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Shepherd, J.
This appeal concerns a revised rating plan for private passenger automobile insurance filed by petitioner, Allstate Insurance Company, with the Michigan Insurance Bureau. Respondents, the Department of Insurance and the Commissioner of Insurance, appeal as of right from the circuit court’s September 14, 1989, opinion and order. The circuit court’s order affirmed the commissioner’s April 21, 1988, final decision and order finding Allstate’s October 23, 1934, revised rating plan for private passenger automobile insurance to be in violation of the now-amended subsections 2 and 5 of § 2111 of the Insurance Code, MCL 500.2111(2) and (5); MSA 24.12111(2) and (5); see 1980 PA 461, §2111(2) and (5). The effect of that portion of the order was to determine that rates charged to certain policyholders were too high in relation to the rates charged other policyholders. The circuit court’s order also reversed that part of the commissioner’s final decision and order that found Allstate’s rating plan to be in violation of MCL 500.2027; MSA 24.12027. The effect of the circuit court’s holding was to, prohibit the respondents from either imposing penalties on the petitioner or requiring that refunds be made to policyholders as a result of the excessive rates. The only remedy would be a pro spective change in rates. The latter ruling is now the only matter at issue in this appeal.
In 1979, the Legislature passed the Essential Insurance Act, 1979 PA 145. The purpose of the act was described in the analysis of subsequent legislation, Senate Legislative Analysis, SB 647, March 3, 1986:
[The Essential Insurance Act] responded to claims that the voluntary insurance market was operating unfairly and that some persons were being denied, or being charged unfairly high rates for, insurance for their homes and cars not because of factors over which they had some control, such as their driving records, but because of other factors over which they had relatively little control, such as where they lived.
In order to address this concern, § 2111(5) of the Insurance Code until February 28, 1986, provided:
Notwithstanding other provisions of this chapter, automobile insurance risks shall be grouped by territory, and territorial base rates for coverages shall be established as follows:
(a) An insurer shall not be limited as to the number of territories employed in its rating plan. However, an insurer shall not employ more than 20 different territorial base rates for an automobile insurance coverage. A territorial base rate may be made applicable in 1 or more territories contained in the rating plan of the insurer.
(b) An insurer shall not employ a territorial base rate for an automobile insurance package policy that is less than 45% of the highest territorial base rate for the same policy, all other rating classifications being the same.
(c) An insurer shall not employ a territorial base rate in a territory for an automobile insurance package policy that is less than 90% of the territorial base rate employed in any adjacent territory for the same policy, all other rating classifications being the same.
The provisions of former §2111(5)(b) were sometimes referred to as the "high/low constraints.” The provisions of former §2111(5)(c) were sometimes called the "territorial adjacency constraints.”
The Insurance Búreau contended that, under Allstate’s filing, rates for the $50 deductible varied by twenty-two percent between territories thirteen and fourteen, exceeding by seven percent the maximum differential permitted under a previous order of the commissioner that allowed Allstate’s rate differential in adjacent territories to vary by fifteen percent instead of the ten percent ordinarily allowed under former § 2111(5)(c). The rates for the $50 deductible comprehensive in territory eighty-seven, the lowest rated territory, were 41.3 percent of the rates in territory one, the highest rated territory, which was inconsistent with the high/low territorial rate constraint. In other words, the insurance bureau argues that, although the base rates were lawful, the rate differentials that were applied to policies with deductibles as low as $50 were so disparate that the total cost to the consumer, i.e., the premium for any such policy, would be in violation of law. Allstate continues to claim that it never overcharged any policyholder. We need not resolve this dispute, because it is no longer a dispositive issue in this appeal.
The commissioner’s final decision and order adopted the hearing officer’s proposed decision insofar as it concluded that Allstate violated chapter 21 of the Insurance Code. Specifically, the hearing officer and the commissioner found that the comprehensive deductible factors in the rating plan in effect from October 23, 1984, to July 23, 1986, violated the high/low and territorial adjacency constraints of §2111(5)0)) and (c), which remained in effect until February 28, 1986. On that date, 1986 PA 10 took effect and suspended the high/low and territorial adjacency constraints. 1986 PA 10 also amended § 2111(2)(a)(viii) to provide as follows:
Classifications established pursuant to this section for automobile insurance shall be based only upon 1 or more of the following factors, which shall be applied by an insurer on a uniform basis throughout the state:
(a) With respect to all automobile insurance coverages:
(viii) Amount of Insurance.
The commissioner and the hearing officer also concluded that Allstate’s comprehensive deductible factors violated § 2111(2)(a)(viii).
The commissioner did not follow the hearing officer’s proposed decision as it related to the assertions by the Insurance Bureau’s staff that Allstate’s rating practices violated the Uniform Trade Practices Act, chapter 20 of the Insurance Code, MCL 500. 2001 et seq.; MSA 24.12001 et seq. The hearing officer rejected the Insurance Bureau’s contention that § 2027 was also violated. However, the commissioner disagreed with this part of the proposed decision and found that because Allstate had violated chapter 21, it had also violated § 2027(c), which prohibits charging a different rate for the same coverage on the basis of residence or location of the risk "unless the rate differential is based on sound actuarial principles, a reasonable classification system, and is related to the actual and credible loss statistics or reasonably anticipated experience in the case of new coverages.” The commissioner reasoned, in part, as follows:
It would be manifestly unsound and unreasonable to establish rates in defiance of legal requirements. It is, therefore, entirely appropriate and necessary to conclude that Allstate, in using deductible factors that are in violation of Sections 2111(2) and 2111(5), has hot utilized sound actuarial principles and has established an unreasonable classification system.
On appeal, the circuit court affirmed the commissioner’s findings that Allstate violated chapter 21. However, the court reversed the commissioner’s finding that Allstate violated §2027. In addition, the court concluded that imposition of the refund sanction of chapter 20, MCL 500.2038; MSA 24.12038, was "precluded by the terms of the enforcement section of chapter 21,” MCL 500.2114; MSA 24.12114.
The commissioner appealed to this Court, arguing that the circuit court erred in reversing his order finding that Allstate violated §2027 and ordering Allstate to "refund all overcharges to its Detroit area policyholders carrying comprehensive insurance with a deductible.” Allstate cross appealed, arguing that the trial court erred in affirming the commissioner’s finding that Allstate violated chapter 21. Pursuant to a stipulation of the parties, we entered an order on January 3, 1992, dismissing Allstate’s cross appeal. This means that the finding that Allstate’s rates were in violation of law remains in effect and that the only issue remaining in this appeal is whether the violation of chapter 21 also constitutes a violation of chap ter 20, which has the penalty and refund provisions.
Allstate no longer uses the rating plan at issue. By dismissing its cross appeal, Allstate concedes, at least for purposes of the argument herein, that the plan violated §2111. Thus, the dispositive issue presented in this appeal is not whether Allstate violated § 2027, but whether the refund remedy is appropriate. We hold that it is not, and we affirm the circuit court’s conclusion that the commissioner’s imposition of the refund sanction contravened the provisions of chapter 21 and constituted a substantial and material error of law. MCL 24.306(l)(a) and (f); MSA 3.560(206)(l)(a) and (f).
It is undisputed that the claimed violation of §2027 is based solely on Allstate’s violation of §2111. In other words, the reason the commissioner found that Allstate’s rates were not based on "sound actuarial principles” or "a reasonable classification system,” as required by §2027, is because the rates violated the law, specifically, §2111. The commissioner argues that this case presents no conflict between the provisions of chapter 20 and chapter 21. We disagree.
Upon finding that a regulated person has committed practices prohibited by chapter 20, including a violation of § 2027, the commissioner may order payment of a monetary penalty, suspension or revocation of the person’s license or certificate of authority, or refund of any overcharges. MCL 500.2038(l)(a)-(c); MSA 24.12038(l)(a)-(c).
The remedial provisions of chapter 21 are quite different. Section 2114(2) provides:
If after hearing initiated under subsection (1) or upon the commissioner’s own motion pursuant to Act No. 306 of the Public Acts of 1969, as amended, the commissioner finds that a filing does not meet the requirements of sections 2109 and 2111, the commissioner shall issue an order stating the specific reasons for that finding. The order shall state when, within a reasonable time añer issuance of the order, the Ming shall be considered no longer effective. A copy of the order shall be sent to the applicant, if any, and to each insurer and rating organization subject to the order. The order shall not affect a contract or policy made or issued before the date the Ming becomes ineffective, as indicated in the commissioner’s order. [Emphasis added.]
Thus, the plain language of § 2114(2) evinces the clear intent of the Legislature to remedy violations of § 2111 by an order of the commissioner that shall state "when . . . the filing shall be considered no longer effective,” whereas it is equally clear that a violation of chapter 20 may include the sanction of a refund ordered by the commissioner. Section 2038(l)(c). The commissioner argues that these remedies áre cumulative and that because Allstate violated both § 2027 and § 2111, it should be subject to the sanctions contained in both chapter 20 and chapter 21. Assuming without deciding that Allstate has violated § 2027, we cannot agree with the commissioner’s argument.
Upon finding that a rate filing does not meet the requirements of chapter 21, the commissioner must issue an order stating when the filing "shall be considered no longer effective.” Section 2114(2). The last sentence of § 2114(2) plainly provides that "[t]he order shall not affect a contract or policy made or issued before the date the filing becomes ineffective, as indicated in the commissioner’s order.” This would appear to be a fairly plain legislative attempt to provide that the exclusive remedy for a violation of chapter 21 is the commissioner’s order terminating the effectiveness of the rate filing. This prospective relief is all that those aggrieved by a filing that violates the provisions of chapter 21 are entitled; no monetary penalties or refunds may be had because such relief would affect contracts or policies made or issued before the commissioner’s order.
To buttress its argument that this is the intent behind the plain language of § 2114, Allstate points to proposed statutory language rejected by the Legislature. House Substitute for Senate Bill No 428 (the Senate bill was eventually enacted as 1979 PA 145) apparently would have deleted § 2114 and provided for an entirely different remedial scheme in a proposed § 2113, which would have provided in pertinent part:
(1) A person aggrieved by an alleged violation of this chapter, chapter 20, chapter 24, or chapter 26, may contest the alleged violation by filing a request with the commissioner in a form and manner as is required by the commissioner.
(4) If, after providing the opportunity for the hearing, the commissioner ñnds that a violation has occurred, the commissioner may impose any penalty authorized by law and may provide other appropriate relief, including refunds of premium and the issuance or renewal of automobile or home insurance coverages. [Emphasis added.]
The Legislature made its intent clear with the rejection of this substitute. People v Adamowski, 340 Mich 422, 429; 65 NW2d 753 (1954). Without a clear and cogent reason, a court should not give a statute a construction that the Legislature plainly refused to give. Id., Elliot v Genesee Co, 166 Mich App 11, 17; 419 NW2d 762 (1988).
Finally, we note that in a report prepared by the Insurance Bureau’s staff the remedial provisions of chapter 21 were discussed:
Perhaps the most serious problem the Bureau has encountered under the new law is that Chapter 21 does not include penalties for violation of the chapter’s provisions. This has made it difficult to effectively enforce certain provisions of the law. [A Year of Change: The Essential Insurance Act in 1981, Insurance Bureau, June 4, 1982, p 57. Emphasis added.]
In light of the foregoing it is absolutely clear that the Legislature deliberately refused to vest the commissioner with power to order a refund for noncompliance with chapter 21. We may not pass on the wisdom or fairness of this measure. Our task is to apply the law as it is written, if unambiguous; if judicial construction is necessary because of ambiguity in the statute, our task is to ascertain and give effect to the intent of the Legislature. See Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992).
Distilled to its essence, the commissioner’s argument is that this case presents no conflict between the remedial provisions of chapters 20 and 21: Allstate violated chapter 21, for which the appropriate sanction was an order terminating the effectiveness of the rates; Allstate also violated chapter 20, for which an appropriate sanction was an order by the commissioner requiring a refund. This simplification of the commissioner’s argument exposes the distortion, perhaps unintentional, therein. Without the chapter 21 violation there would be no basis for a finding that Allstate violated chapter 20. Chapter 21 expressly provides that the sanction for violating chapter 21 "shall not affect a contract or policy made or issued before the date the filing becomes ineffective.” Chapter 21 further provides that to the extent that other provisions of the Insurance Code are inconsistent with the provisions of that chapter, chapter 21 shall govern with respect to automobile and home insurance. MCL 500.2106; MSA 24.12106. The conflict is evident: the Legislature has carefully spelled out its intention that the sanction of a refund order is not a remedy available for a chapter 21 violation. The commissioner, however, argues that the chapter 21 violation gives rise to a chapter 20 violation and that a refund is a proper remedy under chapter 20.
The provisions of chapter 20 of the Insurance Code and the remedies therein are cumulative of the other provisions of the code. MCL 500.2050; MSA 24.12050. The commissioner argues that this section alleviates the tension between the two chapters. It does not. This provision clarifies that the facts giving rise to a violation of chapter 20 may also constitute a violation of some other provision of law and that the remedy for a chapter 20 violation is in addition to whatever other remedies may exist for violations of other provisions of law. However, the fact that the provisions of chapter 20 are to be regarded as cumulative and supplemental to other provisions of law simply does not address the situation with which we are faced here, i.e., a situation in which one set of remedies irreconcilably clashes with another.
In this case, the sole basis for finding the chapter 20 violation is the chapter 21 violation. This is distinct from the situation where one set of actions gives rise to a violation of both chapter 20 and chapter 21. In other words, if, hypothetically, chapter 21 proscribed certain methods of formulating rates and chapter 20 defined the same conduct as an unfair practice, and if an insurer committed such conduct, then both chapters wouíd have been violated and the sanctions of both chapter 20 and chapter 21 could be imposed. No conflict would exist in that hypothetical case, because the acts committed would constitute a violation of chapter 20 as well as chapter 21. But, in this case, chapter 20 does not establish adjacency or high/low requirements and define failure to comply with such requirements as an unfair or deceptive practice. Rather, chapter 20 requires "sound actuarial principles” and "a reasonable classification system” in certain instances. The commissioner argues that failure to comply with any other provision of the Insurance Code constitutes a violation of chapter 20 and therefore permits the sanction of a refund order.
Although the commissioner argues in apparent good faith that a chapter 20 violation is permitted under these circumstances, it is hard to regard this argument as anything but specious where the chapter 20 violation is expressly and solely premised upon a chapter 21 violation, i.e., premised upon the legal conclusion that chapter 21 was violated, not upon the acts giving rise to the chapter 21 violation. To hold that a chapter 21 violation subjects an insurer to a refund order (a chapter 20 remedy) would frustrate the clear intent of the Legislature. The wisdom of that legislative intent is not at issue, and the imposition of the chapter 20 refund remedy by this Court for what is clearly a chapter 21 violation would require us to employ facile reasoning to elevate form over substance.
We need not belabor the analysis with maxims of statutory interpretation. Nor is it necessary for us to pass upon the commissioner’s argument that the phrases "sound actuarial principles” and "reasonable classification system” encompass compliance with other laws. It is enough for purposes of the instant analysis to understand that the commissioner argues that the terms of §2027 make compliance with chapter 21 a requirement of chapter 20, and that a chapter 20 violation based on a chapter 21 violation may be remedied under the provisions of chapter 20. This smacks of bootstrapping, of circularity, or of an effort to evade the remedial scheme plainly set forth in chapter 21. However, we need not conclude that this was the commissioner’s actual intent, and we do not so intimate. We merely conclude that the Legislature’s manifest intention concerning remedies or sanctions for chapter 21 violations would be defeated if we adopted the interpretation of § 2027 advanced by the commissioner. Because the commissioner’s interpretation is not supported by similarly strong evidence of Legislative intent, we conclude that the commissioner erroneously ruled that a chapter 21 violation in and of itself gives rise to a § 2027 violation, which may be remedied by chapter 20 remedies. The circuit court correctly concluded that the commissioner’s final decision and order was affected by a substantial and material error of law.
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Shepherd, P.J.
Plaintiffs appeal as of right the circuit court’s judgment of no cause of action entered on January 4, 1991. We reverse and remand for new findings consistent with this opinion.
This case involves the repair and construction of a dam in the White River in Newaygo County. Since 1951, defendant has owned the dam, originally built over one hundred years ago, and has maintained a park on the lake behind the dam, providing recreational activities such as picnicking, swimming, fishing, and boating. The dam divides the upper and middle White River. The White Cloud River starts about 7.5 miles upstream from White Cloud. This section of the river, known as the Upper White River, is a blue-ribbon trout stream, a designation applied by the Michigan Department of Natural Resources to a few select rivers in Michigan. The section of the White River downstream from White Cloud to Hesperia, known as the Middle White, is 26.5 miles in length. This section of the river has been designated as a County Scenic River pursuant to the Natural River Act, MCL 281.761 et seq.; MSA 11.501 et seq. The Middle White ends at the Hesperia Dam, a low-head dam, whose primary function is to prevent the migration of salmon and steelhead so as to allow the development of a brown, brook, and rainbow trout fishery in the Middle and Upper White. The Lower White, which runs from Hesperia to White Lake, is of no concern to this case. Plaintiff Trout Unlimited, Muskegon-White River Chapter (tu) is a private, nonprofit corporation dedicated to preserving and improving cold-water fishing resources. Plaintiff McEwen is both a tu member and a riparian landowner on the Middle White.
On September 9, 1986, it began raining in western Michigan and continued to do so for several days, swelling most of the rivers to their breaking point and washing out nineteen dams. When it appeared that defendant’s dam was in imminent danger of collapsing, defendant city officials decided to breach the dam in order to prevent the entire dam from washing away. By the time the rains stopped, the dam was virtually destroyed and the lake was reduced to a stream. Plaintiffs allege that defendant’s breach of the dam permitted the release into the Middle White River of sand and silt that had built up in the lake behind the dam, destroying fish cover and spawning beds and killing virtually the entire fish population.
After the flood, defendant applied for and received grants of approximately $500,000 from the Federal Emergency Management Agency (fema) and the Community Development Block Grant Program to repair and reconstruct the dam. Defendant also applied to the dnr for the necessary permits to rebuild the dam. On November 18, 1988, the dnr denied a permit for the rebuilding of the dam. In reaching its decision, the dnr stated that the middle section of the White River would be a better trout stream if the White Cloud dam were not repaired.
To allow repair of the dam without a dnr permit, the Legislature amended the Dam Safety Act, MCL 281.1301 et seq.; MSA 11.420(1) et seq., by enacting 1988 PA 484, exempting defendant from the dnr permit requirement. The fema approved the project after an environmental study determined that repair of the dam would have no significant environmental effect. The dam was rebuilt in the summer of 1990 and is now in full operation.
On January 19, 1990, plaintiffs filed a thirteen-count complaint. On June 12, 1990, plaintiffs filed a motion for partial summary disposition, which, after a hearing, was denied by an order dated July 17, 1990. On July 23, 1990, plaintiffs amended their complaint to include a request for attorney fees. On September 6, 1990, the parties stipulated that no evidence would be submitted at trial concerning damages and requested the trial court to enter an opinion and order in the form of declaratory relief. Six of the thirteen counts in the complaint involve damages and were not tried. At trial, plaintiffs claimed the dam was unlawfully reconstructed and alleged: (1) fraud; (2) violation of the public trust; (3) violation of the constitutional prohibition against local legislation; (4) failure to obtain approval from the dnr; (5) failure to obtain approval from the county; and (6) failure to obtain approval from the Natural Resources Commission. Following a bench trial, the trial court, incorporating its opinion of December 11, 1990, entered a judgment of no cause of action in favor of defendant, ruling that plaintiffs had lacked standing.
Although plaintiffs raise various issues on appeal, the principal issue before us is whether the trial court erred in dismissing plaintiffs’ claims on the ground that they lacked standing to assert their claims. Plaintiffs argue that they have standing to sue under the Michigan Constitution and the Environmental Protection Act (mepa), MCL 691.1201 et seq.; MSA 14.528(201) et seq. Plaintiffs argue that Const 1963, art 4, § 52 recognized that citizens’ groups have standing to challenge an activity that may violate the government’s duty to manage public lands properly. This article provides:
The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water, and other resources of the state from pollution, impairment and destruction.
Plaintiffs also assert standing under the mepa, which provides for declaratory and equitable relief upon a plaintiff’s prima facie showing that a natural resource is involved and that the effect of the activity in question on the environment rises to a level of impairment that will justify the relief. City of Portage v Kalamazoo Co Rd Comm, 136 Mich App 276, 280; 355 NW2d 913 (1984). The Michigan Supreme Court in State Hwy Comm v VanderKloot, 392 Mich 159; 220 NW2d 416 (1974), held that the mepa is the primary statute enacted by the Legislature to fulfill its duty to protect our natural resources. Section 2(1) of the mepa provides in part:
[A]ny person, partnership, corporation, association, organization or other legal entity may main tain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof ... for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction. [MCL 691.1202(1); MSA 14.528(202X1).]
In this case, we find that plaintiffs have standing to raise their claims. To have standing, a plaintiff must demonstrate a legally protected interest that is in jeopardy of being adversely affected. Health Central v Ins Comm’r, 152 Mich App 336, 347-348; 393 NW2d 625 (1986). To have standing, a party must allege a sufficient personal stake in the outcome of the controversy to ensure that the dispute sought to be adjudicated will be presented in an adversarial context that is capable of judicial resolution. Karrip v Cannon Twp, 115 Mich App 726, 733; 321 NW2d 690 (1982); Baker v Carr, 369 US 186, 204; 82 S Ct 691; 7 L Ed 2d 663 (1962); Sierra Club v Morton, 405 US 727, 731-732; 92 S Ct 1361; 31 L Ed 2d 636 (1972); Lujan v Defenders of Wildlife, 504 US —; 112 S Ct 2130; 119 L Ed 2d 351 (1992). Generally, a plaintiff shows a personal stake in a lawsuit by demonstrating that he has been injured or represents someone who has been injured. Kaminskas v Detroit, 68 Mich App 499; 243 NW2d 25 (1976). A nonprofit corporation has standing to advocate interests of its members where the members themselves have a sufficient stake or have sufficiently adverse and real interests in the matter being litigated. Karrip, supra; White Lake Improvement Ass’n v City of Whitehall, 22 Mich App 262; 177 NW2d 473 (1970).
Plaintiff McEwen has standing in this case, hav ing demonstrated a legally protected interest that is in jeopardy of being adversely affected. As a riparian landowner on the Middle White River, he has standing to challenge the legality of the new dam construction because of the damage that it may cause to his property.
Plaintiff tu also has standing. The proofs established that tu is a nonprofit corporation with a specific purpose of protecting cold-water resources. Further, the vast majority of the local members of tu own property around the White River and use the river. Given that the personal interest and stake of these members in this controversy are sufficiently adverse and real, plaintiff tu has standing to advocate the interests of its members in this action. Karrip, supra; White Lake Improvement Ass’n, supra.
Further, plaintiffs have standing under § 2(1) of the mepa. As stated earlier, §2(1) provides standing to private parties to bring lawsuits for declaratory and injunctive relief to protect our natural resources. VanderKloot, supra. Contrary to the trial court’s assertion, plaintiffs’ reliance on this statute is not misplaced. Even though plaintiffs made no mention of the mepa in their complaint and mentioned it for the first time in a posttrial brief on the issue of standing, plaintiffs’ claims in this case are based upon the mepa, which provides for declaratory relief upon plaintiffs’ making a prima facie showing of pollution, impairment, or destruction of a natural resource. City of Portage, supra. Under the mepa, the trial court must conduct a dual inquiry to determine whether a natural resource is involved and whether the effect of the activity on the environment rises to the level of impairment to justify the court’s intervention. Kent Co Rd Comm v Hunting, 170 Mich App 222; 428 NW2d 353 (1988). In Hunting, this Court stated:
In answering the latter question, the trial court should evaluate the environmental situation before the proposed action and compare it with the probable condition of the environment after. Rush [v Sterner, 143 Mich App 672; 373 NW2d 183 (1985)], p 679. Among the factors to be considered are: (1) whether the natural resource involved is rare, unique, endangered, or has historical significance; (2) whether the resource is easily replaceable (i.e., by replanting trees or restocking fish); (3) whether the proposed action will have any significant consequential effect on other natural resources (for example, whether wildlife will be lost if its habitat is impaired or destroyed); and (4) whether the direct or consequential impact on animals or vegetation will affect a critical number, considering the nature and location of the wildlife affected. Finally, esthetic considerations by themselves do not constitute significant environmental impact. Rush, supra. [170 Mich App 233-234.]
Accordingly, we reverse the decision of the trial court, which dismissed plaintiffs’ claims on the ground that they lacked standing, and remand for new findings consistent with this opinion. We express no opinion regarding the merits of plaintiffs’ claims or the nature of the relief the plaintiffs may obtain under the mepa or plaintiff McEwen may obtain as a riparian owner. We merely hold that plaintiffs have standing to assert their claims in this action.
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Per Curiam.
Defendant appeals as of right his jury conviction of receiving and concealing stolen property with a value exceeding $100, MCL 750.535; MSA 28.803, and larceny with safe damage, MCL 750.531; MSA 28.799. Defendant was sentenced, after pleading guilty as a third-felony offender, to concurrent terms of imprisonment of five to ten years and five to twenty years, respectively. We affirm.
Defendant first argues that the trial court did not have jurisdiction to try the case because he had been denied a preliminary examination. In Michigan, the right to a preliminary examination is solely a creation of the Legislature and is not a procedure that is based on the constitution. People v Johnson, 427 Mich 98, 103; 398 NW2d 219 (1986) (opinion of Boyle, J.); People v Hall, 435 Mich 599, 603; 460 NW2d 520 (1990). The right to a prelimi nary examination derives from MCL 767.42(1); MSA 28.982(1), which states in part:
An information shall not be filed against any person for a felony unless such person has had a preliminary examination therefor, as provided by law, before an examining magistrate, unless that person waives his statutory right to an examination.
In this case, after defendant was charged with breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305, and larceny with safe damage, a preliminary examination was held and defendant was bound over on those charges to circuit court for a trial set for September 12, 1989. On the day of the trial, the trial court granted the prosecution’s motion for an order of nolle prosequi and dismissed the case without prejudice because a key prosecution witness could not be located. On the same day, a new complaint and warrant were issued with regard to the same charges, and shortly thereafter a second preliminary examination was scheduled. Because defendant failed to appear for the scheduled preliminary examination', it was rescheduled for March 12, 1990. On that date, defendant moved to quash the information unless the prosecution could produce new evidence showing probable cause to bind him over to circuit court. Because it was undisputed that the evidence to be offered was the same as before, the district judge decided that there was no reason to hold another preliminary examination, and defendant was once again bound over for trial on the same charges.
We find that defendant waived his statutory right to a preliminary examination. Defendant does not dispute the fact that probable cause that he committed the crimes with which he was charged was determined at the first preliminary examination. Upon entry of the order of nolle prosequi, the prosecution obtained a new complaint and warrant and proceeded to a preliminary examination with regard to the reissued case, pursuant to MCL 767.29; MSA 28.969. People v Ostafin, 112 Mich App 712, 715-716; 317 NW2d 235 (1982). At the scheduled preliminary examination, defendant did not dispute the fact that the evidence presented at the first preliminary examination was sufficient to determine probable cause to bind him over. Moreover, at no time before, during, or even after trial until this appeal, did defendant object to the failure to provide a preliminary examination. See People v Alexander, 72 Mich App 91, 98; 249 NW2d 307 (1976). Accordingly, we find that defendant waived his right to a preliminary examination under MCL 767.42(1); MSA 28.982(1). Furthermore, the statute gives the defendant the right to a preliminary examination for the felony with which he was charged. That is precisely what defendant had.
Defendant also argues that the trial court abused its discretion in denying him a bench trial. We disagree. MCL 763.3(1); MSA 28.856(1) provides in part:
In all criminal cases arising in the courts of this state the defendant may, with the consent of the prosecutor and approval by the court, waive a determination of the facts by a jury and elect to be tried before the court without a jury. Except in cases of minor offenses, the waiver and election by a defendant shall be in writing signed by the defendant and filed in the case and made a part of the record.
While the record reveals that defendant indicated to the trial court that he wanted to waive his right to trial by jury before the trial began, he did not sign a written request as required under the statute. Notwithstanding, defendant claims that the trial court’s failure to state any substantive grounds for the refusal to conduct a bench trial constituted an abuse of discretion. The trial court refused defendant’s request on the ground that sixty-five citizens had already been called for jury service and the county had to pay for them. If the rule were that the court had to give sound reasons, then we would agree with defendant that the reason given by the trial court would have been invalid. The jurors could have been sent home and the county would not have suffered a greater financial burden than it did when the case proceeded to a full jury trial. However, we note that the plain language of the statute does not require the court to state reasons for approving or denying the request. People v Hawkins, 181 Mich App 393, 396; 448 NW2d 858 (1989). Thus, the trial court or the prosecutor could refuse the request for no reason at all or for any reason.
Defendant finally contends that there was insufficient evidence to submit to the jury the lesser offense of receiving and concealing stolen property valued over $100, MCL 750.535; MSA 28.803, because the testimony of the property owner did not establish the open and fair market value of the stolen items. We find there is no basis for appellate review because defendant raised the issue for the first time on appeal, and there is no evidence indicating that failure to review would deprive him of a fair trial or would result in manifest injustice. Napier v Jacobs, 429 Mich 222, 233, 235; 414 NW2d 862 (1987). We note that the victim testified that a videocassette recorder valued at between $110 and $150 and a coin collection worth at least $500 were taken, along with several long guns, a small safe, and a stamp collection.
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Per Curiam.
This case presents questions of the priority of coverage by several no-fault automobile insurance policies, a number of which contain so-called "other insurance” clauses. In August 1986, Priscilla Dunlap, a resident of California, rented an automobile from defendant Budget Rent A Car Systems, Inc. Dunlap was involved in an accident with another motorist, who later brought an action against Dunlap and Budget. The claim was settled for $400,000.
Dunlap was personally insured by Fidelity and Casualty Company of New York under her own automobile liability policy, which provided primary liability coverage in an amount of $15,000. Dunlap also had excess automobile liability coverage in an amount of $85,000 under a policy issued by plaintiff National Indemnity Company. The lease agreement between Dunlap and Budget provided Dunlap with $20,000 in residual bodily injury liability coverage pursuant to MCL 257.520(b) (2); MSA 9.2220(b)(2). Budget was self-insured for this amount, as well as an additional $230,000 for its liability as the owner of the vehicle. Budget also possessed excess liability coverage for amounts over $250,000 through a policy issued by defendant Transamerica Insurance Company with a coverage limit of $1,500,000. Dunlap was also included as an insured under this policy.
The $400,000 settlement was paid by the insurers as follows: (1) Fidelity paid its policy limit of $15,000 on behalf of Dunlap and is not a party to the present action; (2) National paid its policy limit of $85,000 for excess liability coverage on behalf of Dunlap, but reserved its right to contest the amount; (3) Budget paid $20,000, the coverage limit provided Dunlap by the rental agreement, and $230,000, the amount for which it was self-insured for owners liability; and (4) Transamerica paid $50,000, the balance of the settlement, pursuant to its excess liability policy with Budget and Dunlap.
National thereafter brought this claim against Budget and Transamerica for reimbursement of the $85,000 it had paid toward the settlement. National argued that its coverage was excess to that provided by both Budget and Transamerica and, because those two insurers’ policy limits were adequate to satisfy the judgment, National was without liability. National’s policy incorporated the terms of the Fidelity policy, which included the following provision:
[A]ny insurance we provide for a vehicle you do not own shall be excess over any other collectible insurance.
The Transamerica policy, in turn, contains a provision that states its insurance is excess to any other collectible insurance.
National moved for summary disposition pursuant to MCR 2.116(C)(8) and (10). The trial court granted National’s motion, apparently pursuant to subsection 10, but provided no explanation of why it believed Budget’s and Transamerica’s coverage to be primary. Budget and Transamerica now appeal.
The primary issue in this case is whether a court, when confronted with two insurance policies that are claimed to be excess to any other insurance, should look to the intent of the parties as they are reflected in the policies to determine which policy is primarily liable or instead prorate liability according to the policies’ limits. These alternative approaches to determining liability were discussed by our Supreme Court in Federal Kemper Ins Co, Inc v Health Ins Administration, Inc, 424 Mich 537, 542-543; 383 NW2d 590 (1986):
Disputes may arise, as in the instant case, when two or more insurance policies covering the same risk contain [provisions intended to limit liability where other insurance is available]. . . . Two trends have evolved. The majority rule attempts to reconcile the competing provisions by discerning the parties’ intent through an analysis of the clauses. . . . Critics of this approach argue that it is circular and that the decision as to which clause is primary depends on which policy is read first. Thus some courts deem the provisions "mutually repugnant” and reject both clauses. . . . Courts adopting this minority view . . . hold that liability must be prorated.
This Court has taken the minority approach on at least two occasions. In Farm Bureau Mutual Ins Co v Horace Mann Ins Co, 131 Mich App 98; 345 NW2d 655 (1983), this Court held that liability should be prorated where two competing policies, one containing an escape clause and the other a pro-rata clause, would each have provided coverage had the other policy not existed. In Mary Free Bed Hosp & Rehabilitation Center v Ins Co of North America, 131 Mich App 105; 345 NW2d 658 (1983), the same panel that decided Farm Bureau declared two conflicting excess insurance clauses mutually repugnant, disregarded them, and directed that liability be prorated on remand. More recently, the minority approach was mentioned favorably by a panel of this Court in Admiral Ins Co v Columbia Casualty Ins Co, 194 Mich App 300, 316; 486 NW2d 351 (1992), but the panel found the rule inapplicable because the two policies at issue did not conflict.
We agree with the minority approach and the rationale for its use expressed in Farm Bureau, supra. We also reject National’s argument that this case does not present a situation that is ripe for the application of the minority approach because two different named insureds are involved. As National notes elsewhere in its appellate brief, Dunlap is also a named insured under the Transamerica policy. We are unable, however, to determine the correct proration of liability. Although the parties calculate their liability under the minority approach in their appellate briefs, they do not discuss the basis for their assignments of primary coverage, which must first be addressed before excess liability may be prorated. The record provided to this Court does not contain adequate detail of the accident that gave rise to this action to enable us to calculate the amount of primary coverage. We therefore remand this case to the trial court, where the parties’ excess insurance liability may be determined consistent with the minority approach we have adopted.
Budget and Transamerica also argue that National is required to pay the full limit of its policy because Dunlap, National’s insured, agreed to indemnify Budget for all liability in excess of the $20,000 of coverage provided by the rental agreement. This argument is not properly before us. Although defendants raised this argument in their own motion for summary disposition, the argument was never decided by the trial court. Sallee v Auto Club Ins Ass’n, 190 Mich App 305, 308; 475 NW2d 828 (1991). Moreover, defendants did not plead this argument either as an affirmative defense or as a counterclaim. MCR 2.111(F)(3)(c). Finally, Dunlap, the alleged indemnitor, has not been joined as a party.
National claims on appeal that it is entitled to full recovery of the amount it paid toward the settlement because its coverage is excess to that provided by Fidelity, while Fidelity is not liable at all, despite its payment of its policy limit toward the settlement. According to National, the Fidelity policy’s nonowned vehicle exclusion excludes coverage in this case. This issue is without merit. National conceded below that the nonowned vehicle exclusion was inapplicable in this case because the exclusion pertained to uninsured motorist coverage, not liability coverage. After examining the Fidelity policy, we see no reason to disagree with National’s initial judgment, and National has presented no new arguments on appeal regarding the exclusion.
Reversed and remanded. We do not retain jurisdiction.
Because the panel in Admiral Ins Co did not have to apply the minority approach to decide the case, it might be argued that the panel’s favorable discussion of the minority approach was dicta and not binding on this panel pursuant to Administrative Order No. 1990-6. Nonetheless, we agree that the minority approach should be used.
Budget’s and Transamerica’s calculations treat Budget’s $230,000 of self-insured owner’s liability coverage as primary coverage and actually produce a result that is more favorable to National than the result calculated by National. | [
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Per Curiam.
Defendant was charged with two counts of larceny in a building. On October 19, 1977, he was convicted, as charged, by a jury. He was sentenced to serve from 14 months to 4 years imprisonment on November 4, 1977. We conclude that the charged conduct, as outlined by the evidence introduced at trial, will not sustain the convictions of larceny.
I
Evidence introduced by the prosecution at trial indicated that the defendant was involved in a scheme whereby he short-changed two cashiers $10 each. He did so by creating confusion and impliedly representing that he was giving them an amount of money equal to that which he was receiving. By distracting them and asking for various amounts of change, he induced them to give him $10 more than they received from him.
Prior to trial, defendant moved to quash the information on the basis that larceny, as charged, required a taking against the will and without the consent of the owner. Contending that there was a voluntary exchange of money, counsel argued that the proper charge was either obtaining money under false pretenses or larceny by trick rather than larceny in a building. The trial court denied the motion to quash, agreeing with the prosecutor’s view that the evidence at the preliminary examination would support the charge of larceny by trick and that the prosecutor had the discretion and power to bring the charge of larceny in a building.
In the Court of Appeals defendant raised two issues, contending first that he had been improperly charged with larceny (the correct charge being obtaining property under false pretenses); and second that if the prosecution could utilize either charge, such unguided discretion, potentially imposing vastly different maximum penalties, would violate due process and equal protection. The Court of Appeals affirmed the defendant’s conviction in an unpublished memorandum opinion. Defendant sought our review by request under Administrative Order 1977-4, 400 Mich lxvii. By or der of September 26, 1979, we remanded to the Court of Appeals for amplification of the facts and the reasons underlying its decision. In its amplified opinion the Court of Appeals, observing that the distinction between the crime of larceny by trick and that of obtaining property under false pretenses turns upon the intent of the owner to part with the property, People v Martin, 116 Mich 446; 74 NW 653 (1898), concluded:
"In the instant case the cashiers did not knowingly transfer an extra $10 to the defendant relying on some false representations of the defendant. Rather, the cashiers, believing they had transferred only an amount equal to that received in making change for the defendant, were induced by trick or artifice of the defendant to part with possession of the extra $10.
"Taking into consideration the intention of the parties, it is obvious that the cashiers intended only to exchange various denominations of money with the defendant quid pro quo. The cashiers had no intention to transfer possession or title to any money in excess of that received. The defendant, on the other hand, intended to obtain through use of artifice possession of the extra $10 and intended thereby to relieve the owner of her possession.
"The absence of intent on the part of the cashiers to knowingly and voluntarily transfer possession or title to any money in excess of that received, places the defendant’s conduct within the ambit of larceny rather than obtaining property under false pretenses.”
II
In our view, the Court of Appeals has incorrectly construed and applied the rule of People v Martin in distinguishing between larceny and false pretenses. We find this case to be one of false pretenses.
In People v Martin, this Court identified the distinction between larceny and false pretenses as follows:
"It is sometimes difficult to determine in a given case whether the offense is larceny or whether it is a case of false pretenses. We think the rule to be gathered from the authorities may be stated to be: In larceny, the owner of the thing stolen has no intention to part with his property therein; in false pretenses, the owner does intend to part with his property in the thing, but this intention is the result of fraudulent contrivances. If the owner did not part with his property in the thing, but simply delivered the possession, the ownership remaining unchanged, for the purpose of having the person to whom the property was delivered use it for a certain special and particular purpose, for the owner, the title would not pass, and its felonious conversion would be larceny. A distinction is made between a bare charge for special use of the thing, and a general bailment; and it is not larceny if the owner intends to part with the property and deliver the possession absolutely, although he has been induced to part with the goods by fraudulent means. If, by trick or artifice, the owner of property is induced to part with the possession to one who receives the property with felonious intent, the owner still meaning to retain the right of property, the taking will be larceny; but if the owner part with not only the possession, but right of property also, the offense of the party obtaining the thing will not be larceny, but that of obtaining the goods by false pretenses. As was said in Loomis v People, [67 NY 322, 329; 23 Am Rep 123 (1876)]:
" 'There is, to be sure, a narrow margin between a case of larceny and one where the property has been obtained by false pretenses. The distinction is a very nice one, but still very important. The character of the crime depends upon the intention of the parties, and that intention determines the nature of the offense. In the former case, where, by fraud, conspiracy, or artifice, the possession is obtained with a felonious design, and the title still remains in the owner, larceny is established; while in the latter, where title, as well as possession is absolutely parted with, the crime is false pretenses. It will be observed that the intention of the owner to part with his property is the gist and essence of the offense of larceny, and the vital point upon which the crime hinges and is to be determined.’ ” 116 Mich 450-451.
The rule noted in Martin governs characterization of defendant’s offense in the present case. By distracting the cashiers and asking them for various amounts of change, defendant induced them to give him $10 more than they received from him. The partings were induced by defendant’s fraudulent representations that he had received an inadequate amount of change. While undoubtedly the cashiers would not have parted with the "additional” sum had they recognized it as such, it is apparent that the partings were voluntary and advertent. At the time of their occurrence, the partings represented a surrendering of possession accompanied by an intention, however hastily or ill-advisedly formed, to transfer title. Because both possession and title were intended to be transferred, defendant’s offense was that of obtaining money under false pretenses.
The creation of the offense of false pretenses by statute had its historical origins in the lawmaker’s need to fill a void in the common law which existed by virtue of the fact that common-law larceny did not extend to punish the party who, without taking and carrying away, had obtained both possession and title to another’s property. Against this historical background, our Legislature early chose to recognize the offense. The conduct charged against defendant falls within the legislatively recognized category; thus marked, it is distinct from larceny.
Reversed and defendant is ordered discharged.
Kavanagh, Levin, Fitzgerald, and Blair Moody, Jr., JJ., concurred.
MCL 750.360; MSA 28.592.
MCL 750.218; MSA 28.415.
The common-law offense of larceny by trick is included in the general larceny statute, MCL 750.356; MSA 28.588. See 3 Michigan Criminal Jury Instructions (Ann Arbor: Institute of Continuing Legal Education), Commentary to CJI 23:5:01, pp 23-43, 23-44.
407 Mich 873 (1979).
93 Mich App 579; 286 NW2d 909 (1979).
Similar statements regarding the distinction between these offenses appear at 50 Am Jur 2d, Larceny, § 7, pp 158-159; 32 Am Jur 2d, False Pretenses, § 4, p 182; LaFave & Scott, Criminal Law, § 90, pp 660-665; Michigan Criminal Jury Instructions, Commentary to CJI 23:05:01; 35 CJS, False Pretenses, § 3, pp 804-807.
In People v Shaw, 57 Mich 403; 24 NW 121 (1885), this Court characterized the taking of money in a card trick fraud as larceny, observing that "fraud will supply the place of trespass in the taking, and so make [a] conversion felonious”. In so concluding we reasoned that the defrauded party was induced by trick to part with possession of his money. Title, however, did not pass. Thus, subsequent conversion made the conduct larcenous. Fraud of this nature with the use of cards has traditionally been regarded as larceny by trick. LaFave & Scott, supra, pp 664-665. Martin, supra, also presents larceny by trick facts (defendant, obtaining money upon the fraudulent representation that she would use it to purchase bicycles, absconds). The present case differs from Shaw and Martin in that the cashiers, induced by fraudulent representation, intended transfer of an unrestricted property interest.
The conduct in which defendant engaged in this case has been reported as larceny by some authorities. See, e.g., 52A CJS, Larceny, § 36, p 465; Howell v State, 28 Ala App 249; 182 So 96 (1938); and 26 ALR 381, 386. We do not find in these authorities viable distinction from or exception to the controlling rule of Martin.
LaFave & Scott, supra, p 655; and Perkins, Criminal Law (2d ed), pp 296-297.
The initial enactment (1846 Rev Stats, ch 154, § 39) proscribed not only obtaining variously described property by false pretense but also "obtainfing] the signature of any person to any written instrument, the making whereof would be punishable as forgery”. The statute has early been described as having the purpose of punishing cheats. People v Wakely, 62 Mich 297, 302; 28 NW 871 (1886). The Legislature amended the statute several times prior to our consideration in People v Martin, 116 Mich 446; 74 NW 653 (1898). Subsequent to Martin, the statute was again amended by 1915 PA 245 so as to additionally proscribe obtaining "the use of any instrument, facility or article or other valuable thing or service” by false pretenses. The statute has not changed significantly since that time. The common-law concepts of transfer of title and possession to which we referred in Martin are noteworthy in pointing out the delineation between larceny (with its common-law origin) and the developing statutory offense of false pretenses. While serving this function well, these concepts do not pertain to definition of the statutory offense of false pretenses, a matter committed to legislative prerogative. | [
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Montgomery, J.
The plaintiff brought an action to recover on a promissory note of $2,140. The defendant, on oath, denied the execution of the note, and this presented the issue which was tried before the jury. It was conceded by the plaintiff that. the note included a considerable sum of usury. It was claimed that the amount of money actually advanced to the defendant was $1,850, and for this sum the plaintiff claimed judgment. Plaintiff’s testimony tended to show the execution of the note by the defendant as a culmination of dealings extending over a considerable period. The defendant, on the other hand, denied that he had ever signed the note in question knowingly, although admitting that the signature looked like his, his theory being that he had been asked by plaintiff to witness a chattel mortgage, and that the note had been substituted in place where his signature was to appear upon the mortgage and the signature to the note thus obtained.
The errors assigned relate to the admission of testimony and to the remarks of counsel in the argument to the jury.
On the trial, the defendant sought to show that a like claim on a note had been made by plaintiff during the time the present note was extant against one John Gilness, and that plaintiff had deposited a note of that description with the bank at Traverse City, who had in turn notified one Jonas Gilness, who was the only person of that name residing in the neighborhood where the note purported to have been made, and who was often called John Gilness, and that upon Jonas Gilness confronting the plaintiff, he made contradictory statements, from which the jury might have inferred that the note was a forgery. We think testimony of this character was admissible as bearing upon the question of intent. Beebe v. Knapp, 28 Mich. 53; French v. Ryan, 104 Mich. 625; Cook v. Perry, 43 Mich. 623; Beard v. Hill, 131 Mich. 246, which is a case very similar in its facts.
On the cross-examination of plaintiff, he was asked if he had had trouble of this same nature before in court. This was admitted, subject to objection and exception, and the plaintiff thereupon testified that he had a suit on a note but not a suit where the people had denied the execution of the papers, but one in which the defendants had claimed that the note had been paid, and defendant’s counsel showed in this suit that the jury found that the notes had in fact been paid, and plaintiff had been defeated on that ground. In the argument to the jury this testimony was referred to, and it was stated that plaintiff “admits that he sued an old man and his wife on notes for $2,500, notes that the jury found in that very case had been paid.” It will be noted that this testimony had no bearing on the question of the guilty knowledge of the plaintiff or of the intent in securing the signature, its only bearing being that it might tend to show, if the record of that case was competent testimony to show it, that the plaintiff had been discredited by a jury on an other trial. This was not competent testimony. It introduced a collateral issue which the plaintiff could not have been expected to be prepared to meet. Before the jury could properly determine that the result in that case should weigh against the credibility of the plaintiff, it would have been necessary to try out the issue presented before the jury in that case. See Brennan v. Busch, 67 Mich. 670.
The circuit judge in his cnarge used the following language:
‘ ‘ Reference was also made to a former suit in which it is alleged the plaintiff lost because the other parties came in and testified that payment of the note was made. My recollection of that matter is that I sustained the objection made by the plaintiff to the testimony and it was not admitted. But counsel, in the heat of the argument, probably forgot the ruling of the court in that matter when they referred to the same in the argument. So, gentlemen, you will not take that into consideration at all.”
It is evident that he was mistaken as to the fact of the testimony having been admitted, and the question remains as to whether this language of the court cured the error in receiving the testimony. We are not able to say that it would have this effect. The testimony had been received, it had been dwelt upon by counsel in his argument to the jury, and we cannot feel assured that it had not had its effect. See Maxted v. Fowler, 94 Mich. 112.
The reference by counsel to plaintiff as a Jew horse dealer was, to say the least, most unfortunate, and it is difficult to conceive how counsel should be betrayed by his zeal into using such language, in view of the decision in this court in Cluett v. Rosenthal, 100 Mich. 193. We need not determine whether the withdrawal of this expression and the instruction of the court cured the error, as, for the error in admission of testimony relating to the other litigation, the case must be reversed and a new trial ordered.
Grant, C. J., and Blair, Carpenter, and McAl-VAY, JJ., concurred. | [
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Oooley, J.
Assumpsit to recover a sum of money equal "to eight cents per hundred pounds, paid under protest, as .freight, for the carriage of a large amount of soda-ash from New York to Detroit.
The facts out of which the action arose are the following: The defendant, in August, 1879, was engaged in the business of transporting property between New York and the 'West, and owned and employed several steamers on Lake Erie and the other lakes. Some of these boats only ran ■between Buffalo and Detroit; others formed a Lake Superior line. On August 15, 1879, the firm of Israel Blitz .& Son, of whom plaintiff is survivor, contracted with de-’ fendant for the transportation of a quantity of soda-ash from New York to Detroit, and received from defendant ■the following bill of lading:
“Tee UotoN Steamboat Company.
(Canal Line.)
Via Hudson Rivee & Eeie Canal to Buffalo, and teenoe VIA TEE STEAMERS OF TEE COMPANY TO LAKE PoETS.
Office, No. 1W Front Street.
Received, New York, August 15, 1879, from Wing cfc Evans, the following described property in apparent good ■order (contents, and condition of contents, unknown), on boat Ma/ry, viz.:
Nimeby-fme (95) Oles. SODA-ASH.
Marks and address for delivery:
A. A. 60 Ohs. A. B. 36 Ohs. for
Iseael Blitz & Son,
Detroit,
Mich.
Which the Union Steamboat Company (Canal line) -agree to forward by its own or other means of transportation, subject to all the conditions herein contained, to Detroit, there to be delivered upon payment of freight at the following rates, viz.: If fourth-class, at 20 cents per 100 lbs. According to the current west-bound classification, and by the trunk lines and rates, subject to classification of railroads west of lake ports.”
Then followed certain conditions, among which was the following:
“ Changes may be made in, and parts of the property may be carried or forwarded by different means or routes of transportation. All property which, from its balk or kind,, is usually carried on open cars, may be so carried.”
The bill of lading was properly signed.
Freights from New York to Detroit by sail on the lake, at this time, were twelve cents per hundred pounds for fourth-class goods. The consignees were anxious to receive the soda-ash as speedily as possible, and chose transportation by steamers, at the higher rate, in the expectation of a more' expeditious delivery.
The goods did not reach Buffalo until August 29, which was several days later than was expected. Then, instead of being forwarded by steamer, they were put aboard a sailing vessel, which landed them in Detroit, September 8d. The-consignees declined to pay freight beyond what it would have cost them to procure transportation by sail when the contract was made, namely, twelve cents per hundred pounds but the agent of defendant refused to receive less than the rate specified in the bill of lading, and retained the goods until payment was made. This was done under protest, September 5th, and this suit afterwards instituted. In the-circuit court defendant had judgment.
It is contended on behalf of defendant that under the-bill of lading the shipment by sail was rightful; the option of choosing other means of transportation than by steam having been expressly given. It is true that an option was-given, but we do not think it was one which might be exercised arbitrarily, and without regard to the circumstances. Every contract must have such reasonable construction as its-terms will admit of; and nothing could well be farther from reasonable than a construction which would give to the carrier any such arbitrary option, if the terms of the contract will allow of any other, as we think they will.
The shippers bargained for the more desirable transportation, and agreed to pay for it a much higher rate than would have been charged for the other. To suppose, notwithstanding this, that they understood and intended to agree-that the carrier might, at discretion, send1 by the' less desir able mode, and still charge the higher rate, is as unreasonable as to suppose that a debtor would deliberately contract that his creditor might, at option, within certain limits, determine at pleasure how large or how small the debt should be. The one, in fact, would be substantially the same thing as the other; and the validity of an agreement to that effect would he more than questionable.
But there would be nothing either unreasonable or unbusiness-like in a contract, which, while providing for the more desirable carriage, should leave the carrier at liberty to adopt some other mode if unforeseen contingencies should seem to justify it, having regard to the interests of both parties; and it may readily be inferred that such contingencies will often arise in the transportation of goods from New York to Detroit, whatever mode of carriage is primarily selected. There would be nothing unjust, therefore, in upholding such a stipulation whenever it was shown to have been acted upon fairly and in good faith.
Such, we think, was the intent of the contract in this case. The carrier undertook to transport the goods by steam on the lake; but, to provide for contingencies, stipulated for the privilege of sending by other means of transportation when it should be reasonable to do so. But when he exercised that privilege he ought to show sufficient of the circumstances to make it apparent that it was not unreasonable he should do so, and that the contingency arose which he acted upon in good faith in deciding upon the change. There was scarcely any attempt at such a showing in this case; and therefore we agree with the plaintiff that apparently there has been a breach of the contract.
But the plaintiff does not count upon a breach of the contract: what he claims is that the defendant, having performed the contract in a mode not allowable, was en titled to demand only the compensation at which perform-anee in that mode could have been bargained for when the contract was entered into, and that whatever more has been exacted has heen taken without right. But it is clear that no action can be maintained on this theory. The rights of the parties must be determined by the contract they made, and not by one they might have made but decided not to. The contract actually entered into stipulated that for the carriage of the goods the price exacted by defendant should be paid; and as they have been carried and received, the payment of the stipulated price, cannot be said, either in whole or in part, to have been an exaction which was without consideration. The plaintiff may, nevertheless, be entitled to damages if performance was not as agreed; and while these damages might equal, or even exceed, the difference between the cost of transportation by steam and by sail, so also they might fall greatly below that difference.
But the plaintiff has not brought suit for damages, and therefore is not entitled to any recovery in this case. As there has been a full argument, however, we deem it not iim proper to remark that, so far as the facts are disclosed by this record, no damages appear. Damage might have come from loss of the goods, or from injury in carriage, or from delay: if none of these consequences followed, it was of no importance to the plaintiff that the goods were not sent by steamer as he intended. There is no allegation of loss nr injury to the goods, and there is no showing that they were not delivered in Detroit by sail as early as delivery by steam would have been practicable. In sending by steam the usual course of business must be considered: the boats may have their regular times of .leaving port, or the course may be to leave when a reasonable cargo can be had: it is not likely it was the course of business that they should go at irregular times without reasonable loading. But, whatever was the course of business, the plaintiff has not shown that if defendant had taken the first opportunity to send by steam, the goods would have been likely to reach Detroit earlier than they were actually received. He has, therefore, failed to show that he was damnified.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Blair, J.
Plaintiff brought this action to recover damages for the loss of two fingers while operating a metal stamping press, designated in the record ,as a Rudolphi & Nrummel press, No. 2, in forming tin boxes. He secured a verdict of $1,500, and defendant prosecutes this writ of error to review the judgment entered thereon.
At the time of his employment by defendant, plaintiff was 16 years old, and was the only witness of the accident. His testimony as to his employment, his work, and the • accident, was as follows:
“I was first employed a day and a half before the accident. Tom Neal, the superintendent, employed me. He gave me work picking up paper off the floor, and sweeping the floor and putting it in boxes. I worked at this for ode day. He then placed me in the dry room, dipping • the tins. I dipped the tins into a sort of a black fluid or liquid and placed them in the oven. I worked at this about half a day. I then was engaged on a machine; the machine that caused the accident. The foreman found me in the dry room, when he got me to work on the machine. He called me and said: ‘ I have another position for you to fill — on a machine.’ I told him I did not like to work on a machine; I did not know anything about it. And he said that he would show me how to run the machine. I did what he told me to do. I went with him to the machine; he took a piece of tin. First he told me to put my foot on the lever and have the stamp come down and to take it off and the stamp would go up and stay up; and put my foot on the lever again and have the stamp come down again; and he fed a piece of tin — fed about four or five, and about the fifth piece stuck in the machine, and he knocked it off with his finger. He told me to feed the machine and to do as he had done until he fetched me an instrument. I put in about four pieces of tin while he was there watching. After watching me do the work about two minutes, the foreman left me. He gave me no warning about the dangerous character of the machine, nor was anything said about any defects in the machine. I had never worked on any machine before. The accident happened about 10 minutes after the foreman left me.
“The accident happened in this manner: I was feeding them in the machine; feeding about four pieces and the fifth piece stuck in the machine. After I would stamp a piece of tin, I would always take my foot off the lever and put it back from the lever. After I stamped the fifth piece of tin and withdrew my foot away from the lever, knocked it off the die — it stuck — the punch came down on my hand and came down so fast that the belt flew off and it stuck right there and my fingers in the machine. * * *
“When I was put at work on the machine, I was not instructed as to the brake. I did not know where the brake was or what it was. I knew nothing about the various parts of the machine, nor had I been instructed about the clutch or the brake or how to cure defects in them.
“ On the day that I was injured, I was first put to work on another machine by Mr. Neal. That was a punching machine to stamp out the covers for the butter crocks. After working on that machine for a short time, I told Mr. Neal that I did not want to work on the machine ; that it jumped. Then he took me off that machine and put me on this one. * * *
‘ ‘ I knew if I put my fingers in that machine and put my foot on the lever it would crush them. * * *
“Q. Now, you say that after you had worked on the paper machine for about half an hour then you stopped, did you ?
“A. I stopped.
“Q. And what did you do ?
“A. I told Mr. Neal I did not want to work on the machine.
“Q. And where was Mr. Neal at that time?
“A. He came around to see — he came around — I got off the machine and I went and found Mr. Neal and told him I did not want to work on the machine, that it was not in good order. The plunger came down about six times without putting my foot on the lever.
“Q. You told Mr. Neal all that?
“A. Yes, sir.
“ Q. Now tell me the time you got hurt on this machine; do I understand that the die came down without your having your foot around the treadle ?
“A. On which machine — on that machine ?
"Q. Yes.
“A. The die came down without my foot on the lever.
. “Q. And the die came down. I think you were telling us that you got a piece of tin, or whatever they were, ana one of the pieces of tin had rested on the die and you struck it off ?
“A. I knocked it off with my fingers.
“ Q. Knocked it off with your fingers ?
“A. And just as I was under knocking it down the plunger came down. * * * It had gone right up and came right down again without my foot on the lever — ■ came down unexpectedly I will tell you. * * *
“Q. And you took your fingers to get it off ?
“A. I took my fingers to knock it off just as Mr. Neal done when he was running the machine.”
Defendant’s superintendent, Neal, who had charge of the presses when plaintiff was hurt, testified:
“ I recollect plaintiff coming for work, and of his being placed upon a paper stamping machine. That was the day before he was injured. I took him to Charles Dew-stow and he instructed him as to running the machine. He worked nearly a day on the paper press — I would not be sure, but he worked a great part of the day before he was injured. He was transferred onto the tin press because work enough had been done on the paper press to last us awhile and he was taken off that work. If I remember right, he was taken off the paper press and put in the lacquer room by myself and from there to the tin room. Mr. Clemens at no time, while he was working on the paper press or later, complained to me about the paper press jumping, or his not wanting to work on it because of danger. I never heard of that before. I put plaintiff to work on this particular press I would say it was less than half an hour before he was injured. The operation of the paper press and of this press is similar. They both work by treadle. I took plaintiff over to the press and started to operate it and I was very particular to tell him to be sure and take his foot off the pedal while feeding it, and I ran it a little while and showed him just how to do it, and then he went to work at it and I stood and watched him. I watched him until I felt that he understood it and then I left. I think I operated it myself anyway 5 minutes and I suppose that I stayed there for 5 or 10 minutes while he operated it. I struck off probably 50 can tops there. The press worked all right; it worked perfectly. It did not repeat at all during that time. If the press at that time had shown any weakness or defect in its operation or otherwise, I would have stopped the machine and examined it and looked at the defective part. It would be my duty to attend to the press, if there were any such thing the matter. The press is geared up to run about 125 strokes a minute. * * *
“ If a piece of tin had stayed on the die and the opera tor had wanted to get it off, there were plenty of tins around there that could be used to get it off with. I told plaintiff to do it in that way. I told him to take it off with the tins. I did not say anything about providing him with anything else. It would be just as easy to take it off with the tins as with the fingers.”
The Rudolphi & Krummel press works as follows: By pressure upon the foot treadle, the clutch fork is pulled down, allowing the clutch pin to be thrown by a spring so that the pin engages the wheel which carries the power. The wheel is constantly revolving while the engine is going and the belt is on the pulley. When, by pressing on the foot treadle, the clutch pin is made to engage with the wheel, the shaft revolves, and by eccentric action, the stamp or plunger is forced down, the dies meet and perform their work and the stamp or plunger is brought up to its former position. This action necessarily occurs with each revolution of*the shaft. If the foot treadle is held down, this action continues. Upon removal of pressure from the foot treadle, the clutch pin releases the wheel and the shaft carrying the stamp or plunger stops after the first revolution. A friction brake applied to the shaft by a small hand wheel regulates to some extent the action of the shaft. On the Rudolphi & Krummel press, a safety pin is provided which is designed to prevent the machine, even when the friction brake is entirely removed from contact with the shaft, from revolving more than once unless the foot treadle is kept down.
Defendant’s counsel distribute their argument under five principal heads. We shall consider the points made somewhat out of their order as presented by the brief.
The record does not show that plaintiff’s injuries were due to any negligence on the part of the defendant. As stated by defendant’s counsel:
“The circuit judge submitted the question of defendant’s negligence to the jury, upon two items:
“First. Whether the defendant failed to give plaintiff proper instruction, and,
“Second. Whether the press was defective. The other allegations of negligence were not proven, or, at all events, the circuit judge so decided.
“The defendant’s claim on this branch of the case is:
“(a) That there was no proper evidence submitted on the trial tending to prove any defect in the press.
“ (6) That plaintiff had sufficient warning and knowledge of the danger connected with using the press, and that therefore defendant was not negligent in this respect; and finally
“ (c) That the court erred in not eliminating from the consideration of the jury the other alleged grounds of negligence, which were set forth in the declaration, but were not proven.”
The witness Jolly testified that prior to the plaintiff’s injury: .
“ I told Tom Neal, the foreman, that the brake worked loose, and he told me to tighten it up. I don’t know exactly how many times I told him, but I think it was more than once. I have tightened the brake myself without notifying him. * * *
“Q. Now, did it, while working with you, remain up when you took your foot from the lever ?
“A. Well, it came down a couple of times when I was not expecting it; but then I did not pay any attention to it. * * * The only thing that I told Mr. Neal was that the brake was loose; sometimes he would come over and tighten it, or he told me to tighten it, and it was all right after I tightened it. * * * An experienced man could tell of the looseness of the brake by the sound of the press. A new hand would not be able to tell.
Samuel Keys testified:
“I noticed that the brake occasionally worked loose.
“Q. And what was the effect upon the machine when the brake worked loose ?
“A. Well, put your foot upon the lever and it would come loose, and if the brake was very loose, it would go up and trip and come right over and come down again; repeat. * * * If the brake was very loose, when you put your foot on the lever it would come down and would go up again and trip and come right over and down again; that is, repeat. When this would occur, the person who is at work on the press generally fixed it if they were experienced enough to know. Sometimes I did it if I no ticedit; sometimes Mr. Neal would doit. He generally saw it himself when I first started on the press, but after I got used to it, if I noticed it myself, why, I tightened it up. * * * I ran the machine the evening after the plaintiff was injured and it tripped perfectly; I told Mr. Harbeck that, and that is the truth.
“ Q. And you told him the machine was not changed or fixed between the time of the accident and when I was working on it after supper, did you tell him that ?
“A. To my best knowledge.
"Q. To your best knowledge, you told him — you were telling him your best knowledge ?
“A. Yes, sir. * * * I saw this machine repeat when I was on the machine. It repeated with me after I was an experienced hand. So far as I was concerned, there was no warning given by the machine before it repeated. I cannot say how many times or how long before the accident it repeated. I have seen the machine come down several times with others and when it repeated for me, I had my foot off the lever.”
Edward Mohr testified that he lost two fingers on this same machine a week or two before plaintiff’s injury:
“I was hurt by the brake being loose and the machine repeating. All the time the machine repeated, I did not have my foot on the lever. * * * I put a piece of tin under the die and bumped it and it went up, and when I went to put another piece, when I was putting the other piece on, the die came down on my fingers and a piece was under my fingers yet. I.had not put my foot on the-lever to make it come down the second time. I put my foot on the lever and it came down, and just as I was putting a piece of tin in the die, it came down again without my putting my foot upon the lever.”
Mr. Neal testified for defendant:
“ I heard the testimony of Mr. Jolly. He told me once that the press repeated. I examined the machine and tried it and could not — I never saw it repeat. Mr. Jolly was working on the machine at the time and he came to me, as foreman, and told me the machine repeated and I went over and tried it and found that it did not repeat.
“Q. In testing this machine, or operating this machine after Mr. Jolly reported to you that it wouldn’t work right and that it repeated, what did you do ?
“A. Tripped the machine. * * *
“Q. Just put your foot on the lever and kept on doing that a few times to see whether it repeated or not with you?
“A. Yes, sir,
“Q. That is all you did ?
“A. Yes, sir.”
Hugo Gressman testified for plaintiff:
“I am experienced in machinery for stamping sheet metal and have been engaged, in that kind of work off and on for 12 or 13 years. I began working for the Gem Fibre Package Company, the defendant, I think it was in August, 1904. I was hired to set dies and take care of' presses. The press in court came under my line of work. I found defects in that machine which I repaired.
“Q. Tell what those defects were which you repaired a year ago last August ?
“A. I came into the factory and the first thing I did I looked over the machines; I looked at them and tried them and I saw that some of the parts were worn. And I tried the slides first. I found the slides worn slightly and loose. * * * The first thing I did was to adjust the slides, and it ran along, I think, for a day or two and there was something defective in the clutch — I noticed that. * * * I took the wheel off and examined it and I found the edges of the pin were worn off round.
‘ ‘ Q. Did you repair that ? '
“A. Yes, sir.
“ Q. Did you see if the brake was properly tightened ?
“A. Well, I found out in a day or two that it worked loose. I did not know it at the time, just the same day I started to work, I didn’t find that out; I found out little by little. I had never seen a machine of that manufacture before until I came to work for them. * * * I am not exactly a machinist. * * * My chief work was changing the dies and getting the machine ready for work. I had done that work in other shops. After I became employed there, I had this machine apart several times. I had the pin out. I ground off the face of it to square it, so that it did not have so much chance to slip out. * * * I did not put in a new pin. So far as I know, the same pin is now in the machine that has always been there; I ground the pin off which would make the edges a little sharper. That would make the pin remain there more certainly when it became engaged. If the pin came out, the machine would stop. If the pin did not engage, the machine would not work. If the clutch lets go entirely, it can’t repeat, but if the clutch may remain half way in, it would cause it to. * * *
"Q. Is that the dog that shoves up there in front of the hole there; did you ever tinker with that dog ?
“A. Yes, I think I did grind off that place in there and made a point on it, or put a point on it by grinding this beveled side.
“Q. How much did you grind ?
“A. Oh, perhaps, well, not an eighth of an inch. * * *
“Q. Were the conditions which you found in the machine at the time of your repairing it, such as might cause this repetition that is complained of in this case ?
“A. Yes, sir. * * *
“Q. Well, if the dog was worn away, then it would repeat eternally, wouldn’t it ?
“A. Not necessarily.
“Q. Why not?
“A. Because it would not always strike the same way. There might be a little defect in there that would not cause a continuous defect in the machine; it may work this time and the next time you put your foot on it may not work.
“Q. Now, is that the only thing that you repaired that would be likely to cause a repeating ?
“A. Yes, sir.”
Neal testified:
“I remember witness Gressman saying he ground the clutch pin on this machine which was all right; I think he did. That was about two months after the accident; * * * I have been in charge of the machines at the factory since this press was purchased and put in place, although the presses have not been directly under me of late. There is more work now and I have more help and at the present time other men look after the machines under my directions. Back of that time, I did it myself. Mr. Gressman was employed to relieve me of what I had done previously.”
Mr. Harbeck, secretary and treasurer of defendant, testified :
"I can’t say whether Mr. Gressman repaired this particular machine. I presume that he did. That is what we had him for; but the nature of the repairs had nothing to do with the repeating of the press.”
Defendant’s testimony tended to show that the mechanical construction of the machine was such that it was impossible for it to repeat.
“On the Rudolphi & Krummel presses and on this particular press, there is an appliance which is designed to and which does prevent a repeating of the machine, whether the friction brake is on or not. It is a pin right above the fork. That pin is put on there in case the brake would be loose — slides loose or anything, and you have got a die in there, possibly with a big rubber where there is considerable rebound — if your brake is loose— slides loose that throws it around as quick as that pin was out, the rebound of the rubber bringing it up the slide would throw that over center, and if it does this, with this pin in there, this pin will strike the fork and that pin has either got to break or the fork has got to break to let it pass over, provided the thing is in shape, without there is something broke off of it before. That pin is on this machine, and in my experience it works in the way that I have described. I have never known it to fail.”
a. The testimony of plaintiff and his witnesses, if credited by the jury, established the fact that the machine repeated and was defective, unless we must hold that the jury were bound to find that it was mechanically impossible for the machine to repeat, under the testimony, and that the witnesses to that effect either committed perjury or were certainly mistaken as to the fact. Notwithstanding the persuasive argument of the able counsel for defendant, illustrated by the operation of the machine in question in our presence, we think it would have been improper for the trial judge and equally improper for us, upon the basis of our judgment as to mechanical possibilities, to invade the province of the jury and determine as a matter of law that there was no question of fact for their consideration. Dupuis v. Traction Co., 146 Mich. 151.
By assignments of error 1st, 16th and 17th, defendant’s counsel sought to have the court exclude from the jury as bearing upon the question of defendant’s negligence, any testimony of Gressman, first, because he never saw the machine until some two months after the accident; and, second, because he was not an expert. Prior to the testimony of Gressman, the following colloquy occurred between counsel:
“ Mr. Monaghan: Is it your contention that this machine was not repaired from the time that that accident happened up to the present time ?
“Mr. Lightner: My contention is that if there were any changes of any kind, they were not with regard to the operating of the machine.
“Mr. Monaghan: Were not regarding any part which ■concerned the operation ?
“Mr. Lightner: Which affects the operation of the machine.
‘ ‘ Mr. Monaghan: Either the clutch or the dog or anything else ?
“Mr. Lightner: Yes.”
There was no evidence of any repairs made after the accident by anyone but Gressman, and defendant had the machine in court and had it operated in the presence of the jury, manifestly on the theory that its then condition was not materially different from that at the time of the accident. The testimony of defendant’s expert, Wood, indicated that the parts of the clutch mechanism were quite hard and not likely to wear seriously in two or three months. Under such circumstances and the concession of counsel, the court did not err in admitting the testimony of Gressman as to the condition of the mechanism. Fuller v. Mayor, etc., of Jackson, 92 Mich. 197.
The testimony of Mr. Harbeck and Mr. Neal, previously quoted, is a sufficient answer to the contention that Gressman was not qualified to testify as an expert.
b. Plaintiff’s testimony, if believed by the jury, would warrant a finding not only that he was given no instructions about the brake or its liability to become loose and the necessity for tightening it; or as to the promptness with which he should remove his foot from the treadle; or as to the reports that the machine had repeated and the necessity for removing the work with a tin and not with his fingers; but that, on the contrary, he was instructed that when he took his foot off the treadle “the stamp would go up and stay up,” and to remove the tins with his fingers, “just as Mr. Neal done when he was running the machine.” There was a conflict of testimony as to the instructions given and the court did not err in submitting the question to the jury.
Under this subdivision of the brief for defendant, it is said:
"By the defendant’s 9th request, it asked the court ta advise the jury that if the press was all right, their verdict would have to be for the defendant; also, that if the press was all right, and had been properly inspected, a verdict should be rendered for defendant, even if, as a matter of fact, the machine did repeat.
‘ ‘ The court modified these and other requests, by adding that they would not apply if the plaintiff had not received sufficient instruction or warning, and the court emphasized the error which we are now considering, by instructing the jury that they were to consider whether the proximate cause of the injury was the failure to give plaintiff instruction; and again, whether the proximate cause of the accident was the failure of plaintiff to appreciate the danger incident to handling the machine.”
In considering the propriety of the modifications of the instructions, the inexperience of the plaintiff and all of the surrounding circumstances must he borne in mind. The mere fact that he knew that if his hand was under the die when he put his foot upon the treadle it would be crushed was not sufficient to relieve the defendant. Allen v. Jakel, 115 Mich. 484.
There was a safe way of using the machine, which Neal testified he directed plaintiff to follow, and the following of which would have prevented any injury. Plaintiff testified that Neal knocked the tin off with his fingers and in structed him to do the same way till he brought him an instrument. Plaintiff had worked for a short time on the paper machine and had been relieved at his own request because it repeated and was then put at work upon the machine in question, which Neal told him would not repeat if his foot was taken off the treadle. He knew nothing about the machine except the feeding of the tin and was instructed to feed the tin in the most dangerous way and was hurt within a few minutes after he commenced the work.
Whether, in view of plaintiff’s inexperience, he was likely to appreciate the danger of following the instructions given him, was a question of fact for the jury, and if they determined that he was not, then, regardless of the condition of the machine, the giving of instructions by the person charged with the duty of giving them to do the work in a dangerous way when there was a safe way was actionable negligence. Kolodziejski v. Seestadt, 143 Mich. 38.
c. The other allegations of negligence were sufficiently eliminated by the charge of the court confining the jury to the consideration of the two submitted. We do not think there was any prejudicial error, if any at all, in refusing the request.
Assumed risk and errors in the record upon this proposition. The court instructed the jury upon this subject as follows:
“ I am asked to charge you, if you find that the press machine was in good condition and that there were none of the defects in it as claimed by the plaintiff, your verdict will be for the defendant, because the plaintiff assumed the ordinary risk attendant on the ordinary operation of the machine. I think that is so, gentlemen of the jury, but at the same time I qualify it only, as I said before, by saying to you that, if he had not sufficient appreciation of the danger or sufficient instructions to warn him in that regard, why, under those circumstances, you may find that that was the proximate cause of the injury. But it presents, as I said before, wholly a question for the jury and not a question for the court.”
We think it clear that the court would not have been justified in directing a verdict for the defendant on the ground that if the machine was in proper condition plaintiff assumed all of the ordinary risks, since his assumption of the ordinary risks would depend upon the finding of the jury as to the instructions given to him. If the machine was not in proper condition, plaintiff would only assume such risks as the jury should find he knew of or ought to have known of and appreciated their dangerous character. Our previous discussion obviates any further consideration of this head.
Plaintiff was guilty of contributory negligence. The question of plaintiff’s contributory negligence was, under the alleged instructions, at most, a question for the jury.
Error relating to measure of damages. The assignment under this head is based upon the refusal to give the defendant’s 17th request to charge, as follows:
“17. If you consider the question of damages, you will not include in your verdict any amount for loss of earning power, because it does not appear that plaintiff’s injuries have affected his ability to earn money.”
We do not think that the judge erred in refusing to instruct the jury that as a matter of law the loss of two fingers of the right hand was no evidence that plaintiff’s injuries had “affected his ability to earn money.” The only testimony on the subject of damages, aside from that relating to the accident, was that of the plaintiff, who testified:
“After the accident, I was taken to the sanitarium and suffered great pain, which continued for about a month. I am troubled with pain in that hand at the present time, if I write too long, say half an hour, and on cold days the fingers feel numb. They have no feeling in them at all.
“The plaintiff showed the right hand to the jury, from which it appeared that the first and part of the second joint of the first and second fingers had been entirely cut off. * * *
“ I am in the tenth grade at the Western High School. I have been there two years, I guess. This accident happened during vacation, and I entered the high school the next fall.”
So far as the record discloses, the employment by defendant was the only employment the boy had ever had. His business was attending school, to acquire an education preparatory to future employment; he had acquired no status as a wage earner; and the case is to be distinguished from cases where evidence can be given of actual earning capacity and its subsequent diminution. See Black v. Railroad Co., 146 Mich. 568.
The defendant’s 16th request to charge was as follows:
“If you consider the question of damages, you will award to plaintiff such an amount as will fairly compensate him for the injuries resulting from the accident.”
The trial judge gave the substance of this request and nothing else upon the subject of damages. The jury were not instructed that they might consider the question of loss of earning power or that such loss was an element of the damages to be awarded, but simply to award to the plaintiff “such damages as he suffered by reason of the injury.” The amount awarded by the jury is not an unreasonable compensation for plaintiff’s injuries, aside from any loss of earning power; the instruction as to the damages recoverable was substantially as requested by defendant, and if the court erred in refusing the 17th request, we think such error was not prejudicial.
We are of the opinion that the case was fairly submitted to the jury and that the assignments of error are not well founded.
The judgment is affirmed.
Grant, O. J., and Moore, Carpenter, and Mc-Alvay, JJ., concurred. | [
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By the Court,
Brown J.:
To the plaintiff’s declaration in this case, defendant pleaded in abatement the pendency of another action for the same cause upon the equity side of this court. To this plea the plaintiff demurred, and the sole question to be determined is whether the pendency of a suit in chancery is sufficient to abate a suit at law. The remedy in one form of proceeding may be much more complete than in the other, and the plaintiff should not be debarred from choosing that form which will best promote the ends of justice.
The following authorities cited by the plaintiff’s counsel fully sustain him in this position: Black vs. Lackey, 2 B. Mon, 257; Peak vs. Buell, 8 do., 428; Colt vs. Partridge, 7 Met., 570; Hatch vs. Spofford, 22 Ct., 485; Blanchard vs. Stone, 16 Vt., 234; Ralph vs. Brown, 3 W. & S., 395.
The rule is held equally good where the pendency of an action at law is pleaded in abatement to a chancery suit (1 Dan. Ch. Prac., 558; Story’s Eq. Pleadings, Sec. 742.)
(October 15, 1868.)
Moore & Griffin for Plaintiff.
Theo. Romeyn for Defendant.
The demurrer is sustained with costs. | [
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Speed, J.:
The plaintiff, who claims clamagés for personal injury said to have been received through the negligence of the township in not keeping a bridge in repair, secured a judgment in the court below, which was reversed by the Supreme Court, (18 N. W. Rep.,. 116) and now asks for a new trial.
The court expressed the opinion that it was probable-plaintiff would not be able to recover a judgment which would be sustained by the Supreme Court.
Under the. circumstances if plaintiff desires to experiment in the endeavor to induce the Supreme Court to reverse its opinion, she should not do so at the expense of the defendant, which has spent a great deal of money in defending the suit.
The court refused to grant the order unless the township was secured by plaintiff for this expenditure in case of another adverse judgment, and ordered that such security in the sum of $500 be filed with the clerk •within 60 days, in default of which the usual judgment will be entered in defendant’s favor.
(May 29, 1884.)
3. R. Harris and H. M. Gheever for Plaintiff.
8. R. B'urroughs and Moore & Moore for Defendant. | [
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] |
The Court,
Brown J.:
The plaintiff in this case having been forcibly ejected by the defendant from certain premises in this city, brought' suit against the defendant under the Forcible Entry and Detainer act, and having obtained restitution of the same, now brings, an action of trespass for the loss of business and profits, and for damage done to personal property.
In the second count of his declaration, plaintiff sets forth a claim for treble damages under the statutes, Comp. Laws of 1857, Sec. 4997, substantially in the following words: “And for that the said plaintiff hereto fore, &c., was in possession of certain premises, &c., and being so in possession the said defendant forcibly entered said premises, and by force ejected said plaintiff and held possession of said premises, and thereupon such proceedings were had by said plaintiff that afterwards, to wit: on the 14th day of February, A. D. 1868, said plaintiff obtained restitution of said premises under Chapter 150, Comp. Laws of this State, “By means,” &c.
To this count defendant demurs, because the plaintiff does not state before what court or officer, or between what parties, or in what locality or jurisdiction, or in what form of proceeding or process he recovered possession of said premises.
It will be seen from the statute that the plaintiff can found his claim for treble damages only upon recovery of possession under the Forcible Entry and Detainer act. Now there is no rule of pleading better settled than that a party seeking relief by virtue of the proceedings of a court of inferior jurisdiction, must set forth in his pleadings all the facts necessary to show that the court had jurisdiction in his case. (Burrill’s Pr., 279; Dakin vs. Hudson, 6 Cow., 221; Dight vs. Darner, 1 Doug., 388; Bowman vs. Buss et. al. 6 Cow., 234.) Indeed, the New York reports are full of cases in which pleadings have been held defective upon this ground. (4 Abb., N. Y. Digest, 395.)
After the requisite jurisdictional facts are alleged, the general statement “ such proceedings were had ” is sufficient. As the count in question contains no allegation showing the name of the officer or court, or any jurisdictional fact, I think it clearly defective, and the demurrer must be sustained, with leave to amend within ten •days.
(September 18, 1868.)
Moore & Griffin, for Plaintiff.
Levi Bishop for Defendant. | [
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The Court,
Cochbane, J.,
Held: That the publication was not libelous.
Thereupon plaintiff withdrew a Juror, and submitted to a nonsuit, with leave to move to set it aside.
The case was never re-tried. | [
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The Court,
Gridley, J.,
Held: That the proceedings were sufficiently regular to confer jurisdiction,and denied the motion. | [
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The Court,
Parrish J.,
held that when an action is brought against two or more defendants and one dies,, the suit cannot be revived against the administrator of' such deceased defendant; that the case must proceed, if at all, against the surviving defendants. The proceedings to revive are entirely statutory, and are not authorized in such cases. 2 C. L., 5824, page 1686.
Decided March, 1883.
Sliter & Rogers for plaintiffs.
Taggert, Stone & Earle for defendants. | [
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] |
The Court,
Walker, J.,
charged the jury, saying (among other things) that if defendant hired the horse to take him to a funeral, and went elsewhere, it was a conversion, and plaintiff is entitled to a verdict for the value of the horse. Attending a funeral on Sunday is in harmony with the statute allowing -works of necessity and mercy to be done on Sunday.
(A. D., 1868.) | [
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Harris, J.:
The question is whether on not, under Comp. Laws, Section 5264, two full days must elapse between the day of service and the day of return of a short summons.
The rule adopted by our Supreme Court seems to be to exclude the day of service and include the day of return. 23 Mich., 293.
Under this rule the service in this case was good, and the judgment of the justice, if it is a judgment, must be reversed, with costs. | [
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The Court,
Hooker, J.,
Held: That the proofs did not sustain the allegation that the impotence was incurable, and on that ground dismissed the bill.
1 Bishop on Mar. and Div., Sections 381-339.
Puterbaugh’s Ch. Prac., (Power’s Ed.), 527.
Miner & Stace for Complainant.
Brown & Patterson for Defendant
Devenbagh vs. Devenbagh, 5 Paige Ch., 554, (28 Am. Dec., 344, and note.)
J. G. vs. H. G., 33 Md., 401; 3 Am. Rep., 183.
Powell vs. Powell, 26 Am. Rep., 774; 18 Kans., 371.
The burden of proof is upon the complainant to ■establish that the impotence existed at the time of the marriage.
Bishop on Mar. and Div.; Section 235.
Devenbagh vs. Devenbagh, Supra. | [
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By the Court,
Jennison, J.
Mrs. Haskins obtained a verdict of $327 and costs in a slander suit. A few days thereafter parties tried to negotiate a compromise. The result was that a man by the name of Smithson took plaintiff to the house of defendant, where, after some discussion, a discharge in full of the verdict, in consideration of $50, was read to her and signed by her. The money was paid to Smithson with plaintiff’s consent, but it appears that he appropriated it to his own use. Judgment was afterwards entered on verdict, with leave to move to have it set aside. Mr. Palmer made the motion for satisfaction of judgment, based on affidavits. Judge Reilly filed counter affidavits, denying the facts charged.
On this showing, Held, that plaintiff had a right established by law, to wit, a judgment, and that before that right could be assailed plaintiff was entitled to have an issue framed and to defend herself by examination of witnesses in due course of law.
Ex-Judge G. J. Reilly for plaintiff.
E. Minock and E. Palmer for defendant.
Generally, no matter can be tried upon mere affidavit, except such as depends upon the discretion of the Court.
People Ex Rel. Judge of Calhoun Circuit, 24. Mich, 408.
Motion denied without costs. | [
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Lesinski, C. J.
After a jury trial, defendant Ronald Clark, M.D., was convicted of the manslaughter of his patient, Grace Neil. Dr. Clark appeals alleging four instances of error.
Grace Neil died at defendant’s medical clinic on November 3, 1967. An autopsy performed the day following her death failed to reveal the cause of death. However, blood and tissue analysis did reveal high concentrations of sodium pentothal in the deceased’s blood and brain. At trial experts generally agreed that the discovered percentages of the sodium pentothal would indicate that death had resulted from too rapid and too excessive infusion of the drug. Other witnesses’ testimony indicated that Dr. Clark had left the patient unsupervised during the infusion of the drug. In addition, it was undisputed that the doctor’s office did not contain any resuscitative equipment. Finally, experts in the medical profession, including general practitioners, toxicologists, anesthesiologists, and psychiatrists testified that the defendant’s procedure, on the day Grace Neil died, clearly violated accepted medical standards.
Defendant’s first allegation of error is that the plaintiff purposely withheld certain information, i.e., the defendant’s medical record of treatment of Grace Neil, which would have rebutted the plaintiff’s evidence of improper treatment. The testimony of the investigating detective indicates that at the time of arrest, he requested the defendant to surrender the medical record of treatment of Grace Neil and that the defendant complied with this request. At trial the records were referred to in the testimony of witnesses. However, no objection was raised by the defense to such references nor to the fact that the medical records were not produced for the defendant nor admitted in evidence. In this connection we note that defendant admits in Ms brief that the fact of the medical record seizure was testified to at preliminary examination, six months prior to trial.
Defendant now asserts, as he did on motion for new trial, that a request for production of the records was made prior to trial on March 15, 1968. While it does appear from documents filed with our Court that the request for production of these records was made, it would not follow from the fact that the request was not complied with, that the people deliberately withheld or suppressed evidence favorable to the defendant; no evidence showing deliberate withholding or suppression of evidence was offered in support of the motion for new trial.
Since the matter of the production of the medical records was never presented to the trial court for full appraisal, this Court cannot now determine whether there was any basis in fact for the claim that the medical records of treatment were suppressed. Where a defendant relies upon evidence clehors the record to set aside his conviction, the claim and the evidence in support of the claim ordinarily must be presented at the trial level in order to preserve the issue for appeal. People v. Ivy (1968), 11 Mich App 427, 431.
Defendant’s second claim of error concerns the sufficiency of the criminal information, filed in this case, which charged that:
“A licensed physician, did treat one Grace Neil as his patient, and in the said treatment Ronald E. Clark did then and there owe the legal duty of due professional care and caution to Grace Neil, and while so treating the said Grace Neil, Ronald E. Clark did feloniously kill Grace Neil, by his gross and culpable negligence, in that he, the said Ronald E. Clark, did inject into the body of Grace Neil an excessive quantity of Sodium Pentothal, and by so injecting the Sodium Pentothal into the body of Grace Neil, Ronald E. Clark did directly cause the death of Grace Neil, and thus improperly performed and grossly neglected the legal duty that he, as a physician, owed to Grace Neil, and committed Manslaughter, contrary to Section 750.321 of the Compiled Laws of 1948: M.S.A. Section 28.553.”
The crime of involuntary manslaughter is “the killing of another without malice and unintentionally, but in the doing of some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act, lawful in itself, or by the negligent omission to perform a legal duty,” People v. Ryczek (1923), 224 Mich 106,110. (Emphasis supplied.) The information fully and fairly informed the defendant of the charge against him. The information specifically charges the defendant with gross and culpable negligence and then specifically pleads the act which constituted gross negligence. MCLA § 750.321 (Stat Ann 1954 Rev § 28.553).
Defendant next argues that the information failed to advise him of the nature of the evidence to be used against him, i.e., the fact of the lack of available emergency oxygen equipment. Although defendant now claims that he objected at trial to the admission of this evidence, felt to be without the scope of the information, our review of the record fails to disclose any such objection. We will not review matters not properly preserved for appeal. People v. Ivy, supra.
Defendant’s fourth allegation of error questions the sufficiency of the evidence to prove knowledge of the extreme risk involved in his conduct. As- sTiming arguendo that proof of knowledge of the extreme risk involved in the infusion of sodium pentothal is necessary for conviction, we find that the plaintiff clearly carried the burden. Expert testimony clearly established that the failure to constantly supervise a patient being infused with sodium pentothal was violative of accepted medical standards. Further, testimony established that every medical student and medical doctor was aware or should have been aware of the precautions required to be taken. The testimony also established that the package containing the sodium pentothal also contained manufacturer’s instructions detailing the necessary precautions. Finally, the Physicians Desk Reference contained in Dr. Clark’s library, details the procedures for use of the drug. According to the totality of the testimony, Dr. Clark did not follow the required procedures when he administered the lethal dose of sodium pentothal to Mrs. Neil. Instead, he failed to maintain adequate re-suscitative equipment, discarded the manufacturer’s instructions, administered the drug without assistance, and left Mrs. Neil alone in the examination room during infusion. We find no error in the proceedings below. There was sufficient evidence, if believed, for the jury to find defendant guilty beyond a reasonable doubt. People v. Williams (1962), 368 Mich 494.
Affirmed.
All concurred.
MCLA § 750.321 (Stat Ann 1954 Rev § 28.553). | [
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J. H. G-illxs, J.
On October 8, 1968, defendants Charles Meadows and Michael Colleran were tried by a jury and convicted of carrying an unlicensed pistol in an automobile, MCLA § 750.227 (Stat Ann 1962 Rev § 28.424). On appeal, defendants allege an illegal search and seizure, insufficient evidence to support the conviction, and trial error.
The testimony at trial showed that defendant Meadows was driving a black 1965 Ford station wagon in the early morning of June 28, 1968. Co-defendant Colleran was a passenger. A police officer testified that he had been instructed to be on the alert for such a vehicle, bearing two men fitting the description of the defendants. Except for the fact that the car in question had Michigan license plates, whereas the wanted car was said to have had Ohio license plates, the car and its occupants matched the description of the “radio alert”.
The officer followed the car, pulled along side, and shined a light on its occupants. The car then sped off, struck a guardrail, and, as the car rolled forward, the defendants ran away. Police officers gave chase and arrested them immediately. A search of defendant Meadows disclosed 15 rounds of .38-caliber ammunition.
After Meadows and Colleran were taken away, one police officer entered the car to drive it to the police station. In so doing, he found a loaded .38-caliber pistol stuck in the armrest on the passenger side of the car. The officer’s testimony was to the effect that the pistol was not concealed from view.
The defendants’ claim that the pistol was illegally seized is without merit. In Harris v. United States (1968), 390 US 234, 236 (88 S Ct 992, 19 L Ed 2d 1067, 1069), the United States Supreme Court noted
“It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.”
This is the so-called “plain view doctrine” which has been repeatedly applied by Michigan Courts. People v. Tetts (1967), 6 Mich App 254; People v. McDonald (1968), 13 Mich App 226; People v. Tisi (1969), 16 Mich App 316. There was no error in admitting the pistol in evidence.
There was sufficient evidence introduced at trial to support the verdicts. People v. Jerome I. Smith (1970), 21 Mich App 717. The statute dealt with does not require that the arrest be simultaneous with the operation of the vehicle or the carrying of the weapon. People v. Moceri (1940), 294 Mich 483. The fact that defendant Meadows was carrying 15 rounds of .38 caliber ammunition supports an inference that he had knowledge of the presence of the pistol.
Defendants’ request that the trial judge charge the jury that in order to support the conviction the defendants must have been found to have exercised some control or possession over the weapon was granted in accordance with People v. Smith, supra. The trial judge properly declined to instruct the jury relative to the application of MCLA § 750.231 (a) (Stat Ann 1970 Cum Supp § 28.428 [1]), excluding from this offense a person carrying an unloaded pistol in a wrapper or container from the place of purchase to his home, because here the pistol was found loaded and uncased.
Defendant Meadows’ claim that he has newly discovered evidence sufficient to warrant a new trial is equally without merit. On the affidavits submitted in support of his motion for new trial, the trial judge could have reasonably concluded that the evidence was not newly discovered or that such evidence would not have rendered a different result probable upon retrial. People v. Paugh (1949), 324 Mich. 108; People v. Bauman (1952), 332 Mich 198; People v. Keiswetter (1967), 7 Mich App 334. Under these circumstances the trial court did not err in denying defendant Meadows motion for new trial. Cf. People v. Higginbotham (1970), 21 Mich App 489.
Affirmed.
All concurred. | [
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Weipert, J.
Defendant was convicted of armed robbery in the Recorder’s Court for the City of Detroit, Honorable Frank G. Schemanske presiding. MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28-.797). The only issue raised on appeal is whether the trial judge erred in limiting direct examination of a prosecution witness in order to order to prevent conclusionary statements. Unlike the situation in People v. Lopez (1969), 16 Mich App 208, cross-examination by defendant’s counsel was unrestricted.
An accomplice of the defendant implicated him in his confession and at trial testified for the pros ecution as to defendant’s full participation in the crime. Defendant was allowed full opportunity to cross-examine hut did little to attack the accomplice’s credibility.
The trial judge limited direct examination of the next witness for the state, a police officer, permitting him to testify only as to the persons present during the accomplice’s confession. Defendant made no objection, and did not avail himself of the opportunity, expressly accorded, to cross-examine regarding any and all circumstances surrounding the confession.
We find no error disclosed by the record and the briefs. Although the question of the effectiveness of defendant’s representation in the trial court was not raised, appellant by implication would have the Appellate Court establish some standards of trial strategy. But it is not for an appellate court, any more than it is for the trial court, to act as counsel or to preempt the professional judgment of trial counsel, blatters of judgment were present in this case; a delicate decision had to be made as to whether more could be lost than gained by cross-examining the witness. Defendant’s conviction is affirmed.
All concurred. | [
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Per Curiam.
Defendant while represented by counsel pled guilty to the included offense of attempted larceny from a person contrary to MCLA § 750.92 (Stat Ann 1962 Rev § 28.287); MCLA § 750-.357 (Stat Ann 1954 Rev § 28.589). On June 9, 1969, defendant was sentenced to a term of two to five years imprisonment by Judge Robert J. Colombo of the Recorder’s Court. With the assistance of court-appointed appellate counsel, defendant has timely filed a claim of appeal grounded solely on the contention that the lower court erred in accepting the plea, having failed to examine the defendant as to the facts of the crime and his participation therein contrary to the rule enunciated in People v. Barrows (1959), 358 Mich 267. The people have filed a motion to affirm the conviction.
A review of the record discloses a preliminary examination transcript which establishes the crime and defendant’s participation therein. With this information at hand, it is clear that the trial court had a factual basis for the plea. People v. Bartlett (1969), 17 Mich App 205; People v. Combs (1968), 15 Mich App 450.
The motion to affirm is granted. | [
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Fitzgerald, P. J.
Sammy E. Martin, defendant in the present case, was tried and convicted of murder in the second degree and sentenced to serve 20 to 30 years in prison. The facts surrounding the commission of the crime are not disputed, for defendant concedes that he shot the victim on January 6, 1968, and that she died as a result thereof. At trial, defendant filed a notice of intention to claim insanity as a defense, stating that testimony would be introduced to establish his insanity at the time the offense was committed.
Shortly thereafter, and in response to the notice, the people petitioned the court to appoint a psychiatrist to examine defendant. A hearing was had and despite objections, the motion was granted and two psychiatrists were appointed. Subsequently, during the course of the trial, testimony elicited from the psychiatrists indicated that defendant was sane at the time of the commission of the crime. Defendant now appeals the conviction.
The alleged error which is presented concerns the decision of the trial court to order a psychiatric examination of defendant on motion of the people and in subsequently permitting the psychiatrists to testify at trial. Defendant argues that in the absence of statutory mandate, the court had no inherent right to order the examination. He contends that under the circumstances, the examination violated his Fifth Amendment rights and therefore the expert testimony should have been prohibited.
The issue with which we are faced on this appeal was recently discussed and decided by this Court in People v. Early (1970), 25 Mich App 363. However, the facts of the Early decision and those of the case at hand are distinguishable at least to the extent that Early is silent as regards actually directing the defendant to submit to the court-ordered interview. It is in light of this that we shall endeavor to elaborate so the issue may be laid to rest.
Prior to this Court’s recent ruling, and despite the fact that Michigan did have a statute governing psychiatric examinations when competency to stand trial was at issue, no provision was made to aid the prosecution where insanity was claimed to exist at the time of the commission of the crime. Many states have enacted legislation which provides for the psychiatric examination in both instances. Those jurisdictions which are lacking express statutory authorization are split in their determination of the issue. However, the majority appear to ree- ognize the inherent right of a court to order a psychiatric examination when an accused files notice of insanity. It is uniformly held within these states that such an examination does not per se violate the Fifth Amendment rights of ,the accused.
A review of the applicable cases from other jurisdictions discloses State v. Mulrine (1962), 55 Del 65 (183 A2d 831), which was decided by the Delaware Supreme Court. In its opinion, the court did not specifically address itself to the constitutional issue of directing the defendant to actively participate in an examination, but it did hold that the lower court possessed an inherent right to order a psychiatric examination even in the absence of statutory authority. The basis of this decision appears to lie in the apparent absurdity of allowing psychiatric examination and testimony on defendant’s behalf once the defense of insanity is raised, while depriving the people of the same opportunities through their own experts.
The case of State v. Phillips (1967), 245 Or 466 (422 P2d 670) goes one step further by addressing itself to a consideration of the possible Fifth Amendment infringements in directing a defendant who pleads not guilty by reason of insanity to submit to a psychiatric examination. In ruling that there was no constitutional violation, the court, quoting at length from State v. Grayson (1954), 239 NC 453 (80 SE2d 387), reasoned:
“ ‘The constitutional privilege against self-crimination in history and principle seems to relate to protecting the accused from the process of extracting from his own lips against his will an admission of guilt, and in better reasoned cases it does not extend to the exclusion of his body or of his mental condition as evidence when such evidence is relevant and material, even when such evidence is obtained by compulsion.’
“If the rule were otherwise there would be no way for the state to rebut a plea of insanity after the defendant had put his mental condition in question by such a plea. No error was committed in allowing the defendant to be examined by the state’s psychiatrist nor in permitting him to testify as to his opinion of defendant’s mental condition at the time of the crime.”
Similarly, in United States v. Albright (CA 4, 1968), 388 F2d 719, the Court found that United States District Courts have the inherent power to order such examinations. The Court further held that compelling a defendant to submit to an examination in an appropriate case does not per se violate his rights against self-incrimination. See Alexander v. United States (CA 8, 1967), 380 F2d 33, and Pope v. United States (CA 8, 1967), 372 F2d 710.
The Albright decision also endeavored to elaborate the purposes of the examination and to establish criteria for protecting the rights of the accused.
“The manifest purpose of the examination in this case was, and the proper objective of a mental examination in any criminal case where a defendant’s sanity is in issue should be, to obtain knowledge not about facts concerning defendant’s participation in the criminal acts charged, but about facts concerning a defendant which are themselves material to the case. Cf. United States v. Wade (1967), 388 US 218, 219, 222 (87 S Ct 1926, 18 L Ed 2d 1149). The purpose is not to prove by evidence wrested from a defendant whether he is guilty as charged but, rather, to prove whether a defendant possesses the requisite mentality to be guilty as charged, assuming that his guilt is otherwise established, or whether, legally, he cannot be held criminally responsible, irrespective of what other proof may establish he has done.”
Despite the fact that a majority of those jurisdictions addressing themselves to the precise question now facing this Court have ruled that there exists an inherent right to order psychiatric examinations under appropriate circumstances, limits are placed upon the latitude of the examination as well as the resulting expert testimony in order to avoid clear violation of the right against self-incrimination. If the accused is ordered to submit to an interview conducted by court appointed psychiatrists, it is incumbent upon the court to insure that the resulting testimony be limited to the expression of an opinion of the accused’s sanity. Any inculpatory statements made by the defendant during the interview are not competent as admissions on the issue of his guilt. However, in the course of the psychiatric examination, questions relating to the commission of the crime are not improper, if in the opinion of the expert such questions and the related answers are necessary in the formulation of an opinion regarding the accused’s mental condition. In State v. Whitlow (1965), 45 NJ 3 (210 A2d 763), the court stated:
“It would be most anomalous to say that a defendant may advance the defense of insanity, have himself examined by his own experts and then invoke the constitutional guarantees against self-incrimination for the purpose of preventing examination by the State. State v. Myers (1951), 220 SC 309 (67 SE 2d 506). It would be a strange doctrine, indeed, to permit a person charged with crime to put in issue his want of mental capacity to commit it, and in order to make his plea invulnerable, prevent all inquiry into his mental state or condition. State v. Cerar (1922), 60 Utah 208 (207 P 597). To allow the accused to obtain his own expert, and after a private and unlimited conference with him and examination by him, to plead insanity, and then put forward the privilege against self-incrimination to frustrate like activities by the prosecution is to balance the competing interests unfairly and disproportionately against the public.”
In light of this discussion of the law as adopted in numerous jurisdictions, including Michigan, as well as the gravity of the problem involved, we reiterate that a trial court has the inherent right to order a psychiatric examination, and under the facts and circumstances of the present case, such a decision was proper. In addition, such an examination does not per se violate the defendant’s Fifth Amendment rights. It is also stressed that the underlying purpose of the examination is not to obtain facts concerning defendant’s participation in the crime for the use of the prosecution, but to obtain relevant data germane to the question of defendant’s sanity.
In the present case, the trial court compelled defendant to submit to an examination and the court indicated that defense counsel could be present during the interview. The record contains evidence of the fact that the examination and related testimony dealt only with the question of defendant’s sanity. It seems clear that in the absence of any case or statutory prohibition, no error was committed in allowing the state’s psychiatrists to testify as to their findings.
Affirmed.
All concurred.
MCLA § 767.23a (Stat Ann 1970 Cum Supp § 28.966[11]).
The minority view is summarized in State v. Olson (1966), 274 Minn 225 (143 NW2d 69), where the court ruled that in the absence of an enabling statute, a court lacks the inherent power to require a defendant to submit to the examination. See, also, French v. District Court (1963), 153 Colo 10 (384 P2d 268). | [
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Levin, J.
Confronted with continually increasing property tax assessments and an unsympathetic administrative reaction to its complaints, the plaintiff, Hoerner-Waldorf Corporation, sought relief in court. The defendants, Village and Township of Ontonagon, appeal a jury verdict in Hoerner-Waldorf’s favor.
Hoerner-Waldorf owns and operates a pulp processing plant and paper mill located in the village, township, and county of Ontonagon. For the tax year in suit, 1967, its real and personal property was assessed at $1,370,000. It appealed to the State Tax Commission which found:
(1) the true cash value of the property was $7,946,530, and
(2) the “significant” range of assessments within the village and township for various categories of property was 11.82% to 25.47% of true cash value, and the mathematically weighted average level of assessment was 17.22% of true cash value.
The commission entered an order reducing Hoerner-Waldorf’s township assessment by $1,600 to $1,368,400, i.e., to 17.22% of the $7,946,530 true cash value. The village assessment was set at $1,340,700 based on a true cash value of $7,785,863. Hoerner-Waldorf paid under protest the taxes billed on such assessments and commenced this action for refund.
At the trial Hoerner-Waldorf claimed that its township assessment should have been reduced to $800,000 and its village assessment to $775,000 and that it was entitled to a refund of $76,000 in township taxes and $21,000 in village taxes. The jury verdict was for precisely one-half of those amounts.
Hoerner-Waldorf makes no claim that its property was overvalued. It accepts as correct the State Tax Commission’s determination that the true cash value of its property was $7,946,530 and the case was submitted on that basis. Hoerner-Waldorf successfully contended before the jury that its property was assessed at a higher proportion to value than other property in the taxing district.
It is manifest from the State Tax Commission’s findings regarding the range of assessments that the property of many taxpayers in the district was assessed at a lower ratio to value than the 17.22% adopted in fixing the Hoerner-Waldorf assessment. Nevertheless, Hoerner-Waldorf is entitled to relief only if its property was assessed at a ratio of true cash value greater than the “average level of assessment” of all property, real and personal, in the taxing district. The issue, thus, is whether 17.22% is in fact, as found by the State Tax Commission, the average level of assessment.
Nor is it significant that some assessments included in computing the 17.22% ratio, after they are increased for purposes of state equalization, exceed the constitutional standard of 50% of true cash value. A taxpayer is not entitled to a reduction of his taxes because other taxpayers are paying an excessive or illegal tax. Belief may be granted, we repeat, only if he is assessed at a ratio greater than the average level of assessment.
At the trial, the chairman of the State Tax Commission testified regarding the manner in which the 17.22% ratio was established. He conceded that the range of assessments showed that there was a lack of uniformity, that there were inequities, that some property was taxed more heavily than other property, and that the State Tax Commission had failed in its efforts to persuade local assessors to tax all property in accordance with the constitutional standard of 50% of true cash value. A program for the reappraisal and reassessment of all property in Ontonagon County was undertaken in 1966 hut at the time of the trial, in November, 1968, had not been completed. The State Tax Commission did not have sufficient resources, personnel and financial, to complete this program and to correct the inequities for the tax year in suit, 1967.
Two officers of Hoerner-Waldorf testified that in their opinion the average level of assessment was 9-1/2% to 10%, not 17.22%. Their testimony appears to have been based upon a survey of deeds and mortgages of township property recorded for the most part in the year 1966 — some instruments were recorded in 1965 and 1967. It was assumed that the revenue stamps on the deeds reflected the true consideration and that the mortgages were for 75% of the value of the property. The 1967 assessments of the properties covered in the survey were generally at 10% or less of the values so computed, although some assessments were as high as 15% and a few were at 20% or more. The opinion expressed by one of the Hoerner-Waldorf officers that the personal property assessment ratio was also 10% appears to have been based upon “common knowledge.”
Over objection, Hoerner-Waldorf was permitted to introduce an exhibit showing the amount of taxes per ton of pulp production or capacity paid by paper mills in various communities in the state. This showed that Hoerner-Waldorf was paying $3.78 per ton and no other mill paid more than $2.64 per ton and one paid as little as 62^ per ton. The mill with the largest capacity paid $1.72 per ton. Hoerner-Waldorf was also permitted, over objection, to argue that a copper mill in another township in Ontonagon County was taxed at a lower percentage of its value than the Hoerner-Waldorf property. During his instructions to the jury, the judge mentioned both Hoerner-Waldorf’s claim that lower taxes were paid by paper mills located in other communities and its claim that the copper mill was assessed at a lower ratio.
We have concluded that the judgment of the trial court must be reversed and the case remanded for a new trial because it was error to allow HoernerWaldorf to introduce proof regarding assessments and taxes paid on properties located in other assessing districts. The issue in this case is whether Hoerner-Waldorf was taxed at a higher percentage of the value of its property than the average level of assessments in the taxing district where its property is located. The evidence offered by HoernerWaldorf concerning the assessments and taxes paid on particular properties located in other taxing districts is without probative value and should have been excluded when the defendants objected. Such evidence does not tend to show what is the correct assessment ratio in Ontonagon Township. If Hoerner-Waldorf desires to challenge the assessments for county tax purposes it cannot make out a case by showing that a single facility in the county, even if it is the largest, is taxed more favorably. Again, the issue would be what is the correct average ratio of assessment in the county?
We also think we should note that we have serious doubt as to whether Hoerner-Waldorf has sustained, on the basis of the evidence it presented, its heavy burden of proving the inaccuracy of the 17.22% ratio determined by the State Tax Commission. The record is silent as to whether the deed and mortgage survey covered all transactions during a particular period. Nor does it clearly appear whether the sample was sufficient to indicate the level of assessment for all real property in the district; there is evidence that cut-over timber lands are taxed at a higher level of assessment than real property generally. Also we think the proofs as to the level of assessment of personal property should be more specific. If there is any disparity in the average ratios of assessment between real and personal property, then those ratios must be weighted in arriving at the average level of assessment, all of which must be supported by clear and convincing proof. We also note that in determining the weighted average it would not be proper to include the HoernerWaldorf property because it represents such a large percentage, approximately 36%, of the total assessed valuation in the taxing district.
On the retrial all innuendo and argument based on the importance of the Hoerner-Waldorf plant to the community, including the intimation that higher wages could be paid if the taxes were reduced, should be avoided.
Reversed and remanded for a new trial. Costs to defendants.
Some property is assessed for more and some for less than the highest and lowest figures that mark the boundaries of the “significant range” determined by the commission.
There was testimony that in 1967 the village assessor was required by law to adopt the assessments established by the township assessor.
MCLA § 211.53 (Stat Ann 1970 Cum Supp § 7.97).
See In re Appeal of General Motors Corporation. City of Livonia v. State Tax Commission (1965), 376 Mich 373, 379, 380, where the Supreme Court ruled that “unequal assessments must be reduced to the average level of assessment” of all property, real and personal, in the taxing district. See, also, Kensington Hills Development Company v. Milford Twp. and Milford Village (1968), 10 Mich App 368, 373, 374.
Const 1963, art 9, § 3; In re Appeal of General Motors Corporation. City of Livonia v. State Tax Commission (1965), 376 Mich 373, 379. Cf. Consumers Power Company v. City of Muskegon (1968), 13 Mich App 334.
He testified that his information as to personal property assessments was based on his “observation of inventories of stores in this community and their furniture and fixtures” and a comparison “with the assessments on those properties.” The other officer who expressed an opinion as to the real property assessment ratio did not < state whether he had any opinion as to the personal property assessment ratio.
See Daniel R. Fusfeld and Joseph G. Kowalski, Reforming the Michigan Property Tax (1969) (unpublished mimeographed paper), suggesting as a fundamental reform that taxes be assessed in county assessment districts so as to avoid the inequities which county equalization of township, city and other local assessments has not in practice adequately corrected. A description of the equalization process and of the inequality in assessment problem appears in Robert H. Pealy, The General Property Tax, Michigan Tax Study, Staff Papers, p 211 (1958).
See Twenty-Two Charlotte, Inc. v. City of Detroit (1940) 294 Mich 275, 282; Kingsford Chemical Company v. City of Kingsford (1956), 347 Mich 91, 97, 98.
See In re Appeal of General Motors Corporation. City of Livonia v. State Tax Commission (1965), 376 Mich 373, 380, n. 5. | [
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] |
Roberts, J.
On or about March 15, 1966, Himel-hochs of Northland, Inc., the appellant herein, entered into a lease agreement with Northland Center (also referred to as “landlord”). Said agreement leased for commercial use, approximately 32,618 square feet of floor area in a portion of the North-land Shopping Center for a 20-year period.
The lease contained the following provision:
“All alterations, additions, improvements and fixtures, other than trade fixtures, which may he made or installed by either of the parties hereto upon the premises and which in any manner are attached to the floors, walls or ceilings shall be the property of the landlord and at the termination of this lease shall remain upon and be surrendered with the premises as a part thereof, without disturbance, molestation or injury. Any linoleum or other floor covering of similar character which may he cemented or otherwise adhesively affixed to the floor of the herein leased premises shall be and become the property of landlord, absolutely. The term ‘trade fixtures’ as used in this section shall he construed as including any and all electrical fixtures.”
Pursuant to the terms of the lease the landlord agreed to construct a second floor addition to the existing one-story rented premises. The lease further contemplated that appellant would make further improvements to the premises including certain partition walls. The partition walls were constructed and were found by the Michigan State Tax Commission to have a true cash value of $186,850. The tax commission held that the partition walls constituted leasehold property and assessed appellant accordingly. The State Tax Commission has filed no brief in this Court.
Appellant Himelhoch’s requests that this Court reverse the Michigan State Tax Commission’s findings. Specifically, appellant argues that the partition walls are not personal property and therefore not properly assessable to Himelhoch’s. Appellant further contends that the ruling of the tax commission was a gross misinterpretation of the general property tax act. A review of the record and applicable law persuades us that the tax commission’s ruling must be set aside.
The essential question here to be decided is whether the tax commission erred when it construed the partition walls to be appellant’s personal property, and therefore assessable to it.
The partition walls can be considered appellant’s personal property only if so contractually designated by the parties to the instant lease or if declared so by statute. Article XII, § 2 of the lease (set out above) clearly provides that the partition walls here at issue become the landlord’s property upon installation. Thus, as a contractual matter the partition walls are not assessable to appellant.
Are the partition walls assessable to appellant pursuant to the general property tax law? In considering this question we are guided by the governing principle that tax laws may not be extended by implication or forced construction. Garavaglia v. Department of Revenue (1953), 338 Mich 467; Fidlin v. Collison (1967), 9 Mich App 157.
MCLA § 211.8 (Stat Ann 1970 Cum Supp § 7.8) defines “personal property”. The phrase “partition walls” does not specifically appear in the statutory definition. Appellee City of Southfield argues that MCLA § 211.8(6) sustains its contention that the partition walls are personal property because the partition walls are “improvements situate upon leased lands.” We disagree. As appellant points out in its brief on appeal, appellant is not the lessee of land but rather the lessee of a store which is part of a building.
The partition walls are, however, “real property” as defined in MCLA § 211.2 (Stat Ann 1970 Cum Supp § 7.2) inasmuch as they are properly considered “fixtures”. The partition walls in the case at bar are annexed to the building and were expressly installed to delineate appellant’s store from those of other merchants utilizing the same building. According to the lease, the partition walls remain as part of the premises. Under Michigan law the instant partition walls are properly treated as fixtures. Colton v. Michigan Lafayette Building Co. (1934), 267 Mich 122; Sequist v. Fabiano (1936), 274 Mich 643; In Re Slum Clearance (1952), 332 Mich 485.
Since Article XII of the lease declares that these fixtures belong to the landlord, it is obvious that appellant is being improperly taxed upon real property which it does not own.
The April 29, 1969, order of the tax commission is vacated. Appellee tax commission is ordered to substract the sum of $186,859 from its previous valuation of appellant’s taxable personal property. Costs to appellant.
All concurred.
MCLA § 211.1 et seq. (Stat Ann 1960 Rev § 7.1 et seq.) as amended. | [
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Per Curiam.
The defendant, while represented by counsel, pled guilty to the reduced charge of assault with intent to rob while being armed, MCLA § 750.89 (Stat Ann 1962 Rev § 28.284), and was sentenced to a term of 25 to 35 years in prison.
On appeal the defendant argues that she should be granted a new trial because her plea was invalid under GCR 1963, 785.3. She alleges it was involuntary for the reasons that she feared the use of an illegally obtained confession and that there existed a promise of reduction in the charge.
A plea is voluntary if it is knowingly and understandingly made with the benefit of counsel even though an illegally obtained confession existed. People v. Temple (1970), 23 Mich App 651. A fulfilled promise of leniency is not a basis for holding a guilty plea involuntary. The record shows that the plea was freely, understandingly and voluntarily made and complied with GCR 1963, 785.3.
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Levin, P. J.
The plaintiffs, Charles C. and Julia Cova, doing business as Bob-O-Link Golf Course, purchased golf carts manufactured by the defendant, Harley Davidson Motor Company. The complaint alleged that the carts were defective in that they did not operate properly and that this constituted a breach of an implied warranty of quality.
The carts were purchased by the plaintiffs from a dealer, defendant Lawn Equipment Corporation, not directly from the manufacturer. The trial judge dismissed the complaint, apparently on the ground that where the damages claimed are for economic loss, not personal injury, a consumer may not maintain an action against the manufacturer for breach of warranty unless there is privity of contract. We reinstate the complaint and remand for trial.
The history of the development of the consumer’s direct remedy against the manufacturer has been frequently told. We, therefore, begin with our Supreme Court’s landmark decision in Piercefield v. Remington Arms, Inc. (1965), 375 Mich 85, 98, where the Court declared that Spence v. Three Rivers Builders & Masonry Supply, Inc. (1958), 353 Mich 120, and succeeding decisions had “put an end in Michigan to the defense of no privity, certainly so far as concerns an innocent bystander injured, as this plaintiff pleads, and that a person thus injured should have a right of action against the manufac- tuner on the theory of breach of warranty as well as upon the theory of negligence.”
While the Piercefield plaintiff suffered personal injuries, not economic loss, in Spence the loss was entirely economic. There the plaintiff owned several cottages in a resort area, one of which was built from cinder blocks manufactured and sold for building purposes by the defendant. A few months after the cottage was built the blocks started to crack, chip, and pit. The plaintiff claimed that under § 15 of the Uniform Sales Act there was an implied warranty that the blocks were of merchantable quality and the warranty had been breached. The defendant contended that the difficulties did not impair the safeness or the habitability of the cottage. The Supreme Court responded (p 126):
“[I]n this day and age appearance as well as structural safety and durability is an important factor in determining the merchantable quality and fitness of these particular products as used in this case.”
And later (p 130):
“We can also find no reason in logic or sound law why recovery in these situations should be confined to injuries to persons and not to property and allowed in food and related cases and denied in all others.”
The Court ruled (p 128) that it would no longer continue to be “hobbled by such an obsolete rule [privity] and its swarming progeny of exceptions.”
Having thus spoken forthrightly, the Conrt blurred its decision by going on to intimate that the consumer’s remedy was grounded in negligence, not warranty. And it will be remembered that in the present case the plaintiff proceeds on an implied warranty, not a negligence, theory.
Spence was followed by Manzoni v. Detroit Coca-Cola Bottling Company (1961), 363 Mich 235. Theresa Manzoni commenced an action for breach of implied warranty claiming that she was injured as a result of drinking Coca-Cola contaminated by a foreign substance. The manufacturer contended that in a suit upon an implied warranty there is “no distinction between a count in implied warranty or in tort” and the burden was upon the plaintiff to show negligence. This reasoning was rejected; the Court again reviewed the history of the development of the consumer’s remedy against the manufacturer, summing up as follows (pp 239, 240):
“The result of the operation of these forces has been a marked change in legal theory on a wide front. The food and beverage area is but a small subdivision of a field much more comprehensive, involving the whole topic of products liability. It ranges through areas both of contract and tort, from the liability of the manufacturer of a defective automobile wheel, or cinder blocks [citing Spence] to that of the seller of an inflammable dress, or the distributor of unwholesome food or contaminated drink, or even the purveyor of a caustic perfume.”
The Court added that because of the growing pressure for consumer protection the requirement of privity had been abandoned, thereby opening the door to the widespread use of the warranty theory, and that in Michigan recovery is permitted in this type of case (p 241) “either on a theory of negligence or implied warranty,” again citing Spence. (Emphasis supplied.) The Court concluded that the consumer has a choice of remedies and said (P 241):
“[I]n a' suit upon a warranty theory it is not necessary to show negligence, but rather breach of the implied warranty.” Similarly, see Hill v. Harbor Steel & Supply Corporation (1965), 374 Mich 194, 204.
In Santor v. A & M Karagheusian, Inc. (1965), 44 NJ 52, 60 (207 A2d 305, 309, 16 ALR3d 670), the New Jersey Supreme Court, in a well-reasoned opinion, reviewed its famous Henningsen decision, conceded that serious consideration had not been given in that case to whether a distinction should be made between personal injury and loss of bargain claims, and, after considering that question, ruled that a manufacturer of carpeting, defective because of an unusual line in it, was subject to liability to the consumer. The court reasoned that the manufacturer is the “father of the transaction” and said (p 60) :
“From the standpoint of principle, we perceive no sound reason why the implication of reasonable fitness should be attached to the transaction and be actionable against the manufacturer where the defectively-made product has caused personal injury, and not actionable when inadequate manufacture has put a worthless article in the hands of an innocent purchaser who has paid the required price for it.”
Although the Michigan Supreme Court has not in so many words declared that a consumer may re cover from a manufacturer for breach of implied warranty without proving negligence and without regard to privity even in a case where the product is not inherently dangerous and no personal injuries have been suffered, the loss being entirely economic, we are persuaded from our review of the foregoing decisions of our Supreme Court and from the trend of authorities in other jurisdictions that a consumer can sue a manufacturer directly for economic loss resulting from a defect in a product attributable to the manufacturer without proving negligence. If all our Supreme Court said in Spence was that a consumer can sue a manufacturer for negligence without proving privity of contract, it said nothing new at all, and Spence, widely regarded as one of the more important cases in this sector of the law, is a cipher.
On principle the manufacturer should be required to stand behind his defectively-manufactured product and held to be accountable to the end user even though the product caused neither accident nor personal injury. The remote seller should not be insulated from direct liability where he has merely mulcted the consumer.
This does not mean that the liability of the manufacturer is a liability without fault. As stated in Piercefield, one who sues a manufacturer (pp 98, 99) “must prove a defect attributable to the manufacturer and causal connection between that defect and the injury or damage of which he complains.”
It has been suggested that the time has come further to define the nature of the liability of the manufacturer, to decide whether it is a “strict liability”, and to decide to what extent it arises under and is affected by the warranty provisions in the sale of goods section of the Uniform Commercial Code. In the judicial development of the consumer’s direct remedy against the manufacturer, several dozen legal theories were coalesced in justification and rationalization of the results which the courts reached. Some of these concepts have been enacted into statutes, such as the Uniform Sales Act, and later the Uniform Commercial Code. But, as the UCC draftsmen acknowledged, the remedy is not statutory, but essentially one fashioned by the courts.
The American Law Institute’s partial restatement of the consumer’s tort remedy and the recodification of his warranty remedy in the Uniform Commercial Code record salient features of the common law as. it had evolved through the dates that the réstate ment and code drafters did their work. These formulations, however, no more mark the boundaries of the consumer’s remedy than did the earlier effort at codification, the Uniform Sales Act (see footnote 14).
The suggestion that we now label the manufacturer’s liability a “strict liability” does not strike us as particularly sound or useful. In Greenman v. Yuba Power Products, Inc. (1963), 59 Cal 2d 57 (27 Cal Rptr 697, 377 P2d 897, 13 ALR3d 1049), the California Supreme Court announced that the manufacturer’s liability was a “strict liability in tort.” This term, apparently borrowed from the writings of Professors Harper and James and Dean Prosser, was not defined in the Greenman opinion. It appears to have been used in their writings, in that opinion and in other judicial opinions which adopted this term to convey the following concepts:
1. The manufacturer’s liability does not depend on proof of negligence; it is the same kind of liability as arises from a breach of warranty, express or implied, or a false representation, express or implied.
2. Although traceable conceptually to warranty as well as tort, this liability, imposed by law, is a tort liability, not dependent on the existence of a contract or contract principles and, thus, it arises independently of the Uniform Sales Act and the Uniform Commercial Code.
3. While it is not necessary to prove negligence, the manufacturer is not absolutely liable. He is liable only if the product is defective. And, even if it is defective, in some cases he still may not be liable, e.g., experimental drugs and other unavoidably unsafe products, the marketing of which does not imply they are free of defect.
If that is what the term “strict liability” means then it would appear that under Michigan law, as laid down by our Supreme Court, the manufacturer’s liability is a strict liability or something akin to it. As held in Piercefield, the manufacturer’s liability arises by implication of law and is not limited by the Uniform Commercial Code, and negligence need not be proved, only a defect attributable to the manufacturer causally related to the plaintiff’s damage.
While the Michigan development has paralleled, even preceded, the development in other jurisdictions, we see no need to join the parade of states which have adopted the new terminology of “strict liability”. To the new generation of lawyers, trained in the new jargon, the meaning of the term “strict liability” may be clear: “a rose by any other name”, etc. But for many of the rest of us the concept of a strict liability carries overtones of its former rubric, “absolute” liability.
The manufacturer’s liability, although arising even if he has exercised due care, is not the same liability absolutely or strictly imposed on persons who keep dangerous animals or who engage in abnormally dangerous activity.
If we adopt the “strict liability” terminology, lawyers who find it to their clients’ advantage can be expected to urge upon us the analogies of the absolute (strict) nonproduct liability cases as being necessarily more pertinent than alternative sources of precedent and reasoning. There is a significant risk that the relabeling of the manufacturer’s liability as a “strict liability” may result in the casual adoption of the absolute (strict) liability precedents developed in cases dealing with dangerous animals and abnormally dangerous activities without careful analysis of whether they are truly apposite. Nothing but further confusion is achieved by using the same label to describe both the liability of a manufacturer to a consumer and of a person who harbors dangerous animals or engages in abnormally dangerous activity.
Moreover, it is apparent from Seely v. White Motor Company (1965), 63 Cal 2d 9 (45 Cal Rptr 17, 403 P2d 145), that it was either oversimplification, exaggeration, or simply misleading to say, as had the same Court in Greenman, that the manufacturer’s liability to the consumer is a strict liability.
The fact is that no term is likely to be devised that will accurately communicate all the relevant concepts. This entire field of law, which developed through adaptation and analogy to the law of torts and contracts, has been plagued by the labels of these analogies and their appurtenant historical impeditions. Indeed, it might be helpful if we abandoned the continued use in this context of our present and misleading terminology of warranty and representation, express and implied, and strict liability in tort, and simply refer to the manufacturer’s liability by the neutral term “product liability.” We would thereby acknowledge that the consumer’s remedy is an amalgam of all those concepts and of others as well; but also that it is something sufficiently dissimilar to any of these concepts so that emphasis on either the tort or contract origin is misleading and confusing.
The “product liability” of the manufacturer, and the corresponding right of the consumer, is simply the liability which in this developing jurisprudence the law imposes on a manufacturer in favor of a consumer for loss suffered by reason of a defective product attributable to that manufacturer. Elim- [nation of the old terminology would permit this field of law to develop sensibly without continuing allegiance to warranty or tort concepts, whether the question presented is one of pleading, procedure, products and defects covered, disclaimers, abnormal use or misuse by the consumer, other defenses, kinds and measure of damages or some other substantive issue.
The need to eliminate the old terminology becomes apparent upon examination of the cases, not only in Michigan, but in other jurisdictions as well. Recovery has been allowed on a number of different theories against manufacturers for economic loss caused by defective products. Many of these cases could be limited and distinguished if we look too closely at the legal theories advanced by the courts instead of at the facts and the results which were reached. When we look at the facts and the results we find that courts throughout the land have allowed recovery for economic loss, as did our Supreme Court in S'pence, in cases similar to the present case.
In some of these cases the defect caused an accident resulting in the economic loss. Manufacturers have also been held subject to liability in cases where there was no accident and the product was simply in disrepair, deteriorated, or aesthetically defective.
The monetary damages most frequently allowed are for loss of the bargain, e.g., the cost of the defective goods, or the difference between the value the goods wonld have had if they had been free of defect and their value in their defective condition, or the difference between the price paid and the value received.
While there appears to be substantial agreement that a consumer may recover for economic loss, there is considerable controversy as to whether recovery should be allowed for loss of profits and consequential damages.
The plaintiff in this case seeks to recover not only the loss of his bargain and the cost of making repairs but also lost profits. The issue whether lost profits should be compensable has not been briefed, no doubt because this case was disposed of at the trial level without reaching the question of damages. The question is now presented abstractly before the case has been tried. We think it would be better to defer addressing ourselves to this question until after a trial in which such damages are in fact awarded.
The plaintiff should be given an opportunity to prove loss of profits. In view of the uncertainty of the law, the jury should be instructed to separate any verdict between damages for (i) loss of the bargain and repair costs and (ii) loss of profits. If damages for loss of profits are awarded it will be soon enough to consider whether there should be limitations on the kinds of plaintiffs who will be permitted to recover consequential damages, the quantum of proofs required, and the other limitations, if any, on this aspect of the manufacturer’s product liability.
Eeversed and remanded for trial.
All concurred.
The complaint alleges that the plaintiffs purchased 12 golf carts from Lawn Equipment Corporation and that Lawn Equipment represented that they were constructed in a good and workmanlike manner and that they would stand up under all reasonable and proper uses for rental purposes on plaintiffs’ golf course and that they were of good, sound construction, manufactured from sound and sturdy materials and were manufactured with good, sound, sturdy parts and contained no hidden defects or imperfections.
It was also alleged that, by reason of the relationship between the plaintiffs, as purchaser, and Lawn Equipment, as seller, and Harley Davidson, as manufacturer, there was “on the part of Harley Davidson as well as Lawn Equipment an implied warranty that said golf carts were well and sturdily constructed in a workmanlike manner, of strong materials and parts, are adapted for the use for which they were manufactured and sold, that is, for rental and commercial purposes on golf courses, and that they would give satisfactory service in every respect, and contain no hidden defects or imperfections.”
It is further alleged that when the carts were put in operation in June 1967 “problems developed with the following items on said carts: throttle wires, generators and starters, ignition switches, carburetors, coil brackets, ignition points, spark plugs, and on one cart a rear axle, and that such parts failed to function” and that repeated repairs were made on the parts in 1967 and 1968 but they continued to break down.
The damages claimed are for the cost of repairs and rentals lost while the carts were under repair.
In a second count it it claimed that Lawn Equipment expressly represented and Harley Davidson impliedly represented that service parts for the carts would be available upon demand or -within a reasonable length of time and that in breach of such representation the plaintiffs were required to wait for periods of one week or a month for parts, during which time the carts were out of service.
Damages of $10,000 are claimed under Count I and $5,000 under Count II.
Piercefield was injured when the barrel of a shotgun, fired by his brother, exploded. It was conceded that Piercefield was neither a purchaser nor a user of the defective shell. These possible distinctions were held to be no longer relevant.
There was testimony that the deterioration of the blocks was progressive and that, at some undesignated future time, this would probably endanger the structure.
CL 1948, § 440.15 (Stat Ann 1964 Rev § 19.255). The corre sponding provision under present law is § 2-314 of the Uniform Commercial Code (MCLA § 440.2314 [Stat Ann 1964 Rev § 19.2314]).
The Spenee Court said (p 130) : “[T]here is authority for treating actions of this kind based upon implied warranty by the manufacturer as though they were explicitly grounded upon negligence.” The Court then went on to refer to its previous holding in Ebers v. General Chemical Co. (1945), 310 Mich 261, 275, where, in allowing recovery by a remote vendee against the manufacturer of a defective insecticide for economic loss of peach trees, the Court had observed (p 275): “Although plaintiff claims under the theory of an implied warranty, the real question is whether or not defendant was negligent.” The Spence Court also referred to its previous holding in Hertzler v. Manshum (1924), 228 Mich 416, 423, a suit against a food manufacturer for breach of implied warranty, where the Court said “Plaintiff’s case, in its last analysis, is bottomed on negligence.” After reviewing such earlier declarations, the Spenee Court concluded that since it had told litigants and their counsel that suing for breach of implied warranty is in effect tantamount to suing for negligence, it (p 131) “lacked the heart to banish this plaintiff in this case because she trustingly took us at our word. We suggest in the future, however, that, where warranted by the circumstances, such declarations should sound explicitly in negligence as well as for claimed breach of warranty.”
The Court went on, however, to observe (p 132) “that the modern trend in other jurisdictions is to permit recovery by remote vendees against the manufacturer whether the action sounds in negligence or on an implied warranty or both.” The Court concluded its opinion with the statement (p 135) that the trial judge should have permitted recovery either on a theory of negligence or implied warranty.
“The warranty action, of ancient lineage, did not require a showing of negligence (though a showing of negligence, of course, did not defeat it) but it did require privity of contract. The negligence action, on the other hand, did not require privity but it did require that the plaintiff show a lack of due care with respect to the particular article, e.g., the bottle of Coca Cola in the present case. Either of these doctrines, literally applied, gave the manufacturer a virtual immunity. As for privity, the injured consumer and the manufacturer were contractual strangers, unless related by a fiction. As for negligence, the annual output of such bottles often ran into the millions. To show the negligence of the manufacturer with respect to any particular bottle was an impossibility.” Manzoni v. Detroit Coca-Cola Bottling Company (1961), 363 Mich 235, 238.
It is true that the Court qualified this by adding after the words “breach of the implied warranty” the words “that the food is wholesome and fit for human consumption.” But in light of the earlier statement that the food and beverage area is but a small subdivision of the much more comprehensive topic of product liability, including cinder blocks, the Court’s statement cannot properly be limited to food. See Hill v. Harbor Steel and Supply Corporation (1965), 374 Mich 194.
Opinions by Souris, J., in which three other justices concurred; an additional justice concurred in the result.
Henningsen v. Bloomfield Motors, Inc. (1960), 32 NJ 358 (161 A2d 69, 75 ALR2d 1), relied on by our Supreme Court in Piercefield v. Remington Arms Co. (1965), 375 Mich 85, 99; Manzoni v. Detroit Coca-Cola Bottling Company (1961), 363 Mich 235, 240, and Browne v. Fenestra, Inc. (1965), 375 Mich 566, 571.
MCLA § 440.2313 et seq. (Stat Ann 1964 Rev § 19.2313 et seq.).
See Santor v. A & M Karagheusian, Inc. (1965), 44 NJ 52, 66, 67 (207 A2d 305, 311, 16 ALR3d 670); Seely v. White Motor Company (1965), 63 Cal 2d 9, 14 (45 Cal Rptr 17, 22, 403 P2d 145, 149).
CL 1948, § 440.15 et seq.
In the official commentary to the uniform commercial code it is said that the code remains neutral as to its effect on consumer remedies and, consequently, it neither enlarges nor restricts “the developing case law on whether the seller’s warranties, given to his buyer who resells, extend to other persons in the distributive chain.” See Official UCC comment to § 2-318, reprinted 21 MCLA § 440.2318, p 364.
See, Browne v. Fenestra, Inc., supra fn 9, pp 571, 572, adopting the views of the Supreme Court of New Jersey in Henningsen (see fn 9) that the defenses of disclaimer of liability and of elimination of implied warranties by an express warranty are not available in a consumer’s action for breach of implied warranty of fitness; the Court spoke of the implied warranty of fitness as (p 571) “implied by law.” Similarly, see Piercefield v. Remington Arms Co., supra, fn 9, p 100, holding that compliance with the notice requirement of § 49 of the Uniform Sales Act (UCC § 2-607(3) (a), MCLA § 440.2607(3) (a) [Stat Ann 1964 Rev § 19.2607(3) (a)]) is not a prerequisite to suit because the warranty “arises by legal implication distinct from a contract of sale.” It is, therefore, clear that the scope of the consumer’s remedy is not circumscribed by the language of the Uniform Commercial Code.
See, also, Santor v. A & M Karagheusian, Inc., supra fn 11, pp 66, 67; Greenman v. Yuba Power Products, Inc. (1962), 59 Cal 2d 57, 62, 64 (27 Cal Rptr 697, 700, 701, 377 P2d 897, 900, 901, 13 ALR3d 1049).
See Restatement Torts 2d, § 402A and accompanying commentary.
See 2 Harper and James, Law of Torts, § 28.15 (1956) p 1569; Prosser, Strict Liability to the Consumer, 69 Yale LJ 1099 (1960). See, also, a group of articles in 24 Tenn L Rev 923 et seq. (1957).
See Anno: Products Liability: Strict Liability in Tort, 13 ALB 3d 1057; Prosser, The Pall of the Citadel (Strict Liability to the Consumer), 50 Minn L Rev 791 (1966); Prosser, Strict Liability to the Consumer in California, 18 Hastings LJ 9 (1966).
It was primarily to avoid the basic warranty origin of the consumer remedy and the appurtenant historical baggage that the “new” remedy was termed a liability “in tort”. See Duesenberg and King, Sales and Bulk Transfers Under UCC, § 7.06[1], pp 7-73, 7-74, for a list of the complications resulting from the warranty or contract origin which over the years were eliminated by judicial decision.
See Prosser, The Pall of the Citadel (Strict Liability to the Consumer), 50 Minn L Rev 791, 805 et seq.
Dean Prosser counts Michigan as a strict liability state, citing Hill v. Harbor Steel and Supply Corporation, supra fn 7; Browne v. Fenestra, Inc., supra fn 9; Piercefield v. Remington Arms Co., supra fn 9; Spence v. Three Rivers Builders & Masonry Supply, Inc. (1958), 353 Mich 120; Manzoni v. Detroit Coca-Cola Bottling Company, supra fn 9; Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn L Rev 791, 795 (1966). Similarly, see Wyllie, Products Liability in Michigan: Implied Warranty, Strict Tort, or Both?, 15 Wayne L Rev 1558, 1564 (1969); Anno: Products Liability: Strict Liability in Tort, 13 ALR3d 1057, 1072.
See Prosser, The Law of Torts (3d ed), § 97, p 677, referring to Spence as “the real bursting of the dam.”
See cases collected in the annotation cited in fn 17.
Indeed, Justice Traynor, the author of the Greenman opinion, in an earlier concurring opinion used the terms “strict liability” and “absolute liability” interchangeably. See Escola v. Coca-Cola Bottling Co. of Fresno (1944), 24 Cal 2d 453, 461 (150 P2d 436). Also, see Restatement Torts 2d, § 402A, comment m, authored by Dean Prosser, the reporter, where the following appears:
“The liability stated in this section does not rest upon negligence. It is strict liability, similar in its nature to that covered by chapters 20 and 21. The basis of liability is purely one of tort.” Chapters 20 and 21 of the Restatement of Torts appear in division 3, headed “absolute liability.” See, also, Prosser, Law of Torts (3d ed), § 77, p 523.
The liability in such cases generally arises without regard to whether there is a “defect” and also without regard to whether the plaintiff has any expectation in respect to the defendant’s activity which is not fulfilled. The inquiry is whether the defendant is aware of the activity, and, if he is, whether what occurred is within the scope of the risk he is thereby deemed to have assumed. See Prosser, Law of Torts (3d ed), p 532 et seq.; 2 Harper and James, Law of Torts, § 14.7, p 816, § 14.12, p 838.
In Seely the Court announced that the manufacturer’s liability for economic loss is not a strict liability but depends on the law of warranty except to- the extent there has been a physical loss of property in which case the manufacturer is strictly liable.
In Gherna v. Ford Motor Co. (1966), 246 Cal App 2d 639 (55 Cal Rptr 94), where there was a pliyical loss of property, an automobile caught fire, a California appellate court ruled that tile defendant was subject to liability for the economic loss on a strict liability theory; the Court also ruled that the defendant could be held liable for breach of an implied warranty under a statute, for negligence, and for express warranty arising because of a national advertising campaign.
See fn 6 and the cases cited in fn 32.
It is recognized that the pertinent sections of the Uniform Commercial Code are structured on an interplay of provisions concerning warranties, limitation on recoverable damages, disclaimers, and other defenses and that the substitution of new terminology, e.g., “product liability”, might effect an end-run around the compromises apparent in the code formulations. However, comparable results are achieved whenever a court allows an action to be maintained on a tort theory (e.g., misrepresentation, negligence, strict liability) or holds a disclaimer to be unconscionable. The question whether a disclaimer or other defense may be interposed should be decided on its merits in the factual eontext of particular cases as they arise; as indicated in Seely there are cases involving commercial transactions between persons engaged in business where contractual limitations on liability should be recognized.
See Shanker, Strict Tort Theory of Products Liability and the Uniform Commercial Code, 17 West Res L Rev 5, 7 (1965), Rapson, Products Liability Under Parallel Doctrines: Contrasts between the Uniform Commercial Code and Strict Liability in Tort, 19 Rutgers L Rev 692 (1965); Dusenberg & King, Sale and Bulk Transfers Under the UCC, § 7.03[1], p 7-43.
We don’t mean to suggest that in the development and application of the law of product liability we will be able to avoid analogizing to contract or tort principles; only that it is misleading to pigeonhole the remedy as “strict liability in tort.” Of course, as Maitland observed in a somewhat similar context: “The forms of action we have buried, but they still rule us from their graves.” Maitland, The Forms of Action at Common Law, p 1.
The word “consumer” has been used in the interest of simplification, not with the intent of defining or limiting the class of persons who may avail themselves of the remedy.
Thus, the following statement, while essentially correct, does not tell the whole story:
“Such liability for defective products is ‘strict’ in the sense that it is unnecessary to prove the defendant’s negligence, and since the liability is ‘in tort’, the defendant cannot avail himself of the usual contract or warranty defenses which might be available in an action for breach of warranty.” 1 Hursh, American Law of Products Liability (1970 Cum Supp), § 5A:2, p 216.
But the basis of liability of the manufacturer can easily be viewed as contractual: The manufacturer’s liability is posited on his failure to live up to the consumer’s reasonable expectations regarding the product; the liability is for failure to deliver goods of the expected quality. And we apply doctrine as much contract as tort when, although the goods are defective, we hold that the manufacturer is not liable either because the marketing of these goods does not imply they will be free of defect or because of abnormal use or misuse by the consumer or because the manufacturer’s disclaimer or exculpatory clause is sustained as valid because of the nature of the proposed use or the economic strength, knowledgeability and freedom of choice of the buyer.
That the remedy is in fact being so fashioned disentangled from these concepts, see Browne v. Fenestra, supra fn 9, and Piercefield v. Remington Arms Co., supra fn 9.
See Mueller, Contracts of Frustration, 78 Yale LJ 576 (1969), Kessler, Products Liability, 76 Yale LJ 887 (1967).
See, generally, Anno: Privity of contract as essential in action against remote manufacturer or distributor for defects in goods not causing injury to person or other property, 16 ALR3d 683; Note, Economic Loss in Products Liability Jurisprudence, 66 Colum L Rev 917 (1966). See, also, Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale LJ 1099, 1143 (1960).
We'have found relatively few cases where recovery for economic loss was allowed on a theory of strict liability labeled as such. See Santor v. A & M Karagheusian, Inc., supra fn 11; O. M. Franklin Serum Company v. C. A. Hoover Son (Tex, 1967), 418 SW2d 482 (defective animal serum); Chapman Chemical Co. v. Taylor (1949), 215 Ark 630 (222 SW2d 820) (crop damage caused by chemical spray). See, also, Randy Knitwear, Inc. v. American Cyanamid Company (1962), 11 NY2d 5 (226 NYS2d 363, 181 NE2d 399).
“Although the liability of the manufacturer is termed a “strict liability” by the New Jersey Supreme Court in Santor, it is apparent that the Court did not mean that the manufacturer is liable in all events; it said (p 313): “It is not necessary in the context of this case to attempt to define the outer limits of the term 'defect’.” This parallels what our Supreme Court said in Piercefield, supra fn 9, p 99.
In the following cases the basis of the manufacturer’s liability for economic loss was implied warranty: Continental Copper and Steel Industries, Inc. v. E. C. “Red" Cornelius, Inc. (Fla App, 1958), 104 So 2d 40; Smith v. Platt Motors, Inc. (Fla App, 1962), 137 So 2d 239; State Farm Mutual Auto Insurance Company v. Anderson-Weber, Inc. (1961), 252 Iowa 1289 (110 NW2d 449); Ford Motor Company v. Grimes (Tex Civ App, 1966), 408 SW2d 313; Serijanian v. Associated Material and Supply Co. (1967), 7 Mich App 275 (action against wholesaler); Hoskins v. Jackson Grain Co. (Ela, 1953), 63 So 2d 514 (action against wholesaler; negligence arising from violation of a statute prohibiting mislabeling was also mentioned as an additional basis of liability) and Lang v. General Motors Corporation (ND, 1965), 136 NW2d 805 (negligence was an additional basis of liability); Rhodes Pharmacol Company, Inc. v. Continental Can Company, Inc. (1966), 72 Ill App 2d 362 (219 NE2d 726) (strict liability expressly rejected); Midwest Game Company v. M. F. A. Milling Company (Mo, 1959), 320 SW2d 547 (negligence for failure to warn plaintiff that fish food sold was not a “complete food”, and for breach of implied warranty of fitness).
"In a number of eases, in addition to Gherna, supra fn 25, courts have relied on the defendant manufacturer’s brochures and mass advertising in imposing liability even though there was no privity of contract, in some eases on contract, in others on tort theories. See Ford Motor Company v. Lemieux Lumber Company, Inc. (Tex Civ App, 1967), 418 SW2d 909 (express warranty because of mass advertising); Thomas v. Olin-Mathieson Chemical Corporation (1967), 255 Cal App 2d 806 (63 Cal Rptr 454) (express warranty because of national advertising; implied warranty and negligence rejected); Ford Motor Company v. Lonon (Tenn, 1956), 398 SW2d 240 (misrepresentation of material fact arising from statements in brochure; implied warranty and strict liability rejected); Randy Knitwear, Inc. v. American Cyanamid Company, supra fn 32 (express warranty arising from national advertising and mislabeling; the court also said that the liability was a strict liability); Klein v. Asgrow Seed Company (1966), 246 Cal App 2d 87 (54 Cal Rptr 609) (express warranty arising from mislabeling); Inglis v. American Motors Corp. (1965), 3 Ohio St 2d 132 (32 Ohio Ops 2d 136, 209 NE2d 583) (express warranty because of national advertising); Conestoga Cigar Co. v. Finke (1891), 144 Pa 159 (22 A 868, 13 LRA 438) (warranty arising from mislabeling); Free v. Sluss (1948), 87 Cal App 2d Supp 933 (197 P2d 854) (guarantee on soap package); Studebaker Corporation v. Nail (1950), 82 Ga App 779 (62 SE2d 198) (express warranty); Spartanburg Hotel Corporation v. Alexander Smith, Inc. (1957), 231 SC 1 (97 SE2d 199) (oral express warranty); United States Pipe & Foundry Co. v. City of Waco (1937), 130 Tex 126 (108 SW2d 432), cert. den. 302 US 749 (58 S Ct 266, 82 L Ed 579) (express warranties); McAfee v. Cargill, Inc. (SD Cal, 1954), 121 F Supp 5 (warranty).
In Greenman v. Yuba Power Products, Inc., supra fn 14, the California Supreme Court cut through all this in language worth repeating (p 64):
“Implicit in the machine’s presence on the market, however, was a representation that it would safely do the jobs for which it was built. Under these circumstances, it should not be controlling whether plaintiff selected the machine because of the statements in the brochure, or because of the machine’s own appearance of excellence that belied the defect lurking beneath the surface, or because lie merely assumed that it would safely do the jobs it was built to do.”
The view that the basis of liability is the “mere presence of the product on the market” was also voiced by the New Jersey Supreme Court in Santor v. A & M Karagheusian, Inc., supra, fn 11, p 312.
While we recognize the soundness of the reasoning of the Green-man and Santor courts, we repeat that the attempt in those cases to capsulize recent developments in the sweeping phrase “strict liability in tort” has not aided objective analysis.
Automobiles burned up spontaneously; Gherna v. Ford Motor Co., supra fn 25; State Farm Mutual Auto Insurance Company v. Anderson-Weber, Inc., supra fn 32; Ford Motor Company v. Grimes, supra fn 32. Additionally, United States Pipe & Foundry Co. v. City of Waco, supra fn 32 (water pipe developed numerous breaks); Seely v. White Motor Co., supra fn 11.
In addition to the Michigan eases of Spence and Serijanian, another case where bricks in a house deteriorated, see Santor v. A & M Karagheusian, Inc., supra fn 11 (carpeting with an unusual line); Continental Copper and Steel Industries v. E. C. “Red” Cornelius, supra fn 32 (power failure necessitating removal of cable); Smith v. Platt Motors, Inc., supra fn 32 (automobile did not run properly); Rhodes Pharmacal Co. v. Continental Can Company, supra fn 32 (aerosol can leaked) ; Lang v. General Motors Corp., supra fn 32 (truck tractor did not operate properly); Inglis v. American Motors Corp., supra fn 32 (automobile did not work properly); Conestoga Cigar Co. v. Finke, supra fn 32 (defective tobacco); Free v. Sluss, supra fn 32 (soap didn’t work); Studebaker Corp. v. Nail, supra fn 32 (automobile leaked); Spartanburg Hotel Corporation v. Alexander Smith, Inc., supra fn 32 (color in rug failed); Ford Motor Co. v. Lemieux Lumber Co., supra fn 32 (truck was unsuitable for use in rough terrain); Thomas v. Olin-Mathieson Chemical Corp., supra fn 32 (big game rifle did not work; discovered after the hunter was on safari); Ford Motor Company v. Lonon, supra fn 32 (tractor did not function properly); Randy Knitwear, Inc., v. American Cyanamid Company, supra fn 32 (nonshrink fabrics shrank); Klein v. Asgrow Seed Company, supra fn 32 (defective seeds); State ex rel. Western Seed Production Corporation v. Campbell (1968), 250 Or 262 (442 P2d 215) (defective seeds); Midwest Game Company v. M. F. A. Milling Company, supra fn 32 (fish food was not complete, requiring supplementation to maintain normal health of fish); McAfee v. Cargill, Inc., supra fn 32 (contaminated dog food).
Santor v. A & M Karagheusian, Inc., supra fn 11; Smith v. Platt Motors, Inc., supra fn 32; State Farm Mutual Auto Insurance Co. v. Anderson-Weber, Inc., supra fn 32; Conestoga Cigar Co. v. Finke, supra fn 32; Studebaker Corp. v. Nail, supra fn 32; Spartanburg Hotel Corporation v. Alexander Smith, Inc., supra fn 32; Ford Motor Company v. Lonon, supra fn 32.
In Seely v. White Motor Company, supra fn 11, the California Supreme Court affirmed a judgment in favor of the purchaser of a defective automobile of $11,659.44, representing payments on the purchase price, and of $9,240.40 for lost profits resulting from the plaintiff’s inability to make normal use of the truck in his business. The Court predicated plaintiff’s right of recovery on defendant’s breach of an express warranty that the vehicle was free of defects in material and workmanship (but discarded an express limitation on the amount of recovery). The Court said it would allow recovery of the purchase price (loss of the bargain) and for physical damage to the truck caused by a defect attributable to the manufacturer on a strict liability theory, but in dictum said that a manufacturer is not subject to liability for consequential damages (loss of profits) absent an express warranty.
See, also, Price v. Gatlin and Columbia Tractor & Equipment Co. (1965), 241 Or 315 (405 P2d 502) and State ex rel. Western Seed Production Corporation v. Campbell (1968), 250 Or 262 (442 P2d 215), where a closely-divided Oregon Supreme Court held a remote seller who is free of fault is not liable for loss of profits.
The Seely case is commented on in Wyllie, Products Liability in Michigan: Implied Warranty, Strict Tort, or Both?, 15 Wayne L Rev 1558, 1577 (1969). See, also, Prosser, Strict Liability to the Consumer in California, 18 Hastings LJ 9, 34-36 (1966); Franklin, When Worlds Collide: Liability Theories and Disclaimers in Defective Product Cases, 18 Stanford L Rev 974, 977 (1966); Duesenberg & King, Sales and Bulk Transfers Under UCC, § 7.06 [1], pp 7-77, 7-78.
But, as appears in Allen v. Michigan Bell Telephone Company (1969), 18 Mich App 632, 640, commercial users do not always have a choice, and exculpatory clauses and disclaimers may not be enforceable against them as well as other consumers.
In the following cases the courts declared that recovery for consequential damages was proper, but in each of these cases the plaintiff showed that there had been a breach of an “express warranty.” Hoskins v. Jackson Grain Co., supra fn 32; Thomas v. Olin-Mathieson Chemical Corporation, supra fn 32; Ford Motor Company v. Lonon, supra fn 32; Klein v. Asgrow Seed Company, supra, fn 32; Ford Motor Company v. Lemieux Lumber Company, supra fn 32; Randy Knitwear, Inc. v. American Cyanamid Company, supra fn 32. However, in several of the eases the express warranty was made in general advertising. It is to be doubted whether it will be possible reasonably to distinguish between such warranties and the implication of merchantability inherent in the product’s “presence on the market.” Greenman v. Yuba Power Products, Inc., quoted matter at end of fn 32. | [
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Churchill, J.
Defendant was convicted by a jury of robbery armed. He appeals, claiming that money removed from the glove compartment of a vehicle was seized in violation of his federal and state constitutional rights and further that the prosecutor’s closing argument was inflammatory, contained references to the prosecutor’s own opinion and to the opinion of others, and deprived him of a fair trial.
At the opening of trial, defendant moved to suppress evidence. It is not disclosed why the motion was not timely made, but neither the trial judge nor the prosecuting attorney challenged the timing of the motion. No evidentiary hearing was requested or held and the only evidence available to the trial judge in ruling on the motion was the transcript of the preliminary examination. We must determine the issue on the same basis. People v. Kaigler (1962), 368 Mich 281.
On June 29, 1968, at approximately 10:15 p.m. a robbery was committed at a theatre in Dearborn by two men armed with handguns. The robbers took $1,366. The police were informed of the robbery immediately. At approximately 10:21 p.m. two alert Dearborn policemen saw a Chrysler automobile with two male occupants being driven out of Dearborn and into Detroit and observed that the occupants of the auto matched the description of the two men who had committed the robbery. The policemen stopped the car at an expressway and took immediate custody of the men by covering them with a shotgun. One policeman then looked into the car. He saw a .38 revolver on the seat. He then looked under the front seat and found another gun. At the preliminary examination Officer Joseph Pavlick described the subsequent action in the following manner: “At this time other cars were arriving and they [the men] were placed in handcuffs. One was placed in one scout car and the other one was placed in another one. I then drove the Chrysler to the station myself. I drove it into the garage and, at the time, pictures were taken. I then searched the car and in the glove compartment were stacks of money. This turned out to be $1,366”.
Defendant was a passenger in the auto.
The people, relying on People v. Lovins (1968), 10 Mich App 524, challenge defendant’s standing to raise the constitutional issue. Prior to leaving the seat of the auto at the point of a police gun, the defendant was in a position to exert actual physical control over the money in the glove compartment by a mere flick of his wrist. On the authority of People v. Gonzales (1959), 356 Mich 247, we hold that he had standing to raise the issue.
The factual situation culminating in the warrant-less search of the vehicle after removal to the police station is remarkably similar to the situation described in Chambers v. Maroney (1970), 399 US 42 (90 S Ct 1975, 26 L Ed 2d 419), where the United States Supreme Court upheld a robbery conviction based on evidence obtained in the warrantless search, saying:
“For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying ont an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment. On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained”.
Prior to the reporting of Chambers v. Maroney, the same result could have been obtained, notwithstanding People v. Dombrowski (1968), 10 Mich App 445. See People v. Webb (1967), 66 Cal 2d 107 (56 Cal Rptr 902, 424 P2d 342, 19 ALR3d 708). Nothing but confusion will result if the Michigan constitutional prohibition against unreasonable searches and seizures is construed differently than the Fourth Amendment is construed by the United States Supreme Court.
Here, as in Chambers v. Maroney, supra, there was probable cause to arrest the defendant when he was stopped and there was probable cause to search the stopped auto at the scene for guns and stolen money. On the basis of what they knew before the search at the police station, the police had probable cause to believe a further search at the police station of this particular auto for particular articles, e.g., the stolen money, would be productive. On the authority of Chambers v. Maroney, we hold that the seizure of the money at the police station was not in violation of defendant’s rights.
We do not find the prosecutor’s argument to have been inflammatory, but one of defendant’s objections to the argument is worthy of special attention.
In People v. McQuire (1891), 89 Mich 64, the Michigan Supreme Court restated the rule that a prosecuting attorney may not inform the jury of his own personal opinion of the defendant’s guilt, but may argue that the defendant is guilty from the testimony and may state to the jury what evidence before them convinces him and should convince them of the defendant’s guilt. The assistant prosecuting attorney did not cross over the fine line drawn by the Supreme Court in McQuire. He did, however, state to the jury: “It’s one of the strongest cases, one of the most obvious cases that these detectives have seen”. This was a statement to the jury of other people’s opinions of defendant’s guilt. It was improper. No objection was made.
“It is the rule in criminal as well as in civil cases, that the attention of the trial court must be directed to improper argument by timely objections, and its propriety at once determined by a ruling of the trial judge. Exceptions to argument, where no ruling is asked for or obtained, will not be considered on appeal.” 2 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 627.
Affirmed.
All concurred.
MCLA § 750.529 (Stat Ann 1970, Cum Supp § 28.797).
US Const, Am IV.
Const 1963, art 1, § 2.
See People v. Ferguson (1965), 376 Mich 90.
Something more than objection would have been necessary. Koepel v. St. Joseph Hospital (1968), 381 Mich 440. | [
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O’Hara, J.
This is an appeal by plaintiff from a jury verdict of no cause of action and the trial judge’s subsequent denial of plaintiff’s motion for a new trial.
On June 9, 1965, plaintiff’s decedent was involved in an automobile accident on tlie Edsel Ford Freeway in tlie City of Detroit. Tlie deceased’s car struck a truck owned by defendant. The truck was parked in the leftmost lane of the eastbound freeway. Ed Nelson, the operator of the truck, had left the truck and, with fellow employees of defendant, was either engaged in repairing the freeway or was about to begin repairing it. Yellow flashing caution signals had been set up on the back of the truck and were operating. An additional panel of eight flashing lights was located 50 to 100 feet east of the stopped truck, the direction from which the deceased’s car was approaching. There were also three pairs of warning signs in front of the flasher-light panel.
Plaintiff instituted suit in October, 1965. His complaint alleged negligence and negligent entrustment. At trial no direct evidence tending to establish negligent entrustment was introduced. However, at no time was the count of negligent entrustment specifically abandoned. It remained part of plaintiff’s pleaded case.
During the course of the trial, evidence was introduced by plaintiff through two witnesses to the effect that the deceased was a good driver. Plaintiff administrator testified on direct examination as follows:
“Q. Had you had occasion, before the death of Michael Morey to ride in a car with him?
“A. Oh, yes.
“Q. And can you tell the court and the members of the jury when you would ride in the car with him, were you in fear of your own safety when you were riding with him?
“A. Never.
“Q. Was he ever stopped by the police for any reason whatsoever while you were in the car with him?
“A. Never.
“Q. What kind of driver was he, from your observation of him, when you would ride with him?
“A. Well, he was a lot more careful than I am.”
Decedent’s wife was also called on behalf of plaintiff. On direct examination she testified as follows:
“Q. Mrs. Morey, did you ever have occasion before this accident to ride in the car with your husband and the children?
“A. Oh, yes.
“Q. Did he ever take you and the children out for rides?
“A. Yes.
“Q. Were you ever with your husband when he ever received a violation of any kind?
“A. Awhile back, I was with him. He had gone—
“Q. Do you know when that was, Mrs. Morey?
“A. Yes. A couple of years, I guess, before the accident.
“Q. Do you know what that was for, the violation?
“A. I think he went through a yellow light, and the police was right there.
“Q. He went through an amber?
“A. Yes, an amber light.
“Q. And do you know if he went down to contest the ticket, or did he pay for it?
“A. I can’t recall.
“Q. And that is the only time you had driven with your husband when he received a violation when he went through this amber?
“A. Yes, it was.
“Q. And how many times a week or a month would you have occasion to drive with your husband in the car?
“A. Well, usually, I took the car when he would go to work, and I would go to work with him, bring the car back.”
On cross-examination defendant sought to refute the contention that the deceased was a good driver. There was introduced, over plaintiff’s objection, the driving record of the deceased. The record listed 26 convictions. Plaintiff argues that the admission of the driving record into evidence was reversible error. He suggests, in the alternative, that if the record was admissible an instruction was necessary to inform the jury that they should not consider it as substantive evidence of contributory negligence on the part of the plaintiff.
The trial judge found the record admissible pursuant to court rule and because the plaintiff had opened the door to such action by alleging and introducing supporting evidence that the deceased was a careful driver.
On oral argument before this court, plaintiff’s counsel invited our discussion and decisional holding as to whether, and to what extent, the ruling of the trial court in this particular was affected by Perin v. Peuler (On Rehearing 1964), 373 Mich 531. We find Perin. supra, totally inapposite. That case was concerned with the plaintiff’s right to introduce evidence of the defendant’s driving record, including the record of his convictions, if any, for violation of the motor vehicle code in support of plaintiff’s allegation of negligent entrustment. In Perin, supra, a clear majority of the Supreme Court held such evi dence admissible. Two justices, dissented vigorously, one dissented in part and concurred in part.
This case is the exact converse of Perin. Plaintiff here sought to and was allowed to introduce opinion evidence that his decedent was a careful driver. We know of no rule of evidence, nor any case precedent, that allows a plaintiff to elicit such opinion evidence or direct evidence in the nature of an affirmative showing of a driving record unblemished by prior convictions under the motor vehicle code in his own behalf. We regard the evidence as having been inadmissible, both as to materiality and relevancy, as well as improper opinion evidence, The questions for jury consideration in this case were the traditional ones: namely, whether the defendant’s negligence, if any, was causally related to the injury for which recovery was sought, and whether plaintiff’s negligence, if any, barred his recovery. The fact that plaintiff alleged that defendant’s driver should not have been entrusted with the operation of a motor vehicle cannot, by any possible construction of the court rule, or any interpretation of Perin v. Peuler, supra, support the admission of evidence tending to prove that plaintiff’s decedent was a “careful driver.” The admission of the testimony was reversible error, but jiot errox-which can inure to the benefit of appellant. Plaintiff initiated thé érróneous line of questioning and made the testimony part of the record. It is too fundamental to require extended discussion that an appellant cannot obtain reversal of an unfavorable outcome by reliance on error he precipitated.
“An appellant will not be permitted to take advantage of errors he himself committed.” 2 Michigan Law & Practice, Appeal, § 315, p 198.
Analogously, where a plaintiff created error by injecting the question of insurance in a case upon the voir dire, the Supreme Court held:
“Plaintiff’s counsel obviously cannot complain of the question he asked on voir dire.” Stehouwer v. Lewis (1929), 249 Mich 76, 82. (Emphasis added.)
It is equally self-evident that defendant’s cross-examination which elicited decedent’s record of some 26 convictions under the motor vehicle code was proper cross-examination. The case above quoted is authority for the fact that while, under some circumstances, the subject matter of the cross-examination would have been reversibly erroneous, in this case it was error of which plaintiff cannot complain. The injection of the issue of insurance is reversibly erroneous, but,
“[t]he plaintiff having injected the question of insurance into the case, the defendant had a right in good faith to show that he carried no insurance.” Stehouwer, supra, p 82.
“Plaintiff further claims that the defendant developed its case by introducing the testimony of its local agent and also of its president and general manager for the purpose of showing the surrender of the policy and the payment of its cash value; that such testimony was inadmissible on the ground that it was equally within the knowledge of the deceased (CL 1929, § 14219). Almost all of such testimony was developed by plaintiff through cross-examination, and having herself opened the door to that testimony, she cannot now complain because defendant thereupon more fully developed the subject matter.” LaLonde v. Roman Standard Life Ins. Co. (1934), 269 Mich 330, 333.
See, also, Westinghouse Electric & Manufacturing Co. v. Hubert (1913), 175 Mich 568, 575.
Having determined that the deceased’s driving record was admissible, what_instructional warnings were required?
Plaintiff submitted a handwritten request to charge that the driving record of decedent did not constitute substantive evidence. This charge was not given. However, the trial judge did instruct the jury that any contributory negligence of the deceased must have been a proximate cause of the fatal accident were it to bar recovery.
It is axiomatic that the trial court need not give a charge in the exact language requested. Agee v. Williams (1969), 17 Mich App 417, 428. In the case at bar, the purport of plaintiff’s requested instruction was substantially and sufficiently included within the instruction on contributory negligence and proximate cause. Taken as a whole, the instructions were correct.
Plaintiff also assigns error upon the admission of the “driving record” of defendant’s employee. Counsel, on oral argument before us, also asked for a decisional discussion of Perin v. Peuler on this point.
There is little to discuss. The Supreme Court has spoken through a clear majority. Plaintiff’s complaint for whatever reason included a count of negligent entrustment. It was never abandoned, stricken, or dismissed. It stood as an allegation that defendant negligently entrusted to one it knew or should have known was likely to cause injury to another by operation of the motor vehicle. The Perin-Peuler sword cuts both ways. Certainly in this case defendant was entitled to refute what plaintiff alleged. An idle allegation, like an idle threat, often invites a regretted result. We find no error upon which reversal at plaintiff’s behest ean be granted. Affirmed.
All concurred.
GCR 1963, 607: “Cross-Examination for Credibility. During the trial of civil actions the rules of evidence approved in Van Goosen v. Barlum, 214 Mich 595; Zimmerman v. Goldberg, 277 Mich 134; Socony Vacuum Oil Co. v. Marvin, 313 Mich 528; Cebulak v. Lewis, 320 Mich 710, and re-enacted by PA 1961, No 236. § 600.2158, shall prevail, anything in § 731 of the Michigan Vehicle Code (CLS 1961, § 257.731) to the contrary notwithstanding.’’ 374 Mich xv.
MCLA § 257.1 et seq. (Stat Ann 1968 Rev § 9.1801 et seq.)
The Supreme Court by rule (GCR 1963, 607) held nugatory the statute (MCLA § 257.731 [Stat Ann 1968 Rev § 9.2431]) prohibiting the introduction of a record of convictions under the motor vehicle code, on the ground that the statute was an impermissible legislative invasion of the Supreme Court’s authority to prescribe “rules of practice.” | [
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Per Curiam.
Defendant was found guilty by a jury of taking indecent liberties with a child and sentenced to a term of 9-1/2 to 10 years in prison. On appeal defendant contends that the court committed reversible error at the conclusion of the case when the court, in its charge to the jury, outlined the people’s theory of the case. Defendant contends that the people’s theory was not supported by the evidence. No objection was made to the charge as given; and, additionally, our examination of the record discloses that the people’s theory, as outlined by the court in its charge, fell within the scope of the proofs.
It is the well-settled law of this state that errors in the instructions to the jury will not be considered unless preserved by an objection or the error results in manifest injustice. GCR 1963, 516.2; People v. Charles Jackson (1970), 21 Mich App 132.
Affirmed.
MCLA § 750.336 (Stat Ann 1954 Rev § 28.568). | [
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Levin, P. J.
This action arises out of a collision between automobiles driven by the plaintiff, Thomas Rumptz, and the defendant, Frederick P. Leahey.
The defendant appeals a jury verdict in favor of the plaintiff and asserts:
(1) the trial judge erred when he refused to grant the defendant’s motion for a mistrial made after the plaintiff’s lawyer mentioned the name of an insurance company;
(2) when the jury requested, after it had retired to consider its verdict, that the testimony of one of the plaintiff’s witnesses be read back to it, the cross-examination as well as the direct examination should have been read.
The plaintiff claimed that he suffered both neck and back injuries as a result of the accident. A physician called in behalf of the defendant testified that in his opinion the plaintiff’s back complaints were not related to the accident.
On cross-examination it was brought out that the witness frequently testifies in court. The plaintiff’s lawyer then attempted to show that the witness claims to be an expert on whatever the exigencies of the case require. When the witness perceived the direction of the cross-examination he said, “I don’t mean to say I testify on everything”. In an apparent effort to impeach that response, the witness was asked whether he had testified in cases involving kidney problems, to which he responded, “Not unless I had a urologist with me”.
The following then ensued:
“Q. Doctor, do you recall the case over at the Workmen’s Compensation Department, the case of Joseph Collins versus Michigan Mutual Liability Company?
“A. Do I recall it?
“Q. Yes. I was the counsel for plaintiff, Doctor, and you were doing an examination — .”
At this point the defendant’s lawyer objected on the ground that plaintiff’s lawyer was testifying, not on the ground that the name of an insurance company had been mentioned. The objection was overruled. The questioning resumed.
“Q. Doctor, do you now recall that I represented Mr. Collins at the Workmen’s Compensation Department and you represented, I beg your pardon, you examined him on the part of his employer and the liability company in that case and regarding a kidney injury? Do you recall that, Doctor?
“A. Mr. Blum, I can’t remember the details of that case — I am not trying to avoid anything.
“Q. I understand that, Doctor. I am only asking if you recall the case of Joseph Collins, that that was involving a kidney.
“The Court: He answered the question.
“A. In what way did it involve the kidney?”
The defendant’s lawyer interrupted and the jury was excused. He moved for a mistrial on the ground that the first reference to the Michigan Mutual Liability Company and the second reference to the “liability company” violated the statute providing that “the insurer shall not be made or joined as a party defendant, nor shall any reference whatever be made to such insurer or to the question of carrying of such insurance during the course of trial”.
While the cross-examination may, as the judge observed, have bordered on the impermissible, it did not transgress the line. The apparent purpose of the questions — impeachment—was entirely legitimate. The jury had already been made aware that the doctor testified in a large number of cases, sometimes for plaintiffs, more frequently for defendants. It would not follow from the fact that he testified for the liability company in the postulated case of Collins v. Michigan Mutual Liability Company that all defendants for whom he testified were insured.
Jurors know that many, perhaps most, defendants in automobile accident cases are insured. The crit ical query is whether the defendant in the instant case is insured. The questions put to the witness in this case did not, in our opinion, convey or suggest to the jury that the defendant in this case was insured.
In addition to the testimony of the defendant’s medical expert witness that the back injury was not related to the accident, similar testimony was elicited from the treating physician who was called by the plaintiff as a witness. This opinion adverse to the plaintiff was expressed during the physician’s pretrial deposition and was deliberately brought out during the trial on direct examination; plaintiff’s lawyer knew, both from the deposition and his opponent’s opening statement, that this would be stressed during cross-examination. The direct examination of the physician was completed late in the afternoon. Because he was unable to return the following day, the parties stipulated that his deposition, containing the statement damaging to the plaintiff, would be read in lieu of cross-examination.
After the jurors retired to consider their verdict, they returned and asked that the testimony of the treating physician and another of plaintiff’s medical witnesses be read. This resulted in extensive discussion. It was explained to the jury that, except for the deposition of the treating physician read in lieu of cross-examination, none of the testimony had as yet been transcribed. The distinction between the typed transcript of the deposition and the untran-scribed testimony was, we think, impressed clearly upon the jury.
The jury was asked to reconsider what it wanted read. After nearly a full hour of additional deliberation, the jury returned to the courtroom at about 3 p.m. to have the “testimony” of the treating physician read. At about 4 p.m. the foreman said, in response to an inquiry from the court, that there had been read what the jury desired to have read.
The defendant’s lawyer objected that the deposition should also have been read. The objection was overruled, the judge saying that the record showed that the jury requested only the “testimony”, that the jury was well aware that the deposition was used in lieu of cross-examination and that he was sure that the jury understood the difference between what was testified to at the trial and what was in the deposition and that what they wanted to rehear had been read to them.
We are persuaded that the judge did not err in so ruling. Firstly, we think the jury understood that for purposes of determining what it desired to have read the court was making a distinction between untranscribed “testimony” and the typed deposition. Secondly, and perhaps more importantly, the significant deposition testimony of the treating physician was his opinion that the plaintiff’s hack complaints were not accident related. This was, as previously mentioned, covered during the doctor’s direct examination, which testimony was read.
In Klein v. Wagenheim (1967), 379 Mich 558, 561, the Michigan Supreme Court declared that when a jury requests that testimony he read hack to it the reading and the extent of reading is primarily ad dressed to the sound discretion of the trial judge. The Court considered the argument that it is not proper to read any testimony, unless all the testimony is read, because otherwise there would be a tendency to emphasize what is read, and rejected it, saying (p 561): “This is not now and never has been the law in Michigan”.
The defendant has not claimed that anything of importance was covered in the cross-examination that was not related during the direct examination. We are satisfied that the jury’s inquiry was responded to fully and with fairness to both sides and, accordingly, find no error.
Affirmed. Costs to plaintiff.
All concurred.
MCLA § 500.3030 (Stat Ann 1957 Rev § 24.13030). See Felice v. Weinman (1964), 372 Mich 278, 280; Benmark v. Steffen (1965), 374 Mich 155, 163, 164.
See Savage v. Parts Warehouse Company (1969), 19 Mich App 416; Bishop v. Wolinski (1969), 16 Mich App 753; cf. Herman v. Ploszczanski (1963), 369 Mich 252; Lee v. Misfeldt (1965), 1 Mich App 675; Watroba v. City of Detroit (1952), 334 Mich 182, 191, 192; Ehlers v. Barbean (1939), 291 Mich 528, 534.
There was other testimony connecting the back complaint to the accident.
The transcript of the trial proceedings does not show whether the entire testimony of the treating physician was read, only that the reading began at about 3 o’clock and concluded at about 4 o’clock. However, during the argument in our Court the defendant’s lawyer said that the entire testimony of the treating physician was read and we proceed on that assumption.
See Gold v. Detroit United Railway (1923), 223 Mich 209, 212; People v. Kasem (1925), 230 Mich 278, 288; People v. Shuler (1904), 136 Mich 161, 167; cf. Loose v. Deerfield Twp. (1915), 187 Mich 206; People v. Walker (1963), 371 Mich 599, 610 (opinion of O’Hara, J.)
The defendant also complains of the failure to read back to the jury certain records of the doctor which had also been read to the jury in lieu of cross-examination. But, again, those exhibits related to facts clearly brought out during the treating physician’s direct testimony. | [
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O’Hara, J.
This appeal follows defendant’s conviction by a jury on November 9, 1967, of felonious assault (MCLA § 750.82 [Stat Ann 1962 Rev § 28.277]) and robbery armed (MCLA § 750.829 [Stat Ann 1970 Cum Supp § 28.797]). The offenses allegedly took place on December 9, 1966. Defendant was originally represented in circuit court by the same assigned counsel who represented him at the preliminary examination. Thereafter, defendant was represented by retained counsl who filed his appearance on both April 24 and May 30, 1967. In the interim, the trial court had received, considered, and denied a motion to quash, filed October 11, 1967. The only other facts relevant to this appeal are contained in the record of the trial, dated November 8, 1967, which commences as follows:
“The Court Clerk: People versus Charles O. Williams, charged with one, robbery armed and two, felonious assault.
“Mr. Poehlman (assistant prosecuting attorney): People are ready.
“Mr. Monash (defense counsel): The defense is not ready. I know you have my notice to withdraw, which I filed at noon today. I left your courtroom and I didn’t realize at the time that I had a call from Mr. Albert Goldfarb and Mrs. Williams, who is here, and she contacted Mr. Goldfarb about having Mr. Goldfarb substitute for me.
“Mr. Goldfarb is in a murder trial before Judge Olsen, but he was here for about a half an hour. Mr. Batts called Judge Olsen, and I understand that Mrs. Williams, in my presence told me that Mr. Williams did not want me as his attorney. Mr. Goldfarb is talking about substituting for me. That is right, isn’t it, Mrs. Williams ?
“The Court: Is there anything else?
“Mr. Monash: In the motion yesterday morning something very drastic came up between my client and I, and I feel that I could not do the job expected of me, and I feel that it would be an injustice for him to have me for an attorney and for me to go into trial.
“The Court: I am concerned, Mr. Monash, because this case has been up; this is about the fourth time.
“I heard Mr. Williams the last time he was here and I heard you the last time. The only thing I am concerned about is competence. I know that you are, and we are going to proceed to trial. Is this going to be an adjourned trial or a waiver?
“Mr. Monash: Well, I have to talk to him.
“The Court: You have been on this case for quite a while, so I just want to know if you want a jury or if it is going to be waived.
“Mr. Monash: Could I go into the jury room privately for five minutes ?
“The Court: Go ahead, and make up your mind right away. I am denying your motion because it does not speak of anything of substance. I know that you are competent.
“Mr. Williams, I don’t know what his views are in this matter, so far as personality conflicts are concerned, hut personality conflicts are not the matter with which the court is concerned.
“This matter has been adjourned over and over again for one reason or another. Mr. Williams has had sufficient time if he wished to retain someone else. The court feels that this is a delaying tactic and nothing* more.
“Mr. Monash: It is not a delaying tactic, your Honor.
“The Court: I am not faulting you.
“Mr. Monash: I have no such intentions, your Honor.
“The Court: I am not accusing you, but we will proceed to trial and if you will advise us promptly, please.
“Defendant: The reason why I feel that I must speak now to insure you that there is no delaying tactic involved here on my part is because since June, when this case was first assigned to you, as I understand, I did not see my attorney until the last time we appeared here in this courtroom.
“Mr. Monash: You saw me in the county jail before.
“Defendant: When I saw you in October you told me the case had been assigned in June to him. The last time I saw him was in June since October. I told him then about last month, which was the first time I had seen him since June, and I understand that it was assigned in June. Somebody told me the case had been assigned to you in June.
“I told him there were two witnesses I wanted, and he has not made preparation to get the witnesses for my defense, because it seemed that he was apparently so sure that I would plead to some charge that I could not have committed. This is why I told my mother that due to the fact that he has not been working on the case, it appears that I ask that I get someone to try to bolster my defense because I am not guilty of a robbery. I never robbed anybody in my life.
“The Court: Mr. Williams, we are going to proceed to the trial today.
“Defendant: But, he has not gotten my witnesses.
“The Court: I am sure that he has made whatever efforts that are required to prepare the case. You have talked to him about it I am sure, and he has prepared the defense to the best of his ability.
“Whether or not he has your witnesses does not mean that he is preparing it the way you want him to prepare. I am confident of Mr. Monash. He is competent, and we are proceeding to trial, Mr. Williams.
“The Court Clerk: A-135642. People versus Charles O. Williams. Count one, robbery armed and count two, felonious assault.
“Mr. Poehlman: People are ready.
“Mr. Monash: Defendant is ready. He wants a jury trial, your Honor.
“Defendant: I want a jury trial.
“The Court: Mr. Williams, I have known Mr. Monash for a long time. He was a prosecuting attorney for the County of Wayne from 1946 to 1948 and he is recognized as a very highly competent lawyer, and you have had the opportunity to retain someone else if you wished to retain someone else and, of course, the court has to be concerned about the people here, about the complaining witness and about the other witnesses here. You are not the only one concerned.
“We have adjourned this matter for the same reasons many times, and we are going to go to trial today.
“Mr. Monash: .Your Honor, I would like to say—
“The Court: Does it have anything to do with this matter ?
“Defendant: Your Honor, when I was arrested, they took * * *
“The Court: If there are any matters that have to be brought up in the course of the trial, Mr. Monash will bring them up properly.
“Alright. Draw a jury.”
The only issue presented is whether the trial court committed reversible error in denying defense counsel’s motion to withdraw, and in failing to grant a continuance. “It is well accepted in this State that the granting of a continuance rests with the sound discretion of the trial court.” McKay v. Black (1967), 5 Mich App 711, 713, 714. See also, Annotation, 66 ALR2d 298. On the record presented in this case, we find no abuse of discretion. There had been numerous prior delays in bringing this matter to trial. Moreover, a defendant is not entitled to substitute counsel indefinitely and thereby continue to thwart the fair administration of justice. People v. Fleisher (1948), 322 Mich 474. The record reveals that defendant was ably represented at trial and was not prejudiced by the trial court’s denial of the motion.
Affirmed.
All concurred. | [
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Y. J. Brennan, J.
Plaintiff was injured when her automobile was struck from the rear by a truck driven by defendant Slatina and owned by the defendant company. At the trial plaintiff testified that she stopped her car in order to allow the car in front of her to complete a left turn, and while she ivas at a standstill, she was struck by the defendant’s truck. Defendant, on the other hand, asserted that the plaintiff swerved in front of him and then came to a sudden stop. He claimed that his conduct was reasonable in the light of the sudden emergency. From a jury verdict of no cause of action, plaintiffs appeal.
Plaintiff raises two assignments of error which question the sufficiency and accuracy of the trial court’s charge to the jury on the issue of the “sudden emergency” rule.
First, it is said that it was error for the trial court to refuse to instruct the jury that the presumption of negligence created by a rear-end collision can only be rebutted by evidence that is “clear, positive, and credible.” Plaintiff cites Krisher v. Duff (1951), 331 Mich 699, as authority for this proposition. In that case the Court had before it the “owner’s consent” presumption, and limited its holding to the particular statute involved:
“The presumption of consent or permission by the owner of an automobile arising through its use by the party causing the injury exists in practically every State in the Union including Michigan and is a rebuttable presumption as well. Generally speaking, the evidence to make this presumption disappear should be positive, unequivocal, strong and credible. The presumption is given more weight because of the dangerous instrumentality involved and the danger of permitting incompetent driving on the highway; and because the proof or disproof of consent or permission usually rests almost entirely with the defendants. The defendant owner frequently may be the only witness and not disinterested.” Krisher v. Duff, supra, 706 (Emphasis supplied.)
Where, however, we are dealing with the rear-end presumption, it appears that the standard urged by the plaintiff is pertinent only to the issue of whether the presumption has been rebutted as a matter of law. Petrosky v. Dziurman (1962), 367 Mich 539, 547. This standard is one for the judge. If the evidence is less than clear, positive and credible, “the question whether such presumption has been overcome should be settled — on proper instruction of course — in the jury room.” Petrosky v. Dziurman, supra, 544, 545, citing Garrigan v. LaSalle Coca-Cola Bottling Co. (1961), 362 Mich 262. The trial court did not err in refusing to instruct that the jury could find that the presumption was rebutted only upon clear, positive, and credible evidence.
Plaintiff next contends that the “sudden emergency” rule is an affirmative defense and that the trial court erred in refusing to charge that defendant has the burden of proof as to that issue. It is true that the burden of establishing an affirmative defense is on the defendant, Redding v. Snyder (1958), 352 Mich 241, but where none is raised, the defendant does not bear the burden of proof as to his defense. Weaver v. Motor Transit Management Co. (1930), 252 Mich 64. What we said in Vander Laan v. Miedema (1970), 22 Mich App 170, 174, 175, is dis-positive of the question raised here:
“The doctrine of sudden emergency is a ‘logical extension of the “reasonably prudent person” rule,’ and as such is not an affirmative defense. Baker v. Alt (1965), 374 Mich 492, 496. As it was said in Baker, at p 496, the ‘test to be applied is what that hypothetical, reasonably prudent person would have done under all the circumstances of the accident, whatever they were.’ ” (Emphasis supplied.)
Since the “sudden emergency” rule is not an affirmative defense, it was not incumbent upon the defendant to establish by a preponderance of the evidence that an emergency existed nor was it error for the judge to refuse to so charge.
We And no merit in plaintiff’s contentions and the judgment of the circuit court is therefore affirmed.
Affirmed.
MCLA § 257.402 (Stat Ann 1968 Rev § 9.2102).
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Davidson, J.
The defendant was convicted by a jury of armed robbery. MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797). He appeals to this court as a matter of right.
On August 28, 1967, between the hours of 1 and 2 p.m., a man entered the branch of the National Bank of Detroit in the city of Plymouth, approached one of the tellers, and handed her a note demanding money. The man raised a newspaper he had in one of his hands and exposed a gun. The teller handed the robber money which he stuffed into a paper bag; and, after he had left, she sounded the alarm.
In the course of the investigation of the robbery, 10 to 12 photographs from police files were shown to 3 bank employees, who identified the defendant as the person who had robbed the bank. On the 30th day of August 1967, at a police lineup in the Detroit Police Department headquarters building, the defendant was again identified as the person who had committed the robbery.
At trial, when the subject of the defendant’s identification was raised, the court excused the jury and took testimony surrounding the use of the photographs and the lineup by which the defendant had been identified in order to determine whether or not in-court identification of the defendant would be permissible. The trial judge held that the in-court identification of the defendant would be permitted and that the photographic and lineup identification procedures were proper.
The defendant’s first contention is that the photographic identification procedure was so unduly prejudicial as to fatally taint his conviction. In Simmons v. United States (1968), 390 US 377 (88 S Ct 967, 19 L Ed 2d 1247), the defendants were charged with armed robbery and snapshots of the defendants were shown to eyewitnesses while the robbers were at large. The Court scrutinized the identification procedure to determine whether or not, in light of the totality of the surrounding circumstances, the procedure was so unduly prejudicial as to fatally taint the conviction of defendant Simmons.
On the basis of Simmons, we conclude that the photographic identification procedure used in this case was proper. First, there was a necessity to use photographs because the bank robber was still at large. Second, the witnesses had a good opportunity to observe the robber. Third, the identification was made the day after the crime, while the memories of the witnesses were still fresh. Fourth, enough photographs were shown to the witnesses; there is no indication in the record that the photographs singled out the defendant. Fifth, each wit ness was alone when shown the photographs. Finally, the witnesses were not given any suggestive information or instructions before they made their identification of the defendant.
The defendant next attacks the lineup procedure. During the trial, the defendant moved for an evi-dentiary or Walicer-type hearing concerning the procedure used at the lineup conducted two days after the bank robbery. The police officer who conducted the lineup testified concerning the procedures used and defense counsel was allowed extensive cross-examination. However, the trial court did not allow the defendant to take the stand during this evidentiary hearing.
In People v. Cope (1969), 18 Mich App 14, the defendant assigned error to the trial court’s refusal to permit him to testify at the pretrial hearing on the alleged invalidity of a search and seizure. This Court affirmed the trial court’s ruling. On appeal to our Supreme Court, the case was remanded to the trial court for a complete evidentiary hearing on the admissibility of the seized item. People v. Cope (1970), 383 Mich 757.
In this case, as in Cope, the trial judge was requested to rule upon an alleged violation of a constitutional right, concerning a disputed question of fact. With respect to the right of a defendant to present his version of the facts, we can perceive no difference between the search and seizure situation presented in Cope and the lineup identification situation presented in this case.
To the same effect, when the voluntariness of a confession is at issue, see People v. Walker (On Rehearing, 1965), 374 Mich 331; and when the facts surrounding an arrest are in issue, see People v. Wiejecha (1968), 14 Mich App 486.
Therefore, we conclude that the defendant had a right to testify regarding the procedures used at the lineup. We remand this cause to the jurisdiction of the trial court for purposes of holding a complete evidentiary hearing on the lineup identification. At this hearing, the defendant shall be permitted to take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances regarding the lineup.
Upon such a hearing, if the trial court determines that the lineup was not held in a manner consistent with the requirements of due process, then the defendant would be entitled to a new trial, unless the people establish that the in-court identification had an independent origin and that the testimony regarding the lineup identification was harmless beyond a reasonable doubt or that both the lineup identification and in-court identification testimony were harmless beyond a reasonable doubt.
We have considered the other issues raised by the defendant and find them to be without merit. Particularly, we have carefully reviewed the record in this case with regard to the claim that the trial judge pierced the veil of judicial impartiality in his cross-examination of alibi witnesses. This questioning by the trial judge was limited in scope, material to the issues in the case, and did not communicate to the jury any opinion the trial judge may have had regarding these matters. Thus, the questioning was not error. See People v. Bedsole (1969), 15 Mich App 459.
Remanded to the trial court for further proceedings as directed above.
All concurred. | [
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Holbrook, P. J.
The State Highway Commissioner, plaintiff, on June 10, 1966, filed a petition for condemnation of land owned by defendants, Kenneth McCarthy and Vivian McCarthy, husband and wife, and other lands in Bay County, for the construction of highway I-75. Defendants’ land, the subject of the taking and this appeal, comprised 10.7 acres in fee, of which 1.4 acres was subject to an existing right-of-way easement. The estates to be taken also included all rights of ingress and egress (limited access) between the highway to be constructed and part of defendants’ property, which was not condemned, described as the northeast quarter of the northeast quarter of section 17, town 15 north, range 4 east. The court held a pre-trial hearing on March 13, 1967, and submitted the names of several prospective commissioners to both parties for their objections, if any. The court, on July 13, 1967, selected from the list three persons who had not been objected to by the parties and appointed them as commissioners.
Defendants’ principal attorney passed away and the case was delayed. Present counsel for defendants filed an appearance March 7,1968, and a second pretrial hearing was held May 20, 1968. The case was tried in August 1968, and the sum of $7,102.50 was awarded by the commissioners to defendants. The award was confirmed and defendants have appealed. They claim (1) that the commissioners were biased; (2) that there was error in the court’s instructions to the commissioners; (3) that the award was inadequate; (4) that the court erred in certain rulings on the evidence.
I
Defendants claim that the commissioners did not constitute an impartial tribunal based on five reasons, vis: (1) because of statements alleged to have been made by two of the commissioners. We have read what they were alleged to have stated and, even assuming that the commissioners made these statements which we do not repeat here for valid reasons, we conclude that such statements are not evidence of any prejudice against defendants. (2) Because one of the commissioners was acquainted with one of the defendants. This fact alone does not indicate any bias or prejudice against defendants. Rice v. Winkelman Brothers Apparel, Inc. (1968), 13 Mich App 281. (3) Because one of the commissioners was not a freeholder. Even if true, the objection after trial comes too late. Counsel had many months to object to the qualifications of any of the commissioners. No objections were made until after the trial. State Highway Commissioner v. Breisacher (1925), 231 Mich 317. (4) Because one of the commissioners was a law partner of a state legislator. Defendants cite the opinion of the attorney general. It states that members of the legislature and the county board of supervisors cannot sit as commissioners in condemnation cases because of a conflict of interest. We rule that this is not applicable to law partners of state legislators and, further, this fact was known by counsel for defendants some time before the case was tried and no objections were made. Any objections that defendants had, therefore, were waived. State High way Commissioner v. Breisacher, supra. (5) The commissioners independently sought out evidence. This last assertion is not supported by the record and we are constrained to rule that the commissioners acted properly.
II
Defendants assert that the court gave six erroneous and prejudicial instructions to the commissioners. Defendants label these instructions improper, inappropriate, confusing, and loaded. Counsel does not give any reasons why they were improper, inappropriate, confusing, and loaded nor does he cite any authority for his position. The mere statement of a position without argument or citation of authority is insufficient to bring an issue before an appellate court. Mitcham v. City of Detroit (1959), 355 Mich 182; Arrand v. Graham (1941), 297 Mich 559; and Dolby v. State Highway Commissioner (1938), 283 Mich 609. Defendants assert that the trial court erred in not giving five proposed instructions that their counsel proffered. The court’s instructions show that the proffered instructions were covered substantially in the court’s own words and, therefore, it was not error to fail to give the proposed instructions. Ferries v. Copco Steel & Engineering Company (1955), 344 Mich 345. We further point out that defendants did not comply with GCR 1963, 516.2 which provides:
“No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection.”
This rule we have previously determined is applicable to condemnation cases. State Highway Commissioner v. Snell (1967), 8 Mich App 299, 319. It is clear from the record that counsel was not specific in his objections, and thus, he has not preserved the claimed error for review on appeal. Snyder v. New York Central Transport Company (1966), 4 Mich App 38.
Ill
Defendants contend that the award of the commissioners was inadequate, that it was based on false principles, and that substantial justice was not done. Defendants’ contentions are consonant with their argument to the commissioners that they were entitled to receive compensation in accord with their expert’s appraisal of the damage, viz: $13,568. They were properly allowed to go to the commissioners on this premise. However, such an appraisal was not binding on the commissioners. The frontage value of defendants’ property being taken was submitted to the commissioners in the instruction:
“Now, of course, a given parcel may have a highest and best use as to a portion of that parcel for one purpose and another highest and best use for another part. This is where we come along to this frontage argument as to whether or not it should be used for residential or for farming.”
The appraisers differed as to the highest and best use of the property and they differed as to the damage suffered by the defendants. The claimed loss incurred because of the termination of defendants’ dairy business was also submitted to the commissioners. As to this claimed error, the award was within the range of the testimony, and should not be reversed on appeal. State Highway Commissioner v. Green (1967), 5 Mich App 583.
IY
Lastly, the defendants refer to some 20 rulings by the trial court claimed to be erroneous and prejudicial. The first reference deals with clearing up the correct amount of frontage left of defendants’ land whereby access to Parish Road was available after the taking. It was properly cleared up by the testimony to be 210 feet. There was no error.
The second claimed error has to do with the cross-examination of Mr. Charles Lahaie, the expert witness for the State. He appraised the defendant’s property by using one of the three proper methods, that of comparable sales and market data approach. He testified that he used a number of comparables in coming to his appraisal of the value of the taking to be $4,400 plus $130.51 for cure (tile damage) for a total of $4,530.51. Defendants’ counsel asked Mr. Lahaie a question concerning the price paid by Mr. Ruegsegger to Mr. Wackerle for land in 1959. The question was objected to and sustained. In searching the record we find that the Wackerle-Ruegsegger sale was a comparable sale studied by Mr. Lahaie, but it was- not established that it was one of the comparables that the witness used in appraising defendants’ land. This is borne out by the testimony of Mr. Lahaie which is in part as follows:
“Q. What period of time did your comparable sales cover?
“A. Generally, a five-year period prior to the take, but we like to stick from 1962 to 1964. I believe that the comparable sales that I mentioned were all in ‘62 to ‘64.
“Q. Do you have a list of other comparables that you studied in regard to this?
“A. Yes.
“Q. Could you furnish me with that list?
“A. If counsel would like to have you have them, I have no objection.
“The Court: Do you have them with you?
“Witness: Yes, I have.
“Mr. Seward: I don’t see where counsel has a right to take a look at that. It wasn’t used to refresh his memory on the things.
“Mr. Carras: He has testified.
“The Court: He may examine it.”
And this conclusion is verified by what took place at the time of the cross-examination, vis.:
“Q. And Wackerle sold a piece to Ruegsegger in 1959; that was one of your comparables.
“A. That’s right.
“Q. That was at $625 an acre?
“Mr. Seward: Objection; I move that be stricken.
“Mr. Carras: I have a right to ask that.
“Mr. Seward: You do not.
“The Court: If you were hitting right smack on a comparable, but you are in the area where he says he looked at these and he didn’t feel they were comparable; aren’t you pretty remote?”
The general rule concerning cross-examination under such circumstances in Michigan is found in the case of Commission of Conservation of Department of Conservation v. Hane (1929), 248 Mich 473, 476, 477:
“It has been said in support of holdings that such testimony is admissible that witnesses, in giving opinion evidence of value, may legitimately employ knowledge of specific sales of similar property, and that it is equally an aid to the jury to have the same information in weighing such an opinion, and the evidence should not await disclosure under cross-examination. The rule of admission, however, is frequently hedged by exceptions and limitations dis closing its weaknesses in practical application. To emphasize the difference between opinion evidence relative to value and value fixed by actual sales of similar property, and, therefore, considered substantive evidence, we direct attention to the following quotation from Nichols on Eminent Domain (2d Ed), §453:
“ ‘In states which do not allow sale of similar lands to be introduced as evidence of value, he (the witness) may be questioned upon cross-examination in regard to such sales. His answers are not, however, evidence of the facts stated, and at best merely nullify his testimony.’
“We hold that knowledge of specific sales of property of similar character may be employed by a witness in forming an opinion of the value of other lands equally circumstanced, but other specific sales of similar land and prices paid therefor may not be introduced as substantive evidence of the value of a particular parcel.”
The sale was deemed to be remote in time and location by the trial court. In the absence of a showing that the sale of the land in question was used by the expert witness as a comparable sale in ascertaining the value of defendants’ land, we are constrained to rule that no prejudicial error was committed by the trial court.
The next claimed error on rulings has to do with defendants’ counsel questioning the appraiser for the state concerning a guide given to him by the state for making appraisals. Exhibit 2 was an old guide issued in 1959 and counsel desired to find out how the current guide differed from exhibit 2. The witness did not have the new guide with him and the cross-examination was awkward and difficult. The then current guide would have been a proper subject for inquiry and, if it had been properly re quested, it would have been produced. No request was made; therefore, no error.
The next claimed error, concerning the statement of the court, “Was that foreseeable as of the time of the take?” under the circumstances was not prejudicial, and defendants were not precluded from pursuing the ascertainment of the value of the land from comparable sales.
The sustaining of the objection to the admission of evidence that the value of certain milk equipment was $170 was not error because it had previously been admitted and the subsequent offer was repetitious.
The specific sale of a parcel of land 105 feet by 210 feet deep for $1,000 to Mr. Brunsley was admitted. This Court finds no error in the manner in which the trial court admitted the testimony.
Another claimed error concerned the plaintiffs’ witness testifying as to his knowledge of any land selling for more than a certain figure. No objection was made to the testimony and, therefore, there is no error.
The court’s ruling was correct denying defendants’ counsel the right to an answer to his question of the witness to the effect: did he know that many people violated the plat laws? The question was improper. The other claims of error are without merit and need not be discussed.
Affirmed. No costs, a public question being involved.
All concurred.
MCLA § 213.171 et seq. (Stat Ann 1958 Rev § 8.171 et seq.).
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] |
J. H. Gillis, P. J.
In August 1967, defendant Fred Smith was convicted by a jury of rape, MCLA § 750.520 (Stat Ann 1954 Rev § 28.788), and breaking and entering with intent to commit larceny, MCLA § 750.110 (Stat Ann 1962 Rev § 28.305). A motion for a new trial was granted and on January 26, 1968, defendant pled guilty to breaking and entering. This Court granted defendant’s application for a delayed appeal from the denial of his motion for a new trial on the breaking and entering charge.
The sole issue on appeal is whether it was error to accept defendant’s guilty plea, in view of certain information before the trial judge relative to defendant’s mental condition.
In this case, the trial judge had before him a psychiatric evaluation of defendant which was authorized when defendant was first tried on the rape charge. The report concluded that defendant bore a “sociopathic personality disturbance, anti-social reaction, with sexual deviation (rape) and was hostile, egocentric and assaultive,” hut was competent to stand trial.
Defendant contends that under these circumstances the trial judge should have ascertained, through further psychiatric evaluation, whether this mental condition precluded a free, voluntary, knowing, and understanding guilty plea. "We disagree.
Recently, in People v. Russell (1969), 20 Mich App 47, this Court was faced with a similar issue. In that case an 18-year-old youth, unrepresented by counsel, pled guilty of rape. At the request of the prosecutor a psychiatric evaluation was presented to the trial court which showed defendant had a sociopathic personality disturbance with sexual deviation and strong hostility. An affidavit from the examining psychiatrist was filed with the motion to withdraw the guilty plea. That affidavit concluded that the guilty plea was the product of “repetition compulsion.” This Court reversed the conviction, and ordered re-arraignment with the assistance of counsel, so that the defendant would be able to assert the defense of insanity.
The instant case represents a somewhat different factual setting. Here defendant was represented by counsel. There is no supporting affidavit showing the guilty plea to be the product of a personality disorder or other mental impairment. There is no showing that any of defendant’s psychological disturbances relate to the breaking and entering charge; rather, the psychiatric report deals with defendant’s propensity towards rape, and found him competent to stand trial. The trial judge examined the defendant at length regarding the facts surrounding the breaking and entering charge and concluded that the plea was made according to accepted standards. People v. Taylor (1970), 383 Mich 338. GCR 1963, 785.3(2).
The rule in Russell, supra, was designed to prevent a waiver by a psychologically disturbed defendant of rights and defenses which he could not reasonably be held to know or understand. Russell, supra, and the cases cited there, deal with situations where the defendant was not represented by counsel, or where information before the court raised a bona fide doubt as to defendant’s competency. See, e.g., Hyatt v. United States (D Colo, 1963), 223 F Supp 594; Pate v. Robinson (1966), 383 US 375 (86 S Ct 836,15 L Ed 2d 815); United States v. Kincaid (CA 4, 1966), 362 F2d 939. These cases do not apply to the instant case where the defendant was represented by counsel and the information on defendant’s mental state did not relate to the crime charged, or his ability to waive trial, plead guilty, or stand trial. We find no error.
Affirmed.
All concurred. | [
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Per Curiam.
Defendant appeals from his conviction after jury trial of the unlicensed possession of marijuana. MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123). The people have filed a motion to affirm his conviction.
Defendant first urges error by the magistrate in binding him over for trial after the preliminary examination. However, the magistrate can only discharge the defendant if it shall appear to him “either that no offense has been committed or that there is not probable cause for charging the defendant therewith.” MCLA § 766.13 (Stat Ann 1954 Rev § 28-.931). On appeal, we cannot substitute our judgment for his absent a clear abuse of his discretion. People v. Davis (1955), 343 Mich 348; People v. Spann (1966), 3 Mich App 444.
Defendant’s second allegation of error is the trial judge’s denial of his motion to dismiss at the conclusion of the people’s case. His claim that there was no showing of “possession” is negated by the Supreme Court’s interpretation of the word in People v. Harper (1962), 365 Mich 494.
The questions sought to be reviewed are so insubstantial as to need no argument or formal submission. Motion to affirm is granted. | [
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] |
Per Curiam.
At 10 p.m. on May 15, 1967, two Detroit policemen, patrolling in an unmarked car, observed an automobile travelling slowly with its lights off. The patrolmen stopped the car. Approaching it on foot, the officers noticed an unusual amount of activity by the defendant, a passenger in the rear of the vehicle. One of the officers shined a flashlight on the defendant who ivas seen trying to place several “handrolled” cigarettes under the seat. The officer noted that the cigarettes were of a type he, in his experience as a policeman, had frequently found to be marijuana. Tlie occupants of the car were ordered out of the automobile. The officer then observed a substance all over the back seat which appeared to be marijuana. “[I]t was a chopped up weed, green in color, with seeds, little, light-green seeds.”
On appeal, the defendant argues that the police lacked probable cause to make the arrest and subsequent search of the car.
When the constitutional validity of an arrest is challenged on appeal, it is the function of the reviewing court to determine whether the facts available to the officers at the moment of the arrest would warrant the belief that an offense had been committed. Beck v. Ohio (1964), 379 US 89 (85 S Ct 223, 13 L Ed 2d 142); People v. Sansoni (1968), 10 Mich App 558; People v. Wolfe (1967), 5 Mich App 543; People v. Harper (1962), 365 Mich 494.
“In dealing with probable cause, however, as the name implied, we deal with probabilities. These are not technical; they are the factual and practical considerations of every-day life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States (1949), 338 US 160, 175 (69 S Ct 1302, 1310, 93 L Ed 1879, 1890); see also People v. Harper (1962), 365 Mich 494.
Looking at the facts available to the policeman in this case, we are satisfied that the officer had probable cause to make the arrest. The police lawfully stopped an automobile for driving at night with its lights off. While the vehicle and its passengers were lawfully detained, the defendant visibly attempted to hide handrolled cigarettes of a type frequently associated with marijuana.
The conduct of an accused suspect when lawfully detained is one of the factual circumstances which will justify a warrantless arrest, as in the case where the defendant seeks to avoid apprehension and to destroy what would be evidence against him. People v. Cruz (1964), 61 Cal 2d 861 (40 Cal Rptr 841, 395 P2d 889); People v. Raymond Jackson (1968), 98 Ill App 2d 238 (240 NE2d 421).
Next the defendant argues that the prosecution failed to call a res gestae witness.
Normally, in criminal proceedings the prosecution is under a positive duty to endorse and call all res gestae witnesses. People v. Dickinson (1966), 2 Mich App 646; People v. Kayne (1934), 268 Mich 186. Yet, as this Court has noted in the past, the prosecution may be excused from producing a particular witness if it makes a showing of due diligence. People v. Kern (1967), 6 Mich App 406. This question of diligence is a matter within the discretion of the trial court, subject to being overturned on appeal only for clear abuse. People v. Tiner (1969), 17 Mich App 18; People v. Kern, supra; People v. Hunleg (1946), 313 Mich 688; People v. Gibson (1931), 253 Mich 476.
In this case the prosecution offered testimony that the witness was twice unsuccessfully subpoenaed. The first time it was learned that the witness was in Germany. The second time it was discovered that he was in Seattle, Washington. Another reason offered for the unavailability of the witness was the large number of adjournments.
The court under these facts excused the prosecution and gave an instruction to the jury on the prosecution’s duty to produce res gestae witnesses. We find no abuse of judicial discretion.
Defendant also asserts that it was error for the prosecutor on final argument to state that no contradiction to the people’s testimony has been offered by the defense, and further to state that, “[a]nd he, as wc stand here, appears alone fully to know what happened, that is, the defendant Alexander.” We agree. MCLA § 600.2159 (Stat Ann 1970 Cum Supp § 27A.2159). However, where, as here, the court fully covers the point in its instruction to the'jury, potential prejudice is thereby cured. People v. Paul F. Baker (1967), 7 Mich App 471; People v. Parker (1943), 307 Mich 372; see also, State v. Gregg (Mo, 1966), 399 SW2d 7; State v. Clayton (1968), 272 NC 377 (158 SE2d 557); Holden v. United States (CA 1, 1968), 388 F2d 240; Locklear v. United States (CA 5, 1968), 393 F2d 729; Jacobs v. United States (CA 8, 1968), 395 F2d 469.
Defendant also argues that prejudicial error resulted from the police officers’ references at trial to the defendant as “Bobbie”. Timely objection was not raised below and therefore the question will not be considered here on appeal.
Finally, defendant argues that MCLA § 335.153 (Stat Ann 1970 Cum Supp § 18.1123) requires the prosecution to establish that cannabis sativa is habit forming. That statute makes possession of a “narcotic” drug without a license a felony. MCLA § 335.151(2) (f) [Stat Ann 1970 Cum Supp § 18.1121 (2)(f)] defines “narcotic” to include “[a]ll parts of the plant Cannabis Sativa. * * * This definition is to include marihuana and all allied plants of the cannabis family which are habit forming(Emphasis supplied.)
Thus, only when the narcotic is an “allied plant” must the prosecution establish that it is habit forming. Here, however, the prosecution established that the defendant possessed marijuana. This is all it was required to do by statute.
Affirmed. | [
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] |
Per Curiam.
This is an appeal from an order granting defendants’ motion for summary judgment.
In 1963, defendant, Chamberlain Real Estate Co., and plaintiff entered into a preliminary sale agreement pursuant to which plaintiff was to convey his real property located in Birmingham, Michigan, by warranty deed for a stated consideration of $66,900. One of the conditions set forth in the preliminai’y sale agreement read as follows:
“It is further agreed that Sellers may remove existing structures within ninety days of the receipt of written notice by the Purchasers to so do.”
Later that year plaintiff conveyed the property by quitclaim deeds in which no reference was made to plaintiff’s right to remove existing structures. These deeds were executed in the usual manner and recited the consideration as “One dollar and other valuable consideration”.
The structures, three old houses, remained on the premises until 1966, when, without notice to plaintiff, defendants had them demolished.
Plaintiff’s complaint, which alleged breach of contract, was not answered. Rather, defendants moved for summary judgment arguing that plaintiff had failed to state a cause of action upon which relief could be granted.
The doctrine of law upon which defendant relied was based on the theory that the preliminary sale agreement was merged into the deeds of conveyance. Since this is an appeal from a summary judgment, the precise issue before us is whether, as a matter of law, defendants’ duty to give notice to plaintiff pursuant to the contract of sale was extinguished by the later quitclaim deeds. We hold that whether the doctrine of merger operated to extinguish the vendees’ obligations under the contract of sale was a question of fact in this case and could not be disposed of summarily.
Where applicable, the doctrine of merger operates relative to all matters in the preliminary agreement relating to the title of land. Goodspeed v. Nichols (1925), 231 Mich 308. This is not due to any peculiar sanctity of the deed; rather, the deed is regarded as the final repository of the agreement which led to its execution. As stated in Goodspeed, supra, 316: “The purpose of a deed is to convey title to land, not to describe the terms of a preceding contract under which the land was sold.”
In this case, we are not satisfied that the quitclaim deeds represent the final repository of the parties’ agreement. The contract of sale called for warranty deeds as instruments of conveyance, not quitclaim deeds. The plaintiff, in his pleadings, alleged that the reason quitclaim deeds were used without reference to his right to remove existing structures was to enable defendant to obtain a mortgage loan on the property. Defendants, in their pleadings, alleged that the provision in the contract of sale allowing plaintiff to remove existing structures was expressly waived by plaintiff at the time of closing. These allegations raise genuine issues of fact and could properly resolve the ambiguity in the recital of consideration found in the quitclaim deeds of “One dollar and other valuable consideration”. It may be that part of the consideration was to give the notice required by the preliminary sale agreement.
It is a general rule that a deed must be construed according to its terms. Kirby v. Meyering Land Co. (1932), 260 Mich 156. But if there is an ambiguity or if the deed fails to express the obvious intention of the parties, an inquiry should be directed to that intent. Taylor v. Taylor (1945), 310 Mich 541; Negaunee Iron Co. v. Iron Cliffs Co. (1903), 134 Mich 264.
In light of the allegations of fact involved relating to the intent of the parties in their use of quitclaim deeds, we cannot, as a matter of law, state that the preliminary agreement was merged into the deeds.
Reversed. Costs to plaintiff. | [
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J. H. Gillis, J.
Defendant was convicted by a jury of armed robbery contrary to MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797). Defendant appeals as of right and raises four issues:
(1) That his trial counsel was incompetent and thus deprived him of effective trial representation;
(2) That there was insufficient evidence presented at the preliminary hearing to bind him over for trial;
(3) That the trial judge failed to properly instruct the jury as to the presumption of innocence and the prosecution’s burden of establishing guilt beyond a reasonable doubt; and
(4) That the jury was presented insufficient evidence to support a conviction beyond a reasonable doubt.
Defendant’s contention that his trial counsel’s incompetency deprived him of effective representation must he examined in light of the accepted standard.
“It is the general rule that relief from a final conviction on the ground of incompetent or ineffective counsel will he granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, or in had faith, a sham, a pretense, or without adequate opportunity for conference and preparation.” Williams v. Beto (CA 5, 1965), 354 F2d 698, 704.
See, also, People v. Degraffenreid (1969), 19 Mich App 702. Applying the accepted standard, we find defendant’s contention of ineffective representation to he without merit.
Defendant further contends that there was insufficient evidence adduced at preliminary examination to warrant the examining magistrate’s binding the defendant over for trial.
“The object of the examination is not to determine guilt or innocence, and it is not as necessary to make strict proof as on the trial. The magistrate does not act judicially in a technical sense. He is not required to nicely weigh the evidence as a petit jury, or to discharge the accused where there is a conflict of evidence, or where there is a reasonable doubt as to his guilt, as all such questions should be left to the jury upon the trial. It is not necessary to establish the respondent’s guilt beyond a reasonable doubt before the examining magistrate, but only 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.
Probable cause has been defined as “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that a person accused is guilty of the offense with which lie is charged.” 3 Bouvier’s Law Dictionary (Rawle’s 3rd Rev), p 2728, as cited in People v. Dellabonda (1933), 265 Mich 486, 490. We find no error in the magistrate’s determination to bind defendant over for trial.
Defendant contends that the jury was improperly instructed on the presumption of innocence and on guilt beyond a reasonable doubt. He cites to this Court a particular phrase of the court’s instructions: “proof beyond a reasonable doubt is such as you would be willing to rely and act upon in the utmost of your own personal affairs.” This alleged prejudicial instruction cannot be examined alone. Rather, as this Court has continuously held, instructions to the jury must be reviewed as a whole. People v. Allar (1969), 19 Mich App 675; People v. Fred W. Thomas (1967), 7 Mich App 519. Hence, the ultimate question to be answered by the reviewing court is whether the judge’s instructions to the jury, when examined as a whole, sufficiently ap prised the jury of the proper standards to be used in determining guilt. The particular instruction defendant cites to this Court as prejudicial has been passed upon by the Michigan Supreme Court:
“The absence of doubt of guilt when the measure and limit of the scrutiny is that which reasonable men would exercise in the ordinary affairs of life is not sufficient; for it does not necessarily result therefrom that the evidence, properly considered would leave no such doubt. * * * If the learned circuit judge desired to make use of any such analogy, he should have told the jury that it was their duty to scrutinize the evidence with the utmost caution and care, bringing to that duty the reason and prudence which they would exercise in the most important affairs of life.” Anderson v. State (1877), 41 Wis 430, 433, 444, quoted in People v. Albers (1904), 137 Mich 678, 691.
Similarly, the trial court’s instructions to the jury, especially as to the presumption of innocence and the burden of proving the defendant guilty beyond a reasonable doubt are well within the accepted bounds approved by Michigan courts. In particular, the trial court instructed the jury thus:
“The Court: Now, this case commenced on an information, which is an accusation of the commission of an offense. And, of course, as I have said to you before, the law presumes that a person is innocent of any crime or wrong. These defendants began this trial with a clean slate, with no evidence against them whatsoever, because the information in and of itself as I have said to you, has no evi-dentiary [sic] force.
“Commencing with this clean slate, presumed innocence, nothing, of course, can be offered in this trial but legal evidence. Now, if no evidence were admitted, of course, the presumption of innocence alone would be sufficient to acquit the defendants. And that presumption of innocence abides unless and until you as jurors are satisfied beyond a reasonable doubt of the guilt of the defendants from all of the evidence in this case.
“Now, what do I mean by a reasonable doubt? In the general nature of things, it is rarely possible to prove anything to an absolute certainty. Proof beyond a reasonable doubt is established if the evidence is such as you would be willing to rely and act upon in the most important of your own personal affairs. To put it another way, the people do not have to eliminate all doubt, that is that possibility that anything might have happened. But the proofs presented by the people must eliminate any doubt based upon reason, any doubt which has a rational explanation. If in considering all of the evidence, you find that you entertain a doubt, a fair doubt, based upon reason and upon common sense about the establishment of any of the essential elements of the case, then you must give the benefit of that doubt to the defendants. In other words, if after considering all of the evidence to a moral certainty that the guilt of the defendants has been established, the mere fact that there is a remote possibility that it could not be so is not the kind of doubt which acquits. A reasonable doubt may arise not only from the evidence, but from a lack of evidence. In other words, a defendant has not a duty to present evidence to create a doubt. The doubt might be created if in fact you find it from an absence of evidence by the people.
“The burden is always upon the people to prove the accused guilty beyond a reasonable doubt of every essential element of the crime charged. And the defendant has a right to rely upon the failure of the people to establish the proofs if the people do not.
“Now, a reasonable doubt exists in any case. And as I have said to you, if after careful and a partial consideration of all of the evidence, you as jurors do not feel convinced to a moral certainty that a defendant is guilty of a charge, the mere fact that there is a remote possibility that it could not be so, is not the kind of doubt which acquits.
“But the presumption of innocence, of which I have spoken, can be removed by evidence which you find sufficient to convince you beyond a reasonable doubt of guilt.”
Last, the defendant alleges that the jury’s verdict was contrary to the weight of the evidence adduced at trial. Our review of the instant record indicates sufficient evidence present, if believed by the jury, to justify a finding of guilt beyond a reasonable doubt. People v. Bradford (1968), 10 Mich App 696; People v. Cronk (1968) 9 Mich App 606; People v. Davis (1912), 171 Mich 241.
Affirmed.
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Fitzgerald, P. J.
John Rafalko, defendant in the present case, was tried without a jury for embezzlement of money of the value of more than $100 contrary to MCLA § 750.174 (Stat Ann 1962 Rev § 28.371). Defendant was convicted and sentenced to two years probation and restitution of $219. Defendant appeals from the judgment and sentence of the trial court.
The facts which led to the arrest and conviction of John Rafalko are as follows:
Prior to September 1968, defendant was employed as a bartender by Walter Rodgers, the owner of an establishment known as Walter’s Bar which is located at 10027 Joseph Campan in the City of Hamtramck. On September 24, 1968, while working at the bar, defendant did take and use certain money belonging to Mr. Bodgers. On-the following morning, Mr. Bodgers located Bafalko and asked him what he had done with the money. Bafalko admitted taking the money and also losing it at the race track the previous evening. It appears that defendant promised to make restitution later that evening. Several hours later, Bodgers came to the bar and demanded that Bafalko return the money which he had taken. Defendant stated that he did not have the money, whereupon Bodgers discharged him and indicated that he did not wish to see him around the bar anymore. Approximately one week later, defendant was arrested.
Three questions are raised on this appeal, all of which concern MCLA § 750.174 (Stat Ann 1962 Rev § 28.371), which states:
“Any person who as the agent, servant or employee of another, or as the trustee, bailee or custodian of the property of another, or of any partnership, voluntary association, public or private corporation, or of this state, or of any county, city, village, township or school district within this state, shall fraudulently dispose of or convert to his own use, or take or secrete with intent to convert to his own use without the consent of his principal, any money or other personal property of his principal which shall have come to his possession or shall be under his charge or control by virtue of his being such agent, servant, employee, trustee, bailee or custodian, as aforesaid, shall be guilty of the crime of embezzlement, and upon conviction thereof, if the money or personal property so embezzled shall be of the value of $100 or under, shall be guilty of a misdemeanor; if the money or personal property so embezzled be of the value of more than $100, such person shall he guilty of a felony, punishable by imprisonment in the state prison not more than 10 years or by a fine not exceeding $5,000.
“In any prosecution under this section, the failure, neglect or refusal of such agent, servant, employee, trustee, bailee or custodian to pay, deliver, or refund to his principal such money or property entrusted to his care upon demand shall be prima facie proof of intent to embezzle”.
First we shall consider the matter of proving intent. More precisely stated, when intent is an element of a crime charged, does prima facie proof created by statute relieve the people of the burden of proving such intent? Defendant argues that the first paragraph of the statute quoted, supra, requires that intent be proven, while the second paragraph provides prima facie proof of intent. He contends that such an ambiguous position should be resolved by requiring the prosecution to prove intent. Defendant also contends that the people have not met their burden of proving the specific intent which is a requisite for conviction under the statute.
A reading of the statute clearly reveals that another construction is possible, one that is more representative of the intent of the legislature. It appears to the court that the second paragraph simply describes “intent” as used in the first paragraph. Only a strained reading would result in any ambiguity. This section makes easier the prosecution’s difficult task of proving intent in embezzlement cases by means of the presumption of one fact from another which has already been established.
In Leary v. United States (1969), 395 US 6 (89 S Ct 1532, 23 L Ed 2d 57), the Supreme Court reviewed several types of statutory presumptions and established guidelines for testing their validity on constitutional grounds. In its opinion, the Court stated:
“ . . . that a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary’, and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. And in the judicial assessment the congressional determination favoring the particular presumption must, of course, weigh heavily”.
Upon reviewing the facts of the case at hand, this Court concludes that the presumption of intent to embezzle is a rationally presumed fact and is more likely than not to flow from the basic or proved fact of “failure, neglect or refusal to pay such money upon demand”. Furthermore, in addition to the statutory presumption regarding intent, the record contains evidence of the fact that defendant, while employed at the bar, took his employer’s money without consent and disposed of it by gambling at the race track.
Defendant next contends that MCLA § 750.174 violates an individual’s right of equal protection of the law as guaranteed in the Fourteenth Amendment, § 1 of the United States Constitution and in Const 1963, art 1, § 2.
He argues that the people are relieved of the burden of proving specific intent to embezzle by implementation of the second paragraph when prosecuting a purported embezzler unable to return the money upon demand. On the other hand, a purported embezzler with sufficient means to return the money may escape prosecution and conviction altogether. Thus, it is argued that the prima facie inference of the statute may apply to the poor but not to a man wealthy enough to return the money taken.
In support of this argument, defendant cites Griffin v. Illinois (1956), 351 US 12 (76 S Ct 585, 100 L Ed 891), which in effect ruled that Illinois appellate review previously available to those who had the means with which to purchase a transcript must likewise be made available to the poor. Defendant attempts to analogize the arbitrary classification and resulting discrimination found in Griffin to the facts of the present case.
While such an argument is truly novel, a careful consideration of the presumption itself has been ignored. Underlying the entire thesis is the supposition that an alleged embezzler capable of returning the money may escape legal consequences for his crime. We do not so read the statute. The first section of the statute is complete in itself. The requirement of intent is provable in the same manner as any statute requiring intent. The facts of the case at hand reveal that no advantage is given the purported embezzler Avho is able to return the monies taken upon demand. The fact that these monies are returned does not allow an individual to escape prosecution and conviction, for he can be prosecuted under the first paragraph of the statute without the aid of the presumption. The second paragraph is not an exculpatory clause alloAving escape from prosecution if restitution is made. Hence, this Court finds that MCLA § 750.174 (Stat Ann 1962 Rev § 28.371) does not violate an individual’s right of equal protection of the law.
The last issue raised is whether the statute under which defendant Avas convicted falls within the confines of the constitutional prohibition against bills of attainder. This issue is entirely without merit. The definition quoted by defendant describes a bill of attainder as a “legislative act, directed against a designated person, pronouncing him guilty of an alleged crime (usually treason) without trial or conviction according to recognized rules of procedure, and passing sentence of death and attainder upon him”. The portion of the statute presently in dispute did not name John Rafalko; it did not judge him guilty. Defendant had a trial administered by the judicial branch of government. This Court finds that the statute is not a bill of attainder.
Affirmed.
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O’Hara, J.
This is an appeal of right from the denial of a motion for a new trial. Defendant was charged with, and jury convicted of, the crime of first-degree murder.
We recite the relevant facts. In March of 1967, Margaret Churan, the mother of the defendant, was strangled to death. Defendant at that time was enamored of and keeping company with a certain Mary Dotson. Mrs. Dotson originally came from Tennessee. She was the mother of several children who lived with her in Detroit. Defendant lived in Hamtramck. Mrs. Dotson wanted to return to her mother’s home in Tennessee. Defendant offered to drive her there. To do so, he had to have the use of his mother’s car. Defendant, Mrs. Dotson, and her children came to the deceased’s home with the defendant to get permission to use the car. It was refused. An argument ensued. During the argument, according to Mrs. Dotson, the defendant instructed her to take her children upstairs and to remain there until he called her to come down. He did not do so for a considerable period of time. While she and the children were upstairs, Mrs. Dotson heard a door close and someone, presumably the defendant, leave the home. Sometime later he returned. He told her he was ready to take her to her mother’s home. Before leaving he elicited her aid in carrying a heavy trunk from the house and putting it in his mother’s car. They left and arrived at Mrs. Dotson’s mother’s home around nine the next morning. Mrs. Dotson’s children were left at the grandmaternal home. Mrs. Dotson and defendant drove some 12 miles out into the back country. Defendant removed the trunk from the car. According to Mrs. Dotson, when he raised the lid on the trunk she saw a hand. She started to run away. Defendant allegedly restrained her and told her to get back in the car. Defendant then poured gasoline on the trunk and ignited it.
Some time later defendant was arrested in Bradley County, Tennessee, by Tennessee authorities on a fugitive warrant for escape from a South Carolina workhouse. During confinement and interro gation in connection with that charge, he confessed to the murder of his mother. He was then taken to McMinn County, Tennessee, the county in which the body was found. While in McMinn County, defendant, in the presence of the McMinn Sheriff and two newspapermen, confessed again. During a subsequent trip to McMinn County, defendant stated in a televised interview that he would plead guilty to the murder of his mother.
He was returned to Michigan and tried in Recorder’s Court for the City of Detroit, and convicted as previously noted. During the trial he repudiated his confessions. He claimed Mrs. Dotson, in fact, strangled his mother. He testified that on the night of the murder both his mother and Mrs. Dotson had been drinking; that there was ill feeling between them; and that he had confessed only to shield her, Mrs. Dotson, and her children from complicity in the crime.
The jury apparently accepted Mrs. Dotson’s version of the grisly events and rejected defendant’s.
On appeal, defendant raises three issues:
(1) That his confession was improperly admitted as being obtained in violation of his basic Fifth and Sixth Amendment constitutional rights, particularly as to his right to counsel and his alleged waiver thereof; (2) that his guilt was not established beyond a reasonable doubt; and (3) that there were insufficient facts adduced to vest jurisdiction of the prosecution in the Recorder’s Court of the City of Detroit.
We treat the assignments of error in inverse order.
(3) Jurisdiction need not be proved with computerized accuracy. There was ample evidence from which the jury could reasonably infer that the offense was committed within the City of Detroit. To hold otherwise would place upon the prosecution in every criminal proceeding the impossible burden of producing an eyewitness capable of testifying to the event or events constituting the offense and the precise location at which they took place. Those guilty of criminal conduct are not always sufficiently cooperative to provide witnesses for this purpose. It may in fact be said that in most cases they seek to avoid furnishing such testimony. The assignment of error is totally without merit.
“During the trial the defendant strenuously contended the alleged offense occurred within the corporate limits of the city of Detroit. There was testimony on the part of the people in contradiction of this contention that the alleged offense occurred in Highland Park. The trial judge correctly covered the matter in his instructions, specifically telling the jury this was a question of fact for them to resolve. Obviously, from the verdict, they found the crime to have been committed in Highland Park.” People v. Ragland (1968), 14 Mich App 425, 427.
(2) There was ample testimony if believed by the jury to support its finding of defendant’s guilt beyond any reasonable doubt. Citations and record excerpts in support of this holding would add nothing to our obvious conclusion from the total record. A fact issue was clearly created. The jury resolved it. It is not susceptible of our review. People v. Heard (1969), 19 Mich App 516; People v. Arither Thomas (1967), 7 Mich App 103.
(1) We turn next to the first claimed error, namely, that defendant was inadequately advised of his constitutional rights and that if so advised he did not expressly waive the right to counsel before being questioned.
The warnings were given to him in the following manner. He was presented with a printed card reading:
“Your rights: Bradley County, Tennessee. Date: 4/19/67. Time: 7:08P.M.
“Before we ask you any questions, you must understand your rights. You have a right to remain silent and anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and have him with you during the questioning. You have this right to advice in the presence of a lawyer, even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you if you wish, if and when you go to court.
“If you wish to answer questions at anytime, you also have the right to stop answering at anytime until you talk to a lawyer. This is the waiver: I have read the statement of the rights shown above and I understand my rights and what they are, and I’m willing to answer any questions and make the statement. I do not want a lawyer, and I understand and know what I am doing.
“There have been no promises or threats made to me, and no pressure of any kind has been used against me.”
While the wording of the printed Miranda warning contains some statements that might be termed ambiguous, the basic rights guaranteed by Miranda were sufficiently explained. Defendant specifically complains of the phrasing: “We have no way of
giving you a lawyer, but one will be appointed for you if you wish, if and when you go to court.”
Standing alone, this statement might offend against Miranda, but we think it must be read in light of this additional language:
“If you wish to answer questions at anytime, you also have the right to stop answering at anytime until you talk to a lawyer.”
Then follows the waiver language on the form which defendant signed:
“ * * * I’m willing to answer any questions and make the statement. I do not want a lawyer and I understand and know what I am doing.
“There have been no promises or threats made to me and no pressure of any kind has been used against me.”
The quoted language may not be a triumph in precision of expression but we think it could not fail to advise the defendant of his right to counsel, the right to remain absolutely silent and answer no questions at all, and that it contained a fair explanation that he could waive counsel if he wished and answer questions voluntarily.
The foregoing interpretation is buttressed by the finding of the learned trial judge who conducted a most extensive and searching hearing on the issue of the voluntariness of the confession. The record consists of three volumes of testimony, the arguments of counsel, and the specific findings of the court. On the basis of that record, he excluded the inculpatory statements and the signed confession which were taken in the McMinn County jail. The trial court in effect held that while the Avarnings and waiver in that county comported with Miranda standards, they were tainted by the presence of reporters who took their own notes as the defendant confessed, and further tainted by the defendant’s television appearance in which he publicly confessed his guilt. The court warned the prosecution not to make any reference to these confessional statements and to be sure no witnesses adverted to them.
However, as to all the inculpatory material resulting from the questioning in the Bradley County jail, he found:
“It is my feeling that because of the general atmosphere of this interrogation there was at all times an opportunity on behalf of the defendant, and a continuous opportunity to [re] examine the rights as [they] were explained to him. * * * the defendant was not subjected to any physical or psychological, as Miranda sets forth, coercion or compulsion. This was not a compelled statement.
“ * * * (T)here were no cuffs used on the defendant, he was not shackled in any way. He was in an interrogation room that was described as a room with a couch in it, a desk and some chairs; he was provided coffee; asked if he wanted Cokes and allowed to smoke cigarettes.
* * *
“Twice he waived these rights directly by signature. Sheriff Davis said he presented to the defendant a newspaper to determine whether or not the defendant could read. And Sheriff Davis was convinced that the defendant could read.
* # %
“The defendant at all times was aware, in my opinion, of his rights. He was aware of these rights from the moment he was arrested to the moment he signed that statement.
•y, .y, «y.
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“The defendant gave a statement, after examining the entire atmosphere of this interrogation, that was completely voluntary, and freely made, with the knowledge at all times and an awareness — an acute awareness of his rights.” (Bracketed material and emphasis supplied.)
Unless it be the obligation of an appellate court on review to constitute itself an appellate advocate, seeking out any possible technical defect in warning a defendant of his constitutional rights and explaining that he may also waive the presence of an attorney during questioning, the record in this case more than fairly establishes that defendant was explained his right to counsel and explicitly waived it.
Upon a careful review of the whole record we find no error.
The order denying the motion for a new trial is affirmed.
All concurred.
MCLA § 750.316 (Stat Ann 1954 Rev § 28.548).
Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed. 2d 694, 10 ALR3d 974). | [
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Levin, J.
Arnold Good was killed and Jerry Brandow, Francis D. Hopkins, and Jay A. Kerr were injured when an automobile in which they were riding and operated by William J. Larson collided with a truck trailer. The administrator of Good’s estate and the other persons named commenced this action against Larson to recover their damages.
The plaintiffs and the defendant both moved for summary judgment on the ground that there is not a genuine issue of material fact. The trial judge granted the defendant’s motion and entered a judgment dismissing the plaintiffs’ complaint.
This appeal comes to us on a stipulation of facts. The defendant Larson concedes that he was driving and that he was guilty of ordinary negligence that caused the accident. It is further agreed, however, that Larson was not grossly negligent or guilty of willful or wanton misconduct. The parties also agree that Illinois law governs and that summary judgment should be awarded to one side or the other.
The Illinois motor vehicle law provides: “No person riding in * * * a motor vehicle * * * as a guest without payment for such ride, or while engaged in a joint enterprise with the owner or driver” shall have a cause of action against the driver or owner for injuries sustained unless the accident is caused by the driver’s or owner’s “willful and wanton misconduct” and such misconduct contributed to the injury. “Nothing contained in this section shall be construed to relieve a motor vehicle or motorcycle carrier of passengers for hire of responsibility for injury or death sustained by any passenger for hire.”
The defendant successfully contended in the trial court that the plaintiffs were either guest passengers or joint enterprisers. On appeal, the plaintiffs contend that they were passengers for hire. We reverse.
Good and the other plaintiffs were serving in the United States Army and were stationed at Fort Leonard Wood, Missouri. Hopkins and Kerr, each of whom owned an automobile, had arranged to provide common transportation to Muskegon, Michigan for themselves, Brandow, and Good. The two automobiles were used alternately to transport the four men on a number of trips. Brandow and Good each contributed $20 to the owner of whichever automobile was used. Hopkins and Kerr paid nothing, the alternate use of their respective automobiles being regarded as their contributions.
The defendant Larson learned of the arrangement and joined the group for the first time on the trip that gave rise to this action. Hopkins’ automobile was used; accordingly, Good, Brandow, and Larson each paid him $20. In keeping with the usual practice, all the men shared the driving.
The collective purpose of the young men extended no further than a plan to transport themselves to Muskegon and back to Missouri. On their arrival in Muskegon, they went their separate ways to visit their wives and families. There was apparently no communication between the men while in Muskegon except to arrange a meeting place and time for their return to Missouri. The collision occurred in Illinois during the return trip to Missouri.
The requirement that a passenger “engaged in a joint enterprise with the owner or driver” prove willful and wanton misconduct was added to the Illinois statute by amendment in 1957. Previously, only “guests” had to prove more than ordinary negligence to recover.
In McNanna v. Gach (1964), 51 Ill App 2d 276, 281 (201 NE2d 191, 193), the accident occurred in 1956, before the effectiveness of the 1957 amendment. The plaintiff and five other students paid $2 a week to the driver in return for rides to and from high school. The Court declared:
“We conclude, as a matter of law, that plaintiff was a passenger and not a guest. These trips were not made for pleasure or social purposes. The arrangement or custom was not for an isolated, single or occasional transportation, hut had been in effect on a paying basis for more than two months, five days each week. It comprehended continuous transportation to and from school. The amount of the payment was certain and substantial in amount. The arrangement constituted an economic benefit to the deceased driver, Gach, for the reason he was obliged to make the trip to reach his own place of study.”
In the post-1957 amendment case of Robbins v. Campbell (1966), 72 Ill App 2d 252 (218 NE2d 492, 494), the plaintiff paid the defendant driver, her son, $20 for her share of the expenses for gasoline and meals during a 560 mile round-trip to visit another son. The Court ruled:
“Under the circumstances, the payment of $20 appears to be sufficient to entitle plaintiff to the status of a passenger, rather than a guest. 8 Am Jur 2d 47; McNanna v. Gach (1964), 51 Ill App 2d 276 (201 NE2d 191).”
On the authority of McNanna and Robbins we hold that under Illinois law Good and the other plaintiffs were not riding as “guests without payment for such ride.” As in McNanna, the arrangement between the men did not relate to an isolated transaction. The amounts paid by the cash-paying passengers and the use of the automobiles of the nonpaying passengers were compensation substantial in amount. In Summers v. Summers (1968), 40 Ill 2d 338 (239 NE2d 795), the Illinois Supreme Court held that an owner-occupant, such as Hopkins in this case, is not a “guest” within the meaning of the statute.
The Robbins Court also ruled that the plaintiff in that case was not engaged in a joint enterprise with her son. The trip there was for the purpose of visiting another son whose home and furniture had recently been destroyed by fire and the defendant had rented a trailer in which to transport some furniture which the plaintiff gave to her son. The Court ruled (p 494): “Absent evidence of a business enterprise” the parties were not engaged in a joint enterprise within the meaning of the statute. (Emphasis supplied.)
The most recent expression by an Illinois appellate court is in Enlow v. Illinois Central R. Co. (1969), 103 Ill App 2d 269, 276, 277 (243 NE2d 847, 851). There, schoolboys were killed while riding in a school-owned truck on which they had helped load a drag or grader which the school was returning to the owner. The court said:
“To define a joint enterprise there must be evidence of a common business purpose in which the occupants are mutually interested in the trip itself as part of such purpose and where each is responsible for the manner in which the car was operated. Grubb v. Illinois Terminal Co. (1937), 336 Ill 330, 339 (8 NE2d 934); Smith v. Bishop (1965), 32 Ill 2d 380, 385 (205 NE2d 461). Here the original complaint was sufficient to show that there was no mutual interest in the purpose of the automobile ride, and that the purpose was not a business purpose to the boys.” (Emphasis by the Court.)
It is apparent from Robbins that the mere sharing of expenses does not constitute the participants joint enterprisers — there must be evidence of a “business enterprise.” And from Enlow, that the “business enterprise” or “business purpose” must, at least ordinarily, relate to the purpose of the automobile ride.
In this case the parties had no joint purpose in riding together other than to economize by sharing travel expenses. They did not engage in any joint pursuit in Muskegon; upon arriving there, they separated, and regrouped only to begin the return trip to Missouri. The purpose of the trip was personal, not business. The men did not go to Muskegon to further a joint business purpose.
Beversed and remanded for the entry of a summary judgment in the plaintiffs’ favor consistent with this opinion. Costs to plaintiffs.
All concurred.
GCR 1963, 117.
See Abendschein v. Farrell (1970), 382 Mieh 510; see, also, Bostrom v. Jennings (1949), 326 Mich 146.
Illinois Revised Statutes, (Smith-Hurd Annotated) ch 95-1/2, § 9-201.
See (Illinois) Laws 1957, p 2706, § 9-201.
The argument that the plaintiffs were nonpaying guests because they did not pay the defendant Larson is based on the mistaken assumption that whether a person is traveling “without payment for such ride” depends on whether the driver is compensated. If the passenger makes a substantial payment for the privilege of riding it is of no importance that the driver is willing to drive without payment.
In any event, the defendant Larson, although not financially compensated, received consideration for driving in the f: ri" of a reduction in the cost of traveling between Fort Leonard Wood and Muskegon as compared with the cost of public transportation.
See Kinney v. Kraml Dairy, Inc. (1959), 20 Ill App 2d 531 (156 NE2d 623).
Here, as in Robbins, the suit is between the alleged members of the joint enterprise.
In Grubb v. Illinois Terminal Co. (1937), 366 Ill 330 (8 NE2d 934), the Illinois Supreme Court said that if there is “a substantial sharing of the expense, the host and guest relation does not exist,” but that since in the case there at hand the driver and passengers, three sisters, were using the automobile as part of a “common business enterprise” the driver’s contributory negligence barred recovery by the passengers. The trip was for the purpose of purchasing material to decorate their home, the cost of which was to be borne by each equally.
In the subsequent case of Smith v. Bishop (1965), 32 Ill 2d 380, 385 (205 NE2d 461, 464), the court declined to impute the negligence of the husband driver to his passenger wife. They were on a trip with their children for the purpose of having a physician treat one of the children. The Court declared: “There is no evidence of any business enterprise in the case at bar, nor do we see any reason that would justify extending the doctrine of the Grubb case to the present factual situation.”
In Robbins, construing the statute before us, the Court said, as partially quoted in the text following footnote 7: “Absent evidence of a business enterprise, the rule enunciated in Grubb v. Illinois Terminal does not apply. Smith v. Bishop, 32 Ill 2d 380, 205 NE2d 461.”
Summarizing, a trip to purchase materials for use in a home is a business purpose (Grubb), but a trip to visit a son and to bring him furniture (Robbins) or to visit a physician (Smith) is not a business purpose. The purpose of the trip here was to visit wives and families, which appears to be factually closest to Robbins.
We note that the general trend in Illinois, as in Michigan and other jurisdictions (see McKenzie v. McKenzie [1965], 374 Mich 320, 324; Chapman v. Buder (1968), 14 Mich App 13, 21, n 5), has been to interpret guest statutes restrietively. See The Illinois Guest Statute: An Analysis and Reappraisal, 54 NW L Rev 263 (1959). | [
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Levin, J.
The defendant, Ernest Dogans, appeals his conviction of possession of 43.25 grains of heroin. A tinfoil packet of heroin was found in his pocket during a search following his arrest in connection with an investigation of the theft of a stereo phonograph. No formal motion to suppress the seized narcotics was filed, but the issue was considered both during the preliminary examination and the trial.
In People v. DeGraffenreid (1969), 19 Mich App 702, we recently discussed the responsibility of an appellate court to consider a search and seizure issue not properly preserved at the trial level. We held that although the Fourth Amendment right to have illegally-seized evidence suppressed is a constitutional right, it may be waived by the failure of a defendant’s lawyer to preserve and assert it. We added, however, that if the defendant’s conviction could properly be attributed to the failure to assert that right Ave may, and in some cases are obliged to, consider the issue so that an accused person is not convicted as a result of serious lawyer error (p 716):
“Where the lawyer’s mistake is of such serious proportion that it may have been decisive, Avhere but for the lawyer’s mistake the defendant might not have been convicted, the court may, despite failure to have preserved the error by timely objection, grant a new trial”.
We affirmed DeGraffenreid’s conviction because after considering the other evidence against him Ave concluded that even if the seized evidence were suppressed he would assuredly be convicted upon a new trial. Since his conviction Avas not attributable to his lawyer’s mistake and the issue was not properly preserved for appeal, we saw no need to order a new trial.
In this case we cannot so readily dispose of the search and seizure issue. The only evidence offered at the trial to support the charge that Dogans possessed 43.25 grains of heroin was the testimony concerning the packet of heroin found on his person when he was arrested. It is, therefore, perfectly clear that the seized evidence contributed to his conviction. In such a case we are obliged to consider the issue even if not properly preserved at the trial level.
Although no formal motion seeking the suppression of the seized heroin was filed, as previously indicated both at the preliminary examination and at the trial witnesses testified concerning the circumstances preceding and at the time of Dogans’ arrest.
Harry Bolling testified that when he returned home from work his wife informed him that at about 6 p.m. she had discovered that their 8-foot stereo phonograph was missing. He concluded that Patrick Pattilo, his brother-in-law, and Bedford Dillard and Nathaniel McLaughlin had taken it and called the police. When the police arrived at 10 p.m. Bolling told them of his conclusions and that he thought they had removed the stolen stereo to a two-story apartment building at 5171 Iroquois, Detroit, Michigan, “to get junked.” The police left immediately for that address with Bolling in their cruiser.
When they arrived, Bolling pointed out his brother-in-law who was a short distance from the apartment building. Nathan Beasley was then leaving the building. The police arrested Beasley. The record does not show why Beasley, who was not one of the culprits named by Bolling, was arrested.
One of the officers testified that the defendant Dogans was at a doorway of the building and had observed the arrival of the police and the arrest of Beasley, and that Dogans then closed the door and ran up the stairs. The officer said he kicked in the door and pursued Dogans to the top of the stairs where Dogans was arrested for breaking and entering a dwelling. He also said that before arresting Dog’ans he asked him whether he lived in the building and Dogans replied that he did not, and that he observed Dogans throw something away. When asked what it was that Dogans threw away, the officer responded that it was a nail clipper.
After Dogans was arrested the police conducted a general search of the building, found more narcotics, and arrested all the occupants, some nine persons. The stereo was not found.
At the conclusion of the preliminary examination the magistrate ruled that the arrest was valid largely because of the testimony regarding the defendant’s flight up the stairs when he saw the officers. He also ruled that the search and seizure of the heroin were valid as an incident of the arrest and the heroin was, therefore, admissible in evidence.
Dogans did not testify at the examination, but he did testify at the trial. He said that he was not downstairs at a door, did not observe the arrival of the police, and that they broke down the door of the apartment of a lady friend whom he was visiting and arrested him. He also denied that he had any narcotics in his possession.
The case was tried before a judge sitting without a jury. It does not appear from the record to what extent the trial was directed to the search and seizure issue. The judge was, however, aware, or made aware off the record of the importance of the question. After the conclusion of the trial and after hearing argument of counsel he declared that the defendant did not have standing to complain of the search and seizure of his person because it occurred on premises which he did not own. That is manifestly an erroneous statement of the law. Whether the defendant had standing to complain of a search of his friend’s apartment or of other apartments in the building, he most assuredly had the right to have suppressed any heroin taken from his person without probable cause.
The judge did not resolve the factual dispute of whether the defendant was arrested at the top of the stairs after first having fled from the police or in his friend’s apartment. And, even if it were to be decided that he did flee and he was arrested in the hallway, there would still remain a substantial ques tion as to whether there was probable cause to arrest him.
There is probable cause to arrest without a warrant if the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy knowledge warrant a prudent man in believing that the accused person has committed or was committing an offense. The reliability and particularity requirements applicable where a search warrant is sought also govern the issuance of arrest warrants. And since an arrest without a warrant bypasses an objective predetermination of probable cause by an independent magistrate, “the requirements of reliability and particularity of the information on which an officer may act” are at least as stringent where a defendant is arrested without a warrant as where an arrest warrant is obtained.
We have recently reviewed these requirements in People v. Zoder (1968), 15 Mich App 118, 121. We observed that in Aguilar v. Texas (1964), 378 US 108, 113, 114 (84 S Ct 1509, 12 L Ed 2d 723), the United States Supreme Court held deficient an affidavit upon which a search wrarrant had issued because it stated a (p 113) “mere conclusion” and did not inform the magistrate (p 114) “of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed [citation omitted] was ‘credible’ or his information ‘reliable’”. Aguilar’s requirement that the “underlying circumstances” be adequately stated was recently reaffirmed in Spinelli v. United States (1968), 393 US 410 (89 S Ct 584, 21 L Ed 2d 637). These requirements have been consistently applied by the United States Supreme Court in warrantless arrest cases.
That Court has also held that the people have the burden of establishing that a warrantless arrest is supported by probable cause. In this case the record shows no more than that Bolling told the officers that his brother-in-law and two other men had stolen his stereo and removed it to the apartment building where the defendant was later arrested. There is nothing that would support a finding that Bolling related any of the underlying circumstances that led him to that conclusion or what they were. When asked at the trial why he thought his brother-in-law stole the stereo, he said that after the police left he discovered a wood chisel belonging to his wife’s grandfather and that this incriminated his brother-in-law. Since this discovery occurred after the defendant’s arrest and, therefore, could not have been related to the police before the arrest, they could not have acted on that information.
When making an authorized felony arrest a police officer may, indeed, break open an inner or outer door of any building in which the person to be arrested is or is reasonably believed to be if, after he has announced his purpose, he is refused admittance. But, for reasons already stated, it has not yet been shown that the police had probable cause to arrest anyone, including the brother-in-law and the two other men, let alone the defendant Dogans.
Pertinent is the recent decision of the United States Supreme Court in Recznik v. City of Lorain (1968), 393 US 166 (89 S Ct 342, 21 L Ed 2d 317). The police had been informed that a crime, gambling, was being committed at the defendant’s premises. When the police arrived in the wee hours of the morning- they noticed an unusually large number of cars parked in the vicinity. They entered through the back doorway unannounced and, as they headed for the front of an upstairs apartment, where the arrests occurred, the defendant emerged from a room and told the officers they could not enter. Through the door opened by the defendant, one of the officers saw a dice game in progress. They entered and placed everyone under arrest and seized evidence of the offense. In holding the arrest and incidental search invalid, the United States Supreme Court emphasized that the police (p 169) “did not relate what information they received” from their unidentified informers other than that there were “all sorts of gaming devices downstairs”. (Emphasis by the Court.)
In the present case the informer Bolling was identified, thus possibly satisfying the reliability requirement. But, we repeat, the record does not show that Bolling communicated to the officers underlying facts and circumstances which would warrant a prudent man in believing that persons on the apartment premises had committed or were committing an offense in connection with the theft of the stereo. The right of the police to enter the apartment building without permission was not established.
Even if Dogans ran from the police and threw away a nail clipper — and whether he did or not has not been resolved by a finding of fact — that would not have provided probable cause to have arrested him for theft of Bolling’s stereo. Flight may be some evidence of consciousness of wrongdoing, but it does not necessarily point to the commission of a felony. A police officer may not arrest for consciousness of wrongdoing. He must have reasonable cause to believe that a felony has been committed and that the accused person committed it.
The reason why flight alone does not justify an arrest and the police must relate the flight to the commission of a crime is because, as is borne out by the facts of this case, there is no necessary reía- tionship between flight (consciousness of wrongdoing) and the crime being investigated. It is now apparent that if the defendant fled he did not do so because he feared implication in the crime the police were investigating but rather because he was carrying narcotics, a completely unrelated crime of which the officers do not claim they had foreknowledge.
Under the United States Supreme Court’s decision in Terry v. Ohio (1967), 392 US 1 (88 8 Ct 1868, 20 L Ed 2d 889), if the police had the right to enter the apartment building and had detained, not arrested, Dogans for a short time while they brought Bolling into his presence and in the meantime had patted Dogans down for offensive weapons, and had discovered evidence of the commission of another crime, such evidence might have been admissible. But here the officer did more than make a limited patting down of Dogans’ outer clothing for weapons. He made a full exploratory search well beyond the scope of the frisk held in Terry not to be violative of a suspect’s Fourth Amendment rights.
The precipitous, unexplained arrest of Beasley and the immediately following arrest of the defendant Dogans gives some reason to believe that upon arriving at the apartment building the police simply arrested everyone in sight without regard to whether there was probable cause to believe that they had any connection with the crime being investigated.
While we are obliged to make our own independent evaluation of the record in determining the constitutional issue of whether the heroin was permissibly seized as an incident to a valid arrest, we do not think that a final determination of the factual issues relating to the defendant’s arrest and the search and seizure should be made on the inadequate record presented. The inadequacy of the record may be attributable to the defendant’s failure to file a formal motion to suppress the seized heroin. At a further hearing the people might be able to supplement the evidence introduced.' Under the circumstances we think that the people should be given another opportunity to meet their burden of establishing that there was probable cause for the defendant’s warrantless arrest.
Remanded for a complete evidentiary hearing on the admissibility of the seized evidence and further proceedings consistent with this opinion.
All concurred.
MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123).
Three officers testified that they were directed to the Iroquois address to meet a man (Harry Bolling) who would point out persons suspected of breaking and entering.
See People v. Ferguson (1965), 376 Mich 90, 95.
Since the issue appears to have been disposed of on the merits, both by the examining magistrate and by the trial judge (see, infra), on that ground also we should review their decisions on the merits. Cf. People v. Wiejecha (1968), 14 Mich App 486.
After Dogans was arrested the police found other narcotics in the apartment building where he was arrested but at the trial no effort was made to show that the other narcotics were heroin or to tie in Dogans with those narcotics. A number of other persons in the building were also arrested.
See People v. Ibarra (1963), 60 Cal 2d 460 (34 Cal Rptr 863, 386 P2d 487); People v. Johnson (1967), 38 Ill 2d 399 (231 NE2d 447), where the seized evidence was the only evidence supporting the conviction and suppression of the evidence was not sought at the trial level. See, also, Kaufman v. United States (1969), 394 US 217 (89 S Ct 1068, 22 L Ed 2d 227), and Chambers v. Maroney (1970), 399 US 42 (90 S Ct 1975, 26 L Ed 2d 419), where the United States Supreme Court considered post-conviction claims based on the admission of seized evidence although not properly preserved at the trial level.
It is somewhat incomprehensible that the defendant would in the presence of the police have thrown away a nail clipper. It has not been suggested what he might thereby have sought to accomplish.
See fn. 5.
We recognize that in appraising the validity of the trial court’s ruling we are limited to the evidence introduced at the suppression hearing. People v. Kalgler (1962), 368 Mich 281, 288. We have discussed hoth records because there were two separate rulings on admissibility, one by the examining magistrate, the other by the trial judge.
Further, we do not reverse these rulings. Rather we hold merely that the record so far made does not support them and that the importance of the search and seizure question in this case requires a further hearing elearly focused on the issue of probable cause to arrest.
People v. Sims (1970), 23 Mich App 194.
Beck v. Ohio (1964), 379 US 89, 91 (85 S Ct 223, 13 L Ed 2d 142); Henry v. United States (1959), 361 US 98, 101, 102 (80 S Ct 168, 4 L Ed 2d 134); “common rumor or report, suspicion, or even ‘strong reason to suspect' [is] not adequate to support a warrant for arrest”.
See Aguilar v. Texas, discussed infra.
Giordenello v. United States (1958), 357 US 480, 485, 486 (78 S Ct 1245, 2 L Ed 2d 1503); Wong Sun v. United States (1963), 371 US 471, 480 (83 S Ct 407, 9 L Ed 2d 441); Chimel v. California (1969), 395 US 752, 754 (89 S Ct 2034, 23 L Ed 2d 685); cf. Henry v. United States, supra, p 101.
Wong Sun v. United States, supra, pp 479, 480; Beek v. Ohio, supra, p 96; Spinelli v. United States (1969), 393 US 410, 417, n 5 (89 S Ct 584, 21 L Ed 2d 637).
McCray v. Illinois (1967), 386 US 300, 304 (87 S Ct 1056, 18 L Ed 2d 62), reh. den. 386 US 1042 (87 S Ct 1474, 18 L Ed 2d 616); Beck v. Ohio, supra, p 96; Wong Sun v. United States, supra, pp 479-481; Recznik v. City of Lorain (1968), 393 US 166, 169, 170 (89 S Ct 342, 21 L Ed 2d 317).
Recznik v. City of Lorain, supra, p 169; Beck v. Ohio, supra, p 97.
See Dyke v. Taylor Implement Mfg. Co., Inc. (1968), 391 US 216, 221, 222 (88 S Ct 1472, 20 L Ed 2d 538).
As to whether the manner of entry in this case was within the authority of the police, see Sabbath v. United States (1968), 391 US 585 (88 S Ct 1755, 20 L Ed 2d 828), construing a statute similar to Michigan’s. MCLA § 764.21 (Stat Ann 1954 Rev § 28.880).
See People v. Hogan (1969), 71 AC 927 (80 Cal Rptr 28, 457 P2d 868); contrast Holbrook v. United States (CA10, 1969), 406 E2d 44; and People v. Abbott (1970), 3 Cal App 3d 966 (84 Cal Rptr 40), concerning “citizen” and victim informers.
Cf. Dyke v. Taylor Implement Mfg. Co., Inc., supra, and Chambers v. Maroney, supra, where the United States Supreme Court ruled that an officer conducting a warrantless search must have reasonable or probable cause to believe that he will find the instrumentality of a crime or evidence pertaining to a crime before he begins his search.
See Gouled v. United States (1921), 255 US 298, 305 (41 S Ct 261, 65 L Ed 647); Ker v. California (1963), 374 US 23, 53 (83 S Ct 1623, 10 L Ed 2d 726) (per Brennan, J., three other justices concurring).
Cf. People v. Cismadija (1911), 167 Mich 210, 215.
See People v. Reeves (1970), 23 Mich App 183, 186; People v. Stein (1933), 265 Mich 610, 614.
MCLA § 764.15 (Stat Ann 1954 Rev § 28.874).
Dogans was one of many persons in the building. The police might have asked Dogans his name before arresting him and, if dissatisfied with the answer, have asked Bolling, who arrived at the building in the police cruiser, whether Dogans was one of the threo men he suspected.
In Terry and in Sibron v. New York (1968), 392 US 40 (88 S Ct 1889, 20 L Ed 2d 917), the United States Supreme Court ruled that evidence discovered in a limited search is admissible under the Fourth Amendment even though there is not probable cause to arrest if the officers are able to point “to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” an intrusion upon the defendant’s privacy (Terry, p 21). The Court declared that “in appropriate circumstances and in an appropriate manner [a police officer may] approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest”. (Terry, p 22). And, where the officer “has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime” (Terry, p 27) he may “conduct a carefully limited search of the outer clothing of such person in an attempt to discover weapons which might be used to assault him”. (Terry, pp 30, 31).
The limited search conducted in Terry was approved, but in Sibron it was held that the officer had not pointed “to particular facts from which he reasonably inferred that the individual was armed and dangerous” (Sibron, p 64) and, further, the Sibron search “was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception — the protection of the officer by discovering a potentially dangerous man”. (Sibron, p 65.)
See People v. Stein, supra, p 614.
See Beck v. Ohio (1964), 379 US 89, 92 (85 S Ct 223, 13 L Ed 2d 142); People v. Smith (1969), 19 Mich App 359, 367, 368. | [
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] |
Danhop, P. J.
Following a jury trial the defendant was found guilty of illegal possession of narcotics, MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123). He was sentenced to a term of six to ten years in prison. His motion for a new trial was denied.
The defendant has appealed to this Court, raising a number of issues that he claims require reversal of his conviction. The major one concerns the filing of the preliminary examination transcript. The preliminary examination was held on August 8, 1967 but the court reporter certified the transcript of it on October 27, 1967 under an erroneous court file number. The trial was held on September 23 and 24, 1968 while the preliminary examination transcript was in the wrong court file due to the misnumbering. The defendant contends that this was reversible error although he does not say how he was prejudiced by the error.
The right of a defendant to have a transcript of the preliminary examination so that his counsel may use it in the trial is a substantial one. Dimmers v. Hillsdale Circuit Judge (1939), 289 Mich 482; People v. Early (1970), 25 Mich App 363. In Dimmers, after one prosecution witness testified, the defense counsel moved to quash the information and discharge the accused because the stenographic notes of the preliminary examination were not in the file or attached to the return of the examining magistrate. His motion was granted. The Michigan Supreme Court held that the trial court was right in quashing the information but that it was in error in discharging the prisoner.
In the Early case one issue was the denial of a motion to quash the information because the transcript of the preliminary examination was not contemporaneously filed with it. The transcript had been filed on January 4, 1968 before the trial commenced in early February of 1968 and was used to prepare pretrial motions. The motion to quash was made on January 29, 1968 nearly a month after the transcript was filed. This Court said that at the time the motion to quash the information was made the proper remedy upon a showing of prejudice was a motion for a continuance.
In the instant case the defendant was represented by the same counsel at the preliminary examination that he had at the trial. No question as to the filing of the preliminary examination transcript was raised before or during the trial. We hold that this lack of timely objection constituted a waiver of the defendant’s right to a transcript of the preliminary examination and distinguishes this case from the Dimmers case. This Court said in People v. Chambers (1970), 25 Mich App 188, that there is no statutory provision requiring the unrequested furnishing of a transcript to the defense counsel.
The defendant also argued that the trial court erred in allowing the people at the beginning of the trial to amend the information to add the name of a res gestae witness. The witness was a police officer who had testified at the preliminary examination. His name was on the witness list but by mistake was left off the information. The defense counsel was not surprised by or unprepared for the testimony of this witness. In fact counsel stated on the record that he had no objection to the motion. Clearly, there is no merit in this alleged error.
We have reviewed the other issues raised and find that none of them require discussion. There has been no miscarriage of justice. People v. Dunn (1968), 380 Mich 693, 701.
Affirmed.
All concurred. | [
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Levin, J.
The plaintiff, Ralph Duma, was assaulted by an intoxicated person in a bar operated by the defendant Raymond Janni. He commenced this action under the dramshop act. The defendant tavern owner appeals a jury verdict in plaintiff’s favor.
On January 1, 1964, in the early hours of the new year, plaintiff, his wife, and two other couples entered the defendant’s bar. The party was seated at a table. Somewhat later the plaintiff and his wife left their table to dance. On returning from the dance floor the plaintiff found his chair occupied by a strang'er, Kenneth Renshaw, who was apparently intoxicated.
The plaintiff asked Renshaw three times for his chair, each time tapping Renshaw’s shoulder to summon his attention. In response to the third request Renshaw rose abruptly from the chair and violently struck the plaintiff, causing him to fall to the floor. The plaintiff testified that before he could rise the defendant and a bartender pounced on him and held him down until they were forcibly removed by one of the plaintiff’s friends. Shortly thereafter the police arrived and arrested Renshaw.
Upon returning home the plaintiff discovered a severe back injury which required surgical correc tion. He sustained substantial out-of-pocket expenses and is restricted in Ms work.
There was testimony tending to show that Ren-shaw was intoxicated when he entered the bar, that the defendant, nevertheless, sold him a glass of beer, and that he consumed some of the beer. The jury could properly infer that the defendant’s sale contributed to Renshaw’s intoxication. It was not obliged to accept Renshaw’s assertion that the small amount of beer he claimed he consumed in the defendant’s tavern did not add to his state of intoxication. Renshaw had been in the bar for 45 minutes to an hour before he sat in the plaintiff’s chair. Several witnesses saw him drinking beer.
And, although Renshaw said he would be annoyed by the manner in which the plaintiff asked for the return of his chair even if he had been completely sober, he conceded that he is more easily provoked when he is under the influence of intoxicating liquor. It was for the jury to decide whether Renshaw’s violent response was caused by his state of intoxication.
The trial judge’s instructions to the jury on the causation issue were at least as favorable to the defendant as the provisions of the act. Under the act a person injured “by an intoxicated person” by reason of the sale of intoxicating liquor to him while he is intoxicated has a right of action against “the person who shall by such selling * * * have caused or contributed, to the intoxication * * * or who shall have caused or contributed to any such injury.”
The trial judge instructed the jury that it must find that the plaintiff proved that the defendant sold an intoxicating beverage to Renshaw while he was already intoxicated, that Renshaw drank the bev erage and that this contributed to his intoxication, that the assault upon the plaintiff resulted wholly or in part from intoxication caused or contributed to by the act of the defendant in selling to Renshaw, and that this was a contributing cause of the plaintiff’s injury.
The defendant further contends that, even if the instructions were adequate, the plaintiff failed to prove that the act of the intoxicated person, Renshaw, caused or contributed to the plaintiff’s injury. He argues that the evidence established but equiponderant theories as to the cause of plaintiff’s injury, forcing the jury to speculate as to the true cause. He claims that it was not determinable whether the injuries were caused by Renshaw’s blow or by the pummeling at the hands of the defendant and the bartender, for which the defendant would not be liable under the dramshop act. We are persuaded, however, that the jury could properly conclude from the evidence that Renshaw’s act caused the plaintiff’s injury.
The neurosurgeon who performed the operation on the plaintiff testified that “there is more potential acute extension of the spine by being* knocked over than there is by being held flat” and that the blow dealt by Renshaw, as described by the plaintiff, could have been a precipitating cause of the injury which he sustained.
The plaintiff testified that Renshaw dealt him a “vicious blow and drove me over a table and I hit the table very hard and I landed on the floor very hard” and that the defendant and the bartender then jumped on him and held him on the floor. The jury was free to accept that testimony and reject the disputed testimony tending to show that plaintiff’s injuries may have been caused by the pummeling administered by the defendant and his bartender. Upon rejection by the jury of the inharmonious testimony, there then was but “one theory of causation, indicating a logical sequence of cause and effect” and there was, therefore, a juridical basis for a determination in plaintiff’s favor “notwithstanding the existence of other plausible theories with or without support in the evidence.”
The judge correctly charged the jury that if it determined that “some injury was inflicted upon Mr. Duma by reason of some other event * * * then you must separate as best you can the injury that flowed from each separate cause.” This instruction is in accord with the rule enunciated in Maddux v. Donaldson (1961), 362 Mich 425, 432, 433, where the Court declared:
“It is our conclusion that if there is competent testimony, adduced either by plaintiff or defendant, that the injuries are factually and medically separable, and that the liability for all such injuries and damages, or parts thereof, may be allocated with reasonable certainty to the impacts in turn, the jury will be instructed accordingly and mere difficulty in so doing will not relieve the triers of the fact of this responsibility. This merely follows the general rule that ‘where the independent concurring acts have caused distinct and separate injuries to the plaintiff, or where some reasonable means of apportioning the damages is evident, the courts generally will not hold the tort-feasors jointly and severally liable.’
“But if, on the other hand, the triers of the facts * * * decide that they cannot make a division of injuries we have, by their own finding, nothing more or less than an indivisible injury, and the precedents as to indivisible injuries will control. They were well summarized in Cooley on Torts in these words: ‘Where the negligence of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design, or concert action.’ ”
The judge did not err, when instructing the jury, in refusing to state as part of the defendant’s theory of the case that he claimed the plaintiff attacked him. The issue in this case was whether the defend ant contributed to the intoxication of an intoxicated person who assaulted the plaintiff and caused him injury, not whether in the ensuing scuffle the defendant acted reasonably. The jury, by its verdict, found that the plaintiff’s injuries were caused by the attack made upon him by the intoxicated person, Renshaw, and that the defendant contributed to Renshaw’s intoxication.
The other claimed instructional errors were not properly preserved by calling the judge’s attention “specifically” to the matter to which the defendant objected and the grounds of objection, as required by GCR 1963, 516.2. The case was submitted to the jury under clear, fair, and complete instructions.
Finally, the defendant argues that allowing the plaintiff to testify regarding rates of pay of local employers in the welding industry was impermissible because the testimony was hearsay. One of the many exceptions to the hearsay rule is the doctrine that a person is deemed qualified to testify regarding the value of his own personal property by dint of ownership. Analogously, it has been held that a witness may testify “what the value of his services was according to going wages at that time.” We also observe that both upon cross and direct examination the full details concerning the wage rates were fully explored.
Affirmed. Costs to plaintiff.
All concurred.
MCLA § 436.22 (Stat Ann 1970 Cum Supp § 18.993); MCLA § 436.29 (Stat Ann 1957 Rev § 18.1000). Cf. DeVillez v. Schifano (1970), 23 Mich App 72; Manuel v. Weitzman (1970), 23 Mich App 96; Hollerud v. Malamis (1969), 20 Mich App 748.
MCLA § 436.22 (Stat Ann 1970 Cum Supp § 18.993).
The defendant is clearly correct in contending that it was the plaintiff’s burden to satisfy the jury “according to reason, observation and experience, the intoxication * * * was the efficient cause of the blow,” that the result was fairly traceable to the intoxication. Brockway v. Patterson (1888), 72 Mich 122, 128; Steele v. Thompson (1880), 42 Mich 594, 597. Similarly, see Wyatt v. Chosay (1951), 330 Mich 661, 668, 669; Long v. Dudewicz (1959), 355 Mich 469, 478; Eisenzimmer v. Contos (1967), 379 Mich 656, 666; Bryant v. Athans (1960), 362 Mich 17, 18.
Kaminski v. Grand Trunk W. R. Co. (1956), 347 Mich 417, 421.
Kaminski v. Grand Trunk W. R. Co., supra, p 422.
Additionally, the jury was instructed:
“You will, therefore, if you are convinced that injury was inflicted by Mr. Eenshaw, render unto Mr. Duma those damages which you feel are reasonable and proper and confined to the injury by Een-shaw. Any injury you find resulted from any further activity by Mr. Janni and Ms bartender, you will exclude from consideration and from your verdict.
“The court instructs you that you must use your own best judgment on this question to the end that your verdict includes only damages that you find were due to an unlawful sale of intoxicating beverages to Mr. Eenshaw and that’s all.”
The Court elaborated (pp 434, 435):
“The faet that one wrong takes place a few seconds after the other is without legal significance. What is significant is that the injury is indivisible. The blows of the ruffians referred to in Heydon’s Case (KB 1613), 11 Co Rep 5a (77 Eng Rep 1150), [— where in an early ease (p 430) ‘the rule of joint and several liability dispensed with the necessity of plaintiff’s proof of just which ruffian inflieted which injury when he was set upon by three’ — ] need not necessarily have fallen upon the victim at the same instant of time, and undoubtedly did not. The reason for the rule as to joint liability for damages was the indivisibility of the injuries, not the timing of the various blows.”
In a separate concurring opinion, Mr. Justice Black summarized the holding of the Court in the following language (pp 450, 451):
“Now we affirm that, where the trier or triers of fact find they cannot ascertain the amount of damages each wrongdoer has inflieted, then such trier or triers are authorized to assess the plaintiff’s damages against any one or all of such wrongdoers on ground that the latter have in law — participated in the infliction of a ‘single, indivisible injury.’ ”
Kavanagh v. St. Paul Fire and Marine Insurance Co. (1928), 244 Mich 391; Printz v. People (1879), 42 Mich 144.
Richardson v. McGoldrick (1880), 43 Mich 476. Similarly, Foley v. Crosby (1895), 105 Mich 635; Fowler v. Fowler (1897), 111 Mich 676; In re Wigent’s Estate (1915), 189 Mich 507; Coogan Finance Corporation v. Beatcher (1932), 120 Cal App 278 (7 P2d 695).
See County of Kalamazoo v. Fidelity & Casualty Co. (1936), 278 Mich 99, 105. | [
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On Rehearing
Lesinski, C. J.
Defendants have moved for rehearing following an order by this Court granting plaintiff statutory interest on the judgment computed from the date the suit was filed. Due to the significance of the issue raised in defendants’ motions, we have concluded that the matter is best disposed of by full opinion rather than by summary order. The instant opinion is, therefore, filed.
The issue raised may he simply put: How is interest to he computed on damages awarded in a wrongful death action?
This cause has had an unfortunately long history in our courts. In instructing the jury at the close of proofs below, the trial court stated:
“Now, members of the jury, on these past damages, the damages that you award from the date of his death up until today, if you reach this area, you will add on top of that interest at the rate of 5% up until today. That is what it will he 5% per year from the date— the Currie-Fiting case — 5% from the day it was incurred. The funeral hill you can assume was incurred on February 21, 1961, so there will be interest on that and the loss of wages or loss of support as it occurred.”
On appeal, in Vannoy v. City of Warren (1968), 15 Mich App 158, plaintiff argued that interest should also have been awarded under MCLA § 600.6013 (Stat Ann 1968 Cum Supp § 27A.6013). We disagreed, citing our earlier opinions in Swift v. Dodson (1967), 6 Mich App 480, and Ballog v. Knight Newspapers, Inc. (1967), 7 Mich App 273, which held the above cited statute not retroactive and, therefore, not applicable to the instant suit.
Subsequent to this Court’s opinion, the Supreme Court decided Ballog v. Knight Newspapers, Inc. (1969), 381 Mich 527, reversing this Court’s Ballog opinion. The Supreme Court, on its own motion for reconsideration, then remanded the instant case to this Court for redetermination in light of Ballog. Vannoy v. City of Warren (1969), 382 Mich 771. We in turn remanded to the trial court for computation of interest in a manner consistent with Ballog by order dated September 25, 1969.
The difficulty this cause has had in coming to final resolution results from the combined effect of Currie v. Fiting (1965), 375 Mich 440, and MCLA § 600.6013 (Stat Ann 1970 Cum Supp § 27A.6013). The first of these, Currie v. Fiting, was decided May 10, 1965. There the Court stated, beginning at 454:
“While unnecessary to this decision, it follows that, in the event of a jury trial, a jury should he instructed to ascertain the date when damages accrued and to add interest on same from date of accrual to date of its verdict.” (Emphasis supplied.)
While this statement was dictum, it was properly given wide application by trial courts. Significantly, however, when Currie was decided, the interest statute in effect was MCLA § 600.6013 (Stat Ann 1962 Rev § 27A.6013), which provided in pertinent part:
“Execution may be levied for interest on any money judgment recovered in a civil action, such interest to be calculated from the date of judgment at the rate of W/c per year.” (Emphasis supplied.)
On July 21, 1965, however, the legislature passed MCLA § 600.6013 (Stat Ann 1965 Cum Supp § 27A-.6013), giving it immediate effect. The statute, as amended in 1966, provides in pertinent part:
“Interest shall be allowed on any money judgment recovered in a civil action, such interest to be calca- lated from the date of filing the complaint at the rate of 5% year.” (Emphasis supplied.)
Thus, we are faced with Currie, supra, which allows interest from the date of the injury to the date of the judgment, while the statute allows interest from the date of the complaint until the judgment is finally paid. Seemingly, therefore, double interest is to be given between the date of complaint and date of judgment.
On -remand the trial court was understandably confused by all that had transpired and found itself unable to comply with this Court’s order of September 25, 1969. Plaintiff appealed from the lower court’s refusal to award statutory interest and upon leave granted, this Court set about the task of computing interest. We ordered the cause remanded to the trial court with instructions to award interest in the amount of $46,273.96 in favor of plaintiff.
From this order defendants have filed the instant motions for rehearing. It is defendants’ position that our computation of interest was improvident in that it constituted double interest between the date the complaint was filed and the date of judgment.
As noted above, when Currie was decided the statute in effect provided for interest on judgments only from the date of judgment until the date of payment. The purpose of the Currie opinion was merely to extend the allowance of interest, as part of damages, to the time preceding judgment in wrongful death actions. There the Court noted at 454: “[I]t is proper that the defendant should pay inter - est in order that there may he a full award of damages.”
This Court has often noted the distinction between interest on a judgment, which is purely statutory, and interest as an element of damages. The latter is awarded by the jury as part of the general verdict. The former is computed on and added to the general verdict. Yet, both types of interest serve the same basic function: to compensate the plaintiff for the loss of the use of funds.
Thus, while the two types of interest are different, they are related. Therefore, when statutory interest is provided for a given period, it cannot be said that plaintiff is not compensated for the loss of the use of the funds he recovers as a judgment during that period. He has monetary damages, to which he is theoretically entitled at the moment of his loss, and he has interest during the period provided for by statute. He is entitled to nothing more during that period.
As the Court in Currie intended only to make plaintiff whole, we believe that the statement in Currie that interest is computed from date of injury to date of verdict was not intended to be a hard and fast rule to be applied irrespective of statutory change. Bather, it was a policy statement made within the context of then existing statutory provisions. Therefore, the effect of the statute was to supersede a portion of the dictum in Currie and to make available interest, as part of the damages awarded by the jury, only from the date of injury to the date of complaint.
Combining the principles of both the statute and Currie, we hold the following. In a wrongful death action, where a claim accrues as of a date certain, the jury is to be instructed to include as part of its award of damages interest from the date of injury to the date the complaint was filed. When the verdict is returned the defendant shall immediately be liable for statutory interest from the date of the complaint to the date the judgment is paid computed in accordance with MCLA § 600.6013 (Stat Ann 1970 Cum Supp § 27A.6013).
Since the trial court below instructed the jury to compute interest from the date of injury to the date of verdict, it was in error to the extent that interest as part of damages would include the period between complaint and verdict. As the jury was instructed to award 5% interest, however, and the statute provides for 5% interest, the parties were not prejudiced by the error.
We, therefore, remand this cause to the trial court which shall enter its order awarding interest to plaintiff at the rate of 5% per year. As the judgment already includes interest from the date of complaint to the date of judgment, the court on remand shall only allow interest from the date of the judgment to the date the judgment was or is satisfied. If, as the pleadings in this Court indicate, defendants have already paid the full amount of the judgment together with costs and interest from date of judgment, then all obligations owing from defendants to plaintiff have been met and the trial court shall order the matter closed.
This Court’s order of February 24,1970, in the instant matter is rescinded, and the trial court is to abide by the opinion expressed herein. Costs to defendants Johnson & Anderson, Inc.
All concurred.
Order dated February 24, 1970.
Beyond the appellate review noted in the body of this opinion, the instant ease also resulted in the opinion of this Court in Vannoy v. City of Warren (1965), 2 Mich App 78.
See, currently, MCLA § 600.6013 (Stat Ann 1970 Cum Supp § 27A.6013).
The record contains the following expression of frustration by the lower court:
“This court cannot interpret the confusing language of the statute or reconcile it with Currie. The only certainty entertained by the court is that the plaintiff may not have interest twice, i.e., from the date of accrual of damages and also from the date of filing complaint. For no other reason, the court denies interest under the statute.”
Banish v. City of Hamtramck (1968), 9 Mich App 381; Swift v. Dodson (1967), 6 Mich App 480.
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O’Hara, J.
Simply put, this is a triangle case, one man, two women. The rejected woman went to the place of abode of her inamorato. Her rival was there. She became alternately enraged and hysterical. Finally the police were summoned and she was forcibly ejected from the premises. She threatened to return. She did. She admitted she had an open penknife in her hip pocket. She attempted to regain entrance. The deceased blocked her efforts. A struggle between them ensued. In the struggle, in a manner not at all clear from the record, he was cut in the hip. The wound ivas of such dimension that it would not ordinarily he expected to he fatal. However, it turned out that the instrument which inflicted the wound punctured the femoral artery. The deceased hied to death before the flow of blood could he staunched. Hpon trial by jury, defendant was convicted of murder in the second degree. MCLA § 750.317 (Stat Ann 1954 Rev § 28.549).
"While defendant raises six assignments of trial error, we, as a reviewing court, are only disturbed by that part of the record pertaining to sentencing. On the basis of defendant’s age, the peculiar circumstances of the offense, her excellent record, the fact that she had two young children, and other attendant circumstances, defense counsel, at the time of sentencing, requested leniency from the court. The court replied:
“The Court: * * * the court has seriously considered this matter and a number of aspects involved in this case. This was a case where I thinli that the defendant wotdd have been wise to have had her case tried by the court without a jury but in view of the fact that the case was tried by the court with a jury, the court feels bound by the verdict of the jury in the case.” (Emphasis supplied.)
* * *
“ * * * as I say, the jury — the verdict' of the jury, in my opinion, is sustained by law although I have not necessarily found the same facts in cases as the jury did, and we now come to the question of what is a proper sentence in this case. We have a number of — the court, in this — this being a matter in Avhich the court is required to fix both a minimum and maximum sentence, the court feels that murder is a more serious crime than any of the crimes for which the courts fix a statutory maximum, the highest of — the highest maximum of any such case being 20 years, and the court feels that it should not fix a maximum sentence of less than 20 years and, therefore, the court fixes the maximum at 20 years imprisonment.
* * *
“Mr. Bell: May I say, I was going—
“The Court: Now, I must approach the minimum sentence. I have had a number of cases where— manslaughter cases under various mínimums and the — I have sentenced men to as high as 10 to 15 years for manslaughter — in manslaughter cases and 1 cannot feel that a murder sentence can be less than the sentence for manslaughter and the court, therefore, fixes the minimum sentence at 10 years and the maximum is fixed at 20 years. I have determined that the defendant spent 37 days in jail awaiting trial and sentence and she will be given credit for 37 days time served.”
There is one additional relevant fact. Prior to reading their verdict, the jury requested additional instructions from the court as to whether they could make recommendations to the court with their verdict. The trial court properly instructed them that it was not within their province under the law to do so. We think it unlikely, to say the least, that the jury was going to recommend severity in the sentence.
The statute under which defendant was convicted provides that murder in the second degree “shall be punished by imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the same.” MCLA § 750.317. (Emphasis supplied.) Since the sentence imposed was within the limits of the statute, we are bound by the oft-repeated rule expressed in People v. Pate (1965), 2 Mich App 66, 68:
“When a sentence is within the maximum provided by statute, the trial court has wide discretion and an appellate court does not have supervisory control over the punishment. See Cummins v. People (1879), 42 Mich 142; People v. Kelly (1894), 99 Mich 82; People v. Guillett (1955), 342 Mich 1.”
Notwithstanding, we are constrained to remand this case to the trial court for resentencing.
While the trial court was proper in ruling out probation (MCLA § 771.1 [Stat Ann 1970 Cum Supp § 28.1131]), the record raises a serious question as to whether the trial court, in refusing to consider a minimum sentence less than that imposed in other cases by other judges, did not improperly inhibit his own discretion. As was said in Cummins, supra, “The statute gives a wide discretionary power to the trial court upon the supposition that it will be judicially exercised in view of all the facts and circumstances appearing on the trial.” (Emphasis supplied.)
It is a fair deduction that both the jury and the conscientious trial judge had some of the same misgivings that we have from our own review of the record. It is factors that prompt these misgivings, together with all the “facts and circumstances appearing at the trial” which should be taken into account in the determination of an appropriate sentence in this case. We find no abuse of discretion on the part of the tidal judge; we do find that the exercise of his discretion was unduly and improperly limited.
Remanded to the trial court for resentencing.
McGregor, P. J., concurred. | [
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O’Hara, J.
Defendant was convicted by a jury of resisting a lawful arrest. MCLA § 750.479 (Stat Ann 1954 Rev § 28.747). Defendant was intoxicated in a public place in Kalamazoo on October 24, 1968, and when a police officer, Edward Solomon, attempted to apprehend defendant, defendant resisted. Defendant contends on appeal that the original information charging him with the crime was fatally defective and that the trial court erroneously permitted the prosecutor to amend the information.
The statute involved here, MCLA § 750.479, clearly provides that it is unlawful to resist or oppose a peace officer in the performance of his lawful duties:
“Any person who shall knowingly and wilfully obstruct, resist or oppose any sheriff, coroner, township treasurer, constable or other officer or person duly authorized, in serving, or attempting to serve or execute any process, rule or order made or issued by lawful authority, or who shall resist any officer in the execution of any ordinance, bylaw, or any rule, order or resolution made, issued, or passed by the common council of any city board of trustees, or common council or village council of any incorporated village, or township board of any township or who shall assault, beat or wound any sheriff, coroner, township treasurer, constable or other officer duly authorized, while serving, or attempting to serve or execute any such process, rule or order, or for having served, or attempted to serve or execute the same, or who shall so obstruct, resist, oppose, assault, beat or wound any of the above named officers, or any other person or persons authorized by law to maintain and preserve the peace, in their lawful acts, attempts and efforts to maintain, preserve and keep the peace, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison not more than 2 years, or by a fine of not more than 1,000 dollars.”
The original information made a general allegation that the police officer was acting pursuant to his authority to maintain the peace, but made no specific reference as to what the lawful performance of his duties were at the time he arrested defendant. The original information is quoted at length below:
“Clyde Kurzinski heretofore, to-wit, on or about the 24th day of October, 1968, at the city of Kalamazoo, in the county of Kalamazoo, aforesaid, did obstruct, resist, oppose, assault, beat or wound a police officer, to-wit: Edward Solomon, in his lawful acts, attempts and efforts to maintain and preserve the peace; 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.”
After the jury had been sworn, defendant objected to the introduction of any evidence relating to the crime on the ground that the information charged no crime known to the law.
To meet this objection, the prosecutor moved to amend the information so as to include a specific allegation that defendant resisted the arresting officer when the officer attempted to place defendant under arrest for drunkenness. The trial judge permitted the amendment.
Defendant relies heavily on People v. Hubbard (1905), 141 Mich 96. In Hubbard, an information similar to the original information here was held fatally defective because it contained only a general allegation that the officer was in the discharge of his duties but was silent as to which specific duties. However, defendant’s confidence in Hubbard is misplaced. In that case there was no attempt by the prosecutor to amend the invalid information, whereas here the prosecutor made a timely motion to amend so as to cure the defect.
The trial court’s granting of the motion to amend is fully supported by several Michigan statutes. MCLA § 767.76 (Stat Ann 1954 Rev § 28.1016) bestows wide discretion on trial courts to amend indictments before, after, or during trial with respect to defects, imperfections, or omissions. Furthermore, MCLA § 767.75 (Stat Ann 1954 Rev § 28.1015) provides that if uncertainty exists in an indictment, the court may order an amendment to cure the defect.
In People v. Sims (1932), 257 Mich 478, the original information was defective in that it was not framed in the technical language of the statute. It was held in that case that an amendment which added the words necessary to cure the defect was proper, even after the jury was sworn, particularly in light of the fact that the defendant obviously knew with which crime he was being charged. The same principle is applicable in the instant case. Defendant was fully apprised by the original information that he was' being charged with resisting an officer in the performance of his duties. The amended information did not charge defendant with any new criminal offense, nor did the amendment call for a new defense. While it is true that an amendment should not be permitted if it is prejudicial to the defendant, we find no such prejudice in the case before us. See People v. Sims, supra; see, also, People v. White (1970), 22 Mich App 65.
Where police officers observe a defendant intoxicated in a public place, the officers have not only the right but the duty to arrest him and resistance to the legal arrest is unlawful. People v. Harbin (1968), 13 Mich App 588.
Affirmed.
All concurred.
MCLA § 767.2 (Stat Ann 1954 Rev § 28.942) extends the statutory rules applicable to indictments to informations as well. | [
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Danhoe, P. J.
This is a negligence case arising out of the explosion of a Stroh’s beer bottle which allegedly caused considerable injury to the wrist of plaintiff, Josephine Cusumano. A jury trial was held in February 1969. At the close of the plaintiffs’ proofs, the defendant, without offering any evidence, rested. The defendant then moved for a directed verdict of no cause of action. This was granted on the basis that there had been no showing of negligence on the part of defendant. The plaintiffs have appealed.
In deciding a motion for a directed verdict the evidence and all legitimate inferences therefrom must be construed in the opposing party’s favor. Schedlbauer v. Chris-Craft Corporation (1968), 381 Mich 217. The plaintiffs’ proofs show that Josephine Cusumano and her husband, Thomas Cusumano, owned a grocery store in the City of Detroit. They were licensed to sell beer and wine for consumption off the premises. Mrs. Cusumano managed the store, doing all the buying and selling and waiting on the customers. Mr. Cusumano did what main tenance work had to be done and the restocking, but most of his time was spent outside managing a marina owned by the plaintiffs.
On May 25,1961, a customer came into the grocery store and purchased two bottles of Stroh’s beer, not cooled. Mrs. Cusumano lifted the two bottles out of a nearby case with one hand, but in such a way that the bottles did not come into contact with each other. As she was lowering them into the customer’s bag, one of the bottles exploded with a sound “like a fire cracker” and a piece of glass came out of the bottle, flew through the air about 12 inches, and struck Mrs. Cusumano on her right wrist. It felt like “a little sting” but did not cut her or cause any bleeding. Mr. and Mrs. Cusumano testified that Mrs. Cusumano sustained substantial injury to her wrist.
The beer had been delivered to the plaintiffs’ store the previous day by William Cook, an employee of the defendant. Mr. Cook stacked the beer in place inside the store. There it remained undisturbed until Mrs. Cusumano reached in and took out the two bottles for the customer. The broken bottle and piece of glass therefrom were returned to the defendant’s employee, Mr. Cook.
The plaintiffs claim that the foregoing establishes a prima facie case of negligence while the defendant argues that some evidence of a specific act of negligence is an essential part of the plaintiffs’ burden of proof.
Once again we must deal with the Michigan version of res ipsa loquitur known by the euphemism “circumstantial evidence of negligence.” We do not think it necessary in this opinion to include a detailed comparison and analysis of the multitude of cases that have discussed this doctrine. However, readers are referred to the extensive opinion writ ten on the subject by Justice Voelker in Mitcham v. City of Detroit (1959), 355 Mich 182. Of special interest is the following statement, p 188:
“Ironically enough, the Michigan version of the doctrine of res ipsa loquitur in some respects plainly ‘out ipsas res ipsa,’ as it were
Also not to be overlooked is the more recent opinion by Justice Adams in Gadde v. Michigan Consolidated Cas Company (1966), 377 Mich 117. He advises us that the whole thing started in England back in 1863 in a case in which a barrel of flour rolled out of a warehouse window and fell upon a pedestrian. Baron Pollock remarked to counsel “res ipsa loquitur”, meaning “the thing speaks for itself”.
Justice Adams concludes that by whatever name it is described, circumstantial evidence and the inferences therefrom may suffice for a finding of negligence. For similar holdings see Lipsitz v. Schechter (1966), 377 Mich 685; Schedlbauer v. Chris-Craft Corporation, supra; Patrick v. Pulte-Strang, Inc. (1967), 8 Mich App 487; Hand v. Park Community Hospital (1968), 14 Mich App 371.
Of course, mere proof of an accident which does not usually happen except by negligence by someone does not establish a prima facie case of negligence by the defendant. Rose v. McMahon (1968), 10 Mich App 104 . However, the plaintiffs have introduced evidence that the bottle exploded, that it was not moved from the time it had left the defendant’s custody until Mrs. Cusumano picked it up just before it exploded, and that when Mrs. Cusumano picked up the bottle it was not bumped, either accidentally or carelessly. We hold that that evidence is sufficient to support a reasonable inference that the exploding bottle was not damaged by any extraneous force after delivery to the plaintiffs.
An explosion such as occurred here might have been caused by an excessive internal pressure in a sound bottle, by a defect in the glass of the bottle, or by a combination of the two. Ordinarily, an overcharged or defective bottle would not occur without negligence. The defendant had control over both the charging and inspection of the bottles, and we hold that an inference of negligence arises that the defendant failed to exercise due care in either filling the bottle or inspecting it or both. Of course, the defendant may attempt to rebut this inference by offering evidence at the new trial showing due care in the selection, filling, and handling of the bottle. It would then be for the jury to determine whether the defendant had negated the inference of negligence arising from the plaintiffs’ proofs.
Counsel have cited two Michigan exploding bottle cases. They are Macres v. Coca-Cola Bottling Co., Inc. (1939), 290 Mich 567 and Pattinson v. Coca-Cola Bottling Company of Port Huron (1952), 333 Mich 253. In both of those cases, at the conclusion of the trial, the jury returned verdicts in favor of the plaintiffs. On the appeals, it was argued that there was insufficient evidence to support an inference of negligence by the defendant. In both cases the Michigan Supreme Court affirmed, holding that the trial courts properly allowed the cases to go to the jury on negligence theories.
Error has also been alleged because the trial court excluded the testimony of William Cook. That argument is without merit because he was not indorsed on the pretrial statement and his name and address were not supplied to the court and opposing counsel at least 90 days before the case was assigned for trial as agreed at the pretrial conference. Nor was it error to exclude Mr. Cook’s deposition because otherwise plaintiffs would have accomplished indirectly that which they could not do directly.
The plaintiffs also argued that the trial court erred in excluding the testimony of Thomas Cusu-mano as an expert witness with respect to the general characteristics of bottled beer. Determination of whether a witness is qualified to testify as an expert is for the trial court to decide and we reverse only for an abuse of discretion, Accetola v. Hood (1967), 7 Mich App 83. It is clear from the record that there was no abuse of discretion.
Reversed and remanded for a new trial. Costs to plaintiffs.
All concurred. | [
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Blair, J.
The defendants were convicted on June 24, 1904, in the recorder’s court of the city of Detroit, of obstructing Thirteenth street, south of Stanley avenue, an alleged public street in said city, under the provisions of a city ordinance. Sentence having been entered upon such conviction, defendants have brought the judgment and record to this court for review upon writ of certiorari.
Defendants in their brief limit the “discussion” to three items, as follows: (1) Respondents in good faith claim title to the property in question. (2) No actual highway existed at the place in question. (3) The city never accepted as a street the parcel or property in question.
It is well settled that the title to lands cannot be tried in proceedings like the present. People v. Stott, 90 Mich. 343, and cases cited. In order to oust the court of jurisdiction, it is, however, essential that there should be a bona fide contention either as to the existence of the highway or the title of the lands where the alleged obstructions are located. The rule is well stated by Chief Justice Christiancy, in Roberts v. Highway Com’rs of Cottrellville, 25 Mich. 23, as follows:
“And whenever the contest shall appear before the jury to be, really and in good faith, a question of the existence of the highway claimed, or a question involving the title to real estate, rather than a question of encroachment upon a highway admitted to exist, or the existence of which is not in good faith seriously contested, or so clearly shown as to admit of no real and bona fide contest, the whole proceeding should be dismissed by the jury as beyond their jurisdiction in such a proceeding.”
We think that the existence of the highway is so clearly shown in the case at bar as to admit of no real and bona fide contest. It appears conclusively from the evidence that on the 14th day of July, 1895, Senator McMillan, having theretofore purchased the property, executed a plat in due form, whereby he dedicated, amongst other things, the streets and alleys shown on said plat to the public. On the 18th day of July, 1895, the plat designated “ McMillan-Edensor Subdivision of Part of Lots 1 and 2, Lafferty Farm, Private Claim 228,” was approved by the board of public works of the city of Detroit. On the 19th day of July, 1895, this plat was recorded in Liber 19 of Plats, on page 96, in the office of the register of deeds for Wayne county. Thirteenth street, the highway in question here, was one of the streets dedicated by said plat. It further appears, by the undisputed testimony, that soon after the recording of the plat a gang of men in the employ of the board of public works, under the direction of a ward boss, plowed three furrows on each side of Thirteenth street its entire length, and then took a road scraper and scraped it up to the center of the road, rounded up the street, and scraped it up for public travel, and the work was paid for by a pay boss for the city. This opening and working the street by the city constituted a clear and unequivocal acceptance of the street, which thereupon became a public street of the city, subject to its jurisdiction and control, till vacated or lost by nonuser or adverse possession, which is not claimed in this case. City of Mt. Clemens v. Sanitarium Co., 127 Mich. 115.
Furthermore, the defendants recognized the public character of the street by their own solemn act. In January, 1903, the defendants presented a petition to the common council asking for the vacation of Thirteenth street south of Stanley avenue, which was referred to the committee on street openings, who reported on March 10th in favor of granting the prayer of the petition upon certain condir tions, and a resolution was introduced to that effect. On March 24th the resolution was put on its passage, and failed of securing the necessary three-fourths of the votes of the aldermen-elect, there being eighteen yeas and 15 nays. In March, 1903, and, we suppose, after the failure of the vacation proceedings, defendants constructed a fence across the street, which is the obstruction complained of. Under such circumstances, we think the recorder’s court had jurisdiction of the case.
It remains to consider whether Thirteenth street, south of Stanley avenue, was an actual highway in the sense that its obstruction interrupted travel which otherwise would have taken place. Chief Justice Campbell, delivering the opinion of the court in Beecher v. People, 38 Mich. 289, said:
“ The object of the power granted to the city to prevent obstructions to various easements of a public character is not to settle the title, which cannot be tried by a municipal court under city ordinances. Horn v. People, 26 Mich. 221; Roberts v. Highway Com’rs of Cottrellville, 25 Mich. 23.
“Neither can any such interference in a summary proceeding be had, except where some way actually used has been interrupted in its user or enjoyment. A theoretical easement not actually used is not within the law. Tillman v. People, 12 Mich. 401; Jackson v. People, 9 Mich. 111.”
The testimony on the part of the people as to the actual use of this portion of the street was not very strong. At the time defendants constructed the fence across the street, they were the owners of the lots on both sides south of Stanley avenue to the railroad tracks, where a fence barred further progress; there being no crossing over the railroad right of way. The fence constructed by defendants had been in place for a year before complaint was made, and defendants gave evidence tending to show that the street was used south of Stanley avenue for their private purposes only. The court instructed the jury upon this subject as follows:
“ The Wolverine Company would have a right to build a fence across there, if there was no public highway there. But it is immaterial whether or not it is used. If I give the city of Detroit a piece of land out here, and they run a street down here, and plow it up and grade it, and it is accepted, it is immaterial whether John Smith or Jones walked over it or not, unless there are some conditions nominated, and if they accept it they are bound to carry out those conditions, if, in law, they are good. If I give it to them, it becomes a part of that plat. If^ it is dedicated, it becomes a part of that plat that was introduced here, and that was accepted. It is for you to say whether or not it is a street.”
As applied to prosecutions for obstruction of highways under city ordinances, like the present, we think the charge was erroneous.
The judgment is reversed, and a new trial granted.
Carpenter, Grant, Montgomery, and Ostrander, JJ., concurred. | [
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Hooker, J.
The respondent, charged with the offense of manslaughter in an attempt to produce an abortion, was convicted, and has appealed. The alleged errors are grouped, and raised three legal questions:
1. Whether certain questions asked witnesses for the prosecution were leading, and so prejudicial as to call for a reversal of the case.
2. Whether it was error to permit a witness to testify that the defendant had made indecent proposals to her while he was giving her medical treatment.
3. Whether it was error to permit the prosecution to show that respondent had on one occasion, before the act for which he was on trial, performed an operation to produce an abortion upon the last-named witness.
Attention is called to eight questions said to be leading. Among these questions were the following: Elmer Kuhl, a witness responsible for deceased’s condition, had testified to a professional interview with a Dr. Kimball about the condition of the girl, and was asked: “ What did she say ? Did she say anything about marrying ?” The answer was: “Yes. She said it would be "a dangerous thing to tackle, to do anything like that, and she advised us to get married.” Much more was said in the same connection, without other suggestion than that contained in tfie foregoing question. Again, the witness, having testified at some length concerning the first interview with the defendant, and that he said that there was no danger, was asked: “ What did he say in reference to the tools, if anything ? His answer was that defendant said, “ I have all the necessary tools to do this with,” and that he took witness into the operating room and showed him, and said, “If one did not have the necessary tools, he could not go ahead and do this.” Again, the witness was asked whether the defendant spoke to him on another occasion with reference to a written statement. The answer was, “Yes. He said he had to have a statement of some kind to bring a sick person to a hospital. He said he was going to take her to Grace Hospital. I signed the statement, and so did the girl.” Again, he was asked whether he paid defend ant any money. In answer he gave a somewhat lengthy conversation upon this subject, all relevant. Counsel admit that the allowance of such questions is usually within the discretion of the trial judge, but say that these were so plainly improper and injurious as to call for reversal. To us they seem proper, and not leading. They were intended to call attention to certain subjects about which testimony was desired. It was proper testimony, and the questions did not in themselves suggest the answers expected.
The other two questions can best be discussed together. It was the claim of the defendant that the operation, which he did not deny, was a necessary one, or, if not, that he believed it to be, and that he performed it without criminal intent. To show a criminal intent one May Lane was called by the prosecution, who testified that defendant performed a similar operation upon her for the avowed purpose of producing an abortion. It is said by counsel that this testimony was inadmissible, under the case of People v. Lonsdale, 122 Mich. 392. .The cases differ widely. In that case the criminal intent was a necessary conclusion from the act proved. Here it was not, as we have already seen. It depended on the truth or falsity of defendant’s defense that the act was done for a legitimate purpose. See People v. Seaman, 107 Mich. 348.
It remains to consider the second question. May Lane testified in detail to what occurred between her and defendant on the several occasions that he treated her. Upon the subject of payment, which was a proper subject of inquiry, she said that defendant wanted her to give him what money she could.
“ Q. What did he say, if anything, about bringing a young man in ?
“A. He said, if I would do what he wished me to do, to stay with him, he would make the expense lighter. Get what money I could from the fellow, and give him part of it, and I would have more for myself. He threw himself upon me.”
The court admitted this testimony as part of the res gestee. It is undeniable that this testimony was well calculated to prejudice the jury, and that the question was whether he had committed a criminal abortion upon May Lane, not whether he sought or had sexual intercourse with her. But it is undeniable that this conversation, if it occurred, characterized the act, which the defendant afterwards (in making his defense) claimed was treatment for a venereal disease, with which the proposal was inconsistent. It may be said that when the testimony was admitted he had not testified regarding such disease, and that it would not have been necessary, but for such testimony. May Lane testified to an operation for abortion. It was materially strengthened by showing that it was to be paid for, and the price charged and the proposition to have her get him money from the man in the case were explanatory facts and clearly proper; the other proposition and the attendant circumstances being closely connected with the transaction and in fact part of it.
The conviction is affirmed.
McAlvay, Montgomery, and Ostrander, JJ., concurred. Blair, J., concurred in the result. | [
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Mooee, C. J.
Several years prior to August, 1903, the C. H. Little Company established a yard on the south side of Michigan avenue, in Detroit, at the crossing with the Lake Shore & Michigan Southern Railroad, where it dealt in sand, lime, mortar, stone, and other building and paving materials. It maintained the yard several years, and had erected a large warehouse and stables, put in a set of 10-ton platform scales, and had other utilities for the conduct of its business. It occupied the premises under a lease from the Lake Shore & Michigan Southern Railway Company, which lease contained a clause for its renewal from year to year; the last renewal being for one year from April 19, 1903. For the purpose of separating the grades upon certain streets in Detroit, the city entered into an agreement, the material portions of which are as follows:
“Agreement made this third day of July, 1903, between the city of Detroit, party of the first part, and the Michigan Central Railroad Company, the Lake Shore & Michigan Southern Railway Company and the Grand Trunk Railway Company, of Canada, hereinafter called the ‘Railroad Companies,’ and the Detroit United Railway Company, hereinafter called the ‘Street Railway Company,’ parties of the second part, witnesseth:
‘ ‘ Whereas, the city desires to discontinue, as soon as may be reasonably practicable, the grade crossings in the said city of Detroit at the intersections of the several streets, in the district between Woodward and Michigan avenues, inclusive, with the rights of way owned, used or occupied by the said railroad companies, and to substitute therefor overhead crossings by said railroads, and the parties thereto, by their duly authorized representatives, have agreed upon a uniform profile, fixing the level to which the tracks of the said railroad companies shall be elevated, to provide for the separation of grades of the several streets, and have reached an argreement determining the method, the terms, and the conditions of, and general specifications for, effecting such changes in said crossings, and in furtherance of such general arrangements have now agreed upon the particular plans and specifications therefor, * * * at the crossing of the tracks of the said Lake Shore & Michigan Southern Railway Company and Grand Trunk Railway of Canada:
“Now therefore, in consideration of the premises and the mutual undertakings of the parties hereinafter expressed, it is agreed:
“1. That the city of Detroit shall, by proper ordinance, adopt the line shown on the profile, as the profile permanently fixing the levels for said district, to provide for the separation of the grades of the streets at present opened and used, within the limits, of said district, and the city hereby covenants and agrees that the separation of grades at all street crossings in said district shall be effected hereafter by lowering the grade of the streets sufficiently to allow the streets to pass under the railroad tracks when so elevated.
“ 2. That the city shall, from time to time, by proper ordinances, whenever required for the separation of grades, change and lower the grades of the several streets now opened and used across said right of way, so as to permit the separation of grades in accordance with said profile and shall thereby authorize the construction of the said railroads overhead across such new grades, and shall, and does hereby, assume the payment of all abuttal damages, to property or persons, other than said second parties, arising in any way from such change of grade, and all cost, expense, charges, or liability in any proceedings which may be instituted to effect such separation or which may be instituted to prevent the performance of this agreement, it being understood that the performance on their part of this contract shall release and discharge said railroad companies from any and all assessments, charges, damages, or liabilities and be accepted as a full discharge and acquittal of all obligations, present or future, to abutting owners, or arising from the failure of the city to adjust or pay such damages, costs and expenses in connection with such grade separation and changes of grade, and the city hereby assumes to itself and agrees to pay and assume and indemnify and save harmless the said second parties from and against all such assessments, damages, costs or expenses, except for construction, without charge, recourse to, or recharge over against said second parties, or any of them, and the parties of the second part hereby waive any and all claim for damage by reason of the change of grade of any of said streets to any .abutting property owned or controlled by them, or any of them.
“3. In consideration thereof, the second parties shall construct and build the entire work involved in said changes of grade and all excavating, paving, and repaving, etc. The work to be done by said second parties shall include all excavations necessary or made necessary by the said change of grade as well on the intersecting streets as on the streets crossed. All such work to be done in accordance with the said profile and the general specifications. * * *
“11. The city shall, as soon as practicable, by proper ordinance, change the grade of said Michigan avenue at said crossing, and the said city shall and does agree to assume and perform, with respect to the work of the separation of grades, all of the undertakings and obligations hereinbefore mentioned, to be kept and performed by said city.”
In August, 1903, the separation of grades work began, at which time the buildings, scales, and utilities of the appellant were removed to the north of said Michigan avenue, and its yard abandoned, owing to the deep excavations in said avenue and the loss of ingress and egress to and from said yard.
The C. EL Little Company sought to recover damages because of the change of grade. The city claimed that as the C. H. Little Company’s yard and business were on railroad property that because of the agreement of the railroads with the city the claimant could not recover. The claimant sought to show its damages, when objection was made to his introducing testimony. The following then occurred:
‘1 Mr. Warner: I have a small claim here, and would not want to have all the testimony in the case written up to appeal this claim.
“Mr. Hall: You have your right to appeal. You have but about three pages of record for your claim. You can take it up on your offer.
“The Court: I think I will do that. I think I will allow Mr. Warner to offer it and I will exclude it. I don’t think it a proper element, in view of the agreement between the company and the city.
‘ ‘ Mr. Warner: I offer to show our damages, expecting to show with reference to the damage of the C. H. Little Company.
“ The Court: I suggest, Mr. Warner, you make that offer in the form of a typewritten statement and submit it as a part of the record and save time, and you can make it more accurately.
“Mr. Hall: Then I object to that testimony.
“ The Court: He offers to show, I understand, that the damage to his client amounts to $1,807.40, by reason of the construction of the grade.
“Mr. Hall: I admit that they would show items of damage to that amount.
“Mr. Warner: Do I understand that you admit the claim of the C. H. Little Company for its damages by that separation matter amounts to that sum of $1,807.40 ?
“ Mr. Hall: Well, I admit that the testimony of the claimant’s witnesses will show its damage to be that amount.
‘ ‘ Mr. Warner: Then I will rest under that admission as to the amount of this claimant’s damage.
“Mr. Hall: The record should also show that they moved, prior to the separation of grades, over to the identical property upon the opposite side of the street belonging to the railroad company.
“Mr. Warner: The total element of damage is entirely caused by the removal. It makes no difference whether they were moved from the railroad property to another piece of railroad property or elsewhere.
‘ ‘ Mr. Hall: Then you admit that, don’t you ?
“ Mr. Warner: That is a fact that they did, but that has nothing to do with it in mitigation of damages.”
•Acting upon the suggestion of the judge, an offer in writing was filed and is incorporated in the bill of exceptions, containing, among other things, the following:
“ That its damage consisted of the cost of removal of its buildings consisting of a warehouse and stables adjacent thereto, being about 24 feet by 140 feet in dimensions, and the removal of its platform ten-ton scales; the cost of necessary changes to said buildings and scales to accommodate them to its new location; the cost and wages of extra help during the period of such removal; the damage to said buildings by reason of such removal; and the loss of time and the value thereof to its teams, wagons, and men during the period covered by the actual work incident to the said separation improvements, it eliminating any and all claims for loss of profits to its said business suffered by reason of its interruptions by said, improvements, the same being, in this instance, incapable of calculation.”
The judge directed a verdict for the city. The case is brought here by writ of error.
It is the claim of the appellant that it was entitled to recover damages for whatever injury was done it, and that under the proofs and the admission made in the lower court a judgment should be entered here for $1,807.40. Counsel for the city say:
“ Appellant is not entitled to the relief sought for, for the following reasons:
“1. Before the work of the separation of grades commenced the appellant company voluntarily abandoned the property abutting the improvement.
“2. The damages now asked for it would itself have been compelled to pay at the termination of its lease eight months from the date of its removal.
“3. Appellant occupied land belonging to one of the railroads, and by an agreement with the city of Detroit the railroad expressly waived all damages suffered by it on any property owned or controlled by it, and the statute does not give the right to recover under those circumstances.
“4. In any event the elements of damage submitted are not the elements which go to make up the value of a ‘ term ’ in the event of the eviction of a tenant.”
As to the first, second, and fourth of these propositions, it may be said that they were not suggested upon the trial below. Had they been, it is likely we would have a different record here.
Is the claim of the city that the appellant is not entitled to damages well taken ? It has been repeatedly held that a tenant’s term is property. See Allison v. Chandler, 11 Mich. 542, and the cases there cited. These proceedings were brought under section 4229 and succeeding sections of the Compiled Laws. Section 4239 provides for the filing of the petition for the purpose of the separation of grades, “and for making just compensation to all parties sustaining damage thereby,” and the petition shall contain the names “of all persons interested as mortgagees, lessees or otherwise in the properties of such companies of the owners and others interested in the property, * * * including those in possession of the premises.” The petition shall ask that a jury be summoned to ascertain the necessity, etc., and “to ascertain and determine the just compensation to be made * * * to the persons interested in said abutting property.” Section 4244 provides that the jury shall ascertain, and determine the amount of damages to such property “as may be damaged thereby, * * * and shall award to the parties interested compensation for such damages. * * * And the said jury shall assess in their said verdict the total compensation by them awarded for damages for such property as may be damaged by such improvements to the parties interested therein.” The language of the statute is sufficiently broad to take care of the interests of the appellant company. See, also, section 2, art. 18; section 14, art. 18; section 9, art. 15 — of the State Constitution. The appellant was in possession under an existing lease. It was no party to the agreement between the city and the railroad companies. Its rights were not and could not be taken from it by the agreement entered into between them. The judge should have allowed the case to go to the jury. We do not think, however, the record presents the question of the amount of damages in such a way as to justify us in entering a judgment in this court.
Judgment is reversed; and new trial ordered.
McAlvay, Grant, Blair, and Ostrander, JJ., concurred. | [
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Grant, J.
(after stating the facts). We think the court erred. The contracts with the farmers were made by the plaintiff. The farmers were under no obligation to take the mills, unless they were such as they had ordered and contracted for. The contracts with the farmers were at least a part of the consideration for the contract between plaintiff and defendants. The defendants were to deliver the windmills to the farmers and to put them up. They performed that part of the contract by der livering them. Under the evidence of the defendants the farmers promptly refused to accept them, because they were not what they had contracted for. If this were the fact, the farmers were under no obligation to accept them; neither were the defendants. The question of fraud should have been submitted to the jury under the proper instructions.
If it be the fact that the mills were not those ordered by the farmers, and the plaintiff was notified thereof, and was in substance also notified that the farmers refused to accept them, and the plaintiff had the opportunity to repossess itself of them, the plaintiff could not recover.
Judgment reversed, and new trial ordered.
Moore, C. J., and Carpenter, Montgomery, and Ostrander, JJ., -concurred. | [
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] |
Moore, O. J.
This is a suit commenced to recover sums of money expended for the support of a poor person. The case was tried before the circuit judge, who made the following findings:
“Finding oe Facts.
“Some time prior to December 27, 1899, one Annie Schram had married one Lon Johnson, and had separated from him, and was living in the village of Howell, Livingston county, Mich. She had two small children. Prior to December 27, 1899, she had received considerable help as an indigent poor person from the supervisor of the township of Howell. On the 27th day of December, 1899, at the village of Howell, she was married to one William Wood. They lived together as husband and wife in the village of Howell continuously until some time in March, 1900. Mr. Wood was away from home for three or four weeks during that time looking for a farm upon which-'they could move and live. He returned to Howell, and some time in March, 1900, Mr. and Mrs. Wood moved to a farm in the township of Brighton, Livingston county, Mich.
“Subsequent to December 27, 1899, the township board of Howell paid a rent bill and a bill for some wood furnished Mrs. Johnson; Mrs. Johnson and Mrs. Wood being the same person. Those bills seem to be for items furnished to Mrs. Johnson, and allowed by the township board, and paid for a long time after they were furnished.
“ Mr. and Mrs. Wood lived in the township of Brighton on a farm until March 20, 1902, and they received no help whatsoever from any poor authorities while in Brighton. Both Mr. and Mrs. W ood were healthy and strong. Mr. Wood had sufficient work"'at Brighton to support the family. They moved from Brighton to the village of South Lyon, Oakland county, on or about March 20,1902, taking with them these small children of Mrs. Wood.
“ At that time Wood had about $40 in money and Mrs. Wood about $20. They also had sufficient potatoes, pork, flour, and provisions, such as raised on a farm, to support the family a few months.
“ They also had household furniture to an amount which, with the provisions mentioned above, made three loads. They paid the cost of the teams in moving. It is said Wood made the statement when moving that they had enough to keep themselves at South Lyon six months if he did not get a day’s work. His statement was not strictly accurate. It probably referred to the items of flour, pork, and potatoes, or else he intended to include the money above mentioned. Both Mr. and Mrs. Wood were at that time able-bodied persons and healthy.
“Wood worked a little at South Lyon, but within two or three weeks abandoned Mrs. Wood and her children, and then ceased to support them. He left South Lyon, and returned to Brighton, Livingston county. He worked thereafter in several places, but returned to South Lyon only for two or three short visits with his family, and, before September 24th following, had ceased visiting his family, and has not since lived with nor supported his wife.
“ Sometime in April, 1902, Mrs. Wood applied to Prank Yowels, supervisor of the township of Lyon, in which the village of South Lyon is situated, for aid for herself and children. It was furnished and continued during the summer. In September she stated to Mr. Yowels she preferred to live at Howell, where she had friends, and wished to go there, but had no money to pay the cost of moving, and asked for aid for that purpose.
“After consultation with the poor commissioners of Oakland county Mr. Yowels, as supervisor, on September 24th, furnished the tickets for transportation of Mrs. Wood and her children from South Lyon to Howell, and gave them to her. He also paid the drayage for hauling her household goods to the depot in South Lyon and freight on goods. These expenses were paid by the poor commissioners of Oakland county. Mrs. Wood had no money at that time.
“It is claimed by the plaintiff that when Mr. Vowels was asked for transportation he refused it until Mrs. Wood promised not to return to South Lyon, but the evidence taken in this court fails to substantiate the claim.
“November 5, 1902, Mrs. Wood applied to the supervisor of the township of Howell for aid for herself and children, and was furnished appropriate aid to the amount involved in this suit. Her husband was at that time a resident of the county of Livingston.
“November 29, 1902, plaintiff gave notice to the defendant as required by sctions 4516, 4517, 2 Comp. Laws, and on December 29th the defendant served notice denying liability.
“Finding oe Law.
“ That on the foregoing facts the defendant is not liable to plaintiff.”
There are assignments of grror in relation to the question of pleadings and upon the admission of testimony. It was stated, however, upon the oral argument, that a decision upon the merits was desired. The question, then, is whether, upon the state of facts found by the circuit judge, he was right in holding that the defendant is not liable. It is the claim of counsel for plaintiff that under the provisions of sections 4514 to 4518, 2 Comp. Laws, defendants are liable. We think it very clear that when Mr. and Mrs. Wood moved to Oakland county they were not paupers. It was not until after Mr. Wood deserted her that Mrs. Wood needed help from the poor authorities. It is equally clear that it was then the duty of the poor authorities of Oakland county to furnish her with aid. See 2 Comp. Laws, § 4502; Superintendents of Poor of Kalkaska Co. v. Superintendents of Poor of Grand Traverse Co., 120 Mich. 247.
Did the removal of Mrs. Wood to Livingston county, under the circumstances found by the circuit judge, bring the case within the provisions of sections 4514 to 4518, 2 Comp. Laws, as claimed by counsel for the plaintiffs ? A reference to these sections will show that the intent with which the removal is brought about is a very important item. It would be necessary, in order to secure a conviction under section 4514, to show that the intent existed to make the county to which the removal was made chargeable with the support of the pauper. A like intent must be shown before the poor authorities from which the pauper came can be charged with his or her support. See Superintendents of Poor of Kalkaska Co. v. Superintendents of Poor of Grand Traverse Co., 120 Mich., •at page 249. In this case the court did not find an intent on the part of the poor authorities of Oakland county, in aiding Mrs. Wood to move to Livingston county, to make her a charge upon that county. The record shows that Mrs. Wood had lived in Livingston county a great many years. Her friends and acquaintances all lived there. Mr. Vowels testified that Mrs. Wood requested him to furnish means to enable her to go to Livingston county.
“ Q. And what is the fact as to your making any suggestion to her with reference to her going back ? * * *
“ A. I asked Mrs. Wood if there was any one there to take care of her, provided she was furnished transportation. She said if she could get to Howell she would be all right, as she had friends there. I asked her that question after she asked for transportation. I am sure I did not make any suggestion of that kind before she asked for transportation to Howell. I did not advise her to go back, or anything of that kind. To the best of my recollection I did not ask her to go back, and no one else asked her under my instructions that I know of, or within my knowledge.”
Dr. Henry, who purchased the tickets, says:
“Mrs. Wood repeatedly assured Mr. Vowels that* if she could only get back to Howell, where the friends and acquaintances of herself and husband lived, she would better her condition and would be able to obtain sufficient employment to enable her to support and maintain herself and children.”
Mrs. Wood’s testimony upon the trial does not seriously controvert this, though she made a very different state: ment to the poor authorities of Livingston county. We think the testimony would not fairly justify the inference that the removal of Mrs. Wood was brought about with the intent to make her a charge upon the poor authorities of Livingston county, but that her return was voluntary.
Judgment is affirmed.
Carpenter, Grant, Montgomery, and Hooker, JJ., concurred. | [
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Ostrander, J.
On or about December 17, 1902, pursuant to the provisions of Act No. 173, Pub. Acts 1897 (2 Oomp. Laws, §§ 4193-4197), the commissioner of highways for the township of Union, in the county of Grand Traverse, upon the joint request of a majority of the overseers of highways of such township in writing, and with the assent of the township board of the township purchased for the use of the township, upon credit, from a manufacturer of road machines through the agent of such manufacturer, a road roller. In accordance with the contract of purchase and sale, a township order was drawn, registered by the clerk of the township, a true copy filed by him in his office, delivered to the vendor, and by the vendor assigned to relator and plaintiff in certiorari, a copy of which order follows:
“To the Treasurer of Union Township in Grand Traverse County, State of Michigan:
“Whereas, the commissioner of highways of your said township has heretofore duly contracted for and purchased of C. W. Carter & Co., in pursuance of the laws of the State of Michigan, one Carter patent snow roller:
“You are hereby directed and required to pay to said C. W. Carter & Co., of St. Johns, Michigan, or order, out of the highway fund of said township ($500) five hundred dollars, the contract price therefor, as per contract as follows: $100 on the 1st day of March, 1904; $100 on the 1st dayof March, 1905; $100 on the 1st day of March, 1906; $100 on the 1st day of March, 1907; $100 on the 1st day of March, 1908 — with interest at the rate of six per cent, per annum, payable annually, from the 20th day of December, 1902, at First National Bank, in Traverse City, Michigan.
“Witness our hand and seal as highway commissioner and supervisor of said township, this 17th day of December, 1902.
“D. McAley, Highway Commissioner.
“ C. M. Hager, Supervisor.”
Nothing has been paid on the order. It is alleged that no money has been provided by the township for payment of the order, because the clerk of the township, respondent below, declined to certify the amounts due upon the order as sums to be included in the budget of the township. Relator filed its petition in the circuit court for the county of Grand Traverse for a mandamus to compel the clerk to make the necessary and proper certification, so that a tax could be spread to pay the amount due on the order. To this petition an answer was filed, and a replication, which called for the framing of issues, and 25 issues were framed and ordered to be submitted to be determined as issues of fact. The matter was brought to hearing before the court and a jury.
The answer of the respondent to the order to show cause alleges various reasons why the contract made for the road roller ought not to be performed on the part of the township, and sets out conduct of the supervisor, at the time the contract was procured and the order given, in support of the claim that proper official, action was wanting. In the progress of the hearing in the circuit court, the supervisor, whose name* appears in the action to purchase the machine, was called as a witness for relator and gave testimony. The jury were excused from the court-room, and the court said to counsel, among other things:
“Theaction of the township board as such is necessary to constitute a legal contract or agreement for the purchase of this machine. Whatever it may be, under the statute some action must be taken. In this case, the supervisor’s testimony is that he was to receive and did receive compensation from the owners of the machine. This compensation consisted in pay for the time which he spent in working for them. In this case it was only $22.50 —probably an amount that was not more than sufficient to pay him, but in the view that I take of the matter it does not matter. It is not material whether he received from the seller of the machine $1 or $100. An officer acting for and in behalf of the township cannot be in the employ of a party contracting with the township in relation to the very matter which is to come before the board, and the fact that in this case the compensation was none too much, probably, I consider is entirely immaterial, and the fact that the parties were honest and that he was 'acting in an honest manner — simply got his day’s pay — is immaterial also. The policy of the law is not such that these wholesalers can go around and employ township officers to go around with them in order to get the article sold, and then sit on the township board and act in behalf of the township. Now, for this reason, it seems to me that, unless this testimony is to be contradicted, the facts that I have indicated would be conclusive of the question in this case.”
After hearing from counsel, the jury were recalled, and the supervisor was again called to the stand and gave further testimony, which, while it may be said to soften, in no way changes, the facts as stated by the trial judge. The court thereupon iustructed the jury that there was no question for their consideration, discharged them, and denied the writ.
It seems to be conceded upon the record that the township never accepted or used the road roller. Counsel for respondent states in his brief that the “sole question decided by the circuit court was that the so-called order was voidable by having been obtained by means contrary to public policy.” The granting of the writ of mandamus by a court involves to some extent the exercise of discretion. The relator occupies no different position, and has no greater legal or equitable right to consideration, than its assignor would have.
The determination of the court below was warranted, and the judgment is affirmed.
Moore, C. J., and Carpenter, McAlvay, and. Hooker, JJ., concurred. | [
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Montgomery, J.
The plaintiff sued for damages for injuries sustained by her husband which are claimed to have caused his death. Plaintiff recovered, and defendant brings error. The decedent, while walking with his son on South street in the defendant village, was tripped and thrown forward by one end of a loose plank. The son stepped on the plank near the end, and it appears that the stringers were defective and decayed, causing the plank to become loosened and fly up. It also appears that the stringers were originally so placed as to leave 12 to 14 inches of the planks overhanging on one side of the walk. Complaint is made of rulings admitting testimony as to the condition of the walk at points on the same block and near to the place of injury. Complaint is also made of rulings as to notice of the defect, and of the instructions upon that subject.
The undisputed testimony showed that the village street commissioner had his attention called by a member of the common council to the sidewalk on South street. This was shortly before the accident. He walked over the entire length of it, and directed repairs to be made, but did not discover the defect in question. He employed one Wood to make these repairs, instructing him to fix the sidewalk on the north side of South street between Pine River street and Elm street, to find out what was defective and fix it. The inspection made by the street commissioner was by walking over the walk, and that made by Wood was made in the same manner. Neither discovered the defects. We have no doubt that, as bearing upon the question of notice, it was competent to show the condition of this walk through the block, particularly as it was to this walk as an entirety that the attention of both the street commissioner and his workman was called. Strudgeon v. Village of Sand Beach, 107 Mich. 496, and cases cited; Will v. Village of Mendon, 108 Mich. 251.
The instruction upon the subject of notice was as follows :
“Now, in connection with that, the defendant has asked me to charge, and I do charge you, respecting ordinary sidewalks, such as the one in question in this case — ■ I charge you that there is no duty on the part of the defendant to make an inspection of the substructure, in the absence of actual notice. Municipalities are only liable for such defects in sidewalks as are apparent or are suggested by appearances, or which are disclosed by a test in the nature of the ordinary use of such walks.”
This instruction was given at the request of defendant. The court added on his own motion the following:
“I would explain in that connection_by ‘ordinary use of such walk,’ or by the use of the words ‘ in the nature of the ordinary use of such walks,’ is not meant such as a person walking over the walk with no regard for the walk would have, but such as a person going over the walk in the ordinary way that people go over walks, at the time being mindful of its condition, and having particularly in mind the duty of ascertaining the condition of the walk with reference to whether it was safe and fit for public travel. If they made that kind of an inspection, they would have discharged their duty, even though they might have failed to have found the loose board. And if the board at that time, you should find from the evidence, was insecure, and, as I said before, in a condition so it was not safe and fit for public travel, then the village would not be liable in this case.”
We think this was a very proper modification of defendant’s request to make it applicable to the case in hand. It is to be kept in mind that the commissioner had been notified that a strip of walk, including that in which the defect causing decedent’s injury was located, was defective. If the casual examination of an officer’s passing over the walk would be sufficient in ordinary cases, it does not follow that it would be due care in such circumstances.
An examination of the cases discloses that a distinction has often been noted between cases in which there was a mere neglect of the authorities to ascertain a condition, unaccompanied by any circumstances which should have given rise to a suspicion' of danger calling for investigation, and cases in which such circumstances exist. This distinction is pointed out by Mr. Justice Hooker in Thomas v. city of Flint, 123 Mich., at page 37 (47 L. R. A. 499). See, also, Township of Medina v. Perkins, 48 Mich. 67, and Randall v. Township of Southfield, 116 Mich. 501. And note the limitations placed on the latter case by Mr. Justice Hooker in Thomas v. City of Flint, at pages 29 and 30. There may be notice to the authorities which, not amounting to exact notice of the defect, is yet such as should put a prudent man on inquiry, and of itself create a duty to examine. Thomas v. City of Flint, at page 27. This being so, it follows that the care in making an examination required is such as a prudent man, having such notice, would exercise under the circumstances, and it cannot be said as matter of law that merely walking over the sidewalk in a casual way is such care.
It is urged that this instruction as given imports that there is a duty of inspection, and that it conflicts with the rule laid down by the court in Thomas v. City of Flint, supra. The case of Thomas v. City of Flint does not hold that there may not be a duty of inspection in some circumstances. On the contrary, as pointed out above, the duty to inspect may arise when the officials have actual notice of conditions which call for inspection. We think the testimony as to examination of the walk, tests made two and three months after the injury, was not too remote.
Error is assigned upon a ruling admitting a question to Dr. Porter, stating hypothetically the circumstances of the injury to the deceased, and asking whether an injury such as the witness discovered, produced in this manner, could cause an injury to the medulla. This question was objected to on two grounds, first, because it did not call for a statement that such an injury would be likely to cause such results; and, second, because it permitted the doctor to use knowledge of the patient’s condition not embodied in the question. The first objection went rather to the weight of the testimony than its admissibility. The latter would, under Fuller v. Mayor, etc., of Jackson, 93 Mich. 301, be entitled to weight, were we not satisfied that the opinion of the doctor was based upon conditions discovered by him and previously fully detailed to the jury.
We think there was a case for the jury.
Judgment affirmed.
Carpenter, McAlvay, and Ostrander, JJ., concurred with Montgomery, J. | [
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PER CURIAM.
Defendant, Arthur Blackwell, II, appeals as of right the trial court’s judgment in favor of plaintiffs in this action alleging breach of contract, common-law conversion, statutory conversion, and breach of fiduciary duty. Defendant also challenges the trial court’s orders granting summary disposition for plaintiff Local Emergency Financial Assistance Loan Board (the Board) on defendant’s counterclaims and denying defendant’s motion for a judgment notwithstanding the verdict (JNOV), remittitur, or a new trial. Because the trial court properly granted summary disposition in favor of the Board on defendant’s counterclaims, the court did not abuse its discretion by granting the Board’s motion to amend its complaint, the jury’s verdicts were not legally inconsistent, and the court properly denied defendant’s motions for JNOV and remittitur, we affirm.
This appeal stems from defendant’s service as the emergency financial manager (EFM) for the city of Highland Park (the City) from April 2005 to April 2009. The jury determined that, during that time, defendant made unauthorized payments to himself from the City totaling $264,000. The trial court entered an amended judgment in favor of plaintiffs and against defendant in the amount of $332,837.11, which included $264,000 plus attorney fees and costs.
I. MOTION FOR SUMMARY DISPOSITION
Defendant first argues that the trial court erred by granting summary disposition in the Board’s favor on his countercomplaint that alleged breach of contract, unjust enrichment, and fraud against the Board. We review de novo a trial court’s decision on a motion for summary disposition. Lakeview Commons Ltd Partnership v Empower Yourself, LLC, 290 Mich App 503, 506; 802 NW2d 712 (2010). Summary disposition under MCR 2.116(C)(7) is properly granted if the plaintiffs claims are barred by immunity granted by law. Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008). The applicability of governmental immunity is a question of law that we review de novo. Snead v John Carlo, Inc, 294 Mich App 343, 354; 813 NW2d 294 (2011). “A motion for summary disposition brought pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the complaint . . . .” Feyz v Mercy Mem Hosp, 475 Mich 663, 672; 719 NW2d 1 (2006). “[T]he motion tests whether the complaint states a claim as a matter of law, and the motion should be granted if no factual development could possibly justify recovery.” Id. Finally, a motion pursuant to MCR 2.116(C)(10) tests the factual sufficiency of a complaint. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). A motion under subrule (C)(10) is properly granted if, after viewing the evidence in the light most favorable to the nonmoving party, “there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law.” Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
Defendant argues that the trial court erred by granting summary disposition for the Board on his breach of contract claim because he, former Governor Jennifer Granholm, and the Board had an understanding that modified the terms of his written agreement with the Board and entitled him to compensation after his first year serving as the EFM of the City. According to defendant, Governor Granholm directed that he be paid. In granting summary disposition for the Board, the trial court determined that the Governor did not have authority to enter into an oral modification of defendant’s contract.
The authority of a state official to contract with an EFM is governed by statute. MCL 141.1218G) states:
If the governor determines that a financial emergency exists ..., the governor shall assign the responsibility for managing the local government financial emergency to the local emergency financial assistance loan board created under the emergency municipal loan act.... The local emergency financial assistance loan board shall appoint an emergency financial manager.... The emergency financial manager shall be entitled to compensation and reimbursement for actual and necessary expenses from the local government as approved by the local emergency financial assistance loan board. [Emphasis added.]
Thus, according to the statute, the Board has the sole statutory authority to appoint and compensate an EFM. The Governor’s authority is limited to determining whether a financial emergency exists and assigning the responsibility for managing the emergency to the Board. “Public officers have and can exercise only such powers as are conferred on them by law, and a State is not bound by contracts made in its behalf by its officers or agents without previous authority conferred by statute or the Constitution.” Roxborough v Mich Unemployment Compensation Comm, 309 Mich 505, 510; 15 NW2d 724 (1944) (quotation marks and citation omitted). “[A]ll persons dealing with such officers are charged with knowledge of the extent of their authority or power to bind the State, and are bound, at their peril, to ascertain whether the contemplated contract is within the power conferred.” Id. at 511 (quotation marks and citation omitted). Defendant’s breach of contract claim fails as a matter of law because the Governor had no authority to modify the agreement and order that defendant be compensated. That authority rested solely with the Board. MCL 141.1218(1). Because the alleged oral agreement that defendant claims the Governor entered into was without legal effect, it did not give rise to a question of fact regarding whether the Board breached its contract with defendant. The trial court properly granted summary disposition for the Board pursuant to MCR 2.116(0(10) on defendant’s breach of contract claim.
The trial court also properly granted summary disposition for the Board on defendant’s unjust-enrichment claim. As the trial court correctly noted, an unjust-enrichment claim is available “only if there is no express contract covering the same subject matter.” Belle Isle Grill Corp v Detroit, 256 Mich App 463, 478; 666 NW2d 271 (2003). It is undisputed that there was an express, written contract setting forth defendant’s compensation as the EFM. Accordingly, the trial court properly granted summary disposition for the Board under MCR 2.116(C)(8) and (10) on defendant’s claim of unjust enrichment.
Further, with respect to defendant’s fraud claim, the trial court properly granted summary disposition under MCR 2.116(C)(7) and (8) because governmental immunity barred the claim and defendant failed to plead in avoidance of governmental immunity. The governmental tort liability act (GTLA), MCL 691.1401 et seq., provides that “a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.” MCL 691.1407(1). The term “ ‘[governmental agency’ means this state or a political subdivision.” MCL 691.1401(a). MCL 691.1401(g) defines “state” as “this state and its agencies, departments, commissions, courts, boards, councils, and statutorily created task forces.” (Emphasis added). The Local Emergency Financial Assistance Board is a state board located within the Department of Treasury. MCL 141.932(1). Therefore, the Board is a governmental agency under the plain language of the GTLA.
Defendant’s fraud claim was based on the alleged failure to fully disclose the City’s finances and the actual state of the City before defendant accepted the appointment as the City’s EFM and on defendant’s assertion that he was led to believe that he would be compensated for his work after the first year. The Board was exercising a governmental function when it ap pointed defendant as the EFM of the City, negotiated his compensation, and executed an employment contract and addenda. A “governmental function” is “an activity that is expressly or impliedly mandated or authorized by . . . statute ... or other law.” MCL 691.1401(b). As previously discussed, MCL 141.1218(1) authorized the Board to appoint defendant as the EFM and approve his compensation. Further, MCL 141.932(2)(b) of the Emergency Municipal Loan Act, MCL 141.931 et seq., provides that “[t]he board has the powers necessary to carry out and effectuate the purposes and provisions of this act,” including the power “to make, execute, and deliver contracts.. . .” The alleged conduct on which defendant based his fraud claim constitutes a governmental function because it was conduct that was expressly authorized by statute. Because defendant failed to plead an applicable exception to governmental immunity, the trial court properly granted summary disposition for the Board on his fraud claim. See Mack v Detroit, 467 Mich 186, 203; 649 NW2d 47 (2002) (“[A] party suing a unit of government must plead in avoidance of governmental immunity.”).
II. MOTION TO AMEND COMPLAINT
Defendant next argues that the trial court abused its discretion by granting the Board’s motion to amend its complaint to add the Attorney General as a plaintiff after the close of defendant’s proofs. Specifically, he argues that the trial court erred by determining that he would not be prejudiced if the court allowed the amendment. Defendant failed to preserve this issue for appellate review by setting forth any reason why he would be prejudiced by the amendment during trial. In fact, counsel for defendant stated: “In terms of prejudice, your Honor, if the attorney — well, I withdraw. Never mind.” As this Court has recognized, “[t]he purpose of the appellate preservation requirements is to induce litigants to do what they can in the trial court to prevent error and eliminate its prejudice, or to create a record of the error and its prejudice.” People v Mayfield, 221 Mich App 656, 660; 562 NW2d 272 (1997). Defendant cannot now complain that the trial court abused its discretion by determining that he would suffer no prejudice when he himself failed to offer any reason below regarding why he would be prejudiced. Indeed, as previously stated, defense counsel withdrew his objection with respect to prejudice, stating: “I withdraw. Never mind.” “ ‘A party may not take a position in the trial court and subsequently seek redress in an appellate court that is based on a position contrary to that taken in the trial court.’ ” Blazer Foods, Inc v Restaurant Props, Inc, 259 Mich App 241, 252; 673 NW2d 805 (2003) (citation omitted).
In any event, the trial court properly determined that defendant would suffer no prejudice as a result of the amendment. A motion to amend a complaint should ordinarily be granted absent any apparent or declared reason, such as undue delay on the part of the moving party or undue prejudice to the nonmoving party. Cole v Ladbroke Racing Mich, Inc, 241 Mich App 1, 9-10; 614 NW2d 169 (2000). Prejudice, in the context of a motion to amend a complaint, “exists if the amendment would prevent the opposing party from receiving a fair trial. . . .” Weymers v Khera, 454 Mich 639, 659; 563 NW2d 647 (1997). Here, the amendment did not prevent defendant from receiving a fair trial. We agree with the trial court that none of the claims or theories changed as a result of the amendment. The Board and the Attorney General represented the same general interest and pursued the same claims with the same evidence under the same theories. Therefore, defendant was not prejudiced by the amendment, and the trial court did not abuse its discretion by granting the Board’s motion to amend the complaint.
III. MOTION FOE JNOV
Defendant next argues that the trial court erred by denying his motion for JNOV because the jury’s verdicts were legally inconsistent and against the great weight of the evidence. Initially, we note that defendant has abandoned his argument that the verdicts were against the great weight of the evidence because he failed to present any argument or offer any legal authority in support of that claim. See Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184, 220; 761 NW2d 293 (2008) (“ Tt is not enough for an appellant in his brief simply to .. . assert an error and then leave it up to this Court to . .. unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.’ ”), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). With respect to defendant’s argument that the jury’s verdicts were inconsistent, defendant failed to preserve that argument by raising it in his motion for JNOV below. Our review of unpreserved issues is limited to plain error affecting substantial rights. See Veltman v Detroit Edison Co, 261 Mich App 685, 690; 683 NW2d 707 (2004).
This Court must make “ ‘every attempt ... to harmonize a jury’s verdicts.’ ” Lagalo v Allied Corp, 457 Mich 278, 282; 577 NW2d 462 (1998) (citation omitted). “ ‘Only where verdicts are so logically and legally inconsistent that they cannot be reconciled will they be set aside.’ ” Id. (citations omitted). This Court must take “a careful look, beyond the legal principles underlying the plaintiffs causes of action, at how those principles were argued and applied in the context of this specific case.” Id. at 284-285. “ ‘[I]f there is an interpretation of the evidence that provides a logical explanation for the findings of the jury, the verdict is not inconsistent.’ ” Id. at 282 (citation omitted).
Defendant argues that the jury’s determination that he did not breach his contract with the Board is legally and logically inconsistent with its determinations that he breached his fiduciary duty and converted the City’s funds. Defendant’s argument lacks merit. A review of the legal principles underlying each claim and an examination of how the principles were applied in this case demonstrate that the jury’s verdicts were not inconsistent. With respect to the breach of contract claim, the trial court instructed the jury as follows:
The issue for you, the jury, is whether Defendant breached the contract with the Plaintiff by receiving additional funds from Highland Park. If the contract — or excuse me, if the contracts between Plaintiff and Defendant only allowed Defendant to receive compensation from the Plaintiff, then Defendant breached the contracts. If, on the other hand, the contracts between Plaintiff and Defendant did not prevent Defendant from receiving additional compensation from Highland Park, the Defendant did not breach the contracts.
In returning a verdict of no cause of action on the breach of contract claim, the jury apparently determined that nothing in the contract or the addenda expressly prohibited defendant from receiving additional compensation from the City. The fact that the contract and addenda did not prohibit such conduct, however, does not mean that it was authorized. Whether defendant’s compensation was authorized was the core issue of the breach-of-fiduciary-duty and con version claims. With regard to the claim of a breach of fiduciary duty, the jury was asked to determine whether defendant breached his position of trust as the EFM. With respect to the conversion claims, the jury was asked to determine whether defendant wrongfully exerted dominion over the City’s property. In light of these legal principles and the undisputed fact that nothing in the parties’ contract or the addenda authorized defendant to compensate himself with City funds, a reasonable jury could have logically concluded that defendant breached the trust placed in him and wrongfully exerted control over City funds. Because the jury’s verdicts can be reconciled and are not logically or legally inconsistent, defendant is entitled to no relief.
IV MOTION FOR REMITTITUR
Defendant next argues that the trial court abused its discretion by denying his motion for remittitur. In particular, defendant argues that because the Attorney General was added as a plaintiff, the relation-back doctrine and the three-year period of limitations on the statutory conversion claim barred recovery of the portion of the damages that were incurred outside the applicable limitations period. The trial court determined that the statute of limitations did not bar recovery of any damages because the addition of the Attorney General as a party related back to the original filing of the complaint. The trial court also determined that defendant waived his statute-of-limitations defense by failing to assert it in response to the amended complaint or the motion to amend the complaint. We review for an abuse of discretion a trial court’s decision whether to grant a motion for remittitur. Diamond v Witherspoon, 265 Mich App 673, 692; 696 NW2d 770 (2005). Whether the relation-back doctrine is applicable is a question of law that this Court reviews de novo. See Shinkle v Shinkle (On Rehearing), 255 Mich App 221, 224; 663 NW2d 481 (2003).
Generally, “the relation-back doctrine does not extend to the addition of new parties.” Miller v Chapman Contracting, 477 Mich 102, 105; 730 NW2d 462 (2007) (quotation marks and citations omitted). In Hayes-Albion Corp v Whiting Corp, 184 Mich App 410, 418; 459 NW2d 47 (1990), this Court recognized an exception to that general rule and held as follows:
[W]e find that where the original plaintiff had, in any capacity, an interest in the subject matter of the controversy, the defendant had notice of the interest of the person sought to be added as a plaintiff, and the new plaintiffs claim arises out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, then a new plaintiff may be added and the defendant is not permitted to invoke a limitations defense.
The Court further stated:
“As long as defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action against him, his ability to protect himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoke a limitations defense. This seems particularly sound inasmuch as the courts will require the scope of the amended pleading to stay within the ambit of the conduct, transaction, or occurrence set forth in the original pleading.” [Id., quoting 6A Wright, Miller & Kane, Federal Practice & Procedure (2d ed), § 1501, pp 154-155.]
In this case, as the trial court recognized, the original plaintiff — the Board — had an interest in the subject matter of the litigation. The claims of the added plaintiff — the Attorney General — were identical to those of the Board and arose out of the same conduct set forth in the original complaint. Both plaintiffs repre sented the interests of the state, and defendant was fully aware of the Attorney General’s interest given that the Attorney General filed the original complaint against defendant. In addition, there is no question that defendant was fully apprised of the claims against him and was prepared to defend against them. Further, as the trial court determined when it granted the Board’s motion to amend the complaint and as we have concluded in this appeal, defendant was not prejudiced by the addition of the Attorney General as a party. Accordingly, the trial court properly determined that the relation-back doctrine was applicable and that defendant was therefore not entitled to invoke a statute-of-limitations defense. Hayes-Albion, 184 Mich App at 418. Because the addition of the Attorney General as a party related back to the original filing of the complaint, we need not address defendant’s argument that he did not waive the statute-of-limitations defense by failing to assert it in response to the Board’s amended complaint or its motion to amend the complaint. Thus, the trial court did not abuse its discretion by denying defendant’s motion for remittitur.
Affirmed. Plaintiffs, being the prevailing parties, may tax costs pursuant to MCR 7.219.
Talbot, P.J., and DONOFRIO and SERVITTO, JJ., concurred.
Blackwell filed an original action alleging those claims against the Board in the Court of Claims, which was thereafter joined with the instant action that the Board filed against defendant in the Wayne Circuit Court.
Although MCL 141.1218 was in effect during the period relevant to this case, pursuant to 2012 PA 436, the statute is repealed effective March 28, 2013.
3 A claim alleging fraud is a tort claim. See Cummins v Robinson Twp, 283 Mich App 677, 691; 770 NW2d 421 (2009).
During the relevant period, this language, with one insignificant difference, was codified at MCL 691.1401(d).
During the relevant period, this language, with slight differences that are not significant, was codified at MCL 691.1401(c).
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] |
PER CURIAM.
In this action for mandamus, plaintiff Daulys Chico-Polo appeals as of right the trial court’s order denying his request for mandamus or declaratory relief compelling defendant, the Department of Corrections, to parole and release him to the custody and control of the United States Immigration and Customs Enforcement (ICE) for the purpose of deportation pursuant to MCL 791.234b. Because we conclude that MCL 791.234b does not apply to prisoners serving life sentences, we affirm.
Chico-Polo sought review of his file regarding his eligibility for deportation under MCL 791.234b. A memorandum addressed to Chico-Polo and dated March 16, 2011, from a Department of Corrections departmental analyst indicated that review of Chico-Polo’s file showed he was not “within the guidelines” of MCL 791.234b because he was serving a life sentence, and he would accordingly “not be eligible to be deported under the provisions” of the statute. In response, Chico-Polo filed a Step I grievance with the Department of Corrections. The department denied his grievance on April 18, 2011. Chico-Polo thereafter filed a Step II grievance, which the department denied on June 1, 2011. Finally, ChicoPolo filed a Step III grievance, which the department denied on July 7, 2011. Thereafter, Chico-Polo filed two separate requests with the Department of Corrections for declaratory rulings. The department did not respond to either request. Under the department’s administrative rules, unanswered requests are deemed denied.
Having exhausted his administrative remedies, Chico-Polo filed a pro se complaint for mandamus or declaratory relief in the trial court on September 19, 2011. In his complaint he alleged that defendant was required to parole and release him to the custody and control of ICE for the purpose of deportation pursuant to MCL 791.234b because he had already served more than half of his statutory minimum of 20 years. His complaint alleged that 20 years was his statutory mini mum because after 20 years he would be eligible for parole despite the fact that he was serving a life sentence.
On October 31, 2011, defendant filed a brief in response to Chico-Polo’s mandamus complaint, arguing that MCL 791.234b was not applicable to prisoners who were serving life sentences. Chico-Polo filed a pro se brief in response to defendant’s brief on November 10, 2011, wherein he argued that the Legislature clearly intended to impose a minimum sentence of 20 years for violation of MCL 333.7401(2)(a)(i). The trial court denied Chico-Polo’s requests for relief in a written opinion, stating:
This Court finds there is nothing in the plain language of [MCL 791.234b] that precludes its application to the present case. Under MCL 791.234(7)(b), a prisoner sentenced to life imprisonment under [MCL 333.7401(2)(a)(i)] is subject to parole board jurisdiction and may be placed on parole after having served ... 20 calendar years. Since this is a statutory minimum, Plaintiff must serve the entire 20 years before being considered for parole and deportation under [MCL 791.234b]. Plaintiff will be parole eligible on July 16, 2017 and would be subject to consideration for deportation under [MCL 791.234b] at that time.
On this basis, the trial court denied Chico-Polo’s request for mandamus. Chico-Polo now appeals the trial court’s order and opinion as of right.
Chico-Polo was convicted of delivering or manufacturing a controlled substance greater than 650 grams, MCL 333.7401(2)(a)(i), and was sentenced to life imprisonment on August 5, 1998. His life sentence does not, by its terms, provide a minimum sentence from which to calculate his eligibility for parole. But a provision of the Corrections Code, MCL 791.201 et seq., states that prisoners sentenced for violations of MCL 333.7401(2) (a) (i) who have served 20 years of their sentence are “subject to the jurisdiction of the parole board and may be placed on parole” in accordance with several specific conditions. MCL 791.234(7). Below, and now on appeal, Chico-Polo argues that the 20-year minimum for parole eligibility for individuals given life sentences should be held to be the “minimum sentence” required by MCL 791.234b(2)(b). Defendant responds by arguing that a life sentence, as such, does not have a “minimum sentence” from which to calculate eligibility under MCL 791.234b (2) (b) and, therefore, the trial court properly denied Chico-Polo’s application for a writ of mandamus. The parties have not supported their arguments beyond merely announcing their respective positions, but nevertheless, as presented, the issue before us is one of statutory interpretation. Specifically, we must determine whether MCL 791.234b applies to prisoners who are serving life sentences but are nonetheless eligible for parole.
Issues of statutory interpretation are questions of law that we review de novo. Driver v Naini, 490 Mich 239, 246; 802 NW2d 311 (2011). The goal of statutory interpretation is to discern the intent of the Legislature by examining the plain language of the statute. Id. at 246-247. “When the language is clear and unambiguous, we will apply the statute as written and judicial construction is not permitted.” Id. at 247. “ ‘Courts may not speculate regarding legislative intent beyond the words expressed in a statute.’ ” Mich Ed Ass’n v Secretary of State (On Rehearing), 489 Mich 194, 217; 801 NW2d 35 (2011) (citation omitted). The plain meaning of a statute’s words provide the most reliable evidence of the Legislature’s intent. United States Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing), 484 Mich 1, 13; 795 NW2d 101 (2009). “Unless defined in the statute, every word or phrase should be accorded its plain and ordinary meaning, taking into account the context in which the words are used.” Tuggle v Dep’t of State Police, 269 Mich App 657, 663; 712 NW2d 750 (2006) (citations and quotation marks omitted).
MCL 791.234b provides in pertinent part:
(1) [T]he parole board shall place a prisoner described in subsection (2) on parole and release that prisoner to the custody and control of the United States immigration and customs enforcement for the sole purpose of deportation.
(2) Only prisoners who meet all of the following conditions are eligible for parole under this section:
(a) A final order of deportation has been issued against the prisoner by the United States immigration and naturalization service.
(b) The prisoner has served at least of the minimum sentence imposed by the court.
(c) The prisoner is not serving a sentence for any of the following crimes:
(i) A violation of section 316 or 317 of the Michigan penal code, 1931 PA 328, MCL 750.316 and 750.317 (first or second degree homicide).
(ii) A violation of section 520b, 520c, or 520d of the Michigan penal code, 1931 PA 328, MCL 750.520b, 750.520c, and 750.520d (criminal sexual conduct).
(d) The prisoner was not sentenced pursuant to section 10,11, or 12 of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.10, 769.11, and 769.12.
Particularly important to resolution of the issue before us is the language included in MCL 791.234b(2)(b) which provides that in order to be paroled and released to ICE, the prisoner must have “served at least ½ of the minimum sentence imposed by the court.” (Emphasis added.) By requiring that the minimum sentence be imposed by the court, the Legislature essentially excluded prisoners, such as ChicoPolo, who are eligible for parole but serving a life term because at best, the date on which a prisoner would become eligible for parole is fixed by the Legislature pursuant to MCL 791.234 and not imposed by the court. To hold otherwise would render nugatory the plainly stated requirement that the minimum sentence be “imposed by the court.” See Robertson v Daimler-Chrysler Corp, 465 Mich 732, 748; 641 NW2d 567 (2002) (stating that “it is important to ensure that words in a statute not be ignored, treated as surplusage, or rendered nugatory”). Prisoners serving life sentences do not and never will have a minimum sentence imposed by the court. Consequently, even if we were to accept Chico-Polo’s implicit argument that the term of years after which he is eligible for parole is equivalent to a minimum sentence, the Legislature imposed this “minimum sentence,” not the trial court as required by MCL 791.234b(2)(b). Therefore, the plain language of MCL 791.234b(2)(b) excludes prisoners serving life sentences from eligibility for parole and deportation under MCL 791.234b. Any contrary interpretation ignores, treats as surplusage, or renders nugatory the words “imposed by the court” in MCL 791.234b.
Further, the conclusion that the Legislature specifically added the requirement that minimum sentences be “imposed by the court” to exclude prisoners who are eligible for parole but serving life sentences is bolstered by the presumption that the Legislature is aware of the existence of all the laws in effect when it enacts new laws. Pittsfield Charter Twp v Washtenaw Co, 468 Mich 702, 713; 664 NW2d 193 (2003). MCL 791.234b was enacted after MCL 791.234. Accordingly, we must assume that the Legislature was aware of the effect of MCL 791.234 on MCL 791.234b. Thus, presuming the Legislature was aware that MCL 791.234 effectively imposed a minimum sentence for all prisoners serving life sentences for violations of MCL 333.7401(2)(a)(i) by giving those prisoners parole eligibility after 20 years, the inclusion of the phrase “imposed by the court” in MCL 791.234b must be interpreted as a conscious decision to exclude those prisoners serving life sentences but eligible for parole.
Therefore, we conclude that the plain language of MCL 791.234b excludes prisoners serving life sentences. Accordingly, because he is serving a life sentence, Chico-Polo is not eligible for parole and deportation pursuant to MCL 791.234b.
Affirmed.
HOEKSTRA, EJ., and BORRELLO, J, concurred.
Chico-Polo is not an American citizen, and an order of deportation against him was issued in 2003.
Specifically, Mich Admin Code, R 791.1115(3) provides: “The director or his or her designee may, but is not required to, issue a declaratory ruling when properly requested. Lack of response within 30 days of receipt of the request shall be deemed a denial of the request for a declaratory ruling.”
At the time Chico-Polo was sentenced, MCL 333.7401 required a sentence of life imprisonment for violation of MCL 333.7401(2)(a)(¿). Effective March 1, 2003, the statute was amended to change the amounts of controlled substances in each subsection. Subsection (2)(a)(¿) now proscribes the delivery or manufacture of 1,000 grams or more of a controlled substance. See 2002 PA 710.
In its brief on appeal defendant also argued that mandamus was not appropriate under the circumstances of this case; however, at oral argument defendant conceded that MCL 791.234b is not discretionary and that if Chico-Polo satisfied the requirements of MCL 791.234b and defendant refused to parole and deport him, mandamus would be appropriate.
5 The functions formerly performed by the Immigration and Naturalization Service, which has been abolished, were transferred to the Department of Homeland Security under Title IV of the Homeland Security Act, PL 107-296, 116 Stat 2135.
We note that MCL 791.234 and MCL 333.7401 were enacted and effective before MCL 791.234b, which did not take effect until April 1, 2011. See 2010 PA 223. | [
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SHAPIRO, J.
Defendant, the Department of Treasury, appeals as of right an order granting summary disposition in favor of plaintiff, Ruth Magen, regarding the taxability of distributions from a private individual retirement account (IRA) whose principal wholly originated in a nontaxable 403(b) retirement account. We affirm because placing otherwise tax-free money into an IRA does not create an obligation to pay taxes on that money.
Flaintiffs now-deceased husband, Myron Magen, was formerly employed by Michigan State University. While employed, Magen contributed to a 403(b) retirement account sponsored by MSU. Upon his retirement, Magen transferred the 403(b) monies to a private IRA. The entire principal amount in the IRA had previously been held in the MSU 403(b) account. Later, Magen received distributions from the IRA and, in tax years 2005 through 2007, deducted the sums from the state income tax returns he filed jointly with plaintiff.
Defendant disagreed with the Magens’ deductions, asserting that the sums were not deductible, and assessed the Magens for the income tax deficiency. Plaintiff appealed in the Court of Claims, which granted summary disposition to plaintiff and vacated the assessments. Defendant appealed in this Court.
Resolution of this case requires that we interpret two provisions of the Income Tax Act, MCL 206.1 et seq. One defines certain retirement accounts as not subject to state income tax. A second defines certain retirement accounts that are subject to state income tax. In reaching a conclusion, our primary goal must be to give effect to the intent of the Legislature. Kessler v Kessler, 295 Mich App 54, 60; 811 NW2d 39 (2011). The intent of the statutes must be determined from an examination of their language and from an examination of the statute within the structure of the act as a whole. See Henry v Dow Chem Co, 484 Mich 483, 495; 772 NW2d 301 (2009).
In 1967, the Legislature passed the Income Tax Act, under which an individual’s taxable income is equal to that person’s adjusted gross income as defined by federal tax law, subject to certain additions and deduc tions. MCL 206.30(1). Currently, as during the tax years at issue, MCL 206.30(l)(f)(i) calls for taxpayers to deduct from their adjusted gross income any “Retirement or pension benefits received from a federal public retirement system or from a public retirement system of or created by this state or a political subdivision of this state.”
As used in [MCL 206.30(l)(f)], “retirement or pension benefits” means distributions from all of the following:
(a) Except as provided in subdivision (d), qualified pension trusts and annuity plans that qualify under section 401(a) of the internal revenue code, including all of the following:
{Hi) Employee annuities or tax-sheltered annuities purchased under section 403(b) of the internal revenue code by organizations exempt under section 501(c)(3) of the internal revenue code, or by public school systems.
(d) Retirement and pension benefits do not include:
(i) Amounts received from a plan that allows the employee to set the amount of compensation to be deferred and does not prescribe retirement age or years of service. [MCL 206.30(8)].
The parties agree that the 403(b) account in which plaintiffs money originated constituted the type of plan protected by MCL 206.30(8)(a)(iii). It is also undisputed that a private IRA would normally fall under MCL 206.30(8)(d), and would not be tax-free. Defendant argues that because the distributions came directly from the private IRA, they must be taxed regardless of the fact that the principal in the IRA originally came from a tax-free retirement plan.
It is not disputed that a state retiree may receive those tax-free benefits in the form of periodic annuity payments or in the form of a single lump-sum payment at the time of his or her retirement. It is also agreed that if a retiree opts for the lump-sum payment and places that sum in a bank account or an ordinary investment account, the amount deposited is not subject to Michigan income tax when withdrawn. The interest earned on those monies is taxable, but the principal composed of Michigan state pension benefits is not taxed upon withdrawal from the account or sale of the investment purchased.
The state, however, now asserts that if the lump-sum payment is placed into an IRA, the entire principal, i.e. all the pension income, is subject to Michigan income tax, not merely the interest or other gains based on that principal. The state bases this argument on the fact that MCL 206.30(8)(d) provides for taxation of withdrawals from IRAs. However, we cannot simply select one statute to follow and ignore the other. It is instead our responsibility to harmonize them. And in this case, harmonizing the statutes is fully consistent with the Legislature’s intent to excuse from state income tax those sums earned by state employees and placed, until their retirement, in a 403(b) account.
IRA withdrawals are fully taxable because the monies normally deposited in such accounts are “tax deferred.” Indeed, providing a mechanism for tax deferral of otherwise taxable income is the very reason for the creation of IRAs. Placement of the pension payment in an IRA provides tax deferral of federal income tax otherwise due upon receipt. Michigan’s Income Tax Act was written to operate the same way. Instead of being taxed at the time that the money is earned, the tax is not applied until the funds are distributed from the IRA. MCL 206.30.
However, in this case the income placed into the IRA was not state-tax-deferred income; it was state-nontaxable income. Obtaining deferral on applicable taxes by rolling those monies over into an IRA does not create a deferred obligation to pay Michigan income tax on monies that were not subject to state income tax to begin with. Moreover, it would be an absurd construction of the statute to conclude that the Michigan Legislature intended to make pension benefits nontaxable unless they were placed in an IRA. We can conceive of no rational basis to make such benefits taxable if placed in an IRA, but not if placed in an ordinary investment account or a bank or in a mattress. The Department of Treasury argues that Magen still got the benefit of his 403(b) account status when he rolled the funds into the IRA, but this is incorrect. The money would not have been taxed going into the IRA under any circumstances.
An IRA is a vehicle to defer taxes due, not to create taxes where none exist. The trial court thus properly concluded that plaintiffs IRA distributions were not subject to Michigan income tax.
Affirmed.
M. J. KELLY, P.J., concurred with SHAPIRO, J.
All references to “Magen” are to the decedent.
“When interpreting a court rule or statute, we must be mindful of ‘the surrounding body of law into which the provision must be integrated ----Haliw v Sterling Hts, 471 Mich 700, 706; 691 NW2d 753 (2005), quoting Green v Bock Laundry Machine Co, 490 US 504, 528; 109 S Ct 1981; 104 L Ed 2d 557 (1989) (Scalia, J., concurring).
Michigan has no authority to declare its pension benefits not subject to federal taxes.
Our dissenting colleague fairly observes that if one looks solely at the language of MCL 206.30(8)(d), the Department of Treasury should prevail. What the dissent fails to take into account, however, is that there are two statutes at issue here; the Legislature passed them both and it is not for us as judges to simply select one to apply and one to ignore. Rather, it is our role to give effect to each of them and to harmonize them consistently with their language and purpose. Moreover, we cannot, as the dissent wishes to do, resolve this case on the basis of federal income tax law since the whole point of this case is that the applicable Michigan tax law, quite unlike the federal law, does not defer state income tax on state pensions, hut rather eliminates it. Lastly, we reject the dissent’s suggestion that we have reached our conclusion because we “perceive a contrary result to be absurd.” Our opinion makes no such statement and that is not our view. The outcome suggested by the Department of Treasury and the dissent is not absurd. It is, however, based on a flawed analysis given its premise that a statute passed by the Legislature that limits the state’s authority to tax its citizens’ income can simply be ignored. | [
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Sherwood, J.
The plaintiff brings suit in assumpsit for board, and for a quantity of wheat. The claim for the wheat plaintiff received by assignment from her husband, James Oolwell, in the year 1881.
James Colwell, in 1875, took certain land of the defendant by parol agreement to work on shares, giving defendant one-half of the crops raised. He went into possession of the property under the agreement, and remained thereon ■until the month of March, 1878, and then removed therefrom. In the fall of 1877, J ames Colwell sowed about 15 or 20 acres to wheat, and defendant testified when the wheat was ready for harvest the next year he harvested and threshed the same, and after deducting the expense of harvesting, he gave to said Colwell credit for one-hálf of the proceeds of the wheat, on an account which the firm of Kinney, Adams & Co. held against him, and of which firm defendant was a member; that he made arrangement to do this with Col-well when he commenced harvesting the wheat. Colwell, however, says the defendant agreed to take his half of the wheat and pay him for it. •
It is claimed on tbe part of the defendant, and not denied by plaintiff, that in 1875 there was a valid outstanding-mortgage on the farm; that this mortgage was foreclosed while Colwell lived upon the property, and that he was made a party defendant in the foreclosure proceedings; that the property was duly sold under the decree made in the foreclosure suit, and said sale duly confirmed and a deed given to the purchaser, who was the mortgagee, in April, 1878.
On the trial the defendant offered to show the facts thus •claimed by him, and was not permitted so to do by the court. This was error. All the facts and circumstances showing, or tending to show, the relation James Colwell or the parties sustained to the property in question, were competent and should have been given to the jury. It is unnecessary to consider the other questions discussed by counsel in the case.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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McAlvay, J.
Plaintiff recovered for personal injuries which she claimed to have sustained while riding as a passenger on one of defendant’s cars when it collided with another of defendant’s cars.
There was no dispute in the case upon the question of defendant’s liability. The controversy in the case was as to the amount of damages plaintiff under her declaration was entitled to recover. The suit was begun by summons in which the amount of damages claimed was $10,000. The declaration filed later set forth certain specific items for hospital bills, medical attendance and medicines; also loss of wages from inability to work. In the ad damnum clause no other or further sum was named, the space in such clause for the insertion of such sum being left blank. Before the trial a motion was made to amend the ad damnum clause by inserting the sum of $25,000 in the blank space in the declaration and also to amend the summons by substituting $25,000 for $10,000 damages as therein claimed. Both amendments were allowed by the court over the objection of defendant and an exception was taken. For this and other errors assigned, defendant by writ of error has brought the case to this court and asks for a reversal.
The amendment to the ad damnum clause of the declaration and to the summons was asked and allowed before the jury had been selected. It cannot be claimed that this affected the cause of action upon which suit was brought. The omission to state the amount in the declaration was evidently an'oversight and the amendment was clearly allowable under the statute, section 10268, 3 Gomp. Laws. To allow the amendment to the summons, to make the damages claimed conform with the declaration, was also, under the same statute and numerous decisions of this court, within the discretion of the trial judge. The record does not show that any surprise was claimed or that a continuance and terms were demanded. The motion was properly granted. Borden v. Clark, 26 Mich. 410.
Complaint is made that the court improperly allowed evidence in the case tending to show permanent injury to the uterus, and also allowed the jury to take this into consideration in determining plaintiff’s damages, the claim being that plaintiff’s declaration was not sufficiently specific to include such injuries. The plaintiff’s declaration alleges among other things:
■ “ That she was greatly hurt, cut, bruised and injured in and about the face, head, body and shoulders and was greatly injured and bruised internally and in consequence thereof and from the effects of which the said plaintiff became and was sick, sore, and lame, disordered and seriously and permanently injured and suffered a permanent injury to the spine involving the spinal nerves and the deep fibrous structure of the spine, * * * that by reason of the injuries aforesaid she has * * * suffered great bodily pain * * * and will continue to suffer * * * for the remainder of her lifetime.”
It appears from the record that the principal contest in the case was relative to the extent and permanency of the nervous disease from which plaintiff is suffering. That fact would not deprive plaintiff of the right to recover other injury if the evidence objected to was competent and admissible under the declaration. The testimony of the attending physician was positive that this condition of the uterus was “ due to results from the injuries she received in the accident.” We think the declaration sufficient to warrant receiving the evidence.
In Montgomery v. Railway Co., 103 Mich. 46 (29 L. R. A. 287), this court in citing and approving the rule laid down in Johnson v. McKee, 27 Mich. 471, after distinguishing the latter case from Shadock v. Plank Road Co., 79 Mich. 7, and other cases, said:
“ It will be seen that the rule thus laid down does not require plaintiff to aver all the physical injuries which he sustained, or which may have resulted from, or have been aggravated by, the tort, even though they do not necessarily result from the original injury. If such injuries can be traced to the act complained of, and are such as would naturally follow from the injury, they need not be specifically averred.”
We do not agree with defendant that the injury referred to must be shown to have been the result of the injury to the spine. The injury to the spine and the consequent nervous prostration, and the injury to the uterus were both received at the time the cars collided and plaintiff was struck upon the back by the falling roof of a car. The declaration charges that she was also “greatly injured find bruised internally.” The trial court was correct in holding that under the declaration the evidence was admissible.
Defendant also had every opportunity freely given for a personal examination of plaintiff to discover the injuries from which she was suffering, and its surgeons made such examination long before the trial of the case, therefore no claim of surprise could be made as to conditions then existing.
Defendant requested the court to charge that there was no evidence of any injury to the spinal cord or any injury to the nerves themselves; and also that plaintiff was suffering only from a functional and not an organic disorder. These requests were properly refused. There was abundant proof in the case from which the jury could find that the nerves were injured and that the trouble was organic. Dr. Kennedy testified:
“There are probably six or seven of these nerves involved. * * * In my opinion the nerve itself, the integrity of the nerve, is involved. * * * They are pinned down tight so that they do not perform their functions properly. * * * They are bound down with adhesions that have occurred with the injury to the sheath. * * * I am convinced beyond a question of a doubt that this girl is suffering from what is known as traumatic neurasthenia, commonly known as nervous prostration, and that such nervous prostration is the result of an organic change and that it is permanent. I think the seat of the organic change is at the point that I have described. * * * ”
A motion for a new trial was made, which included as one of the reasons why the verdict should be set aside, that it was excessive. No request was made of the trial court to file reasons for overruling the motion, and none were given. This court has repeatedly held that it cannot in such case consider error assigned upon such refusal. Moerman v. Clark-Rutka-Weaver Co., 145 Mich. 540.
Error is also assigned upon remarks of counsel for plaintiff in his argument to the jury, on the ground that they were prejudicial. An examination of the parts of the argument objected to satisfies us that they were made in the heat of the argument, and that counsel himself made an honest attempt to correct any wrong impression they might have made. We cannot say that the language, although not in good taste, was of such a nature as to prejudice the jury against defendant.
The other errors assigned do not require discussion.
The judgment is affirmed.
Grant, C. J., and Blair, Moore, and Carpenter, JJ., concurred. | [
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] |
Blair, J.
On the 3d day of November, 1902, the parties to this suit entered into an agreement whereby the defendant, Reinhold Manufacturing Company, agreed to furnish and sell exclusively for one year to plaintiff, G. S. Blakeslee & Company, “ their machine, known as the ‘ Reinhold Ice Chopper,’ upon which patents are pending in the United States, on consignment, to the party of the second part at the following price, to wit: Twenty-one ($21) dollars for each and every machine delivered to the party of the second part.” The agreement contained further provisions, as follows:
“Said parties further agree that at the end of one (1) year from date hereof they expressly give the said party of the second part the privilege and option of renewing this contract for the further period of two (2) years on the same terms. * * *
“ In and for the consideration of the above promises and covenants, the party of the second part agrees that as soon as it has sold or disposed of any machine, delivered to it by the parties of the first part, it will within thirty (30) days from the date of such sale, pay the parties of the first part the sum of twenty-one ($21) dollars for each and every machine together with the amount of freight advanced by the parties of the first part in delivering said machines f. o. b. to either of the above destinations by the party of the second part. * * *
“The party of the second part further agrees that it will devote its best efforts to promote the sale of said machines and will do everything in its power to increase the sale thereof and to aid the parties of the first part in disposing of their product. ”
In February, 1903, the following writing was executed by the parties:
“ This is an addition to the original contract made by Frank J. Reinhold and Alexander H. Reinhold and the G. S. Blakeslee Co., February, 1903.
“ The first party hereby agrees to furnish the said second party their Gem ice choppers on the following terms, for one year from date. Price is to be twelve ($12) dollars less five (5%) per cent, in thirty (30) days and half freight allowed in Chicago.
“Said first party also agrees to furnish to said second party their cube machines on the following terms for one year. Price to be forty-five ($45) dollars f. o. b. Detroit for the term of six (6) months. After that date the said first party is to receive an additional twenty-five ($25) dollars, if the machine is then found satisfactory.”
September 1st, 1903, the plaintiff company gave notice of the exercise of their option to renew the contract for the further period of two years, as follows:
“ The contract which we have with you under date of November 3d, 1902, for the exclusive sale of your ice machine, will soon have run its first year and we therefore desire to exercise the option given us in said contract for a renewal of a further period of two years, by advising you that we wish to so renew it on the same terms and conditions.”
The parties having got into difficulty with reference to the performance of the contract, in November, 1905, the Reinhold Manufacturing Company began suit in the justice’s court for the city of Detroit against G. S. Blakeslee & Company to recover from it a balance claimed due, filing a bill of particulars of its claim amounting to $589.04, upon which amount there was credited to the Blakeslee Company $154, as follows: “Allowance for selling machines: 16 No. 1 choppers at $7 each, $112; 12 Gems at $3.50 each, $42; ” leaving a balance due October 17, 1903, of $435.04, for which amount the Reinhold Company recovered judgment against the Blakeslee Company. From this judgment, the Blakeslee Company appealed to the circuit ■ court, and thereafter brought suit in the circuit court for the county of Wayne .against the Reinhold Company to recover damages for alleged breaches of the agreement by the said Reinhold Manufacturing Company. Upon motion of counsel for the Blakeslee Company, both cases were consolidated and tried together before a jury, resulting in a verdict in favor of the Reinhold Manufacturing Company, defendant and appellee herein, for $448.
On the trial in the circuit court, G. S. Blakeslee, president of plaintiff company, testified, among other things, as follows:
“ Reinhold kept me supplied with ice-choppers up to September, 1903. I think we ordered two or three cube cutters after March 24, 1903. I think we got three. The last order we gave Reinhold for ice machines was September 15, 1903. * * *
“ I remember coming to Detroit on October 16, 1903, to look over their business with' a view to buying it. There was considerable talk and Mr. Reinhold, Jr., figured up what he thought could be done.
“Q. We just want the conversation, if you can remember; and if you can’t, just say so.
“A. I can’t remember to give very much of the details, but I remember that, and I remember another thing that struck me very forcibly. They said that they had already themselves sold direct about 100 choppers outside of our contract. I was astonished. I remember that distinctly.
“Q. Who was that ?
“A. Why, the senior made the remark first. * * *
“Q- Did the young man say anything in relation to it ?
“A. He did, he admitted it. * * *
“We renewed the contract two years from November, 1903, but did not push the business as hard as we had "been doing because we did not know where we could get the stock. Mr. Reinhold having refused other orders binder the contract. We did not pay for the ones we had on hand because I considered he owed us instead of us. owing him anything.
“Q. He owed you for what ?
“JL Machines that he admitted that he had sold during the first year.
“Q. He admitted that he sold those when ?
“A. When Mr. Trelevan and I were here.
“Q. That was on October 16th?
“A. Yes.
"Q. And he told you at that time that he had sold one hundred ?
“A. Yes. * * *
“Q. He told you, did he, that he sold them during the life of your contract ?
“A. Yes. * * *
“I don’t remember ordering any ice choppers that we contracted to buy and sell, after September 5, 1903, that were not filled. I sold a few Davenport ice choppers after November, 1903. They were different from the Rein-holds. I don’t think we sold any other ice chopper after we had disposed of the machines we had on hand belonging to Reinhold, November, 1903. We have since sold a Reinhold chopper, but not the Reinhold in this case. We have an ice shaver similar to Reinhold’s. I don’t swear I am not using part of Mr. Reinhold’s machine on the machine I am using. I won’t swear that I didn’t sell my machine in 1904. I would not swear that I didn’t have one of my machines in Tom Schmolly’s on Wabash avenue, in Chicago, in April, 1904. I might have such a. man’s name on our books. I don’t remember. * * *
“I don’t remember of advertising the Reinhold ice machine in 1904. I may have advertised for my ice shaving machine in 1904. I wanted to keep my name before the public as making ice machines; I must have had a machine, or thought I had, when I advertised. * * *
“We sold 115 ice choppers the first year. Then after we found we could not get any more goods, we sold slowly. I did not take any further orders for these. We took the same steps in regard to pushing the cube cutters as we did with the choppers. We had orders for approximately twenty-eight cube cutters. We kept them in stock in Chicago and filled the orders from there, but we only received about three from the Reinholds. * * * On the cube cutters the difference between the price paid and the price that we would have received for them if we had been able to fill the orders would have been $675.”
Mr. Reinhold testified on the trial in the circuit court, in his own behalf:
“Blakeslee told me October 16, 1903, that he was not in shape to take cafe of the territory east of Buffalo and was willing to release that territory and take everything west of Buffalo. * * * There were no goods ordered after September 18, 1903. If they would have paid us what we had coming, we were ready to fill orders. They never disputed the bill for $550.84. I don’t think there was any payment after November 13, 1903. The last order we got from Blakeslee was September 17,1903. * * * I did not get any orders after September, 1903, and if Mr. Blakeslee wished any machines he would have got them if he paid for them. I saw a machine, on May 5, 1904, in Tom Schmolly’s place on Wabash avenue, Chicago. It was a No. 1 ice chopper. It was Blakeslee’s, and was an imitation of our machine.
“ Q. Then you did sell 38 that year, that you are willing to admit that you sold ?
“A. Yes, in fact we allowed you that in justice’s court in that case. If you look up your statement, you will find it.
“ Q. You are willing to allow for these choppers?
“A. Yes, for commission on them.
“ Q. And you are willing to allow the Gem choppers?
“A. Yes, I am willing to allow commissions on one-half of them under our arrangement.
“ Q. The contract doesn’t say anything about half of it.
“A. There is a letter there that shows that they are entitled to one-half and we could have the other half.
“ Q. That you sold?
“A. Yes.
“ Q. Where?
“ A. Around the city here.
“ Q. Did you sell any of these machines outside ?
“A. No, I didn’t have money enough to go out of town to sell any at that time.”
On November 35, 1903, the Blakeslee Company wrote to the Reinhold Company a letter, from which we quote the following:
“We understand, however, that in express opposition to the terms of the contract you have been selling these goods to parties other than us, and while we are willing to share profits with you on goods sold by you in your own city we must most emphatically object to any sale made by you out of Detroit of which we do not get the full profit. We only recently learned of this and in our last letter asked you for an accounting which we did not get. Unless we get a full statement from you by return mail showing what you have sold we shall consider the contract broken by you from the date of your first sale of a machine after you signed the contract with us and shall take vigorous steps to enforce our right in this regard. We never supposed that there would be any difficulty regarding the settlement of this part of the account or we would have spoken about it before, as to the machines which we knew you had sold at the time. As to any money which you claim we owe you, we desire to say that same is not due you until the machines are sold, and even if it were due, we would be compelled to await your action regarding our claim before sending you a check.”
The assignments of error raise the following questions:
(1) That the court erred in not submitting defendant’s 7th request to charge to the jury, as follows:
“ I charge you that the fact that the Blakeslees had a number of orders for certain machines, known as cube cutters, on hand, namely, 28, which the Reinholds refused to fill, is proof of the establishment of the market to the extent of such machines, and the Blakeslees are entitled to recover their loss upon the number of cube cutters that the Reinholds refused to furnish to fill these orders.”
(2) That the court erred in not submitting the appellant’s 9th request to charge to the jury, as follows:
‘ ‘ I charge you that you may positively allow the Blakeslee Company their profits on the machines admitted on the stand to have been sold during the contract period. [This was admitted by the Reinholds to' have been 28.] The Blakeslees have testified that these machines numbered 100. This number is not admitted by the Reinholds and you are therefore at liberty to draw your own estimate as to the amount actually sold by them, and when you have fixed this estimate, you are then to allow the Blakeslees their profit on the machines sold.”
(3) That the court erred in charging the jury that the Blakeslees were bound to make payment for machines as delivered, when the contract expressly states that payment was to be made within 30 days after machines had actually been sold.
(4) That the court erred in refusing to give appellant’s 2d, 3d, and 5th requests to charge.
(5) That the court erred in overruling the appellant’s motion to vacate and set aside the verdict rendered by the jury in favor of the Reinholds for reasons set up in the said motion and supplemental motion of appellant, etc.
The principal question, in view of the trial court, for determination, and which we think was properly submitted to the jury, was as to who really broke the contract. It seems apparent from the contract, as well as from the record, that the parties were dealing with reference to three different forms of ice machines. The original contract related to the “Reinhold Ice Chopper,” which was to be furnished at the price of $21, and to be paid for within 30 days from date of sale by the consignee.
The addition to the contract referred to, 1st, “Gem Ice Choppers” at a price of “Twelve ($12) dollars, less five (5%) per cent, in thirty (30) days and half freight allowed in Chicago;” 2d, “Cube machines on the following terms for one year. Price to be forty-five ($45) dollars f. o. b. Detroit for the term of six (6) months. After that date the said first party is to receive an additional twenty-five ($25) dollars, if the machine is then found satisfactory.”
We are of the opinion that the court correctly construed this addition to the contract as stating its own terms of payment and not adopting with reference thereto the provision of the original contract, which related solely to the “Reinhold Ice Chopper.”
The plaintiff company not only failed to show compliance on its part with the terms of the contract as to pay ment for the “ Cube cutters,” but, on the contrary, proved its refusal to comply with such terms. It follows that the request was properly refused.
It appears from the letter of the Blakeslee Company that they were willing to share profits with the defendant “on goods sold by you in your own city,” and it further appears from the bill of particulars that they were given credit for one-half the commissions on the machines admitted to have been sold, and the only machines admitted to have been sold, by the defendant. Mr. Reinhold testified that these 28 machines were sold in the city of Detroit. The Blakeslee Company received the benefit of the commission, in accordance with the terms of their letter, in the judgment in justice’s court, and apparently received the benefit thereof in the verdict of the jury in the circuit court. The trial judge covered this request in his charge, as follows:
“ If you find that the plaintiff, regardless of the terms of the contract, sold either one hundred machines or any number less than one hundred, or whatever number you determine the evidence shows, then you should deduct the amount of the profits that the defendant would have made if it had sold these machines from the claim of the plaintiff, which is $500.”
The request as presented required the court to charge the jury, as to the number of machines sold, that “ The Blakeslees have testified that these machines numbered 100.” The Blakeslees had not so testified, but only to alleged admissions by the Reinholds, and the circuit judge was, therefore, justified in refusing the request as presented.
What we have said on the first point renders it unnecessary to discuss this point.
The second and third requests to charge required the court to determine as a matter of law that the contract had been broken by the Reinhold Company, which the court very properly refused to do. The fifth request was given in terms.
No reasons were filed by the court for overruling the motion to set aside the verdict, nor exceptions taken, and the matter is not before us for consideration upon this record.
The judgment is affirmed.
Grant, C. J., and Montgomery, Carpenter, and Mc-Alvay, JJ., concurred. | [
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] |
Hooker, J.
The relators were subcontractors under-Goddard, who was principal contractor, in relation to certain work upon the Ford building in Detroit. They claim to have performed that work, and on March 19, 1907, they filed a claim of lien. On March 21, 1907,. they filed a bill to enforce said lien. The defendants in that proceeding were Goddard, the contractor, and Ford, the owner of the premises. Goddard answered April 30th, Ford May 27th. Replications to these answers were filed May 3d and June 7th, respectively. On June 7th a notice of taking testimony in open court was filed.
On March 22d relators began an action at law against Goddard for $39,879.01 for the same claim, and plea was filed on May 18, 1907. Both cases were in the Wayne circuit.
■ On April 10, 1908, there was a call of the chancery docket, and the lien case was called in its regular order for hearing, when relators’ counsel stated that he thought that it would be impossible for Dumont, one of the complainants, to be present, and that he was a material witness. Defendant’s counsel then stated that they were ready to proceed to the hearing of the chancery case, but did not wish to force the case to a hearing until Dumont could be present, and the court then passed the case to the next call.
Four days later, Dumont having returned to the city, relators filed a motion to have the law case advanced on the docket, and set for trial before May 1, 1908. The motion was based on an affidavit of said Dumont, stating that he was soon to go west and would not be able to return for the trial of said cause. The presiding judge thereupon stated that, under the facts as they appeared, he was of the opinion that relators should either first try the chancery case or discontinue the same, and that he would deny the motion to'advance the law case and set it for trial before May 1st.
On April 80, 1908, the law pase was called in its regular order to be set for trial, and respondent refused to set the same for trial, without first dismissing or trying the chancery cause. On May 15, 1908, relators’ counsel insisted that as the case had been reached in its regular turn to be set for trial, they had a right to proceed to judgment therein, without first trying or dismissing the chancery cause, and the respondent then took the question up with all of his associates, except one who was absent, and all being of the opinion that the chancery cause should be tried first, respondent then refused to set said law case for an early date. Thereupon the chancery cause was set for hearing by Judge Bohnert on May 19, 1908. Afterwards a stay of proceedings was granted in that cause, pending the determination of this proceeding, which is an application for mandamus to compel the trial court to set aside the order made by respondent, and to bring on said law case for trial forthwith.
The return shows that relators seek a personal decree against defendants, and that in the law case relators commenced garnishment proceedings and defendant Goddard gave a surety company’s bond in double the amount claimed by relators to release such garnishment proceedings and pay any judgment recovered by them. Also that a judgment in the law case will not determine the controversy in the chancery proceeding.
That a judge may postpone the hearing of an action at law until after the hearing of a cause in chancery involving the same matter, has been frequently held when both causes are before him, and in many cases the same power has been exercised when the chancery cause is before another court, — a very different proposition from an order attempting to stay the proceedings pending in another court. This is a case warranting such procedure, if any case is, for the reason that every question involved in the law case is also before the court of chancery, and while the determination of the law case would not bind all of the parties in the chancery cause, all parties in both cases will be concluded as to every question decided in the chancery cause. This power is a general one and extends beyond the class of cases of which this is a sample, as will be seen from the authorities hereinafter cited. It is unnecessary to discuss its limitations, it being sufficient to say that the authority covers this case. The case of Purington v. Frank, 2 Iowa, 565, is a similar case to this in many respects. See, also, Hammond v. Baker, 3 Sandf. (N. Y.) 704; Flanagan v. Flanagan, 13 N. Y. St. R. 432; Scule v. Corning, 11 Paige Ch. (N. Y.) 412; Burlingame v. Parce, 12 Hun (N. Y.), 149; Brown v. May, 17 Abb. N. Cas. (N. Y.) 205; Cushman v. Leland, 93 N. Y. 652; Den v. Matlack, 17 N. J. Law, 354; Hutchins v. Riddle, 12 N. H. 464; Adams v. Manning, 17 Mass. 179, 180; Parmalee v. Wheeler, 33 Wis. 439; Jones v. Pritchard, 6 D. & L. Pr. Cas. 539; Carne v. Legh, 6 B. & C. 124.
See Joslin v. Millspaugh, 27 Mich. 517, which recognized the doctrine of election of remedies; McGunn v. Hanlin, 29 Mich. 476, 479.
The writ is denied.
Montgomery, Ostrander, Moore, and McAlvay, JJ., concurred. | [
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Hooker, J.
Black river runs in a southeasterly direction and empties into the St. Clair river. Elk creek flows northeasterly, emptying into Black river. The complainants own lands in severalty, situate along Elk creek, some miles above its mouth, including some bottom or flat lands along the creek. The testimony indicates that Elk creek is the natural outlet for the water of a large area.
Counsel for the complainants allege that in the year 1899 the drain commissioner of Sanilac county instituted proceedings to clean out, deepen, and widen Elk creek for its entire length, and that this was done, and that so much of the creek as was below a point some miles above complainants’lands was made a “ ten-foot bottom” after which, for a few years, complainants’ lands were not flooded to any extent, but that subsequently other and lateral drains were constructed conducting water to Elk creek, above their premises, when the creek began to overflow its banks, and this tendency has increased from year to year until at the present time great damage is done to their land and crops by freshets.
They claim, further, that the defendants, who are drain commissioners of Sanilac and Lapeer counties, respectively, are now seeking to construct a new drain, to be called the Lapeer and Sanilac drain, the outlet of which is to be in Elk creek above complainants’ lands, and that this drain will take water from some 6,000 acres, and will still further swell Elk creek in times of high water, and increase the damage to the complainants’ lands. Previous to or during 1888 the Elk, Flynn, and Maple Valley drain was constructed. It entered Elk creek below complainants’ premises, some six miles. That drain is yet in existence and use, though it has become somewhat obstructed and has in places been changed in its course by persons through whose lands it passes.
In the main it parallels Elk creek a few miles from it. It is now proposed to intercept this drain by the Lapeer and Sanilac drain and to widen, deepen, clean out, and extend the same, above the point of intersection, which will have the effect of turning some, though not all, of its water into Elk creek above complainants’ premises, the remainder passing down through the old drain.
The complainants have filed the bill in this cause, to restrain the construction of this drain, upon the ground that it will subject their lands to an increased and unnatural flow, to their irreparable injury. The cause was heard at circuit upon its merits, where the bill was dismissed and it is before us upon complainants’ appeal. The defendants contest the complainants’ claim to relief upon two grounds, vizfirst, that complainants have mistaken their remedy; second, that they have failed to make a case entitling them to relief upon the merits.
In substance, the complainants ask a restraining order to prevent defendants from turning upon their land a quantity of water from a proposed drain whose outlet is Elk creek at a point above complainants’ land. The proposed drain not traversing their land, and complainants not being parties to it, the case would seem to be similar to that of Bruggink v. Thomas, 125 Mich. 9, where it was held that the complainant had a remedy by injunction. See, also, Smith v. Township of Eaton, 138 Mich. 514; Township of Merritt v. Harp, 141 Mich. 254. We have no doubt of the jurisdiction of equity in such a case. This leaves the case to be disposed of upon the merits.
The source of Elk creek appears to be on section 11 of Maple Valley township in Sanilac county. The evidence discloses that in 1899, extensive improvements were made in that stream by dredging, so that upon the section upon which it is said to have its origin, a channel 10 feet wide upon the bottom was made. This improvement extended the entire length of the stream which was deepened as well as widened. There is evidence that this improvement was made with a view to its becoming an outlet of water which fell upon the surrounding country which naturally found its way to Elk creek, and that it was contemplated that such water would be discharged through prospective drains. Two or more townships were assessed for benefits, a strip of land 50 or 100 feet wide was condemned or purchased for the purpose, and presumably these complainants were paid for such as was taken from them. Some or all of them took jobs and received their pay for their assistance in making the improvement. They were not assessed for benefits.
While it is true that a drain commissioner must nob turn water upon adjacent lands without providing an ade quate outlet, such outlet may be provided in advance and commonly must be. We are not satisfied that the proposed improvement will have the effect of flooding complainants’ lands beyond the degree which was justly contemplated when the Elk creek drain was made, or beyond the extent to which they were previously flooded, and we are confirmed in this opinion by the action of the learned circuit judge who saw the witnesses and heard their testimony.
The decree is affirmed, with costs.
Ostrander, Moore, Carpenter, and McAlvay, JJ., concurred. | [
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] |
Gkaves, O. J.
In 1868 Norman Foster was the owner of forty acres of land in Eaton county, subject to a mortgage given to one Adams for $225. He was living on bad terms with his wife and they agreed to separate, and by advice of counsel they united in a conveyance of the land to John O’Neil, who executed to each a mortgage thereon, without covenants. The mortgage to Mrs. Foster was for $500, and that to her husband was for $725. It was orally understood, as a part of the scheme, that O’Neil should be entitled to pay the mortgages and hold the land, or should convey to such person as Foster should designate, on the terms of having the mortgages satisfied. This arrangement did not bring peace. Proceedings for divorce were commenced, and a prosecution for bigamy. Neither was carried through. For a year or two there was much litigious strife, and different attorneys were concerned. During much <of the contention the defendant acted for Mrs. Foster and Mr. Sagendorph for her husband. The land deeded to O’Neil was regarded as the fund on which, counsel were to rely. The conveyance to him, and the mortgages back, were given on the 18th of March, 1869.
Mrs. Foster recorded her mortgage on the 16th of April. According to the verbal arrangement, and in point of substance, O’Neil was made the custodian of the title, in order .to divide the interest between Mr. and Mrs. Foster. His .actual position was rather that of a trustee than that of an absolute purchaser.
March 11, 1870, Mrs. Foster made an absolute assignment of her mortgage to the defendant, and the assignment was placed on record on the 3d day of May following. Just' prior to that date Mr. Sagendorph, who had control of Foster’s interests and also liad interests of his own, negotiated a sale of the farm to complainant, but the agreement was not in writing. May 7th, being four days after the record ,of the assignment from Mrs. Foster to defendant, Mr. Sagen-dorph concerted with Mrs. Foster for a disposition of the mortgage. He paid her a sum of money, but how much is not explained, and agreed to give her certain professional assistance ; and in return she gave him an assignment of the mortgage and also a discharge of it. His purpose was to be able to treat the mortgage as satisfied in case the oral trade to complainant should be carried out, and ou the other hand, if that was not done, to regard the instrument as a purchased •security remaining in full force. The money paid was his •own; but he appeared to O’Neil as the representative of Foster. It is not intended to intimate, in saying this, that be commited tbe least duplicity. There is no proof of any deception or unfairness towards O’Neil. The latter was-ready and willing to convey as Foster might desire, on condition of getting rid of the mortgages, and Sagendorph requested him to convey to complainant and he complied. He quitclaimed to complainant, and the deed and discharge of the mortgage to Mrs. Foster were immediately recorded.
Complainant was not informed of the assignment to Sag-endorph and the latter destroyed it; and neither complainant nor Sagendorph had any actual notice of the assignment to defendant. They both supposed that the discharge by Mrs. Foster was authorized and regular, and that the record of it would operate to cancel the mortgage. .
After the lapse of some little time the complainant ascertained the existence of the assignment to the defendant, and a request was made upon him for a discharge, accompanied by a tender of five dollars, but he refused. A proceeding by petition was likewise instituted to enforce a discharge, but nothing seems to'have been affected by it. Finally, in 1881, this bill was filed. It alleges that the mortgage-title claimed by the defendant constitutes a cloud on the title of complainant, which equity requires to be removed. It also prefers a demand for damages under the provision relating to the compulsory discharge of mortgages.
The circuit judge decided that the mortgage should be-discharged, but he based his decision wholly on the ground that as Mrs. Foster was a married woman, and her assignment to the defendant was in consideration of future legal services, it was a disposition she was not competent to make.
We are notable to uphold the decree on this ground. If the theory were sound, the bill would not authorize it. But the principle does not appear to be tenable. At the time she made her assignment to the defendant, Mrs. Foster was-the absolute owner of the mortgage in her own right, and she had all the power of a feme sole to dispose of it as she pleased. She could grant it as she chose, or even give it away at her election.
Can tbe relief given be sustained on any other view ? It is argued by complainant’s counsel that Comp. L. § 4235, is sufficient. It is there provided that “ the recording of an assignment of a mortgage shall not, in itself, be deemed notice of such assignment to the mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them, or either of them, to the mortgagee.”
It is objected that this provision cannot apply, because the payment here was not by O’Neil, the mortgagor. This is true; but it is true rather in form than in substance. When O’Neil received the title and executed the mortgage it was made, as we have seen, an alternative that he should thereafter convey as Foster should appoint, provided the mortgages should be satisfied; and that condition did not contemplate that he should pay the mortgages out of pocket. The arrangement meditated that the means to get rid of the mortgages, in that event, should proceed from some other source. But the effect as respected him was to be the same as though he paid “the money. His mortgages were to be got rid of, but by means of his deeding the land on payment by another, and in lieu of such payment. His conveyance was to stand in the place of payment, so far as he was concerned, and a third party was to make the payment. This was only another way of payment by himself, and we think the transaction, as carried out, was within the spirit and equity of the statute.
The equities of Sagendorph are not in question. The in quiry relates to the rights of complainant and defendant. The complainant took his title from O’Neil, the mortgagor, who had no notice of any sort of the assignment to the defendant, and was not chargeable with any, and complainant had no notice and acted in good faith. He was not aware of the nature of the dealing between Sagendorph and Mrs. Foster. He was the privy of O’Neil, the mortgagor, and not of Mrs. Foster, the mortgagee. Mrs. Foster, was a party to the original arrangement, and was in equity subject to its conditions. She knew in what way the property was held by O’Neil, and in what way and on what terms he was authorized to convey. The defendant was in privity with her, and he was subject to the same equities in reference to that arrangement to which she was subject. He was not in a position to take higher ground than she could. In view of all the facts, the complainant was entitled to assume that the discharge in the hands of Sagendorph ready for record was entirely regular, and a valid satisfaction of the mortgage.
"We think the decree should be affirmed with costs.
The other Justices concurred. | [
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] |
Sherwood, J.
In the record in this case there are shown no findings of law, and no findings by the circuit court out- . side of what the judgment itself, sustaining the certiorari, imparts. The general assignments of error that the court erred in sustaining the certiorari, and also in rendering judgment against George E. Fowler, the surety, are the • only errors properly alleged, or that we can consider.
The return to the writ of certiorari shows that on the ■return day of the summons — the 19th day of February, .1881, — both parties appeared before the justice; that plaint iff declared verbally in assumpsit on tbe common counts;; to which the defendant pleaded the general issue with notice of set-off. Security for costs was demanded by defendant and was ordered by the justice, and forthwith given by the plaintiff with George R. Fowler as surety. Both parties respectively demanded a bill of particulars of their respective demands which the justice ordered should be filed within six days, and the defendant then demanded a jury, and the cause was adjourned to the 18th day of' March, 1881.
On the adjourned day the parties appeared and defendant paid into the court $6.00 as a jury fee and asked for the-striking of a jury. There is no irregularity or error in the-proceedings to this point to complain of.
The defendant not having filed his bill of particulars within the time ordered, now presented it and requested the justice to file it, which he refused to do. This refusal of the-court, to receive and file defendant’s bill of particulars, was not upon the objection of the plaintiff but at its own instance and for the alleged reason that the time had expired within which it had been ordered to be filed. It does not appear that the acceptance and filing of the bill of particulars at that time would have prejudiced the plaintiff; while,, in fact, as plaintiff had demanded the bill and could, for-the failure to file it, exclude all testimony relating thereto,, it was to the defendant a denial of justice, and by the justice-was an arbitrary abuse of discretion.
The application by the defendant at this time for an adjournment upon his affidavit filed, was properly refused, and for the sufficient reason of his refusal to submit to a, cross-examination.
It is alleged in the affidavit for the writ of certiorari as error that the justice proceeded to try said cause without a. jury, against defendant’s objection and'without his consent,, and? rendered judgment in the cause in favor of the plaintiff,, and against the defendant; and the allegation is by the return to the writ shown to be true. This the justice had no-authority to do. The defendant having demanded a jury was entitled'to it, and though he left and absented himself from the court room and from further subsequent proceedings in the case, it was no waiver of the jury; and the error of the justice, in proceeding himself. to try the case and in-rendering judgment, is well assigned.
The errors assigned in regard to striEing and summoning the jury are not to be considered'; as 'there was no jury in the case, no harm has been done.
The judgment against the surety is.authorized by our statute under the decision of this Court in the case of McLean v. Isbell 44 Mich. 129.
For the reasons herein given the judgment of the justice-was erroneous, and that of the circuit court reversing it must be affirmed with costs.
The other Justices concurred.
The return states upon this point, that
“ The defendant, then presented an affidavit taken then and made before me, in which he claimed that he was not prepared for trial because of the absence of a material witness and which affidavit he claimed to-have filed when the plaintiff asked of the court to have the defendant examined in relation thereto, to which examination the defendant, through his counsel, refused to submit when the affidavit was filed, but not on a-satisfactory showing, as appears by the endorsement thereon, as from. the fact of the deponent’s counsel refusing to allow the said deponent to he examined in relation to the matter set forth in the affidavit, as also from the fact of said deponent’s counsel having, only a short time previous to his drafting the affidavit, declared himself ready for trial and demanded the striking of a jury. It was considered by the court as merely a get-up-for the purpose of embarrassing the court, whén it was ruled that a jury he struck forthwith.” | [
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] |
Graves, C. J.
We think no error was committed by the ■circuit court in dismissing the bill in this cause.
It was filed in January, 1883, to set aside proceedings establishing a drain, and to enjoin the collection of complain .ant’s tax. The groundwork of the suit is that errors were ■committed in the course of the proceedings, and we think that several irregularities actually occurred; but none are pointed out or discovered which the Court can now regard as sufficient to invalidate the proceeding.
The bill rather insinuates than avers some deceptive conduct on the part of the commissioner. It does not amount to an allegation of fraud or even to a distinct charge of deception, and it would not be competent to regard it as a basis for the proof of either. But the evidence fails to fasten ■dishonest conduct on the commissioner.
The complainant has not been uniform in holding an adverse attitude. He joined with others in releasing the right of way, 'and he subsequently bid ofi the work for two sections. True, lie claims to have been misled or deceived,, but his explanations leave an impression that if he was, it must have been because he took very little, if any, pains tO' get accurate information. His views towards the scheme seem to have fluctuated as his opinion varied concerning his liability to be called on, or not called on, for a share of the expense. He deferred filing the bill until the entire tax,, except his own and that of another person who also filed a bill at the same time, had been collected.
The recent legislation in reference to these drain proceedings is a strong expression of policy which ought not to be* wholly disregarded, and it bears on the case before us very distinctly. Pub. Act 269 of the Laws of 1881, § 40.
The decree must be affirmed with costs.
The other Justices concurred. | [
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Grant, C. J.
(after stating the facts). The territorial limits of the municipality known as the public schools of Iron River and the township of Iron River were identical. The same is true of the township and school district of Stambaugh. It was clearly the intent of the legislature by these three acts to change the territorial boundaries of the townships of Iron River and Stambaugh and of the school districts existing in each, to vacate the township of Atkinson and attach its territory to the township of Stambaugh, and to provide for the distribution of the uncollected taxes. By this act the territory of Atkinson became a part not only of the township of Iron River but of the school district of Iron River. The delinquent taxes which, at the time of these changes, had been returned by the township treasurer for nonpayment, were afterwards collected through the agencies of the State and county and were paid over to the respondent.
It is urged that the treasurer of Stambaugh could not collect and enforce the payment of these taxes, because his control over proceedings to collect and enforce had ended, that the enforcement and collection of them devolved exclusively on the county treasurer and auditor general, that his only further duty was to receive from the county treasurer at stated quarterly intervals the proceeds of school and township taxes which the county treasurer or the auditor general had collected, and that therefore there were no taxes to which the language of the act could be applied. The language of these acts will not bear this construction. When these delinquent moneys had been paid to the county treasurer, the township treasurers to whom they were payable certainly had the right to demand payment, and, upon refusal by the county treasurer, could take the necessary proceedings to enforce payment. The county treasurer and auditor general are mere conduits through whom delinquent taxes when paid are conveyed to the township treasurer.
The words used in the statute, “collect and enforce,” include the power to receive moneys from those authorized to pay them. The purpose and effect of both acts were to clothe the treasurer of each township with the power to receive all moneys belonging in the township treasury and to take the necessary steps to obtain them. The power to so provide is clearly vested in the legislature. Its manifest intent must prevail over the literal sense of terms. 1 Kent’s Commentaries, p. 462; Green v. Graves, 1 Doug. (Mich.) 851. The township of Iron River had not acquired vested rights in the delinquent taxes of this detached territory so that the legislature, in dividing the territory, could not transfer the right to uncollected taxes from one township to the other.
The other contentions in behalf of respondent are answered against him by Perrizo v. Kesler, 93 Mich. 280; People v. Worden Grocer Co., 118 Mich. 604; Attorney General, ex rel. Kies, v. Lowrey, 131 Mich. 639; Attorney General, ex rel. Battishill, v. Township Board of Springwells, 143 Mich. 523. All the provisions in the body of the act were germane to its title.
The judgment is affirmed.
Blair, Montgomery, Ostrander, and Hooker, JJ., concurred. | [
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Per Curiam.
We are asked to review an order of the circuit court for the county of Wayne denying a mandamus, prayed for by relator and others, compelling the respondent “to execute and enforce all the laws pertaining to the preservation of the Sabbath, or the first day of the week, at the baseball park of the Detroit Club.” The purpose of the proceeding was to prohibit Sunday baseball playing in the city of Detroit. It does not appear that the grievance of the petitioners is any other than that sustained by other citizens of the city of Detroit. Neither does it appear that the attorney general of the State has refused to take action in the matter. Under these circumstances, petitioners have no right to relief. The griev anee complained of is purely a public grievance, and redress should have been sought by the people’s public agents, and not by private intervention. See People, ex rel. Russell, v. Inspector and Agent of State Prison, 4 Mich. 187; Miller v. Grandy, 13 Mich. 540; People, ex rel. Delbridge, v. Green, 29 Mich. 121; People, ex rel. McBride, v. Board of Sup’rs of Kent Co., 38 Mich. 422; Steffes v. Moran, 68 Mich. 291; Smith v. City of Saginaw, 81 Mich. 123.
The decision of the circuit court was clearly correct, and we decline to review it in this court. | [
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Montgomery, J.
The proceeding was instituted under the water-craft law, so-called, to recover for certain lumber and materials supplied to the owners and used in the building, fitting out and furnishing the yacht ‘Petrel. ” The amount of the complainant’s claim is $60.93 and interest. When the case came on for hearing before the circuit judge, a motion was made by the defendant to dismiss the proceedings for want of jurisdiction, on the ground that, the amount involved being less than $100, there was no jurisdiction in the circuit court to try the case. This motion was granted, and the ruling on that motion presents the only question for our consideration.
The defendant contends that the case of Dewey v. Duyer, 39 Mich. 509, should control this case. In that case the question presented was whether the mechanics’ lien law conferred jurisdiction upon a court of chancery where the amount involved was less than $100. The statute governing the courts of chancery contains the provision that the courts of chancery shall dismiss every suit concerning property except suits between copartners and suits for the foreclosure of mortgages where the matter in dispute does not exceed $100. In view of the existence of this statute, and of the absence of any express conferrence of jurisdiction in cases involving less than $100 in the lien statute itself, the court held that the court of chancery had not jurisdiction to enforce a mechanics’ lien for less than $100, the court saying: “Implications in favor of jurisdiction cannot be much indulged.”
It is beyond question that the legislature has the power to confer jurisdiction upon the circuit court in cases involving any amount. Section 18, article 6, of the Constitution, provides that in civil cases justices of the peace shall have exclusive jurisdiction to the amount of $100 and concurrent jurisdiction to the amount of $300 (which may be increased to $500) with such exceptions and restrictions as may be provided by law. Any legislation, therefore, which clearly withdraws from the jurisdiction of the justices of the peace any cause is within the constitutional power of the legislature, and the only question presented is whether the water-craft law expresses with sufficient clearness the intention to repose in the circuit court jurisdiction of cases involving a lien against vessels without regard to the amount.
In Milroy v. Mining Co., 43 Mich. 237, it was said that the circuit courts are given jurisdiction in claims against boats and vessels irrespective of the amount claimed. It is properly said in defendant’s brief that this was dictum. It is therefore entitled to no greater weight than would be given it as an expression of an opinion of the justice writing the opinion.
The real question is, What was the intent of the legislature, as expressed by the act? Undoubtedly the language of the statute, section 10790, 3 Comp. Laws, is broad enough to confer jurisdiction in the circuit court over the claim of any person claiming to have a lien specified in section 2 of the act (section* 10789). In fact it would be necessary to introduce an exception by implication in order to exclude from the jurisdiction of the circuit court claims involving less than $100. But when we take into account the purpose of the act, which was to protect labor and seamen’s wages, as well as subcontractors and materialmen, and when the fact — of which we may take judicial notice — is considered, that accrued seamen’s wages very rarely aggregate $100, the inference is strong that the purpose was to confer jurisdiction in this class of cases without regard to the amount. It is specially provided by section 10833 that in suits for seamen’s wages, no security for costs shall be required except by special order of the court or judge thereof upon motion and notice and for good cause shown, thus showing that one of the first objects of the statute was the protection of seamen. We think that the terms of the act do not render it necessary to give it a construction which shall defeat the purpose of the legislature, but, on the contrary, that all claims under this statute are by section 10790 brought within the jurisdiction of the circuit court, and that there is nothing in any other provision of the act or in any other statute which should, in view of the special purpose of this act, be held to exclude by implication claims of less than $100.
The judgment is reversed, and a new trial ordered.
Ostrander, Hooker, Moore, and McAlvay, JJ., concurred. | [
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] |
Blair, J.
Exceptions before sentence to review conviction of obtaining money by false pretenses. Defendant Andre was engaged in the business of buying and selling eggs, poultry, etc., at Grand Ledge, under the title of the Grand Ledge Cold Storage Company. The complaining witness, George J. Scoefield, of Eaton Rapids, having seen Mr. Andre’s advertisement for the purchase of eggs, went to Grand Ledge on the 28th of April, 1906, and proposed to sell eggs to Andre. In the course of this interview, it is alleged, the false representations relied upon were made. The information sets out the false pretenses and the furnishing of the eggs in reliance thereon, as follows:
“That he, said William Andre, was the owner of the Grand Ledge Cold Storage plant, located at Grand Ledge, Michigan, and that he, the said William Andre, desired to purchase eggs for the purpose of storage, which said eggs were to be stored in the east by said William Andre; that he desired to secure as many eggs as possible, and was, therefore, willing to spring the price in order to secure early eggs for said purpose of storage; that the storage at Grand Ledge was to be used by him, the said William Andre, later for the purpose of storing butter; that he, the said William Andre, on the date aforesaid, also gave to said George J. Scoefield the name of the Grand Ledge State Bank as a party to whom he could refer to make inquiry as to said William Andre’s financial condition and responsibility; that thereafter, and on, to wit, the seventh day of May, A. D. 1906, the said George J. Scoefield inquired of the said Grand Ledge State Bank as to the financial standing and responsibility and honesty of the said William Andre, and was then and there informed by the cashier of said Grand Ledge State Bank that it, the Grand Ledge State Bank, had on file a statement made by the said William Andre, which showed that the said William Andre was worth the sum of eighteen thousand dollars over and above all debts, liabilities and exemptions; and believing the false pretenses and representations so made as aforesaid by the said William Andre, he, the said George J. Scoefield, was then and there deceived thereby, and was then and there induced by means of said false pretenses and representations so made as aforesaid to deliver, and did thereafter and on, to wit, the 11th day of May, A. D. 1906, deliver to said William Andre 18 cases of eggs of the value of $111, and did on the 12th day of May, A. D. 1906, deliver to said William Andre 150 cases of eggs of the value of $?00, all of the value of $811 of the property of him the said George J. Scoefield; that the said William Andre did then and there, designedly and by means of said false pretenses and representations made as aforesaid, unlawfully and fraudulently obtain from the said George' J. Scoefield the said 168 cases of eggs, of the goods and property of the said George J. Scoefield with intent then and there to cheat and defraud him, the said George J. Scoefield, of the same; whereas in truth and in fact the said William Andre was not, on said 28th day of April, A. D. 1906, the owner of the said Grand Ledge Cold Storage plant, and did not desire to purchase eggs for the purpose of storage, and said eggs were not to be stored in the east by said William Andre, and the said William Andre was not springing the price in order to secure early eggs for the purpose of storage, and the said William Andre was not worth the sum of $18,000 over and above all debts, liabilities and exemptions, all of which pretenses and representations so made by the same William Andre as aforesaid, were false in fact, and were, at the time and place aforesaid, well known by the said William Andre to be false and fraudulent.”
On the 12th day of May, 1906, Mr. Scoefield shipped to Andre from Eaton Rapids 150 cases of eggs at a value of between eight or nine hundred dollars, for which he received checks on the 16th or 17th of May, which were protested for nonpayment. On the 14th of May, Mr. Scoefield, having become suspicious, called up the Michigan Tradesman at Grand Rapids, who informed him:
“They were not thoroughly convinced about his being all right and that he had no authority to use them as reference. I then called up the cashier of the Grand Ledge State Bank thinking that he would know more about it than anybody else, he being near by. He told me that Andre had a statement on file which he had every reason to believe was true to the effect that he, Andre, was worth $18,000 over and above everything and that his reputation for honesty and so forth was good. My intention was if I received an unfavorable report to stop the eggs en route or to have them replevied if he had them in his possession. I never received my pay for those eggs shipped on those two days. I was deceived by those representations that Mr. Andre had made to me as to his ownership of the property and purpose in buying them and paying that price as I have testified; and I was deceived by the report made to me by th¡e cashier of the Grand Ledge State Bank.”
The car of 150 crates of eggs shipped by Scoefield to Andre was consigned to the Grand Ledge Cold Storage Company, which, according to Andre’s testimony, was composed of himself, and arrived at Grand Ledge on May 15 at ten o’clock p. m.
The court, after reading the information to the jury, instructed them that they could not consider the statement of the respondent filed with the bank and the representations made by the bank to the complainant Scoefield as causes which induced Scoefield to deliver his eggs to the respondent:
“For the reason that it is undisputed that the eggs were delivered to respondent before complainant Scoefield had any knowledge of the said statement in the bank; mother words, such bank statement cannot be considered as false representations on the part of the respondent by which Scoefield was induced to part with his property. You should, however, gentlemen, consider that proof with the other proof in the case on the question of his intent, that is, you should consider it with all the other proof in the case to determine whether the statements made by respondent as to his ownership of the cold storage plant at Grand Ledge and his desire to purchase eggs for the purpose of storage in the east and statements connected therewith, should you find from the proof he made such statements as to the ownership and the other statements connected therewith, you should consider them to determine whether they were designedly false and made to induce Scoefield to part with his property and were successful.”
The only false representations submitted to the jury, as appears from the charge of the court and as stated by the prosecuting attorney, were: (1) that Andre was the owner of the cold storage plant; (2) that he was springing the price of eggs for the purpose of securing early eggs to be stored in the east and that he was storing them in the east.
Numerous assignments of error are presented, several of which are abandoned by counsel for respondent, and we shall only consider those which we deem important for the purpose of disposing of the case.
It is argued that the representation by respondent that he owned the property on the 28th day of April, 1906, was not false, and that the court erjred in submitting that question to the jury as an open question. It appears from the record that in February, 1906, the title to the real estate in question stood in the name of respondent Andre and his father, Herman Andre. Respondent testified, and his testimony was the only testimony upon the subject in the record, that, prior to the deed to Mrs. Berry hereinafter referred to, he deeded to his father, Herman Andre, a half interest because “he said I ought to be protected, and I said, ‘ I will deed you a half interest in this property,’ which was some time in January, 1905, ‘to secure you for what I owe you.’ He said, all right, and I deeded him a half interest in the property.”
Mr. Briggs, one of the three owners of the Loan & Deposit Bank of Grand Ledge, a private bank, testified:
“ Mr. Andre has been a borrower at my bank and did. business with us 8 or 10 years, stopping on the 1st of February, 1906. At that time he was indebted to Mr. Berry, the president of the bank, to the amount of about $9,600 which was secured by a real estate mortgage and also a trust deed to Mrs. Berry, wife of the president of the bank, subject to mortgage. Deed from William Andre and wife and Herman Andre and wife to Jennie M. Berry, introduced, marked Exhibit A and read in evidence, the description of the property in said deed being the same as the description of the property contained in Exhibit B. At the same time the deed was executed a contract was executed to Mr. Andre which is marked Exhibit B and reads as follows.”
The contract was in most respects the usual form of land contract, in which respondent agreed positively to pay—
“ Nine thousand six hundred twelve and ninety-six one hundredths ($9,612.96) dollars, in the manner following, to wit: On or before October 1st, 1906, with lawful interest from the date hereof, at the rate of six per cent., payable every thirty days upon so much of the purchase money as remains unpaid.”
It also contained the following clause:
“ It is mutually agreed by and between the parties hereto that in case of the payment of the said sum of nine thousand six hundred twelve and ninety-six one hundredths dollars, or any part thereof, by the said second party, that first party will promptly apply any and all payments on said second party’s indebtedness to the banking firm of Berry, Briggs & Berry, and it is also understood that said second party has the right to make payments of any amount on this contract. ”
Mr. Briggs further testified:
“ The purpose of having this contract and deed executed was to get possession of the property and save the time and expense of a foreclosure of the mortgages.”
This contract was executed on the 16th day of February, 1906. It further appears from Mr. Briggs’ testimony that the bank held a chattel mortgage as additional security.
Mr. Alexander, attorney for the Loan & Deposit Bank, testified:
‘' I commenced proceedings before a circuit court commissioner to oust him from the property after the expiration of the contract and you, Mr. Zimmer, appeared as attorney for Mr. Andre and raised the objection that the circuit court commissioner had no jurisdiction and that proceedings must be had by foreclosure. I took judgment by default and proceeded to oust Mr. Andre but have since commenced proceedings by foreclosure, in chancery, to get possession of the property. The title to the property was not in Mr. Andre on the 28th of April last. It was in Jennie M. Berry. It did not pass to her absolutely, but passed to her subject to the condition of the contract October 1, 1906.”
We are of the opinion that the respondent’s assignment of error is well founded and the court should have instructed the jury, as a matter of law, upon this record, that the title and ownership of this property was in the respondent. The case falls directly within the case of Clark v. Landon, 90 Mich. 83, and is even stronger, because in the case at bar the contract provided^ that respondent was to remain in possession of the premises. See, also, Flynn v. Holmes, 145 Mich. 606.
The case is entirely dissimilar from Reed v. Bond, 96 Mich. 134; Blumberg v. Beekman, 121 Mich. 647, and like cases. In the case at bar, the indebtedness was kept on foot and was not discharged nor intended to be discharged by the contract.
The fact that the title originally stood of record as in respondent and his father, Herman, is of no consequence, if his interest was conveyed to him as a security, as testi fied to by respondent, and under the facts of this case ceases to be of consequence for the reason that Herman agreed to the transaction and conveyed the property to Mrs. Berry, the wife of the president of the bank, with reference to the contract placing the entire title in the name of respondent.
Defendant’s counsel contend with reference to the introduction of the financial statement filed by respondent with the bank:
“Its introduction in evidence was flagrant error and laid the foundation for the subsequent testimony of Kilbourne, Briggs, Alexander, and the circular letter of T. Rogers Lyons, attorney for Andre in bankruptcy hereafter to be noted. It had no relevancy to the issue, but raised a false issue to prejudice the jury and allowed the prosecution to introduce testimony of the financial status of the bankrupt’s estate months after the offense was committed.”
We do not think the judge erred in his instruction to the jury that this financial statement could be considered by them in determining respondent’s intent in making the alleged representations to Scoefield nor in permitting testimony to show that the financial statement was false. Moreover, we are of the opinion that the prosecution were entitled to go to the jury upon the question whether Scoefield relied upon this financial statement and was induced thereby to make the shipments of eggs in question. The mere fact that the information alleged dates earlier than the delivery to the common carrier as the dates upon which Scoefield relied upon the false representations in making shipments is not controlling. While a delivery to the railway company was, in law, a delivery to the respondent, still, the vendor retained the right of stoppage in transitu, and if the jury found, as the agent of the Pere Marquette railroad testified, that “that car arrived at 10 p. m. May 15,” Scoefield could have stopped its delivery at anytime, at least prior to that hour. And if the jury found, in accordance with his testimony, that, except for the state ment from the bank of the financial standing of respondent as shown by his statement on file obtained in the meantime, Scoefield would have stopped the actual delivery to respondent, then we think they would have been authorized to find that the shipment really was in reliance upon that statement.
That the court erred in admitting in evidence a circular letter issued to the creditors of William Andre, against whom involuntary bankruptcy proceedings had been instituted, by his attorney, Mr. T. Rogers Lyons, for the purpose of informing them that a composition had been offered and. furnishing a statement of the affairs and condition of the bankrupt estate. This circular was offered with the following statement by the prosecuting attorney:
“ I claim this circular states — showing an indebtedness of $50,000 and assets of $18,000, 25 per cent, of the fifty would be $12,500. It shows they are seeking even now to get a compromise of the creditors by means of the representations they made in this and there would be a difference between $12,500 and $18,000.
“The Court: I think that may be admitted.”
Although it appears that respondent knew of the contents of this circular and distributed several of them, we do not think the circular prepared and signed by the attorney for the purpose of obtaining a composition sometime after the making of the alleged false representations was admissible for the purpose alleged, although it is not apparent how the introduction of the circular could have prejudiced the respondent, who admitted an indebtedness largely in excess of his assets existing at the time the representations were made.
That the court erred in permitting the testimony of Mr. Kilbourne to be given, who, at the time to which his testimony related, was acting as attorney for Mr. Andre. The testimony related to a conference at the office of Mr. Alexander between Mr. Andre and his attorney, Mr. Kilbourne, on the one side, and Mr. Alexander and Mr. Briggs, upon the other. The statements made at this conference were evidently not confidential in any respect and were, consequently, not privileged. Cady v. Walker, 62 Mich. 157; 23 Am. & Eng. Enc. Law (2d Ed.), 73. We are also of the opinion that the testimony was admissible as against the grounds of incompetency, immateriality, and irrelevancy.
For the error in submitting the question of ownership of real estate to the jury, the conviction is reversed, and a new trial granted.
Grant, O. J., and Moore, Carpenter, and McAlvay, JJ., concurred. | [
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Montgomery, J.
The petitioner presented his petition for a writ of assistance as purchaser from the State under a tax sale for the taxes of 1893. The respondent filed an answer to the petition, which he asked to have treated as a cross-bill, and included in the answer a prayer for relief and made the auditor general a party. Some question has been made as to the propriety of the practice, and there is pending a motion to strike from the files a certificate obtained by the defendant from the circuit judge, which motion is to be determined with the case. Inasmuch as the certificate of the circuit judge, as now construed by the respondent’s counsel, is intended to affirm the facts only as they are conceded by the affidavit made by the petitioner, and inasmuch as we would, in any event, before dismissing this proceeding finally, permit an amended return to show the facts as they are stated in the affidavits, we do not find it necessary to grant the motion, but deal with the case on the merits.
The purchase was made by the petitioner from the State of the lands involved on July 13, 1897, the deed being dated October 1, 1897, based on a certificate of purchase given at the date first named. This certificate and deed covered the taxes of 1892 and 1893. The petitioner also paid the taxes of 1894, 1895, and 1896, and later on paid the taxes of 1898. In the spring of 1898, petitioner went to the land on which the respondent was living and asked the respondent to deliver up possession of the land. This the respondent refused to do. The petitioner at that time made a verbal offer to sell the lands to respondent for what they had cost him. This offer was not then accepted. It is a matter of controversy as to whether the testimony fairly shows a purpose to reject this offer, or whether the respondent had reason to believe that the offer was to be left open indefinitely. We think the most that can be said is that he might have understood the offer to be open for a reasonable time. Nothing occurred between the respondent and the petitioner until April 27, 1903, when the petitioner caused a notice of a tax purchase in the form provided by Act No. 229, Pub. Acts 1897, to be served on respondent. This notice claimed a total amount of $76.82 due for the years 1892 to 1898 exclusive. When this notice was served upon the respondent, he testified that he told the party who served it that he would pay the petitioner all the taxes and expenses less the tax of 1898, for which he held the county treasurer’s receipt, and on the 24th of June following, he wrote petitioner:
“ I would have sent you check for the same long ago if it had been correct, but you have made a mistake, as I hold county treasurer’s roceipt for the taxes for the year 1898, and don’t intend to pay them twice. However, I will settle with you for the balance after that amount is deducted out, if you will call in when you are passing by.”
There seems to have been no answer to this letter, and respondent then wrote to one Charles O’Rourke, who resides at Ontonagon, the place of residence of the petitioner, and sent him a check and asked him if there was more to pay to make up the balance and settle with the petitioner. This, however, was not done, and no tender was made in fact until the 5th of March, 1905, when the amount covered by the notice was paid into the hands of the county clerk. The testimony of respondent is that when he left the money with O’Rourke he was to make up the difference, whatever was required, in the opinion of Adams, a lawyer of the town, and pay it to petitioner. He also testified that between the time of the demand in 1903 and the time the money was deposited, Mr. McFarlane never made any demand upon him for the taxes or to give up possession of the land, and that he did not know during that time whether O’Rourke or Adams had redeemed his (property from McFarlane or not.
; It cannot of course be claimed that there was a tender of the tax within the time fixed by Act No. 229 of the Public Acts of ISO?, even if that act should be considered as having application to this case. But, as was held in Eldridge v. Richmond, 120 Mich. 586, the act does not apply to sales made by the auditor general prior to the date of the act taking effect. It is suggested that this was an offer of sale. We think the most favorable view that could be taken for the respondent is that it would not lie with the petitioner to refuse to accept redemption on the terms stated in the notice had a tender of redemption been made within that time. But this was not done. So that if the respondent is to prevail, it must be upon the ground of irregularity or want of jurisdiction in the original proceedings in the case in which the decree was made.
It is alleged that such irregularity exists, in that the auditor general included in his petition for the sale of taxes for 1893 lands which had been previously sold and bid in to the State. The question at once presents itself as to whether this defense is open at this date, or whether the respondent is guilty of such laches.as precludes the court from opening up this sale. The only excuse for the delay in instituting these proceedings that we can find is that which arises out of the effort made through O’Rourke and Adams to adj'ust this matter. But before the notice of 1903 was served at all, there had been knowledge on the part of the respondent for nearly five years that the petitioner had purchased these lands and claimed title thereto. It is true that there was a proposition to deal liberally with the respondent, but this proposition was not accepted or acted upon by the respondent. Nor during the period in which he was negotiating with O’Rourke and Adams was there any suggestion of any purpose on the part of the petitioner to compromise his claim or abate it from the amount stated in the notice of April, 1903. Respondent was therefore in no way misled by the attitude of the petitioner in the premises. Nor was he delayed by the negotiations through O’Rourke and Adams in accomplishing any purpose which he had of presenting a petition to open up this decree. So far as the record shows, he had no such purpose. We have then a case in which from 1898 to 1905, a period of nearly seven years, the respondent knew that the petitioner had become the purchaser of this land and held a tax deed therefor and claimed title to it. During a portion of this time, petitioner was willing to adjust on very reasonable terms. During nearly two years of the time he was insisting upon payment in full, and yet no action was taken to open up this decree in all this period. We feel constrained to hold that, under the prior decisions of this court,the respondent was guilty of such laches as precludes his now raising the question. See Bending v. Auditor General, 137 Mich. 500; Owens v. Auditor General, 147 Mich. 683.
The decree, which denied petitioner relief and set aside the decree on terms, must be reversed and an order entered that a writ of assistance issue.
The petitioner will recover costs of this appeal.
Blair, Ostrander, Hooker, and Moore, JJ., concurred. | [
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Cooley, J.
Assumpsit to recover the sum of two thousand dollars, which is claimed as part of the purchase price -of a city lot in Flint.
The plaintiff’s case is that in December, 1879, the parties entered into an arrangement for joint speculations in pork . and grain in Chicago, and that in pursuance of such arrange,-ment they bought options until in April, 1880, when they ■were found to have lost several thousand dollars. The par ties tben bad a meeting to adjust matters between themselves,, the result of which was that plaintiff deeded to defendant the-city lot in question, which was worth four thousand dollars, and defendant was to apply two thousand dollars in full settlement of the dealings between them, and pay plaintiff the further sum of two thousand dollars within a few days. It is this latter sum that plaintiff claims to recover in this suit. The transaction would thus appear to be a sale of the lot for four thousand dollars, with short credit for half the purchase price.
The defendant sought by the cross-examination of the plaintiff to show that he did not buy the lot, but received a deed of it by way of security of an agreed balance due - him on their settlement. This balance the plaintiff stated was four thousand dollars; and he also said that at the ■ time of the adjustment he was willing to pay defendant all that was due him, and had no desire to cheat him out of any thing. He also admitted that, when the deed was delivered, defendant gave him back a writing agreeing to reconvey the property in one year or two years.
The following questions and answers then appear in the • record:
“ Q. This property, now — this conveyance was really given with that object in view- — -to secure him — -was it not; in part at least ?
A. Tes sir; two thousand dollars of it.
Q. The object was security, and upon your being able to-repay him you should have it back again %
A. Yes sir.
Q. That was the object of the transaction ?
A. Yes sir.
Q. That was the object of putting the agreement in writing, that he should convey back and discharge the .obligation on your paying the amount ?
A. Yes sir.”
The plaintiff did not put the agreement in evidence, but he called as a witness the notary who drew the deed and agreement, and he gave evidence on cross-examination that the arrangement between the parties was that the lot - was to be reconveyed to the plaintiff on his paying within either one year or two years — the witness was not certain- wbicb — tbe sum of'four thousand dollars with ten per cen-tum interest. No evidence was given on tbe part of the-plaintiff wbicb .tended to make out any different case.
On tbe testimony of tbe notary it is very clear tbe plaintiff could not recover. He was bringing suit for two thousand dollars wbicb was to be loaned to him for repayment within one or two years. IVIore than two years bad' elapsed before tbe suit was instituted, and therefore, if he-were to recover tbe money, defendant would be entitled to sue and recover it back again immediately. It is idle to-contend that this may be done. If tbe plaintiff has a right of action, it can only be for damages for not making tbe loan as agreed.
Tbe plaintiff admits that defendant bolds tbe land as security, but be claims that the sum secured is only two thousand dollars. There are some difficulties in understanding this, but tbe most favorable view for him that can be taken of bis evidence is this : that by the arrangement be allowed defendant two thousand dollars in settlement of their deals, and was to have a loan of two thousand dollars for two years upon a pledge of the lot. It would not do to say that tbe arrangement was one of sale of the lot, w’itb tbe privilege of repurchase on payment of two thousand dollars when the-plaintiff'himself says it was worth twice that sum. But if tbe transaction was one of loan, it is immaterial for tbe purposes of this suit whether tbe sum to be repaid was two thousand dollars or four thousand, for in neither case is any sum owing to tbe plaintiff.
Argument was made in tbe case respecting tbe legality of tbe Chicago transactions; but whether they were legal or illegal seems to be of no moment. If they were illegal, the-parties bad a right to settle them up as they pleased, and they bad full legal authority at tbe same time to agree upon a loan one to tbe other if they pleased. Tbe previous transactions would not affect this agreement, even though they may have furnished the occasion for entering into it.
The judge should have instructed the jury that there was-no evidence entitling the plaintiff to recover.
The cause will be remanded for a new trial and the defendant will recover the costs of this court.
The other Justices concurred. | [
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ShbRwood, J.
The plaintiff was sheriff of Kent county, and, at the request of the attorney for the defendant, on the second day of October, 1880, levied an execution in favor of defendant, issued upon a judgment rendered for the same of $10,302.77, upon real estate alleged to be owned by the judgment debtor, but the title to which the defendant claimed was fraudulently conveyed to the judgment -debtor’s wife. And again, on the 4th day of December, 1880, levied the same execution upon the same land, and made and filed a notice of said levies with the register of deeds, as required by law; and, after making said levies, the defendant requested the plaintiff to proceed no further until the question of title could be settled. On the 18th day of October, 1881, the wife of the judgmen t debtor filed her bill against said sheriff to remove the cloud from the title to said land created by the said levies, and enjoined said defendant and said sheriff from making sale of the property under the execution; and said suit was pending and ready for hearing when this suit was brought.
Tiie sheriff has, ever since said levies, been ready and willing to proceed and advertise and sell the said lands, but has been jirevented by the aforesaid instructions of the defendant and his attorney and by the injunction.
The defendant, before the commencement of this suit, tendered and offered to pay said plaintiff his fees and charges claimed, to the amount of $3.40. This sum the plaintiff declined to receive, and claimed, in addition thereto, that he was entitled to percentage or poundage on the whole amount of the judgment, amounting to $135.58, and brings this suit therefor.
The only question in the case being whether the sheriff is entitled to the percentage claimed, at the circuit the plaintiff had judgment for the full amount claimed, and defendant brings error.
The common law gave no fees to sheriffs. Mitchell v. Reynolds 10 Mod. 139 ; Hildreth v. Ellice 1 Caines 192; Campbell v. Cothran 56 N. Y. 279; 2 Bac. Ab. “Fees” 463. No question of quantum meruit is therefore applicable to- this subject. Preston v. Bacon 4 Conn. 471. The written law fixes the sheriff’s compensation for his services in serving process and collecting on executions, and any charges made and collected in violation of law, in excess of amounts prescribed, are visited with heavy penalties. Our statutes upon this subject in this State will be found in 2 Comp. L. 1871, § 4685, on pages 2048, 2049, and 2050; 2051, 2110; and Pub. Acts of 1881, pp. 103, 104 and 105 ; Burk v. Webb 32 Mich. 182.
The statute relating more particularly to the question raised in this case reads as follows:
“ for serving an attachment for the payment of money, or an execution for the payment of money, * * * for collecting the sum of two hundred and fifty dollars or less, two and one-half per cent., and for any sum more than two hundred and fifty dollars, one and one-quarter per cent.; advertising goods or chattels, lands or tenements, for sale, on any execution, if a sale be made, one dollar ; and if the execution be stayed or settled after advertising and before sale, fifty cents. The fees allowed by law and paid to any printer by such sheriff for publishing an advertisement of the sale of real estate for not more than six weeks, and for publishing the postponement of any such sale, the expense shall be paid by the party requiring the same. The fees herein allowed for the service of an execution and for advertising therein, shall be collected by virtue of such execution, in the same manner as the sum therein directed to-be levied.”
The fees for services in making the levy, and for traveling in serving the execution, for making certificate of levy and copies thereof, and copy of the writ, and his fees for filing notice of levy with register of deeds, for drawing and executing the deed made on the sale, and making return of the execution, and for doing each and everything necessary to be done or performed, are specially provided for in the statute. Pub. Acts 1881, pp. 103, 10é and 105.
It will be noticed that it was evidently the intention of the Legislature to reduce, as far as possible, the compensa.tion for services of sheriffs to a known and absolute certainty. No prospective fees are contemplated or can be allowed. There is no question made but that the fees charged for actual service rendered in this case are right; but it is insisted there has been no such service as is contemplated by the statute, to entitle the sheriff to his percentage on the amount stated in the execution; that there has been no sale of the property; that the levy was on real estate and directed by the plaintiff’s attorney; the sheriff could take no possession of the property, and he has incurred no risks; that it is only upon the satisfaction of the execution in this case, or upon the amount actually realized, that the sheriff can charge his poundage, and the execution not having been satisfied, or any part thereof, the plaintiff can charge nothing.
The plaintiff claims that, after making his levy, he had an interest therein to the extent of the statutory percentage on the amount the execution directed him to levy, and that, having been prevented by defendant from completing the service of the execution by sale, he was entitled to receive his percentage.
The statute of 28 Eliz. c. 4, impliedly permitted the taking of fees by the sheriff for executing certain process. That statute declared he should take of no person for serving an execution upon the body or property, more or other consideration than is allowed by the statute, — that is to say, twelve pence for every twenty shillings when the sum exceedeth not one hundred pounds; sixpence for every twenty shillings over that he should so levy and return and deliver in execution, or take the body in execution for. ' It is evident from this language that the compensation in the statute mentioned was a commission upon the amount collected on the execution, or in case of a oa. sa. on the amount of the debt, on completing the service of the writ by taking the body of the defendant; and Grose, Justice, in Wood-gate v: JCnatchbull 2 Term 158, referring to this statute, says that it “ was the intention of the legislature that the sheriff should be paid in proportion to the sum levied out of the sum levied, and that the sheriff should only levy what was really due.” The term “ levy ” is here used in its strict sense. It includes both the seizure and the sale of the property taken upon the execution. 2 Bouv. Law Dict. 39 ; Ccumpbell v. Cothran 56 N. Y. 279.
This statute did not make the fees to the sheriff a charge to the defendant, and the plaintiff had to pay them. By the statute (43 Geo. III. c. 46) the sheriff was allowed to levy his poundage in addition to the debt mentioned on the execution. “ The principle of the statute was to measure the compensation to the shei-iff for executing a fi. fa. by the amount collected upon it. If he collected nothing, no com pensation was due. Tliis was the general principle.” Based upon tliese two English statutes is 'founded the statute of the state of New York upon this subject. This statute, in New York, has frequently come under the consideration of the courts of that state and in some others; in New York it seems to be settled that when the sheriff proceeds to sale on a fi. fa. he is entitled only to his poundage on the sum actually made (Campbell v. Cothran supra 284; 1 Cai. 194;) and whenever the plaintiff interferes and prevents a sale by settlement or compromise, and a satisfaction of the judgment is obtained, he is entitled to poundage on the amount realized by the plaintiff. Allen on Sheriffs 355 ; Hildreth v. Ellice 1 Cai. 192; Parsons v. Bowdoin 17 Wend. 14; Adams v. Hopkins 5 Johns. 252; Scott v. Shaw 13 Johns. 378; German-Amer. Bank v. Morris Run Coal Co. 68 N. Y. 590; Crocker on Sheriffs sec. 1162.
To the same effect are the decisions under the English statute, and in several of the states. Alchin v. Wells 5 Term 471; Bullen v. Ansley 6 Esp. 111; Impey on Sheriffs 159 ; Boswell v. Dingley 4 Mass. 411; Baldwin v. Shaw 35 Vt. 273; Preston v. Bacon 4 Conn. 471. In none of these cases is it pretended that an allowance of poundage to the sheriff without a sale of the property is within the words or the letter of the statute (Hosmer, C. J. in Preston v. Bacon 4 Conn. 477); and all seek to justify the conclusion by placing it upon the ground that service has been performed, or risk incurred, which would be uncompensated unless in such cases the sheriff is allowed his poundage. See cases cited. And it is conceded that in many cases the application of the rule will work injustice ; that the statute intends compensation for risk necessarily incurred, or for actual services rendered, and frequently the plaintiff will be compelled to pay when no risk or service is involved, to make compensation where no service has been rendered.’ I Caines 194.
It is the right and privilege of the plaintiff or his attorney, and always has been, to control the judgment and the collection thereof, and the- action of the sheriff when re quired, and to aid him in making such collection. Allen on Sheriffs 357; Herman on Executions 210; Jackson v. Anderson 4 Wend. 480; Gorham v. Gale 7 Cow. 739; Godfrey v. Gibbons 22 Wend. 569. And while the rule contended for by plaintiff’s counsel, and which finds recognition in some of the authorities above referred to, may be reasonable and proper where poundage is the only compensation the sheriff can receive for any or all of his services in making the money on the execution, certainly the reason for the rule entirely fails when the statute, as in this State, provides a specific compensation for each and every service and proceeding taken, (among which making sale of the property is one,) in making service of the execution.
Service of an execution includes every act and proceeding necessary to be taken by the sheriff to make the money, and includes a sale of the property when necessary. 1 Caines 194. It is for collecting the money with or without sale that the percentage or poundage is given, and when the execution is levied upon real estate only, as in this case, the sheriff has no interest in it beyond his fees for making-the levy until the money is collected or sale is made, and then he is entitled to his poundage on the amount collected, or for which it is sold. In such case, until sale is made, the sheriff incurs no risk or responsibility; he is not entitled to the possession of the property, and is constantly subject to the direction of the plaintiff in the execution as to further service in making the collection. 4 Wend. 480 supra.
In the present case no sale of the property was made, neither was any money collected; the plaintiff had only made his levy on real estate which had been pointed out by the defendant’s attorney. No extra labor or other service had been performed by the sheriff than making the levy. The amount tendered was sufficient.
The only question in this case is, do the facts found support the judgment % The finding of facts must be regarded as a special verdict; they do not support the judgment rendered in the court below. Error was properly assigned upon this record, and plaintiff’s objection, to a review here is not well taken. Trudo v. Anderson 10 Mich. 357; Amboy, Lansing & Transverse Bay R. R,. Co. v. Byerly 13 Mich. 439.
Tbe judgment must be reversed witb costs of both courts and a new judgment entered on the finding for the amount tendered.
The other Justices concurred. | [
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CaMpbbll, J.
Plaintiff sued on a policy of fire insurance, and was defeated on the ground that he had not truly answered a question referred to in Ms application concerning other insurance on tbe property. It was not claimed that this was done fraudulently or intentionally, and was allowed to have been inadvertently. The question was, “What insurance is there on it, and in whose favor?” The answer was “None after the dates above stated.”
Those dates referred to the time when this policy was to become operative, the period being postponed until the supposed expiration of a previous policy in a Hartford company, which plaintiff supposed would shortly run out, but which in fact had another year to run. The agent of defendant knew of the policy, but not of its time of running.
This Hartford policy contained a clause whereby, in case of further insurance without the written consent of the company endorsed thereon, the policy should be void.
We have held in several cases that under such a clause the new insurance renders it at once null and void, without further action. See New York Central Ins. Co. v. Watson 23 Mich. 486, and cases cited, and notes.
Plaintiff claimed below that inasmuch as his application referred distinctly to the period when the policy was to become operative as the time when no other insurance would exist, there was no misstatement, because this policy avoided the Hartford policy. The court below held otherwise, and decided that he had no cause of action left.
We see no ground on which this decision can be sustained. Not only might it fairly be inferred that thei’e was a present policy, but such, we think, was the almost necessary inference, as it was the fact known to defendant’s agent. We see no reason why the inquiry should be made, except to learn whether there was double insurance. The objection suggested that the main reason, or an important reason, was to know whether a policy was existing at the time, without reference to its continuance, and that the failure to answer was itself a violation of duty, does not strike us as of any force. If defendants desired a more explicit answer instead of the one given, which really gave all necessary information for their protection, they should have declined to issue tbe policy. By issuing it and entering into tlie contract they must be held to have been satisfied with it, if true in fact.
We think it was true in fact. A policy that becomes void on a certain contingency cannot be regarded as having existence for any purpose, and whether' ended by agreement or lapse of time or breach of condition, it is to be regarded as no policy. It would be, in our opinion, an idle distinction to make its absolute nullity subject to different rules on account of the difference in its causes of extinction. If extinct at the time when the application said it would be, we think the representation was made good.
We see no reason why plaintiff is barred from recovery.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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CaMpbell, J.
Plaintiff sued defendant for the wrongful seizure and conversion of personal property. Defendant undertook to justify under a tax warrant upon which plaintiff was charged vpth a drain assessment. When this warrant was presented it was objected to on several plainly expressed grounds, and "the court below ruled it out, on the ground that the statute gave no authority to collect the tax from the personal property. Defendant brought error.
The plaintiff’s counsel in this Court relied on all the objections raised below, as he had a right to do, as the judgment cannot be reversed if the decision was right, whether based on satisfactory reasons or not.
It appears from the roll that instead of placing the taxes on the roll in such a way as to identify the drain for which they were laid, by name or otherwise, so as to have each fund kept separate in the township treasurer’s hands, and so as also to allow payment by drainage orders, as contemplated by sections 15, 21 and 22, the roll required the money for all drains in the township to be paid over in a gross sum to the town treasurer, and, as we must assume from the record, contained none of the substantial elements of a proper charging under the statutes. This being so, it was unimportant whether a regular tax could or could not be col lected against personalty,' and we need not consider that question, which comes later in order than the objection .already discussed. The warrant being bad on its face, was no defense.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Montgomery, J.
The bill in this case was filed to restrain the defendant from proceeding to construct a drain without having procured the assent of a majority of the members of the township boards of the townships through which the drain extends. The proceeding rests upon the provisions of Act No. 21 of the Public Acts of 1905, which is an amendment to the general drain law, and provides that the boards of supervisors of certain named counties, including Montcalm,
“May from time to time, by resolution, fix and determine such further conditions than those herein set forth, to be complied with, before all or any contract shall be made or entered into for the construction, improvement or clearing out of any drain as hereinbefore provided, as to such boards shall seem necessary and proper to protect all persons anfi townships that may be affected by the proceedings; and no contract or expenditure shall be made or entered into by the drain commissioner or his deputy, without first complying with such conditions.”
Acting under the authority of this law, the board of supervisors of Montcalm county, at the October session, 1905, passed the following resolution:
“Resolved, That pursuant to said Act No. 21 of the Public Acts of 1905, the county drain commissioner shall not enter into any contract for the construction, improvement or clearing out of any drain and no expenditure shall be made therefor without having first obtained permission in writing to that effect, signed by at least a majority of the members of the township board or boards affected by such action of the county drain commissioner.”
The circuit court granted the relief prayed, and the de- ' fendant appeals to this court.
It is contended that, if it was the purpose of Act No. 21 to confer power upon the board of supervisors to fix a condition that would render a general law of the State inoperative, it is unconstitutional. • Section 38, article 4, of the Constitution, provides:
“ The legislature may confer upon organized townships, incorporated cities and villages, and upon the board of supervisors of the several counties, such powers of a local, legislative and administrative character as they may deem proper.”
In Albert v. Gibson, 141 Mich. 698, the precise question of whether authority corresponding to that delegated to the board of supervisors by the act in question was within this provision of the Constitution was presented and such authority affirmed. See, also, Hurst v. Warner, 102 Mich. 238 (26 L. R. A. 484), and Friesner v. Charlotte Common Council, 91 Mich. 504. As was said in Albert v. Gibson:
“It has been frequently'held by this court that the laying out of drains is a mere neighborhood matter.”
It is peculiarly a matter control of which might be delegated to townships, cities, or boards of supervisors within the terms of this constitutional provision.
It appears that a majority of the aggregate number of the members of the township boards of the three townships affected by this drain signed the permission in writing provided for by the resolution of the board of supervisors, but not a majority of the several boards of the townships affected. It is contended that this was sufficient to answer the requirements of the resolution, and Brady v. Hayward, 114 Mich. 326, is cited as authority. That case presented a very different question. In that case, the court was dealing with the sufficiency of a petition filed under a statute which required that the petition should be signed by not less than five freeholders of the township or townships in which such drain or the lands to be drained thereby and to be assessed therefor may be situated, one or more of whom shall be the owners of the lands liable to be assessed for benefits. The contention made was that the petition must be signed by not less than five freeholders of each township. The court held that this was not required.
It will be noticed that a fixed number of freeholders was required by the statute, and that a residence in any of the townships in which the drain was to run answered the requirements, and it required but one of the petitioners to be the owner of lands liable to be assessed for benefits. The freeholders in this case were in no sense representatives of the township or townships. For they acted in their own behalf and in their individual capacity, whereas the resolution in question in this suit was adopted under the authority of the legislature which gave the board the right, and imposed the duty of protecting all persons and townships, and, obviously, the purpose of the requirement was to protect the several townships, and the signers of the permission were in their action acting in protection of their several independent townships, and the language employed must be construed with reference to the plain purpose in reposing this authority, and the requirement that the permission shall be signed by a majority of the members of the township boards of the townships af fected, when so construed, requires the action of a majority of the members of each of the township boards, as the townships were necessarily acting severally.
But it is contended that, if this construction be placed upon the action of the board of supervisors, then it must be considered an attempt on the part'of the board to delegate to the township boards of the various townships the authority reposed in the board of supervisors by Act No. 21, in question, and the case of City of St. Louis v. Russell, 20 L. R. A. 721 (116 Mo. 248), is cited to show that this would render the action invalid. The case is one in which the city, acting under authority to license and regulate livery stables, passed an ordinance which required any person, before commencing to build a building for that purpose, to secure the consent of the owners of a majority of the property in the block in which the building was situated. It was held that this was a delegation of the power reposed in the council and was not authorized.
The case of City of Chicago v. Stratton, 162 Ill. 494 (35 L. R. A. 84), distinguishes this case and holds that a delegation of the power to fix the location of a livery stable is not effected by an ordinance prohibiting the location of one upon a street where two-thirds of the buildings are devoted to residence purposes, except where a majority of the lot owners on such street consent in writing to the location of a livery stable there.
We need not determine whether these cases may be reconciled, or as to which case makes for the better rule. Both cases are dealing with an attempt by the municipality to control a proposed business acting under the police power. It may be assumed that any person has a right to engage in the business of keeping a livery stable subject only to the legitimate exercise of the legislative authority, either State or municipal, in fixing such restrictions as the public health or convenience may require. But we know of no rule which confers upon anyone a vested right to a proposed pew undertaking in the nature of a public improvement. And so it is that under the general drain law and many similar enactments, public improvements are stayed until there shall be a petition of a stated number of those directly interested. This is not a delegation to the persons whose signatures are required of legislative power. It is rather a legislative protection of individual rights. So in this case, the township is liable to assessment for a portion of the benefits derived from a public drain. Either wisely or unwisely the legislature has conferred upon the board of supervisors the authority to fix conditions in these various counties, and, under the delegated legislative authority, the board in the county of Montcalm has determined that no such improvements shall be entered upon unless, in addition to all the requirements fixed by the general drain law, the assent of the several townships shall be obtained in the manner prescribed by the resolution above quoted.
Criticism is made of this action upon another ground, namely, that the board of supervisors has conferred upon the individual members of the township board authority of a legislative character, and that this is unauthorized delegation of authority. We do not regard this power conferred as legislative in its character. The individual members of the township board are authorized to withhold their assent for the purpose of protecting the interests of the township from an unnecessary or excessive burden. They act as conservators of the townships’ interests — not in a legislative capacity. They are the business agents of the township for this purpose. The fact that they are not convened for the purpose of taking this action as a board does not affect the validity of their action. They are constituted the agents of the township, and individual action by members of the board is not unusual. Eor instance, the supervisor may approve the bond of the treasurer. 1 Comp. Laws, § 2354. The supervisor or clerk may approve of the, security given by constables, and under the general tax law — section 3922 — it is provided :
“ Where any statement, certificate, or record is required to be made or signed by a school district board or a township board, such statement, certificate or record may be made and signed by the members of such boards, or a majority thereof, and it shall not be necessary that other members be present when each signs the same.”
We think it was within the power of the board of supervisors, acting in its legislative capacity, to dispense with the formality in the action required of the township board.
It is contended that a bill in equity will not lie to restrain the construction of this drain, and that certiorari is the proper remedy. Section 3 of chapter 5 of Act No. 254 of the Public Acts of 1897 — the general drain law — provides for certiorari, and also provides:
“ Notice of such certiorari shall be served on the county drain commissioner within ten days after the copy of the final order of determination of such commissioner in establishing any drain has been filed with the county clerk as provided in section one of chapter four.”
Section l of chapter 4 requires that the certified copy of such order of determination shall be filed with the county clerk within 5 days after the order is made, that is, the order establishing the drain. The same section then proceeds to impose the duty upon the drain commissioner of giving notice of the time and place of letting, which should be not less than 10 days, so that the certiorari provided for was evidently intended as a means of reviewing the action of the drain commissioner in establishing the drain.
Section 14 of chapter 9, which was added by the amendment of Act No. 21, Pub. Acts 1905, simply confers upon the board of supervisors authority to fix and determine further conditions than those prescribed in the general act to be complied with before any contract shall be made or ehtered into for the construction, improvement, or clearing out of any drain, so that, although all the proceedings of the establishment of the drain may be regular and not open to complaint on certiorari, there is under this section and the action of the board an additional requirement which has been omitted, and there would seem to be no way to protect the rights of the complainant except by the present remedy. If it be suggested that an appeal might be taken under chapter 5, it is a sufficient answer to say that such an appeal would not be permissible in this cause because it would be to the township board, which has a duty inconsistent with that required when sitting in review of the proceedings. As bearing upon the question of whether a remedy in equity is open, see Hinkley v. Bishopp, 152 Mich. 256; Hoffman v. Shell, 151 Mich. 669.
The decree should be affirmed.
Blair, Ostrander, Hooker, and Moore, JJ., concurred. | [
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] |
Per Curiam.
This is a mandamus proceeding determined adversely to relator in the circuit court. It is before us for review. Relator is an honorably discharged Union soldier, having served in the late Rebellion. He is also a regular practicing attorney and a resident of the city of St. Johns. He seeks by this proceeding to compel respondent to appoint him attorney of said city. He bases his right to said appointment on section 1 of Act No. 329 of the Public Acts of 1907, which reads as follows:
“In every public department, and all public depart ments in all municipal corporations, and upon the public works of the State of Michigan, honorably discharged Union soldiers, sailors and marines of the late Rebellion, and the soldiers, sailors and marines of the late Spanish-American war shall be preferred for appointment and employment ; age, loss of limb or other physical impairment which does not, in fact, incapacitate, shall not be deemed to disqualify them: Provided, however, That the applicant shall be of good moral character and shall have been a resident of the State for at least two years and of the county in which the office or position is located for at least one year, and possesses other requisite qualifications.”
Respondent refuses to make the appointment upon the ground that, according to his “best judgment, relator * * * is not * * * competent to perform the duties of the office of city attorney for said city of St. Johns, and that in the judgment of respondent * * * relator does not possess the requisite qualifications for said office.”
It will be observed that according to the section of Act No. 329 above quoted, discharged Union soldiers are not entitled to an appointment unless they possess the other requisite qualifications. The respondent has determined that relator lacked those requisite qualifications. Had he a right to make that determination ? St. Johns is a city of the fourth class. The law regulating the appointment of city attorney is found in section 2990, 1 Comp. Laws. It reads:
“ The following officers shall be appointed by the mayor, by and with the consent of the council, viz., a city attorney. ***"
This right to appoint imposed on respondent the duty of determining that his appointee possessed the requisite qualifications for the office. He would have been faithless to that duty had he appointed an applicant whom he deemed disqualified. The law therefore made it his duty to determine whether relator — an applicant for the office —possessed the requisite qualifications, and no law authorizes a court to review his determination that relator lacked such qualifications. It must therefore be held that rela tor is not entitled to the appointment in question because it has been authoritatively determined that he does not possess the requisite qualifications therefor.
It should not be inferred from this opinion that we decide that section 1 of Act No. 329 of the Public Acts of 1907, above quoted, has any application to the office of city attorney or to similar offices. The ground upon which our judgment rests makes it unnecessary for us to consider that question and we do not consider it.
The learned trial judge correctly decided the motion, and his order is affirmed. | [
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Carpenter, J.
Respondent was convicted of the offense of selling intoxicating liquor without first having paid the annual tax required by section 5385, 2 Comp. Laws. He asks us to set aside his conviction for several reasons.
George Mitchell, a boy between 10 and 11 years of age, was called as a witness by the people. It appeared from the preliminary examination undertaken by the court that he did not understand the nature of an oath. He was permitted to give his testimony without being sworn. No exception was taken. But at the conclusion of the case, respondent’s counsel asked the court to strike out the testimony “for the reason that the preliminary examination given to him by the court does not show that he was aware of the nature of an oath.” This motion was overruled and thereupon the further motion was made “to strike out his testimony for the reason that the witness was not sworn.” It is now insisted that the testimony was improperly received because, as the witness was oyer 10 years of age, his unsworn testimony should not have been received. Section 10215, 3 Comp. Laws. We dispose of this contention by saying that it was not made in the trial court and cannot be made for the first time in this court.
Upon rebuttal the people were permitted to prove the condition of defendant’s premises subsequent to the date of the alleged commission of the offense. The argument of respondent’s counsel assumes that it would have been competent to introduce this testimony before the people had rested their case. See People v. Hicks, 79 Mich. 457. But it is argued that it was an abuse of discretion for the trial court to permit it to be introduced in rebuttal. Assuming, as we must, that the testimony was admissible, we cannot say that there was any error in admitting it on rebuttal, for the objection to its being so admitted was not raised on the trial by respondent’s counsel.
It is contended that the court erred in refusing to charge the jury, as requested, that defendant was presumed to be a man of good character. There was no testimony upon this subject. Under such circumstances there was, of course, no presumption that defendant was a man of bad character. Is there a presumption that defendant was a man of good character? There is high authority for saying that there is. See Mullen v. U. S., 46 C. C. A. 22. Of this decision Mr. Wigmore in his work on Evidence, § 290, note 2, says:
“ This inconsistently gives him the untrammelled benefit of evidence which if he had introduced might have been disputed. What really happens, or ought to, is that the defendant’s character is simply a non-existent quantity in the evidence. This distinction has sometimes been expressly pointed out; Addison v. People, 193 Ill. 405; Knight v. State, 70 Ind. 380.”
We approve and adopt the rule stated by Mr. Wigmore, and therefore overrule the objection under consideration.
It is contended that the law regulating the sale of intoxicating liquors in this State is unconstitutional. The questions raised by this argument are not open ones in this State. See Robison v. Miner, 68 Mich. 549; People v. Luby, 99 Mich. 89.
The conviction is affirmed.
Ostrander, Hooker, Moore, and McAlvay, JJ., concurred. | [
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Hooker, J.
The complainant is a nonresident fraternal beneficiary association, organized under the laws of Connecticut. On April 16, 1899, Cornelius J. McInerney was a member, and received a benefit certificate of that date for $1,000 payable, according to its terms, to Margaret E. McInerney, his mother, provided that she was at the time of his death his lawful beneficiary, under the charter, constitution, and laws of said order, and the laws of the State of Connecticut. At the time said certificate was issued, the member was an unmarried man residing with his parents. Louise B. McInerney is the widow, and Paul B. and Ruth M. Mein erney are the minor children, of Cornelius J. Mclnerney, deceased. A dispute having arisen over the right to the fund due upon this certificate, complainant filed a bill of interpleader and this controversy is between the defendants thereto. The learned circuit judge made a decree dividing the fund remaining, after payment of costs, between the mother, Margaret Mclnerney, and the children, in equal shares, and all of the defendants have appealed.
The mother bases her claim upon the fact that she was designated as beneficiary when the certificate was taken, and no other beneficiary has since been designated; the fact that for several years her daughter has paid the assessments, and the further fact that a release by Louise B. Mclnerney to the complainant of all her claims to the fund was given. Louise B. Mclnerney, on behalf of herself and her children as heirs of the deceased, claims that in accordance with the laws of the order, the laws of Connecticut, and the terms of the contract itself, Margaret Mclnerney is not entitled to the fund, not having been a member of the family'of her son at the time of his death, and that, according to the charter and laws of the order, she and her children are entitled to it.
The certificate provides:
“ The Knights of Columbus hereby promises and binds itself to pay to Margaret E. Mclnerney, provided such person is the lawful beneficiary of said member at the time of his death, a sum not exceeding $1,000, in accordance with and under the provisions of the laws of the Knights of Columbus.”
The charter in force during the life of the certificate provides the order in which beneficiaries shall be designated, as follows:
“Which said beneficiaries shall be specified only in the following order, to wit:
‘ ‘ (a) To such person or persons of the immediate family of said member as by him designated.
‘ ‘ (b) To such person or persons in default of such family of the blood relatives of such member as by him designated.
“ (c) In default of any designation by said member or out of the order named, except by the permission of the board of directors or their successors for cause shown, then such aid shall be rendered by said corporation, to such family or relatives who are heirs at law of such member, in the manner above arranged.”
The following laws of the order are applicable to this controversy:
“ Sec. 38. The board of directors shall have full power " and authority. * * *
“4. To determine to whom a death benefit shall be paid when non-beneficiary is designated; and, should a member in good standing die without having named and having had recorded in the books of the national secretary the name of any person or persons to whom the sum shall be paid, then to determine to whom said sum shall be paid, provided, however, that in all cases 'the beneficiaries shall not be in conflict with the provisions of the charter of the Knights of Columbus.
‘ ‘ Sec. 73. Upon the death of any member legally elected and in good standing at the time of his demise, the order of the Knights of Columbus shall pay to the beneficiary, person or persons named by the deceased prior to his death, and entered upon the books of the national secretary as the beneficiary, the person or persons to whom the death benefit shall be paid in case of his demise, such sum as the deceased may have been insured for, subject to the provisions of the preceding sections, and shall take duplicate receipts therefor, one of which the national treasurer shall retain and the other forward to the national secretary.
“Sec. 78. Should a member in good standing die without having named and having had recorded in the books of the national secretary the name of any person or persons to whom said sum should be paid, or the designation of the beneficiary is contrary to the provisions of the charter, or the beneficiary designated has died, then the board of directors, upon the advice of the national advocate of the order, shall determine to whom said sum shall be paid; provided, however, that in all cases the beneficiaries shall not be in conflict with the provisions of the charter of the Knights of Columbus. * * *
“ Sec. 80. A member desiring to change his beneficiary shall give written notice and surrender his benefit certificate to the financial secretary of his council, directing that a new certificate be issued to him, payable to such beneficiary or beneficiaries as such member may designate in accordance with the laws of the order.
“Sec. 82. No officer, employe or agent of the order, or any council thereof, has the power, right or authority to waive any of the conditions upon which benefit certificates are issued, or to change, vary or waive any of the provisions of the constitution or laws. Each and every benefit certificate is issued only upon the conditions stated in and subject to the constitution and laws of the order.”
The evident intent of the law of Connecticut is to secure to the immediate family of the beneficiary, at the time of his death, the benefit of financial aid generally necessary at such times. It endeavors to put it out of the power of the member to deprive his family of such aid, by means of a designation of others, by fixing the order of designation, and making payment contingent upon the continuance of the relation, and this design is emphasized by the contract, which contains a proviso that, to be entitled to payment, the proper relation must exist at the time of the death of the member. Plainly, on the face of the contract, the mother is not entitled to payment. A similar contract was construed in Knights of Columbus v. Rowe, 70 Conn. 545, a case closely resembling the present case, and it was held that the parent was not entitled to the fund, and that the widow and the infant were. This case interpreted the law of the State of Connecticut, which required the complainant to make contracts according to its terms, and we think where, as in this instance, the contract in terms is made subject to the law, i. e., charter, the construction of such law by the highest court of the State is conclusive here and we are bound to follow it, because it is the agreement of the parties, if for no other reason. The case of Larkin v. Knights of Columbus, 188 Mass. 22, is another similar case, where the same view hereinbefore expressed was entertained.
Some reasons are suggested for departing from the rule of the cases cited.
Payment of Assessment. It is claimed that a sister of deceased has been allowed to pay the assessment for some years, with the understanding and expectation on her part and that of the widow that the mother was a lawful beneficiary. There is nothing to show that such payment was more than this, and the widow is not, and certainly the infants are not, chargeable with any duplicity in the case. The sister simply paid money under a mistake of fact. It does not entitle her mother to the property of the widow and orphans, and the alleged equities in her favor are not conspicuously greater than those of her daughter-in-law and grandchildren, whose necessities are quite likely to be as urgent as her own. The record shows that her husband was not well off. But it is not a case in which necessity or apparent equity can be controlling. The question is one of legal rights.
Counsel assert that it was the duty of the complainant to pay the fund to the mother, they having authority, “for special” reasons, to accept a designation out of the order. There was no designation by the member after the first, and during his life the complainant did not act upon the subject. It was not asked to do so, and had it been, it could not have been compelled to do so. It is enough to say it did not. When the member died, the right to this fund vested in his heirs, and the complainant was powerless to change those rights by any action it might take in favor of another.
Pelease by Widow. The widow, without consideration, and supposing that the mother was a legal beneficiary, and at the solicitation of the secretary of the company, whose officers hesitated to pay to the mother, executed to it a release of any claim to the fund. We do not see that the release affects the question. The mother certainly secured no rights under it and lost nothing by it, and the complainant did not act upon it, and makes no claim under it. The fund is still in the hands of the complain ant, and it is willing to pay it to those lawfully entitled to it. We are of the opinion that the entire fund should be paid to the widow, one-third in her own right as heir and the remainder as guardian for the two children, each of them being entitled to half of the remaining two-thirds. Defendant Louise, in her own right and as guardian, is entitled to costs of both courts against defendant Margaret Mclnerney. The decree of the circuit court will be modified in accordance with this opinion, a new decree to be entered in this court.
Grant, C. J., and Moore, Carpenter, and McAl-VAY, JJ., concurred. | [
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Hooker, J.
The defendant was convicted of being engaged in the business of unlawfully selling malt, brewed, vinous, and fermented liquors, at retail, without having paid the tax required by law. The testimony was undisputed. At its conclusion the learned circuit judge said to the jury:
“ In a case wnere the facts are undisputed and sufficient of them are undisputed to make a case in favor of the people, then it is the duty of the court to tell the jury so, and to ask them to find a verdict in accordance with that fact. * * * Now, as I understand the law, gentlemen, the sale of that mixture is a violation of it, and the respondent himself having testified that he knew what it was, having testified that he knew that it contained some alcohol, that he must answer to the law for these sales, it appearing there is no testimony that he made more than one sale, furnished three glasses at the request of the officer, three glasses at the request of somebody else, making two sales, and making enough, under the law, as I understand it, to constitute him a dealer or a person engaged in the business. * * * I think it is my duty, and I instruct you that you should find a verdict against this respondent of guilty as charged, without leaving your seats, and the clerk will take the verdict.”
Two questions are raised: First, whether the sale of malt liquor containing about two per cent, of alcohol was within the statute; second, whether it was error to direct the jury to find a verdict of guilty without leaving their seats. Sections 5379 and 5380, 2 Comp. Laws, justify the conclusion of the circuit judge upon the first question, and while the question was not discussed in People v. Wilcox, 152 Mich. 39, it was necessarily involved in that case. The charge of the court was not erroneous, being sustained by former adjudications cited in People v. Gardner, 143 Mich. 104, and People v. Neal, 143 Mich. 271. The former case distinguished the case of People v. Collison, 85 Mich. 105. See, also, People v. Elmer, 109 Mich. 493; People v. Schottey, 116 Mich. 1.
It is suggested that this record shows that the jury were not permitted to render a verdict of not guilty. If that is true, there was error, and the case should be reversed, but that is not to be presumed; it must appear from the record. We have quoted what was said by the learned circuit judge. He did not say to the jury, “You must render a verdict. ” On the contrary, he said by implication, in the first paragraph, that it was his duty to tell the jury that the undisputed proof made a case for the people and to ask them to find a verdict in accordance with that fact. He explained the situation at length in the second paragraph, and in the third he said: “I instruct you that you should find a verdict against this respondent of guilty as charged, without leaving your seats.” The vice in this instruction, if there is vice in it, consists of the direction that it was their duty to find a verdict of guilty “without leaving your seats.” It is no unusual thing for a jury to render a verdict, even in criminal cases, without leaving their seats, and in the absence of some indicated unwillingness to follow the instructions (which were clearly justified by the proof), there is no reason for thinking any juror was coerced into an unwilling verdict, and to reverse this case upon this ground is to overturn the conviction on a technicality. The cases of People v. Warren, 122 Mich. 504, and People v. Remus, 135 Mich. 632, 633, are relied on as condemning the practice followed in this cause. It must be admitted that as to the former there was a clear case of coercion of the jury into the rendition of a verdict against their convictions. In charging the jury that it was their duty to render a verdict of guilty, and sending them out to deliberate, the trial judge followed a practice which has been repeatedly sustained. But they returned into court manifestly unwilling to comply, and what occurred there conclusively shows that the verdict was the result of subsequent emphatic statements by the judge that they had no legal right to disregard his instructions. The entire court concurred in holding this to be error. We say, in substance, in that case, that it is settled in this State that a judge may direct a verdict of guilty, but may not compel it; a proposition the latter part of which has never been questioned in any of the cases decided in Michigan.
In People v. Remus, supra, the trial judge directed a verdict, and, after being out all night,.the jury returned into court, and said that they were unable to agree, when the court said:
“Gentlemen of the jury, it is your duty to return a verdict of guilty in this case. Now you will return to your room, and you will come in, under these instructions, and bring in a verdict of guilty.”
This they then did and the court denied the demand of defendant’s counsel that the jury be polled. That this was error is apparent, and we so held, and the language used may be reasonably construed as applicable merely to such a case as was then made, and not necessarily applicable to a case where indications of coercion are wanting.
I assume that in all cases of misdemeanor it is proper to direct a verdict of guilty upon admitted facts or where the offense is conclusively proved by uncontradicted testimony. If this is so, this case differs from the many where directed verdicts of guilty have been sustained, only in the fact that the judge told the jury that it was their duty to render such a verdict “ without leaving your seats.” We should not assume that this was any more coercive than as though he had omitted the direction as to leaving their seats, and they had at once, and without leaving their seats conferred together and rendered such a verdict. Neither should we assume that they did not so confer together, before rendering the verdict and agree, nor that the clerk in taking the verdict omitted to take it in the manner required by law and in accordance with the form books, viz., “Gentlemen, have you agreed upon a verdict ? ” “ What is your verdict ? ” “ Listen to your verdict as recorded. You do say upon your oaths,” etc. Had there been a deviation from this, it should have been made to appear in the bill of exceptions as it was in People v. Collison, 85 Mich. 107, and not so appearing we will not assume any deviation from the forms of law, especially in a substantial particular, and in face of the decision in the Collison Case, supra, with which the trial judge was doubtless familiar. Error is not to be presumed even in a criminal case.
In the case of People v. Neumann, 85 Mich. 98, it is inferable that the jury did not leave the court-room, yet the judgment was affirmed. Mr. Justice Morse concluded his opinion in that case as follows:
_ “But in this State, where a judge has directed a verdict of guilty, and the jury have followed such direction and the facts are admitted or undisputed, and the only-question is one of law, applied to such facts, a new trial will not be granted, if the judge was right in his application of the law. No injustice can be done the accused in such case, as it is not to be presumed that a jury will find in opposition to the law from mere whim, caprice, or prejudice, although they may have the right to do so.
“ In this ruling we do not intend to encourage the practice of directing a verdict against the accused in criminal cases. In all such cases the jury should be permitted to retire to the jury room, and there deliberate, and the trial judge should content himself by stating the law as applied to the facts, and with an admonition to the jury of their plain duty in the premises.
“ The conviction in this case is affirmed.”
It immediately preceded the Collison Case, both cases being submitted and decided on the same days. The Neumann Gase does not go the length of saying expressly that a verdict of guilty may, or that it may not, be directed. The former is clearly implied, however, by the affirmation of the judgment, and it has been expressly so held since, as it had been before. People v. Richmond, 59 Mich. 573; People v. Hawkins, 106 Mich. 479; Peoples. Neal, 143 Mich. 271; People v. Gardner, 143 Mich. 104, 116.
We find no error, and the judgment should be affirmed.
Grant, O. J., and Montgomery, J., concurred with Hooker, J.
Carpenter, J.
The facts in this case are stated in the
opinion of Justice Hooker. I think there should be added, however, at the conclusion of his quotation from the charge of the court, this:
“Now, gentlemen, if you want to lodge exceptions before sentence, I will give you the opportunity to do so, that you may go to the Supreme Court to see whether I am right or not.”
This addition serves to indicate, what perhaps might otherwise clearly appear, that the charge was not intended to give the jury any responsibility respecting the rendition of the verdict. Nor do I understand that the jury actually did render a verdict. I infer that the clerk took their verdict as a mere matter of form. I find it impossible to reconcile this practice with the rule laid down in People v. Warren, 122 Mich. 504, followed by People v. Remus, 185 Mich. 629-634. I think that from People v. Warren, supra, and the cases there cited, it may be said that a trial court may inform a jury in a criminal case that they should render a verdict of guilty, but he cannot compel them to render such a verdict. I think that in this case they were compelled to render such a verdict, and that for that reason we must set aside the conviction.
Blair, Ostrander, Moore, and McAlvay, JJ., concurred with Carpenter, J. | [
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Ostrander, J.
{after stating the facts). I do not find in the record support for the claim that the warrant was refused and the case presented by collusion of the justice and the city attorney or that the person sought to be charged in the warrant which was applied for could, or would, if greater privileges had been extended to him, have presented in the return to the order to show cause any other or different reasons for refusing the warrant. There is precise precedent for the practice pursued, in Chaddock v. Day, 75 Mich. 527 (4 L. R. A. 809). Counsel seem to agree that the question is presented whether Archibald Bryant is a hawker and peddler within the meaning of the ordinance. It is averred in the answer to the order to show cause, and must be assumed to be true, that the conduct complained about was incident to the general retail business carried on by Bryant at his store.
The charter of the city empowers the common council to enact ordinances, etc.,—
“ To license hucksters, peddlers * * * in the business of hawking and peddling, and to regulate and license the sale by peddling ( directly or by canvassing for subscription ) of goods, wares, merchandise, refreshments or any kind of property or thing, by persons going about from place to place in the city for that purpose, or from any stand, cart, vehicle or other device in the streets, * * * open places or spaces, stores, offices and business blocks and places, public grounds or buildings in said city.” Act No. 469, Local Acts 1895, tit. 7, § 24, subd. 8.
The popular meaning of the words hawker and peddler and, perhaps, the meaning indicated by the derivation of the words, involves ideas both of the carrying of goods for sale and of an itinerant vender. Expressions of this conception of the meaning of the words are found in legislation and in judicial utterance. See 2 Rawle’s Bouvier, p. 642; Com. v. Ober, 12 Cush. (Mass.) 493; Village of Stamford v. Fisher, 140 N. Y. 187; Emmons v. City of Lewiston, 132 Ill. 380 (8 L. R. A. 328); Rex v.McKnight, 10 B. & C. 734; State v. Hogdon, 41 Vt. 139; City of Chicago v. Bartee, 100 Ill. 57; People v. Baker, 115 Mich. 199.
Our own statute, after describing those who must obtain a license (2 Comp. Laws, section 5324) excepts certain persons whose acts may bring them within the class (section 5330), and the excepted class has been recently enlarged (Act No. 120, Public Acts 1905; Act No. 225, Public Acts 1907). Whatever meaning may have been given to the words, anciently or in later times, it will be observed that the charter powers above recited extend to licensing and regulating the sale of any kind of property by persons going about from place to place in the city for that purpose. It may be admitted that the common council of Muskegon has not the power to prescribe new definitions for terms which already have legal definitions. It has not attempted to do so. It has, for the purpose of the exercise of a power to regulate sales made from house to house, provided (section 6):
“Any person or persons who shall go about from house to house or place to place and sell or offer to sell any article of trade or commerce to be delivered then or in the future shall be deemed to be a hawker and peddler within the meaning of this ordinance,” which is entitled, generally, as is above stated.
It is inaccurate, therefore, to say that the case turns upon the question of who is a huckster, or hawker, or peddler, as the words have been judicially defined, and decisions which rest upon a judicial construction of statutes or of ordinances in which the words are employed without qualification are not necessarily controlling or helpful.
The particular ordinance has been considered by this court in two cases,—City of Muskegon v. Zeeryp, 134 Mich. 181; City of Muskegon v. Hanes, 149 Mich. 460, —in the first of which it was held that the charter powers were sufficient to sustain this section of the ordinance and in both that it was violated by acts similar in character to those stated in the complaint in this case. See, also, City of Alma v. Clow, 146 Mich. 443. If these cases are not decisive of the case at bar, it is because the person who is here sought to be charged with a violation of the ordinance is a local, retail merchant, who keeps a store and who also does what the ordinance, in terms, prohibits. If section 6 of the ordinance does not apply to resident storekeepers, it is invalid upon the authority of City of Saginaw v. Saginaw Circuit Judge, 106 Mich. 32; Brooks v. Mangan, 86 Mich. 576. See James v. Sweet, 125 Mich. 132, 137; Chaddock v. Day, 75 Mich. 527 (4 L. R. A. 809). In terms it applies to residents and nonresidents alike, to storekeepers and those not storekeepers. The right of the city to exercise the power with respect to others than resident merchants is not denied. It is not claimed that the fee exacted is unreasonable. The constitutional questions raised by the return to the order to show cause are not argued in the brief. To sustain the order of the court below, we must read into the section the words, or their equivalent in meaning, “except resident merchants who have an established place of business.” Aside from rendering the section invalid, such an interpolation of words would be, in my opinion, bald judicial legislation.
The determination of the court below is reversed, with direction to grant the writ of mandamus. No costs are awarded.
Hooker, Moore, Carpenter, and McAlvay, JJ., concurred. | [
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McAlvay, J.
The village of Bellaire is incorporated under the general laws of the State. For the year A. D. 1905, its assessed valuation was $316,845; for the year A. D. 1906, $286,725. The complainant is a large taxpayer of said village. This action is brought to restrain the defendants from borrowing money alleged to be voted by the people at a special election held June 18, 1906. It is claimed that the proper proceedings were not had to authorize the proposed action. The defendants answered the bill of complaint and claimed that the action of the village authorities was regular, and that the bill of complaint ought to be dismissed. A hearing was had in open court. The circuit judge filed a written opinion, as follows :
“The bill filed in this cause seeks to enjoin the defendants from raising money by bonds to install waterworks,- and to improve an electric light plant owned by the city. Complainant bases his claim for relief on several grounds; the following, only, being insisted upon in the argument:
“First. That there is no record of any estimate of the contemplated cost of the improvements.
“Second. That the instrument prepared by the engineers employed by the village council, and claimed to be an estimate, does not fill the requirement, because it places the estimate of the expense at a sum materially larger than the village is authorized by its charter to borrow.
“ Third. That the amount sought to be raised is more than 5 per cent, (the statutory limit) of the last preceding tax roll.
“1. I find that the alleged estimate was procured by action of the council of defendant, was in writing and on file in the village clerk’s office at the time of the adoption of the resolution submitting to the electors the question of making the loan in question, which is a sufficient record of the fact of the existence of the estimate.
“2. The fact that the estimated cost of the improvements was more than the village was authorized to borrow may or may not have been a good reason for not adopting the resolution to bond, but did not divest the council of the power to borrow an amount less than the estimate.
“3. The amount sought to be raised was not in excess of 5 per cent, of the 1905 tax roll. The assessment for 1906 was materially less; but the roll for that year (1906) did not become a ‘tax roll’ until June 18th, the day of the election, and after the closing of the polls.
“ In my opinion the roll of 1905, being the ‘last preceding ’ one at the time of the action of the council, is the one which limits the power to bond. Therefore a decree may be made dismissing the bill, with costs.”
The case is brought here by appeal; the complainant making the same claims here that he did in the court below.
The record shows that for a number of years the village owned and operated a municipal electric lighting plant, and a dam and water power, and was operating the same when this action was brought. It also shows that at the time of the commencement of this action, and for a number of years prior thereto, the village of Bellaire derived its water supply for fire protection and domestic use from a plant owned and operated by the Bellaire Water Supply Company, a corporation of which the complainant is the manager and principal owner; that the contract between the village and the last-named company was about to expire. On April 10, 1906, the common council of the village of Bellaire took action looking to the raising of the dam and increasing the efficiency of the electric lighting plant owned by said village, and at the same time took action looking to the construction and maintenance of a waterworks system for said village, by appointing a committee consisting of three of its members, together with the president of the village, “to ascertain and estimate the cost of raising the dam at the electric lighting plant of the village to increase the efficiency of said electric lighting plant and to increase the power at said plant to its full capacity.”
It was further provided by the resolution, appointing said committee “that said committee further estimate the expense and so far as practicable determine the cost of constructing and maintaining a suitable waterworks system for the village,” and “that such committee take the preliminary steps to secure the services of a competent engineer to make all necessary surveys, plans, and specifications for such increase of power, and for the installation of a waterworks system.” The committee conferred with the Riggs & Sherman Company, consulting engineers, of Toledo, Ohio, and on the 19th of April, 1906, a representative of that firm came to Bellaire, and with the committee looked over the ground and made certain measurements at the dam and water power. On April 23, 1906, the committee, by report of that date of record in the council proceedings, referred to the common council of said village an offer in writing made by said Riggs & Sherman Company to make surveys, plans, specifications, and estimates of cost of both such improvements at the dam and water power, and for a waterworks system for said village, for a certain consideration therein specified. Which written offer was accepted by the common council of said village by resolution of record in the council proceedings.
The Riggs & Sherman Company was notified of the acceptance By the common council of its said offer, and the sketch map, therein referred to, was sent by the clerk of the common council. On May 19, 1906, the said Riggs & Sherman Company sent and furnished the common council of said village itemized estimates of the expense of such proposed waterworks system, amounting in the aggregate to $23,940.55, and of the proposed improvements at the dam and water power, amounting to $5,700. Accompanying said estimates was a letter from the Riggs & Sherman Company showing wherein said estimates for a waterworks system could be modified and the expense thereby materially lessened. By the use of a water tower instead of a reservoir it was shown a saving of $1,200 or $1,300 would be effected; and by the use of different pipe it was shown a saving of $2,000 could be made. Said estimates and letters went into the official custody of said village clerk and remained a file in his office. The estimates were laid before the common council of said village and discussed prior to the adoption of the resolution calling for a special election to vote upon the proposition hereinafter mentioned.
On May 23, 1906, the common council of said village, by resolution of record in the council proceedings, submitted to vote of the electors of said village two distinct and separate propositions, as follows:
“Resolved, That a special election in and for the village of Bellaire is hereby ordered to be held at the common council room in said village on Monday, the 18th day of June, A. D. 1906, for the purpose of voting upon the following distinct and separate propositions, to wit:
“ Proposition Number 1: To borrow the sum of $15,800 for the construction and maintenance of waterworks in said village of Bellaire.
“ Proposition Number 2: To raise by loan the sum of $6,200 for necessary corporate purposes, to wit, for the purpose of raising and repairing the dam and enlarging the power house of the electric lighting plant now owned and operated by the village of Bellaire.
“ The contents of the ballots on proposition number 1, toread: In favor of borrowing the sum of $15,800 for constructing and maintaining waterworks for the village of Bellaire.
“Yes ( )
“No ( )
“ The contents of the ballots on proposition number 2, to read: In favor of raising by loan the sum of $6,200 for raising and repairing the dam and enlarging the power house of the electric lighting plant of the village of Bellaire.
“ Yes ( )
“No ( )”
The necessary notices were given, a special election was held and both propositions were carried by more than a two-thirds vote. The above is all that appears of record as to the estimates and the action taken in relation thereto. Was what was done a substantial compliance with the provisions of the statute ? See 1 Comp. Laws, §§ 2890 to 2900. '*
The requirement of the statute that the village, before borrowing, appropriating, or spending money for the purpose of construction of water works, shall, by its council, cause to be made an estimate of the expense thereof, has not been complied with. The approximate estimate furnished by the engineers was tentative, and was for no fixed amount. It was accompanied by written instructions and suggestions whereby it could be reduced in amount, as the following statement clearly shows:
“ It occurs to us that with the suggestions in this letter the council can use the estimate of figures in a way that will enable you to submit a proposition within the bonding limit.”
No official action upon the acceptance or adoption of the estimate was ever had. This we consider necessary, for the reason that without such action, there is no official declaration of the amount required.
From this so-called estimate, no one can tell what amount the council has determined was required for such waterworks. In fact, the council has never determined the amount required to construct these waterworks, either by adopting an estimate, or by independent resolution. There is no indication in proposition number 1, submitted to the electors, as to what proportion was for construction, and how much was to be used for maintenance. The statute does not authorize money to be borrowed for maintenance of waterworks.
The section of the statute under consideration, i. e., section 2893, 1 Comp. Laws, reads in part as follows:
“ Before any money shall be borrowed, appropriated, raised or expended for the purchase or construction of waterworks in any village, the counoil shall cause to be made an estimate of the expense thereof, and the question of raising the amount required for such purpose shall be submitted to the electors of the village, at its annual election, or at a special election called for that purpose by the council, as provided for in this act, and shall be determined as tw* thirds of the electors voting at such election by ballot shall decide.”
Under this section, the voter would have a right to rely upon the fact that $15,800 was the amount required. Nowhere in this record appears an answer to the important question, What was the amount required ? Fifteen thousand eight hundred dollars was not that amount, nor is it claimed that $23,940.55, as the required amount, has ever been submitted to the people.
It is not necessary to discuss the other questions raised. The action of the council was void, as were also the election proceedings which followed. The decree should be reversed and a decree entered in favor of complainant, as prayed, with costs of both courts.
Blair, Ostrander, Hooker, and Moore, JJ„, concurred. | [
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] |
Hooker, J.
The complainant in this cause is a trustee under certain conveyances to William B. Hale made by the heirs and executor of William M. Ferry, deceased. He has filed the bill to reform a quitclaim deed of several parcels of land, given to him as such trustee, by the defendant, one or more of which descriptions were incorrect in the range, being mistakenly described as follows: viz., S. W. £ of N. W. £, sec. 2; N. E. £ of S. E. £ of sec. 3; E. £ of N. W. £, and N. £ of N. E. £ of sec. 9; S. W. £ sec. 9; S. E. £ of S. E. £ of sec. 17; S. £ of S. E. £ of sec. 23; S. W. £ of N. E. £ of sec. 30, all in township 13 N. of range 16 W. Also the S. W. £ of N. W. £ sec. 25, in township 13 N. of range 16 West. The bill claims that the land in sections 2, 3, 9,17, 23 and 30, mutually understood as being the subject of said deed, was in township 13 North of range 15 West, and it prays that defendant be required to execute a proper conveyance to correct said mistake. The testimony is conclusive in support of the allegations of the bill and an affirmance of the decree would be a matter of course, except for the defense set up, which challenges the equity of the relief asked and prays affirmative relief.
These lands ' were all held by complainant in trust, through the conveyances from the Ferry heirs and executor, and were sold by complainant as such trustee to the defendant by written contract and proper descriptions on May 1, 1905. The contract price was $1,200, and this not being paid when due, the complainant, after futile efforts to obtain payment, wrote the defendant on November 8, 1906, as follows:
“Muskegon, Mich., Nov. 8, 1906.
“M. B. Wheeler,
“ Grand Rapids, Mich.
‘ ‘ Dear Sir: There is past due upon your land contract of May 1, 1905, $600 and interest at five per cent, from May 1, 1905, less $25 paid by A. D. Nichols (that should be O. D. Nichols). I wish you would adjust this matter without further delay. If you do not propose to pay this amount, I wish you would surrender your land contract.
“ Yours truly,
“R. A. Fleming.”
He received this answer:
“Grand Rapids, Mich., Nov. 9, 1906.
“Mr. R. A. Fleming,
“Muskegon, Michigan.
“ Dear Sir: Answering yours of the 8th I am not desirous of continuing the land contract that I have with you in my name for myself and associates. If you will be kind enough to make up a reconveyance and send it to me for my signature I will give it my attention promptly. ”
The correspondence continued as follows:
“Muskegon, Mich., Nov. 10, 1906.
“ M. B. Wheeler, Esq.,
“ 1001 Michigan Trust,
‘ ‘ Grand Rapids.
‘ ‘ Dear Sir: I have received yours of the 9th inst. Complying therewith I enclose herewith quitclaim deed from yourself and wife' to me as trustee covering the descriptions in your land contract dated May 1, 1905, except the southeast quarter of the northeast quarter of section 9, town 13 north of range 15 west, which has been deeded to Obed D. Nichols. Kindly execute the deed and return it to me. I wish you would send me the abstracts of title and tax histories covering these descriptions.
“ Yours truly,
“ R. A. Fleming.”
“Muskegon, Mich., Dec. 1, 1906.
“M. B. Wheeler, Esq.,
“ Grand Rapids.
“ Dear Sir: Complying with yours of November 9th, I wrote you November 10th enclosing a quitclaim deed to be executed by yourself and wife in settlement of your land contract made with me May 1, 1905. Since then I have heard nothing from you. What is the cause of your delay ?
“Yours truly,
“R. A. Fleming.”
“Grand Rapids, Mich., Dec. 3, 1906.
“Mr. R. A. Fleming,
“ Muskegon, Mich.
“ My dear Mr. Fleming: In response to yours of the 1st, I have not forwarded you the instrument you desire on account of Mrs. Wheeler’s illness. I will have her sign this paper this week some time and send it to you, which I trust will be entirely satisfactory.
“Yours truly,
“M. B. Wheeler.”
“ Grand Rapids, Mich., January 12, 1907.
“ Mr. R. A. Fleming,
“ Muskegon, Mich.
“ Dear Sir: As requested by you, we are enclosing herewith quitclaim deed dated November 10th, 1906, for descriptions in our land contract of date May 1,1905, except the southeast quarter of the northeast quarter of section 9, town 13 north, of range 15 west.
“Yours truly,
“M. B. Wheeler.”
The deed enclosed was the defective instrument.
Complainant discovered the error in July, 1907, after selling one of the parcels, and asked that the defendant correct it by giving a new deed, which he sent him for that purpose, but it was never executed, hence this suit was begun.
The defense made is that the quitclaim deed was given by Wheeler to carry out the arrangement consented to by him, to surrender his contract for these lands. Mr. Wheeler asserts in his answer that he was the owner of some tax titles and interests to and in, and perhaps some other claims upon, the premises, some acquired before the land contract was made and some afterward; that he was under no obligation to convey these under such arrangement to surrender his contract; that b e was informed by complainant that a quitclaim deed was a proper instrument to make in order to accomplish the surrender of the contract, and that he was not aware that it would have the effect to divest him of other titles or interests than that held and contracted to him by complainant, and that at the time he made the quitclaim deed he had no knowledge in relation to the titles to the lands described therein, and believed and relied on the statements of complainant, viz., that “a quitclaim deed was the only way by which said contract could be surrendered;” that it would simply convey to complainant the interest acquired by the land contract; that all of the tax interests acquired by defendant before and after the execution of the contract had merged in the complainant’s contract, and that they legally belonged to him, and that the defendant had no right to retain them.
The substance of the prayer of the answer is that the quitclaim deed already made be interpreted as covering only the titles and interest obtained from the complainant and be declared void for every other purpose. Apparently there is no other objection to a correction of the description. In the trial court, complainant obtained a decree in accordance with the prayer of the bill and defendant has appealed.
A copy (stenographic doubtless) of an oral opinion given by the learned circuit judge states that two options preceded this land contract, which were fully understood by the defendant, as were also the circumstances surrounding the transaction, that both parties understood that the arrangement was one through which the defendant was to acquire outstanding tax titles, and that the price paid complainant was based upon that understanding ; oral, it is true, but nevertheless one which had a substantial bearing upon complainant’s consent to sell and the price charged.
We find evidence which tends to corroborate this, and although the final written contract imposes no such obligation in terms, the defendant did, after the time that the first option was made, obtain other tax interests and titles, by purchase and redemption, and when the conclusion was reached to surrender the contract, he apparently recognized the claim that under the dealings had he was in duty bound to surrender the perfected title. His excuse now is ignorance of the law, an ignorance which is most surprising for a dealer in lands and titles to the extent that Wheeler and Opdyke, his associates, appear to have been. Although not legally bound in writing to purchase these titles for the benefit of the security of the vendor, it was equitable for him to carry out his oral promise, and having recognized his obligation by attempting to do so, accepting a release from his promise on executing a deed through the surrender, equity does not demand that he be allowed to disregard such settlement. We therefore agree with the trial judge that there was no fraud on the part of complainant, and that equity does not demand a limitation on the interest mentioned in the quitclaim deed, and that the proofs warrant the decree made by him.
The decree is affirmed, with costs.
Grant, O. J., and Blair, Montgomery, and Ostrander, JJ., concurred. | [
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Cooley, J.
The circuit judge who took the testimony -and heard these cases found material facts as follows :
That one Lucy Piquette was the patentee of certain lands in Ottawa county, including a parcel of about forty-four acres now claimed by these parties respectively.
That prior to August 6, 1860, she made a mortgage of ■.said lands, which was subsequently the subject of a suit for ■foreclosure, in the Ottawa circuit court in chancery, in which suit decree for sale was made, and the lands were sold to William M. and Thomas W. Perry.
That afterwards, and on December 16,1867, said William M. and Thomas W. Ferry, for a valid consideration, by a ■deed with full covenants of warranty, conveyed seventy acres, including the lands now in controversy to James B. Soule.
That on August 28,1868, James B. Soule mortgaged the lands so conveyed to one Edward L. Craw for the sum of three thousand dollars, of which mortgage, after it had been endorsed down to fifteen hundred dollars, the insurance •company became the owner.
That the foreclosure of the Piquette mortgage was invalid, and did not cut off the equity of redemption, and •on September 20, 1873, Lyman D. Norris became the owner of such equity of redemption by deed from Mrs, Piquette.
That afterwards, on June 15, 1875, Norris conveyed the premises in controversy to Edward P. Ferry, executor of the-estate of William M. Ferry, at the request and by the procurement of James B. Soule, who then continued to be the-owner of the title derived from the Ferrys, and also of Edward P. Ferry, executor as aforesaid, and who was also agent and attorney of Thomas W. Ferry; and that it was-the intention and purpose of the parties to said conveyance that the same should operate to perfect the conveyance-from the Ferrys to James B. Soule, and to discharge the Ferrys from liability upon their covenants.
And that the force and effect of the Norris conveyance-was to perfect the title so conveyed by the Ferrys to Soule..
We concur in this finding, and do not deem it necessary to enlarge upon it. Some further facts, however, require-to be now stated.
March 10, 1871, Soule conveyed twenty acres, part of the-land, for a consideration of $5000, to one Alonzo J. Sawyer, and as a part of the consideration Sawyer was to pay $1500, the balance owing on the Oraw mortgage, then held by the insurance company. The deed was expressly made subject to this payment; and in January, 1872, Soule obtained from Sawyer a bond of indemnity as further security. He afterwards conveyed six acres more of the land to hi& sister, Mrs. Craw.
Flavius J. Hough was then the general agent of the insurance company, and he was notified of this sale to Sawyer, and that Sawyer assumed the payment of the mortgage. Sawyer himself requested Hough to notify him as interest came due, and he did so, and Sawyer paid interest for several years.
The lands were known as fruit lands, and Sawyer, who-was a man of considerable means, was purchaser for a rise of other lands in the neighborhood. In 1876, however, there was a very great depreciation- in the market value of these lands, and Sawyer became unable to meet his obligations. The insurance company then called upon James B. Soule for payment; failing to obtain it, foreclosed its mortgage by advertisement, and bid in the land. After the time for redemption expired, the company obtained possession, and filed its bill to quiet the title. Linnie S. Soule, who, with knowledge of all the facts, had received a conveyance from James B. Soule of the lands in dispute,, filed a cross-bill claiming title and praying decree accordingly.
The circuit court made decree as prayed by complainant in the original bill, and the complainant in the cross-bill appeals. Edward P. Perry, who is defendant in both bills,, makes no claim.
The decree is right if the foreclosure of the Craw mortgage is sustained. But it is contended by Mrs. Soule that there are fatal defects in the proceedings, and also that before the foreclosure the insurance company had estopped itself by the acts of its general agents from resorting to her lands.
The supposed estoppel depends upon the testimony of James B. Soule, and of Craw who is bis brother-in-law. Soule testifies that shortly after the sale to Sawyer, having an ambition to get the remainder of his farm freed from incumbrance, he asked Hough to have the insurance company release it. Hough said he would see about it and let him know. Some time after that Hough told him it was a great deal of bother to release it, or something of that kind, but that he considered the land sold to Sawyer good security and satisfactory and all that, and that he was glad to deal with a man like Mr. Sawyer who he knew would pay the interest. After that conversation Soule was not called upon to pay interest until 1876. Again he says: “ Mr. Hough told me that it would be a good deal of bother for them to release a part of the land; that they had extended the time to Mr. Sawyer, and that the twenty acres and Sawyer were just as good security as thé insurance company wanted; that he himself would be glad to have the Sawyer land for twice the amount of the mortgage; that the insurance company would never look to me or my land for any part of the money, and that I might rest at ■ease about the matter.” Craw’s testimony tends to confirm this evidence, and Hough’s to contradict it.
No claim is made upon the evidence that there was in fact at any time an extension given to Sawyer, and Sawyer himself testifies that there was none. ' The demand was simply allowed to remain uncollected so long as the interest-was met. Soule claims, however, that by the sale to Sawyer and the assumption of the mortgage by the purchaser, Sawyer in equity became the principal debtor, and Soule, the mortgagor, the surety. If this is not strictly correct, so far as the parties are concerned, the transaction had the effect to make the land sold to Sawyer the first fund to be resorted to, and the land retained by Soule the secondary or security fund. Metz v. Todd 36 Mich. 473. Hough, it is shown, was aware of this fact, and made what statements he did make with knowledge of it.
The authority of Faxton v. Faxon 28 Mich. 161, is invoked to support an estoppel. That was the case of a distinct renunciation of a demand, made for the purpose of inducing a party to change materially his plans of life, and to incur heavy expenditures; and it was very justly held that after the change had been made and the expenditures incurred in reliance upon the renunciation, the creditor must abide by it. In effect a parol contract, made on ample consideration and performed on one side, was specifically enforced in that case. But in this case there was no contract and no consideration; there was simply a request for a discharge not acceded to, and some very strong statements that the party making the request would not be called upon for payment. It is not claimed that in this State the failure of the creditor to enforce his demand against the principal at the request of the surety would have the effect to release the surety; for Pain v. Packard 13 Johns. 174, which originated that doctrine, is repudiated in this State as it is in most others. Inkster v. First Nat. Bank 30 Mich. 143. The estoppel, then, must stand upon the representations.
In Parker v. Leigh 2 Starkie 228, the acceptor of a bill of exchange drawn by one "Williams, was sued upon it. It was proved in defense that the plaintiff, when applied to on behalf of the defendant, against whom he held other claims, had said he should look to Williams for payment of this bill, and upon that statement the other demands had been paid. Lord Ellenborough held this to be no defense, there being neither an express renunciation of all claim, nor a consideration for any. A somewhat similar case is Adams v. Gregg 2 Starkie 531; and there the statement of the holder of a bill to the accommodation acceptor, that he should not be troubled upon it, was held no defense. And see Dingwall v. Dunster Doug. 247; Ellis v. Galindo Doug. 250, note.
Two or three American eases seem to be very directly in point. In Mahurin v. Pearson, 8 N. H. 539, it appeared that the surety on a note had informed the holder that he wished it sued as soon as due, as he did not wish to stand security any longer. The holder replied that a part of the note had been paid and arrangements made for the remainder, and he should not call on the surety for it. Parker, J., said: “ The evidence offered is not sufficient to discharge the surety. Mere delay by the creditor to collect the debt, after a request to that effect by the surety, will not operate as a discharge; and we are of the opinion that the evidence does not show such a renunciation of all claim upon the surety, as can avail to discharge him without any consideration paid, or evidence of loss sustained. Whether evidence of the latter description is admissible in such case may perhaps admit of question.” In Driskell v. Mateer 31 Mo. 325, the evidence was that the surety said to the creditor that he must make the amount of the note out of the principal, and the creditor replied that he need put himself to no further trouble about the note; that he had made a present of it to the principal. This was held to be no release of the surety unless in consequence thereof he bad «banged bis situation, as by surrendering securities or forbearing' to demand them. A case much bke tbis and •decided tbe same way is Brubaker v. Okeson 36 Penn. St. 519.
There is no claim in tbis case tbat Soule was misled as to tbe facts, unless .it be as to tbe giving of time to Sawyer, which by itself was unimportant; for if time bad been given neither tbe company nor Soule would have been bound by it, unless it appeared tbat tbe extension was for a consideration ; for it is not the forbearance to collect, or tbe promise to forbear, but tbe contract, which operates tbe discharge. Page v. Webster 15 Me. 249: s. c. 33 Am. Dec. 608; Tudor v. Goodloe 1 B. Mon. 322; Greely v. Dow 2 Met. 176; Veazie v. Carr 3 Allen 14; Agee v. Steele 8 Ala. 948; Wheeler v. Washburn 24 Vt. 293; Sowell v. Sevier 1 Lea 360: s. c. 27 Am. Rep. 771; Berry v. Pullen 69 Me. 101: s. c. 31 Am. Rep. 248. There is not only in tbis case no word respecting a, consideration for an extension, but any promise of an extension is disproved. Meantime tbe fact was understood tbat tbe debt remained undischarged, as well as to Soule as to tbe land; and it was with this fact in mind tbat Soule confided in an assurance of an .agent tbat be would not be called upon by the principal to •pay tbe debt. Meantime be surrendered no security, but retained bis indemnifying bond. Neither did be change bis situation in reliance upon tbe assurances, unless it can be said that improving his own land was such a change. But as, previous to tbe collapse in 1876, be believed, as Hough did, tbat tbe land sold to Sawyer was ample for tbe satisfaction of tbe mortgage, it is clear that be did not suppose be was exposing property to loss by bis improvements. He was putting bis land in condition for use, and bad every reason to suppose, and did suppose, be should enjoy his improvements in any contingency. Why should be not suppose so % He bad sold tbe land which was liable before bis own for more than three times the amount of tbe debt, and the record contains no evidence tbat any one supposed tbe price was extravagant. The very great fall in market value was, evidently, wholly unexpected.
It would be dangerous doctrine which should make such talk as was sworn to in this case an absolute discharge of the .surety, when there was no misleading as to the facts, no renunciation of a claim, and no promise to give a discharge, even if that could be effectual; and when it is not claimed that there was any consideration whatever upon which to base a promise. If the law were to enforce such assurances .as were said to have been made here, it ought to enforce promises to make gifts; for that, in its final results, would be what this would amount to.
Passing by, then, the question made by the insurance company, whether Hough, who had no authority to give a written discharge to Soule, could nevertheless discharge his land by oral statements, and conceding that the company was bound by whatever was said by him, we fail to find an ■estoppel made out, and are of opinion , that the company was at liberty to foreclose its mortgage against all the land, .■as it assumed to do.
It remains to see whether valid objections to the fore■closure sale are shown.
The record of the evidence returned to us does not contain the papers proved before the judge, but only his statement of what they were, and what objections were made ■to them. The insurance company, it is stated, offered in evidence the sheriff’s deed on foreclosure by advertisement, together with copy of notice and proof of publication attached. The sheriff’s deed was objected to as incompetent, irrelevant and immaterial; and the notice as fatally defective because it was signed “ Michigan State Insurance Company” instead of “ The Michigan State Insurance Company ” which is the corporate name. This last very techni■cal objection we pass by with the simple remark that the .statute does not require the party foreclosing to sign his name to the notice : it is sufficient if the name is specified therein. Comp. L. § 6915. We are not informed that it -was not. The general objection to the deed was worthless, unless some specific defect was pointed out, and it does-not appear that such was the case. The judge appears to-bare decided cbrreetly.the only specific objection which was made, and we must assume that if there had been any other-possessing merit it would have been suggested. On the record before us, the foreclosure is not successfully assailed..
The decree should be affirmed with costs.
The other Justices concurred. | [
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] |
Geavbs, O. J.
The plaintiff company, described as an Ohio corporation, sued Bondie on the common counts, and the circuit judge directed a verdict in his favor.
The purpose of the action was to recover a portion of the purchase price of a threshing-machine which Bondie had purchased of the company by means of an order which its agents had procured from him. A copy is given below. Tbe body was a printed blank which the plaintiff had prepared for general use, to be filled up and modified in .separate cases according to the view's of the parties. As here shaped and executed on the 9th of June, 1880, it provided that the purchase price should be paid by Bondie’s promissory notes, secured by mortgage on certain real estate, and no other form of personal liability was provided for or contemplated. Except as he should be personally liable as maker of the notes, he was not to be personally liable at all. Such was the original character of the order ; but about two weeks after it was signed, and before delivery of the machine, Bondie desired a modification, and the company assented to it. It consisted in adding these words: “ It is understood that no notes are to be given on this sale, but a simple Michigan mortgage.”
In the course of a few days the parties proceeded to ■carry out the arrangement as thus modified. The machine was delivered by the company and a mortgage given by Bondie as provided in the order. No notes were given, and the mortgage was in common form, without covenants.
The result seems very clear to the Court. Although the original tenns requiring that Bondie should give notes were not physically obliterated, the addition of the new provision had the clear effect as matter of law to eliminate them from the order. They were annulled, and the machine was to be furnished by the company, if at all, in sole reliance on the provision for mortgage security. The terms prescribed by the proposal as modified excluded all others. The plaintiff was informed upon what conditions the defendant would become a buyer, and all other conditions were impliedly negatived, and the effect was to shut out the personal liability now contended for.
This disposes of the case and leads to an affirmance of the judgment, with costs.
The other Justices concurred.
Exhibit A.
to Russell & Co., Massillon, Ohio, and to the party through whom the machinery was purchased, stating wherein it fails to fill the Warranty, .and time, opportunity, and friendly assistance given to reach the machine and remedy any defects. If the defective machinery cannot then be made to fill the Warranty it shall he returned to the place where received and another furnished on the same terms of Warranty, or money and notes to the amount represented by the defective machine shall be returned, and no further claim be made on Russbll & Co. Continued possession or use of the machine, after the expiration of the time named above, shall be conclusive evidence that the Warranty is fulfilled to the full satisfaction of the purchasers, who agree thereafter to make no other claim on Russbll & Co., under Warranty. In case any ■casting fail through any defect in its material during the first season, defective piece shall be replaced without charge, except freight or express charges; but on any claim for replacement of defective castings, the defective pieces shall be presented to Russbll & Co.,.or the dealer through whom the machine was ordered, and shall clearly show the ■defects. Defects or failure in one part shall not condemn nor be grounds for claiming renewal, or for the return of any other part. All Warranties to be invalid and void in case the machine is not settled for when delivered.
Set of Tally Boxes to he included in the above. It is understood that no notes are to be given on this sale, but a simple Michigan mortgage.
Robbrts Bros., Agents. | [
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Hooker, J.
The plaintiff was a saloon keeper doing business in a building leased by him from the defendant Peter Tierney. The lease was in writing and contained a covenant to pay rent and the following provision:
“ Provided, that in case any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part, his certain attorney, heirs, representatives and assigns, to re-enter into and repossess the said premises, and the said party of the second part and each and every other occupant to remove and put out.”
The lease was dated August 5, 1905.
In May or June, 1906, the plaintiff executed and delivered to defendant a chattel mortgage to Secure a debt of $200. It covered the following property:
“One National cash register, six pairs curtains, one kitchen stove, one gas stove, all gas fixtures, twelve chairs, three tables, one desk, all stocks of wines, whiskeys, beer, and other liquors of every kind and description, all glasses, two mirrors, about twelve artificial palms, one clock, and, in fact, all my personal property of every kind and description.”
It contained stringent provisions as to taking possession and foreclosure, with the right to sell at private sale without notice.
Being in arrears both in the rent and the chattel mortgage debt, the defendant called at plaintiff’s place of business and suggested that plaintiff “close up the business,” or, as plaintiff testified:
“He says: ‘You better give up the ghost.’ Isays, ‘No, Harry, I don’t want to give up; if got to close this place up I want to see legal advice first,’ and I went out. He says, ‘ You can.’ I went out, and while I was gone to get legal advice, it took me only half an hour, and not quite that even, the place was locked against me when I came back. Hyman Mitchell was in possession. I had a talk with the Tierneys after that about regaining possession. When I went out to get legal advice from an attorney, I went to Mr. King’s office first in order to get the ’phone to call Mr. Fox; from there I went to Mr. Fox’s office. I returned then directly with Mr. Fox. I made an attempt to try the door and it was barred. When I left there to get advice, I left the bartender, Mr. Hyman; he remained there until the time he was told to get out in the evening; he was in the building when Mr. Fox and I came back and attempted to get in. I went home after that, and I got back and the whole place was locked up and I couldn’t get in at all. I did not tell Mr. Hyman to leave or give up possession. After that Hyman Mitchell and the Tierneys, very likely, remained in possession. The business was closed. It remained closed until the sale, and it was opened again after that, after someone bought it on a private sale; they commenced to use the building I had rented.”
This action was subsequently brought, plaintiff claiming damages against the defendants for breaking up and destroying his business by unlawful acts. The court directed a verdict for the defendants.
Plaintiff claims that the defendants seized and sold the property on the chattel mortgage, and took possession of the store wrongfully and withheld it from him. The undisputed proof shows that the defendants, being lawfully in the store, took possession of the chattel-mortgaged property, bolting the door for the purpose of taking an inventory, plaintiff’s bartender remaining and aiding in taking an inventory until, that being done, he was told by the defendants that he would not be needed longer. The mortgage covered all the personal property belonging to plaintiff and after its seizure, which was rightful, there is nothing to indicate either an ability or desire by the plaintiff to continue the business. It is obvious that he had no right of recovery growing out of the seizure and sale of the property. Under the terms of the lease he had forfeited the right to the possession of the premises, and by his own express covenant the plaintiff had a right to reenter and put him out.
There was nothing in the nature of force in the entry, or in obtaining possession, although there was proof that plaintiff’s lawyer afterwards demanded possession. The plaintiff bases his action on the claim that he had a right to possession, although his own contract shows that he had no such right and that defendant had such a right. The question was passed upon in, and the case is ruled by, our decision in the case of Smith v. Building Ass’n, 115 Mich. 346. See, also, Murphy v. McIntyre, 152 Mich. 591.
Again, the court was correct in saying that no damages, beyond nominal damages, were proven in the case, even upon the plaintiff’s theory, and this would not call for a reversal. Hickey v. Baird, 9 Mich. 38; Haven v. Manufacturing Co., 40 Mich. 286; Lewis v. Railway Co., 56 Mich. 638; Stevens v. Yale, 113 Mich. 680; Wilcox v. Morton, 132 Mich. 64.
The judgment is affirmed.
Ostrander, Moore, Carpenter, and McAlvay. JJ., concurred. | [
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] |
Blair, J.
Plaintiff sued defendant on the common counts in assumpsit to recover for services alleged to have been performed in its behalf, and filed the following bill of particulars:
“1904, July 23, to 1905, July 17.
“ To personal services in and in connection with making and looking after contracts and supervising the construction of railroad grade and railroad bridges.
“To services in and in connection with and looking after contracts for the construction of building, including tipple, engine house, boiler house and other buildings.
“To services generally in connection with and in the construction and development of the What Cheer Coal Mining Company’s plant and property and the handling of all business matters connected therewith and with the completion of its plant and facilities for operating as a coal mining proposition, including railroad facilities and marketing the product of the company’s mine----$5,000.
“Interest on the above at 5 per cent, to date of judgment.”
In April, 1901, the plaintiff was employed by the Wenona Coal Mining Company, a corporation composed of Mr. E. B. Eoss, Mr. Jackson, Mr. Norris, and Mr. Conway, as stockholders. The capital stock was $100,000, of which Mr. Eoss owned one-third, Mr. Norris one-third, and Messrs. Jackson and Conway, together, one-third. Mr. Norris was president, Mr. Jackson, vice-president, Mr. Conway secretary, and Mr. Foss treasurer and general manager.
Mr. Foss testified:
“ The management of the Wenona Coal & Mining Company was entirely with me, but I always consulted more or less with Mr. Norris. Mr. Jackson did not give it much attention. ”
That he employed plaintiff at a salary of $1,400 a year:
“ The substance of the conversation was that he would enter my employ — my employ and that of the Wenona Coal Mining Company at a salary of $1,400 per year; that he was to do anything in the coal line, either for me or the company or the Wenona Coal Mining Company, that I might ask him to do, without other compensation.”
Plaintiff testified that his employment was in behalf of the corporation only, and was to look after the business in a general way under the direction of Mr. Foss.
In May, 1902, Mr. Foss bought the Jackson stock and transferred $5,000 of it to plaintiff, taking his note, holding the stock as collateral, to be paid for out of dividends, plaintiff paying the renewal discounts. Plaintiff was elected secretary, and in February, 1903, his salary was raised to $2,000. Mr. Foss was the owner of leasehold interests in certain coal lands in Bay and Saginaw counties, and plaintiff testified:
“Prior to the organization of the What Cheer Coal Mining Company I was associated with the property that afterwards came into possession of the company. My connection with the property commenced in June, 1902. Mr. Foss was also connected with this property, and brought it to my attention, and from that time on I was in a way connected with it. * * * Mr. Foss and I had an arrangement relative to the work; the What Cheer Coal Mining Company articles of incorporation are dated July 28, 1904, and in the arrangement I had with Mr. Foss I was to be a stockholder in that company. * * *
“Mr. Foss had the articles prepared and I signed them and a few minutes after they were signed on the same day, in Mr. Foss’ office, which was also the office of the Wenona Coal Mining- Company, I had a conversation with Mr. Foss. * * *
“ I called Mr. Foss’ attention to the fact that there was but one share of stock set opposite my name, and told him that was not according to our agreement or understanding, and he says, ‘ Never mind, Mr. Buttle, I have done that for a special reason,’ giving the reason. * * * And he says, ‘that matter will be fixed up later, and you will be taken care of all right. Don’t worry about that, it is all right.’
“Q. At that time what was said about the future work of the What Cheer Coal Mining Company as to what should be— * * *
“A. I was to look after their work.
“Q. What work were you to look after?
“A. Everything in general.
“Q. What was said with reference to your looking after the work, and with reference to the work that had been done before between you and Mr. Foss ? * * *
“A. Mr. Foss being general manager, he says, ‘Go ahead, Mr. Ruttle, and we will push the thing along under the new organization, the What Cheer Coal Company,’ and that I was to take the general supervision of everything. Mr. Foss was general manager, president and treasurer of the What Cheer Company. Walter I. Foss was vice-president, and I was secretary. At the time the corporation was formed, the company had, as near as I can recollect, 960 acres of coal lands tested up. Some of these lands were owned previously by Mr. Foss. The others were covered by coal leases.”
The articles of association of defendant were signed July 23d, 1904, but were not filed with the county clerk until August 16th following. The capital stock of $100,-000 was divided into 4,000 shares, of which Mr. E. B. Foss subscribed for 3,998 shares, Mr. W. I. Foss, his son, for one share, and plaintiff, for one share. Plaintiff testified as to the agreement that he should have stock in defendant company:
“Q. Was the amount fixed?
“A. The amount was set previous to that, it was fixed previous to that time.
“Q. At how much ?
“A At from ten to fifteen thousand dollars.
“Q. That is the proposition you refer to ?
“A Yes, sir.
"Q. As a gift outright ?
“A That was the proposition.
"Q. That is, you were not to pay anything for it ?
“A I was to have that for my services at the time the What Cheer Company was organized and for my services afterwards I was to be compensated.
“Q. But that was the proposition that you have referred to at times ?
“A. Yes, sir.
“Q. And that was the only one ?
“A. That was the only one. Mr. Foss represented the defendant in all talks about any proposition with me, and the talk was before the company was formed. No recorded action was ever taken relating to my claim. * * *
“Q. Was the talk as to the stock, that is, the understanding as to the stock, a part of the understanding as to the compensation that you speak of also ?
“A. The stock I expected I would get at the time the ' company was organized, the compensation would be after.
“Q. I understand, but was it your claim that the stock was also a statement of the compensation ?
“A. It was up to that time.
“Q. Up to what date ?
“A. Up to the organization of the company.
“Q. After that do you claim that your stock that you should have received is a part of the compensation for your work which you did ?
“A. No, sir.”
Plaintiff testified that he was employed each day by the defendant company and put in “from half to two-thirds of my time.”
In July, 1905, plaintiff resigned his office in both companies, sold his stock to Mr. E. B. Foss, and soon after-wards commenced this suit. No salary was fixed for any of the officers or directors and none of them drew any down to the time of plaintiff’s resignation. Plaintiff recovered a judgment upon verdict of the jury for $2,000, which defendant has removed to this court for review upon writ of error. Counsel for defendant present their argument in support of the assignments of error under seven heads, as follows, viz.:
(1) The claimed contract did not bind defendant.
(2) Employment by Wenona Company precludes recovery. .
(3) There could be no recovery on an implied contract.
(4) No competent evidence of the value of plaintiff’s services.
(5) Limitation of defendant’s proof.
(6) Contract claimed not a divisible one.
(7) General rulings.
Under this head it is argued:
*' Contracts between the corporation and third persons must be entered into by the directors and not by the stockholders. * * * A single stockholder cannot make a contract for and in the name of the corporation which has any binding force or validity, except by subsequent ratification or adoption by the corporation in the regular manner. * * * Although one person owns a majority of the stock, or all of it, or all but two shares, he does not in consequence thereof acquire the right to act for the corporation, or as the corporation, independently of the directors. 2 Cook on Corporations (5th Ed.), § 709; Randall v. Dudley, 111 Mich. 437, 439; Rough v. Breitung, 117 Mich. 48, 55; In re Moser, 138 Mich. 302, 313; Louisville Banking Co. v. Eisenman, 19 L. R. A. 684 (94 Ky. 83); Rice v. Peninsular Club, 52 Mich. 87.”
It is further contended that under section 6995, 2 Comp. Laws, any agreement between plaintiff and Eoss prior to the filing of the articles of association and payment of the franchise fee could not bind the corporation. Wright v. Sugar Co., 146 Mich. 555; Hastings Industrial Co. v. Moran, 143 Mich. 679.
The evidence warrants the conclusion, at least, that the corporate organization as actually executed was a mere cover for Mr. E. B. Eoss, under the protection of which it was designed that he should individually conduct the business. The property turned over to the corporation all belonged to him, and the affairs of the corporation were controlled and managed by him without even the formal action of a board of directors. Plaintiff and W. I. Eoss were mere nominal stockholders for purposes of organization, and, in fact, Mr. E. B. Foss was the corporation.
In the paragraph of Cook on Corporations cited by defendant, the author says, after using the language quoted in the brief:
“There are, however, two exceptions to the rules given above. The first is that corporate action may arise in other ways than by the formal action of its board of directors or meeting of stockholders or of its agents. * * * The second exception is that where a corporation is merely a ‘ dummy,’ the court has power to ignore its corporate existence and to hold that the acts of the stockholders are the acts of the corporation itself.”
It is unnecessary to determine that, under the circumstances of this case, the contracts of Foss in advance of incorporation would bind the corporation, since, according to plaintiff’s testimony, Mr. Foss recognized the alleged agreement after incorporation and promised to carry it out. We are, also, of the opinion that if the jury believed the testimony of plaintiff they would be amply warranted in finding that the corporation after its legal institution ratified and adopted the alleged agreement and, in the absence of an express agreement, knowingly accepted the benefit of plaintiff’s services. The directors, who comprised the entire body of stockholders of the corporation, having permitted the president, treasurer and general manager to exercise all of their functions and to assume the entire control and management of the corporate affairs, and having received the benefit of his acts and of plaintiff’s services, the legal entity is as much bound as though it had itself formally contracted for the services. 2 Cook on Corporations (5th Ed.), § 707. We do not think that" the court erred in refusing to direct a verdict for defendant on this ground.
Did the fact that plaintiff’s services for the period in question were contracted for by the Wenona Company and a salary paid therefor preclude a recovery from defendant? The Wenona Company is not raising this question and it does not come with good grace from Mr. Foss, who claimed, in substance, that the services of plaintiff were rendered for the defendant under the original agreement with the Wenona Company “that he was to do anything in the coal line either for me or the company or the Wenona Coal Mining Company that I might ask him to do without other compensation.” Plaintiff testified that he fully performed all of the services required of him by the Wenona Company and the general manager of the company authorized his employment by defendant. We think the court properly refused to direct a verdict for defendant on this ground. Smith v. Railroad Co., 102 N. Y. 190; Wallace v. DeYoung, 98 Ill. 638.
It is claimed that because plaintiff was a stockholder, secretary, and director of defendant company, the law presumes, in the absence of an express contract, that his services were gratuitous and there could be no recovery on an implied contract in this case. We do not think that the court would have been justified in instructing the jury, as a matter of law, that, under the circumstances of this case, no agreement to pay for plaintiff’s services could be implied. Dodger. Traction Co., 152 Mich. 100.
The only evidence offered of the value of plaintiff’s services was his own testimony that they were worth $5,000. The plaintiff testified as to the character of his services and, in a general way, what he did, and was cross-examined at length upon the whole subject. As stated by the trial judge in overruling the motion for a new trial, “the services rendered by plaintiff, as testified by him, were of such a character that it would be difficult, if not impossible, to place a value upon the several items of service as they were performed.” We agree with the circuit judge that it cannot be said, as a matter of law, that there was no competent evidence upon the subject.
Plaintiff testified, somewhat vaguely, that he devoted from one-half to two-thirds of his time to the performance of the services for defendant. At the same time he claimed that he was fully discharging his duties towards the Wenona Company and was also rendering services to Mr. E. B. Foss, individually, for which he had brought suit. The court permitted the defendant to show the fact that plaintiff had sued Foss for alleged services covering the same period, but refused to permit it to show the amount of the claim or the character of the services. In this ruling we think the court was in error. It was admitted that there was no agreement fixing the amount of plaintiff’s compensation and that he was only entitled to recover what his services were reasonably worth. The time which could be devoted to defendant’s service must depend largely upon the extent and character of the services rendered to his other two employers. While the value of plaintiff’s services to Foss was not material, we think their character and extent were. And we are of the opinion that where a man claims to be employed by three masters at the same time, as in this case, very wide latitude is permissible on cross-examination, and that defendant’s counsel should have been permitted to inquire fully into the details of the claim.
This contention is not supported by the testimony.
Plaintiff was permitted to answer the following question:
“Q. What was the book value of the stock in the Wenona Company at the time you made the sale to Mr. Foss ?
“A. Approximately 85 per cent, above par, $1.85. I sold the stock to the Wenona Coal Company.” •
He was then permitted to show that he sold the stock to that company for the amount that had been paid by him with the discount added. He was also permitted to show that on his sale to the Wenona Company he got no benefit of the increase in value of such stock and that during such time he was paying interest at the rate of 6 per cent, per annum.
On cross-examination of Foss by plaintiff’s counsel, the following occurred:
“Q. When Mr. Jackson retired from the company he simply took out and was paid by you the money which he put in ? Objected to as immaterial. Objection overruled and exception taken.
“A. That is the case.
“Q. Totally without interest ?
“A. He didn’t get any interest.
“Q. He never got a cent of dividends before he sold, out of his stock ?
“A. I don’t think he did.”
The objections to these questions should have been sus tained. The testimony elicited was immaterial and obviously prejudicial to defendant.
For the errors above pointed out, the judgment is reversed, and a new trial granted.
Grant, O. J., and Montgomery, Ostrander, and Hooker, JJ., concurred. | [
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Sharpe, J.
On June 25, 1929, the plaintiff Mary Fetters entered into a written oil and gas lease with, the defendant Wittmer Oil & Gas Properties of 40 acres of land in the county of Isabella. It provided for the delivery to her of a stated amount of the product, if found upon the premises, and the payment of a fixed quarterly rental until operations for a well were begun. On October 8, 1930, the bill of complaint was filed for the cancellation of this lease.
We quote from the answer of the defendants thereto:
“Further answering said bill of complaint, these defendants allege, on information and belief, that this litigation has been instigated and is being maintained and financed by one Edmund E. Johnston, who, these defendants are informed, has entered-into a contract with plaintiffs, under the conditions of which plaintiffs' have conveyed, or have agreed to convey to the said Johnston, certain interests in the oil, gas and minerals on the property described in said bill of complaint, in consideration of the services of the said Johnston in instigating, maintaining and financing this litigation.
“In this connection, defendants further show to the court, that said Johnston is not a licensed attorney — practicing in the State of Michigan; and that this suit is but . one of many that has been instigated and is being maintained and financed by the said Johnston.
“Defendants further show to the court, in this connection, that they claim that the above-mentioned contract — between said plaintiffs and said Johnston — is champertous, and is void under the laws of this State, and that plaintiffs should not be permitted the aid of this court of equity to carry out the provisions of such contract.”
The proof submitted by the plaintiffs tended to establish their claim that the lessee was a common-law trust in the State of Pennsylvania, and had failed to comply with our law to entitle it to do business in this State, and that the lease was therefore unenforceable and void. The trial court so found, and entered a decree accordingly, from which the defendants have appealed.
The defendants sought to introduce proof tending to establish the allegations in their answer above quoted. The trial court held that it was not admissible, but permitted the evidence relating thereto to be taken under the provision in 3 Comp. Laws 1929, § 14159, and it appears in the record under the heading 1 ‘ Segregated Testimony. ” It is undisputed, and discloses the following facts: That on July 29, 1930, the plaintiff Mary Fetters, the lessor in said lease, entered into a written agreement with one Edmund E. Johnston, of the city of Saginaw, which, after reciting that such lease had been given and that it had been “obtained from the party by trickery, deceit and misrepresentation,” and was in fact and in law “null and void,” and that she did “not feel justified in using her own means to engage in litigation necessary to move said lease as a cloud upon the said property and is wholly inexperienced in such matters,” and that Johnston “has the means to engage in said litigation and is experienced therein, and is desirous of canceling and annulling said lease and the record thereof,” provided that Mrs. Fetters, in consideration of the payment to her of one dollar and “the mutual covenants and agreements hereinafter set forth,” agrees that, upon performance by Johnston of his “covenants and agreements hereinafter set forth,” she “will forthwith execute and deliver” to him “the lease, Exhibit A, hereunto attached and made a part hereof.” She further agreed to assist him “by all reasonable and lawful methods” in clearing the title to the land, “but at his expense and without any cost whatsoever to her,” and she authorizes him to retain attorneys and commence a suit and “to do any and all things necessary and proper in the conduct of such litigation, and to prosecute said litigation to a successful termination, but without cost to her.”
She further agreed that—
“In the event any commercial well shall be drilled contiguous to the land heretofore described, party of the first part agrees to execute and deliver on demand of second party the lease, Exhibit A, and grant him the right to enter upon said land and, if party of the second part desires, and at his own expense, to drill an offset well or wells, thereto in accordance with good oil field practice; and in the event the litigation contemplated by this contract to annul said lease is unsuccessful, then, and in that event, party of the first part agrees to reimburse party of the second part for all costs and expenses he is put to connected with said litigation, and for the cost and expenses of drilling said well, and all costs and expenses including the placing of pipes and tanks and other necessary equipment for the saving of oil, anything in this contract to the contrary notwithstanding. ’ ’
In consideration of her promises, Johnston agreed to “take all necessary and proper action” in court to “proceed with all diligence at his own expense” to have the lea.se to the defendant Wittmer Oil & Gas Properties “set aside, canceled and annulled,” but in the event of an adverse decision in the trial court he would be under no obligation to appeal the ease unless on the recommendation of his attorneys, and, if so taken, he would bear the expense of the same.
It was further provided:
“The parties hereto agree that all statements, representations and agreements made by the parties in negotiating this contract are merged herein, and that no forfeiture of this contract shall be allowed unless party of the second part shall have had reasonable written notice of the cause and fails to comply within a reasonable time thereafter, but this shall not be construed as giving a right of forfeiture where none exists under the contract.”
The evidence discloses that this contract was entered into at the solicitation of Johnston, and that he had procured like contracts from a number of others who had entered into similar leases with the Wittmer Oil & Gas Properties. Mrs. Fetters testified that she was then living with a daughter who had also given such a lease; that Johnston “had been there a couple of times, I think, before we made up our minds that we would sign.’-’ (She afterwards qualified this by saying that he had been there as many as five times.) That she knew that several of her neighbors had entered into such an agreement; that she had received the rentals provided for in the lease until she signed the bill of complaint, and thereafter refused to accept the checks therefor because instructed by Johnston to do so.
In answer to the question:
“Let me ask you this, Mrs. Fetters, up until the time that you met this man Johnston you had never had any complaint in the world about your lease, had you?”—
She said: “No, sir.” In our opinion, this evidence was admissible, and should be considered in its bearing upon the right to maintain this suit in a court of equity. We may take judicial notice of the fact that Johnston’s activities in this respect were not confined to leases to the defendant company. He secured similar contracts from other lessors in the same territory, and suits in which they were involved have been presented to this court. See Sheahan v. Athens Gas Corp., post, 331; Wild v. Pure Oil Co., post, 356; Flood v. Johnston, post, 354. It is apparent that, when unable to obtain leases from landowners, he deliberately set about to find some reason for the cancellation of those in existence, and, if found, to secure contracts from the lessors similar to that in question.
At the common law, champerty was regarded as an offense of a high grade, as malum in se, and all contracts tainted with it were held to be void. This court applied that rule in the early case of Backus v. Byron, 4 Mich. 535. ' Many definitions of the term will be there found. We quote but one: “The unlawful maintenance of a suit in consideration of an agreement to have part of the thing in dispute, or some profit out of it.” It is also said to be the intermeddling in a suit by a stranger having no interest therein under an agreement with one of the parties by which the intermeddler is to secure a part of the thing in dispute, and differs from maintenance, which is the offense of intermeddling where there is no agreement to share the proceeds. Stotsenburg v. Marks, 79 Ind. 193, 196. In 1 Bouvier’s Law Dictionary (Rawle’s Rev.), pp. 305, 306, after defining champerty as—
“A bargain with a plaintiff or defendant in a suit, for a portion of the land or other matter sued for, in case of a successful termination of the suit which the champertor undertakes to carry on at his own expense, ’ ’—
it is said:
“The tendency of modern decisions is, while departing from the unnecessary severity of the old law, at the same time to preserve the principle which defeats the mischief to which the old law was directed. It has been the disposition of courts to look not so much to technical distinctions, and by treating statutes on the subject as declaratory of the common law, to deal with the subject with more flexibility, keeping in view the real object of the policy to restrain what was defined by Knight Bruce, L. J., to be ‘the traffic of merchandizing in quarrels, of huckstering in litigious discord;’ Reynell v. Sprye, 1 D. M. & G. 660, 686 (42 Eng. Repr. 710). In this spirit, the common-law rule relative to champerty and maintenance is no longer recognized in many states ; Bundy v. Newton, 65 Hun (N. Y.), 619 (19 N. Y. Supp. 734, 29 Abb. N. C. 66); Nickels v. Kane’s Adm’r, 82 Va. 309; Brown v. Bigne, 21 Ore. 260 (28 Pac. 11, 14 L. R. A. 745, 28 Am. St. Rep. 752); Byrne v. Railroad Co. (C. C.), 55 Fed. 44; Bentinck v. Franklin, 38 Tex. 458; Campbell v. Everts, 47 Tex. 102, 106.”
After the decision in Backus v. Byron, supra, in which it was held that an agreement with an attorney to prosecute an ejectment suit for an interest in the property was champertous and void, the legislature, in 1867, passed Act No. 58, which, as after-wards amended, appeared in 3 Comp. Laws 1897, § 11254, reading as follows:
“That all existing laws, rules, and provisions of law, restricting or controlling the right of a party to agree with an attorney, solicitor, or counsel, for his compensation, are repealed, and hereafter the measure of such compensation shall be left to the agreement, express or implied, of the parties. ’ ’
This provision was further amended in the judicature act (3 Comp. Laws 1915, § 12079, 3 Comp. Laws 1929, § 13600) by adding thereto:
“But any agreement by which any attorney or counselor is to receive any percentage or portion of the recovery in any cause, in consideration of his services therein, or in consideration of his having advanced or paid all, or any portion of the expenses of such cause, shall be wholly void if such employ ment shall have been induced by the solicitation of such attorney or counselor, or any one acting in his behalf, or at his request, without such services having been first solicited by such party.”
It will be seen that this section applies only to contracts between attorneys and clients, and in no way refers to a person intermeddling in contracts between parties, who is not an attorney. Notwithstanding the statutory provision, it was held in Jordan v. Westerman, 62 Mich. 170 (4 Am. St. Rep. 836), that:
“A contract made between a wife and her solicitors in advance of a decree for divorce and allowance of alimony, giving the solicitors one-half of such alimony, is void as against public policy.” (Syllabus.)
Counsel for the plaintiffs rely on the holding in Wildey v. Crane, 63 Mich. 720, cited with approval in National Adjusting Ass’n v. Dallavo, 253 Mich. 239, wherein it was said that the common-law doctrine was repealed by the passage in 1867 of Act No. 58. In the latter ease, Chief Justice Butzel expressed a doubt as to whether the doctrine as applied to other than attorneys ever existed in this State.
In Young v. Young, 196 Mich. 316, a married woman gave a stranger a writing in which she promised to pay him one-half of all moneys received by her in a divorce suit against her husband, which he promised to promote. This instrument was offered in evidence in the divorce suit, and given much consideration. In the majority opinion it was said (p. 322):
“The paper was a nullity; as a contract it was void as contrary to public policy. If it was ex- eeuted with full knowledge of its contents, if this bill was filed as a result of a conspiracy to bleed the defendant, or if this proceeding was instituted because of Quilhot’s influence over plaintiff, and not by reason of a good-faith grievance, her bill should be dismissed.”
It was, however, held that under the evidence the bill was not filed as a result thereof, and the decree was affirmed. From this holding there was dissent.
The plaintiff Mary Fetters was satisfied with the terms of her lease with the defendant Wittmer oil company. She had accepted the payments of rental due thereon until told by Johnston to return them. While in the agreement he caused the fact to be stated that her signature to the lease “was obtained # * * by trickery, deceit and misrepresentation,” which rendered it null and void, we find no proof in the record tending to support such statement. His purpose was to commence a suit in her name to secure the cancellation of the lease, and, if successful, to obtain a lease to himself in which he would take the place of the defendant. The agreement stated that a copy of this proposed lease was annexed thereto, but it does not appear in the record.
In Holland v. Sheehan, 108 Minn. 362 (122 N. W. 1, 23 L. R. A. [N. S.] 510, 17 Ann. Gas. 687), an agreement between a layman and an attorney for a division of the fees collected by the latter in suits for personal injuries brought to him by the former was held to be contrary to public policy and void. In the closing paragraph of the opinion the court said:
“The intermeddler, the fomenter of litigation, has always been obnoxious, and he has received scant treatment at the hands of the law. The business of bureauing personal injury litigation by a layman under agreement with an attorney to share in the profits is too clearly at variance with and in violation of sound morals and the general policy of the administration of justice to receive our sanction or approval.”
Public policy is defined by Bouvier (Yol. 2, p. 792) as—
“That principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good,”—
And there is added thereto:
“It has been designated by Burroughs, J., as ‘an unruly horse pursuing us, and when once you get astride of it you never know where it will carry you.’ Richardson v. Mellish, 2 Bing. 229, 252 (130 Eng. Repr. 294).”
In a lengthy discussion of the application of this term to contracts in 6 E. C. L. p. 712, it is said:
“It embraces all acts or contracts which tend clearly to injure the public health, the public morals, the public confidence in the purity of the administration of the law, or to undermine that sense of security for individual rights, whether of personal liberty or of private property, which any citizen ought to feel.”
“A contract by which a stranger is to sustain the expense of the prosecution or defense of litigation, especially when he is to have an interest in the result thereof, is void.” Greenhood on Public Policy, p. 394.
“Although maintenance in its simple form and even champerty is looked upon by the courts with less disfavor than formerly, schemes to promote litigation for the benefit of the promoter rather than for the benefit of the litigant are regarded as contrary to public policy, and will not be enforced. Contracts of ‘ambulance chasers’ and others who make for themselves a business or profit by promoting litigation are unenforceable.” 3 Williston on Contracts, § 1714.
“Where A, having a right which was supposed to be of uncertain extent, likely to be resisted or questioned, and not susceptible immediately or easily of proof, and B undertook the ascertainment and establishment of this right, on the terms of the expenditure for the purpose being his, and of his having half the benefit of what should be so obtained: held, that such an agreement (whether it amounted strictly in point of law to champerty or maintenance so as to constitute a punishable offense or not) must be considered against the policy of the law mischievous, and such as a court of equity ought to discourage and relieve against.” (Syllabus) Reynell v. Sprye, 1 D. M. & G. 660 (42 Eng. Repr. 710).
Somewhat similar contracts were before the supreme court of Minnesota in Huber v. Johnson, 68 Minn. 74 (70 N. W. 806, 64 Am. St. Rep. 456), Gammons v. Johnson, 69 Minn. 498 (72 N. W. 563), Gammons v. Johnson, 76 Minn. 76 (78 N. W. 1035), and Gammons v. Gulbranson, 78 Minn. 21 (80 N. W. 779), wherein it appeared that one Huber secured from 71 persons owning farms, through which a railroad passed, a contract whereby he would prosecute in their respective names, but at his own expense, claims for damages for its failure to fence its right of way, as required by the statute. These contracts were all held to be void as against public policy. In the first of these cases, after referring to the provisions of the common law rendering such contracts void because champertous, the court said:
“But the essential principle upon which these statutes proceeded, and the evils and abuses at which they were aimed, are as old as human society, and will continue as long as human society exists. The general purpose of the law against champerty and maintenance was to prevent officious inter-meddlers from stirring up strife and contention by vexatious or speculative litigation which would disturb the peace of society, lead to corrupt practices and pervert the remedial process of the law. The principle upon which it proceeded was that contracts conducive of such results were against public policy. Blackstone speaks of men who are perpetually endeavoring to disturb the repose of their neighbors, and officiously interfering with other men’s quarrels, as ‘the pests of civil society.’ This view was not peculiar to the common law. The Roman law animadverted with equal severity on this class of men and their practices. This class of men in the form of ‘prowling assignees’ and intermeddling speculators are unfortunately just as numerous, and their practices just as pernicious, as they ever were. * * * We do not think that any court, even of those which hold that these statutes are not im force, has ever gone so far as to hold that contracts may not so manifestly tend to stir up strife and contention and vexatious and speculative litigation, and prevent the amicable compromise of claims between citizens, as to be void on grounds of public policy. The contract under consideration is, in our judgment, one of this class. Here a party, who is a stranger to both the defendant and the'claim which is the subject of the contract, and has no object in intermeddling with the matter except a speculative one, undertakes to hire an attorney, and prosecute a suit for the collection of the claim entirely at his own cost and expense for the half of what he may collect on it.”
Upon principle as well as authority, we think it must be held that this contract was void as against public policy.
Counsel for the plaintiff insists that if the contract be in effect void as between the parties thereto the rights of the plaintiff in this suit against the defendant are not affected thereby. Reliance is placed upon the following statement of the court in Foley v. Railway Co., 157 Mich. 67, 69:
“Even if the rule is still in force as to agreements with laymen, we think the better rule is that the contract is only void as- between the parties, and does not affect the obligation of the defendant to the plaintiff. 6 Cyc. pp. 880, 881, and cases cited in notes.”
In that case it appeared that one Sullivan had an arrangement with the plaintiff—
“Whereby he was to procure attorneys, help him in the prosecution of his suit, and pay the expenses of the suit, in consideration whereof he was to receive 10 per' cent, up to $5,000 of the amount recovered. It also appears that the attorneys employed for plaintiff were to receive a percentage- of the amount recovered as their compensation.”
In Burnes v. Scott, 117 U. S. 582 (6 Sup. Ct. 865), it was held:
“The making of a ehampertous, and therefore under the law of the State void aiid illegal, contract for the prosecution of a suit to collect a promissory note, cannot be set up in bar of a recovery on the note.” (Syllabus.)
In Croco v. Railroad Co., 18 Utah, 311, 323 (54 Pac. 985, 44 L. R. A. 285), speaking of such a contract, it was said:
“Under such circumstances it does not lie in the mouth of the defendant to set up that fact for the purpose of escaping the payment'of an honest debt, or avoiding a just liability.”
Conceding the rule to be as stated in actions of contract or tort to recover damages alleged to be due the plaintiff, is it applicable to the facts here presented? This suit is not brought to recover any moneys due upon the lease or to collect damages for any breach thereof by the lessee. Cancellation is here sought on the claim that, at the time it was entered into, the Wittmer company was “incapable of making a valid contract in said State of Michigan.” Mrs. Fetters testified, as before stated, that she accepted the rentals under it and had no complaint about it until she met Johnston. In her contract with him it was recited, as before stated, that it was obtained from her “by trickery, deceit and misrepresentation. ” It is apparent that she was not informed of the reason now assigned for cancellation, and that she signed the contract because she had been informed that several of her neighbors had executed similar ones.
Where a party has a- claim for damages or an indebtedness due from another party, the law will not permit a defendant to escape liability by showing that the action was induced by such a contract. The sole question is whether he ought to respond in damages on the claim as made by the pleadings. But when the relief sought is, as here, the cancellation of a written instrument based entirely upon a claim of inability of the other party to enter into the contract, and it appears, as it does here, that the person with whom Mrs. Fetters has contracted is engaged in the business of securing such contracts from others and engaging in litigation thereunder, in onr opinion a court of equity should decide that it may not he used for such purpose, and that the contract, void as between the parties thereto, so taints the proceeding that the relief prayed for will not be granted. Such contracts must be measured by their tendency, and not merely by what is being done to carry them out. Thomas v. Caulkett, 57 Mich. 392 (58 Am. Rep. 369).
Contracts affecting interests in real estate are in most cases required to be in writing. If the parties thereto be satisfied with the terms thereof and accept the benefits as they accrue to them thereunder, strangers who have no interest therein should not be permitted to intermeddle and conduct a suit in a court of equity in the name of one of the contracting parties, but for the benefit of themselves. If the right to do so be here sustained, a lessee such as we have here, or others who have secured long term leases on property which has advanced in value, may well feel insecure. The right to contract concerning that which a person owns or possesses is one prized by all people. When reduced to writing and duly executed by the parties thereto, they are bound thereby, in the absence of a claim of fraud or mistake or other equitable reason for cancellation. Thereafter each of them has a right to rely on the binding force or effect thereof. And where both parties thereto are satisfied with its terms and its binding effect, a stranger, an intermeddler, who has no interest in the property affected by it, should not be permitted to seek the aid of a court of equity for its cancellation under such a contract as was here entered into.
The question presented is not whether this court has jurisdiction to hear and decide the suit, but whether, under the record presented, a court of.' equity ought to do so.
“Courts of equity have a very large jurisdiction in the sense of power itself. They have an important secondary jurisdiction to determine when they ought and when they ought not to, use that power. Power is given in very broad field, coupled with a very broad discretion as to when and when not to use it.” Wadhams Oil Co. v. Tracy, 141 Wis. 150, 156 (123 N. W. 785, 18 Ann. Cas. 779).
In treating the subject of rescission and cancellation of written instruments, in 2 Story’s Equity Jurisprudence, § 934, it is said:
“Before proceeding to the consideration of these distinct and important subjects it may be proper to suggest that the application to a court of equity for either of these purposes is not, strictly speaking, a matter of absolute right, upon which the court is bound to pass a final decree. But it is a matter of sound discretion to be exercised by the court, either in granting or in refusing the relief prayed, according to its own notion of what is reasonable and proper under all the circumstances of the particular case. ’ ’
In 4 B. C. L. p. 497, the rule is thus stated:
“Courts of equity have the power to order a void deed, bond, or other instrument, to be delivered up to be canceled, even in cases where the invalidity appears, on the face of the instrument. Though formerly some doubt was entertained as to whether a court of equity ought to decree cancellation of instruments absolutely void at law, the authorities proceed on the general principle that the exercise of this power is to be regulated by sound discretion as the peculiar circumstances of each case may dictate, and that the resort to equity, to be sustained, must 1be expedient, either because the instrument is liable to abuse from its negotiable nature, or because the defense not arising on its face may be difficult or uncertain at law, or from some other special circumstances peculiar to the case, and rendering a resort to equity highly proper, and clear of' all design to promote litigation and expense.”
Mr. Justice Nelson said in Propeller Mohawk, 8 Wall. (75 U. S.) 153, 162, in which the plaintiff sued upon a cause of action assigned to him, and which the real party in interest declined to prosecute:
“The suit in the present case has been instituted by a volunteer, on a speculation; and we are not sorry that, upon the application of the principles of law governing it, the experiment must fail.”
Mr. Justice Bradley, in Graham v. Railroad Co., 102 U. S. 148, quoted with approval the following from Prosser v. Edmonds, 1 Y. & C. 481, 497 (160 Eng. Repr. 196):
“All our cases of maintenance and champerty are founded on the principle that no encouragement should be given to litigation by the introduction of parties to enforce those rights which others are not disposed to enforce. There are many cases where the acts charged may not amount precisely to maintenance or champerty, yet of which upon general principles, and by analogy to such acts, a court of equity will discourage the practice.”
That the circuit court, in chancery, had jurisdiction over the parties and the subject-matter is apparent. But whether the relief of cancellation of a written instrument shall be granted must be determined by the application of the doctrines of equitable jurisprudence to the facts presented. Venner v. Railway Co., 153 Fed. 408 (aff’d, 209 U. S. 24 [28 Sup. Ct. 328]).
In Young v. Young, supra, the agreement between the plaintiff and a third party under which he was to receive one-half of the moneys awarded to plaintiff in a divorce case was admitted in evidence, and it was held that such agreement was void as contrary to public policy, and, if executed by plaintiff with full knowledge of its contents, her bill should be dismissed. While it may be said that a different rule should be applied in divorce cases, wherein the public are at least to some extent interested, the holding-rested on the ground that the agreement was void on its face as against public policy. See, also, Windisch v. Mortgage Security Corp., 254 Mich. 492.
In Hathaway v. Hudson, 256 Mich. 694, the following- from 9 C. J. p. 1161 was quoted by Mr. Justice North with approval:
“An application to a court of equity for the rescission, cancellation, or delivering up of agreements and securities is not founded on an absolute right, as in case of an action at law on a contract or in tort, but is rather an appeal to the sound discretion of the court, which in granting or refusing the relief prayed acts on its own notions of what is reasonable and just under all the surrounding circumstances.”
The contract in question being void, neither of the parties thereto can acquire any enforceable rights thereunder. Mrs. Fetters could not enforce the. promise of Johnston to pay the costs and expenses of litigation in case of a decision adverse to her, nor could he compel her to execute or deliver the lease to him provided for therein.
In closing, it is but fair to say that the record does •not disclose that the attorneys for plaintiff had anything to do with the making of this contract or are in any way personally interested in the result of the litigation.
A decree may be here entered dismissing the bill of complaint, with costs to appellants.
Wiest, J., concurred with Sharpe, J. McDonald and Potter, JJ., concurred in the result. | [
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Fead, J.
This case was originally heard as upon bill for injunction to restrain infringement of a patent, and was so reviewed by this court in 253 Mich. 324, and remanded for more testimony. Further hearing appears to have been upon the same issue, as no other contention was mentioned in the well-considered opinion of the circuit court holding that jurisdiction is in the Federal court.
Counsel for plaintiff concede that the State court has no jurisdiction in an action for infringement of a patent, but now claim that the suit is to enjoin violation and to enforce specific performance of an agreement, in the assignment of patent, to transfer improvements to plaintiff. The bill contained such a prayer.
In the former opinion this court said:
‘ ‘ The record is that defendants have no improvement. ’ ’
The preponderance of the testimony taken on remand was that the device complained of is not an improvement on the patent and was not an invention by any defendant but was prior art.
The decree dismissing. the bill for want of jurisdiction, but without prejudice to right of plaintiff to bring suit in Federal court, is affirmed, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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Fead, J.
March 21, 1927) A. Mittelman borrowed $2,500 from plaintiffs on his promissory note, indorsed by defendant Wexler. Payments were made at times, the note renewed at 60-day intervals, and on January 23, 1928, the balance was $1,800. Mittelman owed plaintiffs $385.40 on another note, indorsed by one Lipsitz. Plaintiffs claim. Mittelman wanted to incorporate the sum in the larger note and plaintiffs consented on the condition that Wexler indorse it. The sum was incorporated, the note renewed at $2,185.40, Wexler’s indorsement appeared upon it and upon six subsequent renewals, upon the last of which, given in January, 1929, plaintiffs had judgment against Wexler on trial before the court without a jury. Mittelman had gone away and could not be served.
Defendant Wexler claimed that he had indorsed the various notes in blank each time, that Mittelman was to make payments and fill in the amount on renewals for the balance, and that he, Wexler, never authorized incorporation of the $385.40 in the sixth note of the series.
Plaintiffs claimed that, while some of the renewals were presented in blank, bearing Wexler’s indorsement, and the amounts • were filled in at plaintiffs’ office, Mittelman. got Wexler’s indorsement on the note including’ the $385.40, and that, when the note in suit was given, plaintiffs filled in the blanks, Mittelman took it away, and a short time later returned with Wexler’s indorsement on it.
After the note was protested, plaintiffs wrote Wexler several letters, but received no reply, and ■had a conversation with him in which plaintiffs claimed Wexler did not deny authorizing the larger amount, but Wexler testified that he first found out about the incorporation of the $385.40 after the protest and objected to it.
If Wexler indorsed the note in blank, Mittelman had prima facie authority to fill in the note for any amount. 2 Comp. Laws 1929, § 9263. However, if plaintiffs were not holders in due course, Wexler would not be liable unless the note were filled in “strictly in accordance with the authority given.” The burden of proof was upon Wexler to show that when he signed the note the amount was blank and it was filled in contrary to his authorization. Madden v. Gaston, 137 App. Div. 294 (121 N. Y. Supp. 951).
In very large measure the case depends upon the credibility of the witnesses. The judgment indicated the court did not credit Wexler’s claims. Reading of the printed testimony does not overcome the finding of the court, made with the advantage of a view of the witnesses, and we cannot say that Wexler sustained the burden of proof or that the verdict was against the preponderance of the evidence. This renders it unnecessary to consider whether plaintiffs, payees, were or could be holders in due course.
Judgment affirmed, with costs.
Clark C. J., and McDonald,’ Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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North, J.
Plaintiff, a practicing attorney, on a contingent-fee basis undertook to represent Leo Paquin and Mrs. Paquin in separate claims for damages alleged to have been suffered by them through the negligence of the driver of a motor vehicle which was covered as to liability for personal injury and property damage by a policy of insurance issued by the Hartford Accident & Indemnity Company to the owner of the vehicle. Herein we designate the defendant as the indemnity company.
Through an arrangement by plaintiff another attorney in January, 1949, brought suit in the Federal court for the eastern district of Michigan for Mrs. Paquin. Suit was not started for Mr. Paquin. As the case in Federal court was about to be reached for trial, adjusters of the indemnity company, without knowledge of plaintiff, induced, according to plaintiff’s claim, “Leo Paquin and Bessie Paquin, his wife, to discharge plaintiff and thereby break their contingent-fee contract with him.” The Pa-quins, represented by another attorney, subsequently retained, settled their damages for an agreed amount of $7,000. Plaintiff’s contingent-fee contract provided he should have 40% of any amount received in settlement, and 50% of any amount recovered if suit were brought. The indemnity company had notice and knowledge of the contingent-fee contract with plaintiff; and evidently on that account caused $3,600 of the settlement money to be paid into court to be disposed of according to decision in a cross bill of interpleader wbicb the indemnity company had filed in a pending suit for an injunction brought by plaintiff herein in the circuit court in chancery in Wayne county, Michigan. In the equity suit plaintiff herein sought an injunction against the settlement of the damages alleged to have been suffered by Mr. and Mrs. Paquin “for some amount grossly inadequate and for an amount which would reduce the value of plaintiff’s lien to a mere fraction of its real worth.” And plaintiff alleged that his lien on the amounts recoverable by the Pacquins was “reasonably worth $25,000.” The injunction suit was dismissed as to defendant herein. In the interpleader proceedings plaintiff filed a motion to have the funds paid to the clerk of the court turned over to plaintiff. Thereafter by stipulation of the interested parties the interpleader proceedings were dismissed, the $3,600 fund deposited in the court being disposed of as follows:
“To Stanley S. Krause the sum of..... $1,530.00
To Karl G~. Eisele (the attorney retained by the Paquins) the sum of........ 1,350.00
To Leo Paquin the sum of............. 360.00
To Bessie Paquin the sum of.......... 360.00.”
Subsequent to dismissal of the injunction suit as to the indemnity company (March 29, 1950), but prior to the stipulated settlement of the interpleader proceedings (October 17, 1950), plaintiff by declaration instituted ,the instant suit against the indemnity company for damages in a substantial amount alleged to have been suffered by plaintiff as a result of defendant’s adjusters having “wilfully and maliciously” induced “Léo Paquin and Bessie Paquin to break their contingent-fee contract with this plaintiff.” The defendant appeared and on June 9, 1950, which was also prior to the stipulated settlement of the interpleader proceedings, moved to dismiss plaintiff’s suit. This motion was heard and granted June 19, 1950. Subsequently the court heard and denied plaintiff’s motion to set aside the order of dismissal. Plaintiff’s appeal is from these 2 orders of the trial court.
As a ground in support of the order dismissing plaintiff’s suit it is asserted in this Court by appellee that in the instant case plaintiff, by the acceptance of $1,530 incident to the stipulated settlement in the interpleader proceedings to which sum plaintiff asserted his right under his contingent-fee contract, elected to assert a contractual right incident to which his remedy was in assumpsit based on his contingent-fee contract; and by having done so plaintiff waived his right to proceed with his present suit in tort and thereby obtain relief, notwithstanding this suit was started prior to plaintiff’s acceptance of the $1,530 in settlement of the interpleader proceedings.
Under the circumstances of the instant case, we are in accord with appellee’s contention. The parties agree that, notwithstanding plaintiff’s contingent-fee contract, Mr. and Mrs. Paquin had a right to settle their claims for damages sustained incident to the automobile • accident. See Nichols v. Waters, 201 Mich 27. On the basis of the settlement made, plaintiff by stipulation received $1,530 in the interpleader proceedings as an amount due him under his contingent-fee contract. Plaintiff thereafter could not successfully prosecute a tort action against either Mr. or Mrs. Paquin or against the defendant herein for damages which he alleges-he suffered in consequence of a breach by Mr. or Mrs. Paquin of their contingent-fee contract with plaintiff. Otherwise plaintiff in collecting the amount he asserts is his due under the contingent-fee contract would be permitted to resort to 2 incon sistent remedies, one in assumpsit and the other in tort. Under the settled law in this jurisdiction resort to' 2 inconsistent remedies is not permissible.
“Where there is an alternative right of recourse to an action based on the theory of a tort committed against the plaintiff and one based on the theory of a right of recovery upon contract or implied contract, the plaintiff, by suing on either theory, elects against adopting the other.” 1 Callaghan’s Michigan Pleading and Practice, p 217, § 9.10.
Our holding in Hassberger v. General Builders’ Supply Co., 213 Mich 489, is in accord with the above-quoted statement of law.
“Purchaser’s claim that seller of corporate stock promised to purchase it back is inconsistent with claim that he induced said purchase by fraud, and therefore purchaser could not recover on both theories.” Beverly v. Richards (syllabus), 255 Mich 508.
See, also, Monroe v. Hoffman, 276 Mich 281.
We decline to act in accord with appellant’s contention, that since plaintiff did not receive the $1,530 in settlement of the interpleader proceedings until after the trial court had granted defendant’s motion to dismiss, therefore this Court in reviewing the trial court’s order may not consider plaintiff’s acceptance of payment out of the fund deposited in court incident to the cross bill of interpleader filed in the equity suit brought by plaintiff herein against the Paquins and the defendant indemnity company. To so proceed would only open the door for renewal of the motion to dismiss on the basis of present undisputed facts and result in unnecessary additional proceedings in the instant case. On the record before us we conclude that the order of dismissal entered in the circuit court should be affirmed.
But entirely apart from the foregoing, we tbinlr the trial judge reached the right conclusion for reasons about to be noted. In passing upon the trial court’s order dismissing plaintiff’s suit, all properly-pleaded facts alleged in plaintiff’s declaration must be accepted as true. Cell v. Yale & Towne Manfg. Co., 281 Mich 564; Greater Muskegon Club Building, Inc., v. Commons, 321 Mich 371. Hence, in this ease the question is presented: Did defendant’s alleged wilful and malicious inducement of the Paquins to break their contract with plaintiff constitute an actionable tort on the part of defendant?
Prom the early case of Lumley v. Gye, 2 Ellis & Blackburn 216 (118 Eng Rep 749), most of the common-law courts have adopted and enlarged upon the. idea that unlawful interference with another’s contract rights constitutes an actionable tort. In general that proposition has been adopted in this jurisdiction. See Morgan v. Andrews, 107 Mich 33; Wilkinson v. Powe, 300 Mich 275. But the interference must be unlawful in character. Hence, if the defendant in the instant case was privileged to interfere with the contingent-fee contract between plaintiff and the Paquins, the fact that the privilege was exercised without proper motive does not take away the privilege character of defendant’s act.
“Bad motive, by itself, * * is no tort. Malicious motives make a bad act worse, but they cannot make that a wrong which in its own essence is lawful. ‘An act which does not amount to a legal injury cannot be actionable because it is done with a bad intent.’” 3 Cooley on Torts (4th ed), § 534, p 545.
The question of the right of an attorney to sue a third party for inducing his client in the absence of the attorney’s consent to settle a case is somewhat novel in this State. However pertinent statements of law will be found in Nichols v. Waters, supra, and tbe question has been before the courts of other States. In Nichols v. Waters, supra, at page 35, we said, “we think the overwhelming weight of authority is in support of the proposition that any agreement by a client with his attorney prohibiting the former from settling pending litigation without the attorney’s consent is void as against public policy.” Numerous authorities are there cited and we held accordingly. The facts in the case of Cameron v. Barancik, 173 Ill App 23, are very similar to those in the instant case'. The Illinois court said:
“The gist of the charge .in the declaration is that Barannik maliciously induced or persuaded Rubish to break his contract with Cameron (who as attorney for Rubish had a contingent-fee contract). We find no evidence that Rubish broke his contract. The contract clearly reserved to Rubish the right to settle his claim, and provides that if he does settle he shall hold all moneys received in settlement as the agent of Cameron. There is no evidence tending to show that Barancik ever induced, persuaded, or attempted to induce or persuade Rubish not to so hold the money, or not to pay over to Cameron the whole or such part of it as he may have been entitled to under the terms of his contract. * * * Moreover, by the contract in question, Rubish not only reserved the right to settle his claim, * * * but if the contract could be construed as in any way preventing him from settling or compromising, it would be void in that respect. * * * A cause of action based solely upon an alleged breach of that part of a contract prohibiting such a settlement, could not be maintained, whether such breach were maliciously induced or otherwise.”
Under their contract with plaintiff, the Paquins in the instant case, as Rubish in Cameron v. Barancik, had the right to settle their claims. And it was the privilege of the defendant herein to negotiate with, the Paquins for the purpose of reaching a settlement. The Massachusetts case of Herbits v. Constitution Indemnity Co., 279 Mass 539 (181 NE 723), likewise was a case wherein defendant allegedly “ ‘wilfully and maliciously and with intent to deprive the plaintiffs of the benefits, advantages and profits’ ” of a contract of employment to represent the client by settlement or suit in her claim in tort for personal injuries, influenced and induced the client to settle with the alleged tort-feasor for an inadequate amount in consequence of which plaintiffs lost the benefits of the contingent-fee contract for their services. The Massachusetts court held:
“A defendant, ‘acting in the exercise of an equal or superior right which comes in conflict’ with the right of a plaintiff under his contract, may lawfully interfere with such right of the plaintiff. * * * In this case the act of the defendant which is complained of is the influencing, persuading and inducing the plaintiffs’ client to settle her tort action for an inadequate amount. It is not alleged or contended that she was defrauded. The contract between the plaintiffs and their client did not attempt to put any limitation on her right personally to settle the case or on the amount which should be accepted by her in settlement. * * * His (the attorney’s) client may without his consent or knowledge settle a pending suit brought and prosecuted by him. * * * The settlement made by the plaintiffs’ client was within her contract rights. She committed no breach of her contract with the plaintiffs by making the settlement. It follows that the defendant who induced her to make it committed no legal wrong against the plaintiffs.”
There is no allegation of fraud committed against the Paquins in plaintiff’s declaration in the instant case, nor is collusion alleged. Under facts similar to those in the instant case, the court in Fenwick v. Mitchell, 34 Misc 617 (70 NYS 667) held that by suit in equity an attorney might enforce his lien against the amount for which his client had settled without the attorney’s consent. But in its opinion the court said:
“If the parties collusively settled the action before judgment, for the fraudulent purpose of preventing the plaintiff’s attorney from getting a lien for his costs by means of a judgment, and of thereby cheating him out of his costs, and the plaintiff was irresponsible, the court would permit the attorney to enter judgment so as to frustrate the fraud. * ■* *
“Surely we cannot say that the client may settle at will without his attorney’s consent, * * * and then turn about and say that the attorney may, however, repudiate such settlement, and go on harassing the defendant by a continuance of the action as a speculation for his own benefit, to see if he cannot get more than he would get on the basis of the settlement. This would be not only a contradiction both in substance and in terms, but would besides reduce an honorable profession to the level of common barrators. It is not true. A genuine settlement extinguishes the cause of action forever, and the attorney’s lien is subject to the right of the parties to settle.”
In another New York case the court said: “The existence of the lien does not permit the plaintiff’s attorney to stand in the way of a settlement. The client is still competent to decide whether he will continue the litigation, or agree with his adversary in the way.” Peri v. New York Central & Hudson River Railroad Co., 152 NY 521 (46 NE 849).
In the light of the foregoing authorities it must be held that in granting defendant’s motion to dismiss and denying plaintiff’s subsequent motion to vacate the order of dismissal, the trial court ruled properly. Tbe dismissal of plaintiff’s suit is affirmed, with, costs.
Reid, C. J., and Boyles, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred with North, J. Dethmers, J., concurred in the result. | [
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] |
Si-iarpe, J.
This is an action in ejectment and involves possession of the south i of lots 11 and 12, block 2, Coridon Smith’s Addition to the village of Sparta. It appears that Villa Sanr was the owner of the above lots 11 and 12. On the southerly portion of lot No 12 is a residence and on the northerly portion of lot No 12 is an oil station, but a part of the station is located on the south half of lot No 12.
Willard Saur is the son of Villa Saur and acted as her agent. He arranged the sale of the south half of the lots to plaintiffs on August 1, 1946. He also arranged the leasing of the north half of the lots to defendant Gordon J. Wolbrink, then the sale to him on land contract April 8, 1947, and a deed December 31, 1948. On October 16, 1950, a survey was made of the property and it was found that the dividing line between the north and south half of lot No 12 would run through the south feet of the oil station. No survey of the property was made prior to its purchase by plaintiffs and defendant; and no one knew where the dividing line was. During 1947 and 1948, the supervisor of the township assessed the north 82 feet of lots 11 and 12 to defendant and the south 50 feet to plaintiffs.
It is the claim of defendants that the line was •established by Willard Saur, Frank Lundberg and G. J. Wolbrink at a point 82 feet from the north side of lots 11 and 12 which would include the oil station as a part of defendant’s property.
Defendants filed an answer to plaintiffs’ declaration, stating:
“1. That lots 11 and 12 of block 2 of Coridon Smith’s Addition to the village of Sparta, Michigan, ■ .was owned by a common grantor, that is, one Villa Sanr. * * *
“5. Defendants allege that the said common grant- or, having established the line between the property plaintiffs are purchasing and the property purchased by defendant Wolbrink by a practical location, the line so established is the line between the properties and not the surveyed line in accordance with the terms of the deed.”
' The trial court entered judgment in favor of defendants. In his opinion, he relied on Maes v. Olmsted, 247 Mich 180, where we said:
“The rule is stated in Herse v. Questa, 100 App Div (NY) 59, as reported in 91 NY Supp 778:
“ ‘Where adjoining owners took their conveyances from a common grantor with reference to a boundary line he had located on the ground, the deeds describing the tracts as certain lots in a block, the location, was, irrespective of lapse of time, binding on the owners and those claiming under them. (Syllabus)’ ”
Plaintiffs appeal and urge that the trial court was in error in applying the law of equity to an action in ejectment. The .Olmsted Case relied on by the trial court was a suit in equity to quiet title to the boundary line between 2 lots. The instant case is an action in ejectment begun in the circuit court of Kent county on the theory that defendants hold possession of real estate owned by plaintiffs.
In Bush v. Merriman, 87 Mich 260, we said:
“In this State the distinction between law and equity, as applied to remedies, has been kept up. The courts of law have no jurisdiction to reform written agreements. This jurisdiction is exclusively vested in courts of equity, and it has long been settled that ■ if, by reason of fraud, mistake, accident, or surprise, an instrument does not express the true intention and meaning of the parties, equity will upon satisfactory evidence reform it.”
In Skiba v. Gustin, 161 Mich 358, we said:
“Nothing is better settled than that in this State courts of law have no jurisdiction to reform written instruments.”
In Jensen v. Shevitz, 234 Mich 212, we said:
“There can be no question of the right of a chancery court to grant relief of reformation of a contract on the ground of fraud or mutual mistake. This cannot be done in a court of law.”
See, also, Scott v. Grow, 301 Mich 226 (141 ALR 819); Doelle v. Read, 329 Mich 655.
In .the case at bar, plaintiffs brought their action in ejectment. Defendants filed an answer claiming an equitable defense. The trial court found that defendants were not guilty of unlawfully withholding from plaintiffs the possession of the premises described in plaintiffs’ declaration. The judgment of the trial court is based upon an application of equitable principles. This may not be done in an ejectment case. The judgment is reversed and remanded for entry of judgment in favor of plaintiffs. Plaintiffs may recover costs.
Reip, C. J., and Boyles, North, Butzel, and Bushnell, JJ., concurred with Sharpe, J. Dethmers and Carr, JJ., concurred in the result.
Since the decision of the Bush Case the Constitution of 1908 was adopted. Article 7, § 5 provides in part: “The legislature shall, as far as practicable, abolish distinctions between law and equity proceedings.” — Reporter. | [
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] |
Dethmers, J.
This is ejectment, brought in 1949, to recover possession of a section of land in Kal taska county. Plaintiff relies on what she claims to be an unbroken chain of title tracing back to government patent. Defendants deny that plaintiff ■ever had title, and claim (1) title in themselves un•der a tax deed, (2) title by adverse possession, and (3) that plaintiff’s action is barred by CL 1948, •§ 609.1(2) (Stat Ann § 27.593[2]). A finding favorable to defendants on any one of these theories requires affirmance of the judgment in their favor from which plaintiff appeals. We think defendants ■established title by adverse possession. Accordingly, we need not pass on the other questions.
The land is wild, undeveloped, covered with scrub ■oak and some pine, not suitable for farming or the production of crops, but there are some deer there, and it is suitable for hunting and fishing and recreational purposes, not “worth leaving outdoors * * * unless it has 'some value for oil leasing purposes,” but at one time pulpwood on parts of it was of some value.
In 1926, some of defendants built á hunting cabin on the land and used the premises for hunting and .fishing. In 1928 they bought the tax title to the entire section for the 1924 taxes, recorded the tax deed, and in 1929 attempted service of notice to redeem upon the person whom defendants claim to have been'the one then appearing to be the owner of record (and recorded a copy with sheriff’s return of service), as provided in CL 1948, § 211.140 (Stat Ann 1950 Rev § 7.198), which procedure plaintiff claims to have been a nullity for failure to make service upon the proper persons. Defendants have paid the taxes ■on the premises for every year from 1924 until date of trial in 1949, except for the year 1945, when it was paid by an undisclosed person. After the hunting season in 1932 the cabin was destroyed and in 1933 defendants, built a new one upon the premises, at a cost for materials of $300, placed it on a cement foundation, painted it, cleared the brush and planted grass around it and erected a sign at the crossroads bearing the name of the camp. This cabin remained to the time of trial and it, together with the land, has been used by defendants every year for hunting,, fishing and vacations. Defendants kept a register of camp guests which showed the visits of defendants and their guests from 1934 to 1949, indicating occupancy of the cabin by them for such purposes on an average of 6 times each year, including each of the hunting seasons. In 1939 defendants sold the pulpwood on the entire section for $2,150, the purchaser having thereafter engaged in cutting and removing it over a period of 5 years, during which time his loggers occupied temporary cabins and camps on the land visible from the road. From 1907 until 1948, when plaintiff acquired a deed to the premises,, only one conveyance was recorded by plaintiff’s predecessors in chain of title, which was a deed recorded shortly after the above mentioned service of notice to redeem. During the entire period from 1926 to 1949 defendants used the property as above indicated with no one challenging or questioning* their use or possession thereof, nor, insofar as shown by the record, did plaintiff or her predecessors in title ever enter upon or pay any attention to the premises or assert title or right to possession, offer to pay taxes, or in any way indicate anything other than abandonment of their rights. During that time defendants sold a portion of the land to the county road commission for road purposes and executed and had recorded a number of oil leases and mortgages and also certain conveyances between themselves, all covering the land in question.
Plaintiff stresses that defendants have never improved the land, fenced it, posted it, attempted to keep off others, or lived on it. She relies on eases holding that mere payment of taxes for years, re moval of timber and gravel, cutting of hay, and occasional squatting on the premises, do not suffice' to establish title by adverse possession, viz., Lasley v. Kniskern, 152 Mich 244; Duck v. McQueen, 263 Mich 325; Doctor v. Turner, 251 Mich 175; McVannel v. Pure Oil Co., 262 Mich 518, and others.
In Whitaker v. Erie Shooting Club, 102 Mich 454, defendant had a tax deed to premises “valuable for little else than shooting.” He occasionally cut hay on the premises, planted trees and rented the land for hunting to a hunting club which posted the premises and undertook to keep off others. In holding that defendant had acquired title by adverse possession this Court said:
“The established rule of this Court is:
“ ‘It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question.’ Murray v. Hudson, 65 Mich 670, 673. * * *
“Pedes possessio is not indispensable. The land need not be fenced. Buildings are not necessary. Where the possession claimed was by cutting'grass and pasturing cattle each year during the season, and planting trees, it was held to be evidence of a practically continuous, exclusive, and hostile possession. Sauers v. Giddings, 90 Mich 50. Openly and. notoriously claiming ' and using land in the only way it could be used without fencing or cultivation was held to establish adverse possession. Curtis v. Campbell, 54 Mich 340.”
In Corby v. Thompson, 196 Mich 706, this Court said:
“An examination of this record is convincing that there is abundant evidence of adverse possession on the part of the plaintiffs in this suit. The occupation of the land by the plaintiffs, the payment of the taxes, the transfer by warranty deeds, the leasing, inventorying and listing of this property as their own, were outward acts of exclusive ownership of an unequivocal character, overt, and notorious.”
Appropriate here is the following from Burns v. Curran, 282 Ill 476 (118 NE 750):
“Neither actual occupancy, cultivation nor residence is necessary to constitute actual possession of land. Where property is so situated as not to admit of permanent useful improvements, the continued claim of the party, evidenced by public acts of ownership such as he would exercise over property which he claimed in his own. right and would not exercise over property which he did not claim, may constitute actual possession.”
A recent expression of the applicable test is to be found in Fractional School District No. 4 of Golden Township, Oceana County v. Hedlund, 330 Mich 73, as follows:
“In order to claim title by adverse possession the acts of possession must be open and of a hostile character.
“In Murray v. Hudson, 65 Mich 670, we approved the following:
“ ‘To constitute possession it is not necessary that the land should be enclosed with a fence, or that the same should be cultivated or resided upon, or that buildings should be erected thereon. It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as are consistent with the character of the premises in question.’ ”
Application of the above leads to the conclusion that defendants acquired title by adverse possession for over 15 years consisting of such open aijd public use, acts of ownership and assumption of control as were consistent with the character of the premises and to which alone the land was adapted.
That the title thus acquired by defendants extends to the entire section of land in question follows from the fact that they went into possession under color and claim of title (tax deed) to the entire section and paid the taxes on the whole of it continuously thereafter. Lang v. Osceola Consolidated Mining Co., 145 Mich 370; 1 Am Jur, Adverse Possession, §§ 201, 205. See, also, Gardner v. Gardner, 257 Mich 172.
Affirmed, with costs to defendants.
Reid, C. J., and Boyles, North, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred. | [
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North, J.
By its suit in equity against William L. Burns, individually, and as executor of the estate of Harold Roberts, deceased, plaintiff sought injunctive relief and a decree for pa3unent to it of a sum of money which it alleged by mutual mistake of fact it had paid to the Roberts estate. Two of the creditors of the estate intervened as defendants. For reasons hereinafter noted, the circuit judge denied the relief sought and dismissed the bill of complaint. Plaintiff has appealed.
On September 23,1946, the plaintiff, Lake Gogebic Lumber Company, then composed of Harold Roberts, Charles R. Crowe and G. H. Barker, entered into an option contract with said Harold Roberts and his wife, Alta Roberts, whereunder the plaintiff was given an option for the purchase of the timber and other forest products on certain described lands in Ontonagon and Gogebic counties, Michigan. The consideration stated in the option was $51,000, $6,000 of which was then paid, the balance of $45,000 to be payable in 3 annual instalments of $15,000 each. On, or shortly before, April 1, 1947, Roberts left the company' and a William Kelly took his place. On March 31, 1947, Roberts entered into a “logging contract” with the plaintiff under which Roberts was to cut and remove the timber from all lands owned by the plaintiff in Ontonagon and Gogebic counties and from such lands acquired by it during the life of the contract. The following day, April 1, 1947, Roberts and his wife executed a “conveyance of timber rights and forest products” covering the lands described in the option. This conveyance warranted “that the quantity of timber on all of said descriptions, exclusive of other forest products, is not less than 10,000,000 feet, log scale.” In a “payment agreement” attached to this conveyance, the obligations between the plaintiff and Roberts resulting from numerous transactions were reduced to a single item of $30,960.13 owing from plaintiff to Roberts, which debt was to be paid in semimonthly instalments, each instalment to be a sum figured on the basis of $3 per 1,000 log feet taken by plaintiff under the timber rights conveyance, with interest at 3% per annum on the unpaid balance.
Roberts died on August 3, 1947. Defendant William L. Burns was appointed special administrator and later executor of the Roberts estate. As special administrator or executor, at the request of plaintiff and under authority of the probate court, Burns carried on with the logging 'contract until late in the fall of 1947, about November 1st. Burns accepted 3 checks from plaintiff under the payment agreement for the timber rights. The first 2 of these checks, dated August 7, 1947, totalled $697.63. The remaining cheek, dated’ November 13, 1947, was for $2,-080.77. These checks, totalling $2,778.40, were for money paid by plaintiff to defendant over and above the contract price for services in performing the logging contract. It is this sum that, .plaintiff seeks to recover, claiming it was paid under a mutual mistake of fact about to be noted.
In connection with the settlement of the estate of Harold Roberts, a competent timber cruiser was employed by these litigants. He estimated that the timber on the lands in question only amounted to approximately 1,500,000 log feet rather than 10,-000,000, as was warranted in the Roberts’ deed to plaintiff. The timber cruiser’s determination came as a surprise to both plaintiff and defendant-executor Burns. The 2 intervening defendants, Earl Koskela and Bessemer Auto Company, who, after the death of Roberts, became creditors of his estate in connection with having furnished the administrator and executor with materials used in carrying on the logging contract, contend: (1) That the payments which plaintiff seeks to recover were not made under a mistake of fact; and (2) That in any event, plaintiff should not be permitted to recover the payments made to defendant Burns because he, in reliance on the payments, changed his position. It was on this latter ground that the trial court denied recovery.
The claims of the 2 intervening defendants total in excess of $600; and in their petition for intervention it is alleged that the probate court allowed these claims as expenses of administration, evidently on the theory that this credit extended to the special administrator or executor by the intervening defendants was necessary for carrying out the logging contract. However the voluminous probate file received in evidence indicates that the probate court had not passed upon the claims against the estate at the time this case was pending in the circuit court. There are insufficient funds in the estate to pay in full plaintiff’s claim and the obligations incurred by the estate with various creditors, which obliga tions are asserted to have been incurred pursuant to carrying on the logging contract.
As above noted, the mistake of fact herein involved was that, notwithstanding a cruise of the property disclosed only 1,500,000 feet log measure of timber instead of 10,000,000 feet, Mr. and Mrs. Roberts in good faith had made the warranty of 10,000,000 feet, and this warranty was accepted and believed by both plaintiff and Burns. As correctly stated in appellant’s brief:
“At the time Mr. Burns undertook to perform the logging contract and when he abandoned it, he was not aware of the almost total breach of the warranty of quantity (10,000,000 feet of timber, log scale) contained in the conveyance of April 1, 1947. Neither was anyone else.”
The record is convincing that the money which plaintiff seeks to recover was paid by it under a mutual mistake as to a material fact affecting the rights of plaintiff and the Roberts estate. But the question remains as to whether, for the reason found by the circuit judge, recovery by plaintiff should be denied. It" is the general rule that money paid by a mutual mistake of fact may be recovered. Couper v. Metropolitan Life Ins. Co., 250 Mich 540. But this rule is subject to the exception that when the party receiving the money has in consequence thereof so changed his position upon its receipt that it would he inequitable to force him to make restitution, recovery cannot be had.
“It is true that moneys paid by mistake may be recovered but not when the situation of the party receiving the money has changed and it would_ be inequitable to allow a recovery.” Leute v. Bird, 277 Mich 27.
“The rule is general that money paid under a mistake of material facts may be recovered back, al though, there was negligence on the part of the person making the payment; but this rule is subject to the qualification that the payment cannot be recalled when the situation of the party receiving the money has been changed in consequence of the payment, and it would be inequitable to allow a recovery.” Walker v. Conant, 65 Mich 194.
“Money voluntarily paid in.the reasonable belief that it is due, and after investigation or the opportunity therefor, and without fraud on the part of the recipient, cannot be recovered back as paid under a misapprehension.” Wheeler v. Hatheway (syllabus), 58 Mich 77.
“The rule that money paid under a mistake of fact may be recovered back does not apply where the payment has caused such a change in the position of the other party that it would be unjust to require him to refund. Thus, * * * as a general rule, in cases where the plaintiff and the defendant are equally to blame for the mistake under which the money was paid, or equally innocent in respect thereto, an alteration of position on the part of the payee is held to prevent liability in an action for recovery.” 40 Am Jur, Payment, § 201, p 852.
Our review of the record brings the conclusion that defendant Burns, as the representative of the Roberts estate, did change his position in performing under the logging contract by assuming liabilities and obligations which would not otherwise have been assumed. Appellee’s contention is stated in his brief as follows:
“The only issue is whether Mr. Burns’ position as special administrator has been changed and as to this the proof is uncontradicted. * * * Mr. Burns knew that if he got out the said number of logs, that he would be paid in addition to the logging cost of $8 per thousand another sum of $3 per thousand and that settlement would be made on this at regular intervals. In conducting Ms operation lie relied on these payments and in relying .upon them he changed his position, because he incurred obligations, which would not have been incurred had he not known that these payments would be forthcoming. * * * Defendant did, as personal representative, change his position by losing. money on the logging contract which he performed at the request of plaintiff; by incurring .new, obligations to carry-on the contract; by getting innocent persons mixed up in this transaction who were no.t.in it before.”
As bearing upon the above phase of this case, ap- - pellee’s -uncontradicted testimony in part reads:
“I received 3 payments on the payment agreement. And with the honest belief that money was coming to me as representative, of the estate.; And if I had known as a fact that there was only a 1,500,000 to' 1.750.000 feet of logs, where Roberts had warranted 10,000,000 feet, I would not want to have been’ a party to it. This money was received — I took this-money believing that the warranty Mr. Roberts had made, from what I knew of him, was reasonably accurate — I never had - reason to believe otherwise.
“Q. You say, Mr.' Burns, if you had any idea this warranty would turn out to be only 1,500,000 feet to 1.750.000 feet, whereas 10,000,000 feet were supposed to be there, you would not have received the money?
“A. I would not have been administrator.”
Even if recovery were not precluded because of defendant Burns’ change of position, it is a rule of equity jurisprudence that relief will not be granted when the rights of innocent third persons would he adversely affected thereby. In discussing equitable relief for a mistake of fact, it is said in 30 CJS, Equity, § 47, p 375:
“Relief will not be given * * * when it will prejudice the rights of innocent third persons, or unless the parties can he placed in statu quo.”
The same thought is expressed in Restatement of the Law of Restitution, § 62, p 241, as follows:
“A person otherwise entitled to restitution of a benefit conferred by mistake is disentitled thereto if restitution would seriously impair the protection intended to be afforded by common law or by statute to persons in the position of the transferee or of the beneficiary, or to other persons.”
.In the light of the facts of the instant case and the law applicable thereto, we conclude that the circuit judge correctly decided the controversy presented. The decree' entered in the circuit court is affirmed. Costs to intervening defendants.
Reid, C. J., and Boyles, Btitzel, Carr, and Btjshnell, JJ., concurred with North, J. | [
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North, J.
Plaintiff brought this suit to collect $512.03 for lubricating oil (and possibly some other motor lubricants) sold and delivered by plaintiff to defendant. An amended answer by defendant admitted the indebtedness, but by an amended claim of set-off and recoupment defendant sought judgment against plaintiff in excess of $18,000. On trial by jury plaintiff had verdict and judgment for $512.03, and defendant’s claim of set-off and recoupment was denied. Defendant has appealed.
Defendant was engaged in cutting and hauling logs, running a sawmill and other incidental activi ties. In his business he used logging trucks, motor grader, tractors, and other motor vehicles. Prom July 24, 1944, to October, 1945, and even later, defendant, under 2 separate contracts, identical in terms, purchased of plaintiff lubricating oil used in his business. Through its agent plaintiff negotiated the sale to defendant, under a so-called quantity purchase and discount contract, of a grade- of motor oil designated as Stanolube HD (heavy duty) for use in defendant’s business. The agent is alleged to have represented to defendant that the particular brand of “oil was a high grade oil and better suited than any other oil for defendant’s use in all of his motor vehiclesand defendant further alleged:
“Plaintiff understood well the nature of defendant’s business and the extent of his operations, and that he had to keep his trucks running to keep his sawmill running. Defendant then and there informed plaintiff that he, defendant, knew nothing about the motor oil sold by plaintiff known as Stanolube H.D. and that he, defendant, relied entirely upon the skill and judgment of plaintiff in recommending this oil for the use of defendant in his motor vehicles. Defendant informed plaintiff also of the fact that defendant desired to have a motor oil that would insure good operation in defendant’s trucks during winter and summer and informed plaintiff that defendant necessarily must keep his trucks running in order to keep his sawmill running, and his crew of men working.
“Plaintiff assured defendant that Stanolube H.D. motor oil was suitable for use in defendant’s trucks and other motor vehicles during either winter or summer and that said motor oil would reduce wear and give defendant smoother operation and longer life in his motors than any other oil.”
Defendant alleged that he relied on the representations made to him; and that said “motor oil ap peared to be satisfactory to defendant until about the month of August, 1945,” but that the oil defendant purchased of plaintiff in August, September and October, 1945, “was so defective that the motors showed signs of looseness after they had been operated approximately 500 miles under normal conditions and they became so loose that they could not be used any more after they had been driven approximately 1,500 miles after said defective oils had been put into said motors. Under normal conditions the said motors could be driven a distance of approximately 50,000 miles when suitable oil was used in them.”
Defendant’s cross-action for damages is bottomed “on account of the defective oil sold by plaintiff to defendant.” Plaintiff, by its answer to defendant’s claim of set-off and recoupment, denied the material allegations in defendant’s pleadings. Numerous witnesses for the respective parties testified pro and con relative to defendant’s set-off and recoupment claim. As above noted, the jury found against defendant.
Because of certain circumstances attending rendition of the jury’s verdict, appellant claims error and asserts that “the court (should) have entered a judgment of ‘no cause of . action’ as to both parties.” While the jury was deliberating counsel stipulated that, because it suited the desire and convenience of the trial judge, the jury’s verdict might be rendered in the absence of the judge and received by the clerk of the court. Later the jury announced the verdict as follows: “Oil was salable and that there is no cause for action.” Bach of the jurors signed the verdict, which the clerk reduced to writing. Thereupon the jurors were permitted to leave the courtroom without being requested to return. But about 2 hours later the clerk called the jurors back to the courtroom and received from the jury the following explanation of the verdict:
“What we meant by our verdict when we said that the oil was salable and there was no cause for action, we meant that there was nothing wrong with the oil and that the plaintiff, Standard Oil Company, be paid by the defendant, Milo F. Gonser, the sum of $512.03, together with interest.”
As we view the record the jury was not discharged when the above occurred in the latter part of the afternoon on Saturday. By telephone the following Monday the circuit judge directed the clerk to have the jury reassemble in court the following day. At that time, over objection of defendant’s counsel, the court received from the jurors an explanation of their verdict, which was the same as above quoted. On direction of the trial judge, verdict disallowing defendant’s claim of set-off and recoupment and allowing the claim of plaintiff was entered. Judgment for plaintiff in the. amount of $512.03 and costs followed. Notwithstanding the apparent irregularities incident to the rendering and receipt of the jury’s verdict, the result of the jury’s deliberation clearly appears and no prejudice to defendant’s right to a fair trial of the litigated issue resulted.
“Juries rarely give very formal -verdicts; and inquiries of the jurors in court, and amendments for the purpose of putting in due form what the jury mean by their finding, are unobjectionable.” Sleight v. Henning (syllabus), 12 Mich 371.
In Re Sorter’s Estate, 314 Mich 488 (164 ALR 985), we quoted with approval from Rabior v. Kelley, 194 Mich 107, the following:
“ ‘There can be no doubt that where the intention of the jury is ascertainable the court may amend the verdict, correcting manifest errors of form, and sometimes matters of substance, to make it conform to the intention of the jury.’ ”
Appellant’s contentions that in view of the above a judgment of no cause of action should have been entered, and that prejudicial error resulted from the circuit judge calling the jury back into court, are without merit.
As another ground of error appellant asserts it was necessary under Court Rule No 23 (1945) “for plaintiff, in its defense to defendant’s set-off and recoupment, to set forth in its answer that it claimed there was a written contract between the parties that excluded oral evidence of the verbal contract claimed by defendant in his set-off and recoupment.” We are not in accord with appellant’s contention, the record background of which is as follows: On direct examination of defendant he was asked and testified concerning certain alleged oral misrepresentations claimed to have been made to him by plaintiff’s agent at the time negotiations were in progress for the contract purchase of the motor oil, Stanolube HD. On cross-examination of defendant he testified that all of his purchases of Stanolube HD were under written contracts signed by both parties. There were 2 such contracts, one for a year following July 24, 1944, and a second contract for the year beginning July 24, 1945. Duplicate copies of these contracts were produced by defendant, identified by him, his signatures thereon acknowledged, and received in evidence. There was no statement in either of these written contracts revealing any of the alleged oral misrepresentations to which defendant had testified on direct examination. Plaintiff urged that such oral statements claimed to have been made pri- or to the execution of the written contracts tended to vary the terms of the contracts; and plaintiff moved that all such testimony by defendant be stricken. The motion was granted and the jury instructed to disregard all such testimony. Defendant objected to the court’s ruling and urged that since plaintiff in its reply to defendant’s claim of set-off and recoupment had not pleaded that the sale of the motor oil was under a written contract, plaintiff could not rely upon such fact at the trial of the case. As noted above, appellant’s contention was that under Court Rule No 23 (1945) plaintiff was required to plead its claim of the contract having been in writing to justify that fact being urged in objection to the receipt of oral testimony or in support of a motion to strike such testimony. As just above noted, defendant had possession of his copies of each of the 2 written contracts, and he produced them incident to his cross-examination. In fact during his direct examination he had referred to the 1945 contract to refresh his recollection. Neither of the written contracts contained a warranty as to the quality of Stanolube HD, or any representation relative thereto. There is no claim that the written contracts were ambiguous. Under the record, and numerous decisions of this Court, the trial judge’s ruling in striking the testimony as to alleged oral misrepresentations claimed to have been made prior to the execution of the written contracts was not erroneous.
“It is well established that where a written contract is clear and unambiguous, parol evidence of prior negotiations and representations cannot be adduced to create an express warranty and thereby vary the terms of the contract. (Citing numerous eases.)” Salzman v. Maldaver, 315 Mich 403 (168 ALR 381).
It is also asserted by appellant that the circuit judge was in error in sustaining plaintiff’s objection to certain “gas and oil slips” which were given by the party from whom defendant purchased his gaso line to defendant’s employees incident to purchases of gasoline and oil for the various motor vehicles used in defendant’s business. It was urged by defendant that by this evidence of the amount of gasoline used in operating the respective motor vehicles it might be determined how much short of full time defendant’s motor vehicles were out of use, it being claimed that (with the exception of loss of use from normal breakdowns, of which defendant had the usual variety) such loss of use was due to the defective quality of the lubricating oil plaintiff sold to defendant. In view of our conclusion herein it is unnecessary to pass upon the merits of this claimed error because, if competent or material at all, the proffered testimony related only to the amount of damages defendant allegedly suffered incident to the loss of the use of his motor vehicles. Obviously the jury did not reach that phase of defendant’s claim. The exclusion of the “gas and oil slips” does not constitute a ground for reversal. Evidently appellant is cognizant of the foregoing, since, in his brief, it is said: “In the event that this case should be sent back for a new trial defendant desires a ruling on the question presented here.”
The judgment entered in the circuit court is affirmed, with costs to appellee.
Reid, C. J., and Boyles, Betumees, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred. | [
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Butzel, J.
On May 10, 1945, in the circuit court for the county of Montcalm, before Judge Paul R. Cash, defendant Glen Earl Losinger pleaded guilty in open court to an information charging that on or about March 20, 1945, be did then and there set fire to and burn a dwelling bouse located in Reynolds township, Montcalm county, Michigan, the property of one Fred I. Chase. At the time of the arraignment and plea, defendant in reply to direct questions propounded by the judge categorically stated that he was guilty, that bis plea was voluntary, that no one bad promised him anything, and that he bad made a mistake and wanted to pay the penalty. After a recess, the prosecutor moved for sentence. The judge thereupon stated that be bad talked with defendant and denied bis request to be let off on probation; that be told defendant that be bad offered nothing to recommend probation; that defendant bad caused the sheriff’s department, as well as other sheriffs’ departments, much trouble; that be bad once been put on probation and that did not do any good; that be bad served some time in the army jail. He also told him that be was fortunate that a supplemental information had not been filed against him as a second offender, so as to subject him to an additional term of imprisonment. He sentenced him tó a minimum term of 5 years and a maximum of 20 years. The maximum term for arson of a dwelling house was in accordance with section 72 of the penal code, PA 1931, No 328 (CL 1948,. §750.72 [Stat Ann § 28.267]). The maximum term for arson in the case of real property other than a dwelling house is 10 years. Penal code, PA 1931,. No 328, § 73 (CL 1948, § 750.73 [Stat Ann § 28.268]).
This is a brief but complete résumé of the entire-stenographic record of the circuit court proceedings at the time of the plea and sentence. Other facts developed at the hearings on the various motions will appear in our further discussion of the case.' Successive motions for leave to file delayed motions to vacate defendant’s plea of guilty and the sentence-imposed and granting a new trial and a petition for habeas corpus were all denied. These and the proceedings that followed are incorporated in and made-part of a voluminous document that constitutes the-record filed in this Court.
It might be said at the outset that the defendant has shown considerable ability in acting without counsel. Notwithstanding very serious shortcomings and infractions of the law and very unfortunatebehavioristic tendencies, defendant has had a very hard life. He has been very industrious and frugal, had for a time some standing in the community, and enlisted the interest of the solicitor-general to the extent that he made a motion that defendant be given another opportunity to present an additional motion to set aside the plea of guilty and vacate judgment and sentence and have counsel appointed for him, as the question of whether the building that was set on fire was a dwelling house within the meaning of the statute had never been passed on in this State. Defendant also raised other questions.
Judge Archie D. McDonald, in denying the motion, found that there were really only 3 reasons and grounds claimed, viz.: Whether defendant’s plea of guilty was free and voluntary; whether it was a burning within the meaning of the statute; and whether the building burned was a dwelling house. Upon denial of the motion, leave to appeal to this Court was granted upon the recommendation of the solicitor general, who, while willing to afford defendant an opportunity to present his claims of error, contends that they are without merit.
Defendant claims that his plea of guilty should be vacated on the ground that he was arrested without warrant. It is true that the warrant was not issued and read to him until very late the day following his arrest and after he had been in custody 32 hours during which time he had made a complete confession which was taken down stenographically, transcribed and signed by defendant, and witnessed 'by 4 parties. ' It was not sworn to by defendant. The conviction was based on defendant’s plea of guilty in open court, not on the confession, which was not introduced in evidence. At the time of the hearing' on the first motion that was denied, in a supporting affidavit, defendant claims he was “without the benefit of counsel” and was otherwise not properly informed of his rights in the premises and had permitted himself to be talked or tricked into a plea of guilty for a crime which he did not commit. Defendant makes the strange statement that 'he considered it was legitimate for him to “lie” when .not under oath, but that he would not do this ¡when under oath. However, on the hearing on a ¡later motion, defendant stated after being sworn 'that he had made up his mind to plead guilty, that ¡he wanted it to appear he was guilty. With only a $100 tax assessment on the entire property, he felt that it was the best thing to do. He further stated r
“If I beat the rap it would have cost me quite a lot. I don’t have money to hire an attorney; I spent a lot of cash for other things and I don’t have money for an attorney.”
He evidently did not want an attorney appointed for him as he further added, “a State attorney is. worse than none.”
Defendant stresses the fact that he was arrested without warrant or without valid reason therefor,- and he was kept an unreasonable length of time before warrant was issued. On the other hand, it was-, brought out that, when they made the arrest, the-officers knew that the fire was incendiary and believed that defendant was the only person who might have a motive and the opportunity to set the building on fire; that there were footprints from defendant’s home to the property burned; that the officers thus held, reasonable grounds to believe a felony had been committed, and that the defendant had committed it. Code of criminal procedure, PA 1927, No 175, ch 4, §15 (CL 1948, §764.15 [Stat Ann §28.874]). People v. Orlando, 305 Mich 686; People v. Bommarito, 309 Mich 139. As the arrest was followed by a complaint and warrant and defendant was-bound over to the circuit court for trial, at which he pleaded guilty, even if there were merit to defendant’s claim that the arrest was irregular, it would not affect the trial. People v. Miller, 235 Mich 340; In re Van Dyke, 276 Mich 32.
Defendant further claims that he did not have a preliminary examination before a magistrate, as provided for by CL 1948, § 766.4 (Stat Ann § 28.922). He waived this examination, as shown by the return of the examining magistrate. CL 1948, § 767.42 (Stat Ann § 28.982), provides that no information should be filed until the accused shall have had a preliminary examination as provided by law, but it further states, “unless such person shall waive his rights to such examination.” Defendant makes no showing that there was not a waiver as stated in the return of the examining magistrate. The statute does not provide that such waiver must be in writing. Further, a plea of guilty upon arraignment to an information in the circuit court waives a preliminary examination. People v. Tate, 315 Mich 76; In re Reno, 321 Mich 497.
Defendant further claims that he was denied some constitutional or statutory rights because of the speedy arraignment, plea and sentence, denial of counsel, or failure to have explained to him • his rights in the premises. Twenty days did elapse between the time defendant was bound over to the circuit court for trial, and the return of the examining magistrate and the information were filed but shortly before the arraignment at which defendant pleaded guilty. Defendant had ample time during the 20 days in which to consult friends or counsel. He evidently did not want any counsel.
Defendant further claims that prior to the sentence being pronounced the trial judge obtained from police ' officers certain information regarding defendant’s record. There was no stenographic record introduced, if there was one, as to what took place during the recess before the sentence. In a typewritten statement of facts signed by defendant in support of a motion previously filed on April 17, 1946, and accompanying it, he stated that he did tell the judge that he had been arrested or paid a fine once each in Ionia, Kent and Mecosta counties. On the hearing of the instant motion, defendant admitted that he had been found guilty of breaking and entering, a felony. He, however, claims that he believed it was only a misdemeanor .and that he had gone into a vacant building that was open and he thought he had only been charged with larceny from a vacant building. He states he was fined a small amount but was placed on probation for 3 years, and subsequently an additional 2 years. Undoubtedly the judge was familiar with the official xecords when he stated that defendant could have been charged with a second felony by supplemental information and given an additional sentence. Defendant in 1916, when a soldier in the United States .army, was convicted of violating certain articles of war and sentenced to a dishonorable discharge, forfeiture of pay and confinement at hard labor for 3 years which the reviewing authority directed to be the United States penitentiary at Leavenworth, Kansas. See In re Losinger, 329 Mich 47, where ■defendant raised an entirely different question. The latter case was decided in this Court a number of years prior to the conviction in the instant case, but it was quite evident that the judge knew the facts when he referred to them in sentencing defendant. There was no error in the judge’s considering public records and defendant’s admissions.
Defendant further claims that the journal entries are incorrect. We find no merit to this claim. Evidently defendant means that the statement is incorrect in stating that defendant’s plea of guilty was free and voluntary.
Defendant claims that at the time of the arrest he had very serious troubles with various members of his family, including his- wife; that he was distracted and despondent and did not fully realize what he was doing; that he had no money to prepare a ■proper defense; that his nerves were shattered; that if he pleaded guilty he would go to prison and study; •and that if he did not get a sentence he would go •some place else and work to pull himself together; 'that there was no place he wanted to go to, did not know wliat to do, so he just made up a story and pleaded guilty. He claims, however, that he was; tricked and lured into making a confession which preceded the issuance of a warrant. He claims that a Mr. Steinmétz had shown him a Federal statute- and told him that the fire was within the ManisteeForest Reserve and to form his own conclusions as-to who he was. An officer of the State police corroborated the statement in regard to the statement that Steinmetz had made, that the property was within the boundaries of the Manistee Forest Reserve, but there were no Federal statutes at the police headquarters and he did not hear Steinmetz tell defendant that the penalty'under Federal law would be 40 years. The police officer stated that hédid not hear Steinmetz make any promise of leniency, nor would he have any authority to make such a promise. Defendant claims that he told Stein'metz that if the sentence would not be over a year,, he would make up a story and plead guilty and get probation, and that Steinmetz definitely spoke up and stated he would go to the judge and recommend probation if defendant would help clear up the fire. Defendant, however, admits that Steinmetz, after a. short interval, told defendant that he was not the judge and could not guarantee what the judge would 'do, and if the latter thought that the confession was given because of the promise, he would not accept the plea of guilty, but would find him guilty and it would be mandatory for him to give a sentence of from 10 to 30 years. There is no corroborative proof as to Steinmetz making this statement. His name was indorsed on the information but when defendant pleaded guilty, no witnesses were called. Defendant describes Steinmetz as a special investigator for the State Fire Prevention Bureau, but-defendant was led to believe he was a Federal detective.
Judge Cash, at the hearing on defendant’s motion for leave to file delayed motion for a new trial, held October 31, 1945, stated that immediately after defendant’s plea of guilty, as hereinbefore set forth, and prior to sentence, he distinctly told defendant that he would not place him on probation, and that if he wanted to withdraw his plea of guilty, he would permit him to do so. Defendant did not ask to withdraw it.
The court, on the hearing of the present motion, found there was no substance to defendant’s claims of coercion. The record does not support defendant’s claim that he did not have the mental capacity to understand what he was doing. Through his tfwn mental processes defendant makes some kind of claim that he is entitled to a specific performance of an alleged promise that he would get off on probation or with a short term. There is no merit at all to this claim.
Defendant further states that the Chase property was assessed at only $100 and for this reason he thought he would be sentenced to a short term. There is no legal basis for this claim. The maximum term for burning a building that is a dwelling house, whatever may he its value, is 20 years. The judge was bound to follow the statute.
Defendant further claims that he was not sworn prior to his plea of guilty. The plea was made on arraignment in open court and an oath was not necessary. Defendant further claims that the examining magistrate did not swear to the return filed in the circuit court. Proper certification by a magistrate need not he sworn to.
Defendant’s chief objection is that the building burned was not a dwelling, house within the meaning ■ of the statute. The building is described as a cottage but more frequently as a cabin. Mr. Chase stated that he had built a foundation in the rear of the cabin on which he some day expected to build a house. It is true that it was a one-story building and was not partitioned off. The building itself appears, from the photograph, to have brick or composition walls and roof; however, it was described in the proceedings as having walls made of a brick roll. It had an air-tight wooden floor built over a cement foundation. Mr. Chase testified that it contained 3 beds with inner-spring mattresses and box springs, with bedding, curtains on the windows and between the beds. It contained some furniture, a kerosene cooking stove, cooking utensils, groceries and canned milk in the cupboards, some personal possessions, clothing, a heating stove and fuel and all equipment necessary so that occupants could move in and immediately have the facilities of a furnished dwelling house. Mr. Chase testified that he lived there during the hunting season the previous fall and had been there every month of the year, including the winter months, of each year, but was not certain that he was there after December 1, 1941, and before the fire. He, however, had never lived there for 90 days in succession because of his work in Lansing, but he planned to use the cottage when he retired. He had used the premises as a home, had slept in it, had lived in it steadily for periods of 3 weeks at a time and in addition had been there over night on many other occasions. He further testified that it was occupied during the fishing season and during the summer of 1942 he was there practically all the time and that his uncle had lived there a part of a previous winter. A 1-car garage next to the building was completely destroyed by the fire in question.
The term “dwelling house” has never been defined by this Court but the meaning appears very plain. In People v. Handley, 93 Mich 46, the Court held that the crime of burning a dwelling house was an offense against a habitation and not against fee title, but the Court based its decision on the fact that the person charged in the information to be the owner never dwelt in or occupied the building. That is far different from the instant case. It has been held, however, that it was arson to burn a dwelling house during a temporary absence of its owner. Stupetski v. Transatlantic Fire Insurance Co., 43 Mich 373. (38 Am Rep 195). Section 72 of the penal code, supra, provides for punishment of any person who willingly and maliciously burns any dwelling house, either occupied or unoccupied, whether owned by himself or another.
In State v. Blair, 112 W Va 655 (166 SE 369, 85 ALR 424), a somewhat similar situation arose although the size of the house is not stated in the opinion. It-was used by the owner and his family as a place of residence during vacation time and on week ends, particularly in summer. It was held that it was a dwelling house though temporarily unoccupied. In 2 Gillespie, Michigan Criminal Law & Procedure, § 819, it is stated:
“The term ‘dwelling house’ has a broader meaning than a house that is actually occupied as such. It means any house intended to be occupied as a residence, and would include any such residence, even though not occupied by the complaining witness at the time of the burning.”
We hold that the building was a dwelling house within the meaning of the statute. Mr. Chase used it frequently, even though at intervals, and he intended to return to make it his home when he retired. Defendant further claims that inasmuch as the fire did not destroy the property but only part of its contents, there was not such a burning as contemplated by the statute. It slightly damaged the build ing. The statute does not provide that the entire property must be destroyed.
Other qiiestions are also raised but they áre so trivial and without any merit whatsoever, that they do not even require further discussion.
Defendant further complains of the severity of the sentence in being given the maximum of 20 years for the burning of a dwelling house which was assessed at $100 for tax purposes. The maximum sentence was such as is prescribed by statute. It is unnecessary to discuss defendant’s litigation with, and intense dislike for, Mr. Chase, nor defendant’s statement immediately after the fire that he expected to be blamed for it, and many other incidents set forth in the lengthy record. Defendant has already served the minimum of 5 years and, if he is entitled to further relief, it must come from either the parole board or the governor.
We have examined the record with meticulous care and come to the conclusion that the judge properly denied defendant’s motion. We find no error.
Reid, C. J., and Boyles, North, Dethmers, Carr, Bushnell, and Sharpe, JJ., concurred. | [
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] |
Boyles, J.
At the time this suit was started plaintiffs owned lot 1, in the northwest quarter of the northeast quarter, and the defendants Cooney and wife owned the northeast quarter of the northeast quarter, of section 25 in McMillan township, Luce county. The only public road near these properties is on the east section line of said township, and the plaintiffs, for access to their property, had been using said county road and a road across the land owned by the defendants. Plaintiffs’ lot 1 lies between defendants’ northeast quarter of the northeast quarter of. said section (on the east) and the Tahquamenon river on the west. In 1943 the William Bonifas Lumber Company had acquired said northeast quarter of the northeast quarter of said section, and in 1947 Hunter, one of the plaintiffs, wrote the lumber company asking if the lumber company would sell said quarter section. Upon the refusal of the lumber company to sell, Hunter again wrote the lumber company asking if it would sell a 60-foot strip across its land so that plaintiffs might have a road from the county road to their land and the Tahquamenon river. After some further correspondence plaintiff Hunter received a letter from One William J. Brown, acting with the authority of the lumber company, as follows:
“When I wrote to you on November 11th it was expected that I would be able to get away from here to call on you before this time. Circumstances have been such that I have not been able to schedule a trip over there as soon as I have planned. I am sorry if this has caused you any inconvenience in your road building plans that you wrote about.
“Prom the standpoint of this company, there will be no objection to you building a road across the NE NE of section 25, 47-8 in order to reach your property. You can proceed with your road building plans, and whenever it is convenient for us to get into the territory we will get in touch with you then to complete any arrangements that may be necessary. Meanwhile, do not hold up your operations on this account but go ahead with your plans as you have stated.”
Thereupon the plaintiffs built a road across the north side of the lumber company’s land at an expense of about $1,000 and used it during the summer seasons of 1948 and 1949 for access from the county road to their property and their dock on the river. On June 13, 1949, the lumber company sold and deeded its said 40 acres to the defendants Cooney and wife, without any exceptions or reservations. On the same date, defendant Slater, the secretary-treasurer of another boat company competing with plaintiffs’ boat service on the Tahquamenon river, dynamited plaintiffs’ road across said quarter section, but without the knowledge or authority of the then owners, defendants Cooney and wife. The instant suit followed, plaintiffs seeking to enjoin the defendants from further interfering with plaintiffs’ use of said road. A temporary restraining order issued to that effect, and pending outcome of the litigation, plaintiffs have repaired and reopened the road.
The controlling question here is whether plaintiffs have a' right to use the road or right-of-way across the quarter section owned by defendants Cooney and wife. The circuit judge, deciding the case on the pleadings and exhibits and an agreed statement of facts, concluded that the correspondence between plaintiff Hunter and the lumber company constituted a contract, and was sufficient to give the plaintiffs an easement and the equitable right to use the road they had constructed on the lumber 'company property. A decree was entered granting plaintiffs a permanent injunction restraining the defendants from interfering with such use. The defendants appeal.
"We agree with the trial court that the equities are entirely on the side of the plaintiffs. The correspondence between plaintiff Hunter and the lumber company starts with an offer by Hunter in 1947 to purchase the quarter section over which plaintiffs later built the road. Upon the lumber company’s refusal, Hunter again wrote the company asking if it would sell a 60-foot strip across the north side of said land so that plaintiffs would have a road to their property from the county road. The correspondence indicates some delay, for consultation with the company’s officials regarding the “right-of-way.” Hunter again wrote the company:
“I can under stand your resion for and easement in preference to a perment sale of the land and I think the essement will be sastafarcty of corse it would hafto perected us a geance canselation of our rightway in case of a trasfair of title of the land some time wee would not luse our rigtway for it is going to cost some money to make this road soo anny thing you can work out along those lines will be all right with us I think you know about what wee hafto have and wee ar willing to pay for it.”
There was some further delay,.waiting for a representative of the company to call upon plaintiff Hunter, and about 3 months later Hunter again wrote the company:
“On Nov. 11th 1947 you wrote me that you expected to be in Newberry around about the first of this month and would call on me in regards to a road rightway a cross the NE 1/4 of th NE 1/4 of section-25 T 47 K. 8 W Wee wotild like to know as soon as-possible how wee stand on this matter as wee would like to bulldose the grade up this winter to give it. chace to dry out.”
Thereupon, as hereinbefore stated, the agent for the company again wrote plaintiff Hunter, concluding as follows:
“From the standpoint of this company, there will be no objection to you building a road across the-NE NE of section 25, 47-8 in order to reach your property. You can proceed with your road building-plans, and whenever it is convenient for us to get into the territory we will get in touch with you then to complete any arrangements that may he necessary.”
When defendants Cooney and wife acquired the northeast quarter of the northeast quarter of said section from the lumber company on June 13, 1949, they were fully aware of the rights claimed by plaintiffs to use the road across said quarter section. The road was there, and all of the defendants had full knowledge of it. The correspondence between the lumber company and Hunter frequently referred to-an easement, road right-of-way, our right-of-way. Plaintiffs had expended approximately $1,000 to construct the road. They claim an easement based upon the correspondence from the admittedly authorized representative of the lumber company, and further claim that in any event they have a license to use the road, enforceable in equity. In that connection, plaintiffs insist bn the right to rely on the written promise of the lumber company, to “complete any arrangements that may be necessary” to give the plaintiffs a road across the lumber company’s quarter section.
We are in accord with the conclusion of the trial judge that plaintiffs have in equity a right-of-way across said quarter section. The trial judge concluded that the intent of the parties as shown by the ■correspondence was that the plaintiffs were to have an easement. We find from the written exhibits that the lumber company intended to give plaintiffs a permanent license to cross its land, concluding a ■contract to that effect, in the lumber company’s promise in writing, that “whenever it is convenient for us to get into the territory we will get in touch with you then to complete any arrangements that may be necessary.” The right promised to plaintiffs for a right-of-way across the lumber company’s quarter section was not a mere naked license, revocable at will by the lumber company, or one to be revoked by the sale of the land. Stevens v. City of Muskegon, 111 Mich 72 (36 LRA 777); Greenwood v. School District No. 4 of Napoleon Township, 126 Mich 81.
The factual situation in Nowlin Lumber Co. v. Wilson, 119 Mich 406, relied upon by appellants, ■differs materially from the case at bar. In the Nowlin Case, the correspondence merely indicated a request “to build a logging road” across the defendant’s land. As to crossing the land, the owner’s agent wrote:
“I wrote to Spencer, of Flint, about your crossing his lands, and he says it’s all right, go ahead, and you may have time to take your lumber off. Mr. Spencer will expect the same privilege to cross your lands to ■cut his timber.”
There was no mention of a purchase of land, an easement, or a right-of-way, in the Nowlin Case, as in the case at bar.
Appellants further rely on a claim that as a matter of law, the statute of frauds bars plaintiffs’ claim.
“Equity looks at the whole situation and grants or withholds relief as good conscience dictates.” Thill v. Danna, 240 Mich 595.
“We are mindful of the fact that this is a case in equity. The statute of frauds. exists in the law for the purpose of preventing fraud or the opportunity for fraud, not as an instrumentality to he used in aid of fraud or as a stumbling block in the path, of justice. While no fraud is alleged or proven in this case, an attempt is made to rely upon the statute and thereby to defeat the undisputed intent of these parties, and this in a chancery court.” Cramer v. Ballard, 315 Mich 496.
The award of $200 to plaintiffs by the decree, to cover the expense of rebuilding the road after it had been dynamited by the defendant Slater, is not questioned. Decree affirmed, with’ costs.
Reid, C. J., and North, Dethmers, Butzel, Carr, Bushnell, and Sharpe, JX, concurred.
CL 1948, § 566.106 (Stat Ana § 26.906). — Reporter. | [
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] |
Bttshnell, J.
This is an appeal from a decree in which defendant Robert C. Holland, former mayor of plaintiff city of Garden City, was held guilty of a breach of trust, and adjudging him to be indebted to the city in the sum of $127,000. In 1936, Garden City refunded $529,000 water bonds under an agreement with the State of Michigan. These refunded bonds came into the custody of the State treasurer as a.part of the soldiers’ bonus sinking fund.
The State treasurer’s office accorded municipalities, whose bonds were in the sinking fund, the privilege of buying other acceptable securities on the ■..market and exchanging them for their own municipal securities which were a part of the sinking fund. This practice enabled municipalities to profit by purchasing bonds at less than par and exchanging them at face value.
A witness, who was secretary of the public debt commission, secretary of the loan board, and manager of the municipal bond division of the treasury department during this period, testified regarding this exchange practice. He stated that the privilege was also accorded individuals and private invest ment houses. Defendant Holland was mayor of Garden City from November, 1936 to 1944. During this time he had acted for the city in the exchange of bonds on. several occasions, each transaction being authorized by the city council and carried out by Holland in his official capacity.
On August 7, 1942, Holland gave a receipt to thé State treasurer for $25,000 of Garden City Water District bonds Nos 451 to 475, dated December 1, 1935, due December 1, 1965. This' receipt he signed as mayor.
The books of the State treasurer contain an entry indicating sale on this date to Garden City in the amount stated and bearing the notation: “Received in exchange: City of Clawson 1937 Refdg. Series B due 10/1/67 Nos 28-40, 47-57 & 72, * * * $25,000.”
On December 14, 1942, Holland, as mayor, signed another receipt for bonds of the par 'value of $102,000, and the State treasurer’s record contains an entry pertaining to this transaction. There is no testimony in the record to indicate that plaintiff city furnished any of the consideration for these particular exchanges, or that the transactions were authorized by the city council.' On' the contrary, there is testimony to the effect that at the time the city was .without financial means to make such an exchange. The Garden City bonds, which were obtained from the State treasurer, were never delivered to the city for cancellation^ but interest coupons have been presented for payment from time to time. Since these are bearer bonds, their present whereabouts is unknown, and the identities of their present owners cannot be ascertained.
Holland testified in his own behalf and explained the situation as follows: He stated that he was approached by a man named Sieber, who was doing business as the Homestead Realty Company. Sieber owned 160 acres on the border of. the city of Wyan dotte, which he had developed into an industrial housing area, and he was interested in conducting a like operation in Garden City. There was some conversation between them concerning the possibility of using city bonds in payment of taxes and for services which the city would render to the housing-project. Sieber indicated that if he could acquire some Garden City bonds and use them in this manner he might begin operation. Holland stated that he discussed this matter informally with members of the city council, who expressed a favorable opinion of the transaction. He does not claim, however, that this was followed up by any formal resolution. According to Holland, when he met Sieber at Lansing in August, Sieber had with him bonds at par value of $25,000, which were exchanged with the State treasurer, and after the transaction the Garden City bonds were given to Sieber, although he, Holland, signed the receipt. He claims that he disclosed to the State treasurer that he was acting for an individual and. not for the city. Holland also testified that the subsequent transaction of December 14th was essentially similar to.the first. He added that some of the bonds which Sieber brought to Lansing the second time were rejected by the State treasurer as not being acceptable. It is Holland’s contention that the proposed building project was called off because of Sieber’s inability to obtain the necessary land. He denies that he received any benefit from any source for his part in the transaction, or that he furnished any part of the consideration for the exchange.
The trial judge in this action for an accounting and mandatory injunction held that Holland was ■ guilty of a breach of trust; that he and Sieber were joint adventurers; and, that the bonds traded re-i suited in a profit to Holland and Sieber. He found Holland indebted to the city for “illicit profits ac cruing to him while he held' the office of mayor, in the amount of $127,000, less whatever costs accrued in the acquisition of the bonds traded in.” He further stated that:
“The decree may provide that the defendant shall be given an opportunity to show the cost to him and to Sieber of the transaction, and such opportunity may be extended for a period of 60 days after the date of. the entry of the decree in accordance with this opinion. For the purpose of making such accounting, the proofs in the case will be held open until the expiration of said 60-day period.”
Defendant Holland seeks reversal and vacation of the decree for the reasons that no proof was offered that he personally profited by the transaction, and that the court was in error in holding him guilty of a breach of fiduciary duty, in the light of the informal discussion with the members of the city council. He emphasizes the fact that the trial judge entertained serious doubts as to whether plaintiff city had established its claim that Holland had received any pecuniary advantage, pointing out that the trial judge stated in his opinion:
“The testimony is not very satisfactory. * * * Of course, there are gaps in the testimony in this case. There usually are when most of the facts are in the possession of the defendant and can be brought into the open only at the hardest.”
Holland also urges that where the direct proof is lacking, the doubt should be resolved in favor of the defendant when his explanation of the transactions is equally consistent with innocence.
Our decision must be confined to the testimony within the record. Anderson v. Jersey Creamery Co., 278 Mich 396; O’Connor v. O’Connor, 281 Mich 640; Detroit Trust Co. v. Mason, 309 Mich 281.
In appeals in equity we review the record de novo. Barrett v. Swisher, 324 Mich 638; Fisk v. Fisk, 328 Mich 570; Kahn v. Friedman, 329 Mich 164.
Our examination requires the conclusion that plaintiff city has not sustained the burden of proof. Because of its failure in this respect the decree of the trial court must be vacated. Lendberg v. Brotherton Iron Mining Co., 75 Mich 84; Caruso v. Weber, 257 Mich 333; Refrigerating Equipment Co. v. Finch, 257 Mich 623.
The decree is vacated, with costs to appellant.
Beid, C. J., and Boyles, North, Dethmers, and .Carr, JJ., concurred with Bushnell, J. Sharpe, J., concurred in the result. Butzel, J., did not sit. | [
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