half of the driveway and the WTiites owned in eastern half of the driveway after being made aware of the results of the 1972 survey was admissible as a statement against interest pursuant to MRE 804(b)(3). MRE 804(b)(3) provides that the following is not excluded by the hearsay rule if the declarant is unavailable as a witness:
Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.
The declarant, Chester White, died in 1985 and was therefore unavailable. MRE 804(a)(4). Furthermore, Chester WTiite’s statement was contrary to his proprietary interests. Proprietary interest is defined as “[t]he interest of an owner of property together with all rights appurtenant thereto.” Black’s Law Dictionary (6th ed), p 1219. Chester WTiite’s statement was contrary to his proprietary interest in his property because the statement was a statement against his ownership interest in a portion of his property. A reasonable person would not make such a statement unless he believed it to be true. Accordingly, we conclude that the trial court did not abuse its discretion in admitting the testimony pursuant to MRE 804(b)(3).
In Roberts v City of Troy, 773 F2d 720, 725 (CA 6, 1985), the Court of Appeals for the Sixth Circuit stated that hearsay evidence under the declaration against interest exception is unreliable unless the declarant is aware at the time of the making of the statement that it is against his interest. Chester White made the statement in 1972 in response to the results of plaintiffs’ survey of their property, which indicated that the entire driveway was on the Whites’ property. In making the statement, Chester White referred to the survey and indicated that, regardless of the survey, plaintiffs owned the western half of the driveway and the Whites owned the eastern half. Thus, to the extent that an awareness requirement exists, this requirement was satisfied because Chester White was aware in 1972 that, by stating that plaintiffs owned the western half of the driveway, he was making a statement against his ownership interest in that portion of the driveway.
We need not decide whether the trial court abused its discretion in admitting Richard Bahls’ testimony or the remaining portions of plaintiff husband’s testimony that defendants argue were improperly admitted. Even if the trial court abused its discretion in admitting the testimony, the errors were harmless because the testimony was merely cumulative. Other testimony, such as Vivian Bottger’s testimony that in 1974 Chester White stated that the Whites and plaintiffs owned and shared the driveway, which defendants did not object to, as well as plaintiff husband’s testimony that Chester White stated that the center of the driveway was the boundary after the 1972 survey, was sufficient to support the trial court’s finding that the Whites acquiesced to plaintiffs’ ownership of the western portion of the driveway for more than fifteen years. Accordingly, any error in the admission of the evidence was harmless. MCR 2.613(A).
Affirmed.
The complaint also contained claims of negligent and intentional infliction of emotional distress. However, the trial court granted defendants’ motion for summary disposition regarding these claims, and plaintiffs do not argue on appeal that summary disposition was improper. | [
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Holbrook, Jr., J.
A Kalamazoo Circuit Court jury convicted defendant of assault with intent to commit great bodily harm less than murder, MCL 750.84; MSA 28.279, extortion, MCL 750.213; MSA 28.410, and two counts of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant appealed as of right and, in an unpublished order, entered December 22, 1992 (Docket No. 145054), we remanded this matter to the trial court for an evidentiary hearing. The purpose of the hearing was to allow defendant to develop a record with regard to his claim that the process used at the time of his trial to allocate prospective jurors from a master source list to the Kalamazoo Circuit Court venires violated his Sixth Amendment guarantee of an impartial jury drawn from a fair cross section of the community. On remand, the trial court found that defendant established a Sixth Amendment violation and ordered a new trial. The prosecution then filed a delayed application for leave to appeal. We granted leave and consolidated these appeals. We agree with the trial court’s grant of a new trial and reverse and remand for a new trial.
i
These appeals require us to address the difficult question whether the circuit court jury that tried and convicted defendant was drawn from a venire that unconstitutionally underrepresented the African-American community in Kalamazoo County. After careful consideration of the extensive briefing performed by the parties and the evidence presented at a four-day evidentiary hearing, we conclude that the method of allocating prospective jurors to the Kalamazoo Circuit Court, which was employed at the time of defendant’s trial, violated the fair-cross-section requirement of the Sixth Amendment.
A
Before we can reach the merits of the substantive question posed, we must first address several procedural issues raised by the prosecutor. Specifically, the prosecutor advances a series of presentation and preservation arguments in support of her contention that the trial court should not have reached the substantive merits of defendant’s fair-cross-section challenge. For the reasons set forth below, we find that defendant’s challenge was timely raised below and properly presented to us for resolution.
Initially, the prosecutor contends that the trial court should not have reached the substantive merits of defendant’s challenge because defendant’s oral motion made during voir dire was insufficient to place the issue before the trial court and preserve the issue for later appellate review. While this Court has ruled that a challenge to a jury array must be filed in writing before the jury is sworn, the decision announcing this rule was subsequently vacated by our Supreme Court. People v Kelly, 147 Mich App 806, 814; 384 NW2d 49 (1985), vacated 428 Mich 867 (1987). Moreover, our review of the two cases relied upon by this Court in Kelly reveals that neither case addressed whether a challenge to an array had to be made in writing. See People v McCrea, 303 Mich 213; 6 NW2d 489 (1942); People v Stephen, 31 Mich App 604; 188 NW2d 105 (1971). Without the assistance of citation to meaningful authority, we decline to adopt a rule that Sixth Amendment fair-cross-section challenges must be submitted to the trial court in writing. Ward v Frank’s Nursery & Crafts, Inc, 186 Mich App 120, 129; 463 NW2d 442 (1990).
The prosecutor next contends that the trial court was precluded from considering defendant’s challenge because defendant’s initial motion was untimely. A challenge to the jury array is timely if it is made before the jury has been impaneled and sworn. McCrea, supra at 278, citing People v McArron, 121 Mich 1, 5; 79 NW 944 (1899), and 35 CJ, p 377. Defendant raised his initial Sixth Amendment challenge during voir dire, before the panel was sworn. We find the challenge to have been timely raised.
Our conclusion that the challenge was timely made is not changed by the prosecutor’s reliance on MCL 600.1354(1); MSA 27A. 1354(1), which provides in pertinent part:
Failure to comply with the provisions of this chapter shall not. . . affect the validity of a jury verdict unless the party . . . claiming invalidity has made timely objection and unless the party demonstrates actual prejudice to his cause and unless the noncompliance is substantial. An objection made at the day of a scheduled trial shall not be considered timely unless the objection, with the exercise of reasonable diligence, could not have been made at an earlier time.
The record establishes that the circuit court possessed no data from which defendant could ascertain the minority representation on the source list or in the venire. Absent such data, defendant could not ascertain whether there was a need to challenge the juror allocation process before defendant actually viewed the array. Accordingly, we decline to disturb the trial court’s determination that defendant’s challenge could not have been made earlier than during voir dire and that defendant’s objection was timely made within the meaning of MCL 600.1354; MSA 27A.1354. People v Oliphant, 399 Mich 472, 501; 250 NW2d 443 (1976).
The prosecutor also contends that defendant waived his right to pursue his challenge by expressing satisfaction with the jury as impaneled. An expression of satisfaction with a jury made at the close of voir dire examination waives a party’s ability to challenge the composition of the jury thereafter impaneled and sworn. This rule first arose in cases involving challenges to the manner in which voir dire was conducted and continues to be applied in such cases. See, e.g., People v Rose, 268 Mich 529, 531; 256 NW 536 (1934); Snyder v Mathison, 196 Mich 378, 386; 163 NW 104 (1917); People v DePlanche, 183 Mich App 685, 691; 455 NW2d 395 (1990); People v Acosta, 16 Mich App 249, 250; 167 NW2d 897 (1969). In People v Mann, 49 Mich App 454, 463; 212 NW2d 282 (1973), a case relied heavily upon by the prosecutor, this Court extended this waiver rule, without explanation, to a case wherein the defendant claimed that he was denied due process because the petit jury array may have excluded an allegedly substantial class of the community. We find the prosecutor’s reliance on Mann to be misplaced.
In Leslie v Allen-Bradley Co, Inc, 203 Mich App 490, 493; 513 NW2d 179 (1994), this Court concluded that a party’s expression of satisfaction with the jury on the record before the jury did not constitute a waiver where the record demonstrated that the party was not satisfied with the jury and where the party’s expression of satisfaction was “a necessary part of trial strategy, designed to avoid alienating prospective jurors.” We find nothing in the trial record to support a conclusion that defendant’s expression of satisfaction with the jury was intended as a relinquishment of his belief that the venire was selected in an unconstitutional manner or that such expression was anything more than an exercise in practicality, given the trial court’s earlier adverse ruling and the potential for jury alienation. Accordingly, we find that defendant did not waive his fair-cross-section challenge by expressing satisfaction with the jury as impaneled.
Finally, the prosecutor contends that defendant forfeited consideration of his challenge by failing to exhaust his peremptory challenges. Generally, a party must exhaust that party’s peremptory challenges to prevent a challenge to the composition of a jury from being deemed forfeited. Rose, supra at 531. This rule is usually applied in cases where a party challenges the composition of the jury on the basis of a defect in the voir dire process that allowed a juror or jurors to be seated when juror impartiality is at question. Id.; People v Taylor, 195 Mich App 57, 59-60; 489 NW2d 99 (1992). To the extent that this rule applies in cases involving Sixth Amendment fair-cross-section challenges, cf. Mann, supra at 463, the rule is not absolute in its application. Taylor, supra at 60. Appellate courts do not require a party to exercise peremptory challenges in an unintelligent and pointless manner. Id. A peremptory challenge is exercised unintelli gently and pointlessly when the exercise would not prevent error, eliminate its prejudice, or further demonstrate the error and its prejudice. Id.
The record establishes a complete absence of African-Americans in defendant’s jury array. Defendant challenged the array on the ground that the juror allocation process employed by Kalamazoo County excluded African-American jurors from the venire and deprived him of his right to a jury drawn from a fair cross section of the community. Under these circumstances, to have required defendant to exhaust his peremptory challenges would have been to require defendant to engage in an unintelligent and pointless exercise of the challenges. Defendant could not have cured any defect in the juror allocation process through the use of additional peremptory challenges. Nor would the use of additional peremptory challenges have increased the number of African-Americans on the jury, given that there were no African-Americans in the array. On this record, defendant’s failure to exhaust his peremptory challenges does not constitute a forfeiture of his fair-cross-section challenge.
Having concluded that defendant raised his Sixth Amendment challenge in a timely manner, and that the challenge is properly before us for resolution, we now address the substantive merits of the challenge.
B
We begin our discussion of the substantive question posed with an explanation of the procedures used to allocate prospective jurors from a general source list to the venires of the various Kalamazoo County courts and of the pertinent racial demographics of the county. We then explore the legal framework within which these facts must be examined.
The Kalamazoo County courts consist of a circuit court and a district court. The district court is divided into two districts — the Eighth and Ninth Districts. The Ninth District Court is further divided into two divisions. Division I covers of the City of Kalamazoo and Division II covers the City of Portage. The Eighth District Court covers the remainder of the county.
Since 1987, Michigan has required that petit juries for these courts be chosen from a source list consisting of the names of county residents at least eighteen years of age drawn from the Secretary of State’s driver’s license and personal identification cardholder lists. MCL 600.1300; MSA 27A.1300, MCL 600.1301a; MSA 27A. 1301(1), MCL 600.1304; MSA 27A.1304. The Kalamazoo Circuit Court jury coordinator secured a source list by submitting a written request to the Secretary of State’s office that specified the total number of county residents the courts estimated would be needed for jury service in the upcoming “jury fiscal year.” The Secretary of State’s office then used a computer program to generate a source list on the basis of the county’s specifications. The source list identified the prospective jurors by name, street address, residency of city, state, and county, and zip codes. It did not identify prospective jurors by race.
The jury coordinator provided the list to the Kalamazoo County director of information systems, who, in turn, loaded the list into the county’s computer system for the purpose of assigning county residents who held post office box addresses a zip code that corresponded to the boxholders’ city and street addresses. After these zip codes were assigned, the jury coordinator forwarded the list to First Data Resources in Omaha, Nebraska, where “sector segment extensions” were added to the zip codes of each county resident named on the list. A sector segment extension was a four-digit numerical code added to the end of the five-digit zip code to identify an individual by residence location.
Once the list was returned to the county, the jury coordinator decided the number of qualifying questionnaires to be sent for each court on the basis of each court’s anticipated need for jurors and past experience concerning the rate of return expected from the questionnaire mailing. These numbers were then supplied to the director of information systems, who reloaded the list into the county’s computer system. The zip codes, the sector segment extensions, and sometimes the street addresses were used to determine the court jurisdiction in which each prospective juror resided. The computer then randomly sorted and assigned names from the list to each court up to the maximum number requested. From the mid-1980s until July 1992, the computer allocated prospective jurors first to the Ninth District Court, Division I, then to the Ninth District Court, Division II, then to the Eighth District Court, and finally to the circuit court. Those persons on the list who lacked a sector segment extension were automatically assigned to the circuit court. Defendant’s jury was the product of this allocation system.
The juror allocation system employed after July 1992 selected jurors first for the circuit court and then allocated the remaining names to the appropriate district courts. The allocation system was changed after the circuit court learned as a result of an outside study that by first allocating residents of the City of Kalamazoo to the jury list for the Ninth District Court, Division I, few residents of the City of Kalamazoo remained on the source list and were available for allocation to the circuit court venires. Consequently, residents of the City of Kalamazoo were being significantly underrepresented in the circuit court venires. Moreover, because the largest population of African-Americans eligible for jury service resided in the City of Kalamazoo, the exclusion of residents of the City of Kalamazoo from the circuit court venires resulted in approximately seventy-five percent of the African-American adults eligible for jury service being excluded from service in the circuit court, by one expert’s estimation.
Under both allocation systems, questionnaires were mailed to those individuals randomly selected from the source list and allocated to the jury lists of the various county courts. A three-member jury board screened completed and returned questionnaires for juror eligibility and for possible excusáis. The board then returned the questionnaires to the jury coordinator, who made entries into the computer indicating whether a prospective juror was qualified for service or excused from service. Excused prospective jurors were purged from the system as were prospective jurors who failed to return the questionnaire or whose questionnaires were returned as undeliverable. The jury coordinator used the lists of qualified prospective jurors to summon county residents for jury duty.
The 1990 census figures indicated that African-American adults residing in Kalamazoo County comprised 7.4 percent of the county’s population eighteen years of age and older. The figures further indicated that African-American adults residing in the City of Kalamazoo comprised 14.77 percent of the city’s population eighteen years of age and older. The City of Kalamazoo was the most populous municipal corporation in the county, representing approximately 36 percent of the county’s population.
c
The prosecutor contends that the trial court erroneously concluded that the juror allocation process employed at the time of defendant’s trial violated defendant’s Sixth Amendment right to a jury drawn from a representative cross section of the community and, therefore, abused its discretion in granting defendant’s motion for a new trial. We disagree.
This Court reviews a trial court’s grant of a motion for a new trial for an abuse of discretion. People v Herbert, 444 Mich 466, 477; 511 NW2d 654 (1993). Questions of systematic exclusion of minorities from venires are reviewed de novo by this Court. See, e.g., McCrea, supra at 276-277; People v Sanders, 58 Mich App 512, 514-516; 228 NW2d 439 (1975).
A criminal defendant is entitled to an impartial jury drawn from a fair cross section of the community. Taylor v Louisiana, 419 US 522, 526-531; 95 S Ct 692; 42 L Ed 2d 690 (1975). This fair-cross-section requirement does not entitle the defendant to a petit jury that mirrors the community and reflects the various distinctive groups in the population. Id., at 538. Instead, the Sixth Amendment guarantees an opportunity for a representative jury by requiring that jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to constitute a fair cross section of the community. Id.; United States v Jackman, 46 F3d 1240, 1244 (CA 2, 1995). In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show “(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren v Missouri, 439 US 357, 364; 99 S Ct 664; 58 L Ed 2d 579 (1979). Even if a prima facie fair-cross-section violation has been established by the defendant, the government may overcome the right to a proper jury by proffering a significant state interest that manifestly and primarily advances those aspects of the jury selection process that would result in the disproportionate exclusion of a distinctive group, such as exemption criteria. Id. at 367-368; Ford v Seabold, 841 F2d 677, 681 (CA 6, 1988).
Defendant satisfied the first prong of the Duren test. African-Americans are considered a constitutionally cognizable group for Sixth Amendment fair-cross-section purposes. United States v Ashley, 54 F3d 311, 313 (CA 7, 1995); Jackman, supra at 1246; Ramseur v Beyer, 983 F2d 1215, 1230 (CA 3, 1992).
The second prong of the Duren test may be satisfied by showing that the number of members of the cognizable group is not fair and reasonable in relation to the number of members in the relevant community. People v Sanders, 51 Cal 3d 471, 491-492; 273 Cal Rptr 537; 797 P2d 561 (1990). Explained another way, the second prong is satisfied where it has been shown that a distinctive group is substantially underrepresented in the jury pool. United States v Osorio, 801 F Supp 966, 977 (D Conn, 1992). Unfortunately, the United States Supreme Court has not yet spoken definitively regarding either the means by which disparity may be measured or the constitutional limit of permissible disparity. Sanders, supra, 51 Cal 3d 492-493. Consequently, the courts have developed and applied three separate methods of measuring disparity. These methods include the absolute disparity test, also referred to as the absolute numbers or absolute impact test, Ashley, supra at 314; Jackman, supra at 1246; Ramseur, supra at 1231; Osorio, supra at 977-978, the comparative disparity test, Ramseur, supra; Sanders, supra, 51 Cal 3d 492, n 5, and the deviation from expected random selection test, also referred to as the standard deviation test, Ramseur, supra, or the statistical decision theory, Ford, supra at 684, n 5. The absolute disparity test is most often applied in Sixth Amendment fair-cross-section cases, People v Bell, 49 Cal 3d 502; 527, n 14; 262 Cal Rptr 1; 778 P2d 129 (1989), whereas the comparative disparity and the standard deviation tests are more likely to be applied in equal protection cases, Castaneda v Partida, 430 US 482, 492-499; 97 S Ct 1272; 51 L Ed 2d 498 (1977); Alexander v Louisiana, 405 US 625, 626-631; 92 S Ct 1221; 31 L Ed 2d 536 (1972); Ramseur, supra at 1231-1233; Ford, supra at 684, n 5; Alston v Manson, 791 F2d 255, 258-259 (CA 2, 1986).
The trial court failed to identify the test it employed to ascertain the level of disparity present in this case. The proper test to be applied under these facts presents a question of first impression in this state. The prosecutor urges this Court to adopt the absolute disparity test. We decline to do so for the reasons set forth below.
The absolute disparity test measures representativeness by the difference between the percentage of a certain population group eligible for jury duty and the percentage of that group who actually appear in the venire. Ramseur, supra at 1231; Sanders, supra, 51 Cal 3d 492, n 5. The absolute disparity is obtained by subtracting the jury representation percentage from the community percentage. Id. Under this test, absolute disparities between 2 percent and 11.2 percent are considered statistically insignificant and do not constitute substantial underrepresentation. Ashley, supra at 314; Ramseur, supra at 1231, 1232, n 18; United States v Tattle, 729 F2d 1325, 1327 (CA 11, 1984).
Although the absolute disparity test is widely accepted and applied, Ashley, supra at 314; Ramseur, supra at 1231; United States v Biaggi, 909 F2d 662, 678 (CA 2, 1990); United States v McAnderson, 914 F2d 934, 941 (CA 7, 1990); United States v Test, 550 F2d 577, 587 (CA 10, 1976), the test is not without its critics. In Biaggi, supra at 678, the United States Court of Appeals for the Second Circuit criticized the test as follows:
The risk of using this approach is that it may too readily tolerate a selection system in which the seemingly innocuous absence of small numbers of a minority from an average array creates an unacceptable probability that the minority members of the jury ultimately selected will be markedly deficient in number and sometimes totally missing. Of course, the Sixth Amendment assures only the opportunity for a representative jury, rather than a repre sentative jury itself, . . . but that opportunity can be imperiled if venires regularly lack even the small numbers of minorities necessary to reflect their proportion of the population. [Emphasis in original.]
See also Jackman, supra at 1246-1247; State v Williams, 525 NW2d 538, 543 (Minn, 1994); Osorio, supra at 978-979. The deficiency inherent in this test becomes more acute where there is a small percentage of minorities of voting age eligible for jury service. Jackman, supra at 1247.
Turning now to the case before us, adult African-Americans composed 7.4 percent of the Kalamazoo County population. They also comprised 3.3 percent to 4 percent of the Kalamazoo Circuit Court venires between July 10, 1990, and July 9, 1991, based on statistical estimates. Using these figures, the absolute disparity in this case was 3.4 percent (7.4 percent minus 4 percent) to 4.1 percent (7.4 percent minus 3.3 percent). An absolute disparity falling in this range does not constitute substantial underrepresentation for Sixth Amendment fair-cross-section purposes. Ramseur, supra at 1232 & n 18; Osorio, supra at 978; Biaggi, supra at 677-678.
We believe, however, that this case demonstrates the danger of employing the absolute disparity test when the distinctive group constitutes a small percentage of the voting-age adults who are presumptively available and qualified to serve as jurors. Had the juror allocation process employed in Kalamazoo County excluded all 7.4 percent of the African-Americans in the adult county population, the absolute disparity would have risen to 7.4 percent (7.4 percent minus 0 percent). An absolute disparity of 7.4 percent also fails to constitute substantial under- representation under the case law. Thus, the Kalamazoo County juror allocation system could have excluded all African-Americans from jury service and a successful Sixth Amendment challenge would not be possible because the total percentage of African-American adults in the county population constituted a percentage less than that which was considered statistically significant for Sixth Amendment analysis. Under these circumstances, we conclude that the absolute disparity test is an ineffective measure of acceptable disparity when the constitutionally distinctive group composes a small percentage of the overall community population. We decline, therefore, to find the absolute disparity test controlling in this case. Instead, we believe the better approach to take under these circumstances is the approach taken in Osorio, supra.
In Osorio, supra at 968, 972, the defendant claimed that the method of selecting his grand jurors in the Hartford Division of the United States District Court for the District of Connecticut violated the Sixth Amendment requirement of a fair cross section where the residents of the two largest cities in the division, Hartford and New Britain, were absent from the qualified jury wheel and where these two cities combined to account for 62.93 percent of the voting-age African-American population and 68.09 percent of the voting-age Hispanic population in the division. The absence of residents of the City of New Britain from the qualified wheel resulted from the failure to enter any of the names of the city’s residents into the master wheel, from which the qualified wheel was drawn. Id. at 972. The absence of residents of the City of Hart ford resulted from some unexplained cause and was not attributable to random chance. Id. at 972-973.
The court applied the absolute disparity test when it evaluated whether the defendant had satisfied the second prong of the Duren test by showing that African-Americans and Hispanics were substantially underrepresented in the qualified wheel. Osorio, supra at 977, 978. The absolute disparity for African-Americans was 3.26 percent. The absolute disparity for Hispanics was 4.3 percent. Id. at 978. The court noted that these absolute disparity percentages demonstrated insubstantial underrepresentation for Sixth Amendment purposes, citing Biaggi, supra at 678-679. Osorio, supra at 978. The court refused, however, to find Biaggi controlling. Instead, after reiterating Biaggi's warning regarding the deficiencies of the absolute disparity test, the court found that the defendant had shown substantial underrepresentation within the meaning of a Sixth Amendment analysis where the disparity resulted from “non-benign” circumstances:
More importantly, the Second Circuit recognized that the degree of underrepresentation experienced in Biaggi “press[ed] the [United States v] Jenkins [496 F2d 57 (CA 2, 1974)] ‘absolute numbers’ approach to its limit” and stated that it “would find the Sixth Amendment issue extremely close if the underrepresentations had resulted from any circumstance less benign than use of voter registration lists. ” [Biaggi, supra] at 679 (emphasis added).
The facts herein reveal circumstances far less benign than the use of voter registration lists. Biaggi was not faced with a situation where roughly one-third (27 of 84) of the towns within the division were not represented on the Qualified Wheel. Furthermore, Biaggi did not see the total exclusion from the Qualified Wheel of the two largest cities in the Division, cities accounting for one-sixth of the total population and two-thirds of the minority population in the Division. Finally, this case illustrates the problem in applying the “absolute numbers” approach followed in Biaggi. Given the small percentage of voting-age blacks and Hispanics residing within the Hartford Division (6.34% and 5.07 % respectively as compared to 19.9% and 15.7% within the Manhattan Master Wheel of the Southern District of New York in Biaggi), the absence of a representative sample of blacks and Hispanics in the Qualified Wheel leads to the “unacceptable probability” that the minority members of the jury ultimately selected will be markedly deficient in number and, in most cases, totally missing. See [Biaggi, supra] at 678.
. . . The underrepresentation of blacks and Hispanics was held to be “benign” in Biaggi because there was no evidence that any circumstances other than random selection of names from the voter registration lists created that underrepresentation. 909 F2d at 678. In contrast, the exclusion of Hartford and New Britain from the Qualified Wheel, an occurrence not the result of random chance, is not “benign” as that term is understood by the Court. . . .
The lack of random selection in the compilation of names for the Qualified Wheel is what makes the circumstances here less benign than in Biaggi. Accordingly, as Biaggi's holding does not control in this case and as circumstances less benign than voter registration lists have led to minority underrepresentation in the Qualified Wheel, the Court finds that, on the facts in this case, a racial disparity requiring the addition of two blacks and two Hispanics to an average grand jury venire constitutes substantial underrepresentation under the Sixth Amendment. [Osorio, supra at 978-979.]
See also Jackman, supra at 1246-1248 (employing an approach similar to that taken in Osorio to determine that substantial underrepresentation existed for Sixth Amendment purposes in the jury selection process implemented in light of Osorio).
The level of absolute disparity in this case is similar to that found in Osorio. This case is also similar to Osorio in that the underrepresentation of African-Americans in the venires was the result of circumstances less benign than random selection from voter registration lists. The evidence produced on remand reveals that the juror allocation process employed by Kalamazoo County before July 1992 — and not random selection — caused the underrepresentation.
Between 1984 or 1985 and July 1992, the juror allocation process employed in Kalamazoo County first allocated residents of the City of Kalamazoo to the jury list for the Ninth District Court, Division I. Once the jury list for this court was filled, those residents of the City of Kalamazoo not allocated to this district court jury list were then made available for allocation to the circuit court jury list. By giving the Ninth District Court, Division I, priority over the circuit court, the allocation process guaranteed that the number of residents of the City of Kalamazoo available for allocation to the circuit court jury list was significantly less than the city’s approximate thirty-six percent representation in the county’s general population. The level of underrepresentation is reflected in the figures entered into evidence that indicate that residents of the City of Kalamazoo regularly comprised between two percent and seventeen percent of the prospective jurors made available for circuit court jury service. Moreover, the largest population of African-Americans residing in the county reside in the City of Kalamazoo. Consequently, by guaranteeing that residents of the City of Kalamazoo would be substantially underrepresented in the circuit court venires, the allocation ■ system guaranteed that African- Americans residing in the City of Kalamazoo likewise would be underrepresented. In fact, there was evidence introduced that indicated that the substantial exclusion of residents of the City of Kalamazoo from the circuit court venires resulted in the exclusion of approximately seventy-five percent of the African-American adults eligible for jury service in the circuit court.
On this record, we conclude that the under-representation of African-Americans in the circuit court venires prevalent at the time of defendant’s jury selection did not result from “benign” random selection, but, instead, resulted from a defect inherent in the juror allocation process employed by Kalamazoo County. Moreover, given the lack of benign causation, we conclude that the level of disparity constituted substantial underrepresentation under the Sixth Amendment. Osorio, supra at 978-979. Defendant has satisfied the second prong of the Duren test.
The third prong of the Duren test is satisfied by showing that the underrepresentation of a distinctive group is due to systematic exclusion, i.e., an exclusion resulting from some circumstance inherent in the particular jury selection process used. Duren, supra at 366; Ashley, supra at 314. A systematic exclusion is not shown by one or two incidents of a venire being disproportionate. Ford, supra at 685; Timmel v Phillips, 799 F2d 1083, 1087 (CA 5, 1986); see also Duren, supra at 366 (a large discrepancy occurring in every weekly venire for a period of nearly a year manifestly indicates that the cause was systematic).
The evidentiary record before us establishes that the juror allocation system employed by Kalamazoo County before July 1992 was the primary cause of the underrepresentation of African-Americans in the circuit court venires. The county employed this allocation system between the mid-1980s and mid-1992. A statistical analysis of the racial composition of the jury arrays for a forty-nine-week period beginning in July 1990 and ending in July 1991 indicated that African-Americans were significantly underrepresented in the venires during this period. Additionally, we can infer from testimonial evidence offered that this underrepresentation of African-Americans also was present in 1989.
We conclude, on this record, that defendant established that the underrepresentation of African-Americans resulted from a systematic exclusion of significant duration and, therefore, that defendant satisfied the third prong of the Duren test.
The trial court correctly determined that defendant had been deprived of his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community. Accordingly, the trial court did not abuse its discretion in granting defendant’s motion for a new trial. We affirm the trial court’s findings on remand and reverse and remand for a new trial.
D
Having concluded that the Kalamazoo County jury array procedure was systemically flawed between the mid-1980s and 1992, we further conclude that this decision shall have retrospective application only to the extent of direct appeals currently pending, or filed after the issuance date of this decision, where the jury array issue was specifically and seasonably raised in the trial court and properly preserved for appellate review. See Daniel v Louisiana, 420 US 31, 32-33; 95 S Ct 704; 42 L Ed 2d 790 (1975); Teague v Lane, 489 US 288; 109 S Ct 1060; 103 L Ed 2d 334 (1989). We further caution the bench and bar, however, that this decision should not be interpreted as warranting reversal per se of an otherwise valid conviction obtained in the Kalamazoo Circuit Court during the time when the flawed jury array procedure was in use. Each case must be decided on its own merits. See, e.g., People v Dixon, 217 Mich App 400; 552 NW2d 663 (1996) (challenge to jury array procedure was untimely and therefore appellate review was forfeited).
n
Because of the dispositive nature of our resolution of the Sixth Amendment challenge, we limit our remaining discussion to those claims properly preserved and presented to this Court for resolution and necessary to guide the trial court and the parties on retrial.
Defendant contends that the extortion statute, MCL 750.213; MSA 28.410, is void for vagueness. Defendant’s failure to challenge the constitutionality of this statute before the trial court normally would preclude appellate review. People v Gezelman (On Rehearing), 202 Mich App 172, 174; 507 NW2d 744 (1993). We waive the preservation requirement, however, because defendant raises an important constitutional issue of first impression. Id.
A statute challenged on a constitutional basis is clothed in a presumption of constitutionality. Johnson v Harnischfeger Corp, 414 Mich 102, 112; 323 NW2d 912 (1982). Further, a court is obligated to construe a statute as constitutional unless its unconstitutionality is clearly apparent. Thompson v Merritt, 192 Mich App 412, 424; 481 NW2d 735 (1991).
A statute may be challenged for vagueness on three grounds: (1) it does not provide fair notice of the conduct proscribed; (2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed; and (3) its coverage is overly broad and impinges on First Amendment freedoms. People v White, 212 Mich App 298, 309; 536 NW2d 876 (1995). When making a vagueness determination, a court must take into consideration any judicial constructions of the statute. People v Lino, 447 Mich 567, 575; 527 NW2d 434 (1994). We review de novo a challenge to a statute’s constitutionality under the void-for-vagueness doctrine. See, e.g., White, supra at 308-313.
The extortion statute provides in pertinent part:
Any person who shall . . . orally . . . maliciously threaten any injury to the person ... of another . . . with intent to compel the person so threatened to do or refrain from doing any act against his will, shall be guilty of a felony. [MCL 750.213; MSA 28.410.]
Defendant premises his void-for-vagueness challenge on a belief that the statute’s use of the word “threaten” confers unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed. We reject defendant’s premise and conclude that the statute does not suffer from constitutional infirmity.
Defendant argues that the word “threaten” as used in the statute is unconstitutionally vague unless the word is construed to encompass only threats of future harm. We fail to understand how excluding threats of present harm from the definition of the term in question renders the statute free of the alleged constitutional defect. Nevertheless, we reject defendant’s construction. When a defendant is charged with extortion arising out of the taking of property by threat of harm, a conviction may be secured only upon the presentation of proof of the existence of a threat of future harm. People v Krist, 97 Mich App 669, 670-676; 296 NW2d 139 (1980). When the charge is one of extortion arising out of a compelled action or omission, however, a conviction may be secured upon the presentation of proof of the existence of a threat of immediate, continuing, or future harm. People v Fobb, 145 Mich App 786, 788-790; 378 NW2d 600 (1985).
We find the word “threaten” as used in the statute to be sufficiently specific to ensure that the statute’s enforcement will not be arbitrary or discriminatory, given the prior constructions afforded the term by this Court. In re Forfeiture of 719 N Main, 175 Mich App 107, 112-113; 437 NW2d 332 (1989).
Defendant also argues that the extortion statute is unconstitutionally vague because the statute allows a defendant to be convicted of extortion after making a minor threat that results in the victim engaging in an action with no serious consequences to the victim. Defendant urges this Court to construe the statute to allow conviction only when the threat was made to obtain a substantial benefit for the person making the threat. Once again, we reject defendant’s construction of the statute.
The Legislature did not intend punishment for every minor threat. Fobb, supra at 791. Instead, the Legislature intended punishment for those threats that result in pecuniary advantage to the individual making the threat or that result in the victim undertaking an action of serious consequence, such as refusing to report a defendant’s sexual misconduct or refusing to testify. Id. at 792-793. Accordingly, a conviction for extortion will not be sustained where the act required of the victim was minor with no serious consequences to the victim. Id. at 791.
We conclude that the construction afforded the statute by Fobb provides sufficient guidance regarding the nature of the threat and act compelled to ensure that the statute will not be enforced arbitrarily or discriminatorily. The statute is not void for vagueness.
In the alternative, defendant contends that, if the extortion statute is constitutional, then the prosecutor failed to present sufficient evidence to sustain defendant’s conviction for extortion. We disagree. Because defendant’s extortion charge arose from a threat made to compel action, a threat of future harm need not have been shown; the existence of a threat of immediate harm was sufficient. Id. at 790. Moreover, having reviewed the evidence in a light most favorable to the prosecutor, we conclude that a rational trier of fact could find beyond a reasonable doubt that defendant demanded that the victim undertake an act of serious consequence. People v Vaughn, 200 Mich App 32, 35; 504 NW2d 2 (1993).
in
Defendant also contends that the reasonable doubt instruction given by the trial court was fatally flawed because the instruction did not adequately convey to the jury the concept of reasonable doubt. We disagree.
To pass scrutiny, a reasonable doubt instruction, when read in its entirety, must leave no doubt in the mind of the reviewing court that the jury understood the burden that was placed upon the prosecutor and what constituted a reasonable doubt. People v Jackson, 167 Mich App 388, 391; 421 NW2d 697 (1988). We review de novo a claim of instructional error. See, e.g., People v Sammons, 191 Mich App 351, 372; 478 NW2d 901 (1991); Jackson, supra at 390-392.
Over defendant’s objection, the trial court charged the jury using the reasonable doubt instruction found in the standard criminal jury instructions. CJI2d 3.2(3). Defendant argues that this instruction was fatally flawed, in part, because the instruction failed to impress upon the jury that guilt has to be so certain that it is as strong as a moral certainty. The failure to include “moral certainty” language in the definition of reasonable doubt does not give rise to error warranting reversal. Sammons, supra at 372; Jackson, supra at 390-391.
Defendant also argues that the reasonable doubt instruction was fatally flawed because it failed to convey to the jury that a reasonable doubt could arise on the basis of the unsatisfactory nature of the evidence. Defendant relies on People v Davies, 34 Mich App 19; 190 NW2d 694 (1971). The instructional error in Davies was instructing the jury that a reasonable doubt could not be based upon a lack of evidence or upon the unsatisfactory nature of the evidence. Id. at 26-27. No such instruction was given in the instant case. Moreover, we conclude, after reading the instructions in their entirety, that the trial court adequately conveyed to the jury that a reasonable doubt can arise because of the unsatisfactory nature of the evidence.
Taken as a whole, the instruction given conveyed to the jury that a reasonable doubt is an honest belief based upon reason. Jackson, supra at 391. Moreover, the instruction did not have the effect of shifting the burden of proof by requiring the jurors to have a reason to doubt defendant’s guilt, particularly given that the trial court repeatedly instructed the jury that the prosecutor bore the burden of proof. Id. Rather, it required the jurors to have a reason to doubt defendant’s innocence.
When the instructions are read in their entirety, we do not doubt that the jury understood the prosecutor’s burden and what constituted a reasonable doubt. Accordingly, we conclude that no instructional error occurred.
IV
We need not consider defendant’s remaining issues because those issues either were not preserved for appellate review or were unique to the trial.
Reversed and remanded for a new trial. We do not retain jurisdiction. | [
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Fitzgerald, J.
Plaintiff Dorene Sanchez, formerly employed by defendant Kostas Lagoudakis as a waitress in his restaurant, brought suit against her former employer under the Handicappers’ Civil Rights Act (HCRA), MCL 37.1101 et seq.; MSA 3.550(101) et seq., after defendant informed plaintiff that she could not continue to work until she secured medical evidence that she was disease free. Defendant’s action was taken in the face of a rumor that plaintiff had acquired immunodeficiency syndrome (aids). The trial court summarily dismissed plaintiff’s suit on defendant’s motion after determining that because the complaint alleged, and discovery tended to show, plaintiff did not in fact have AIDS, she did not have a handicap as defined by the HCRA and, therefore, had failed to state a claim under the hcra. We affirmed. Sanchez v Lagoudakis, 184 Mich App 355; 457 NW2d 373 (1990). Our Supreme Court reversed, opining that discrimina tory action taken by an employer on a mere perception of a handicap, even if erroneous, was actionable under the HCRA. Sanchez v Lagoudakis, 440 Mich 496, 502-506; 486 NW2d 657 (1992). The Supreme Court then remanded this case to the trial court for a determination “whether the condition Sanchez was perceived to have was a determinable physical characteristic resulting from disease unrelated to her ability to perform the duties of her job or her qualifications for employment or promotion.” Id. at 506-507. On remand, defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (10) on the ground that defendant’s actions were authorized by the Michigan Public Health Code (the Code), MCL 333.1101 et seq.-, MSA 14.15(1101) et seq. Plaintiff also moved for summary disposition. The trial court denied defendant’s motion, granted plaintiff’s motion, and awarded plaintiff lost wages and tips, costs, and attorney fees. Defendant appealed as of right. We dismissed the appeal. Our Supreme Court vacated this Court’s order of dismissal and remanded this case to us for plenary consideration. 450 Mich 863 (1995). We now affirm.
i
Defendant argues that he, and not plaintiff, was entitled to summary disposition with regard to plaintiff’s HCRA claim because plaintiff did not, and cannot, establish, as a matter of law, that defendant’s action of suspending her pending presentation of medical proof that she was free of disease constituted an unlawful discriminatory act under the HCRA. The question presented requires us to determine whether a person with aids has a handicap as defined by the HCRA, which, in turn, requires us to explore the rela tionship between the HCRA and the Code and the effect this relationship has on a food service employee’s ability to perform the duties of a particular job.
A
In reviewing a trial court’s decision on a motion for summary disposition brought pursuant to MCR 2.116(C)(10), this Court examines all relevant affidavits, depositions, admissions, and other documentary evidence and construes the evidence in favor of the nonmoving party. The Court then determines whether a genuine issue of material fact exists on which reasonable minds could differ. Shirilla v Detroit, 208 Mich App 434, 437; 528 NW2d 763 (1995). We review de novo a trial court’s grant or denial of a motion for summary disposition. West Bloomfield Twp v Karchon, 209 Mich App 43, 48; 530 NW2d 99 (1995).
Section 202(l)(b) of the HCRA, MCL 37.1202(l)(b); MSA 3.550(202)(l)(b), provides that an employer shall not “[discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position.” To establish a prima facie case of discrimination under the HCRA, it must be shown that (1) the plaintiff is “handicapped” as defined in the HCRA, (2) the handicap is unrelated to the plaintiff’s ability to perform the duties of a particular job, and (3) the plaintiff has been discriminated against in one of the ways set forth in the statute. Merillat v Michigan State Univ, 207 Mich App 240, 244; 523 NW2d 802 (1994).
Section 103(b)(i) of the hcra, MCL 37.1103(b)(i); MSA 3.550(103)(b)(i), in effect at the time Sanchez filed her claim, defined the term “handicap” as “a determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic . . . is unrelated to the individual’s ability to perform the duties of a particular job or position, or is unrelated to the individual’s qualifications for employment or promotion.” See also Sanchez, 440 Mich 500-501.
We begin our discussion of whether a food service employee with aids is handicapped within the meaning of § 103(b)(i) with a recitation of some pertinent rules of statutory construction, from which we take guidance. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). The first criterion in determining intent is the specific language of the statute. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). Courts may not speculate about the probable intent of the Legislature beyond the words expressed in the statute. If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992). A court may consult dictionary definitions to ascertain the ordinary meaning of a word. Popma v Auto Club Ins Ass’n, 446 Mich 460, 470; 521 NW2d 831 (1994). Judicial construction is appropriate only if reasonable minds could differ regarding the meaning of a statute. Dep’t of Social Services v Brewer, 180 Mich App 82, 84; 446 NW2d 593 (1989).
The first determination we must make is whether a person with AIDS has a “physical characteristic” within the meaning of the HCRA. We are persuaded that a person with aids has such a characteristic.
The word “physical” is defined as “[r] elating or pertaining to the body, as distinguished from the mind or soul or the emotions . . . [m]aterial, substantive, having an objective existence. ...” Black’s Law Dictionary (5th ed), p 1032. The word “characteristic” is defined as “a distinguishing trait, feature, or quality; peculiarity.” Webster’s New World Dictionary, Third College Edition, p 235.
The documentary evidence submitted by the parties established the following pertinent medical facts. A person with AIDS is in the late clinical stages of infection with the human immunodeficiency virus (mv). The virus attacks white blood cells (T-Lymphocytes) and thereby compromises the host’s immune system, leaving the host unable to fight other diseases. Without a functioning immune system, the host becomes vulnerable to infection by bacteria, protozoa, fungi, viruses, and other malignancies, which may cause life-threatening illness, such as pneumonia, meningitis, and cancer. Absent the compromised immune system, the opportunistic diseases would not otherwise gain a foothold in the body.
We conclude that a severely compromised immune system constitutes a physical characteristic within the meaning of § 103(b)(i). The evidence submitted by the parties establishes that this condition represents a distinguishing trait of the body. Sanchez, 440 Mich 501.
The next determination we must make is whether a severely compromised immune system is “determinable” within the meaning of § 103(b)(1)- We are persuaded that it is.
The word “determinable” is defined as “susceptible of being determined, found out, definitely decided upon, or settled.” Black’s Law Dictionary (5th ed), p 405.
The documentary evidence provided by the parties establishes that the presence of mv is identified through serological tests that reveal the presence of mv antibodies that are produced by the host’s body generally within two weeks to three months of the host’s exposure to mv. Additionally, the severity of mv infection is also identified through serological tests that reveal various abnormalities, including abnormalities in the absolute T-helper cell count. Finally, a person is diagnosed with aids when serological, histological, and cultural techniques employed reveal the existence of one of more than a dozen indicator diseases in combination with evidence of mv infection or the ruling out of other known causes of immunodeficiency.
We conclude that a compromised immune system constitutes a “determinable” characteristic within the meaning of § 103(b)(i). This characteristic is subject to definite and objective identification by serological, histological, and cultural techniques. Sanchez, 440 Mich 501.
We must also determine whether a compromised immune system may “result from disease” within the meaning of § 103(b)(i). We conclude that it may so result.
The documentary evidence submitted by the parties indicates that HIV infection causes progressive damage to the immune system and other organic systems, especially the central nervous system, and this progressive damage in turn renders the Hiv-infected person, in the late stages of the infection, vulnerable to life-threatening opportunistic diseases. A diagnosis of AIDS is made in the late stages of HIV infection. The time from mv infection to aids diagnosis may range from two months to more than ten years.
We are persuaded that this progression from mv infection to aids diagnosis supports the conclusion that a compromised immune system results from disease. Sanchez, 440 Mich 501.
The final determination we must make is whether a severely compromised immune system is related to the individual’s abilities to perform the duties of, or to the individual’s qualifications for employment as, a waitress in a food service establishment. We look to the Code to assist us in making this determination and we conclude that, as a general proposition, it is not so related.
A determinable characteristic is related to an individual’s qualifications for employment where the characteristic prevents the individual from satisfactorily performing, at the standards set by the employer, the duties required by the particular job. Carr v General Motors Corp, 425 Mich 313, 322; 389 NW2d 686 (1986); Bowerman v Malloy Lithographing, Inc, 171 Mich App 110, 116; 430 NW2d 742 (1988).
Defendant argues that aids is related to an individual’s ability to satisfactorily perform the duties of a waitress because AIDS is a communicable disease and the Code requires an employer operating a food ser vice establishment to exclude from that establishment an employee suspected of carrying any communicable disease, including aids. Defendant further argues that we may infer from the fact that the Code requires an employer to make such an exclusion that the Code authorizes a food service employer to suspend an employee suspected of carrying a communicable disease pending the results of medical testing that reveal the health status of the employee. We are persuaded that the Code contains no blanket prohibition against the continued employment of a food service employee suspected of having or confirmed to have AIDS.
Section 12909(1) of the Code, MCL 333.12909(1); MSA 14.16(12909)(1), provides:
The department shall promulgate rules to prescribe criteria for programs by local health departments and procedures for the administration and enforcement of this part. The department may promulgate rules to prescribe minimum standards of sanitation for the protection of the public health and otherwise provide for the implementation of this part. The department in promulgating these rules shall seek the advice and counsel of local health departments and the food service industry.
Pursuant to § 12909(1), the Michigan Department of Public Health adopted and incorporated within its rales the provisions of the 1976 recommendations of the United States Public Health Service, found in the publication entitled “Food Service Sanitation Manual.” 1981 AACS, R 325.25103(b). The parties agree that one of those provisions adopted is § 3-101, which provides as follows:
No person, while infected with a disease in a communicable form that can be transmitted by foods or who is a car rier of organisms that can cause such a disease or while afflicted with a boil, an infected wound, or an acute respiratory infection, shall work in a food service establishment in any capacity in which there is a likelihood of such person contaminating food or food-contact surfaces with pathogenic organisms or transmitting disease to other persons.
Additionally, 1981 AACS, R 325.25909 provides in pertinent part:
(1) If the department or a local health department has reasonable cause to suspect possible disease transmission by an employee of a food service establishment, it may secure a morbidity history of the suspected employee and make any other investigation as may be deemed necessary.
(2) The department or a local health department may order an owner, operator, or person in charge of a food service establishment to do any of the following if a communicable disease is suspected or confirmed:
(a) Immediately exclude the employee from working in the food service establishment.
* * *
(c) Restrict the employee’s service to some area of the food service establishment, as approved by the department or the local health department, where there is no danger of transmitting disease.
(d) Require or provide for adequate medical or laboratory examination of the employee and other employees and of their body discharges.
(3) The owner, operator, or person in charge of a food service establishment shall exclude from the food service establishment any employee with a suspected communicable disease.
Our construction of these administrative rules is governed by the principles of statutory construction. Attorney General v Lakes States Wood Preserving, Inc, 199 Mich App 149, 155; 501 NW2d 213 (1993).
We concede, at the outset, Rule 325.25909(3) does contain language that, at first blush, would seem to support defendant’s contention that the Code requires a food service employer to exclude from the food service establishment an employee suspected of being infected with any communicable disease. Nevertheless, we are persuaded that the broad sweep of this regulatory language must be moderated by the Code’s intent as evidenced by § 3-101 and Rule 325.25909(2).
Section 3-101 and Rule 325.25909(1), (2), and (3) address the prevention of the spread of communicable diseases in food service establishments. Regulations that address the same subject or that share a common purpose are in pari materia and must be read together as one law. Jennings v Southward, 446 Mich 125, 136; 521 NW2d 230 (1994); House Speaker, 441 Mich 568. The object of the rule in pari materia is to give effect to the legislative purpose as found in harmonious statutes. Jennings, supra, 137. If statutes lend themselves to a construction that avoids conflict, then that construction should control. State Treasurer v Schuster, 215 Mich App 347, 352; 547 NW2d 332 (1996).
Section 3-101 clearly and unambiguously prohibits a person who is infected with a communicable disease in a form that can be transmitted through food, or who is a carrier of organisms that can cause a disease, such as from working in a food service establishment in any capacity in which there is a likelihood that the person will contaminate food or food-contact surfaces. Rule 325.25909(1) and (2) clearly and unambiguously authorize a health department, when faced with a suspected or confirmed presence of a communicable disease in a food service employee, to order a food service employer to restrict that employee’s service to some area in the food service establishment where there is no danger of disease transmission. The language employed in these regulatory provisions indicate that the Code was intended to enact measures to prevent the spread of communicable diseases transmissible through food, or, put another way, the Code seeks to prevent the spread of communicable diseases that are transmissible through the performance of specific food service jobs.
The broad exclusionary language employed in Rule 325.25909(3) conflicts with the more restrictive language employed in § 3-101 and Rule 325.25909(2) because Rule 325.25909(3) requires an employee to be excluded from a food service establishment regardless of whether the employee poses any health threat to others while § 3-101 and Rule 325.25909(2) allow the infected food service employee to remain in the employ of the food service establishment as long as the employee is infected with a communicable disease that is not transmissible through food or, if infected with a communicable disease transmissible through food, is restricted to an area of the establishment where there is no danger of transmitting the disease. This conflict can be eliminated if Rule 325.25909(3) is construed consistently with the Code’s intent as evidenced by § 3-101 and Rule 325.25909(2), which is to exclude those food service employees with communicable diseases from those specific food service jobs that would allow the infected employees to transmit their diseases to others. So construed, Rule 325.25909(3) would authorize a food service employer to exclude a food service employee suspected of being infected with a communicable disease only if the disease the employee is suspected of being infected with is transmissible through a job-related activity. Such a construction promotes the advancement of a single, harmonious intent and eliminates any tension between Rule 325.25909(3) and § 3-101 and Rule 325.25909(2). Because such a construction eliminates any conflict between the various regulatory provisions, we find this construction controlling. State Treasurer, 215 Mich App 352.
Additionally, such a construction is consistent with an informational publication the Michigan Department of Public Health distributes to the general public. This publication, which was supplied to the trial court, indicates that because aids is not transmitted through casual contact, food, or water, a food service employee diagnosed with aids who is employed in a restaurant should be allowed to continue working as long as the employee is well enough to work and unless the work environment poses a risk of potential direct blood-to-blood contact with other individuals. To the extent that this informational publication reflects the Department of Public Health’s interpretation of its own regulations, the interpretation is entitled to considerable weight and ought not be overruled absent cogent reasons. Southfield, Police Officers Ass’n v Southfield, 433 Mich 168, 177; 445 NW2d 98 (1989).
We conclude, therefore, that the Code authorizes a health department, a food service employer, or both to take discriminatory action against an employee of a food service establishment only if that employee is suspected of having, or is confirmed to have, a communicable disease in a form that may be transmitted through contact with food. In other words, the Code requires discriminatory treatment only where a food service employee is suspected of being, or confirmed to be, infected with a communicable disease that is transmissible through a job-related activity. In this regard, the Code parallels the HCRA because the HCRA prohibits an employer from discriminating against an employee only on the basis of a handicap that is unrelated to the employee’s ability to perform the duties of a particular job. Sanchez, 440 Mich 502. To the extent that a food service employee has a communicable disease that is transmissible through contact with food or food-contact surfaces, that medical condition would be related to the specific requirements of any food service job that would place that employee in contact with food or food-contact surfaces. Therefore, any discriminatory action authorized under the Code that would be taken against an employee under such circumstances would fall outside the prohibitions of the HCRA.
Having concluded that the Code does not absolutely require the exclusion of a food service employee infected with a communicable disease from a food service establishment and that the Code authorizes discriminatory action only against a food service employee suspected of having, or confirmed to have, a communicable disease in a form that may be transmitted through food, the question then becomes whether AIDS is a communicable disease that is transmissible through contact with food.
While HIV infection and AIDS are both communicable diseases for purposes of the Code, MCL 333.5101(l)(b); MSA 14.15(6101)(l)(b), as amended by 1988 PA 491, neither is transmissible through contact with food. The documentary evidence the parties supplied to the trial court uniformly indicates that mv infection and aids are not transmissible through routine or community contact, food-sharing, food preparation, food handling, or food or beverage service, but are transmitted from person to person through sexual contact, sharing mv-contaminated intravenous needles and syringes, and transfusion of infected blood or its components. In fact, the publications of the Centers for Disease Control, the Michigan Public Health Department, and the National Restaurant Association relied upon by the parties indicate that restricting the type of job duties a food service employee with aids may perform is unnecessary, given the limited modes of transmission of mv, absent evidence of other infections or illnesses for which any food service worker should also be restricted.
Accordingly, we conclude that a suspicion of aids or a confirmed diagnosis of aids is insufficient, in and of itself, to authorize a food service employer to take discriminatory action under the Code against the employee suspected of having or confirmed to have AIDS. Under such circumstances, we conclude that a severely compromised immune system associated with AIDS, in and of itself, is unrelated to an individual’s ability to satisfactorily perform the duties of a waitress in a food service establishment within the meaning of the hcra.
By this conclusion, we do not mean to exclude the possibility that under some circumstances a severely compromised immune system could constitute a characteristic related to an individual’s ability to perform the duties of, or to qualify for employment as, a waitress. A diagnosis of AIDS is not a diagnosis of a single medical condition or illness. An AIDS diagnosis can be made where there is serological or cultural evidence of mv infection and the presence of any of a number of specific opportunistic diseases. Gordy-Gray, 2 Attorney’s Textbook of Medicine, ¶ 46.31, p 46-28. In the absence of serological evidence of mv infection, a diagnosis of AIDS can be made when an opportunistic infection indicative of defective cellular immunity or Kaposi’s sarcoma occurs in a person with no immunocompromising disease and who is receiving no immunocompromising therapy. 2 Attorney’s Textbook of Medicine, pp 46-27 — 46-28. As the publications of the Center for Disease Control, the Michigan Public Health Department, and the National Restaurant Association relied upon by the parties indicate, there is the potential for a person with a severely compromised immune system to harbor either an opportunistic infection in a communicable form that can be transmitted by contact with food or organisms that cause such a disease. To the extent that a food service employee with AIDS harbored such an opportunistic infection, or was suspected of harboring such an infection, a food service employer would be authorized to exclude the employee from a food service establishment under § 3-101 and Rule 325.25909(3). Where the food service employer would be authorized to take discriminatory action under the Code, the severely compromised immune system would constitute a characteristic related to an individual’s qualification for employment and remove the characteristic from both the definition of handicap under the hcra and the protection of the HCRA.
For the foregoing reasons, we hold that, with regard to a food service employee, a severely compromised immune system associated with aids is a determinable physical characteristic of an individual that may result from disease and that is unrelated to an individual’s ability to perform the duties of a waitress or to an individual’s qualification for such employment as long as this characteristic is not accompanied by an opportunistic infection in a communicable form that can be transmitted through contact with food. In other words, a food service employee with aids has a handicap within the meaning of the HCRA.
B
Having determined that a food service employee with aids can be handicapped within the meaning of the hcra, we now focus on defendant’s claim that he, and not plaintiff, was entitled to summary disposition because plaintiff did not, and cannot, establish, as a matter of law, that defendant’s action of suspending her constituted an unlawful discriminatory act under the hcra. Applying the above principles to the present case, we are persuaded that the trial court correctly denied defendant’s motion for summary disposition.
According to defendant’s affidavit offered in support of his motion for summary disposition, defendant’s action against plaintiff was motivated by his belief that plaintiff had aids. This belief, by itself, was insufficient to deny plaintiff the protection afforded under the HCRA. Instead, for defendant’s actions to have been sanctioned by the Code and to have been outside the reach of the HCRA, defendant would have had to suspect or know that plaintiff had aids and harbored an associated opportunistic infection in a communicable form that was transmissible through contact with food. The instant record lacks any documentary evidence from which the trial court could conclude that defendant suspected that plaintiff was infected with an AIDS-related opportunistic infection that was transmissible through contact with food or that plaintiff exhibited any signs or symptoms of illness that might generate a suspicion that plaintiff harbored such an infection.
Having failed to present any such documentary evidence, defendant failed to establish that he was required under either § 3-101 or Rule 325.25909(3) to suspend plaintiff pending her presentation of proof of her health status. Consequently, he failed to established that his actions against plaintiff were motivated by a belief that plaintiff had a physical characteristic that was related to her abilities to perform her duties as a waitress.
On the record before us, we conclude that defendant’s suspension of plaintiff violated the HCRA because the suspension constituted an unlawful discriminatory act taken in response to a handicap that was unrelated to plaintiff’s’ abilities to perform her duties as a waitress. Accordingly, we reject defendant’s claim that plaintiff did not establish, as a matter of law, a prima facie case of discrimination under the hcra and his corresponding claim that he was entitled to summary disposition with regard to plaintiff’s HCRA claim.
ii
Defendant next argues that the trial court erroneously combined summary disposition and trial procedures when addressing the merits of the parties’ summary disposition motions. We agree, but find the error harmless.
At the conclusion of the parties’ arguments regarding the merits of defendant’s motion for summary disposition brought pursuant to MCR 2.116(C)(10), the trial court determined that several genuine issues of material fact existed and that the existence of these factual issues provided sufficient grounds to deny defendant’s motion. Nevertheless, the court took the motion under advisement and ordered an evidentiary hearing be held to supply the court with the evidence needed to resolve the factual issues. This latter action constitutes error. Whitcraft v Wolfe, 148 Mich App 40, 49; 384 NW2d 400 (1985).
Nevertheless, we find the error to have been harmless where the construction of the Code and the hcra presented the trial court with questions of law, where the parties presented sufficient documentary evidence to allow the court to determine whether a food service employee with aids possessed a handicap within the meaning of the hcra, and where the record fails to establish that the court resolved a question of material fact.
m
Defendant also argues that the hcra is void for vagueness. We disagree.
It is a basic principle of due process that a legislative enactment is void for vagueness if the enactment does not provide fair notice of the conduct proscribed. Michigan State AFL-CIO v Civil Service Comm (After Remand), 208 Mich App 479, 492; 528 NW2d 811 (1995). To give fair notice of proscribed conduct, a statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited. People v Hicks, 149 Mich App 737, 741; 386 NW2d 657 (1986). The statute cannot use terms that require persons of common intelligence to guess at the statute’s meaning and differ regarding its application. Allison v Southfield, 172 Mich App 592, 596; 432 NW2d 369 (1988).
To the extent that defendant argues that the HCRA is unconstitutionally vague because it conflicts with the mandates of the Code, we reject defendant’s argument. As we have already observed, the Code and the hcra do not conflict and may be applied together in an harmonious manner.
We also reject defendant’s argument that the HCRA is unconstitutionally vague because it provides no notice that persons with perceived handicaps are pro tected under the hcra. This argument is premised on an unreasonable interpretation of the hcra.
As our Supreme Court observed, the language of § 202(l)(b) expressly prohibits an employer from acting against an employee on the basis of a handicap within the statutory definition and, as such, the focus of the HCRA is on the employer’s conduct and belief or intent, and not on the employee’s condition. Sanchez, 440 Mich 502. To shift the focus of the hcra to the employee’s condition, as defendant does, not only would contradict the language employed in the hcra, but also would result in an unreasonable and illogical application of the HCRA, as cogently explained by Judge Reilly in her concurrence in Bay City Fire Dep’t v Dep’t of Civil Rights ex rel Roznowski, 182 Mich App 145, 151-152; 451 NW2d 533 (1989):
In accordance with [the hcra’s] remedial purpose, it would be incongruous to prohibit discriminatory conduct in one case, where the victim has an actual physical disability or mental deficiency which is unrelated to job performance, but allow the same type of conduct in another situation, where the victim does not have an actual disability or deficiency but where the employer mistakenly believes otherwise. For example, under the HCRA as interpreted by petitioner and the trial court, an employer would be prohibited from discriminating against a job applicant who is overweight, when weight is unrelated to job performance, but permitted to discriminate against another applicant for the same job who is not overweight, but is perceived to be by the employer. Such an interpretation is unreasonable because the applicant who was perceived to be overweight is equally as aggrieved by the discriminatory treatment as the person who was, in fact, overweight. Further, the result is illogical because the employer’s conduct is equally objectionable in either case.
See also Sanchez, 440 Mich 502, n 16.
We conclude that the hcra gives a person of ordinary intelligence a reasonable opportunity to know that discriminatory actions taken against an employee based on an employer’s belief that the employee has a handicap unrelated to job performance are prohibited under the hcra. Accordingly, the hcra is not void for vagueness on the basis of inadequate notice.
IV
Lastly, defendant argues that the trial court abused its discretion in awarding plaintiff attorney fees. We disagree.
The decision whether to award attorney fees under the hcra is within the trial court’s discretion, Yuhase v Macomb Co, 176 Mich App 9, 15; 439 NW2d 267 (1989), and will be reviewed on appeal for an abuse of discretion, Century Dodge, Inc v Chrysler Corp, 154 Mich App 537, 544-545; 398 NW2d 1 (1986).
Defendant argues that the trial court abused its discretion in awarding plaintiff attorney fees because the award violated the condition imposed by the court for the grant of summary disposition in favor of plaintiff, which was plaintiff’s acceptance of the same damage award that appeared in the February 22, 1989, order of dismissal. This argument is unsupported by the record. The record reflects that the order entered by the court on September 3, 1993, contained the same $491.25 damage award that appeared in the February 22, 1989, order. The record also reflects that plaintiff sought her award of attorney fees as an element of costs, and not as an element of damages. The trial court awarded the fees as an element of costs. Such an award was both within the court’s authority, Yuhase, supra at 13-15, and consistent with the condi tion imposed by the court for the grant of summary disposition.
Defendant also argues that the trial court abused it discretion in awarding attorney fees because the affidavits submitted by plaintiffs counsel in support of their bill of costs failed to comply with MCR 2.625(G)(2). We disagree. Plaintiff need not have complied with MCR 2.625(G) to recover attorney fees because the fees were awarded pursuant to the hcra. 3 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), 1995 pocket part, p 138; cf. Young v Barker, 158 Mich App 709, 726-727; 405 NW2d 395 (1987) (a trial court did not erroneously award attorney fees in a 42 USC 1988 civil rights action on an oral motion for those fees even though the party seeking the fees failed to submit a formal bill of costs as required by GCR 1963, 526.11, the predecessor of MCR 2.625[G]).
Defendant next argues that plaintiff waived her ability to seek fees for work performed after the February 22, 1989, order of dismissal was entered because plaintiff failed to file a bill of costs in a timely manner under MCR 7.219(B) and MCR 7.318. These court rules govern the taxation of costs incurred in the appellate courts. Accordingly, to the extent that defendant argues that plaintiff waived her ability to recover fees incurred as a result of the proceedings on remand to the circuit court, defendant has abandoned his claim by failing to cite supportive authority. Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
Defendant is mistaken to the extent he argues that plaintiffs failure to file a bill of costs pursuant to either MCR 7.219(B) or MCR 7.318 resulted in her waiver of the ability to receive attorney fees incurred as a result of appellate proceedings. These court rules govern the award of costs that may be taxed only by the appellate courts, Bloemsma v Auto Club Ins Ass’n (After Remand), 190 Mich App 686, 692-693; 476 NW2d 487 (1991); 7 Martin, Dean & Webster, Michigan Court Rules Practice (2d ed), pp 347, 430, and, therefore, any failure to file a bill of costs would result in a waiver of those costs that are within the jurisdiction of the appellate court to award. Bloemsma, supra at 693; MCR 7.219(B); MCR 7.318(A). Such a failure would not result in a waiver of any costs within the jurisdiction of the trial court to tax, which would include an award of attorney fees incurred as a result of appellate proceedings. Bloemsma, supra at 690-691.
Defendant is also mistaken in his belief that attorney Mark Brewer failed to file an appearance in this action and, therefore, that plaintiff is not entitled to an award of fees that includes fees payable to Brewer. The record reflects that plaintiff filed numerous documents with the trial court that identified Brewer as one of her attorneys. These filings constituted an appearance by act as provided in MCR 2.117(B).
Defendant has abandoned his remaining challenges to the award of attorney fees by failing to cite supportive authority. Mitcham, supra.
Affirmed.
Center for Health. Promotion, Michigan Department of Public Health, AIDS: 100 common questions & answers (January 1987).
Benenson, Control of Communicable Diseases in Man, “Acquired immunodeficiency Syndrome,” (15th ed, 1990), ¶ 5, pp 3-4; Centers for Disease Control, Morbidity and Mortality Weekly Report, Vol 34, No 45, Summary: Recommendations for Preventing Transmission of Infection with Human T-Lymphotropic Virus Type III/LymphadenpathyAssociated Vims in the Workplace (November 15, 1985), pp 681-683, 693-694; United States Public Health Service, United States Department of Health and Human Services, Surgeon General’s Report on Acquired Immune Deficiency Syndrome (1986), pp 5, 12-13, 16, 19, 24-25; Center for Health Promotion, Michigan Department of Public Health, AIDS: 100 common questions & answers (January 1987), pp 2-4, 5, 6, 7, 17; National Restaurant Association, Current Issues Report, “The Facts About AIDS” (1985), pp 1, 2, 6, 8.
These opportunistic diseases include disseminated histoplasmosis, isosporiasis causing diarrhea of more than one month, bronchial or pulmonary candidiasis, non-Hodgkin’s lymphoma of high-grade pathological type and of B-cell or unknown phenotype, and Kaposi’s sarcoma.
These opportunisitic infections may be parasitic, fungal, bacterial, or viral and include pneumocystis carinii pneumonia, crytosporidiosis, round worm infestation, toxoplasmosis, Candida esophagitis, cryptococeal infection, Atypical mycobacteriosis, cytomegalovirus, herpes simplex virus, and progressive multifocal leukoencephalopathy. Gordy-Gray, 2 Attorney’s Textbook of Medicine, ¶ 46.31, pp 46-27 — 46-28. | [
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White, J.
Plaintiff Tiger Stadium Fan Club, Inc., appeals from the circuit court’s order denying its motion for summary disposition, granting motions for summary disposition by defendants Governor John Engler and the Michigan Strategic Fund and intervening defendant the City of Detroit Downtown Development Authority (dda), and dismissing the complaint with prejudice. We affirm.
The questions presented are (1) whether funds generated under a consent judgment entered into by Governor Engler and several Native American tribes in settlement of an action brought under the Indian Gaming Regulatory Act (igra), 25 USC 2701 el seq., and deposited into the Michigan Strategic Fund (msf) pursuant to the terms of the settlement agreement, are, under the Appropriations Clause, Const 1963, art 9, § 17, and the Separation of Powers Clause, Const 1963, art 3, § 2, subject to the Legislature’s power of appropriation, and (2) whether the msf has the authority to distribute those funds in the form of a grant to the dda for use in the construction of a stadium for the Detroit Tigers baseball team.
We conclude that the revenues involved are not subject to the Appropriations Clause, that the Governor did not violate the Separation of Powers Clause, and that the MSF had the authority to make the grant to the dda for the designated purposes.
i
The MSF is a public corporation established by the Michigan Strategic Fund Act, 1984 PA 270, as amended, MCL 125.2001 et seq.; MSA 3.541(201) el seq.
The igra is a federal statute that regulates the circumstances and procedures under which gaming is conducted on tribal lands. The igra allows certain gaming activities to occur only pursuant to a compact negotiated between the tribes and the state in which the tribal lands are located. When requested to do so by a tribe, a state must negotiate in good faith to enter into a compact. The IGRA provides that if a state fails to negotiate or fails to negotiate in good faith, a tribe seeking a compact may bring suit in federal court to enforce the state’s obligation to negotiate.
In 1990, several tribes filed suit under the IGRA against the State of Michigan in the United States District Court for the Western District of Michigan. In 1992, the federal court dismissed the action on the ground that the igra’s grant of federal jurisdiction violated the state’s sovereign immunity under the Eleventh Amendment. US Const, Am XI. Sault Ste Marie Tribe of Chippewa Indians v Michigan, 800 F Supp 1484 (WD Mich, 1992). The tribes then filed a first amended complaint naming Governor Engler as the sole defendant. The suit sought an order compelling Governor Engler to conclude a compact.
Before trial, the parties stipulated to the entry of a consent judgment. The consent judgment provided that the tribes would make semiannual payments of eight percent of certain gaming revenues to the MSF as long as a compact remained in effect, and as long as the tribes hold the exclusive right to conduct specified gaming activities in the state. In addition, the judgment provided that the tribes would make payments of two percent of certain gaming revenues to local units of government in the immediate vicinity of each tribal casino. The consent judgment was to become effective upon execution of compacts between the tribes and the Governor and approval of the compacts by resolution of the Legislature. The federal court entered the consent judgment on August 20, 1993, and on the same day Governor Engler entered into compacts with the various tribes.
In September 1993, the Legislature approved the compacts by resolution. The resolution did not specifically mention the consent judgment or the payments to the msf. The legislative history, however, makes clear that the Legislature was aware of the terms of the agreement, including that it provided for regular payments directly to the msf. See n 5, post at 455.
In March 1994, the tribes began making payments to the msf. The funds were deposited by the msf into an account designated as the Indian Casino Account. As of September 21, 1995, the msf had received $25,737,614.26 from the tribes, and those funds had generated $360,936.92 in interest.
On September 20, 1995, the Board of Directors of the msf adopted a resolution creating the Center for Community Redevelopment (ccr), pursuant to MCL 125.2007(q); MSA 3.541(207)(q), to “make grants to municipalities to assist in the financing of public infrastructure including land acquisition and site development for utility extensions, highway and road improvements, and other public improvements which are related to a specific identifiable project.” Resolution 1995-154, ¶ 3, p 2. The creation of the OCR enabled the msf to consider the dda’s grant request. The msf then adopted a resolution agreeing to grant assistance to the dda in an amount not to exceed $55 million.
On September 21, 1995, the MSF segregated $55,668,262.15, in the form of cash and securities, for the benefit of the dda, including $26,098,551.18 taken from the Indian Casino Account. On September 28, 1995, the MSF and the dda executed a grant agreement providing funds to assist with costs associated with infrastructure, land development, and site development necessary to the construction of a new stadium for the Detroit Tigers. The MSF funds are part of a financing package totaling $230 million. The remaining funds are to come from the dda itself and from the Detroit Tigers.
On November 2, 1995, State Senator George Z. Hart and the Tiger Stadium Fan Club filed this action seeking declaratory and injunctive relief, asserting that the gaming revenues are state funds within the meaning of the Appropriations Clause of the state constitution and as such cannot be directed to or spent by the msf without an appropriation by the Legislature, and that efforts to spend the funds without a legislative appropriation violated the Separation of Powers Clause of the state constitution. Plaintiffs also asserted that the msf lacked the statutory authority to make a grant to the dda. The dda intervened as a defendant.
All parties filed motions for summary disposition. Plaintiffs argued that because the gaming revenues arise from the actions and operations of the government and are payments made in exchange for government concessions, they constitute state funds under Pokorny v Wayne Co, 322 Mich 10, 15; 33 NW2d 641 (1948), and cannot be spent except pursuant to a legislative appropriation; that the gaming revenues do not qualify as custodial funds, i.e., funds received by a third party and held for an already-determined spending purpose, because they were obtained by Governor Engler during the exercise of his official duties and the Governor determined their use; and that the Governor’s attempt to raise and spend revenue absent a legislative appropriation violates the Separation of Powers Clause. Plaintiffs further asserted that the msf had no statutory authority to make a grant to the dda because the ccr was not a center created by the msf Act.
Defendants argued that plaintiffs’ claims are barred by laches; that the Governor acted within his authority; that the consent judgment obligated the state to nothing, and the gaming revenues obtained pursuant to that judgment do not constitute state funds; that the consent judgment obligated the tribes to pay the revenues directly to the msf, which is entitled to receive funds by gifts, grants, and loans, MCL 125.2007(b); MSA 3.541(207)(b), and the receipt of the gaming revenues by the msf does not transform those revenues into state funds, Advisory Opinion re Constitutionality of PA 1966, No 346, 380 Mich 554; 158 NW2d 416 (1968); and that the Legislature ratified the Governor’s actions. Further, defendants asserted that the msf has the statutory authority to create centers and make grants.
The trial court denied plaintiffs’ motion and granted defendants’ motions, concluding that the funds received by the MSF pursuant to the consent judgment are not state funds because the gaming revenues never came under the control of the Legislature and did not take on the character of state funds simply because they were paid to the msf. The court noted that pursuant to Advisory Opinion, supra, funds that pass into the hands of a quasi corporation do not automatically become state funds subject to control by the Legislature, and concluded that to hold otherwise would undermine, if not destroy, the ability of the msf to manage its affairs. The court rejected the argument that Governor Engler’s exercise of his authority in settling the federal litigation transformed the gaming revenues into state funds, concluding that the litigation grew out of the IGRA, which allows the state only a limited role, and that in settling the lawsuit, Governor Engler made no concessions on behalf of the state, although the tribes agreed to pay a percentage of gaming revenues to the msf. Finally, the court found that the MSF Act contains a broad grant of authority that allowed the MSF board of directors to take the steps necessary to make a grant to the DDA.
The Fan Club now appeals from the circuit court’s order denying its motion for summary disposition, granting defendants’ and intervening defendant’s motions, and dismissing the complaint with prejudice.
n
The Appropriations Clause, Const 1963, art 9, § 17, provides:
No money shall be paid out of the state treasury except in pursuance of appropriations made by law.
The Separation of Powers Clause, Const 1963, art 3, § 2, provides:
The powers of government are divided into three branches; legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.
All agree that notwithstanding the language of art 9, § 17, it is of no consequence that the funds were never placed in the state treasury or that they were remitted directly to a public corporation. The location of the funds is irrelevant; the question is whether the character of the funds and the manner in which they were obtained makes them state funds subject to the Appropriations Clause.
The Fan Club argues that the revenues at issue are state funds because they arise out of litigation against the state to enforce the state’s obligation to negotiate, notwithstanding that in the action that was settled Governor Engler was the nominal defendant, and not the state. The Fan Club asserts that the IGRA, does not mandate the payment of revenues under a compact and the state made concessions to the tribes to obtain the revenues because, while a compact would have been imposed had the parties been unable to reach an agreement, the Governor chose to terminate the suit by agreeing to a settlement even though he could have engaged in the mediation process or pursued the position that the igra enforcement scheme is unconstitutional as a violation of Michigan’s sovereign immunity under the Eleventh Amendment. (See n 1 ante at 442-443.) The Fan Club further asserts that while custodial funds held in trust may be spent without an appropriation, Pokorny, supra at 14-15, the gaming revenues are not custodial funds because the revenues, which resulted from state negotiations, had no required use, and the Governor, without input from others, determined the amount of the revenues and the use to which they would be put. Cf. Colorado General Assembly v Lamm, 700 P2d 508 (Colo, 1985). The Fan Club argues that the payment of the revenues to the msf, a corporation, does not mean that the revenues are not state funds, because the authority of a corporation to spend money does not change the character of the funds received, and any reliance on Advisory Opinion, supra, is misplaced because that case stands for the proposition that funds generated by the quasi corporation itself are not state funds, while here the gaming revenues were not generated by the MSF. Finally, the Fan Club asserts that the constitution requires that the decision how gaming revenues are spent be made by the people of this state through the Legislature.
The Fan Club’s contention that the gaming revenues are subject to appropriation is based on further assertions that the funds were generated by governmental operations and were obtained in exchange for concessions by the state. In Pokorny, supra, the Supreme Court addressed the question whether unclaimed alimony payments deposited with the Wayne County Friend of the Court were public funds, and defined such funds as “those funds which are raised by a governmental unit or agency for the conduct of government and for governmental purposes.” 322 Mich 15. The Fan Club relies on this definition. We conclude, however, that this reliance is misplaced.
In the instant case, the revenues are generated by the tribes. The revenues are not paid as a tax or a fee, or pursuant to a legislative act. While the revenues are paid to a public corporation as a result of the Governor’s negotiation of a settlement of the federal litigation, the mere act of settling a lawsuit involving the state’s obligation to negotiate does not automatically render the revenues subject to appropriation; the character of the revenues must still be considered. While a lawsuit was involved, the state did not concede or give away anything in the settlement of the suit. The revenues at issue do not result from the sale, relinquishment, waste, or damage of state assets. They are not paid as rents or royalties collected for the extraction of nonrenewable resources from state-owned lands. MCL 324.1902; MSA 13A.1902; Const 1963, art 9, § 35. The revenues are not designated as a gift or grant to the state. MCL 21.161; MSA 3.671. The revenues are not received as payment of debts or as penalties. MCL 14.33; MSA 3.186.
The gaming revenues were not generated in settlement of obligations of, or to, the state. Had the federal litigation continued, the conclusion of compacts would have been the inevitable result. While the settlement did permit the tribes to begin certain gaming operations sooner, and without having to proceed through mediation, this is not the equivalent of state concessions. With the exception of forgoing the constitutional challenge to the IGRA, the state conceded nothing by settling the litigation. While compacts would have been the inevitable result of continued litigation, the resulting compacts would not have contained provisions requiring the tribes to pay a portion of certain gaming revenues to the msf. The IGRA does not mandate that tribes pay a percentage of gaming revenues to the state, and, indeed, expressly forbids a state from exacting fees in excess of those necessary to offset regulatory expenses or imposing taxes beyond those generally imposed for comparable activities. 25 USC 2710(d)(3)(C)(iii), (iv), (4). Here the compacts provide for the payment of fees permitted under the igra and that those fees be paid to the state. The additional amounts paid to the msf are funds that the state would have had no right to demand. In fact, it appears that the Governor identified an opportunity to secure revenues to which the state was not entitled, except by virtue of the negotiated settlement, when he entered into an agreement that provided for the gratuitous payment of eight percent of certain gaming revenues to the msf as long as the tribes’ right to conduct these activities remains exclusive. That portion of the consent judgment stating that the tribes are obligated to make payments to the msf only as long as the compacts remain in effect and only as long as the tribes retain the exclusive right to conduct certain gaming activities is not a concession. The state gave nothing in exchange for the payments. The tribes’ ability to conduct the gaming activities is a matter of right, not grace. If the gaming activities are made legal under other circumstances, the tribes will still retain the right to conduct these activities.
We thus conclude that the revenues involved are public funds not subject to appropriation. The Governor’s negotiation of the settlement agreement providing for payments to the msf is akin to his procuring a grant of federal or corporate funds for a specific purpose. In such circumstances, the Governor, acting as a representative of the state, convinces the grant-making authority that it is in its best interest to donate funds to the state for a particular purpose. That the Governor might have sought the funds for a different or broader purpose is of no moment. The terms of the grant or gift control. In this regard, MCL 21.161; MSA 3.671 concerning grants, gifts, and other donations to the state, is inapplicable. The payments here are gratuitous payments specifically designated for the MSF, not for the state. The MSF is expressly authorized by statute to accept gifts, grants, loans, and other aids. The state gave up nothing; the tribes perceived that it was in their interest to make, in effect, a continuing grant of eight percent of certain revenues as long as the advantageous status quo— exclusive rights to conduct certain gaming activities — is maintained. The negotiated settlement agreement provides for the payment of those revenues to a fund that is authorized to disburse funds to promote economic development throughout the state, including in areas that might themselves be interested in seeing certain local gaming activity, perhaps persuading the citizens and leaders of those areas that there are benefits to be gained from leaving the exclusive right to conduct this gaming activity with the tribes. In short, the payments were not procured by the Governor in exchange for concessions. Rather, they are the tribes’ contribution to the msf to create an incentive to preserve the status quo. The Legislature and the Governor, however, are in no way obligated to preserve the status quo.
We thus conclude that the revenues involved are public funds not subject to appropriation in that they are gratuitous payments negotiated by the Governor and designated for a specific purpose and that the payment of those revenues to, and their disbursement from, the MSF without an act of the Legislature does not violate the Appropriations Clause.
We further conclude that the Governor did not violate the Separation of Powers Clause in negotiating and effectuating the settlement. The Fan Club does not assert that the Governor did not have the authority to settle the federal litigation. Rather, it asserts, essentially, that the Governor lacked authority to agree that the revenues would be paid directly to the MSF, or, alternatively, that the MSF has no authority to disburse the revenues without a legislative appropriation, because to conclude otherwise violates the Separation of Powers Clause by permitting the Governor to usurp the Legislature’s exclusive power to raise revenues and determine expenditures. We conclude, however, that because the revenues are not subject to the Appropriations Clause and are gratuitous payments for a designated purpose, no appropriation was necessary and the Governor did not usuip the Legislature’s power in entering into an agreement providing for the payment of the revenues directly to the MSF and that the Separation of Powers Clause does not require legislative action before the revenues may be spent by the MSF. It has long been Michigan law that courts should not interfere with the actions of the Governor when he acts pursuant to constitutional or statutory authority. See Sutherland v Governor, 29 Mich 320, 328 (1874). We also observe that the legislative history clearly indicates that the Legislature was aware that the consent judgment provided that the gaming revenues were to be paid directly to the MSF.I *** Thus, the Governor constitutionally caused the equivalent of a grant to be made, with the approval of the Legislature, to a state corporation authorized by the Legislature to receive and accept grants, gifts, and other aids.
in
The Fan Club next argues that the MSF lacked the statutory authority to make a grant to the dda. On September 20, 1995, the Board of Directors of the MSF adopted a resolution creating the Center for Community Redevelopment pursuant to MCL 125.2007(q); MSA 3.541(207)(q), which grants the MSF the power to “create and operate centers, accounts, and funds as required or permitted by law for the use and disbursement of assets of the fund.” The Fan Club contends that the six centers “required” by law are those created in chapters 3 through 8 of the MSF Act, that § 7(q) does not authorize the creation of new centers, and that because the msf had no power to create a center whose purpose is to make grants to municipalities, the msf had no authority to make a grant of any size to the dda.
We disagree. The Legislature conferred broad authority on the MSF. MCL 125.2007; MSA 3.541(207) provides:
The fund shall have the powers necessary or convenient to carry out and effectuate the purposes, objectives, and provisions of this act, the purposes and objectives of the fund, . . . including but not limited to the power to:
* * *
(q) To create and operate centers, accounts, and funds as required or permitted by law for the use and disbursement of assets of the fund.
We reject the argument that the centers contemplated by §7(q) are only those established in chapters 3 through 8, and that no others may be created. Section 7(q) specifically grants the msf the power to both create and operate centers, and employs the phrase “required or permitted by law.” Further, chapters 3 through 8 repeatedly state that the msf shall “establish and operate” the enumerated centers, while § 7(q) employs the phrase “create and operate.” When construing a statute, a court should presume that every word in the statute has some meaning. A construction that renders some part of the statute surplusage or nugatory should be avoided. To the extent possible, effect should be given to every word in the statute. Indenbaum v Michigan Bd of Medicine (After Remand), 213 Mich App 263, 272; 539 NW2d 574 (1995). Here, a construction that accepts the argument that no other centers can be created renders the language in § 7(q) referring to the creation of centers nugatory. We reject this argument and conclude that the creation of the ccr was a valid exercise of statutory power by the MSP. The creation of the CCR was “permitted by law” because the purposes of the ccr are within the purposes and objectives of the act. MCL 125.2007; MSA 3.541(207).
rv
Defendants maintained below and continue to maintain that this action is barred by the doctrine of laches. Our decision to affirm on the merits makes it unnecessary to reach this issue.
Affirmed.
25 USC 2710(d)(3)(A) provides that an Indian tribe having jurisdiction over lands where class in gaming activities are to be conducted shall request the state in which such lands are located to enter into negotiations for the purpose of entering into a compact governing the conduct of the gaming activities. Upon receiving the request, the state is obligated to negotiate with the tribe in good faith. Subsection d(7) provides that a tribe may initiate an action in the United States district court when a state fails to enter into negotiations, or fails to negotiate in good faith. The statute provides that if the court concludes that the state did not negotiate in good faith, the court shall order that a compact be concluded within sixty days. If such a compact is not concluded, the parties must submit proposals to a court-appointed mediator. The mediator must choose a compact from the last best offers submitted. If the state fails to consent to the proposed compact, the Secretary of the Interior is notified and the Secretary then prescribes procedures under which class in gaming may be conducted. However, in Seminole Tribe of Florida v Florida, 517 US _; 116 S Ct 1114; 134 L Ed 2d 252 (1996), the provision of the statute authorizing a tribe to bring an unconsented-to action in federal court against a state to compel the state to negotiate in good faith was held to abrogate the states’ sovereign immunity in violation of the Eleventh Amendment.
In Seminole Tribe, supra, the Supreme Court held that Congress could not constitutionally grant the federal courts jurisdiction over a state that does not consent to be sued. Should a state determine not to assert its sovereign immunity, the case may proceed. Footnote 18 of the opinion states, “We do not here consider, and express no opinion upon, that portion of the decision below that provides a substitute remedy for a tribe bringing suit.” The Eleventh Circuit Court of Appeals, 11 F3d 1016 (1994), held that if a state fails to negotiate in good faith and will not consent to suit, the tribe may notify the Secretary of the Interior of the failure to negotiate a compact, pursuant to 25 USC 2710(d)(7)(B)(vii), and the Secretary may prescribe procedures for the conduct of gaming activities. Thus, it may be that the consent to be sued is effectively no concession at all. Further, the IGRA does not require that a suit be filed in order for a tribe and a state to initiate negotiations.
Section 4 of the compacts is entitled Regulation of Class HI Gaming. Subsection K of § 4 provides for the administration and enforcement of the regulatory requirements. Item 5 of subsection K provides:
The Tribe shall reimburse the State for the actual costs the State incurs in carrying out any functions authorized by the terms of this Compact, in an amount not to exceed twenty-five thousand dollars ($25,000.00) per annum. . . . Within sixty (60) days after each fiscal year in which this Compact is in effect, the State shall submit to the Tribe an accounting of actual costs incurred in carrying out any functions authorized by the terms of this Compact. Any amount of said twenty-five thousand ($25,000.00) not expended by the State on said actual costs shall be returned to the Tribe by the State within sixty (60) days after the fiscal year or treated as a prepayment of the Tribe’s obligation during the subsequent fiscal year.
This factor distinguishes the instant circumstances from those involved in OAG 1943-1944, No 24129, p 22 (July 20,1942). There the question was whether an intended bequest to the Ypsilanti State Hospital should be made to the state or directly to the State Hospital Commission. The Attorney General concluded that because the statutes relating to the State Hospital Commission did not provide the commission authority to accept gifts and bequests, and other statutes provided that all commissions of state government shall be wholly financed and maintained by specific appropriations by the Legislature, 1929 CL 220, and that any bequest to the state shall be received by the Governor and reported to the Legislature, 1929 CL 341 (now MCL 21.161; MSA 3.671), the bequest should be made to the state, to be used for the designated purpose. In contrast, the msf is authorized to accept grants and gifts directly. Thus, the revenues having been designated for the msf in the settlement agreement, there is no requirement that they be paid or reported to the Legislature.
In OAG 1935-1936, No 22, p 73 (February 26, 1935), the question was whether a bequest to an institution under the jurisdiction of the State Hos pital Commission was to be earmarked for the institution or was revenue that should be received into the state’s general fund. There, the Attorney General concluded that the final language of 1919 PA 98, § 9, the same statute relied on in OAG 1943-1944, No 24129 (1919 CL 220), which states that nothing in the statute (regarding the financing of institutions)'shall be construed “to prevent any institution ... or commission from accepting gifts, grants, bequests or any assistance whatsoever from private sources . . . in the furtherance of [its] purposes” and settled law relating to charitable dispositions required that the money be expended by the institution as it deems advisable for the furtherance of its purposes. The opinion discusses the responsibility of the head of the State Hospital Commission to publicize the institution and attract donations and concludes that the law, including 1901 PA 145 § 1 (now MCL 21.161; MSA 3.671), does not circumscribe the capacity to accept gifts or remove the incentive to invite such gifts by directing the money to the state’s general fund.
In House Concurrent Resolution No 439, the House of Representatives concurred in the Tribal-State Gaming Compacts and resolved that copies of the resolution be transmitted to the Governor, the representatives of the tribes, and the Secretary of the Interior.
When considered by the Senate, the resolution engendered considerable discussion. It was first asserted by Senator John Kelly that “the Michigan Constitution provides that all legislative powers are vested in the Senate and the House and there is no authorization to the Governor by statute or constitutional provision to negotiate this compact.” 1993 Journal of the Senate 2473. Senator Kelly questioned whether the compacts would have the force of law, and if so, whether the general procedures for enacting a law should not apply. He also asserted that the Governor had not been authorized by the Legislature to engage in compacts and that the procedure being employed to ratify the compacts violates the constitution. Senator Kelly further addressed the Senate:
So, what we have is a piece of paper being delivered to this body from the House that is classified as a ratification document for a compact which violates all of the aforementioned sections of the Constitution .... You are being asked to participate in this process in a way that doesn’t even bring before you the exact wording of the compact. I have made copies available to everyone on the floor. I’ve tried to make copies of the two other documents, the consent judgment and the stipulation for entry of consent judgment, which have provisions which have been submitted to a federal court so that you can understand that all three of these documents must be read together to get a full understanding of what we are being asked to give our approval to. [1993 Journal of the Senate 2474.]
Senator Kelly also proposed an amendment of the resolution that would have made concurrence in the compact conditional on the modification of the negotiated stipulation to provide that the gaming revenues be allocated towards supporting K-12 education. The proposed amendment was defeated 29 to 7.
Senator Kelly continued, further questioning the propriety of the procedure employed, the Governor’s constitutional authority to negotiate the compact, and the wisdom of paying the revenues to the MSF, rather than to support education. Senator Gilbert DiNello then expressed his concerns regarding the funds, stating:
I do not want any money that is generated from this endeavor to be used for the building of a Tiger Stadium or more importantly any infrastructure that goes along with such a building, wherever it is located in the city of Detroit. That’s my concern. I do believe that any endeavor or any development that occurs on behalf of the Tiger Company or the Detroit Tigers should occur on their own behalf. [1993 Journal of the Senate 2478.]
A substitute resolution was withdrawn, and the Senate then approved House Concurrent Resolution No 439 by a vote of 23 to 13.
It is thus clear, first, that the Senate was aware of the terms of the compacts and consent judgment, including the provision for the payment of eight percent of certain gaming revenues directly to the msf, and, second, that the Senate rejected challenges to the Governor’s constitutional authority to negotiate the compacts and adopted the concurrent resolution with the intention of ratifying and approving the compacts and settlement agreement as negotiated by the Governor. We recognize that it is a separate question whether the concurrent resolution would constitute sufficient legislative action if the revenues were determined to be subject to appropriation, one we do not address because our decision that the revenues are not subject to appropriation makes it unnecessary to do so. Putting aside Appropriations Clause considerations, and having in mind that the Legislature ratified and approved the Governor’s actions and the resulting compacts and consent judgment, we reject the argument that the Governor usurped the powers of the Legislature. | [
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] |
Wiest, J.
In widening Grand River highway in Farmington township, Oakland county, the State highway department established the road across lots in a subdivision without acquiring title or coming to an understanding with the owners.
Defendants herein, owners of a lot, were unable amicably to obtain compensation. Plaintiff, a real-estate broker, offered to endeavor to obtain the proper compensation and defendants each agreed he should have one-half of what he obtained, he to pay expenses, including legal services. Plaintiff employed attorneys and, by legal proceedings, obtained payment of the compensation. The State warrant for the payment was made out to defendants and the attorneys. Plaintiff paid the attorneys for their services and they indorsed the warrant and handed it to him, but defendants refused to make the indorsement or pay plaintiff his agreed compensation .on the ground their agreements were contrary to public policy and void under the common-law rule of champerty. Thereupon plaintiff filed the bill herein to have his rights determined. Upon hearing the court adjudged the agreements contrary to public policy and, therefore, void, dismissed the bill, and directed plaintiff to surrender up the warrant. Plaintiff reviews by appeal.
The question in the case is whether the agreements were champertous. Defendants had valid claims. Plaintiff was not an attorney at law; neither did he attempt to act as such but employed attorneys, at his charge, who acted in the names of and in accord with the desires of defendants. The attorneys were to receive for their services one half of plaintiff’s one half of the recovery obtained and have been so paid by plaintiff.
It ill becomes defendants to withhold from plaintiff his agreed and earned compensation and leave him to stand all the expense of procuring their just rights, under invocation of a rule which became inert ages ago.
The writer has spent considerable time among the musty tomes of ancient English legal lore and the gleaning leads to the opinion that to resurrect the ancient rule of champerty and dub it indicative of up-to-date public policy and let it decide this case would wholly remove it from its old-time setting and reason and employ it in working an injustice which modern public policy should abhor and personal integrity spurn. The curb of the ancient rule of champerty and its fellow, “maintenance,” were possibly suited to the then crude state of society and judicial procedure and related to the cupidity of the great and powerful in lending their ( championship and influence in fomenting litigation in order to partake of the fruits thereof, but has long been rendered obsolete by modern judicial procedure and an independent judiciary. We so held in National Adjusting Ass’n v. Dallavo, 253 Mich. 239, and the holding was followed in Chicago Bank of Commerce v. McPherson (C. C. A.), 62 Fed. (2d) 393; Royal Oak Drain District v. Keefe (C. C. A.), 87 Fed. (2d) 786.
The circuit judge thought the holding in Fetters v. Wittmer Oil & Gas Properties, 258 Mich. 310, overruled the holding in the Dallavo Case.
The Fetters Case does not overrule the Dallavo Case. The Fetters Case was a vicious effort by an intermeddler, inducing a lessor to seek release in equity from a contract with which he was wholly content, in order that the instigator might obtain a personal benefit under another contract. The contract, considering its purpose, was held contrary to public policy. The Dallavo Case was an action at law between the parties to a contract and the unanimous opinion therein held the defense of champerty does not exist in Michigan, except as specified as to attorneys, 3 Comp. Laws 1929, § 13600 (Stat. Ann. § 27.94).
The decree in the circuit court is reversed, and a decree will be entered in this court adjudging the contract valid and requiring defendants to pay the agreed compensation or indorse the pay warrant in order that plaintiff may obtain his pay.
Plaintiff will recover costs.
Chandler, C. J., and Boyles, North, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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Starr, J.
This case involves an automobile accident, occurring Sunday afternoon, May 19, 1940, at the intersection of Ionia county highway 583, run ning north, and south, and Ionia-Barry county line road, running east and west. Both roads were of equal importance; neither was a “through highway;” and both were graveled at the intersection. There were no signs on either road indicating the intersection. Visibility was clear; the roads were dry; and the vision of both drivers was unobstructed.
Plaintiff’s decedent, Adelia Bassett, 57 years of age, was riding in a 1929 Ford sedan, owned by her husband, William Bassett, and being driven north on the Ionia county highway 583 by her 19-year-old son (by a former marriage), Clarence Richardson. Defendant Keith Kittenger, about 20 years old, accompanied by two young people, riding in the front seat with him, was driving his 1936 Ford automobile, registered in the name of his father, defendant Harry Kittenger, east on the Ionia-Barry county line road.
Decedent’s driver testified that he was familiar with the road; that he was traveling at a speed of about 25 miles an hour; that, as he approached the intersection, he reduced his speed to about 20 miles and proceeded into the intersection at that speed; that, when he was about 250 feet from the intersection, he saw defendants’ ear approaching from the west and continued to observe such car up to the time of the collision; that, when he was about 50 to 75 feet from the intersection and defendants’ car was about 150 to 200 feet from the intersection, the latter started to slow down; that he had the right of way and, when defendants ’ car slowed down, he believed it was going to stop and give him the right of way. He further testified that at a speed of 25 miles an hour he could stop his car in a distance of 15 to 20 feet.
Defendant driver testified that he was not familiar with the road; that he approached the inter section at a speed of from 35 to 38 miles an hour; that he did not slow down; that he did not see the car in which decedent was riding; that he did not see the intersection; and that he did not look to the right or left.
Neither driver sounded his horn or applied his brakes. The cars collided at about the middle, or a little north, of the intersection, the right front wheel of defendants ’ car striking the left front wheel of decedent’s car. Plaintiff’s decedent sustained a broken neck and other injuries and was unconscious when examined by a physician at the scene of the accident. She was removed to the Hastings hospital, regained consciousness, and asked about members of her family and what had happened. She died within an hour or two after reaching the hospital.
At the conclusion of plaintiff’s proofs defendants moved for directed verdict on the ground that decedent’s driver was guilty of contributory negligence as a matter of law. The court denied such motion, saying:
“There is a question of fact involved which should be submitted to the jury.”
The case was submitted to the jury, which returned a verdict of $2,000 for plaintiff, and judgment was entered on such verdict. Defendants’ motion for a new trial was denied, the court saying:
“It is believed there was a fair question for the • jury on which the minds of reasonable men might differ; that the case was properly submitted, and that therefore the motion for a new trial should be denied.”
Defendants’ “statement of questions involved” raises no question as to defendant driver’s negli gence nor as to the verdict’s being against the great weight of the evidence. Therefore, the question on this appeal is whether or not decedent’s driver was guilty of contributory negligence as a matter of law, which would be imputed to decedent and bar recovery by plaintiff.
On direct examination decedent’s driver testified:
“Q. Did this same relative distance, that is, or speed, continue ? That is to say, did he continue to come at about three times as fast, would you say, as you were ?
“A. "When we got about that close, why, I noticed that he started to slow down a little, and I figured he was going to stop; so—
11Q. Wait just a moment before we get to that point. You said there did come a time when he was down the road there the distance that you just a moment ago testified to, when you made some determinations concerning his speed. How fast did you determine he was driving at that time ?
“A. Well, I figured he was going at least 60 miles an hour.
“Q. All right. You then proceeded on toward the intersection?
“A. Yes, sir.
“Q. You say there came a time when he began to slow down?
“A. Yes, just a little.
“Q.. About how far away would you say he was when he began to slow down?
“A. Possibly 100 or 150 feet. Maybe further.
“Q. About how far away were you then?
“A. Probably 50 feet. * * *
“Q. Did you believe that he was going to stop?
“A. Yes, sir.
“Q. And believing that he was going to stop, did you rely upon his actions in, as you say, slowing down?
“A. Yes, sir.
UQ. Did you then proceed to the intersection?
* t /I S1I*
“Q. Had you arrived practically at the intersection when you observed that he was not going to slow down?
“A. Yes, sir.
“Q. When you arrived at the intersection, was he some little distance beyond, back from it?
“A. Yes.
“Q. Which one of you arrived at the intersection first?
“A. I did.
“Q. Did there come a time then when you saw he was not going to stop1?
“A. Yes, sir.
“Q. Was that when you were practically at the" intersection?
“A. Yes, sir. * * *
“Q. Could you have stopped at that time?
“A. Well, if I would have stopped, I would have been right in the intersection, anyway, in the middle of the intersection. * * *
“Q. Did you keep your eyes upon him all of the time?
“A. Well, I kept watching him and watching the road too.”
On cross-examination decedent’s driver testified:
“Q. Mr. Richardson, did you figure that you had the right of way there and therefore you could go ahead and he would look out for you?
“A. Well, I figured that I was on a county gravel road and he was on the side road arid that I would be to the intersection first if he observed the intersection. That was why I figured I had the right of way. * * *
“Q. Now, you testified, as you have told us here, that you thought he was going to slack up to that second; and that was the second, as I understand this testimony, just before the impact occurred. Is that what you thought?
■ “A. Well, I didn’t hardly know what to think.
* # *
“Q. What did you mean, Mr. Richardson, when you testified as follows: ‘ I thought he was going to slack up to that second?’
“A. Well, I figured that he would probably slow up and let me through. * * *
“Q. Didn’t you know, Mr. Richardson, that you thought if you both continued at the same speed you were that there would be bound to be a collision there in that intersection?
“A. Well, I did know it, yes.
“Q. But you still continued to go on down there?
“A. Well, as I said before that, he slowed down and gave me some indication of slowing down when he was about that far away, about 150 or 200 feet away; so I figured he was going to stop, and I kept right on a-going. * * *
“Q. You thought he was going to slack up and let you through because you were closest to the intersection, is that right?
“A. Yes, sir.
“Q. Did he slack up?
“A. Yes. I said he slacked up before.
“Q. Where?
“A. About 150 or 200 feet away from the center of the intersection.”
This case is controlled by our decision in Stuck v. Tice, 291 Mich. 486, in which the facts were very similar. In that case plaintiff was traveling north on a gravel road, at a speed of about 30 miles an hour, and defendant was traveling east on a dirt road, at a speed of about 50 or 55 miles an hour. Both roads were of equal importance. The day was clear, and the view of both drivers was unobstructed. Our opinion stated, p. 489:
“As it [defendant] approached the intersection, according to several witnesses, the truck appeared to slow down either for the purpose of stopping or of making a . right-hand, turn, and for this reason the driver of plaintiff’s car proceeded across the intersection without relaxing his speed. Defendant, however, after slowing down, picked up speed again and the vehicles collided after plaintiff’s car had crossed the southerly half of the intersection by six or eight feet. It was further shown that from the position of the car at the time of the impact defendant was on the left or north side of the road.”
Mr. Justice Butzel, writing for affirmance of judgment for plaintiff, said, pp. 489, 490:
“Normally, under conditions such as these, when two cars collide on a bright clear day at the intersection of thoroughfares of equal importance, both drivers are to blame. The circumstances of the present case, however, take it out of the ordinary rule. When two cars meet at an intersection, it becomes the duty of both drivers to slow down and respect each other’s rights. Necessarily one car at some time must pass before the other. When the driver of plaintiff’s car kept his eye constantly on defendant’s truck, which was seen to have slowed down so as to give the impression that it was going to stop or turn, it became a question of fact whether the driver of plaintiff’s car acted prudently in proceeding without anticipating that defendant would suddenly accelerate the speed of his truck and strike plaintiff’s car after it was beyond the middle of the intersection in the direction it was traveling. Rak v. Lake, 271 Mich. 274. * *! * Here the evidence established that plaintiff’s driver maintained a continual watchfulness. * * * Here there was testimony that defendant reduced his speed to stop or turn. A question of fact was presented upon which reasonable minds might differ and it was properly submitted to the jury.”
See, also, Rak v. Lake, supra; Stephens v. Koprowshi, 295 Mich. 213; DeVries v. Owens, 295 Mich. 522.
Decedent’s driver, approaching from defendant’s right, had the technical right of way under 1 Comp. Laws 1929, § 4712 (Stat. Ann. § 9.1580). Such statutory right of way was not an assurance of safety or of an absolute right under all conditions. Rathburn v. Riedel, 291 Mich. 652. However, in Stephens v. Koprowski, supra, p. 217, we said:
“In the absence of opposing circumstances, the fact that one driver had the right of way may tend to acquit him of contributory; negligence. Putnam v. D. U. R., 164 Mich. 342.”
In Thompson v. Michigan Cab Co., 279 Mich. 370, 373, this court stated:
“Under the legitimate inferences from all of plaintiff’s testimony taken in its most favorable light (Loveland v. Nelson, 235 Mich. 623), did Benjamin exercise that degree of reasonable care that would be exercised by a person of ordinary prudence under all the existing circumstances, in view of the probable danger of injury? Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich. 99, 118.
„ “It is an impossibility to lay down precise rules by which we may measure all acts of contributory negligence. Some cases must, of necessity, stand or fall on their own facts. "What one does or fails to do as relates to the circumstances under which he acts is the test to be applied. Flynn v. Kramer, 271 Mich, 500, 505.”
As said in Stephens v. Koprowski, supra, p. 216:
“The test for our determination is whether the minds of reasonable men can honestly reach different conclusions.”
The testimony in this case — that decedent’s driver, having the right of way, approached the intersection at a moderate rate of speed, reached the intersection first, was continually watchful of defendant driver’s car, saw such car slow down and believed it was going to stop and give him the right of way — certainly presented a question of fact for the jury as to whether such driver acted in a reasonably prudent manner. Stuck v. Tice, supra; Stephens v. Koprowski, supra; Rak v. Lake, supra.
The testimony shows that the left front window of the car in which decedent was riding was broken and that a piece of sheet metal had been inserted in the window opening, extending up about six inches. Decedent’s driver testified that such sheet metal did not obstruct his vision, as there were about 10 inches of open space above the metal and that he “could look right over it.” Such sheet metal in the window was in violation of 1 Comp. Laws 1929, § 4734 (Stat. Ann. § 9.1602), providing as follows:
“It shall be unlawful for any person to drive any vehicle upon a highway with any sign, poster or other nontransparent material upon the front windshield, side wings, side or rear windows of such motor vehicle. ’ ’
Defendant contends that such statutory violation made decedent’s driver guilty of contributory negligence as a matter of law. There is no testimony indicating that the presence of such sheet metal in the window was a contributing cause of the accident. Such violation of statute was negligence per se. Holmes v. Merson, 285 Mich. 136; Westover v. Railway Co., 180 Mich. 373. However, we have repeatedly held that to preclude recovery by plaintiff such negligence must be a contributing cause of the accident. Suarez v. Katon, 299 Mich. 38; Ertzbischoff v. Smith, 286 Mich. 306. Whether or not such statutory violation was a contributing cause was a question of fact for the jury. Brown v. Tanner, 281 Mich. 150; Gleason v. Lowe, 232 Mich. 300.
This suit was begun by plaintiff under 3 Comp. Laws 1929, § 14061 et seq., as amended by Act No. 297, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 14061 et seq. [Stat. Ann. 1941 Cum. Supp. §§ 27.711-27.713]). In their statement of reasons and grounds for appeal defendants allege error in the admission of certain evidence relating to damages recoverable under the above act. We will, however, confine our consideration to those errors presented by defendants’ statement of questions involved. Court Rule No. 67, § 1 (1933); Sebastian v. Sherwood, 270 Mich. 339. Such statement recites as follows:
“Under Act No. 297, Pub. Acts 1939, providing for recovery by administrator for pecuniary injury suffered by husband, did court erroneously charge jury when he failed to instruct them that
“(a) Recovery for pecuniary loss arising out of loss of services of wife must be limited to the life of surviving husband; and
“(b) When he instructed them, that basis for award for services is the fair- and reasonable value of those services, and omitted to instruct that cost of maintenance of wife must be deducted?
The court instructed the jury, in part:
“Still another element of damage claimed here, and for which the plaintiff is entitled to recover, is the hu'sband’s loss of services of his wife. The testimony shows what she did. You have that in mind, and there is some testimony that such services to be procured in that community would cost six or seven dollars a week. Now, you will determine as best you can how long those services would have continued. In that connection, I have permitted the mortality tables to go in evidence. These tables give the average duration of human life at various ages and show that Mrs. Bassett at the age of 57 years had an expectancy of .16.5 years. The expectance of Mr. Bassett was also put in evidence, and that showed that at 66 years of age he had an expectancy of 10.54 years. Now, these tables are not conclusive, but they show the probable age which a healthy person of a given age may be_ expected to reach; but, of course, a person might die before the normal expectancy, or he might live longer, depending on various circumstances. Bassett might have died before his wife. You may consider that possibility. In any event, the basis of your award for services to the husband, which the husband has lost and which under the act, as I construe it, are recoverable by the plaintiff in this case, is the fair and reasonable value of those services.”
We believe such instructions made clear to the jury that plaintiff could recover only for the pecuniary loss sustained by the husband by reason of the loss of his wife’s services during his lifetime.
There was no express instruction that the cost of maintenance of the wife should be deducted from the value of her services. However, as defendants made no request for such instruction, they cannot successfully claim error on that ground. Court Rule No. 37, § 9 (1933); Moss v. Shreve, 278 Mich. 665; In re Einfeldt’s Estate, 286 Mich. 537.
The testimony presented question of fact; and the case was submitted to the jury under proper instructions. Their determination that plaintiff was not guilty of contributory negligence should not be disturbed.
The judgment is affirmed, with costs to plaintiff.
Chandler, C. J., and Boyles, North, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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North, J.
The State land office board and auditor general have appealed from a decree entered in the circuit court of Oakland county which primarily involves the right of the State or its municipal subdivisions to levy special assessments against church-owned properties and in'case of delinquency to enforce payment of such special assessments by sale of the assessed properties in the manner provided for the collection of such assessments when levied against privately-owned property.
These proceedings were instituted by the petition of the prosecuting attorney of Oakland county, such action being deemed proper by reason of the statutory duties imposed upon the prosecuting attorney by 1 Comp. Laws 1929, § 3493 (Stat. Ann. § 7.154). In the petition it is recited that the properties of the respective religions organizations were sold “for failure to pay taxes for the years 1935 and prior, said petition (for general tax sale) having been filed on the 4th day of March, A. D. 1938.” It is further alleged that on the 3d day of November, 1939, title to these properties, the same not having been redeemed, passed to the State; and that under the provisions of Act No. 155, Pub. Acts 1937, as amended (Comp. Laws Snpp. 1940, § 3723-1 et seq.), titles to the delinquent parcels have been transferred to the State land office board, and such parcels “are now in danger of being sold to the highest bidder.” The particular religious organizations which owned the properties involved in these proceedings are not specifically named or designated but are alleged to be located in the “municipalities, townships, villages and cities in Oakland County.” From the record it appears that relief was decreed to approximately 24 of such religious organizations against whose properties special assessments had been levied for beneficial improvements, such as sewers, pavements, et cetera. The petition further sets forth that the danger to the property rights of the respective religious organizations in their properties is being “paralleled by the 1939 tax sale and probably will be paralleled in the 1940 tax sale;” and that “the crippling of their functions by the loss of their church homes would be a public disaster.” The prayer of the petition is that a copy thereof be served upon each municipality in Oakland county together with an order to show cause “why the necessary and advisable steps should not be taken to remedy the situation;” that the State land office board and the auditor general be requested to submit to the jurisdiction of the court; and that “such instructions (be) given by this court to the petitioner as the exigencies of the case require and the law permits.”
It is to be noted that none of the religious organizations whose properties are involved were made parties to these proceedings, nor have they inter venedi or in any way become parties thereto. Presumably this course was taken on the assumption that since title to the respective properties had already vested in the State the religious organizations were neither necessary nor proper parties. Answers and returns to the order to show cause were filed by the State land office board and the auditor general, and also by some of the municipalities. But of the municipalities only the answer of the city of Pontiac appears in the record.
The attorney general, in answering for the State land office board and the auditor general, concedes 1 i that the respondent State land office board had no power to offer for sale at its 1940 public auction sale any land which was not assessed for general taxation in the year 1938;” and asserts without contradiction that the State land office board has not offered for sale “any of the many houses of public worship title to which became vested in the State of Michigan by virtue of the 1938 tax sale and non-redemption therefrom.” This attitude on the part of the State land office board, and a like position taken by the city of Pontiac, is justified for the following reason. Act No. 155, § 7, Pub. Acts 1937, as amended by Act No. 244,.Pub. Acts 1939 (Comp. Laws Supp. 1940, § 3723-7, Stat. Ann. 1941 Cum. Supp. §7.957), provides that at sales held by the the State land office board the respective parcels are to be sold at public auction to the highest bidder, at a minimum of 25 per cent, of the assessed valuation, with certain priority redemption privileges to the owner or owners of the property sold. But by statutory provision (1 Comp. Laws 1929, § 3395., as amended by Act No. 243, Pub. Acts 1933 [Comp. Laws Supp. 1935, § 3395, Stat. Ann. § 7.7]) all houses of public worship with the land on which they stand and the furnishings therein, as well as parsonages owned by religious societies and occupied as such, are exempt from taxation. In consequence thereof such properties are not entered upon tax rolls with any ‘ ‘assessed valuation. ’ ’ It follows that until the recent amendment of the statute hereinafter noted, the State land office board was without power to sell such properties because there was no way of determining what was the minimum sale price on the basis of “25 per cent, of the assessed valuation. ’ ’ It was so decreed by the trial court and to that extent the decree must be affirmed.
But the circuit judge in his decree went much further and in effect embodied provisions therein which could be sustained only upon the theory that the municipal subdivisions of the State are without power to levy and collect assessments for special improvements against church-owned properties. Accordingly it was decreed that the auditor general and the State land office board should reconvey to the respective religious organizations any church properties of which title had passed to the State of Michigan by reason of failure to redeem from the tax sale of 1938; and the State land office board was permanently enjoined from selling at any of its sales “any and all church property hereinafter described, which is exempt from assessment under the general tax laws of the State of Michigan; ’ ’ and further the auditor general and the State land office board were ordered and directed to reconvey to the respective church organizations any and all their church properties which were bid in by the State at the 1939 tax sale, and the sale of such properties at the 1940 tax sale was enjoined. It is from this portion of the decree that the State land office board and auditor general, acting through the attorney general, have appealed.
In granting the relief just above noted, the trial judge seems to have been motivated by his conclusion that he was protecting constitutional rights of the interested religious organizations. This is indicated by the following quoted from the decree:
“And it further appearing to this court that it would not only be contrary to public policy to condone or permit the sale of these church properties, but in addition thereto, that it would be contrary to the spirit of the Constitution of the _ State of Michigan, particularly article 11, § 1, which reads as follows:
“ ‘Religion, morality and knowledge being necessary to good government and tlie happiness of mankind, schools and the means of education shall forever be encouraged.’ ”
In this connection the circuit judge also quoted the preamble to the Constitution of the United States and concluded: “that this court has authority to cancel sales, heretofore made, and enjoin future sales, * * * (and) this court, by the authority therein vested, doth” grant the relief last above noted. We are of the opinion that in this phase of the decree the trial court exceeded its judicial powers and attempted to grant relief properly obtainable by legislation only. If due recognition is given to other constitutional provisions (see Michigan Constitution [1908], art. 2, § 3), the extent to which religious organizations may be relieved of the burdens of taxation is clearly a question for - the legislature. As above noted, statutory provision has been made for the exemption of church-owned property from general taxation. But special assessments authorized by law do not fall within the exemption granted by the general property tax law. Lefevre v. Mayor of Detroit, 2 Mich. 587; City of Big Rapids v. Mecosta County Supervisors, 99 Mich. 351. There is nothing in this record which would justify setting aside such special assessments on the ground that in some instances the improvements for which the assessments were made were not immediately adjacent to the church-owned property, but instead were located within a district fixed by the municipality as the district within which the assessment should be levied with which to pay the cost of the local improvement. There is statutory authority for the creation of such assessment districts (1 Comp. Laws 1929, § 2386 [Stat. Ann. § 5.2412], 1 Comp. Laws 1929, § 2234 [Stat. Ann. § 5.2077]). And in the instant case there has been no attempt to challenge or overcome the presumption of good faith or authority on the part of any of the municipalities in establishing such assessment districts. Powers v. City of Grand Rapids, 98 Mich. 393; Shimmons v. City of Saginaw, 104 Mich. 511.
Since the decree was entered in the circuit court, statutory provisions have been enacted which obviously are intended to alleviate the situation that gave rise to the instant suit. The statute (Act No. 155, § 7, Pub. Acts 1937) was amended so as to contain the following:
“Provided, however, that in case there was no assessment of such land for such year, the city or township assessing officer shall, within 10 days after application therefor by the board, fix an assessed valuation for such year.” Act No. 363, Pub. Acts 1941 (Comp. Laws Supp. 1942, § 3723-7, Stat. Add. 1941 Cum. Supp. §7.957).
And by amendment of the same act (section 8d) it was further provided:
“The State land office board or department of conservation may, upon application of any religious or charitable organization, the property of which is exempt from general taxation under the provisions of section 7 of Act No. 206 of the Public Acts of 1893, as amended, withhold from sale any such lands owned by such religious or charitable organization at the time of vesting of title in the State of Michigan, and may reconvey the same to such organization upon payment of the amount of all such taxes and special assessments together with penalties and interest thereon for which the same were sold.” Act No. 363, Pub. Acts 1941 (Comp. Laws Supp. 1942, § 3723-8d, Stat. Ann. 1941 Cum. Supp. §7.958 [4]).
Each of the foregoing amendments was made immediately effective as of June 19, 1941'. To the extent hereinbefore indicated the decree entered in the circuit court is affirmed; but in so far as the decree orders reconveyance “to the respective church bodies (of) title to any church property hereinafter described” and in so far as the decree permanently enjoins the State land office board from selling lands of the character here involved, it should be reversed. A decree may be entered in this Court in accordance herewith, but because a public question is involved no costs will be awarded.
Chandler, C. J., and Bowles, Starr, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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Bushnell, J.
The parties hereto were married in 1934, after an acquaintance of about 40 years. Each party had been previously married and divorced. Plaintiff Celia Bly had three children by one of her former marriages but no children were born as a result of her marriage to defendant John Bly. The parties lived on a farm in Sanilac county and were both hard working people. Difficulties arose between them, the details of which need not be related here. The wife filed a bill of complaint asking for a divorce on the ground of cruelty and the husband filed a cross bill seeking a divorce on the same ground.
The trial judge in a written opinion referred to the former matrimonial experiences of the parties and commented upon the redeeming feature that there are no small children to reap the aftermath of the union. The testimony was in hopeless conflict and the trial judge commented that he was not impressed with the truth of some of it. He dismissed plaintiff’s bill of complaint and awarded a decree of divorce to the defendant.
Plaintiff contends on appeal that defendant and cross plaintiff did not meet the burden of proof, and that the decree which awarded plaintiff the sum of $500 in lieu of dower rights and alimony was unjust and inequitable. The decree referred to the sum of $600 which the defendant had paid to plaintiff during the pendency of the cause, and another sum of $200 which had been applied on the purchase of a home for plaintiff’s son. A relatively new Pontiac car, on which the defendant had paid the equivalent of $650, was awarded to plaintiff. The decree also required defendant to pay an outstanding bill incurred by plaintiff for clothing and other items amounting to $81.23, a medical bill of $77, and an attorney fee of $75.
In Chubb v. Chubb, 297 Mich. 501, 506, the court said:
“While we are not restricted by the findings of the circuit court, a divorce case on appeal being heard de novo, especial consideration is given to such findings, so largely based upon the credibility of the witnesses, and the reviewing court ought not to reverse the determination of the trial court in such a case, unless convinced that it must have reached a different conclusion had it occupied the position of the lower court, under like circumstances.” See authorities cited therein.
In the instant case we find no reason for disturbing the determination of the trial judge either as to which party should have the decree of divorce or the award of alimony and property settlement. The amount to be awarded in lieu of dower and for alimony rests largely in the discretion of the trial court, and it is only where there is a manifest abuse of that discretion that the award will be interfered with on appeal. Tyson v. Tyson, 283 Mich. 192. There is no manifest abuse of discretion in the instant case.
"We are mindful that the parties should come into equity with clean hands and, like the trial judge, we are not impressed by some of the testimony. However, we cannot say that we must have reached a different conclusion if we had had the opportunity to see and hear the witnesses.
The decree is affirmed but without costs to either party.
Chandler, C. J., and Boyles, North, Starr, and Butzel, JJ., concurred with Bushnell, J. | [
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Starr, J.
These two cases, consolidated for trial and appeal, involve an automobile accident occurring about 5:15 o’clock on the afternoon of December 26, 1939, on Melbourne street just north of the intersection of Melbourne and Berkeley streets in the city of Flint.
Such intersection was located in a residential neighborhood. Both streets were paved, were 26 feet wide from curb to curb, and were of equal importance, neither being a through street. Melbourne street extended north and south, and Berkeley street extended east and west. The curbs at the four-corners of the intersection were curved, having a 10- or 12-foot radius, so that both streets were open and bell-shaped at the intersection. The day was clear; the streets were dry; and, though it was ‘ ‘ getting dnsk,” each, driver could see the other approaching the intersection.
Plaintiff Fred Saunders, a resident of Flint and .familiar with the intersection, accompanied hy his wife, plaintiff Eveline Saunders, was driving his Ford sedan north on Melbourne street and was approaching the intersection. They were on their way to visit their married daughter who lived a few blocks from where the accident occurred. Saunders was driving at a speed which he estimated at 15 to 20 miles, and which defendant "William Joseph estimated at 35 to 40 miles, an hour.
Defendant William Joseph, 22 years old, accompanied by another young man,’ was driving a 1933 Chevrolet car, owned by his father, defendant John Joseph, west on Berkeley street and was approaching the intersection with Melbourne street at a speed which he estimated at 25 to 28 miles, and which plaintiff Fred Saunders estimated at 30 to 40 miles, an hour. Défendant driver was on his way “to pick up my girl friend who lived on Berkeley about the third house west of Melbourne.”
A collision occurred on Melbourne street about “5 or 10” feet north of the north line of the intersection. Defendant driver had turned off Berkeley street to the right (north) on Melbourne street and struck plaintiff Saunders ’ car at about the center on the right side. Plaintiff Fred Saunders sustained minor personal injuries and some damage to his car. Plaintiff Eveline Saunders sustained severe and permanent injuries, was confined in the hospital and at home for several months, and at the time of trial, about 17 months after the accident, had only limited use of her left arm, leg, and side.
Plaintiff Fred Saunders began suit to recover for his personal injuries, for damages to his car, and for hospital, medical, nursing, and other expenses resulting from his wife’s injuries. Plaintiff Eveline Saunders began suit to recover for her personal injuries. Both plaintiffs alleged negligence on the part of defendant driver, William Joseph. Defendants filed answers denying negligence and charging Fred Saunders, as plaintiff in his case and as his wife’s driver in her case, with contributory negligence. The cases were consolidated and tried before a jury. At the conclusion of plaintiffs ’ proofs defendants moved for directed verdicts, which motions were denied. Defendants did not renew their motions for directed verdicts at the conclusion of their proofs. The jury returned verdict of $2,328.78 for plaintiff Fred Saunders, and verdict of $2,000 for plaintiff Eveline Saunders. Judgments were entered on such verdicts. Defendants filed motion in each case for judgment notwithstanding the verdict and also motions for new trials. Such motions were denied, and defendants appeal.
No question is raised as to defendant driver’s negligence. Defendants’ counsel state in their brief:
“The case is in the Supreme Court for review of the denial of defendants’ motion for judgment notwithstanding the verdict. The motion for a new trial has been abandoned.”
The statement of questions involved presents for review only one question: Was Fred Saunders, as plaintiff in his case and as driver for his wife, Eveline Saunders, in her case, guilty of contributory negligence as a matter of law?
Defendants contend that the testimony of plaintiff Fred Saunders establishes his contributory negligence. Plaintiff driver testified that, when he was about 50 feet from the intersection, he looked to his right (east) on Berkeley street and saw defendants’ car approaching at a distance of “about 100 to 150 feet” from the intersection'; that he judged defendants’ car was going 30 to 40 miles an hour; that' he continued to watch defendants’ car until he (plaintiff driver) had crossed the intersection; that he thought he could get across the intersection safely; that he continued at a speed of 15 to 20 miles an hour; that, when he reached the center of the intersection, defendants’ ear was about 50 feet away; and that, when he reached the north line of the intersection, defendants’ car was about 10 to 15 feet away. Plaintiff Fred Saunders further testified:
“Q. And you proceeded on across?
“A. I proceeded on across. I figured I was going to clear him from hitting me.
“Q. Did it [defendants’ car] slacken its speed any after that?
“A. No. * * *
“Q. Where was the front of your car at the time of the impact?
“A. The front of the car must have been at least 6 or 10 feet the other side [north] of the intersection.
“Q. Across the north curb of the north line of Berkeley if extended?
“A. Yes, sir. * * * After the accident the car that struck me was stopped headed the same way I was going 5 or 10 feet or so from the corner. His [defendant driver’s] whole car was north of the intersection and facing north * # * on Melbourne.”
On cross-examination plaintiff Fred Saunders further testified:
“Q. You were around 50 feet back [from Berkeley street] when you first looked to the right?
“A. Yes. * * *
“Q. Did you see a car coming at that time?
‘‘A. Yes.
“Q. And how far away from the east curbline of Melbourne street to the east, was that car that you saw coming down Berkeley street?
“A. Down as far as the two little trees there, the first tree I saw him.
“Q. Tell me what that would be in feet?
“A. Be around about 150 feet I imagine. • * * *
“Q. How fast was he traveling there as you saw him coming towards you?
“A. * * * I couldn’t determine but I figured he was going somewhere between 30 and 40 miles an hour. * * *
“Q. You kept right on going?
“A. Yes.
“Q. And did you keep right on watching?
“A. I was watching him all the time. I didn’t notice the speed until I come- across the intersection, then I noticed. * * *
“Q. Did he slacken his speed at any time as he traveled that 150 feet?
“A. No.
“Q. Did you slacken your speed at any time as you traveled the balance of that 50 feet and reached the south curbline on Berkeley?
“A. No.
“Q. How far away from the center point of .that intersection was this car that you saw coming from the right when you got up to this south curbline on Berkeley street?
“A. I should say about 100 feet back, or more. * * *
“Q. With the brakes you had on your car that day in what distance could you stop your car if you put them on going at a speed from 15 to 20 miles an hour?
“A. I could stop within 10 feet I suppose, between 10 and 20 feet. * # *
“Q. Did you make any effort to stop your car or slacken your speed when you got to the south line of Berkeley street?
“A. No. * * #
“ Q. * * * Flow far did you get across Berkeley street when you got hit?
“A. I was across the intersection.
“Q. Well, were you completely out of Berkeley street?
“A. Yes. Maybe just the end of the car, the bumper might be there, but I was out of the intersection myself.
“Q. You were out of there entirely?
“A. Yes, sir.
“Q. With the whole length of your car. Did you notice this automobile [defendants’] turning there right as it got pretty close to you?
“A. No.
“Q. Did it turn to the right at any time?
“A. Yes.
“Q. Where was it as it turned to the right?
“A. Right at the corner, just before it hit me; came right after me. * * *
“Q. Why didn’t you stop your car?
“A. Well, I was afraid of getting killed if I stopped probably. I figured I was out of the intersection. * * *
“Q. Yoji tell me you didn’t figure you had the right of way because that was the most traveled street there?
“A. Yes, I figured I had the right of way because I figured I was out of the intersection before he reached there.”
On redirect examination plaintiff Fred Saunders testified:
“Q. There was nothing there between you and he to obstruct his view of you?
“A.. Not a thing.
“Q. And I will ask you whether or not you assumed he would slacken his speed to permit you to cross?
“A. That is what I assumed he would do. * * *
“Q. At the time of the actual impact you think practically the entire length of your car was north of that curbline?
“A. Yes. * * * If he [defendant driver] had gone straight ahead on his own side of the street he might have just skinned my bumper. He didn’t slacken his speed at any time that I observed.”
Defendant driver, William Joseph, testified that he did not look to his left until within 10 or 15 feet from the intersection; that he did not apply his brakes until after the collision; that his back tires “were not very good * * * were fairly smooth;” that one brake was dragging. Defendant driver further testified :
“Q. What did you do when you saw him [plaintiff driver] coming at the point you have indicated, and you were at the point you have indicated?
“A. Well, I figured it was too late to stop — I made a right-hand turn.
“Q. Why did you make a right-hand turn?
“A. I wanted to.avoid a head-on collision. * * *
“Q. And will you tell the jury where the impact between the two cars occurred? * * *
“A. Right on the southeast corner or northeast corner, right where the cross is just about.
“Q. And how far to the north of the north curb-line of Berkeley street would that be?
“A. Oh, about 5 or 10 feet,
“When I turned to the right on Melbourne street, Mr. Saunders’ car did not turn one way or another. I hit his right front; my left side of my car or front end of my car hit his right side. * * *
“Q. Well, anyway, you say that when you were back here 10 or 15 feet, from the intersection, and looked to your left the first time and saw this man coming from your left, that then you had no opportunity to put your brakes on?
“A. That is right.
“Q. Instead of that you turned north on Melbourne avenue?
“A. Yes, sir. * * *
“ Q. Now the only thing that stopped the progress of your car was the impact, hitting the side of the plaintiff’s car, isn’t that right?
“A. No, sir.
“Q. What else stopped it?
“A. After I made the turn I put my foot on the brakes, clutch before.
“Q. Didn’t you testify here twice that you didn’t put your brakes on at all?
“A. I didn’t attempt to put the brakes on before I hit him because I couldn’t make the turn.
“Q. You say you put your brakes on after you hit him?
“A. Yes.”
Under the testimony presented, was plaintiff Fred Saunders guilty of contributory negligence as a matter of law? The trial court’s opinion denying motion in each case for judgment non obstante veredicto stated, in part:
“It was agreed by the two drivers concerned in this case, that the collision did not actually take place in the intersection but did take place north of the intersection. It was admitted expressly by the defendant driver that believing that a collision was inevitable, he drew off to the right and then followed plaintiff’s car in the direction the plaintiff’s car was going, as I remember north on Melbourne. #-U. .>>. •S' ¶?
“And the collision took place on Melbourne just out of the intersection. That, in the opinion of the court, that is a question for the jury to consider as to the question of contributory negligence on the part of the plaintiff driver. He had made his observation, and "his statement as to what he did and saw before the jury. It seems to the court, it was for the jury to determine whether he used due care in entering the intersection and crossing the intersection as he did. The jury might properly take into consideration the fact that in his estimation and speed of the cars and their position and so forth, the distance to be traveled, whether he came to a reasonable conclusion, in view of the fact he actually had crossed the intersection, when the defendant’s ear, without slackening its speed at all, followed bim into Melbourne street north and struck him there. Tbat was not a question for tbe court to determine; it was for tbe jury.”
In reviewing tbe trial court’s denial of defendants’ motions for judgment non obstante veredicto, we view tbe facts most favorably to plaintiffs. Stephens v. Koprowski, 295 Mich. 213; Shank v. Lucker, 296 Mich. 705.
“We know of no rule of science or of experience by wbicb tbe question of negligence or contributory negligence can be determined with exactitude.” Rife v. Colestock, 297 Mich. 194, 197.
“It is an impossibility to lay down precise rules by wbicb we may measure all acts of contributory negligence.” Thompson v. Michigan Cab Co., 279 Mich. 370, 373.
“Little belp is afforded by cases, with tbeir varying facts, and tbe doubt should be solved by verdict of a jury.” Lefevre v. Roberts, 250 Mich. 675, 678.
Tbe question is: Did plaintiff driver exercise tbat degree of care and caution that a prudent and careful person would have exercised under similar circumstances ?
Tbe testimony of plaintiff driver indicates tbat be was ever watchful of defendants’ approaching car; tbat be (plaintiff driver), having entered tbe intersection first, bad tbe right of way; tbat be was driving at a reasonable and proper rate of speed; tbat be formed a conclusion tbat be could safely cross tbe intersection; tbat, when be reached tbe center of tbe intersection and bad 13 feet (half tbe width of tbe street) to go, defendants ’ car was about 50 feet away; tbat, when be reached tbe north line of tbe intersection, defendants’ car was 10 to 15 feet away; tbat be safely passed out of tbe intersection, wbicb confirmed bis conclusion tbat be could cross in safety; and tbat, when be reached a point “ 5 or 10” feet north of the intersection, his car was struck on the right side by defendants’ car.
Defendant driver’s testimony reasonably established that he was exceeding the speed limit; that he failed to make proper observation; that his brakes were defective; that he intended to proceed west on Berkeley street; that, as he explained, he made a right-hand turn (north) on Melbourne street “to avoid a head-on collision;” that the collision occurred on'Melbourne street “about 5 or 10 feet” north of the intersection.
The testimony also reasonably established that, if defendant driver had proceeded straight ahead (west) on Berkeley street, the collision would probably not have occurred.
The facts of the several cases cited by defendants ’ counsel distinguished them from the present case. In such cited cases the collision occurred within the intersection. In the present case the collision occurred outside the intersection and after plaintiff driver had safely proceeded through the intersection.
We have repeatedly recognized the rule that, when a driver reaches an intersection in advance of another and under such conditions of relative distances and speeds as would induce in a reasonably prudent man the belief that he could cross in safety, he is not guilty of negligence in proceeding, and that in forming such belief the driver may assume that the other will use due care and accord him his legal rights. Kiefer v. Fink, 236 Mich. 274; Pline v. Parsons, 231 Mich. 466; Grodi v. Mierow, 244 Mich. 511.
In Scurlock v. Peglow, 263 Mich. 658, 663, Mr. Justice North said:
“As plaintiff entered the intersection, he made an observation which reasonably assured him there was no traffic approaching from the north within at least the 100 feet of his range of vision, and as to more distant approaching traffic plaintiff, being first in the intersection, had the right of way and had no warning that such right would not be respected.”
Our decision in the recent case of Stephens v. Koprowski, supra, involving an intersection accident in which the facts were somewhat similar to the present case, affords us guidance in our consideration of the question of plaintiff driver’s contributory negligence. In that case Mr. Justice Bittzeii, writing for the court, stated, pp. 215-217:
“The two streets are of equal importance. * * * Plaintiff’s decedent was riding in a friend’s car in a northerly direction on Lane avenue; defendant was driving in an easterly direction on Second street. The driver of the car in which decedent was riding testified that as he approached the intersection, he was driving about 15 miles per hour and that he maintained a continual watchfulness. Because of an obstructing building on the southwest corner, he did not see defendant’s car until he was 20 to 25 feet from the intersection; defendant’s car was then about 75 feet from the center of the intersection. The driver further stated that at this point he believed he was far enough up to the intersection to cross with safety before defendant’s car would get there, and he accelerated in an attempt to make sure. It appears, or at least for the purposes of this appeal it must be assumed, that he might have been correct if defendant had continued in the same path straight across the intersection. However, defendant started to drive to his left of the center of the street and then turned north as though to follow the other car. "When the crossing was half completed, deceased’s driver applied the brakes in an unsuccessful attempt to avoid the collision. In the northeasterly quadrant of the intersection, defendant struck the left side of the car in which the deceased was riding. * * * The trial court submitted the case to a jury who found for plaintiff. A motion for judgment non obstante veredicto was denied on the ground that deceased’s host was not required to assume that defendant would swerve to the left in a northerly direction upon entering the intersection in an apparent effort to avoid a collision. * * * t
“In the instant case, the driver, having only about one third of the distance to travel that defendant had before reaching the intersection, formed a judgment that he could cross with safety; we agree, as the trial court ruled, that he was not bound to assume that defendant, heading straight across, would change his course by swerving to the left and would strike in a part of the intersection that would otherwise be a place of safety. At least the conclusion that might be drawn from a consideration of all the facts was one upon which reasonable minds might differ, and therefore the trial court correctly ruled that it was for the jury to determine whether the driver of the car in which the deceased was riding acted with the prudence expected of him in proceeding as he did.”
See, also, Thompson v. Michigan Cab Co., supra; Sak v. Waldecker, 256 Mich. 219; Swainston v. Kennedy, 253 Mich. 518; Hale v. Rogers, 244 Mich. 69; Arvo v. Delta Hardware Co., 231 Mich. 488.
In the case at hand plaintiff driver was not required to assume that defendant driver, proceeding straight west on Berkeley street, would change his course by turning to the right (north) on Melbourne street.
A careful study of the record convinces us that plaintiff driver was not' guilty of contributory negligence as a matter of law. We are satisfied that the trial court was correct in concluding that the testimony presented a question of fact for the jury.
. The credibility of the witnesses and the weight to he given the testimony were for the jury. Rodgers v. Blandon, 294 Mich. 699.
Tbe judgments for tbe plaintiffs in botb cases are affirmed, with, costs in only one case.
Chandler, C. J., and Boyles, North, Butzel, Bushnell, and Sharpe, JJ., concurred. Wiest, J., did not sit. | [
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] |
Boyles, J.
This is an appeal in the nature of mandamus to compel the circuit court for Wayne county to set aside an order denying appellant Charles L. Miller’s motion to set aside a default and a motion of appellant Paulena Miller (his wife) for leave to intervene.
In November, 1926, defendants Harry Sosensky and Jennie Sosensky, his wife, executed and delivered to the Detroit Trust Company, plaintiff, as trustee, a certain trust mortgage on property then owned by them in Detroit to secure payment of the principal and interest of $50,000 first mortgage bonds issued thereunder. In May, 1927, Sosensky and wife deeded the mortgaged premises to appellant Charles L. Miller who, in said deed, assumed and agreed to pay the mortgage indebtedness. The bonds came into default to the extent that when the Detroit Trust Company filed this bill of complaint in May, 1940, to foreclose the mortgage, there was due and unpaid and in default on principal and interest, taxes and other items, a sum in excess of $55,000. The last of said bonds became due in 1937, and in September, 1939, appellants Charles L. Miller and Paulena Miller executed and delivered a supplemental agreement to the Detroit Trust Company, as trustee, assigning the rents and profits from said premises to the trustee. The bill of complaint alleges that Charles L. Miller, by assuming and agreeing to pay the mortgage, became liable for the principal and interest on the bonds, asks for a decree of foreclosure and sale of the premises, and for a decree for deficiency against Charles L. Miller in case the proceeds of the sale are insufficient to pay the indebtedness. Paulena Miller was not made a party to the foreclosure, not having been named as grantee in the dee'd by which her husband, Charles L. Miller, obtained title in 1927, subject to the mortgage lien.
Summons and bill of complaint were served upon appellant Charles L. Miller, May 27, 1940, the same date the bill was filed. Twenty-six days later, on June 22d, an affidavit of default, affidavit of regularity, and order pro confesso were duly filed as to him, no appearance having been filed or entered by him. Through his present counsel he claims that two days after his default was thus entered an attorney retained by him served what purported to be a copy of his appearance on- the attorney for plaintiff, but no appearance or pleadings of any kind were filed. He claims that he was not apprised of the default until in December, some six months after it was entered. As to that, plaintiff’s attorney by affidavit in opposition to the motion shows that appellant Charles L. Miller’s attorney was informed of the default by letter on June 25th, and that in September Mr. Miller himself was present at a conference and appeared to be fully cognizant of the contents of the bill of complaint and request for deficiency and stated he would attempt to get a new attorney to try to settle the matter. No action was taken by Mr. Miller until December 28, 1940, when notice of his appearance was filed and served by his present counsel. At that time his present counsel advised it was their intention to file a motion to set aside his default and for leave to answer. However, this motion was not filed until more than two months later. On March 10, 1941, counsel for Charles L. Miller filed a motion to set aside his default with a profert of sworn answer and cross bill, and also filed a petition by appellant Paulena Miller for leave to intervene. Affidavits were filed in opposition by plaintiff’s attorney. A hearing thereon was promptly held before Judge DeWitt H. Merriam on March 14th, and on March 31st Judge Merriam filed an opinion denying the motion and petition. Prom the order entered thereon, and on leave granted, appellants Charles L. Miller and Paulena Miller review by appeal in the nature of mandamus to compel setting’ aside of this order and the default.
Plaintiff does not question but that the motion to set aside the default and the proceedings taken thereunder were in compliance with Michigan Court Rule No. 28, § 4 (1933), which provides:
“Any order entered under this rule may be set aside on special motion for cause shown, in the discretion of the court, on terms.”
The issue more aptly stated is whether there was an abuse of discretion by the circuit judge in refus ing to set aside the default and in denying the petition of Paulena Miller for leave to intervene.
Appellants contend that “to justify the refusal to set aside a default a case must be one in which serious injury to the plaintiff would otherwise result.” The merits of the respective claims of the parties as shown by the affidavits and the proffered sworn answer and cross bill were considered by the court below. Defendant Charles L. Miller sought a reformation of the supplemental agreement entered into in 1939 and claimed that a deficiency judgment against him would be financially ruinous. Plaintiff showed that the entire bond issue had been in default for some yeársj that the total amount past due exceeded the amount of the original issue, and urged the rights of the bondholders to enforce the mortgage by foreclosure without further delay. In the court’s opinion, Judge Merriam pointed out that defendant’s attorney was informed of the default by letter shortly after it was entered; that the defendant himself about three months later was advised of the situation, and informed plaintiff’s attorney he would have to get a new attorney to do something about it. The motions before the court were not filed until approximately 10 months after the bill of complaint had been served personally on defendant Charles L. Miller, and approximately 9 months after default had been taken.
In Boynton v. Kent Circuit Judge, 163 Mich. 500, this court said:
“The court exercised his judgment in the matter, believing the plaintiff and disbelieving the defendant, as he expressly states. Where, as in this case, the action of the trial court is the exercise of honest judgment on a question of fact, he cannot be chargeable with abuse of discretion. ’ ’
In McCullough v. McCullough, 187 Mich. 404, where a similar question was before this court, we said, citing many cases in support thereof:
“The motion to set aside the default was supported by an affidavit and the sworn answer of defendant. These were met by the affidavit of the complainant, who either denied or explained each of the charges made in the answer.
“We have read the entire record with care. We do not think the chancellor abused the discretion given him by the rule in his disposition of the motion.”
In Sezor v. Proctor & Gamble Soap Co., 267 Mich. 128, this court said:
“The writ of mandamus is not a writ of right. Johnson.^. Board of Supervisors of Ionia County, 202 Mich. 597. It will be granted as a matter of right only when the duty of the circuit judge is imperative and not discretionary. Rex v. Hughes, 3 Ad. & E. 425 (111 Eng. Rep. 475)._ * * #
. “Ordinarily this court does not interfere with the exercise of discretion by the lower court. People, ex rel. Hoffman, v. St. Clair Circuit Judge, 37 Mich. 131; Breisacher v. Judge of Recorder’s Court of Detroit, 223 Mich. 254; Globe Indemnity Co. v. Richer, 264 Mich. 224.”
We see no compelling excuse for defendant Miller’s delay. He has.been guilty of laches and the bondholders should not be further penalized by his neglect and delay.
Appellant Paulena Miller, wife of Charles L. Miller, petitioned for leave to intervene. It appears from the proffered answer and cross bill that she executed a deed of the premises in September, 1939, at which time the Millers were represented by an attorney of repute who acted for them in the matter. Appellants concede that they do not challenge the right of the plaintiff to foreclose the mortgage, and appellant Charles L. Miller seeks only to establish that he is not liable for the deficiency. On behalf of Mrs. Miller, counsel claim that “petitioner’s primary purpose in seeking intervention is to contest her husband’s alleged personal liability. ” In short, Mrs. Miller seeks to litigate the same question that is precluded by Mr. Miller’s laches and default. She is not a party defendant; no judgment can be taken or execution issued against her for the deficiency. There is no merit in her petition for leave to intervene.
The order entered in the court below is affirmed, with costs to appellee.
Chandler, C. J., and North, Starr, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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Butzel, J.
The auditor general appeals from a judgment in favor of defendant Hall. The case involves the constitutionality of Act No. 253, Pub. .Acts 1935, as amended by Act No..272, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 17667-11 et seq., Stat. Ann. §§28.1701-28.1709). The act provides (section 1) that it may be known and cited as the prison reimbursement act. On March 23, 1937, defendant was convicted of the crime of statutory rape and sentenced for a term of from 5 to 10 years in the State prison for southern Michigan. After being kept there for a short period at a cost to the State of $47.53, he was removed to the Michigan reformatory at Ionia, where he remained three years at a further cost to the State of $1,107.49. He was a prisoner at the Michigan reformatory at the time of the hearing in the circuit court for the county of Oceana, where a petition had been filed by plaintiff in accordance with the prison reimbursement act to recover the sum of $1,105.02, the exact cost of keeping and maintaining defendant as a prisoner. At the time of the hearing he was possessed of a personal estate consisting of $5,400 in liquid assets, $1,500 in bondholders’ certificates in defaulted bonds, and an $800 mortgage which was in default. Defendant testified that he intended to support his aged grandmother, but there is no testimony that he had ever supported her in the past. She was a public charge at a State sanatorium. Defendant was paroled to Kent county on October 10, 1940, and now resides there. The circuit judge held the act unconstitutional and the auditor general appeals.
Defendant assailed the act in the circuit court on numerous grounds., He claimed that under section 4, it was discretionary with the court to decide whether the prisoner had' an estate which, in the language of the act, “ought to be subjected to the claim of the State.” The court held that there was no merit to this contention because' the determining fact was whether the prisoner had any estate over his legal exemptions. The court further found no merit in the objection that it was left to the court to determine the amount to be exacted. Section 4 provides that the amount shall be “so much or such part thereof as may appear to be proper for reimbursing the State.” This is subject to mathematical computation. It was shown that the cost of a prisoner’s keep varied from $1.03 to $1,118 a day. The court further properly held that the provision in the law that reimbursement shall not be in excess of the per capita cost of maintaining prisoners does not involve any discretion but provides a rule for computation. The court overruled the objection that the provisions imposing liability against the prisoner’s estate, “regard being had to claims of persons having a moral and legal right to maintenance out of the estate of stich prisoner,” gave too much leeway to the discretion of the court. The court held that the prisoner could not complain if a humane disposition was made in each case, it not being within the province of the prisoner to espouse the rights of others. The court further, held that the clause in the 1937 amendment to the act, exempting from seizure all accumulated earnings of prisoners still in prison, in no way impaired defendant’s rights as it exempted the earnings of all prisoners from being applied toward payment of the cost of their keep.
The court, however, held the act unconstitutional because it does not require that in the original sentence of the prisoner the court must impose upon the prisoner’s estate the obligation to pay the cost of his keep and maintenance; that, therefore, the instant proceeding brought after conviction and during the prison term of defendant, in accordance with the statute, resulted in placing the prisoner in double jeopardy by exacting two penalties for the same offense. The court further expressed a doubt whether the act was not discriminatory in that it exacted the cost of a prisoner’s keep only from those who possessed property and then for an amount uncertain because it left the determination thereof to the court after giving “regard * * * to claims of persons having a moral and legal right to maintenance out,of the estate of such prisoner.”
We limit ouy discussion to the questions raised by counsel: Does the act violate the constitutional privilege against double jeopardy as expressed in article 2, § 14, of the Michigan State Constitution (1908) ? Does the act contravene the equal protection guaranty in section 1 of the Fourteenth Amendment to the Federal Constitution by creating an unreasonable classification in imposing an exaction upon one who has an estate which is not imposed upon one who has no estate even though the criminal classification of the two is exactly the same?
The act had been on the statute books for almost two years prior to defendant’s conviction. Defendant was given the benefit of the 1937 amendment which in no way affects the general terms of the act. The attorney general calls attention to the fact that the legislature was largely motivated by the fact that there is no legal, moral or economic reason why prisoners who are owners of substantial estates or become such while in prison should not be obligated to pay for their keep. It is not our province to discuss the wisdom of the act, its effect on the morale of the prisoners and their rehabilitation, or other questions that might be raised. These are questions solely for the legislature, which, after considerable debate, passed the bill.
Our attention is called to conditions in England prior to the adoption of our State Constitution, where prisoners were called upon to pay for their keep in many instances. Our attention, however, has not been called to any exactly similar statute in this country. In Tennessee, the warden is empowered to take charge of the property possessed by a prisoner and hold the same subject to the payment of “expenses of keeping the convict, if any, over and above the value of his work.” Tenn. Pub. Acts 1829, chap. 38, § 17; Tenn. Code (1934), §§ 12088-12092. North Carolina has a statute somewhat similar to the Tennessee act: N. C. Pub. Acts 1795, chap. 433, § 7; N. C. Code (1935), § 1347. We also find that some States appropriate the earnings of the prisoners for their support. In People v. Hawkins, 157 N. Y. 1, 10, 11 (51 N. E. 257, 68 Am. St. Rep. 736, 42 L. R. A. 490), the court stated in dictum that there was no statutory reason, legal, moral or economic, why a person confined in prison should not be per mitted or- compelled to earn Ms living instead of becoming a burden on thé public to the detriment of Ms health and morals. The act at the time of defendant’s conviction, however, imposed only upon his estate, if he had any at that time, or acquired any during the term of his imprisonment, the obligation to pay for his keep.
If we adopt the judge’s view that the act is penal, some analogy may be found in the very large number of decisions which hold that no double jeopardy is created when, after conviction and sentence for a felony, the accused is tried again in a second proceeding to determine whether he is a second, third or fourth offender and, upon conviction, the sentence in the main case is vacated' and a more severe one is pronounced. 3 Comp. Laws 1929, § 17341 (Stat. Ann. § 28.1085). The courts are in unanimity that under those circumstances there is no double jeopardy. See cases collated in 58 A. L. R. 23, 82 A. L. R. 348, 116 A. L. R. 212 and 132 A. L. R. 93. The analogy goes only to the extent indicated that one convicted of a felony may after, and because of, that conviction be subjected to another trial as a second, third or fourth offender, in accordance with statutory provisions.
We regard the statutory obligation of a prisoner to pay for Ms keep and maintenance, if he has a sufficient estate, as civil rather than criminal in character. The law does not impose a personal judgment or liability against the prisoner, but provides for establishing a lien upon his estate by an ancillary proceeding in rem.
Answering defendant’s further objection, based on the Fourteenth Amendment, a close analogy may be found in the right of the State to collect cost of maintenance from the estates of insane persons who are institutionalized at public expense. The law in regard to insane persons is even more drastic in that it imposes, in addition to the in rem liability imposed upon the estates of snch insane persons as have estates, an in personam liability upon their relatives to pay for their keep. The moral difference between an insane person- and a felon is manifest, but, from a sociological point of view, their similarities are more pronounced than their dissimilarities. An insane person is mentally sick, while a felon is frequently termed socially sick, antisocial. Both require institutionalization for their own benefit as well as that of the public at large. A modern prison requires the full-time services of at least one psychiatrist. A convict is sent to prison not only for punishment and determent, but also for reformation and rehabilitation (Act No. 255, chap. 4, § 7, Pub. Acts 1937 [Comp. Laws Supp. 1940, § 17543-67, Stat. Ann. 1941 Cum. Supp. § 28.2127]). He has made it necessary for the State to keep and maintain him at a large cost. Many provisions in the prison reimbursement act seem to have been adopted verbatim from the act providing for recovery of expenses from the estates of insane persons. 2 Comp. Laws 1929, § 6894 (Stat. Ann. §14.817). The latter act provides for recovery of so much of the expenses, both past and future, from the estate of the insane person, “as may to the court appear to be just and equitable, regard being had to the claims of persons having a moral or legal right to maintenance out of the estate of such mentally diseased person.” The statute relative to the recovery of the expenses of maintenance from the estates of insane persons has been upheld by this court. In Re Lewis’ Estate, 287 Mich. 179, 185, Mr. Chief Justice Wiest, speaking for the court, thus disposed of a constitutional attack on the latter statute:
‘ ‘ Counsel for defendant stress the point that the statute does not fix the rate of reimbursement.
“It is not necessary that the statute fix the rate. The reimbursement must he reasonable in amount, and, in this instance, it is conceded that the amount claimed is reasonable.”
The prison reimbursement act is even less open to criticism on this score, for it contains a limitation of liability which the statute held constitutional in the Lewis’ Estate Case does not.
“Reimbursement shall not he in excess of the per capita cost of maintaining prisoners in the institution in which said prisoner is an inmate. ’ ’ (Act No. 253, § 4, Pub. Acts 1935 [Comp. Laws Supp. 1940, § 17667-14, Stat. Ann. § 28.1704].)
In Estate of Yturburru, 134 Cal. 567 (66 Pac. 729), the court said:
“It is as necessary to have institutions for the restraint of the insane, whether they be rich or poor, as it is to have prisons and almshouses; and these institutions for the insane are charitable only so far as the legislature makes them so. There is nothing in the Constitution inhibiting laws extending charity to people in need of it; but it is not necessary to extend charity to those who are able to - support themselves; indeed, it would be unreasonable to do so.
“A law in effect requiring that patients at the hospitals for the insane shall be there supported out of their own estates is wise and reasonable, and does not come within any inhibition of the Constitution against class legislation. The law, on the contrary, is general in its application, and recognizes no classification except such as in the very nature of things necessarily exists, and cannot he disregarded. * * * The distinction between the helpless and those able to help themselves is a natural one, and, so far as we are informed, pervades the laws of all civilized countries.”
To like effect, see Bon Homme County v. Berndt, 15 S. D. 494 (90 N. W. 147); In re Idleman’s Commitment, 146 Ore. 13 (27 Pac. [2d] 305); State v. Troxler, 202 Ind. 268 (173 N. E. 321); State, ex rel. Macey, v. Johnson, 50 Idaho, 363 (296 Pac. 588).
In far more traditional forms of action both criminal and civil, length of sentences and the amount of damages may vary materially before different judges and juries. As long as there is not an abuse of discretion and a judge remains within the limits of the law, we find there is due process. In Re Brewster Street Housing Site, 291 Mich. 313, 340, we approved of the following citation from Cincinnati, W. & Z. R. Co. v. Commissioners of Clinton County, 1 Ohio St. 77, 88, 89:
“The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.”
The law applies to all prisoners equally in a certain class. The fact that the judge is given reasonable discretionary powers, by directing him to take into consideration the legal and moral obligations of the prisoner,-does not vitiate the law. No ironclad rule can be laid down as to what each prisoner’s legal and moral obligations may be. Courts are given wide discretionary powers in awarding alimony. One person may recover a large amount in an action brought on a tort, another person similarly injured at the same time may not recover at all before a jury on account of the same tort. One person may receive a very severe sentence for a crime, while another person may receive a very light sentence for a similar offense. One person may he sentenced to a term or a fine, which he has the ability to pay and does pay, and another person similarly sentenced may not be able to pay the fine and be compelled to serve the term. All persons who have an estate are subject to the act. The amount of the liability can be definitely determined. The provision that the court is empowered to take into consideration the moral and legal obligations of the prisoner applies to all persons with estates. An abuse of discretion by a trial judge may be reviewed. We find no unreasonable classification.
The judgment of the trial court is reversed and the case is remanded to the trial court to enter judgment. The question being a public one, no costs will be allowed.
Chandler, C. J., and Boyles, North, Starr, Wiest, Bushnell, and Sharpe, JJ., concurred. | [
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Butzel, J.
(concurring). Defendant was charged with having" committed assault and rape on October 4, 1940, in the township of Dearborn in Wayne county. He was tried by a judge without a jury and convicted of assault with intent to commit rape. Complainant was of age and had been married over four years. She had previously worked in a beer tavern. As the sole ground of appeal, defendant claims that the conviction was against the great and overwhelming weight of the evidence. Possibly it was thus stated so as to give emphasis to the claim. The question should be whether or not the conviction was against the weight of the evidence, or whether guilt was established beyond reasonable doubt. .
While the claim of error necessitates a review of the testimony, we shall omit unnecessary details. Complainant testified with a great deal of positiveness to the following: that she and her husband planned to go out the night of October 4,1940; that she arranged with a neighbor to look in occasionally to see that her two-year-old child was sleeping; that, upon her husband’s failure.to return home, she went out and attempted to find him, and visited two beer gardens without any success; that she thereupon decided to return home, when defendant, accompanied by another man, drove up and agreed to help her find her husband; that they drove to several beer gardens looking for his car; that complainant only went into one tavern where she drank two glasses of wine, which did not affect her; that the search was futile and she asked to go home; that she, with defendant and his companion, all sat on the front seat of the car. Her further testimony follows. The companion left them, whereupon defendant, instead of driving to complainant’s home, proceeded in a different direction. Complainant protested and even tried to take hold of the steering wheel. She stated that they drove off a certain road “just out into the woods. ’ ’ Complainant alighted from the car and started to run away, but defendant “grabbed hold” of her. She testified that she became sick and nauseated and could not put up much of a struggle, and that he committed the crime in the back seat ,of the car. He then drove her near her home. She walked the rest of the distance. Her husband came home about 15 minutes later. She stated that she told him about the crime, and that thereupon they together drove to the police station in order to make complaint. They were told to return in the morning. She described the car, which corresponded in year and type to .the one defendant owned.
Defendant, on the other hand, claims that he did not meet the plaintiff that night nor any other night, and that the story is a complete fabrication. He further gave notice of an alibi and attempted to account for all his actions and whereabouts on the night of the alleged crime. These included events from early evening until sometime after midnight when the crime was alleged to have occurred, as well as the remainder of the night. He showed that he had been married only 20 days. He had been previously married. A number of character witnesses testified in his behalf. He, however, admitted that he had been arrested and convicted of drunkenness once in 1940 and another time a year or two prior thereto. Although he had worked as a waiter in a beer tavern, he was gainfully employed and had been for some time at the Ford Motor Company. Complainant had also worked as a waitress in a beer tavern.
Complainant did not know the third party in the automobile and, therefore, could not identify him. She was also unwilling to disclose anything about her husband’s condition. The record would indicate that he was more or less intoxicated when he came home and she was anxious to keep that fact out of the case. There was delay before the complaint was signed but that was due to the fact that it required some prior research to find the place where the alleged crime took place in order to draw the complaint. In her testimony, she stated that the crime took place on a certain road a short distance “just out into the woods.” It was shown that there were no woods off the road where she claimed the car stopped. There were only a few trees there, hut it was a dark night. She further claims that she made a struggle and also an outcry. There was no claim of bruises, scratches, or torn clothing. The story, however, is coherent and positive.
As far as the record shows and without the advantage of seeing the witnesses, we would not be much inclined to give more credence to complainant’s story over that of defendant’s, were it not for a fatal misstatement in the alibi. Defendant’s mother, wife, two sisters, brother and brother-in-law all gave testimony supporting the alibi. Defendant claimed that he returned from work about 3:30 in the afternoon, had supper with his wife, went to his mother’s later in the afternoon, where he remained until 11 or 11:30 that night, when he-went home with his wife. He only left his mother’s home that evening about 7 p.m. when he with his brother went to his sister’s to bring a stove to his mother’s, as she was moving into the house next door to the one in which she had previously lived. They borrowed a trailer for that purpose. The witnesses identified the date of October 4, 1940, as the one on which the mother had moved to the new home. The mother testified to having the electric lights changed to her name for this home, but that she did not go down to the electric light company but called them on the telephone either that day or the day before so that she could have light in the house when she moved in. The court interrogated the sister, who had previously testified that she had gone to the light company to order the light changed to her mother’s name, but now testified that her mother asked her to call up the Detroit Edison, and that she did so and her mother did the talking, and that she called from the house in which her mother was living and from which she was moving that day. She was positive that she called up by telephone, and then the court asked: “You said twice earlier that you went out and had the lights turned on,” she replied that she did it by telephone. The court became suspicious and with the consent of the attorneys, the clerk of the court was permitted to testify that he had called up the Detroit Edison Company (evidently at the judge’s request) and its records showed that the day prior to the moving, defendant’s sister had personally visited its office, had printed the mother’s name on an application and then signed her own name. While the testimony of the others to the alibi and referring to other circumstances did not go into the question of the telephone case, considerable doubt was cast on the entire alibi even though it may be claimed it did not fall even after this large hole was made in it. The judge evidently did not give any credence to it after the falsity of the testimony in regard to the changing of the lights was brought out.
The case presents difficulties. On reading the record, much depends upon the credibility of the witnesses. The crime charged is seldom one witnessed by others than the parties directly involved. People v. Whittemore, 230 Mich. 435. The general rule at common law is that it does not require corroboration of plaintiff’s testimony even when denied by defendant in order to convict defendant before a jury. People v. Miller, 96 Mich. 119. This seems to be the general rule supported by the majority of jurisdictions. See the many cases collated in 60 A. L. R. 1125.
In People v. Petty, 234 Mich. 282, 287, 288, where the charge was also assault with intent to commit rape, and the testimony of prosecutrix directly conflicted with that of defendant, we held that the court was justified in denying motion for new trial based on the claim that the verdict of guilty was against the great weight of the evidence. And in People v. Petrosky, 286 Mich, 397, 400, where the defense of alibi was interposed to a charge of breaking and entering, and, as here, only one eyewitness testified for the prosecution while defendant produced an array of alibi witnesses (who were not, however, as in this case, relatives), we held:
“The jury was not bound to believe the witnesses who testified in favor of defendant’s defense of alibi, as there was testimony to show the contrary. State v. St. Clair, 139 Wash. 428 (247 Pac. 461); and a jury may believe one witness as against many. Baugh v. State, 89 Ind. App. 283 (166 N. E. 264). It is the jury’s province to determine the credibility of all of the witnesses, including those whose testimony tends to prove an alibi. People v. Costello, 320 Ill. 79 (150 N. E. 712). Where the testimony presents a fair issue of fact for the jury and would have justified a verdict either of guilty or not guilty, the verdict is not against the weight of the evidence. People v. Pratt, 231 Mich. 243. The weight and credibility of the testimony of these various witnesses was for the jury, and its determination cannot be said to be against the overwhelming weight or preponderance of the evidence.”
An alibi properly supported by credible testimony would unquestionably have brought about an acquittal. People v. Crofoot, 254 Mich. 167.
Although the court obtained the consent of counsel before he asked his clerk to testify as to the result of the query he made and the conversation he had with the Edison Company relative to their records, and no error is claimed because of the admission of such testimony, we nevertheless frown upon such practice in a criminal case, although by itself it is not ground for reversal under the circumstances. The sole question is whether the verdict is against the weight of the evidence. The husband of the complainant was not called upon to testify; corroborating proof that she told her husband about the attack immediately after it occurred or that she and her husband at once complained to the police would be helpful. While it might be a proper desire on the part of complainant not to have her husband involved in the case, the liberty of defendant and his entire future are at stake. Her testimony in regard to the manner and the method of the assault, while it may be absolutely true, nevertheless raises suspicion. The testimony of other alibi witnesses was not disputed although it is very possible that they might have been mistaken. We appreciate that in a case of this nature, gaps in the proof and some inconsistency in the testimony frequently occur. Notwithstanding the fact that the trial judge had a better opportunity to judge the credibility of the witnesses, after a careful reading of the record, we are forced to conclude that there may be some question whether the conviction is not against the weight of the evidence. We are sufficiently satisfied that the ends of justice would be better subserved if a new trial were granted.
The conviction is reversed and a new trial ordered.
Chandler, C. J., and Bushnell, J., concurred with Butzel, J.
Boyles, J.
This case was tried by the court without a jury. The sole question is whether the proofs establish the guilt of the defendant beyond a reasonable doubt. To establish this, the people rely entirely upon the sole testimony of the complaining witness. The defense was an alibi. Six witnesses (including the defendant) testified that defendant was at his mother’s home, at a distance from the scene of the alleged offense, at the time of the alleged commission. The circuit judge caused his court clerk to make inquiry by telephone to ascertain the truth of an important part of the alibi proofs. The court then caused his clerk to be sworn and interrogated him as to what he had learned over the •telephone. This information was relied upon by the court in disbelieving the testimony of the alibi witnesses. It was pure hearsay and the defendant was not confronted with certain material witnesses or with their records and had no opportunity for cross-examination. In the trial of a criminal case by the court without a jury, the defendant should not be put in the position of having to consent to such a procedure at the suggestion of the court or take the chance of opposing the court by objecting to it. The right of a defendant in a criminal case to be confronted with witnesses is an important right which should be safeguarded by the court. Failure to do so is not overcome by consent of counsel.
“It is elementary that a person may not be convicted by testimony taken outside the court room, when defendant is not present to confront the witnesses. * * *
“Where the state of the evidence is such that the uncorroborated testimony of the prosecuting witness and that of defendant are in direct conflict upon the very issue of fact the resolution of which determines guilt or innocence, and the trier of the facts, on his own initiative, requests pérmission of defendant’s counsel to consult opinion evidence (a psychopathic examination and report), consisting of conclusions of fact drawn by one (the court psychiatrist) who was not an eyewitness of the alleged crime, leaving defendant’s counsel faced with the embarrassing dilemma of either compelling respect for his client’s constitutional rights to be confronted by the witnesses against him from the judge as trier of the law, but simultaneously running the risk of antagonizing and arousing the suspicion of the same judge as trier of the facts, the conclusion is irrestible that the judge did entertain at least a reasonable doubt of defendant’s guilt.” People v. Mayrand, ante, 225.
This requires reversal and a new trial which is granted.
North, Starr, and Sharpe, JJ., concurred with Boyles, J. Wiest, J., did not sit. | [
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] |
Sharpe, J.
(dissenting in part). This is an appeal from an order dismissing a bill of complaint.
Plaintiffs are minority stockholders of National American Furs, Inc. On February 13, 1940', they filed a bill of complaint in the circuit court of Jackson county against William Addison, Stanley Addison, Reamer W. Wigle, National American Furs, Inc., Addison Furs Corporation, and Addison Silver Black Fox Farms, Inc.
In the bill of complaint, it is alleged that defendant corporations were organized for similar purposes, i.e., to buy, sell, breed, own, ranch and deal in foxes and other fur-bearing animals; that the individual defendants are the principal officers and directors of defendant corporations and have the control and management of the National American Furs, Inc.; that defendants Addison are also the controlling stockholders in the other defendant corporations; that defendants Addison had founded and operated a fox farm under the “pool system” and plaintiffs were originally sold “breeders” and then induced to accept stock in the National American Furs, Inc., which plaintiffs were given to understand was the sole owner and operator of the former business; that plaintiffs were without information as to the previous organization of the other defendant corporations until shortly before the bill of complaint was filed; that on January 25, 1939, the individual defendants procured from the National American Furs, Inc., a chattel mortgage for $16,302.37 as security for alleged s urns due the defendants for advances claimed to have been made to the company; that on April 20, 1939, the individual defendants procured a second chattel mortgage on the property of the National American Furs, Inc., the amount of which is not stated; that these defendants intend to procure a default of these mortgages and take over the assets of the corporation by, foreclosure of the mortgages; that the individual defendants are using the Addison Furs Corporation as an instrumentality to deplete and dissipate the profits and earnings of the National American Furs, ■Inc.; that officers of Addison Furs Corporation and Addison Silver Black Fox Farms, Inc., are identical; that the individual defendants are allowing these two corporations, which are owned by these defendants, to take over the property and assets of the National American Furs, Inc., as the true owners of the business ; that the Addison Furs Corporation, Inc., claims to be operating as a holding company for the National American Furs, Inc.; that defendants have brought about pretended sales of prime foxes and pelts from the National American Furs, Inc., to themselves at insufficient prices; that defendants have refused to answnr any inquiries with regard to the claimed sales ; that defendants are engaged in a systematic plan or conspiracy to deceive and defraud the stockholders of the National American Furs, Inc.; that the annual statements to stockholders of the National American Furs, Inc., have been insufficient and incomplete; that statements of corporate affairs furnished stockholders have been inaccurate and misleading; that defendants acting in concert prevented the stockholders from discussing matters of concern to the corporation at their annual stockholders’ meetings in 1938 and 1939; and that defendants through the Addison Silver Fox Farms, Inc., and Addison Fur Corporation are engaged in a competitive business with the National American Furs, Inc., to its loss and detriment.
The bill of complaint contains a prayer for an order of discovery and that defendants be ordered to appear for examination and to produce their books and records; for an injunction restraining the individual defendants from disposing of any of the real or personal property of the defendant corporation; and for the appointment of a receiver.
On February 13,1940, plaintiffs filed a petition for discovery by deposition under Court Rule No. 41' (1933). Tbe information asked for was as follows:
“1. Nature and extent of all business transacted between all of tbe defendant corporations and tbe defendant officers and directors.
‘ ‘ 2. Itemized accounting of the following items:
(a) Direct ranch expense.
(b) Indirect ranch expense.
(c) Administration expense.
(d) Officers’ and directors’ salaries.
(e) Livestock.
(f) Sums alleged to be due officers.
‘ ‘ 3. Nature and extent of the operations and business conducted by the Addison Furs Corporation, and the Addison Silver Black Fox Farms, Inc.
“4. Who has title to the real estate, equipment and other personal property?
“■5. When were the books of the defendant corporations and particularly the books of the National American Furs, Inc., audited? Who made the audit, and produced the last audit and statements of said corporation?
‘ ‘ 6. What disposition has been made of the profits earned by the National American Furs, Inc., for the past 12 years ?
‘ ‘ 7. Have income tax returns been filed for the National American Furs, Inc., the Addison Furs Corporation and the Addison Silver Black Fox Farms, Inc., and produce the duplicate copy of such income tax returns for the years 1935,1936,1937,1938 and 1939 ?
“8. State the amount of livestock or pelts sold, transferred or assigned to Stanley Addison.
‘ ‘ 9. Produce all books of original entry, including the stock register and the minute book.
“10. Who prepared the chattel mortgages on the livestock ? Was the same authorized by resolution of the board of directors of the National American Furs, Inc., and if so, produce the minutes of the meeting at which the alleged resolutions were passed.
‘‘11. Who has had charge of the books and records of the National American Furs, Inc., the Addison Furs Corporation, and the Addison Silver Black Fox Farms, Inc., and under whose supervision and direction have the said books been kept?
“12. Is the National American Furs, Inc., indebted to any other persons, firms or corporations other than the officers? Are there any debts other than current bills and are any such bills past due ? ’ ’
An order was entered that the defendants show cause why an injunction should not be granted and why a temporary receiver should not be appointed.
On February 28, 1940, the defendant National American Furs, Inc., filed motions to vacate the temporary injunction, which had been issued; to vacate the motion for discovery by deposition; and to dismiss plaintiffs’ cause of action. The reasons alleged in these motions are that the bill of complaint does not state a cause of action; that the temporary injunction is without the authority and jurisdiction of the court; that the bill of complaint is designed to harass and impede the defendants in the management of the affairs of the corporation; that the motion for discovery does not clearly show that discovery is necessary ; that the scope of the examination of the books and records of defendant corporations as prayed by plaintiffs seeks information which is within the knowledge of plaintiffs; that plaintiffs have had knowledge of the matters complained of for two years; that plaintiffs do not own or represent two. per cent, of the outstanding capital stock of the National American Furs, Inc., and the court is precluded from making any such order by section 45 of the Michigan general corporation act (Act No. 327, § 45, Pub. Acts 1931, as amended by Act No. 194, Pub. Acts 1935 [Comp. Laws Supp. 1940, § 10135-45, Stat. Ann. § 21.45]); and that the bill of complaint is fa tally defective by reason of its being multifarious and because no demand has ever been made upon the corporation or any of the directors to bring the present suit.
The trial court denied plaintiffs’ petition for production of books and papers and for discovery by deposition under Court Rules Nos. 40 and 41 (1933); and also dismissed plaintiffs’ bill of complaint. Plaintiffs appeal.
Court Rule No. 40 (1933) relates to the production of books and papers. It provides for the discovery of papers or documents in the possession of or under the control of the defendant which may be necessary to enable the plaintiff to declare or answer any pleadings of the defendant, and to prepare for trial of the cause. Court Rule No. 41 (1933) relates to discovery by deposition. This rule provides that any court of record may, in its discretion, in any civil action therein pending at any time before trial, authorize the taking of the depositions of the opposite party, or of any person who for such opposite party has verified a pleading or an affidavit attached thereto.
In the case at bar the petition for discovery by deposition was verified only by the attorneys for plaintiffs, but the petition does state that it is based “upon the bill of complaint heretofore filed,” which bill of complaint was sworn to by plaintiffs.
Under Court Rule No. 40 (1933) if one seeks production and discovery of documents in order to prepare for trial, it must be alleged and appear that the information sought cannot be obtained at the trial of the case by subpoena duces tecum. Gemsa v. Dorner, 256 Mich. 195. There is no such showing in this case and the trial court was correct in denying discovery for this purpose under Court Rule No. 40.
With respect to discovery for the purpose of enabling the petitioner to plead, the rule is well stated in Scarney v. Clarke, 276 Mich. 295, 303, where we said:
“It seems to us that the very purpose of that portion of the rule here involved is to permit a party to seek information essential to the framing of his pleading. ’ ’
In that case, in further explanation of the rule, we also said:
‘ ‘ This is not a case where defendants have made a showing that plaintiffs do not require the documents for the purpose claimed; neither does it seek the production of ‘confidential or privileged communications, ’ nor is it one ‘ to direct fishing expeditions into private papers on the possibility that (it) may disclose evidence’ of liability, * * * but on the contrary, good faith and probable cause abundantly appear.”
It is urged by defendants that minority stockholders may not compel an examination of books and records of corporations by discovery. Act No. 327, § 45, Pub. Acts 1931, as amended by Act No. 194, Pub. Acts 1935 (Comp. Laws Supp. 1940, § 10135-45, Stat. Ann. § 21.45), provides that stockholders holding two per cent, of stock are entitled to the statutory right of examination. The above section of the corporation act does not militate against discovery under the court rules. The right under the two per cent, clause in the statute is a right of a shareholder as an owner of the business to inspect the records of the business, but the right of discovery under Court Rule No. 40 (1933) is the right of a litigant whether he is a stockholder or not. One right is based on litigation, while the other is based on ownership of stock.
The application of Court Rules Nos. 40 and 41 (1933) must rest largely in the sound discretion of the trial court. In the case at bar, the information sought would require a complete audit of the books of all three corporations. There has been no showing made that the books and records of the Addison Purs Corporation and the Addison Silver Black Pox Farms, Inc., contain any information helpful to plaintiffs or necessary to enable them to file a declaration or to prepare for the trial of the cause. The trial court was right in denying the motion insofar as these two corporations are concerned.
In the case at bar, the inquiry should be limited to the financial condition of the National American Purs, Inc., together with such agreements and resolutions entered into by its board of directors. But the rights above enumerated are contingent upon plaintiffs being litigants in a suit wherein the corporation is involved. This brings us to a discussion of the order of the trial court in dismissing plaintiffs ’ bill of complaint.
As has been heretofore said the defendants urge that plaintiffs’ bill of complaint does not state a cause of action. The trial court held that “eliminating from the bill of complaint the bare conclusions of the pleader, the bill does not make out a case for the equitable relief prayed.”
On a motion to dismiss the bill of complaint, all properly alleged facts must be taken as admitted. Marvin v. Solventol Chemical Products, Inc., 298 Mich. 296.
“Our practice neither requires nor encourages the needless repetition of allegations. ■ A plain and clear statement of the facts constituting the wrong complained of is sufficient; the object of the declaration being to apprise the defendant and the court of the grounds of the pleader’s claim, to give the defendant fair notice of the case he is called to meet. It is neither necessary nor proper to allege matters of evidence in a pleading; only ultimate facts should be alleged, not the circumstances which tend to prove them,” McDonald v. Hall, 193 Mich. 50.
“The defendant’s counsel is correct in his contention that the facts upon which the claim of fraud is based must be alleged, rather than conclusions. But it is sufficient if the substance of the transaction and the result is alleged.” Watson v. Wagner, 202 Mich. 397.
£ £It is not enough to aver that acts done or intended are unlawful or illegal. The acts complained of must be definitely and issuably shown, so that if the facts themselves should be admitted „the court can draw legal conclusions. An averment that a party has acted unlawfully, without showing what he did, is not an averment of issuable facts.” Schwab v. Mobley, 47 Mich. 572.
Plaintiffs rely upon the following allegations to state a cause of action:
That on January 25, 1939, the National American Purs, Inc., gave a chattel mortgage in the sum of $16,302.37 on all of its livestock which represents the principal asset of the corporation to the individual defendants; that plaintiffs have no information as to the validity of the advances made by the individual defendants to the company; that all sums earned by the corporation have been used in the payment of salaries to officers and employees; and that the funds of the corporation have been dissipated.
An examination of the above allegations concerning the giving of the chattel mortgage discloses nothing unlawful. A director is not prohibited from loaning money to the corporation of which he is a director and being secured for such loan; and it may well be that the earnings of the corporation were not more than enough to pay the salaries of the officers and employees. The charge of dissipation of funds is a mere conclusion. It is not based upon any specific allegation in the bill of complaint.
Another paragraph in the bill of complaint charges that the defendants are employing divers methods for dissipating the funds of the National American Purs, Inc. This statement is a mere conclusion. There are no facts stated from which such a conclusion could be drawn. Another allegation is that for the past 12 years the business of the National American Purs, Inc., has been conducted for the benefit of the individual defendants and that the corporation has not paid any dividends. The above allegation is insufficient to give defendants fair notice of the issue they are called upon to meet. See McDonald v. Hall, supra. Nor is the failure to pay dividends a sufficient cause in itself for the dissolution of a corporation or the appointment of a receiver.
Other allegations are that the other corporations are being used as a subterfuge to deplete the earnings of the National American Purs, Inc.; and that the Addison Purs Corporation, Inc., is being operated as a holding company for the National American Purs, Inc. It is true that the words ‘ ‘deplete ’ ’ and ‘ ‘ dissipate” imply wrongdoing, but there are not facts alleged to show wherein the wrongdoing lies or the manner used to accomplish the so-called wrongdoing. Such allegations are mere conclusions and insufficient basis for a cause of action.
We have examined minutely the entire bill of complaint and find that it is based upon “information” and “belief ” fortified by conclusions of law and fact. It does not'contain sufficient facts from which a court may draw legal conclusions and therefore fails to state a cause of action. The trial court was right in dismissing the bill of complaint. It follows that plaintiffs ’ bill of complaint having been dismissed, they cease to be litigants; and having no suit pending in court, they may not invoke the power contained in Court Rules Nos. 40 and 41 (1933).
The decree of the trial court should be affirmed, with costs to defendants.
North, J.
The two questions presented by this appeal are: 1. Should the trial judge’s order denying plaintiffs’ motion for discovery be affirmed? 2. Should the trial judge’s order granting defendants’ motion to dismiss plaintiffs’ bill of complaint be affirmed?
Justice Sharpe has written for affirmance of each of these orders. On the ground that the record before us does not disclose that the denial of plaintiffs’ motion for discovery was an abuse of the discretion vested in the trial court, I concur in affirmance of the order entered. But I am unable to agree in affirmance of the order dismissing plaintiffs’ bill of complaint.
Fundamentally the dismissal of the bill of complaint by the trial court was on the ground that the allegations were largely conclusions of the pleaders and did not allege sufficient facts or. circumstances, even taken as true, to constitute a cause of action against defendants or any of them. The contents of the bill of complaint are fairly and quite fully stated in the opinion of Justice Sharpe; though it should also be added that plaintiffs specifically allege the following:
“Plaintiffs further state that all of the facts concerning the operations of all of the defendant corporations over a period of the last 12 years are in the exclusive possession of and under the control of the defendants; that it is necessary in order to prosecute this suit and prepare pleadings and prepare for trial, that discovery be had and that the defendants and their records be examined and that depositions be taken. ’ ’
In recent years, at least, this Court has taken a liberal attitude in passing upon sufficiency of pleadings. On the law side of the court it is provided: “The declaration shall .contain such specific allegations as will reasonably inform the defendant of the nature of the cause he is called upon to defend.” Court Rule No. 19, § 1 (1933). As to pleadings generally it is provided by rule: “All pleadings must contain a plain and concise statement without repetition of the facts on which the pleader relies in stating his cause of action or defense, and no others. ’ ’ Court Rule No. 17, § 1 (1933). In the instant case plaintiffs’ claimed right to relief is based upon alleged fraud and misconduct of defendants. Plaintiffs’ suit is planted on the equity side of the court because they seek an accounting and injunctive relief. In a case of similar character wherein the bill of complaint was dismissed in the circuit court on the application of defendants, we reversed the order of dismissal and said:
“The facts upon which the claim of fraud is based must be alleged, rather than conclusions, but it is sufficient if the substance of the transaction and the result is alleged.” Watson v. Wagner (syllabus), 202 Mich. 397.
In determining the sufficiency of a bill of complaint, consideration should be given to the character of the plaintiff’s alleged cause of action and to such circumstances as whether the records and knowledge of the facts on which the plaintiff relies are in his possession or largely, if not exclusively, in the possession of defendant. In the instant case there can be no question but that in a very large measure the defendants, and not the plaintiffs, are the ones possessed of knowledge of detailed facts and circumstances upon which the merits of plaintiffs’ case must depend. As noted above the case is so pronouncedly of that character that plaintiffs allege in their bill of complaint their inability to plead fully all the facts, and their need of discovery.
With the contents of the bill of complaint in the instant case such as are stated in the opinion of Justice Sharpe, and as they appear in the record, defendants should have been required to answer; and the trial court was in error in entering an order dismissing the bill of complaint. The case is remanded to the trial court for the purpose of vacating the order of dismissal and for further proceedings therein. Since neither party fully prevailed on this appeal no costs will be awarded in this court.
Boyles, Starr, Wiest, Butzel, and Bushnell, JJ., concurred with North, J. Chandler, C. J., did not sit. | [
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] |
Bushnell, J.
Plaintiff Ashbaugh is the receiver of the First National Bank at Pontiac, which acted as a guardian for the defendants during their minority and had control of their estates. During the progress of the guardianship, the estates of the three minors, although having a net value of $80,000 at one time, did not include sufficient cash for their maintenance. The principal asset of the estates was an apartment house in the city of Highland Park, which was subsequently lost through mortgage foreclosure. The bank advanced money to itself as guardian for the' maintenance of the several wards, the upkeep of their real property, and the payment of taxes thereon.
A probate court order, dated August 13, 1935, allowing the guardian’s final account, shows an overdraft representing advancements to the wards in the sum of $9,669.92. This order details the allocation of this overdraft to each of the several defendants. The probate court in this order impressed liens upon the real property belonging to the several defendants in the respective amounts found due the guardian. This order was recorded by direction of the probate court in the office of the register of deeds. All of the wards have since attained their majority.
The defendants not having repaid the moneys advanced by their former guardian, plaintiff filed a bill in the circuit court of Oakland county on June 9,1939, for the purpose of foreclosing and satisfying the “lien.”
Defendants challenged the validity of the “lien” on the ground that the probate court had no authority to impose a lien, and also contended that, if such advances were made by the guardian during their minority, they were voluntary advances for which an equitable lien cannot now be imposed.
The trial judge stated that it would have been better practice for the guardian to have petitioned the probate court for leave to mortgage the property of the minors as security for needed advancements. The trial judge held, however, that:
“It is the opinion of this court that equity and good conscience, as well as the protection of all minors and wards in other eases, now and in the future, where necessity requires advancement of moneys for their welfare or interest, justifies action of this court of chancery in declaring a lien on the real estate for the moneys so advanced in unquestioned good faith. * * *
“It is, therefore, the opinion of this court that equity is only carrying out the intention of the parties in holding that a decree should be entered declaring a lien upon the respective minors’ interest in the property for the amounts as set forth in the final probate court order, and declaring such amounts due and payable to the plaintiff, together with interest at five per cent, from the date of said order.”
A decree was entered providing for foreclosure of the “lien” thus imposed.
The jurisdiction and powers of the probate court are derived entirely from the statutes and probate courts are incapable of dealing completely with ordinary rights. They may not divest nor decide upon vested rights of property. In re Estate of Fraser, 288 Mich. 393. See, also, In re Chamberlain’s Estate, 298 Mich. 278.
Appellee argues that the court implied in Ely v. Dewey, 260 Mich. 38, that a probate court may impress a lien upon real estate. Such power cannot arise by implication. There being no express statutory provision giving the probate court such power, an order of that court impressing a “lien” upon real estate is a nullity, and the foreclosure of such “lien” must be denied.
In the alternative, plaintiff asked:
“That the court will, if it does not find a lien to be created, decree that the said defendants hold the title to said property in trust for the benefit of this plaintiff, to the amount which the court finds the defendants respectively owe to the said plaintiff. ’ ’
A full discussion of the requisites of an equitable trust may be found in Union Guardian Trust Co. v. Emery, 292 Mich. 394, and need not be repeated here.
In Capen v. Garrison, 193 Mo. 335, 349, 350 (92 S. W. 368, 5 L. R. A. [N. S.] 838), Capen advanced money to pay off an incumbrance on a ward’s property and took as security a deed of trust executed by the curator (guardian), with the sanction of the probate court. The Missouri statute did not permit a curator, even with the sanction of the probate court, to mortgage his ward’s lands for the purpose of borrowing money to discharge a pre-existing incumbrance. Capen claimed the right to an equitable lien. The court pointed out the prescribed boundaries of equitable liens, saying:
“It is not a limitless remedy to be applied according to the measure of the conscience of the particular chancellor any more than, as an illustrious law writer said, to the measure of his foot. * * * The doctrine of equitable lien applies no more in favor of a mere volunteer than does the doctrine of subrogation. In vain would a statute prescribe the limit of a curator’s power to mortgage his ward’s property if a court of equity should, by giving it another name, whether it be subrogation or equitable lien, invest an unauthorized deed with substantially the same effect it would have had if it had been expressly authorized by the statute.”
Plaintiff in the instant case has am adequate remedy at law and is not entitled to an equitable lien under the facts presented in this record. The circuit court in chancery cannot act as a substitute for the probate court. Dickinson v. Seaver, 44 Mich. 624.
The decree of the circuit court imposing an equitable lien and ordering a sale of the property is vacated, with costs to appellants.
Chandler, C. J., and Boyles, North; Starr, Butzel, and Sharpe, JJ., concurred. Wiest, J., did not sit. | [
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North, J.
This is an appeal from an order of the circuit judge dismissing contempt proceedings instituted by plaintiff against defendant. The alleged contempt was defendant’s failure to make certain payments of money to plaintiff as provided in an amended decree of divorce. It is agreed that such defaulted payments total $9,810. The circuit judge refused to find defendant guilty of contempt on the ground that the provisions of the decree were in the nature of a property settlement enforceable as an ordinary money decree, but not by contempt proceedings. His holding was: “that the decree in this case contains no provision which is clearly and unequivocally for the support and maintenance of the minor children, nor does it contain any provision for payment of alimony as such to the plaintiff.” Plaintiff has appealed.
Prior to November 12,1929, these parties had separated and were then living apart from each other. On the date noted they entered into a “separation agreement.” The material portions of this agreement are printed in the margin, hereof. For refer enee purposes we have italicized certain provisions. Two children were born of this marriage. At the date of the property settlement the son, Donald, was 10 years of age, and the daughter, Alice, 8. On January 7, 1930, plaintiff filed a bill for divorce. Personal service was obtained on defendant, his default for nonappearance entered, testimony taken, and a decree of divorce granted plaintiff April 18, 1930. Plaintiff has not remarried. The decree gave plaintiff “the care, custody and maintenance of said minor children;” and contained the following:
“And it is also further ordered, adjudged, and decreed, that the said Marian Sturgis pay to the said Gladys G. Sturgis the sum of One Dollar.
“And it is further ordered, adjudged and decreed that the provision made for the said Gladys G. Sturgis herein shall be in lieu of her dower in the property of her husband, the said Marian Sturgis, and in full satisfaction of all claims that she may have in any property which the said Marian Sturgis owns or may hereafter own, or in which he has or may hereafter have any interest and that he shall hereafter hold his remaining real estate free, clear and discharged from any such dower right or claims.”
This original decree made no reference to the property settlement contained in tbe “separation agreement,” nor did tbe decree contain any specific provision for alimony or payments by defendant for tbe support and maintenance of tbe minor children. On May 12,1932, having previously beard tbe respective parties, tbe court entered an amended decree in which were embodied tbe terms of tbe separation agreement of November 12,1929; and after having so provided tbe amended decree concluded as follows:
“Tbe provisions herein contained for tbe said Gladys G. Sturgis shall be in lieu of dower in the property of tbe said Marian Sturgis, and in full satisfaction of all claims that she may have in any property which tbe said Marian Sturgis owned or may hereafter own.”
On this appeal the two questions with, which we are confronted are: (1) Does the amended decree, separate and apart from the provisions of the property settlement, award alimony to plaintiff; and (2) Does the amended decree contain a provision for the support and maintenance of the minor children which can he separated from the property settlement?
“Divorce decree may join award for alimony with award in lieu of dower, but if so awarded in lump sum, contempt for nonpayment thereof may not be adjudged.” Harner v. Harner (syllabus), 255 Mich. 515.
“Where a decree is entered in approval of and pursuant to a property settlement, its entire provision in that respect must be considered, and for the plaintiff to resort to contempt proceedings it must clearly appear that a stated allowance is made therein to her for alimony alone.” Shafer v. Shafer, 257 Mich. 372.
Tested in the light of the foregoing decisions and others of like character which might be cited, we think it is clear that the property settlement embodied in the amended decree is of such a character that it is not possible to find in it a provision which is for alimony alone, as contradistinguished from the provisions for the property settlement between plaintiff and her husband. It follows that the circuit judge was clearly right in holding contempt proceedings were not available to plaintiff incident to her complaint that defendant had defaulted in payment to her of a specified sum as alimony.
“A divorce decree, which plainly states the award to be in lieu of dower and in satisfaction of property claims, is not enforceable by contempt proceedings.” Belting v. Wayne Circuit Judge (syllabus), 245 Mich. 111
But the record is different as to the payments ordered to be made to plaintiff for the support and maintenance of the minor children. In this particular we think within certain limitations it clearly and distinctly appears that a definite portion of each of the $150 monthly payments was considered and designated as the decreed contribution of defendant to be paid to plaintiff monthly towards the support and maintenance of the two minor children. The italicized portion of the property settlement embodied in the amended decree in part reads:
“It is mutually agreed, however, that at any time both of said children shall become self-supporting and no longer dependent on first party, that then and in that event the said monthly payments [of $150 each] shall be reduced to the sum of $100. * * *
“Second party further agrees to pay all doctor, dental and medical bills for the said first party and said children incurred in each year in excess of the total sum of $100. ’ ’
From the foregoing we think it clearly appears that the decree as drafted contemplated and embodied a separate and distinct provision for payment by defendant to plaintiff of $150 per month and that of this amount $50 per month was for the support and maintenance of the two minor children. And further, that there was the specific provision that in event the expense of medical or dental care for “first party and said children” in any one year exceeded $100, such excess should be paid by defendant to plaintiff. It may be noted that a claim of this latter character is made in plaintiff’s present petition. Notwithstanding these provisions for the care and maintenance of the two minor children are interspersed with other provisions of the property settlement between plaintiff and defendant, we think they are by the terms of the agreement sufficiently ascertainable as distinct and separate provisions having to do alone with the support and maintenance of the minor children, and as such their nonpayment amounts to contempt of court.
“A monthly allowance decreed to a wife for the support and maintenance of a child in a suit for a divorce is ‘alimony’ within the meaning of Act No. 230, Pub. Acts 1899 (3 Comp. Laws 1929, § 13910 [Stat. Ann. § 27.511]), authorizing the enforcement of a decree for alimony through imprisonment for contempt.” Brown v. Brown (syllabus), 135 Mich. 141.
It is much stressed in plaintiff’s brief that in the present proceedings the parties entered into a so-called stipulation of facts in the circuit court in which it was recited that the payments which defendant has failed to make were “for the support, education, and maintenance of the said minor children from the date of said decree to and including May, 1940; ’ ’ and from this it is strenuously urged that plaintiff is entitled to prosecute contempt proceedings for the whole amount unpaid by defendant. With this we cannot agree. The legal effect of a decree entered cannot be altered by a stipulation of facts subsequently agreed upon by the respective parties. Instead, the decree of the court stands for an adjudication in accord with the provisions therein contained.
“Where a decree is complete and unambiguous in itself, extraneous matters cannot be resorted to for the purpose of giving it a meaning which its language, without such help, would not carry.” Belting v. Wayne Circuit Judge, supra.
Nor are we in accord with the contention of defendant that the trial court was without jurisdiction to modify the terms of the original decree by subsequently entering an amended decree. As applied to a property settlement this contention would be sound, in the absence of some condition such as fraud which would justify the modification of a decree entered in consequence thereof. Stoutenburg v. Stoutenburg, 285 Mich. 505. But provisions in a decree of divorce for the care, custody and maintenance of minor children are subject to modification by an amended decree as may be required by a change of circumstances or the welfare of such minor children. See McFarlane v. McFarlane, 298 Mich. 595; Winter v. Winter, 270 Mich. 707; and West v. West, 241 Mich. 679. We quote two of the headnotes from the latter case:
“In Michigan, husband and wife, during the pend-ency of a suit for divorce, may agree upon a property settlement, and, in the absence óf fraud, duress, or mutual mistake, be bound thereby.
“Parents of a minor child requiring maintenance may not, by any agreement, take from the court the power, in case of divorce, to decree maintenance of the child. ’ ’
The parties have stipulated that the older one of the two children continued to live with plaintiff and continued in school or college until April 15, 1940; and the younger one continued to live with plaintiff and attended school or college until May 18, 1940. Under the terms of the decree the $50 a month for the support of the children continued until the latter one of these two dates. While the stipulation discloses that from and after November, 1931, defendant paid to apply on the $150 monthly instalments $5,710, the exact dates or amounts of the respective payments do not appear. For that reason it is impossible to determine for how many .of the months since November, 1931, defendant has failed to pay $50 or more under the decree. As to such defaults in making monthly payments of $50 plaintiff is entitled to prosecute the contempt proceedings. If at any time the monthly payments have been in excess of $50 per month such excess payments should be construed as applying on the $100 monthly instalments, decreed for plaintiff’s use, and not applied as payments of accrued monthly instalments of $50 for the support and maintenance of the minor children. Because of the inadequacy of the record before us, the case must be remanded for further consideration by the trial court and determination in accordance herewith.
It is so ordered; but since neither of these parties has fully prevailed on this appeal, no costs will be awarded.
Chandler, C. J., .and Starr, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred with North, J.
‘1 Separation Agreement
“It is tile intention of tlie patties hereto to make a full and complete settlement of their property and other rights, hence this agreement: * * *
“The first party [plaintiff] hereto is living and residing with the said children in the dwelling property known ánd described as 616 West Madison street, in the city of Ann Arbor, Michigan. Second party [defendant] hereby agrees and it is understood that the first party shall have as her sole and separate property all of the household furniture and furnishings and all personal effects now situate and being in and upon said dwelling property, and the second party does hereby convey and grant unto her all of his right, title and interest therein.
“The second party does hereby further agree that prior to date of July 1, 1930, he will purchase for and cause to be conveyed to first party, subject to certain agreements hereinafter mentioned, a dwelling property, the purchase price of which shall not exceed $9,500, except at the option of second party. It is further agreed that said dwelling property shall be selected and determined' upon by the mutual agreement of the parties hereto. It is further understood and agreed that second party shall also purchase and furnish certain articles of household furnishings necessary for the furnishing of said dwelling property in. addition to the household furniture and furnishings now in use in the home at present oeeupied by first party and the said children. It is further agreed that the second party shall pay all taxes and assessments when they shall become a lien on said property. Second party also agreed to pay all necessary fire and wind insurance premiums for the protection of said dwelling. Second party further agreed that he will pay for and provide all necessary major, general upkeep and repair items for said dwelling.
“It is further mutually agreed that should the house be sold and the money held in income investments, that the income shall be applied toward the monthly payments or toward the expenses of said children.
“In the event of the decease of the first party, it is mutually agreed that all property transferred herein or the proceeds therefrom, is to be divided equally between the above-mentioned children and they to come into possession of their share upon their twenty-third birthdays respectively.
“Second party further agrees to pay to first party the sum of $150 per month on the first day of each and every month hereafter and second party shall continue to make said payments until the said two children shall have attained the age of 16 years and also for an additional period so long as either of said children shall attend a school or college. It is mutually agreed, however, that at any time both of said children shall become self-supporting and no longer dependent on first party, that then and in that event the said monthly payments shall be reduced to the sum of $100. It is understood and agreed, however, that in the event that the parties hereto shall be divorced, and first party shall remarry, that the said second party shall no longer malee said monthly payments to first party and shall only he obligated to adequately pay all necessary living and schooling expenses for the said children.
‘ ‘ Second party further agrees to pay the rental for such residence property as first party and said children shall occupy prior to the purchase of the said dwelling property hereinbefore mentioned. Second party further agrees to pay all doctor, dental and medical hills for the said first party and said children incurred in each year in excess of the total sum of $100. Provided, however, that in the event of the remarriage of the first party, that second party shall not be liable for such personal bills.
“It is mutually agreed that first party shall have the privilege of renting any rooms or portion of said dwelling property she may desire and shall be entitled to the income therefor in addition to other payments to be made by second party.
‘ ‘ Second party hereby agrees that in the event of his death before the terms of this agreement are fully carried out, that then and in that event the same shall be a charge upon his estate.
“First party hereby agrees that should the dwelling property hereinbefore mentioned be abandoned and no longer personally occupied by her, that then and in that event said property shall be sold and the proceeds of such sale shall be reinvested for the benefit of the said two children.
“It is further mutually agreed by the parties hereto in consideration of the premises that from and after date hereof neither shall owe to the other any duty whatsoever because of the existing marital relations between them and that except as herein provided, neither of said parties shall have any right, title or lien of any nature whatsoever in or to any property, either real or personal, which either of the said parties may hereafter acquire or become possessed of.
"In further consideration of the premises, the first party does hereby expressly agree that in the event that either of the parties hereto shall apply for or institute any action for divorce against the other, that no claim or demand for alimony shall be made by said first party of the second part [party?]." | [
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] |
Bird, J.
In April, 1916, the county of Oakland voted to raise a million dollars for the construction of certain highways. Among those to be constructed was its portion of what is known as the “Saginaw Turnpike” extending from Detroit to the city of Saginaw, provision having been made therefor by Act No. 334, Pub. Acts 1913 (1 Comp. Laws 1915, § 4851 et seq.). That portion of the road lying between Parshalls crossing and Drayton Plains, a distance of about three-quarters of a mile, is not yet constructed. This strip extends along the right of way of the Detroit, Grand Haven & Milwaukee Railway and crosses the railway twice within that distance. For the purpose of eliminating these two grade crossings two parcels of land were purchased by the county road commissioners north of the railroad and an attempt was made to purchase the remaining parcel of defendant company in order to carry the highway on the north side of the railway. Being unable to agree with defendant for its 3.07 acres of land the county road commissioners filed a petition in the probate court to condemn it, under the authority of Act No. 283, Pub. Acts 1909 (1 Comp. Laws 1915, § 4287 et seq.). Three commissioners were appointed by the probate judge in response to the petition, and after an inspection of the premises, and a hearing as to the necessity and value, they made the following report:
“That we find that it is necessary that said parcel of land described in said petition, filed herein and hereinbefore described, owned by said Pittmans & Dean Company, is necessary to be taken for highway purposes as prayed for in said petition and for road purposes by said board of county road commissioners of Oakland county, and further, as therein described, that we assess the damages to be paid by said board of county road commissioners of Oakland county to the said Pittmans & Dean Company, as compensation for the taking of said parcel of land described in said petition, at the sum of fifteen hundred ($1,500) dollars.”
This report was subsequently confirmed by the court. Defendant’s officers feeling aggrieved at this.finding asked for and obtained a writ of certiorari from this court to review the proceeding.
At the outset plaintiff questions the remedy chosen by defendant to review the proceedings in this court. The contention is that inasmuch as Act No. 283, Pub. Acts of 1909, makes no provision for a review of such proceedings either in the circuit court or in this court it is controlled by section 14145, 3 Comp. Laws 1915, which provides that:
“In all cases not specifically prohibited by statute, any person aggrieved by any order, sentence, decree or denial of the judge of probate, may appeal therefrom to the circuit court for the same county,” etc.
Defendant’s answer to this point is that the foregoing provision is substantially a re-enactment of section 669, 1 Comp. Laws, as amended by Act No. 238, Pub. Acts 1911, which has been in existence for many years, and has been held by this court, on several occasions, to be inapplicable to special proceedings to condemn land; that no material change having been made in this provision when it was inserted in the judicature act, it should receive the same construction as did the previous one, in the following cases: United States Gypsum Co. v. Kent Circuit Judge, 150 Mich. 668; Stapleton v. Macomb Circuit Judge, 151 Mich. 210; Hartz v. Wayne Circuit Judge, 164 Mich. 231.
We think counsels’ view that the provision is not applicable to this proceeding is the proper one. The act having failed to provide for a review in proceedings under- it, it is reviewable by writ of certiorari. "
It is argued that the award is invalid and ought to be set aside for constitutional and statutory reasons. The important statutory objection assigned is that, the provisions of the law were not observed in that, the report of the commissioners does not show that they passed upon the necessity of the proposed road. The statute in this respect requires that:
“On the day of hearing, the court shall hear the parties and appoint three disinterested persons commissioners, * * * whose duty it shall be to determine the necessity of such proposed road and the necessity for taking each parcel of land described in the petition therefor, and if they shall decide that it is necessary, then to appraise the damages to be paid as compensation for the taking of each such parcel therefor * * 1 Comp. Laws 1915, § 4359.
It will be noted that this provision of the law requires a finding (a) That the proposed road is necessary; (6) that the taking of each parcel of land is necessary; (e) that if found necessary then damages shall be assessed. An examination of the report, supra, does not show that proposition (a) was given any consideration by the commissioners. The report fails to show, except by inference, what their views were as to the necessity for the proposed road. Their findings, therefore, mean no more than this: Assuming the proposed road to be necessary we find it is necessary to take defendant’s land therefor and we find its value to be $1,500. This entirely overlooks one essential requirement of the statute. Before defendant can be deprived of its property under 'this statute its provisions must be strictly complied with and it must affirmatively appear that the proposed improvement is a necessary one. In proceedings of this character this court has always demanded a strict compliance with the mode of procedure marked out by the legislature. The observations made by Mr. Justice Graves in a similar case are apropos here:
“The rule is well settled that in all cases where the property of individuals is sought to be condemned for the public use by adverse proceedings, the laws which regulate such proceedings must be strictly followed, and especially that every jurisdictional step and every requirement, shaped to guard the rights and interests of parties whose property is meant to be taken, must be observed with much exactness.” Detroit Sharpshooters’ Ass’n v. The Highway Com’rs of Hamtramck, 34 Mich. 36.
We think the failure of the commissioners to find that the proposed road was a necessity is an omission fatal to the proceedings. Having determined that the award is invalid on statutory grounds, it will be unnecessary to consider the constitutional objections raised by counsel.
The award is reversed.
Ostrander, C. J., and Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred with Bird, J.
Moore, J.
I think the award was a substantial compliance with the statute and that the award should be affirmed. | [
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Steere, J.
Defendant was prosecuted and convicted in the circuit court of Wexford county of violating section 4 of the so-called Pray law (Act No. 381, Pub. .Acts 1913, 2 Comp. Laws 1915, § 7118 et seq.), by keeping intoxicating liquors stored in his garage, and brings this case for review upon exceptions before sentence attacking the legality of his conviction on the following grounds:
First. The information fails to state that the building in which he is charged with having kept intoxicating liquors was not used as a place of public resort.
Second. That said garage is a part of his private residence within the meaning of that term as used in the section of the act under which he was convicted.
The facts are not in dispute, and as stated in the brief of defendant’s counsel stand stipulated as follows:
“It appears that on the 6th day of July, 1917, the local-option law was in force in the county of Wexford; that the defendant was not then and there a druggist or registered pharmacist; that he did not then and there keep, store and possess liquor for medicinal, mechanical, scientific or sacramental purposes, not in the process of transportation, nor as a common carrier; that the liquor, consisting of 126 pints of beer, was kept, storéd and possessed by de fendant in his garage, situated and being on the alley at the rear end of the lot upon which his dwelling house is located about 40 feet distant from the dwelling house property and not connected in any way therewith; that there was no cellar under the house, nor store-room; that the liquor so kept, stored and possessed by the defendant was for his own private use, and that the offense charged in the information, if an offense, is admitted to be a second offense against the local-option law.”
Upon defendant’s arraignment a motion was interposed in his behalf to quash the information on the ground “that it does not allege that the defendant kept, stored or possessed the liquor mentioned in the information in a place which was a place of public resort.” This motion was denied. Upon the trial both sides asked for a directed verdict upon the conceded facts. After argument of counsel and discussion of the meaning of the term “private residence” in the connection used, the court said to the jury:
“I charge you, gentlemen of the jury, that it would be a violation of the law, under the conceded facts, and it is your duty to find the respondent guilty as charged.”
Following some further discussion of the question the court directed that the jury retire to the jury room, saying in conclusion :
“Now, in order that there may be no mistake, I want you all to understand that the direction of the court is that it.is your duty to find this respondent guilty as charged. I leave it to you to bring in your verdict, and will take care of it afterward. I don’t want you to misunderstand what I say but I am leaving it to you to say whether under this stipulation as to the facts and the law as I look at it and_ declare it to you, respondent is guilty or not.”
After being absent for a time the jury returned into court in charge of the sheriff and rendered a verdict of guilty as charged.
A motion was thereafter made for a new trial and the questions now presented were saved for review by proper objections and exceptions.
The act under which the prosecution was brought is entitled, so far as material:
“An act to regulate the sale, * * * purchase, acceptance, receipt and possession by any person, * * * of any' vinous, malt, brewed, fermented, spirituous or intoxicating liquor when such person * * * resides in territory where the manufacture and sale of such liquors for beverage purposes is prohibited ; to prohibit the same in certain cases; to prescribe the means for the enforcement of the provisions of this act;” etc.
Section 4 provides, so far as material here:
“In any township, municipality or county in this State where the manufacture or sale of any of the liquors mentioned in section 1 is prohibited, it shall be unlawful for any person to keep, store or possess any such liquors in any room, building or structure other than the private residence of such person and which is not used as a place of public resort.” * * *
The information charges at length a previous conviction for storing and keeping intoxicating liquor in the basement of a certain building on another street than where defendant resided, and charges as a second offense (so far as pertinent to the question raised as to its sufficiency) that—
“ — in a certain building, á garage, other than and not being the private residence of him, said Harold Labbe, in the rear of what is known as 204 Crippen street in said city of Cadillac, did then and there keep, store and possess a certain quantity of malt, brewed, fermented, spirituous intoxicating liquor, to wit,” etc.
Under the act a private residence is the only exception to the provision prohibiting the storing and possession of intoxicating liquors in territory where the local-option law is in force, and not even in private residences if they are used as places of public resort. If this information charged defendant with violating the provisions of section 4 by keeping intoxicating liquors stored in his private residence which was aiso used as a place of public resort it would be necessary to charge that such private residence was also a place of public resort, but where the charge is storing in a place other than a private residence it makes no difference under the statute whether the place is one of public resort or not, and therefore it is not necessary to specify.
The building where this liquor was stored was located on an alley at the rear of defendant’s lot upon which his dwelling house stood, distant some 40 feet from it and in no way connected with it. Conceding it was within what is known as the curtilage, it may be likened to a barn or carriage house used for the shelter of animals and vehicles. So regarding it the vital question presented by the undisputed facts is whether or not the words “private residence” in the connection used and for the purpose used was intended by the legislature to have the technical meaning of “dwelling house” as applied under the common law to cases of burglary, etc., thereby including any other disconnected buildings within the curtilage, or home inclosure.
It is correctly'stated in defendant’s brief that the expression “ ‘private residence’ is not a familiar and common legal term,” but authority is offered to the effect that in its ordinary use and popular sense it signifies the same as “dwelling house” and the two terms are synonymous. From this it is argued that in its technical, legal meaning as applied in criminal cases it includes as part of a dwelling house all appurtenant buildings within the curtilage, in support of which numerous authorities are cited, from which it is argued that the garage in question should be con strued to constitute a part of defendant’s private residence. From our own jurisdiction counsel cites to that proposition, People v. Taylor, 2 Mich. 250; Pond v. People, 8 Mich. 150; Pitcher v. People, 16 Mich. 142; Stearns v. Vincent, 50 Mich. 219, and People v. Aplin, 86 Mich. 393; to which might be added others including People v. Nolan, 22 Mich. 228; Curkendall v. People, 36 Mich. 309; People v. Fairchild, 48 Mich. 31. It may be noted that in these cases the comprehensive and strictly legal meaning of the term contended for is adopted in that class of offenses against the habitation which involve criminal invasion of or an attack upon the home by a stranger imperiling the peace and safety of its occupants, an element of crime which has no relation to and is not involved in the unlawful use of a private residence or its appurtenances by the owner or tenant rightfully in possession of and occupying the dwelling.
It is particularly pointed out that in Pitcher v. People, supra, which involved a charge of burglary, this court held that the common law definition should control since the statutory definition of the crime charged was the same as that of the common law and it must be assumed in the absence of any provision to the contrary that the statute intended no "change in the offense. That this technical definition is limited in its application to cases involving the reasons which gave rise to it is made clear in Stearns v. Vincent, supra, by Justice Cooley, who wrote both cases, as follows:
“In the law of burglary the dwelling house is deemed to include whatever is within the curtilage even if not inclosed with the dwelling if used with it for domestic purposes. People v. Taylor, 2 Mich. 250; Pitcher v. People, 16 Mich. 142. This construction of the term is for the peace, repose and safety of families in the night-time and it is made to include all those buildings, the forcible breaking of which for felonious purposes during the hours which peaceable and law-abiding per sons give up to rest, would naturally cause alarm, distress and danger.”
Vide, also State v. Clarke, 89 Mo. 423, as to the policy of the law in adopting such definition.
A statute directed to protecting an absolute right of person or property from criminal attack or invasion may sometimes justify resort to technical definitions and strained construction beyond its popular meaning to compass its manifest purpose, but statutes which merely confer a privilege are to be so construed, as far as possible, according to their common meaning, as not to invite public mischief or authorize the individual to overreach the conferred privilege. The provision in section 4, excepting a private residence from the inhibition of the statute, merely extends a privilege to the owner. The technical definition of a dwelling house by which defendant seeks to enlarge the provided privilege to include all structures or buildings upon his lot, or within the curtilage, gives to “private residence,” or even to “dwelling house,” a different meaning from that commonly understood and as it is generally used. Outside the legal profession, the average citizen of recognized education, intelligence and standing would be surprised if not offended on being told his hog house and cow stable, or other structure in his barnyard, were part of his private residence. In many adjudicated cases not involving criminal invasion of the home by a stranger various definitions of a dwelling house in harmony with general understanding and common use are recognized as expressing its meaning in the connection used, such as the house or the building in which a person lives or which is inhabited by man; the house in which one dwells; the house in which one resides — the house of his present abode; a place of habitation; a place of abode; a domicile or mansion; a house in which the occupier and his family usually reside; a house de signed to be occupied as a place of abode by night as well as by day, etc. 14 Cyc. p. 1126 et seq.
Both dwelling house and private residence are popular terms in general use, with a well defined, ordinary and popular meaning. To this can be added that they sometimes are given, as applied to certain crimes and legal rights, an uncommon and more comprehensive technical, legal meaning also. In statutory construction it is the rule that unless some expression in the statute clearly indicates otherwise, words in general use should be given a common construction according to their generally accepted meaning.
“As a general rule the words of a statute are to be taken in their ordinary and popular sense, unless it plainly appears from the context or otherwise that they were used in a different sense. In the construction of statutes a word which has two significations should ordinarily receive that meaning which is generally given to it in the community; but when this construction would contravene the manifest intention of the legislature, we must depart from this rule and give effect to the intention. * * * The words of a statute are to be read in their ordinary sense unless so construing them will lead to some incongruity or manifest absurdity.” 2 Lewis’ Sutherland Stat. Con. (2d Ed.) § 390.
The construction placed upon the provision in question by the trial court leads to no hardship, incongruity, or absurdity, and is in harmony with the general rule of construction that all words and parts of a provision should be given a meaning where possible. The legislature avoided the adoption of any well-recognized common law term and applied the prohibition to “any room, building or structure, other than the private residence of such person,” etc., indicating that the exception is intended to apply to the single building or structure in which the possessor actually resides. To construe “private residence” as including all disconnected outbuildings or structures upon a city lot, or within a curtilage, as appurtenances or parts of the distinct building in which the owner or tenant in fact lived and made his domicile would render the distinguishing words “room, building or structure” meaningless. We conclude that the purpose of the statute and policy of the law as well as fair rules of statutory construction indicate an intent to confine the conferred privilege to the distinct building or structure in which the possessor privately resides, occupying it only as his habitation for strictly domestic purposes.
The conviction is affirmed, and the case remanded for such further action as the law provides in harmony with this opinion.
Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred with Steere, J.
Ostrander, C. J.
I do not think the statute confers a privilege upon any one, but that it defines a crime. I agree to the conclusion. | [
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Steere, J.
This controversy involves the validity of an order by the Michigan railroad commission permitting the Michigan Telephone Company to charge and collect stated rates in excess of those specified in its franchise contract with plaintiff under which the telephone company had been operating. It is a continuation of the. differences between the municipality and public utility company reported in City of Traverse City v. Telephone Co., 195 Mich. 373, to which reference is made for a sufficient statement of the facts and relations of the parties up to the time that case was decided.
During the progress of that litigation it was the impression of the trial court that the questions involved more properly belonged in the first instance to the State railroad commission than to the court, intimating the propriety of initiatory steps being taken by application of one of the parties to that body, whose action in the premises was reviewable by the courts as provided by statute, but the suggestion was not acted upon by the litigants at that time and the case was pressed to a final hearing in this court.
After it had been decided in the lower court and was pending on appeal to this court, the Citizens’ Tele phone Company applied to the railroad commission for authority to make increased charges, on the ground that existing rates were inadequate to produce reasonable returns on investment and cost of operation. The city filed written objections to the application with the railroad commission claiming that the rates were controlled by a contract between the parties. Hearings were had upon the application while the chancery suit between the parties was pending in this court, but on the suggestion of counsel the commission withheld final disposition of the matter until after this court handed down its opinion in the chancery case, when, in July, 1917, an order was made by the commission authorizing the Citizens’ Telephone Company to put into effect a new scale of rates for Traverse City, some of which were higher than those named in the ordinance contract, which had been the subject of litigation in ■ the chancery suit and held by this court to be a binding contract between the litigating parties as the case then stood in that record.
The city thereupon filed a bill in the Ingham county circuit court in chancery to enjoin proceedings under such order, claiming that the railroad commission had no power to make the same. Answers were duly filed and the case brought to a hearing which resulted in a decree dismissing plaintiff’s bill, and affirmance of the railroad commission’s order, from which plaintiff has taken an appeal to this court.
The grounds upon which plaintiff attacks the order are, as stated in counsel’s brief:
“The order of the Michigan railroad commission violates the terms of the franchise granted to the telephone company by the plaintiff city and accepted by the telephone company and under which the telephone company has always operated.
“The order of the Michigan railroad commission is ■ void as being without consideration and because it deprives the city of all control and regulation over the telephone company and takes the funds allowed under the new rates without consideration.
“The law under which the Michigan railroad commission claims authority to make this order is unconstitutional.
“The Citizens’ Telephone Company is now estopped from seeking to collect or charge rates different from those named in the franchise.
“The order violates our Constitution, particularly as being opposed to the home rule provisions thereof.”
Act No. 206, Pub. Acts 1913 (2 Comp. Laws 1915, § 6689 et seq.), under which the order in question was made, declares all persons, corporations and associations operating telephone lines or exchanges doing business in Michigan to be common carriers subject to all applicable laws regulating transportation of persons or property by railroad companies within the State. By it general control of all telephone lines and companies within the State is given to the Michigan railroad commission with ample powers, amongst which it is expressly authorized (section 6691),
“* * * to make, alter, amend or abolish any rate or charge for any service, and may regulate by rules or orders any service.or facility; and it shall likewise prescribe the standard of cohstruction and equipment that shall be maintained by any person, copartnership or corporation maintaining a physical connection between the lines and facilities of any such person, co-partnership or corporation, and the lines and facilities of any other person, copartnership or corporation.”
This act committing to the commission control of telephone lines and companies as common carriers is similar in plan and provisions to statutes of other States prescribing the powers granted to, proceedings before, and duties of, public utility commissions in matters over which they are given control. It closely follows and, in effect, is a revision with amplifications of Act No. 138, Pub. Acts 1911, which was under con sideration and sustained to the extent questioned in Home Telephone Co. v. Railroad Commission, 174 Mich. 219, and in Re Briggs, 178 Mich. 28.
As indicated in the record of proceedings prior to this appeal and by plaintiff’s brief, the reasonableness of the schedule of rates allowed by the commission is not involved but, as stated by its counsel to the commission, plaintiff’s position is that the “rates are fixed by franchise” and the inquiry is limited to whether the commission possessed power to change the rates.
In City of Traverse City v. Telephone Co., supra, this court held that the telephone company was operating under an accepted franchise of the city which stood as a binding contract between the parties to it in the absence of the exercise of any paramount governmental authority, regardless of whether it was by absolute right of the parties to contract as to rates and inviolable or permissive only and subject to State control, it being said:
“Accepting it as permissive only, it remains valid between the parties until such time as the reserved State control is asserted and interposed against it. The statute conferring controlling powers upon the railroad commission does not of itself abrogate the contract.”
This but followed the equitable rule applied in City of Monroe v. Railway, 187 Mich. 364, which is well supported by decisions in other jurisdictions. Although it was there said “plaintiff was not given by its charter express power to regulate rates,” whether the contract was permissive only was not a controlling issue as the case then stood, but the State authority having been appealed to and since asserted in disregard of this contract, it becomes material to authoritatively determine its character in that particular.
The status of telephone companies, recognized at common law as analogous to common carriers, and sometimes held to be such, is settled in this State by the statute so classifying them. That the State may regulate charges of common carriers, and the power to fix the rates which they may charge the public for their services is a legislative and not a judicial function, is now elemental; the judicial function, or power of the courts, being limited to determining whether any particular rate fixed by the legislature or its duly authorized agency is reasonable or otherwise.
Neither the railroad commission nor the municipality had any rate-making power except that which the legislature might delegate to them to exercise as State agencies. There is no doubt that it is competent for the legislature to delegate its control'over and power to regulate charges of common carriers operating within the State to a board or commission created for that purpose, and, within the range of legitimate municipal purposes, to municipalities, but when such power is delegated to a municipal corporation by its charter it must be done in express terms. City of Jacksonville v. Telegraph Co., 57 Fla. 374; City of St. Louis v. Telephone Co., 96 Mo. 623. No power is given Traverse City by its charter in express terms to fix rates to be charged by telephone companies operating within its borders, nor is such authority inferable from the conferred power to regulate and control the use of its streets by telegraph, telephone, arid other companies referred to, and quoted so far as material, in City of Traverse City v. Telephone Co., supra. This subject will be found to have been so exhaustively discussed in its various aspects and the applicable rule so plainly declared in the above cases and those cited in them that it is sufficient here to state we need not go to the extent of many of those decisions to determine in the instant case that Traverse City was not given by its charter the power to regulate the rates to be charged by telephone companies, that the franchise contract upon which it relies was but permissive, and, though binding between the parties to it in the absence of governmental interposition, is to be construed as having been entered into with reference to the right and power of the government to assert and exercise its inherent, paramount authority. Home Telephone Co. v. City of Los Angeles, 211 U. S. 265; 28 Cyc. p. 724, where numerous authorities on the subject are cited.
This general principle is very plainly stated by Justice Day in the recent case of Milwaukee Electric R. Co. v. Railroad Com’n, 238 U. S. 174, as follows:
“No specific authority having been conferred on the city to enter into the contract in question, the right of the State to interfere whenever the public weal demanded was not abrogated. The contract remained valid between the parties to it until such time as the State saw fit to exercise its paramount authority, and no longer. To this extent and to this extent only, is the contract before us a valid subsisting obligation. It would be unreasonable to hold that by enacting section 1862, statutes of 1898, * * * the State intended to surrender its governmental power of fixing rates. That power was only suspended until such times as the State saw fit to act.”
In the case of Michigan State Telephone Co. v. Railroad Com’n, 193 Mich. 515, an order was granted by the commission on petition of certain citizens of Traverse City “who are said in their application to represent a large number of their fellow townsmen,” requiring this defendant Citizens’ State Telephone Company and the Michigan State Telephone Company to make physical connections. ' On review at the instance of the Michigan State Telephone Company.in the circuit court of - Wayne county the action of the commission was sustained, and the decree affirmed in this court.
Though not entirely in point upon the questions raised here, that case involved in certain particulars the constitutionality and scope of Act No. 206 of 1913, and makes clear that the Citizens’ Telephone Company, in its connected corporate activities as a common carrier, is not confined to Traverse City or its immediate environments nor in its relations with the general public to be treated as a strictly local municipal activity independent of State regulation and control. Along those lines the opinion of Justice Person is illuminating as to the authority, duties, right of interference and regulation vested in the commission as a State agency to meet the demands of public necessity and convenience under the paramount power of the State, touching to a greater or less extent many of the constitutional objections now raised by plaintiff. Although it is broadly charged in counsel’s brief that the law under which the commission claims authority to act is unconstitutional as a whole, the objections urged and questions raised are rather directed against the scope of the order claimed to violate the Constitution in certain specified particulars than against the constitutionality of the law itself in its entirety, which we regard as too well settled to demand discussion now.
Upon plaintiff’s claim of estoppel and contention that this order violates provisions of the State and Federal Constitutions which prohibit impairment of contract obligations, a case arose in the State of Georgia closely analogous in form and facts to the instant case. The city there sought by injunction to restrain putting in operation an order of the State railroad commission made upon application of a telephone company operating under a franchise from the city, accepted in writing, permitting it to charge rates in excess of those fixed by the franchise. As here, a statute of that State gave its railroad commission power to fix the rates to be charged by telephone companies for service within the State. It was there said:
“The granting of a franchise to a telephone company by an ordinance passed by the municipal authorities of a city, wherein it is provided that the company ‘agrees and binds itself by this ordinance that the rates charged shall be $1.50 per month for residence phones and $2.50 per month for business phones,’ and an acceptance of such franchise by the company, does not prevent the telephone company from increasing such charges, if permission to do so is subsequently granted it by the railroad commission; especially as it appears that the city was not specifically authorized by its charter, or other legislative enactment, to fix the charges to be made by telephone companies. * ,* * The order of the railroad commission does not violate the provisions of the State and Federal Constitutions, prohibiting the impairment of the obligations of contracts.” City of Dawson v. Telephone Co., 137 Ga. 62.
We are unable to follow plaintiff’s contention that the provisions of sections 21 and 28, article 8, of our last Constitution, of 1909, affect the relations of the city and telephone company as previously established. The franchise upon which plaintiff relies was granted, accepted and acted upon long before the present Constitution was adopted, and whatever rights the parties had under it as a permissive contract remain. City of Lansing v. Power Co., 183 Mich. 400. Neither do the questions raised here pertain to the control of streets but to control of rates to be charged the public by a common carrier doing business under a franchise. If those rates were subject to governmental control irrespective of a permissive contract they so continued, for the right of the State under its police power to regulate the charges to the public by common carrier does not depend upon or arise out of their use of or right to use the highways in cities or elsewhere.
Neither does the so-called “home rule” feature of our present Constitution (section 21, article 8) giving cities the right to frame, adopt, and amend their charters and pass all laws and ordinances relating to their municipal concerns, “subject to the Constitution and general laws of this State,” confer upon them, as an incident of a grant of power to frame a charter for city government, paramount authority to assume against a State agency, acting under a general law of the State, those powers which the State originally possessed and has reserved to itself in matters of general concern, for protecting the rights and regulating the duties of its citizens wherever located within its boundaries; and the power to regulate rates to be charged by common carriers is a matter of general concern which does not pertain solely to municipal affairs.
The scope of constitutional authority conferred on cities to frame charters for their own government is well outlined in City of St. Louis v. Telephone Co., supra, and State, ex rel. Garner, v. Telephone Co., 189 Mo. 83, both of which involved a question of rates which the cities claimed under their charters the right to fix and enforce.
The constitution of the State of Oregon contains a provision granting to the legal voters of every city power to enact and amend its charter, subject to the Constitution and criminal laws of the State, and forbids its legislature to amend and repeal municipal charters. Of this constitutional right of home rule it is said in Coleman v. La Grande, 73 Or. 521:
“By granting and reserving to the people of municipalities the power to enact and amend their charters- and adopt local or special laws, the State has not surrendered her sovereignty to the municipalities. Within their boundaries cities are clothed with power to regulate matters purely local. However, a city is not constituted as a sovereignty as regards all matters of legislation, but is still to a certain extent a mere agency of the State of which it is a part. Beyond such municipal boundaries and in matters of general concern not pertaining solely to local municipal affairs, cities are amenable to the general laws of the State, which do not infringe upon the right of cities to local self-government.”
In the recent case of the City of Woodburn v. Public Service Com’n, 82 Or. 114 (161 Pac. 391), the city of Woodburn contested the right of the State by its > public service commission to change the telephone rates which the common council had fixed in a franchise authorized by a provision of its charter adopted under the home rule section of the Sítate constitution. In a carefully considered opinion by Justice Harris, where a large number of leading cases upon the various questions involved are cited, it is said upon the contention that the local rates charged are purely a matter of local concern:
“It is true that the regulation of the rates for telephones in Woodburn may not immediately affect the pocket-books of all the people of the whole State any more than does the prosecution of a person in a justice court for assault and battery, when taken alone and by itself, directly affect all the people of the whole State, and yet the State is just as much interested in promoting the comfort and general welfare of all the people as in preserving peace for all the people. In these modern times, when the activities of public utilities are not always confined to a single city, the people are especially concerned in the retention of the right to adjust rates to changing conditions, so that no person may be discriminated against and all may receive adequate service at reasonable rates, and at the same time affording sufficient returns to the public utility. The State guards its right to regulate so vigilantly that specific authority is necessary to compel a surrender of this element of sovereignty and in the language of the Supreme Court of the United States: ‘The general powers of a municipality or of any other political subdivision of the State are not sufficient/ Citing Home Telephone Co. v. City of Los Angeles, 211 U. S. 265; Milwaukee Electric R. v. Railroad Com’n, 238 U. S. 174."
And in denying the relief asked the following conclusions are reached, which we think are well sustained by the authorities referred to and applicable in the instant case:
“The power of the State to regulate rates by compulsion is a police power, and must not be confused with the right of a city to exercise its contractual power to agree with a public service company upon the terms of a franchise. The exercise of a power to fix rates by agreement does not include or embrace any portion of the power to fix rates by compulsion. When Woodburn granted the franchise to the telephone company, the city exercised its municipal right to contract, and it may be assumed that the franchise was valid and binding upon both parties until such time as the State chose to speak; but the city entered into the contract subject to the reserved right of the State to employ its police power and compel a change of rates, and when the State did speak, the municipal power gave way to the sovereign power of the State: (Citing cases). The power to fix rates by compulsion as distinguished from the power to fix rates by agreement is not granted to cities or towns, nor is the right of the legislative assembly to legislate upon that subject curbed by Article 11, section 2, of the State constitution because in its essence it is neither a municipal power nor an incident to a pure municipal power, and therefore, * * * the legislative assembly was not prohibited from making the public utility act applicable to urban as well as extra-urban territory.»
The decree of the lower court will stand affirmed.
Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Kuhn, J.
In this suit it is sought by replevin to recover possession of an automobile upon which the defendant Phillips, as constable, levied an execution on a judgment in favor of the defendant the Detroit Free Press, and against one Charles E. Smith. The judgment was for $222.98 and $1.75 costs. The plaintiff, on the same day that the constable took possession of the automobile under the execution, made a demand on him for possession, which was refused. The plain-* tiff thereupon commenced this suit before a justice of the peace, and appealed from his judgment to the circuit court, where a judgment was entered for the defendants.
It is the contention of the plaintiff that on April 21, 1917, he sold the automobile in question, which is a Mitchell roadster, to Smith for $850, and that on August 9, 1917, he, through his agent, traded with Smith a Mitchell touring car, valued at $750, for said roadster, and that said roadster was delivered to him at his place of business in Detroit and remained in his possession until later in the same day, when he> through his agent, sold the roadster to Smith for $750 on what it is claimed was a conditional sale contract. This contract was in terms as follows:
“This agreement, made this 9th day of Aug., A. D. 1917. by and between Mathew A. Young, 754-756 Woodward ave., Detroit, Mich., of the first part, and Mr. Chas. E. Smith, 698 Cass avenue, of the second part, witnesseth:
“First. That said first party shall and will sell to said second party the following described property, to wit: One Mitchell 6 of 17 No. 67770 Roadster, upon and after full payment therefor by said second party of the sum of $750.00 dollars, with interest, at the rate of six per cent, per annum, in the manner following........................dollars upon the execution and delivery of this agreement, and $250.00 to be paid in one note and the balance of $500.00 to be paid in notes at the rate of $100.00 per month. Notes given as collateral security, with interest as above mentioned.
“Second. That said party shall and will pay for said property said sum of $750.00 dollars and interest, at the time and manner above mentioned, at........ ..................in the said city of Detroit, Mich.
“Third. That the title to said property and right of possession thereto, shall be and remain in said first .party until said sum of $750.00 dollars and interest, and any judgment rendered therefor shall be paid in full.
“Fourth. That in case of default in any of the payments of principal or interest, when due as above specified, the said first party shall thereupon forthwith have the right to declare this contract at an end, and to take immediate possession of said above described property, and in such case, the said property, as well as all payments of principal or interest which shall have been made hereon, shall belong to and be retained by said first party as liquidated damages for nonperformance of this contract on the part of said second party and for use of and injury to said property.
“Fifth. That said second party shall not sell, transfer or dispose of above described property without the written consent of the first party.
“Sixth. The said second party further agrees that during the life of this contract, and until fully paid and satisfied to insure the above described property against fire and theft to the amount of $750.00, loss, if any, to be paid to the first party as his interests may appear.
“In witness whereof, the parties hereto have hereunto set their hands and seals the day and year first above written..
“M. A. Young (Seal)
“Mutchler
“Charles E. Smith. (Seal).”
On the trial the plaintiff was permitted to submit testimony tending to show that this contract was what it purported to be, and that it was not intended as' security. Defendants introduced testimony tending to show that the instrument was not a conditional sale contract, but was security, and this special question was submitted to the jury by the court, the jury finding that the contract was taken as security and not as a conditional sale.
The, defendants on the trial called Mr. Mutchler, who signed the sales contract as plaintiff’s agent, under the statute for cross-examination as an adverse witness and obtained from him an admission that he had testified on, the trial béfore the justice of the peace that the so-called conditional sale contract for the roadster was taken by the plaintiff as security for the payment of the purchase price of the touring car and that he had since learned that he was mistaken in so testifying. It is the principal contention of the-appellant’s counsel in this court that there was absolutely no evidence that the so-called conditional sale contract was taken as security, but on the contrary that the evidence was that it was a conditional sale as it purports to be, and that the testimony of Mr. Mutchler in support of the defendant’s theory could only be admissible for impeachment purposes and had no other effect as evidence. In our opinion it becomes unnecessary to discuss the question of the admissibility of the testimony of Mutchler, or its effect, as from an examination of the contract of sale it appears that the title to the property was reserved to the vendor as security merely and that the conditions therein did not amount to an absolute reservation of title in the vendor. In the recent case of Atkinson v. Japink, 186 Mich. 338, this court, speaking through Mr. Justice Ostrander, said, with reference to this legal question:
“An examination of our own and of the decisions of other courts leads to the conclusion that they sustain, in the main, two propositions: First, that when the absolute title is reserved, retention thereof by the vendor is inconsistent with an action to recover the debt.”
It will be unnecessary to refer to the second proposition for the purposes of this case. An examination of the third clause of the contract here in question shows that it was the intention of the parties that an action might be brought to recover the debt and that the title to the property might still remain in the vendor to secure the payment of the debt, because it says in terms that:
“The title to said property and right of possession thereto, shall be and remain in said first party until said sum of $750.00 dollars, and interest, and any judgment rendered therefor shall be paid in full.”
See, also, the recent case of Luce v. Stott Realty Co., 201 Mich. 587.
- The court might, therefore, very well have directed the jury that the contract in question showed that the title to the property was retained in the vendor simply for security, and have thus determined the very question which was submitted to the jury to determine under the special question, against the contention of the plaintiff and appellant. It being admitted that the contract, which we hold was taken as security, was never filed with the city clerk of the city of Detroit, it became absolutely void as against creditors of the mortgagor or the person giving the security, by virtue of the terms of section 11988, 3 Comp. Laws 1915.
Being, therefore, of the opinion that the defendant Phillips had a right to levy upon the property and was rightfully in possession thereof, it follows that the judgment must be, and is hereby affirmed.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. | [
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Brooke, J.
Bill for specific performance. On June 6, 1917, defendants entered into an oral contract with the plaintiff for the purchase of a house and lot in the village of Hamburg. At the time of the purchase the plaintiff gave the defendants the following receipt:
“Hamburg, Michigan, June 6 (there is a six and a seven over it), 1917.
“Received of Edd Gardner and Della Gardner One Hundred Dollars ($100) on purchase price of house and lot in Hamburg village. ' Balance of Eighteen Hundred Dollars ($1,800) to be paid and deed given in five days.
“A. H. Pearson.”
The $100 mentioned in said receipt was paid by defendants. to plaintiff. Under the oral contract the plaintiff, a physician and surgeon, agreed to rent from the defendants a small office building located on one corner of the lot for a period of one year with an option for one additional year at $5 per month; the $60 for the first year’s rent to be deducted from the purchase price. Plaintiff immediately vacated the house and three days later, on the morning of the 10th, defendants took possession of the house and the barn located on the premises.
It is the claim of plaintiff that he and his wife had executed a deed of the property, and, on the 5th day after the agreement, told defendants it was ready, but that he was advised by them that their money was in a bank in Detroit and would not be available for a few days; that shortly thereafter defendant Della Gardner was called away because of the illness of a relative and remained absent for some time. This was denied by the defendants. The record shows that there was considerable discussion between the parties about carrying out the deal up to the latter part of July, when the defendants finally refused to further proceed. Thereupon plaintiff prepared a new deed, the former one having been destroyed, and on the first day of August made á tender of the deed, the unexpired insurance policy and the abstract of title. A second tender was made on August 10th, in the presence of a witness. Performance on the part of the defendants was again refused. In the meantime the defendants had continued in the possession of the property; had removed one of the partitions on the lower floor of the dwelling house, making two rooms into one; changed the location of the kitchen sink; trimmed the lower limbs from a couple of shade trees in front of the house and had harvested the vegetables from the garden; They continued in possession and retained the same at the time of the trial in the court below on the 12th day of December, 1917.
It is conceded by counsel for plaintiff that the written evidence of the contract is insufficient under the statute of frauds. The only question involved is whether the défendants by their acts in making partial payment, taking possession, reaping the fruits of the garden and changing the character of the premises have done sufficient to take the case out of the statute and to equitably entitle plaintiff to the decree for specific performance which was awarded by the court below. Partial payment of the purchase price alone is not sufficient to take the case out of the statute. Possession alone is insufficient, but where there is partial payment and possession accompanied by acts of ownership of the vendee changing the character of the freehold, and lessening its value, a court of equity may award a decree for specific performance. Peckham v. Balch, 49 Mich. 179; Cole v. Cole Realty Co., 169 Mich. 347. It is true that in the case first cited the action was brought by the vendee rather than the vendor, but it is well settled that specific performance is granted in favor of the vendor of land as freely as in favor of the vendee, though the relief actually obtained by him is the recovery of money, the purchase price. The rule is stated in 36 Cyc. p. 686, as follows:
“The vendor or lessor may have specific performance of a contract which has been part performed.. This is in part because the delivery of possession by him to the vendor involves a change of condition on his part as well as on the part of the vendee, and points to a contract concerning the land; chiefly because, in cases where the remedy is available to the vendee it should, on the ground of mutuality, be available to the vendor likewise.” Citing cases in note 24.
See, also, 2 Pomeroy’s Equitable Remedies, § 747, and Langdell, Brief Survey of Equity Jurisdiction, pp. 50-52.
The parties agree as to the exact terms of the oral contract. The defendants entered into possession thereunder and still retain such possession. They paid a portion of the purchase price and have exercised such rights and acts of dominion over the property in changing its character as. would in our opinion make it inequitable for them now to decline full performance of the oral contract.
The decree is affirmed.
Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, J., concurred. | [
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Neff, P.J.
In these consolidated appeals, defendants appeal as of right from a judgment entered following a jury verdict in favor of plaintiffs in the amount of $15,000 for Burton J. Magnuson and $5,000 for Joyce Magnuson. The judgment also provided that plaintiffs shall receive taxable costs of $2,862.98, interest to the date of judgment of $3,211.16, and attorney fees of $5,943.75. Plaintiffs appeal from a separate order requiring that they pay defendants $331.50 in costs and attorney fees necessitated by plaintiffs’ counsel’s late cancellation of a scheduled deposition of Christopher Schaiberger, M.D. We reverse in part and affirm in part.
i
The facts of the underlying suit are not at issue in these appeals except as they relate to the issue of the imposition of costs and attorney fees.
This case went to mediation, and the mediation panel issued an evaluation in favor of plaintiffs for a total amount of $18,000. Both sides rejected the mediation evaluation, and, on September 17, 1990, defendants served an offer of judgment in the amount of $5,000 on plaintiffs’ attorney. Plaintiffs rejected the offer and did not make a counteroffer. The jury trial commenced on October 15,1990.
After trial, plaintiffs moved for an award of attorney fees based on defendants’ rejection of the mediation evaluation and for taxable costs. Defendants sought costs and attorney fees necessitated by the late cancellation of the scheduled deposition of Dr. Schaiberger. A hearing on the motions was held on December 11, 1990. The court ruled that plaintiffs were entitled to receive costs and attorney fees as a result of defendants’ rejection of the mediation evaluation and that defendants were entitled to costs and attorney fees as a result of the late cancellation of the Schaiberger deposition.
ii
Defendants claim that the trial court erred in awarding plaintiffs costs and attorney fees. We agree.
The resolution of this issue depends on the interplay of several court rules. MCR 2.403 deals with mediation, and provides in pertinent part:
(0) Rejecting Party’s Liability for Costs.
(1) If a party has rejected an evaluation and the action proceeds to trial, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the mediation evaluation.
If MCR 2.403(O)(l) were to be considered alone and not in conjunction with any other court rules, defendants would be required to pay plaintiffs’ actual costs because the jury verdict was more favorable to plaintiffs than the mediation evaluation. However, because defendants served on plaintiffs an offer to stipulate judgment, MCR 2.405 also comes into play. That court rule states in pertinent part:
(B) Offer. Until 28 days before trial, a party may serve on the adverse party a written offer to stipulate to the entry of a judgment for the whole or part of the claim, including interest and costs then accrued.
Because plaintiffs did not expressly reject the offer in writing or accept it as provided in MCR 2.405(C)(1), defendants’ offer was deemed rejected pursuant to MCR 2.405(C)(2). MCR 2.405(D) provides for the imposition of costs following a rejection of an offer to stipulate judgment, and states in pertinent part:
(2) If the adjusted verdict is more favorable to the offeree than the average offer, the offeror must pay to the offeree the offeree’s actual costs incurred in the prosecution or defense of the action. However, an offeree who has not made a counteroffer may not recover actual costs.
MCR 2.405(E) deals with the relationship between the cost provisions of MCR 2.405 and the cost provisions of MCR 2.403, where there has been, as in this case, both a rejection of a mediation award pursuant to MCR 2.403 and a rejection of an offer pursuant to MCR 2.405. It states:
Relationship to Mediation. In an action in which there has been both the rejection of a mediation award pursuant to MCR 2.403 and a rejection of an offer under this rule, the cost provisions of the rule under which the later rejection occurred control, except that if the same party would be entitled to costs under both rules costs may be recovered from the date of the earlier rejection.
The offer of judgment made in this case was rejected by plaintiffs after the mediation evaluation was rejected. Accordingly, under MCR 2.405(E), the cost provisions of MCR 2.405 control. The only exception mentioned in the court rule applies where the same party is entitled to costs under both rules. This exception is inapplicable in this case because plaintiffs are not entitled to costs under both rules. According to MCR 2.405(D)(2), plaintiffs are not entitled to recover actual costs under MCR 2.405 because they did not file a counteroffer.
On appeal, plaintiffs do not seem to take issue with the above analysis. Rather, they argue that they are entitled to recover actual costs because of defendants’ rejection of the mediation evaluation and because defendants’ offer of judgment was not timely and was therefore inoperative. We find that defendants’ offer of judgment was timely and that plaintiffs’ failure to make a counteroffer deprived them of their ability to recover actual costs.
The issue whether the offer was timely is resolved by construing the language of MCR 2.405(B). Again, this portion of the court rule states:
Until 28 days before trial, a party may serve on the adverse party a written offer to stipulate to the entry of a judgment for the whole or part of the claim, including interest and costs then accrued.
Plaintiffs argue that defendants’ offer was stamped as received by the circuit court on September 18, 1990, and that this date was clearly too late under the court rule. However, MCR 2.405(B) refers to serving an offer on the adverse party, not filing it with the court. Service by mail is complete at the time of mailing. MCR 2.107(C)(3). Thus, service of defendants’ offer was effected on September 17, 1990, the date of mailing. Trial began on October 15,1990.
Plaintiffs claim that, even using the September 17, 1990, date as the date of service, the offer was not timely. They claim that a party may serve an offer up to, but not during, the last four weeks before trial.
The critical inquiries in resolving this issue are the meaning of the phrase in MCR 2.405(B) "/ujntil 28 days before trial” (emphasis added), and how that period of time is computed.
MCR 1.108 deals with computation of periods of time prescribed or allowed by the court rules, and states in pertinent part:
In computing a period of time prescribed or allowed by these rules, by court order, or by statute, the following rules apply:
(1) The day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period is included, unless it is a Saturday, Sunday, legal holiday, or holiday on which the court is closed pursuant to court order; in that event the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or holiday on which the court is closed pursuant to court order.
Using this rule, the day of trial is the day of the act after which the designated period begins to run. Counting backwards twenty-eight days from the day before trial and counting the last day of the period, the offer at issue here is timely.
Even looking to dictionary definitions to define the words "until” and "before,” and applying MCR 1.108, the same result is mandated.
Black’s Law Dictionary (6th ed) defines "until” as:
Up to time of. A word of limitation, used ordinarily to restrict that which precedes to what immediately follows it, and its office is to fix some point of time or some event upon the arrival or occurrence of which what precedes will cease to exist.
Similarly, The Random House College Dictio nary: Revised Edition (1984) defines "until” as: "[U]p to the time that or when; till. . . . before.”
Black’s defines "before” as: "Prior to; preceding; in front of.”
Random House defines "before” as: "[I]n front; in advance; ahead ... in time preceding; previously . . . earlier or sooner ... in front of; ahead of; in advance of. . . previous to; earlier than.”
Looking just to dictionary definitions, it appears that neither the first day of trial, October 15, 1990, nor the twenty-eighth day before trial, September 17, 1990, is to be counted. Thus, unless one reads "until” to mean "up to and including,” under the dictionary definitions, service of the offer on September 17, 1990, appears not to have been timely. However, September 16, 1990, the day before the twenty-eighth day before trial, fell on a Sunday, a nonbusiness day under MCR 1.108(1). Thus, applying MCR 1.108(1), defendants had until September 17,1990, to serve their offer.
Plaintiffs urge this Court to construe the language of MCR 2.405(B) using dictionary definitions and argue that where an action must be taken a minimum number of days before a certain event, the minimum should not be shortened by the fact that the last day falls on a nonbusiness day. The clear language of MCR 1.108(1) provides for no such exception.
On the basis of the foregoing, we find that defendants’ offer of judgment was timely and that the trial court erred in awarding actual costs to plaintiffs. We therefore reverse that portion of the judgment awarding costs and attorney fees to plaintiffs.
hi
Plaintiffs claim that the trial court abused its discretion in awarding defendants costs for the late cancellation of the deposition of Dr. Schaiberger. We disagree.
At the hearing held on December 11, 1990, counsel for plaintiffs admitted that the details contained in defendants’ motion were correct, but argued that defendants were not entitled to costs.
The trial court did not state the authority relied upon in granting these costs to defendants. However, MCR 2.306(G) provides in pertinent part:
(1) If the party giving the notice of the taking of a deposition fails to attend and proceed with the deposition and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to the other party the reasonable expenses incurred in attending, including reasonable attorney fees.
The trial court properly assessed costs against plaintiffs for the late cancellation of the deposition. There was no abuse of discretion. We therefore affirm the order granting defendants costs associated with the cancellation of the deposition.
Reversed in part and affirmed in part. | [
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Kuhn, J.
The respondent was convicted on an information charging him with having committed the crime of adultery on the 14th day of January, A. D. 1917, with one Luella M. Keller. The case is brought here on exceptions before sentence.
The defense in this case was an alibi, and it was sought to show by witnesses that at the time the offense was alleged to have occurred, the respondent was in New York city at the home of his sister, Mrs. Lewis Seller. Upon the trial, while the respondent was upon the stand, his counsel attempted to show the reason for her absence from the trial, and the following occurred:
“Q. Was she to be a witness here for you?
“Mr. Ford: Object.
“Mr. Barnard: I just want to show her absence.
“Mr. Ford: I object to the question, calls for hearsay entirely.
“Mr. Barnard: I show your honor here a letter since the trial begun—
“The Court: I think I will sustain the objection to that last question.
“Mr. Barnard: An exception.”
(Exhibit “L” marked.)
Witness presented with Exhibit “L,” stated it is a letter he received from his sister in New York, Mrs. Seller. “I received it a couple of days ago, since the trial started; yes, sir.
“Q. I will ask you whether you were informed that it would be impossible for her to be here on account of the sickness of her husband?
“A. Yes, sir.
“Mr. Ford: Just a minute. I object to that and ask that answer be stricken out.
“The Court: It should go out. Objection sustained. The jury will pay no attention to it.”
During the prosecutor’s closing argument to the jury he, over repeated exception taken by respondent’s counsel, commented upon the failure Of respondent to have his sister in court, and in part said as follows:
“Mr. Ford: I say to you, gentlemen, it is perfectly proper for you to consider that proposition, and the court will charge you to that effect, and if he will not, he will stop me in any incorrect argument I make. I say to you this defendant’s sister from New York should have appeared here if the defendant saw fit to have her.
“Mr. Barnard: I take an exception.
“Mr. Ford: And if she had not been produced, and could not be produced, my brother can talk about what the law permits, it allows the defendant to take a deposition in the city of New York or any witnesses that cannot come here, and to serve notice upon the prosecutor to go to New York with him and take a deposition of a material witness in this case; they could have done that. Why didn’t they? Gentlemen, I think that point and that alone is sufficient to enable you to find this respondent guilty. Where is the sister’s testimony? It is absolutely absent. We don’t know whether she wanted to come or whether she didn’t want to come to bolster up this, defendant’s case.
“Mr. Barnard: I take an exception to this line of argument.
“Mr. Ford: But we know she didn’t come. She probably^ would have come personally to help out her brother in this. If she could have testified that he was there, and if she could not have come by reason of sickness or something else; her deposition could have been taken in a month upon my brother’s serving notice upon our office to go there and take depositions that could have been introduced here.”
Irrespective of whether the court acted properly in excluding the testimony by which it was sought to explain the absence of the witness, the testimony having been excluded and the respondent having been denied the opportunity of making an explanation, it was clearly improper and highly prejudicial to respondent’s case to allow the prosecuting attorney in his closing argument to dwell upon the failure to produce the witness and to insist that the failure to produce the witness in itself should be sufficient for the jury to find the respondent guilty. This, in itself, in our opinion, is sufficient error to cause' a reversal of this conviction.
On the trial, during the examination of the witness Burton Parkhurst, who had been called for cross-examination, the prosecutor offered, and the witness was allowed to testify, as to the contents of a letter which was addressed to the respondent and which was opened and read by the witness before delivering it to the respondent. It' appears that it was an unsigned communication, and no proof was offered to identify the handwriting. The court stated, when objection was made, “It is the claim of the people it was from the Keller girl.” In our opinion, no evidence as to the contents of this letter should have been allowed to be produced, as it was not shown that the original was not in existence, and further, if secondary evidence of its contents were permissible, it being an unsigned communication, no effort was made to show that it was in the handwriting of the Keller girl.
As the other incidents of the trial which are made the subject of assignments of error will, in all probability, not occur again upon a new trial, it will be unnecessary to discuss them in this opinion.
For the errors above discussed, which it must be said denied the respondent that fair and impartial trial to which he is entitled under our Constitution and laws, and which it also must be said resulted in a miscarriage of justice, the conviction will be reversed and a new trial granted.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. | [
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Ostrander, C. J.
(after stating the facts). 1. The amended declaration, its language being fairly interpreted, alleges peril of plaintiff, discovered by defendant’s agents in time to avert injury by proper action on their part. It must be held to be sufficient.
2. The principal, and the interesting, question, upon the merits, is whether the testimony presents the case alleged in the declaration. The doctrine of comparative negligence is not a part of the law of this State. It is the law of this State that when plaintiff is guilty of negligence contributing to the injury he can recover no damages for the injury. In the application of this doctrine there is involved the negligence of the defendant which is complained of, causing or helping to cause injury, and the negligence of plaintiff contributing thereto. It is also the law of this State that although plaintiff by his negligent conduct may be put in peril of injury by defendant, if his peril is discovered by defendant, or if in the exercise of ordinary care it ought-to have been discovered, a duty arises to avert the injury, if it is reasonably possible to do so, the failure to discharge which duty may be regarded as the proximate cause of the resulting injury. It is said by counsel for appellant:
“Assuming, which perhaps more nearly approximates the theory of the plaintiff’s amended declaration, that the motorman is to be held to have anticipated the plaintiff’s attempt to make the crossing ahead of his car regardless of the danger to herself involved therein; that she was not intending, as she should have intended, to stop- before reaching the track, although it was easily possible for her to do so instantly, and that the peril of her situation was to be deduced from this course of reasoning, then it only needs to be said, no matter what the negligence of the defendant, the plaintiff, by continuing in motion towards the track upon which the car was approaching at a terrific rate of speed, by not reassuring herself of the safety of that attempt just before entering the track or before she got so close thereto that it would be impossible for her to stop if necessary, by failing to stop and allowing the car to go by, as was her duty, was guilty of continuing and continuous acts of negligence which ultimately brought her directly into the path of the car and to her Injury, in which case, call the negligence of the defendant what you will — ordinary, precedent, gross, subsequent or what not — the active negligence of the plaintiff operating in conjunction and concurrently therewith in any view of the law as announced in every jurisdiction, precludes the possibility of her recovery.”
It is further said, in argument:
“This is not the case of a person using the part of the street occupied by the tracks as a thoroughfare while proceeding on his way ahead of and in the same direction the car is going and being run down by a motorman. It is a case of an unexpected and admittedly imprudent attempt (at least in its initiation) to cross the street car track at right angles. Subtle refinement and clever hair splitting will not serve permanently to deter the courts from applying the familiar rules of law to such situations. If a case of subsequent negligence is made for the jury in the case at bar, then we have, willy nilly, frittered away the doctrine of contributory negligence in right angle street car crossing cases; since in every case where an attempt is made to cross ahead of a street car the question of whether there was a timely discovery of the situation will' turn upon whether a motorman could have stopped his car after the attempt was made, and it would follow that if he could, his negligence will authorize a recovery notwithstanding the contributory negligence of the plaintiff. With such a rule, there could no longer be any such thing as contributory negligence defeating a recovery in any case where the defendant’s negligence consists of failing to control the car.”
I think that counsel has precisely stated the theory of plaintiff, the effect of the testimony of plaintiff’s witnesses. The witness Donnelly and the regular and the student motorman, each professes to have become aware, before plaintiff’s car had actually gone upon the rail, that she would drive it there and that unless the street car was stopped, or its speed greatly les sened, there would be a collision. Neither of them professes to have believed that plaintiffs actions indicated knowledge of the approach of the street car or that she would stop her car before attempting to •cross the rails. On the contrary, from about the time her car was seen, an effort was made to avert a disaster which seemed to be imminent, to perform a duty then arising out of circumstances as they appeared. There was, at least, testimony tending to prove this. It is true that her negligent conduct continued — was continuous — almost from the time she started her car (because she did not from a proper position look for the street car, as she ought to have done, and she proposed, she testified, to drive on across Porter street) until she discovered her peril, when she made some effort to avert disaster. It is also true, if the testimony of the witnesses referred to is believed, that her negligent conduct and apparent peril were discovered by defendant’s servants at some time before the street car reached Eighth street. j
The remainder of the quoted argument for appellant contains the reasoning of this court in the opinion delivered in the case of Fritz v. Railway Co., 105 Mich. 50, 54, 55. In that case the driver of a milk wagon directly ahead of a moving street car which he had not observed suddenly turned his horses to cross the track. It was “an attempt to cross the track, unexpected and sudden.” And it was said:
“If we assume that, under these circumstances, the plaintiff had by this act placed himself in a position where his negligence might have been discovered and the car brought under control, it will result that, in every case where an attempt to cross ahead of a street car is made, the question of whether there was a timely discovery of the situation will turn upon whether the motorman could have stopped his car after the attempt was made, and it would follow that, if he could, his negligence will authorize a recovery, notwithstanding the contributory negligence of plaintiff.”
In Labarge v. Railroad Co., 134 Mich. 139, it was said:
"It may be conceded that, where one wilfully injures another, the doctrine of contributory negligence is not involved, because the injury is not negligent, but intentional. Again, where one is seen in danger, though placed there through his own negligence, one. who, thus seeing him, omits ordinary care to avert an injury to him, is not alone negligent, but is wanton, and, as wantonness of this kind is akin to wilfulness, there is an opportunity for applying the same rule, and defendants have been held liable under such circumstances. And again, we can conceive of a degree of recklessness which, by reason of its coincidence with probable disaster, is closely allied to the foregoing, and should perhaps be governed by the same rule; but it does not follow that all acts that counsel or jurors might, in the light of subsequent events, be inclined to call reckless, should be treated as something more than negligence, and classed with intentional, rather than with negligent, acts, when it cannot be said that it was coincident with a probable disaster.”
A reference to decisions is made, and it is said:
"In all of these cases the negligence of the defendants occurred when there was a condition of danger, and it may be said that it was unimportant how such antecedent condition arose, or whether it was due to the negligent act of the plaintiff or not. The defendant’s wrong being a want of ordinary care, which care would have prevented the accident notwithstanding plaintiff’s antecedent negligence, it was responsible for it, and plaintiff’s antecedent negligence being at most a remote cause, and there being no other negligence on the part of the plaintiff, he might recover. It has in some cases been said that his negligence might be said to be a remote, and not the proximate, cause.
“We have held that a defendant who backs its cars at high speed across a highway in a city or village, without having a brakeman upon or in charge of the same, is chargeable with gross, i. e., great, negligence, and cannot maintain the defense of contributory negligence, where the presence of such brakeman, and the use of ordinary care, would have shown plaintiff’s danger, and made it possible to avert the accident. This rule is subject to the exception of such negligence on the part of the plaintiff as occurs after his discovery of the danger. In our opinion, the term ‘gross,’ as applied to negligence, has no such broad legal effect as is contended for in this case; but whenever the defendant sees a plaintiff in danger, or by exercising only ordinary care in the discharge of his duty should discover such danger, in time to avert an injury, and either fails, after discovering it, to take steps to avert it, or fails to discover the danger, the fact that the plaintiff’s danger arose, in the first place, through his own negligence, does not prevent his recovery for an injury sustained. * * *
“The doctrine of responsibility, notwithstanding discovered negligence of the plaintiff, does not apply where the plaintiff’s negligence is, in the order of causation, either subsequent to, or concurrent with, that of the defendant. Smith v. Railroad Co., 114 N. C. 728 (19 S. E. 863, 923, 25 L. R. A. 287); Holmes v. Railway Co., 97 Cal. 161 (31 Pac. 834). Thus it it said that while one discovered by an engineer, negligently walking on a railroad, may be entitled to recover, if the engineer, apprehending the danger, makes no effort to avert it. He cannot recover if, after becoming.aware of the danger, he makes no proper effort to escape. International, etc., R. Co. v. Garcia, 75 Tex. 583 (13 S. W. 223); Louisville, etc., R. Co. v. Webb, 90 Ala. 185 (8 South. 518, 11 L. R. A. 674); Smith v. Railroad Co., supra. And in Ochsenbein v. Shapley, 85 N. Y. 214, this was held as to one who, after notice that a boiler is to be tested in a reckless manner, persists in standing by until it explodes.”
In Fike v. Railroad Co., 174 Mich. 167, the trial court, in instructing the jury, said, p. 202:
“Even though you may believe from the evidence that the plaintiff or Charles Fike was guilty of negligence (in driving with a team upon a railroad track, where defendant’s train ran them down) yet if you further believe that such negligence of both the plain tiff and Charles Fike ceased before the negligence of the defendant began, and did not again occur before or at the time of the collision, then the jury should find for the plaintiff.”
This court had no occasion to approve or disapprove this instruction, it being favorable to defendant. But,, assuming that it is a correct statement of applicable law, no violence is done to any established rule of the law of negligence when it is held that upon the peculiar facts disclosed by this record, namely, the admitted discovery of plaintiff’s peril by the agents of defendant, it became the duty of those agents to seek to avert the threatened collision, neglect or refusal to perform the duty being subsequent negligence.
There is no evidence of wanton or wicked conduct of defendant’s agents after discovering the peril of plaintiff. Quite the contrary is proven. It may be said, as matter of law, that there was no negligence in discovering— apprehending — plaintiff’s peril. If they were negligent, it was in not sooner bringing the street car to a stop. The humanitarian doctrine invoked by plaintiff is available to her only when it appears that the operator of the car could have stopped it before it reached the Eighth street crossing. According to the testimony, the street car was about 30 feet in length and was moving, when plaintiff’s movements were discovered, at the rate of 25 miles an hour. This is more than a car’s length each second. Assuming, and the assumption is favorable to the plaintiff, that instant action should have begun when the car was 90 feet from the crossing point, about three seconds of time elapsed between the discovery of the peril and the collision. Assuming, as I think the rule requires us to do, basing negligent -conduct upon the discovery of peril by the student motorman, that the car was less than 90 feet away, the elapsed time is proportionally diminished. The student motorman, in charge of the devices employed in stopping the car, in his anxiety mismanaged them, or did not manage them at all. The instructor motorman acted promptly when the situation was discovered by him. The testimony concerning what was done to stop the car was before the jury and it cannot be said, as matter of law, that it did not present for them an issue of fact.
The testimony of the policeman (his opinion) should not have been received, but, in view of the testimony of the motorman, based upon his own experience, and not a mere expression of opinion, it should not be held that admitting it was reversible error.
The judgment must be affirmed.
Bird, Moore, Steere, Brooke, and Stone, JJ., concurred with Ostrander, C. J. Kuhn and Fellows, JJ., concurred in the result. | [
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] |
Marilyn Kelly, J.
This is a case of first impression. The prosecution appeals, arguing that the circuit court erred in ruling that a search warrant issued by a district court can be executed only in the county of issuance. Its alternative issue is that, even if the search warrant were invalid, the evidence was properly seized. We reverse.
Defendant owns and operates a pharmacy in Isabella County. The prosecutor filed a complaint in the 55th District Court, Ingham County, charging defendant with health care and Medicaid fraud. MCL 752.1003(1); MSA 28.547(103X1); MCL 400.607(1); MSA 16.614(7)(1). The crimes charged can be prosecuted in Ingham County. MCL 400.611(1); MSA 16.614(H)(1). The prosecutor obtained the evidence against defendant pursuant to a search warrant issued in Ingham County and executed in Isabella County.
After the district court bound defendant over for trial, the circuit court quashed the information, finding the search warrant invalid. The judge remanded to the district court, instructing it to determine whether sufficient evidence existed to bind over defendant absent the illegally seized evidence. On remand, the prosecution argued that the stricken evidence was admissible based either on the inevitable discovery doctrine or on defendant’s lack of privacy in the items seized. The district court again bound defendant over for trial. The circuit court then quashed the information and dismissed the case.
On appeal, the prosecution argues that there is no constitutional or statutory provision limiting the district court’s authority to issue a search warrant for execution outside its territorial boundaries. It reasons, therefore, that a warrant issued in one county can be executed outside the county of issuance and that the district court has statewide jurisdiction to issue search warrants. The Michigan Constitution provides:
The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house. [Const 1963, art 6, § 1.]
Defendant argues that the statutory language chosen, "courts of limited jurisdiction,” means the limitation applies to territory as well as subject matter.
However, the statutes interpreting the limited jurisdiction of the district court do not limit the territory. The statute creating the district court refers to the court in the singular and states that the court is divided into administrative units called judicial districts. MCL 600.8101(1); MSA 27A.8101(1). The Michigan Supreme Court has recognized that Michigan has but one district court. Judges of the 74th Judicial Dist v Bay Co, 385 Mich 710, 723; 190 NW2d 219 (1971).
In contrast, the statute conferring jurisdiction on the Detroit Recorder’s Court limits its jurisdiction to crimes committed within the corporate limits of the City of Detroit. MCL 725.10a; MSA 27.3950(1). See also MCL 726.11; MSA 27.3561, repealed by 1980 PA 440, § 5; People v Washington, 134 Mich App 504, 509; 351 NW2d 577 (1984). Likewise the repealed statute conferring jurisdiction on the Common Pleas Court in Detroit gave it the same jurisdiction as the justices of the peace had before the courts were consolidated. MCL 728.1 et seq.; MSA 27.3651 et seq., repealed by 1972 PA 211, § 1; 1980 PA 438, § 5. The jurisdiction of justices of the peace was limited to the township or city in which they were elected. MCL 600.6601; MSA 27A.6601, repealed by 1974 PA 297, § 2.
Unlike the Detroit Recorder’s Court and the abolished Common Pleas Court of Detroit, the statutes conferring jurisdiction on the district court are not territorially limited. Likewise, the statute governing the issuance of search warrants does not limit the authority of the warrants territorially. MCL 780.651; MSA 28.1259(1).
No constitutional or statutory limits exist which prevent the district court from issuing search warrants to be executed outside the county of issuance. Since there is only one district court within the state, there is no need for explicit statutory authorization allowing the district court to issue statewide search warrants. We conclude that the circuit court erred in suppressing the evidence and quashing the information.
Based on our disposition of this matter, we decline to address the prosecution’s alternative theory on appeal.
Reversed and remanded to the circuit court for. trial. We do not retain jurisdiction.
See MCL 600.8301; MSA 27A.8301; MCL 600.8302; MSA 27A.8302; MCL 600.8306; MSA 27A.8306; MCL 600.8308; MSA 27A.8308; MCL 600.8311; MSA 27A.8311. | [
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Marilyn Kelly, J.
BACKGROUND AND ISSUES ON APPEAL
Defendants appeal as of right from an order of the Ingham Circuit Court which granted summary disposition to plaintiffs and enjoined defendants from implementing Executive Order 1991-31. They argue on appeal that plaintiffs lacked standing and that the claims are nonjusticiable political questions. They assert that the Governor is absolutely immune from suit and that his executive order was a valid exercise of authority granted him by the Michigan Constitution. Plaintiffs Michigan Environmental Protection Foundation et al. (mepf) cross appeal, arguing that the trial court erred in denying them attorney fees and costs and in failing to find a second executive order, EO 1991-33, unconstitutional.
EO 1991-31 alters the state’s role with respect to its natural resources by expressly abolishing the existing Department of Natural Resources (dnr) and creating a new one. The trial court characterized the order as an attempt to accomplish the most comprehensive reorganization of state government since the implementation of the 1963 constitution. A second order, EO 1991-33, creates an Environmental Science Board to advise the Governor on environmental issues.
The circuit court ruled that all the plaintiffs had standing. It then found that EO 1991-31 violated the separation of powers clause of the Michigan Constitution. Const 1963, art 3, § 2. In addition, it determined that, in issuing EO 1991-31, the Governor exceeded his authority under both the Michigan Constitution and the Executive Organization Act, MCL 16.101 et seq.; MSA 3.29(1) et seq. It found the Governor lacked authority to appoint the head of the Natural Resources Commission (nrc). It ruled he was not empowered to abolish commissions and boards whose functions include the holding of public hearings. The court concluded by ruling that EO 1991-31 was not violative of the Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq., Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq., Revised Judicature Act, MCL 600.101 et seq.; MSA 27A.101 et seq., or substantive due process. The court refused to award attorney fees on the basis that a public question was involved.
We affirm the actions of the circuit court.
THE PLAINTIFFS HAVE STANDING
Defendants argue initially that plaintiffs lacked standing to bring this action. The requirement of standing ensures that only those who have a substantial interest in a dispute will be allowed to come into court to be heard. House Speaker v State Administrative Bd, 190 Mich App 260, 265; 475 NW2d 440 (1991), lv gtd 439 Mich 1013 (1992), citing Highland Recreation Defense Foundation v Natural Resources Comm, 180 Mich App 324, 328; 446 NW2d 895 (1989). Plaintiffs must show both a substantial interest in the dispute and that they will be detrimentally affected by the litigation in a manner different than the citizenry at large. House Speaker, 266, citing Muskegon Building & Construction Trades v Muskegon Area Intermediate School Dist, 130 Mich App 420, 423-424; 343 NW2d 579 (1983).
In House Speaker, certain legislators brought suit claiming that the state administrative board’s transfer of funds within various state departments exceeded the board’s statutory authority and violated the state constitution. They asserted that the intertransfers could be accomplished only by the state budget director, subject to review by legislative appropriations committees. Alternatively, they argued that, if the Management and Budget Act, MCL 18.1101 et seq.; MSA 3.516(101) et seq., authorized the transfers, the act was unconstitutional, as it delegated legislative power to the executive branch of state government. This Court determined that, under either theory, the legislators, members of the appropriations committees or their appointors, clearly asserted substantial interests different in kind from those of the citizenry at large. Id., 266-267.
As in House Speaker, the legislator plaintiffs here argue that the Governor violated the separation of powers clause by exceeding the scope of legislative power which Michigan’s constitution grants him. Const 1963, art 5, § 2. The legislator plaintiffs are: Lewis Dodak, Speaker of the Michigan House of Representatives; Thomas Alley, Chair of the House Committee on Conservation, Recreation and the Environment; Tracey Yokich, member of the House Committee on Conservation, Recreation and the Environment; John D. Cherry, the Senate Minority Floor Leader; and Arthur Miller, the Senate Minority Leader.
The Michigan Legislature is constitutionally mandated to protect the natural resources of this state from pollution, impairment and destruction. The executive order challenged eliminates a substantial number of boards and commissions which the Legislature created for the purpose of protecting the environment. See Const 1963, art 4, § 52. We agree with the trial court that the legislator plaintiffs clearly have asserted substantial interests as legislators different in kind from those of the citizenry at large. House Speaker, 267.
Plaintiffs Michigan United Conservation Clubs et al. (mucc) and mepf also unquestionably had standing to bring this action and to obtain the relief sought and granted. The trial court ruled that their standing was based on their status as taxpayers. MCR 2.201(B)(4). Mucc and mepf are nonprofit corporations, organized for civic, protective or improvement purposes. They and five or more of their members, who own property assessed for direct taxation by the county in which they reside, filed this action. MCR 2.201(B)(4)(a) and (b). In concert with the legislator plaintiffs, these plaintiffs alleged that the executive order exceeded the Governor’s authority and that any expenditure of funds by a new dnr would be illegal. MCR 2.201(B)(4).
The standing of mucc and mepf may be based, also, on their status as nonprofit corporations which were incorporated to establish and protect the rights and interests of their members. See Muskegon Building Trades, 428. Individual plaintiffs are members of mucc or mepf and either are also members of, or regularly attend and speak at meetings of, boards and commissions to be abolished under EO 1991-31. These plaintiffs clearly have a substantial interest different in kind from the citizenry at large. See Muskegon Building Trades, supra.
nonjusticiable political questions are not INVOLVED
Defendants next assert that the trial court should have used its "equitable discretion” and dismissed this case, because the matters at issue are nonjusticiable political questions. They point out that the doctrine of equitable discretion should be applied, since the Legislature may: 1) elect to reject the two contested executive orders by mustering a majority vote of both the House and Senate; 2) overturn the orders through subsequent legislation; and 3) reduce the orders’ effectiveness through the appropriations process.
The federal doctrine of equitable discretion has been applied "where a congressional plaintiff could obtain substantial relief from his fellow legislators through the enactment, repeal, or amendment of a statute.” House Speaker, 270, citing Dornan v United States Secretary of Defense, 271 US App DC 195, 196; 851 F2d 450 (1988). Here, the legislator plaintiffs seek a judicial determination that the Governor unlawfully usurped authority which the constitution granted to the Legislature. They argue that they could not obtain "substantial relief’ if the Legislature rejected, overturned or reduced the effectiveness of EO 1991-31 and EO 1991-33; no legislative action could prevent the Governor from once again exceeding his authority in the guise of yet another executive reorganization. We agree and decline to apply the federal doctrine of equitable discretion to this case.
The trial court was correct in determining that this case does not present nonjusticiable political questions. The decision whether the constitution committed a matter to another branch of government, or whether the actions of a branch exceeded the authority committed, is a matter of constitutional interpretation. As such, the decision is the responsibility of the courts as the ultimate interpreter of the constitution. See Baker v Carr, 369 US 186, 211; 82 S Ct 691; 7 L Ed 2d 663 (1962).
THE GOVERNOR IS NOT IMMUNE FROM SUIT
Defendants argue that the Governor is absolutely immune from suit in his exercise of legislative authority. They point out that state legislators and the Legislature itself enjoy a broad-based immunity. They are immune from suit for their enactment of legislation and other acts committed within their sphere of legislative activity. 77th Dist Judge v Michigan, 175 Mich App 681, 697; 438 NW2d 333 (1989), citing Supreme Court of Virginia v Consumers Union of the United States, 446 US 719, 731-734; 100 S Ct 1967; 64 L Ed 2d 641 (1980); Tenney v Brandhove, 341 US 367; 71 S Ct 783; 95 L Ed 1019 (1951).
In reviewing the complaint in this case, we see that plaintiffs asserted that the Governor acted outside the authority granted to him by the constitution to reorganize the executive branch. In essence, they alleged that the Governor acted outside his sphere of legislative authority. See 77th Dist Judge, supra. Even legislators are not immune from suit when acting outside their "sphere” of authority. Id.
Plaintiffs have sought a declaratory judgment and an injunction, equitable relief, not money damages. Actions seeking only equitable relief do not normally fall within the purview of governmental immunity. Hadfield v Oakland Co Drain Comm’r, 430 Mich 139, 152, n 5; 422 NW2d 205 (1988). We conclude, based on the allegations in the complaint and the type of relief requested, that the Governor is not immune from liability. See 77th Dist Judge, supra; Hadfield, supra.
THE GOVERNOR LACKED AUTHORITY TO CREATE A NEW DNR
The heart of defendants’ appeal is that EO 1991-31 represents a valid exercise of authority granted to the Governor by the Michigan Constitution. Const 1963, art 5, § 2. Defendants argue that the Governor had the authority to: reorganize the dnr; transfer functions to the director of the new dnr; appoint the chairperson of the Natural Resources Commission; and abolish commissions whose function it is to hold public hearings.
The Governor derives authority to reorganize the dnr from Const 1963, art 5, § 2, which provides:
All executive and administrative offices, agencies and instrumentalities of the executive branch of state government and their respective functions, powers and duties, except for the- office of governor and lieutenant governor and the governing bodies of institutions of higher education provided for in this constitution, shall be allocated by law among and within not more than 20 principal departments. They shall be grouped as far as practicable according to major purposes.
Subsequent to the initial allocation, the governor may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration. Where these changes require the force of law, they shall be set forth in executive orders and submitted to the legislature. Thereafter the legislature shall have 60 calendar days of a regular session, or a full regular session if of shorter duration, to disapprove each executive order. Unless disapproved in both houses by a resolution concurred in by a majority of the members elected to and serving in each house, each order shall become effective at a date thereafter to be designated by the governor.
Under the first paragraph of § 2, the Legislature had two years to complete its allocation of functions, powers and duties to the principal departments. Const 1963, Schedule and Temporary Provisions, § 12. Had it failed to complete it within that period, the Governor had specific authority to act in its stead. Id. The Legislature did in fact make the allocation in a timely fashion by passing the Executive Organization Act (eoa). The act created nineteen principal departments of state govern ment, one of them being the dnr. MCL 16.104; MSA 3.29(4).
In ruling that the Governor exceeded his authority in creating a new Department of Natural Resources, the circuit court found he violated the separation of powers doctrine. Const 1963, art 3, § 2. This doctrine provides that no person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly permitted.
The Supreme Court has laid down two rules of construction which we follow when interpreting the state constitution:
First, the interpretation given the constitution should be "the sense most obvious to the common understanding”; the one which "reasonable minds, the great mass of people themselves, would give it.” Secondly, the "circumstances surrounding the adoption of the constitutional provision and the purpose sought to be accomplished may be considered.” [Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 745; 330 NW2d 346 (1982); citations omitted.]
Legislative implementations of constitutional provisions are entitled to weight but do not control our rulings. Durant v Dep’t of Education (On Remand), 129 Mich App 517, 522; 342 NW2d 591 (1983), modified 424 Mich 364; 381 NW2d 662 (1985).
Former Michigan Governor George Romney argues in his brief amicus curiae that the second paragraph of § 2 is self-executing. As a result, he concludes, the Executive Organization Act should not be considered in our interpretation of this constitutional provision.
The Michigan Supreme Court has specifically found that the provisions of § 2 are not self-execut ing. McDonald v Schnipke, 380 Mich 14, 26; 155 NW2d 169 (1968). In Soap & Detergent, the Court made distinctions between the first and second paragraphs of §2, but did not differentiate with respect to the question of self-execution. Therefore, we find that the Executive Organization Act is the enabling act of both paragraphs of § 2. See Soap & Detergent, 748.
Defendants argue that the holding in Soap & Detergent should control the outcome of this case. We disagree. In Soap & Detergent, the Governor had transferred the rulemaking power of the Water Resources Commission by executive order to the dnr and its department head, the nrc. The plaintiffs challenged the nrc’s authority to promulgate a rule limiting phosphate content in detergents.
In interpreting §2, the Court recognized that the intent of the constitutional convention was to grant the Governor full legislative power to promote the most efficient possible executive department. Id., 747. The Court indicated that an executive order transferring rulemaking power from one executive agency to another is a change in the organization of the executive branch of government. It ruled that the executive order was within the Governor’s power to reorganize the executive branch under the Michigan Constitution.
Soap & Detergent is clearly distinguishable from this case. There, the Governor was merely transferring functions. Here, the Governor was eliminating functions and creating an entirely new dnr. Furthermore, the Court in Soap & Detergent recognized that § 2 does not vest unlimited legislative power in the executive branch. Id., 752. In fact, the area of executive exercise of legislative power is limited and specific. Id. Although the constitution granted the Governor authority to allocate functions of new principal departments, that authority took effect only if the Legislature failed to make its allocation within two years. Const 1963, Schedule and Temporary Provisions, §12.
Any legislative power that the Governor possesses must be expressly granted to him by the constitution. Const 1963, art 3, § 2. Although the Governor has the express power to reallocate functions and reorganize executive departments, no provision of the Michigan Constitution expressly authorizes him to create a new principal department. Our interpretion of art 5, § 2 is supported by the Executive Organization Act, constitutional debates and the "common understanding” of the provision. We agree with the trial court that, in creating a new dnr, the Governor violated the separation of powers doctrine and exceeded his authority under Const 1963, art 5, § 2. Therefore, we find EO 1991-31 unconstitutional.
THE GOVERNOR MAY NOT ABOLISH THE FUNCTION OF COMMISSIONS TO HOLD PUBLIC HEARINGS
Defendants allege that the trial court erred in concluding that the Governor could not abolish eighteen boards and commissions which provide citizens the opportunity for public hearings.
The Governor, in exercising his reorganization powers under the constitution, uses the transfer mechanisms established under the Executive Organization Act. See Soap & Detergent, 748-750. One mechanism, called a Type hi transfer, allows the Governor to abolish existing boards or commissions and to assign their functions to the principal departments. MCL 16.103(c); MSA 3.29(3)(c). However, although he is empowered to transfer, nowhere is the Governor granted authority to abolish functions of the boards and commissions or of a principal department.
The boards and commissions which EO 1991-31 would abolish allow citizens to voice their opinions through public hearings. After public input, some of the boards and commissions are statutorily mandated to make recommendations and reports to the Legislature, the Governor, the dnk or a combination of them. See MCL 323.2; MSA 3.522; MCL 320.504(a); MSA 13.244(a). Some commissions have the authority to make substantial decisions or issue permits. MCL 336.15; MSA 14.58(5).
Defendants argue that the executive order merely transfers the functions of these boards and commissions to the head of the new dnr. However, defendants have failed to set forth any credible evidence establishing that the functions would be preserved under the new dnr. They ask, as a leap of faith, that we believe the new dnr director and staff would have time and resources to perform the functions of eighteen boards and commissions. We cannot but believe, instead, that the Governor’s actions have eliminated the hearing function. Therefore, we agree with the trial court that the Governor was without authority to abolish the boards and commissions as he did.
TRANSFERS MUST BE SUPERVISED BY THE PRINCIPAL DEPARTMENT HEAD
Defendants argue that the trial court erred in finding that governmental functions transferred must be supervised by the head of the department receiving them.
Powers granted under Const 1963, art 5, § 2 must be exercised pursuant to the Executive Orga nization Act, since the constitutional provision is not self-executing. McDonald, supra. Although statutes cannot supersede the constitution, constitutional provisions should not be read in isolation. See generally Soap & Detergent, supra.
The Executive Organization Act . provides that, in Type n and m transfers, the head of a principal department must direct and supervise the administration of the transferred department’s functions. MCL 16.107(b); MSA 3.29(7)(b). The Governor’s EO 1991-31 retains the nrc as the head of the new dnr. ilowever, it calls for the director of the new dnr, not the nrc, to supervise and direct the functions transferred to the new dnr.
In ruling on this question, the circuit court provided this apt analysis:
The Order purports to continue the Natural Resources Commission as the head of the New Department. However, the Order eviscerates the Natural Resources Commission by placing the New Department under the executive direction of the Director, and the New Department and the Natural Resources Commission under the supervision of the Governor. This changes the entire nature of the Commission.
We agree with the trial court that the Governor exceeded his constitutional and statutory authority by delegating to the director of the new dnr the authority to supervise and administer the transferred functions.
THE GOVERNOR HAS NO AUTHORITY TO APPOINT THE CHAIR OF THE NRC
Defendants assert that, contrary to the circuit court’s ruling, the Governor does have authority to appoint the chair of the Natural Resources Com mission. Statutory authority provides that the chair of the nrc is selected by the commission’s own members. MCL 16.354; MSA 3.29(254). Nothing in either Const 1963, art 5, § 2 or the eoa gives the Governor power to transfer from the commission’s members to himself the selection of the chair. Moreover, the eoa mandates that any statutory authority transferred under it must be transferred to the head of a principal department, which in this case is the nrc. MCL 16.103(b); MSA 3.29(3)(b). Therefore, the Governor lacks authority to appoint the chair of the nrc.
EO 1991-33 CANNOT BE IMPLEMENTED
Cross appellant mepf argues that the trial court erred in failing to determine whether EO 1991-33 is illegal and unconstitutional. The order creates the Michigan Environmental Science Board, an independent entity within the Department of Management and Budget. It authorizes the board to advise the Governor, the nrc, the new dnr and other agencies regarding the protection and management of the natural resources in the state.
In deciding whether EO 1991-33 is unconstitutional, we must first determine whether the order can be implemented without EO 1991-31. The Michigan Supreme Court has declared that the same rules of construction are used for executive orders as for statutes. Soap & Detergent, 757. The Court drew the analogy, because executive orders are quasi-legislative in nature. Id. Therefore, we conclude that the statutory doctrine of in pari materia may be applied to executive orders.
The doctrine of in pari materia may be applied when statutes have a common purpose or relate to the same person, thing, or class of persons or things. People v Rogers, 438 Mich 602, 608; 475 NW2d 717 (1991), citing Palmer v State Land Office Bd, 304 Mich 628, 636-637; 8 NW2d 664 (1943). All statutes which have the same subject or general purpose should be read together as one law. Rogers, supra.
In this case, EO 1991-31 and EO 1991-33 have a common purpose: to make major changes in the existing structure of the dnr. The executive orders propose to eliminate the current dnr and to replace it with an agency and an advisory board controlled by the Governor. Based on the similar purpose of these orders, we conclude that it is appropriate to read them in pari materia.
EO 1991-33 provides that the board is to report its findings to the new dnr and to advise it on issues affecting the management of the state’s natural resources. Without EO 1991-31, there is no new dnr to which to report. The plain language of EO 1991-33 permits no other conclusion than that it contemplated and assumed the implementation of EO 1991-31. We have declared EO 1991-31 unconstitutional. Therefore, we make the specific finding that EO 1991-33 cannot be implemented.
THE TRIAL COURT PROPERLY REFUSED TO AWARD ATTORNEY FEES AND COSTS
The mepf argues also that the trial court erred in failing to award it attorney fees and costs. This plaintiff sought attorney fees under the Open Meetings Act, Freedom of Information Act and the Civil Rights Act. MCL 15.271(4); MSA 4.1800(21) (4); MCL 15.240(4); MSA 4.1801(10X4); 42 USC 1988. The trial court found that EO 1991-31 did not violate the Open Meetings Act (oma) or the Freedom of Information Act (foia). Plaintiff mepf does not appeal these rulings. The court did not decide whether the order violated the Civil Rights Act. It denied attorney fees and costs on the basis that a public question was involved.
Attorney fees are generally not recoverable as an element of costs unless expressly allowed by statute or court rule. DeWald v Isola (After Remand), 188 Mich App 697, 699; 470 NW2d 505 (1991), citing Matras v Amoco Oil Co, 424 Mich 675, 695; 385 NW2d 586 (1986). If a court finds violations of either the oma or the foia, it must award attorney fees. See MCL 15.271(4); MSA 4.1800(21)(4); MCL 15.240(4); MSA 4.1801(10X4). A court has discretion whether to award attorney fees under the Civil Rights Act. 42 USC 1988.
In this case, the court did not decide whether EO 1991-31 violates the Civil Rights Act. However, it is clear that the civil rights claim was not instrumental in obtaining the permanent injunction against the implementation of EO 1991-31. See Dorfman v Dep’t of Transportation, 155 Mich App 57, 62-63; 399 NW2d 437 (1986). Therefore, mepf was not entitled to attorney fees under that claim. Id. Further, the court specifically found that EO 1991-31 did not violate the oma or the foia. Since mepf did not appeal these rulings, we must conclude that it is not entitled to attorney fees; it did not prevail on the claims under which it sought them.
Mepf claimed in its complaint that EO 1991-33 also violated the oma and the foia. There is no need for us to review this issue in light of our disposition of EO 1991-31 and the relationship between the two executive orders. However, review of it is necessary in order for us to determine whether mepf was entitled to attorney fees.
The foia allows for the recovery of attorney fees when the person filing the complaint asserts a right to inspect or receive a copy of a public record. MCL 15.240(4); MSA 4.1801(10X4). From the plain language of this section, it is clear that the action filed by mepf is not the type that the Legislature contemplated to be appropriate for attorney fees. Therefore, we conclude that mepf is not entitled to attorney fees under this act.
Mepf also asserts a right to attorney fees under the oma. MCL 15.271(4); MSA 4.1800(21X4) provides:
If a public body is not complying with this act, and a person commences a civil action against the public body for injunctive relief to compel compliance or to enjoin further noncompliance with the act and succeeds in obtaining relief in the action, the person shall recover court costs and actual attorney fees for the action.
The purpose of the oma is to promote openness and accountability in government. It is to be interpreted broadly to accomplish this goal. Booth Newspapers, Inc v University of Michigan Bd of Regents, 192 Mich App 574, 580; 481 NW2d 778 (1992), citing Booth Newspapers, Inc v Wyoming City Council, 168 Mich App 459, 466; 425 NW2d 695 (1988); Detroit News, Inc v Detroit, 185 Mich App 296, 300; 460 NW2d 312 (1990). The oma provides that all decisions and meetings of a public body must be open to the public. MCL 15.263; MSA 4.1800(13).
Mepf claims that EO 1991-33 was enacted to avoid the oma and the foia. It argues that the Science Board is "probably not a public body” as defined under the statute. MCL 15.262(a); MSA 4.1800(12)(a). However, neither the oma nor case law supports a ruling that the mere formation of an advisory board through an executive order would violate the oma. Therefore, we decline to award attorney fees to mepf under this act.
Although mepf is not entitled to attorney fees, it may be entitled to costs. Mepf was not a prevailing party on its claims under which it sought attorney fees. However, it was a prevailing party on its permanent injunction claim. See MCR 2.625(B)(2).
The decision whether to award costs was a discretionary one and was in the hands of the trial judge. See MCR 2.625(A)(1) and (B)(2). Michigan courts frequently refuse to award costs when cases involve public questions. American Aggregates Corp v Highland Twp, 151 Mich App 37, 54; 390 Mich 192 (1986), citing Ettinger v Avon Twp, 64 Mich App 529; 236 NW2d 129 (1975); Turkish v City of Warren, 61 Mich App 435; 232 NW2d 732 (1975), modified on other grounds 406 Mich 137; 277 NW2d 475 (1979). That was the basis for refusal of costs in this case. We are unwilling to reverse the judge’s exercise of discretion on this issue.
Affirmed.
Wahls, P.J., concurred.
Defendants are not appealing from the trial court’s ruling that the Governor may not delegate power to persons not authorized by statute to exercise it. They are also not appealing from the ruling that the Governor may not create new levels of adjudicatory hearings.
We found mucc’s brief, which contained an outline of the abolished boards and commissions, particularly helpful. | [
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15,
-30,
-19,
-63,
5,
-28,
-13,
28,
-18,
48,
28,
14,
-25,
-10,
-24,
36,
-5,
-9,
13,
24,
-45,
-34,
-85,
15,
16,
24,
23,
-18,
-10,
-25,
-1,
40,
-39,
4,
48,
-11,
9,
8,
-30,
3,
-1,
-9,
10,
-26,
4,
13,
61,
-1,
-37,
10,
-23,
26,
-17,
21,
30,
15,
-1,
30,
-6,
5,
23,
-8,
51,
35,
-20,
22,
14,
40,
2,
-7,
25,
29,
-11,
-29,
28,
37,
-45,
0,
36,
2,
4,
-39,
-38,
-21,
-33,
-8
] |
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