text
stringlengths 12
234k
| embeddings
sequencelengths 1.02k
1.02k
|
|---|---|
Wiest, J.
Plaintiff’s father and stepmother were married in May, 1921, and lived in a home they owned jointly in the city of Wyandotte. The father died in December, 1936, and the stepmother, as owner, continued to occupy the home until her death, September 8, 1938. Defendants are her sole heirs at law. Plaintiff was administrator of the estate and the home was inventoried as a part of the estate-. August 4, 1939, plaintiff filed the original bill herein alleging that his father and stepmother agreed with him that, if he remained home and assisted them in its maintenance and attended to their wants, they would transfer to him the home, and that he had fully performed his part of the agreement; that at the time of the funeral of their mother defendants signed the following writing:
“Wyandotte, Mich.,
“Sept. 12, 1938.
“To whom this may concern:
“The undersigned have agreed to transfer and waive ^ all rights to the following property, the description of same, being a frame building consisting of 5 rooms and bath and situated at 4145 Seventh St., in the city of Wyandotte, county of Wayne.
“The deed and title of the above property being in the name of Frank Ralinger, deceased Dec. 10, 1936, living heirs being his true wife who has also passed away Sept. 8, 1938.
£ £ Therefore we agree that said property be titled to Russell Ralinger. All insurance and cash moneys to be divided equally among the (5) five remaining daughters, after all outstanding bills to date and marker have been paid for.
“ There also being a 1932-B-4 Model Ford automobile, the title being in the name of the deceased Theresa Ralinger to be changed to Russell Ralinger.
“This agreement to cover furniture with said property. Michael Ralinger to share in the above property at the age of 21 to be half owner.
“Witness Heirs
Anna Wroblewski,) [Mrs. Barbara Bosnak,
Barbara G-einer, j Catherine Vukovic,
- Catherine Serrtoner,
Elizabeth Radocaj,
Marie Wendell.”
The bill asked specific performance of the alleged agreement by the estate of the stepmother, and that plaintiff should have the property.
Subsequently, by stipulation, the bill was amended and the estate dismissed as a party defendant.
The amended bill again set up the alleged agreement between the plaintiff and his father and stepmother, and:
“That the defendants, Barbara Bosnak and Catherine Vukovic are the daughters and sole heirs at law of Theresa Ralinger, deceased, and as such entitled to share in her estate; that they had full knowledge as to the services rendered to their mother by this plaintiff and as to her satisfaction therewith; that by reason of the same they were relieved of the duty of looking after her and administering to her wants and desires; that they had full knowledge of the aforementioned agreement between Frank Ralinger and Theresa Ralinger, both deceased, and this plaintiff concerning the services to be rendered by said plaintiff to the deceased, respectively, and concerning the transfer of the property hereinbefore mentioned to this plaintiff, and particularly that they had full knowledge that this plaintiff fully performed his undertaking with the said Frank Ralinger and Theresa Ralinger, deceased, respectively, and attended to their wants in sickness and in health and looked after their interests during their respective lifetimes.
“That in consideration of the services rendered their parents as aforesaid and in recognition of said agreement made by the deceased, said defendants Barbara Bosnak and Catherine Yukovic did on or about the 12th day of September, A. D. 1938, enter into an agreement with certain other persons whereby all agreed to waive any interest which they might have in or to said property commonly'referred to as 4145 Seventh Street, Wyandotte, Michigan, to this plaintiff, and did thereupon execute and deliver to this plaintiff a certain article or conveyance in writing, a photo static copy of which is attached to the original bill of complaint filed in said cause and marked Exhibit A, whereby they agreed to transfer and waive all rights and interests to said property which they might have to this plaintiff, and further agreed that said property should be titled in his name; that the consideration for such agreement or conveyance was the performance of his undertaking by the plaintiff in looking after the said Frank Ralinger and Theresa Ralinger, both deceased, during their lifetimes, and his attending to their wants in sickness and in health, and his attention to their interests. ’ ’
Plaintiff asked:
“That it be decreed that the consideration for the said agreement and conveyance heretofore executed by the defendants, Barbara Bosnak and Catherine Yukovic, whereby they conveyed and transferred, or agreed to convey and transfer their interest to said property to the plaintiff was his full performance of his undertaking and agreement with Frank Ralinger and Theresa Ralinger, both deceased.
“That this Honorable Court decree that the consideration for said agreement or conveyance executed by the said defendants, Barbara Bosnak and Catherine Yukovic, conveying and transferring their interest to said property to this plaintiff was adequate and actual, although not recited in said agreement or conveyance, and that the said plaintiff has fully performed his agreements in every particular.”
Upon hearing, the court decreed the writing signed by defendants “is in fact and in law a valid conveyance of the defendants’ interest in the property described therein, and that it may stand as a quitclaim deed or conveyance of such interests, and, it is further ordered, adjudged and decreed, that a certified copy of this decree.may be recorded in the office of the register of deeds for the county of Wayne, in lieu thereof, and with the same force and effect.”
Defendants, by answer, denied the purpose of the writing was to grant title to defendant and pleaded want of consideration.
The circuit judge held want of consideration was an affirmative defense and plaintiff did not have to show consideration.
In his brief counsel for plaintiff states:
“It was, and is, the theory of the plaintiff and appellee that the consideration or reason for the execution and delivery of the writing, Exhibit A, was his full performance of a verbal agreement with his deceased father and stepmother, under which he was to live with them and look after them during the remainder of their respective lives, and was in return to receive the property here in question. * * *
‘'‘That plaintiff and appellee failed to establish such parole contract between himself and his deceased father and stepmother to a degree which would have enabled him to obtain a decree for specific performance against either of their respective estates is, we think, of little consequence where the estate is no longer a party to the action (although it might have proved fatal in an action directed against the estate), for the one action would be predicated upon an executory contract, while the other, and instant one, is based upon an executed conveyance of real property.
“It must be remembered that the estate of Theresa Ralinger, deceased, while originally joined, was no longer a party defendant, and that this was an action to enforce the written instrument.”
Plaintiff does not seek specific performance of the alleged contract with his father and stepmother biit a title from persons with whom he never had valid contract relations.
At the hearing plaintiff sought to prove the contract with his father and stepmother but the court found the alleged agreement was not established. Having alleged that agreement as consideration for the writing signed by defendants and failing to prove the same, want of consideration must be found. This claimed consideration, having been adjudged without merit, cannot constitute consideration for the writing. The writing under the disclosed circumstances cannot be held to serve as a quitclaim deed passing title from defendants to plaintiff. The agreement signed by defendants was also signed by three sisters of plaintiff who had no interest in the property. This agreement was signed at the time the parties were attending the funeral of Mrs. Ralinger and was brought about by the unfounded claim made by plaintiff that, under the agreement with his father and stepmother, he was to own the property. There is no equity in the bill.
The evidence does not show an intent on the part of defendants to pass title by the writing to plaintiff, and the court was in error in giving it the force and effect of a quitclaim deed.
The decree in the circuit court is reversed, and a decree will be entered in this court dismissing the bill, with costs to defendants.
Chandler, C. J., and Boyles, North, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
4,
72,
-47,
-11,
12,
-10,
20,
60,
22,
-22,
-18,
-62,
22,
-5,
0,
52,
-3,
-10,
-19,
13,
-10,
-10,
-51,
9,
26,
43,
-6,
-43,
-22,
-15,
-35,
-16,
-27,
-12,
-19,
-18,
46,
-33,
-36,
-1,
-4,
-27,
2,
43,
7,
0,
21,
-19,
30,
-22,
-27,
-27,
-12,
8,
7,
-26,
49,
-27,
-13,
21,
21,
-60,
-21,
-19,
-26,
30,
40,
50,
-18,
34,
36,
-49,
-5,
6,
6,
-18,
-34,
32,
6,
28,
28,
-56,
15,
0,
-62,
13,
-21,
-12,
-14,
38,
-37,
40,
-23,
-10,
-19,
13,
52,
58,
-7,
-19,
-26,
-20,
0,
35,
42,
5,
14,
-11,
8,
29,
-17,
-76,
51,
32,
3,
25,
2,
0,
36,
37,
28,
-15,
8,
-12,
4,
-7,
-58,
0,
41,
-33,
22,
18,
-27,
13,
22,
13,
-2,
-49,
-10,
-10,
21,
-2,
1,
-14,
12,
55,
-25,
-24,
4,
-80,
-60,
31,
57,
14,
4,
-14,
19,
-21,
5,
-34,
21,
-47,
10,
-42,
-83,
-36,
4,
28,
-23,
21,
5,
-7,
-4,
-43,
26,
-13,
32,
17,
-65,
-18,
20,
23,
-21,
7,
17,
-71,
48,
-8,
-9,
-33,
37,
-45,
14,
26,
-3,
31,
22,
12,
-17,
9,
27,
-57,
12,
-10,
35,
-3,
-29,
-1,
-10,
-37,
5,
31,
-2,
-46,
-31,
-14,
21,
-15,
-53,
-38,
27,
3,
21,
12,
-39,
-36,
-26,
-41,
59,
7,
30,
-14,
-16,
45,
-53,
-13,
-19,
-14,
1,
-7,
32,
-30,
4,
-29,
3,
16,
-43,
1,
1,
-5,
19,
-16,
-8,
28,
12,
6,
-8,
-7,
18,
-23,
-24,
17,
-51,
40,
53,
11,
7,
-20,
-38,
-41,
-4,
-16,
21,
-17,
-32,
-42,
-10,
17,
-7,
3,
31,
-32,
-14,
11,
22,
42,
19,
36,
-18,
-17,
8,
-16,
-5,
-27,
-25,
56,
-8,
-25,
27,
9,
-70,
-27,
11,
13,
-21,
-54,
-15,
17,
44,
56,
-30,
3,
27,
20,
28,
9,
-7,
21,
-10,
16,
53,
18,
-29,
4,
-25,
-60,
-10,
3,
-16,
54,
-77,
-20,
-14,
-43,
-24,
-60,
36,
7,
-36,
-37,
88,
-15,
29,
13,
-3,
-42,
27,
33,
-11,
-7,
-20,
-15,
-6,
37,
-64,
-47,
8,
-7,
0,
52,
30,
39,
-16,
32,
-39,
11,
3,
-15,
26,
19,
21,
14,
-13,
42,
45,
20,
-68,
53,
9,
23,
-4,
-25,
-15,
65,
19,
44,
-34,
-19,
0,
70,
-33,
18,
-26,
7,
2,
-32,
-11,
2,
-60,
-22,
-3,
32,
-13,
-15,
-36,
1,
-14,
22,
-21,
13,
-7,
-64,
26,
-31,
17,
37,
-2,
-39,
21,
18,
1,
73,
-15,
-15,
26,
-38,
39,
7,
-1,
3,
7,
11,
40,
16,
60,
-10,
-8,
13,
12,
49,
21,
60,
6,
-8,
-14,
-7,
-67,
-32,
39,
8,
24,
65,
11,
22,
47,
-1,
44,
7,
-20,
-4,
7,
-47,
76,
-50,
-3,
-41,
0,
-13,
6,
-3,
-7,
-18,
-4,
-8,
16,
-19,
14,
-30,
20,
6,
14,
14,
-2,
-23,
17,
-31,
-26,
-20,
-13,
-12,
14,
-22,
18,
5,
28,
-45,
-17,
31,
1,
-63,
0,
19,
38,
17,
0,
-19,
-56,
2,
-28,
19,
30,
-17,
-8,
35,
-61,
68,
79,
-2,
52,
-6,
14,
-2,
-14,
18,
5,
0,
52,
4,
-8,
0,
-25,
-24,
8,
-34,
-9,
-14,
-29,
-18,
-25,
-5,
11,
8,
7,
-15,
-35,
10,
-10,
-39,
12,
-24,
-30,
-64,
-30,
20,
-14,
46,
58,
-1,
-26,
0,
44,
-5,
11,
-67,
25,
-40,
-14,
-25,
13,
23,
-79,
-7,
24,
-52,
-5,
9,
0,
-21,
-31,
18,
0,
6,
22,
17,
32,
23,
-16,
29,
-13,
40,
20,
12,
2,
-40,
36,
-39,
15,
1,
3,
-20,
-7,
-30,
-7,
-11,
-38,
31,
-32,
11,
36,
-14,
27,
25,
-33,
-3,
29,
85,
30,
-64,
36,
10,
2,
16,
20,
1,
20,
0,
15,
-26,
-5,
40,
-18,
14,
-19,
19,
32,
-20,
26,
10,
42,
8,
-40,
-7,
4,
28,
5,
15,
-26,
-16,
-12,
3,
-49,
-21,
-27,
-6,
0,
2,
38,
-64,
33,
-6,
53,
-20,
-31,
35,
-23,
-15,
78,
-24,
6,
-7,
9,
18,
4,
14,
16,
17,
-19,
26,
42,
23,
9,
26,
7,
47,
-33,
-28,
36,
-40,
1,
-21,
-2,
-8,
-9,
37,
-41,
9,
-24,
-6,
0,
9,
-23,
11,
9,
20,
-53,
29,
14,
3,
-75,
-56,
-34,
-35,
-15,
-17,
-26,
87,
31,
-30,
-7,
-54,
-34,
-17,
6,
-49,
19,
29,
30,
-2,
23,
-21,
36,
-17,
-15,
-1,
6,
20,
-40,
22,
4,
34,
18,
-2,
-25,
42,
-3,
-24,
-12,
16,
-3,
-10,
-11,
21,
21,
25,
-6,
-1,
13,
21,
0,
-8,
5,
26,
-8,
46,
21,
-2,
-22,
30,
30,
-29,
-63,
21,
-70,
-36,
-22,
17,
-31,
-8,
26,
-39,
0,
-33,
-29,
1,
-9,
-9,
33,
-26,
64,
40,
-30,
-5,
21,
-3,
-53,
-7,
37,
-5,
54,
-28,
53,
36,
15,
21,
59,
19,
-16,
53,
-37,
9,
22,
38,
14,
-47,
-9,
-27,
57,
35,
-30,
34,
42,
0,
17,
-13,
-14,
6,
10,
29,
-75,
7,
-40,
-35,
-73,
11,
26,
12,
32,
0,
-5,
-6,
18,
-4,
-11,
17,
7,
24,
60,
7,
-11,
10,
-4,
-52,
-9,
2,
-26,
1,
-18,
3,
-49,
-5,
50,
-32,
-15,
-42,
-21,
-26,
-1,
-24,
14,
-5,
-25,
-49,
-27,
-20,
10,
-40,
43,
20,
26,
18,
20,
46,
0,
25,
-14,
57,
16,
8,
-47,
0,
14,
-10,
-25,
-17,
-51,
-31,
2,
-43,
16,
-18,
-19,
-1,
-50,
-13,
-36,
-23,
21,
42,
10,
-59,
22,
-19,
14,
5,
-37,
-19,
-14,
-2,
-4,
21,
26,
-7,
-33,
-23,
-18,
-5,
29,
-3,
-34,
21,
-8,
21,
-27,
7,
2,
-43,
-2,
17,
50,
-26,
-1,
16,
-32,
9,
11,
20,
55,
-31,
-25,
29,
32,
-5,
40,
48,
18,
50,
22,
-48,
-64,
24,
24,
0,
18,
17,
13,
-87,
6,
62,
14,
29,
-42,
-10,
-18,
-3,
-52,
-47,
17,
56,
2,
-17,
-18,
-11,
4,
92,
29,
14,
3,
-16,
-65,
-52,
30,
49,
-62,
25,
-9,
49,
-32,
5,
-6,
-2,
-1,
-26,
46,
17,
37,
-3,
-1,
14,
-32,
-27,
-40,
-15,
-38,
41,
-19,
-1,
-10,
-24,
-8,
1,
18,
-3,
17,
38
] |
Chandler, C. J.
On February 1,1940, Honorable Leland W. Carr, one of the circuit judges in and for the county of Ingham, in chancery, entered an order approving the final account of William G. Simpson, former receiver of the above-named La-peer Farmers Mutual Fire Insurance Association. It was further ordered that the bond of said receiver “be cancelled and discharged as to any future liability thereon and without prejudice to any claims or obligations under said bond incurred during the time it was in force and effect.”
On February 21, 1940, the above-named John H. Rice and 11 others, 3 claiming to be members and creditors, and the remaining 9 being members of the above-named association, filed a petition in said re ceivership proceedings, then pending in said'court, asking for leave to intervene therein for the purpose of opposing the final account of said former receiver Simpson and for directions to successor receiver thereon.
No useful purpose will he served by detailing the allegations in said petition. Suffice to say that it contains many serious charges against said former receiver and his attorney. If the present receiver finds a sufficient basis for these charges, he is not precluded by the order of Judge Carr, in approving the account of the former receiver and cancelling his bond, from proceeding against him and his surety because said order expressly provides that it is “without prejudice to any claims or obligations under said bond during the time it was in force and effect.”
While we do not deem it necessary to detail the many ramifications of this receivership, it might be enlightening to make a brief statement of the facts relative to the proceedings.
On September 17, 1935, John O. Ketcham, then commissioner of insurance, was appointed receiver of the Lapeer Farmers Mutual Fire Insurance Association by the circuit court for the county of Ingham, in chancery. On September 30th, following, William G. Simpson was appointed deputy receiver. Much litigation ensued, which will be referred to later, between that date and January 12, 1940, on which date John G. Emery, then insurance commissioner, petitioned for the removal of Simpson, who was removed by said circuit court for the county of Ingham, in chancery, on January 22, 1940, and commissioner Emery was appointed receiver, and on the same date Charles R. Bowles was appointed deputy receiver.
The petition of Rice and others for right to inter vene, above referred to, remained dormant until July 24,1940, when a motion was made by the present receiver to dismiss said petition for the following reasons:
“1. Said petition was filed February 23, 1940, and no notice has been given or attempt made by petitioners’ counsel to bring said petition on for hearing.
“2. More than 20 days prior to the filing of said petition, said William G. Simpson was removed as receiver with Charles R. Bowles as deputy receiver on, to-wit, January 23, 1940, and the final account of said William G. Simpson was allowed at the time after due hearing had and testimony taken.
“3. No appeal has been taken from the order allowing the account of said Simpson and the time for appeal has long expired.
“4. The so-called requests in said petition for instructions to the successor receiver have been superseded by requests in petitions subsequently filed by the same counsel and now pending or have become moot in that the deputy receiver has requested and obtained directions and instructions as to the administration of proof and arguments.
“5. Petitioners are not entitled to intervene inasmuch as they are not necessary parties defendant, have no independent right of action and are not permissible parties plaintiff (Trosper v. Ingham Circuit Judge, 293 Mich. 438).
“6. This motion is based upon the records and files in said cause.”
On August 22, 1940, an order was made by Judge Carr dismissing said petition, the material part thereof being as follows:
“And it appearing that the final account of said William G. Simpson, a prior receiver in said cause, had been duly heard on proofs in open court, fully adjudicated and allowed by this court prior to the filing of such petition;
“And it appearing that petitioners, John H, Rice, et al., have not shown a proper basis to intervene or that they are entitled to petition for instructions to the successor receiver;
“And it further appearing that the present receiver is not in need of further instructions on the matter as prayed;
“■It is ordered, that the petition of John H. Rice, et al., dated February 20, 1940, is hereby dismissed with costs against the petitioners in the amount of $10.”
The present appeal of petitioners followed this order.
No request was made by any interested party to the present receiver to appeal from the order so made by Judge Carr as hereinbefore set forth allowing the final account of former receiver Simpson.
Inasmuch as we determine that the only question involved in this appeal is: “Was it an abuse of discretion for the trial court to dismiss appellants ’ petition for leave to intervene in the conduct of the receivership?” we do not find it necessary to attempt to detail and discuss the numerous and involved “statement of questions involved” presented by appellants’ brief.
While the final account of former deputy receiver Simpson shown in the record here disclosing the receipts and expenditures of such receivership from September, 1935, to January, 1940, is not such a record as either the receiver, his attorney or the insurance department of the State of Michigan can point to with pride, it should be borne in mind, as will be later discussed, that every method known to legal acumen has been indulged in in this proceed ing to thwart the efforts of the receiver in collecting from the members of the association assessments made upon them in order to secure funds to pay créditors and the expenses of the receivership.
The final accounting of said former receiver Simpson shows the institution by him of between eight and nine hundred circuit court cases in the various circuits of this State. The records of this court disclose that litigation involving this receivership has been before us on at least five occasions prior to this, viz.: Simpson v. Goodrich, 280 Mich. 351; In re Dissolution of Lapeer Farmers Mutual Fire Ins. Assn. (Claim of Crawford), 280 Mich. 363; In re Dissolution of Lapeer Farmers Mutual Fire Ins. Assn. (Claim of Rice), 295 Mich. 218; Attorney General, ex rel. Comm’r of Insurance, v. Lapeer Farmers Mutual Fire Ins. Assn. (Claim of Ivory), 297 Mich. 188; Attorney General, ex rel. Comm’r of Insurance, v. Lapeer Farmers Mutual Fire Ins. Assn. (West’s Appeal re Assessment), 297 Mich. 174.
The foregoing record of litigation connected with this receivership, and which undoubtedly does not include nearly all of the litigation in which it has been involved, should make apparent why creditors of the association have not been paid.
We are inclined to the belief that the petition in the instant case is but one of the many dilatory steps being taken to delay proceedings to collect assessments, and furnishes a good reason for the position taken by counsel for the present receiver that the disposition of said petition was within the sound discretion of the circuit judge.
Counsel for the present receiver takes this position: “Merely to scan the calendar entries in the present record will establish the fact that the trial judge was in a preferred position to determine whether justice would be promoted by the proposed intervention. He had ample experience to guide his exercise of discretion.”
The calendar entries referred to by counsel for the receiver comprise 21 pages of the record and are between 450 and 500 in number, which we think quite conclusively establishes that the contention of counsel above set forth is meritorious.
To grant leave to these petitioners to intervene as prayed would open the door for the filing of similar petitions by possibly several thousand of the members of the association, and thus not only indefinitely delay, but probably defeat, the purpose of this receivership, which is to collect, from the members legally liable on their assessments, funds to pay the creditors of said association.
At the time of the hearing on the allowance of the Simpson account, the commissioner of insurance was represented by an assistant attorney general, certain members and creditors of the association were represented by their attorney, Earl L. Phillips, Esq., and Mr. Simpson was represented by his attorney, so it cannot be said that all classes interested were not represented. All were represented and all had an opportunity to be heard.
We might also add that the plaintiff in this proceeding is the attorney general of the State of Michigan on relation of the commissioner of - insurance. Two impartial and important State departments are charged with the duty and responsibility of seeing that justice is done as between the association, its members and its creditors, and this court has said on numerous occasions that only in unusual circumstances will intervention be permitted in receiverships.
A case quite similar to the instant one was before this court in Trosper v. Ingham Circuit Judge, 293 Mich. 438, in which Justice Wiest, speaking for the court, said:
“On application of the State commissioner of insurance and upon a showing that the insurance company was insolvent, the court appointed the commissioner of insurance temporary receiver. At that stage of the proceeding petitioner, who was one of the many thousands of policyholders, asked leave to intervene, but his application was held pending an appeal to this court from the order appointing a temporary receiver. That order was affirmed by this court. Commissioner of Insurance v. American Life Insurance Co., 290 Mich. 33. Thereupon, the circuit court appointed the commissioner of insurance permanent and liquidating receiver and authorized a contract of reinsurance management with the American United Life Insurance Company, an Indiana corporation, authorized to do business in this State. Petitioner then asked that his petition for leave to intervene be granted as of the date it was previously filed. The circuit judge denied the petition, being of the opinion that the purposes sought to be effected by petitioner had been substantially accomplished by the commissioner of insurance and the orders of the court, and that the commissioner, as receiver, was representing the best interests of all policyholders and the intervention would serve no useful purpose.
“Petitioner claims right to intervene and take part in the liquidating proceedings.
“We are of the opinion that in this proceeding leave to intervene was discretionary with the court and there was no abuse in refusing such leave.
“Counsel for petitioner cites Livingston v. Southern Surety Co. of New York, 262 Mich. 438, and Gauss v. Central West Casualty Co., 266 Mich. 159.
“The holdings therein are not applicable. In both cases rights of judgment creditors with independent rights of action controlled, while in the case at bar a policyholder seeks to take a hand in the liquidating proceedings.
“The petitioner is but one of several thousand policyholders and the common interest of all policyholders is, by the insurance law, entrusted to the commissioner of insurance who alone had right to institute the present proceeding. Act No. 256, part 1, chap. 3, § 9, Pub. Acts 1917, as added by Act No. 249, Pub. Acts 1933 (Comp. Laws Supp. 1940, § 12270-1, Stat. Ann. § 24.48). Petitioner was not a permissible party plaintiff, nor a necessary party defendant; neither has he an independent right of action. Petitioner not having an independent right of action and not being a party by right of entry, his entry as an intervener was within the discretion of the court. If petitioner is permitted to intervene then the other policyholders must be granted like permission on application and such would defeat the very policy of the insurance law.”
Attention is called to the case of School District of the City of Ferndale v. Royal Oak Township School District, 293 Mich. 1, 10 (127 A. L. R. 661). We there said:
“Where one seeks to intervene who is not a necessary party under our statute, the trial court may exercise its discretion and unless there is a clear abuse of such discretion, no error is committed in denying the right to intervene. ’ ’
See Whitehorn v. Ingham Circuit Judge, 281 Mich. 10; City of Grand Rapids v. Consumers Power Co., 216 Mich. 409; Morley v. Saginaw Circuit Judge, 117 Mich. 246 (41 L. R. A. 817).
We are unable to find that any useful purpose will be served by permitting intervention by petitioners, and the learned trial judge did not abuse the discretion vested in him by dismissing the petition to intervene.
Order of dismissal by trial judge affirmed and appeal of petitioners dismissed.
The receiver will recover costs to be taxed.
Boyles, North, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred. Starr, J., did not sit. | [
29,
-24,
20,
43,
18,
-13,
21,
-71,
17,
-38,
18,
-5,
8,
10,
-68,
27,
26,
-12,
1,
22,
-47,
10,
14,
-36,
-24,
-68,
24,
5,
-30,
-20,
13,
-26,
-25,
21,
-76,
-27,
16,
-10,
7,
-17,
-15,
-33,
25,
-6,
-28,
-11,
0,
-7,
19,
-26,
10,
-15,
56,
23,
-55,
-31,
13,
11,
39,
-23,
-20,
-39,
23,
-13,
1,
-17,
-34,
37,
23,
-41,
67,
-14,
-29,
22,
48,
0,
29,
-18,
-35,
-21,
-28,
-24,
9,
-6,
-30,
-25,
18,
0,
3,
58,
-54,
29,
-34,
-41,
-2,
-49,
48,
22,
42,
27,
-10,
-32,
-29,
-20,
22,
36,
28,
-38,
-50,
20,
0,
-30,
27,
-29,
16,
-20,
-32,
24,
14,
37,
0,
0,
12,
-55,
16,
42,
-8,
1,
-23,
22,
-27,
7,
12,
5,
1,
-42,
25,
-15,
38,
-2,
-38,
48,
-64,
-11,
-53,
-2,
-33,
-57,
2,
15,
-13,
31,
-9,
9,
0,
0,
21,
-23,
28,
-32,
-15,
-68,
26,
-30,
-24,
-5,
-4,
-11,
-5,
27,
7,
49,
1,
19,
-40,
-12,
13,
-11,
-19,
55,
16,
24,
-42,
4,
-6,
-39,
27,
10,
-10,
43,
43,
-50,
-3,
28,
-16,
-1,
66,
21,
35,
-16,
-3,
39,
-4,
-14,
35,
-15,
73,
-4,
10,
57,
-16,
14,
11,
-11,
-9,
65,
-40,
29,
3,
-36,
2,
50,
8,
49,
-27,
-81,
9,
-15,
-27,
-42,
-12,
-38,
-12,
50,
-19,
79,
34,
-3,
-16,
38,
-31,
13,
43,
18,
19,
-12,
28,
-12,
-15,
15,
-36,
8,
59,
0,
9,
23,
-28,
1,
-52,
23,
13,
-31,
-42,
6,
-1,
-10,
5,
0,
57,
26,
6,
-39,
48,
-36,
-1,
-12,
5,
13,
-25,
-37,
15,
4,
-82,
-22,
7,
-45,
55,
3,
-21,
-68,
-2,
17,
6,
5,
22,
-17,
21,
-22,
67,
6,
-15,
10,
-74,
-46,
11,
-5,
-42,
-76,
-46,
-2,
20,
6,
-13,
-88,
15,
-53,
17,
-2,
-21,
-7,
27,
36,
-19,
12,
14,
43,
20,
39,
1,
61,
-41,
-25,
-2,
0,
9,
29,
5,
23,
40,
-8,
24,
-1,
30,
27,
-12,
-26,
9,
7,
2,
26,
-54,
35,
-3,
12,
-39,
28,
67,
30,
-4,
58,
4,
7,
9,
-9,
54,
-28,
-46,
-22,
7,
22,
43,
20,
-20,
-36,
0,
64,
-29,
-25,
0,
1,
20,
25,
-10,
0,
40,
-64,
22,
33,
-57,
-11,
2,
-3,
-50,
32,
-49,
6,
12,
-45,
-69,
8,
38,
37,
-55,
-4,
0,
44,
-56,
-23,
34,
-38,
24,
54,
38,
-5,
54,
24,
8,
-22,
76,
0,
57,
-6,
36,
-2,
1,
-44,
10,
35,
-17,
11,
0,
-4,
5,
-24,
20,
26,
-24,
-9,
-35,
27,
22,
2,
48,
15,
-33,
-10,
24,
6,
45,
-15,
-5,
14,
12,
56,
-53,
69,
-7,
-8,
4,
-64,
2,
-44,
-29,
-2,
-17,
46,
-14,
18,
44,
-19,
-13,
-1,
-22,
-39,
-34,
20,
43,
-46,
-19,
15,
4,
32,
-36,
-18,
-19,
-9,
6,
32,
-4,
1,
8,
-8,
-10,
-10,
11,
20,
46,
-15,
28,
-2,
-8,
-5,
9,
-24,
9,
41,
10,
-59,
13,
35,
1,
-48,
29,
38,
42,
41,
-5,
40,
17,
-5,
15,
-17,
-56,
-8,
8,
38,
10,
-15,
55,
-51,
21,
-1,
17,
-43,
4,
37,
0,
13,
-54,
-68,
13,
20,
33,
20,
-41,
-16,
1,
-21,
7,
-17,
-34,
-19,
28,
-38,
-36,
33,
-5,
-11,
14,
35,
-35,
-29,
28,
32,
-2,
-20,
-58,
-17,
-24,
-9,
66,
-21,
20,
-5,
47,
39,
-48,
-35,
7,
19,
-24,
-34,
-70,
-34,
21,
7,
19,
-13,
-48,
-2,
-9,
-2,
-93,
31,
39,
5,
-21,
-11,
-24,
-29,
-50,
-17,
13,
17,
6,
28,
22,
38,
0,
18,
-34,
9,
55,
14,
29,
-20,
11,
29,
-20,
-19,
16,
-7,
47,
-42,
-15,
-3,
38,
2,
43,
-18,
31,
-19,
13,
32,
20,
-32,
-33,
26,
-23,
-4,
-33,
-2,
-19,
-24,
3,
28,
17,
-31,
-7,
-52,
-36,
-7,
-2,
52,
-23,
-8,
36,
-24,
-16,
-8,
16,
16,
-1,
36,
-34,
-16,
25,
48,
7,
5,
26,
-77,
23,
37,
14,
-4,
-11,
73,
32,
16,
-13,
-2,
18,
21,
-28,
23,
-38,
41,
-36,
5,
-4,
-14,
-42,
33,
13,
-35,
-20,
-41,
0,
-46,
-5,
-18,
-39,
30,
-11,
23,
27,
-46,
16,
23,
0,
6,
39,
-5,
5,
-3,
48,
-2,
-8,
7,
-19,
-82,
15,
-3,
-21,
46,
14,
-43,
-21,
-48,
-1,
-31,
-21,
-7,
-28,
-2,
28,
-6,
1,
-46,
-12,
-43,
34,
33,
-54,
15,
-15,
-8,
49,
-27,
-15,
-34,
-58,
6,
-6,
-15,
-11,
12,
-12,
12,
15,
3,
9,
-33,
-16,
-21,
-4,
2,
-17,
-43,
-6,
-2,
-49,
20,
-31,
-14,
33,
-36,
-48,
6,
-11,
-13,
14,
-50,
48,
-18,
56,
-23,
-5,
-19,
-8,
11,
10,
-26,
-30,
24,
26,
-42,
7,
-13,
-29,
66,
-19,
-6,
-15,
9,
4,
12,
28,
-28,
8,
-43,
-2,
-35,
-15,
29,
-44,
-8,
0,
-8,
-53,
-54,
27,
-25,
-3,
-25,
-13,
4,
-4,
3,
-18,
-9,
15,
18,
5,
-47,
22,
-3,
2,
42,
33,
0,
18,
16,
-13,
-45,
4,
-2,
-3,
23,
-57,
-8,
-20,
19,
-32,
-25,
-10,
-19,
12,
-49,
44,
-18,
3,
-31,
21,
0,
-5,
-47,
-32,
-6,
-22,
-3,
0,
8,
-52,
-13,
-25,
-20,
50,
-5,
-49,
4,
-27,
-20,
5,
7,
15,
-19,
-34,
32,
11,
47,
-2,
36,
-23,
34,
0,
10,
-39,
-9,
-36,
-22,
-16,
-21,
9,
10,
-17,
22,
-23,
30,
-8,
13,
-12,
-48,
-21,
44,
42,
-4,
-27,
22,
16,
-46,
35,
28,
39,
-37,
59,
6,
50,
58,
23,
44,
0,
20,
40,
-25,
15,
-18,
31,
46,
12,
1,
5,
-47,
12,
4,
67,
11,
0,
53,
2,
-2,
24,
13,
-1,
27,
-80,
41,
12,
-30,
-60,
37,
-13,
-34,
20,
1,
-9,
38,
-69,
25,
63,
-11,
4,
40,
-7,
-20,
34,
32,
11,
-16,
-27,
27,
-9,
45,
-8,
18,
-47,
-1,
8,
18,
30,
3,
33,
37,
-8,
6,
-51,
28,
-18,
-6,
39,
19,
71,
-10,
40,
24,
-22,
47,
28,
29,
-32,
-12,
16,
-14,
2,
11,
-38,
-2,
37,
-54,
-15,
7,
-21,
14
] |
Brooke, J.
(after stating the facts). We agree with the conclusion of the circuit judge that the description was sufficient under the authority of Auditor General v. Sparrow, 116 Mich. 574.
With reference to the alleged excessive fees charged by the sheriff, while this question was not passed upon by the circuit judge, we are of opinion that plaintiff’s contention is untenable. The notice itself provides that a reconveyance may be secured upon payment of certain specified sums—
“and the fees of the sheriff for the service or cost of publication of this notice, to be computed as upon personal service of a declaration as commencement of suit.”
Assuming that the amount charged by the sheriff was excessive, which we do not determine, the plaintiff was not injured thereby because he was advised in the notice itself of the legal method for the exact determination of the sheriff’s fees.
A more serious proposition is presented by the last point raised. We have held that standing timber constitutes an interest in the land. Wait v. Baldwin, 60 Mich. 622. The statute (section 4138, 1 Comp. Laws 1915) provides that service must be made:
“Upon the person or persons appearing by the records in the office of the register of deeds of said county to be the last grantee or grantees in the regular chain of title of such lands, or of any interest therein.”
In Hansen v. Hall, 167 Mich. 7, it was held that the owner of a reservation of mineral rights was entitled to notice and it was there said:
“Until this notice is duly served upon each part owner and the statutory proofs thereof is made and filed, the right to redemption remains to all,” citing White v. Shaw, 150 Mich. 270, and Dolph v. Norton, 158 Mich. 417.
See, also, G. F. Sanborn Co. v. Richter, 176 Mich. 562.
In the case at bar it is conceded that there is standing pine upon the land in question. True, under the testimony its value is small, and at the time plaintiff obtained his conveyance it was not merchantable in character. These facts, however, should not, in our opinion, be permitted to disturb the principle involved.
The tax title purchaser may readily satisfy himself from an inspection of the records who the person or persons are who are the last grantees of such lands or of any interest therein. According to* the statute the notice must be served upon all such. Concededly this was not done in the case at bar.
Counsel for appellee urges that in any event the decree of the circuit court should be affirmed upon the ground that plaintiff, in waiting over seven years after the service of notice upon him, is now estopped by his laches from questioning the validity of said notice, and cites, in support of that contention, Peters v. Canfield, 74 Mich. 498. The matter in issue there was the enforcement of a land contract. The point here involved is whether appellee has complied with section 140 of the tax law (1 Comp. Laws 1915, § 4138). In the case of G. F. Sanborn Co. v. Alston, 153 Mich. 456, this court said:
“He who relies upon the notices required by the statute must show a substantial compliance therewith, regardless of any fault or laches of the original owner.”
The decree of the court below is reversed, and a decree will be entered in this court allowing plaintiff to redeem upon payment of the statutory sums together with such sums with interest thereon as have been paid as taxes by defendant since the purchase from the State. Plaintiff will recover costs.
Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. | [
15,
50,
-10,
10,
-45,
38,
49,
16,
-2,
37,
89,
-54,
24,
42,
37,
-25,
-15,
-12,
-4,
15,
-4,
-24,
-7,
25,
-21,
-11,
-21,
30,
26,
28,
-33,
36,
-20,
12,
-24,
19,
-9,
0,
-3,
45,
16,
18,
28,
-46,
6,
-11,
14,
-25,
-5,
-28,
47,
1,
-5,
-28,
49,
54,
-22,
6,
4,
-4,
-23,
4,
-3,
21,
17,
5,
-3,
12,
40,
-71,
-33,
52,
-9,
-18,
22,
-16,
-18,
4,
-44,
54,
-9,
-39,
0,
-35,
46,
-18,
15,
-73,
47,
-53,
-14,
15,
-17,
5,
32,
39,
28,
25,
14,
12,
44,
3,
19,
30,
9,
-24,
-15,
-46,
-18,
-46,
30,
-11,
-8,
-52,
-54,
-13,
-5,
-45,
67,
-4,
9,
-42,
27,
-16,
6,
-13,
50,
7,
-55,
-9,
50,
5,
-24,
-26,
1,
-25,
-12,
-45,
1,
-8,
10,
-8,
17,
-27,
20,
-5,
38,
-25,
-39,
-13,
5,
58,
-4,
-1,
-3,
-19,
37,
-46,
11,
-96,
72,
26,
-25,
-36,
-40,
14,
38,
0,
-12,
22,
54,
27,
-12,
7,
17,
-2,
12,
41,
11,
-14,
18,
-29,
17,
-19,
-13,
-25,
7,
-23,
23,
30,
30,
6,
0,
-22,
1,
41,
6,
40,
-42,
-19,
19,
-51,
35,
32,
-10,
-10,
46,
-78,
10,
18,
-40,
6,
-56,
-40,
-18,
-8,
-5,
-25,
20,
-8,
13,
15,
2,
-33,
-2,
-2,
-10,
-8,
28,
-11,
0,
3,
0,
0,
-38,
-23,
37,
33,
24,
-25,
-16,
-18,
-28,
-57,
21,
21,
-11,
-15,
-12,
21,
-14,
-52,
-51,
17,
-14,
-32,
30,
-6,
-54,
-54,
-24,
42,
-19,
26,
-48,
-3,
-8,
41,
-41,
8,
-31,
34,
45,
18,
-2,
-5,
3,
-36,
12,
12,
13,
-2,
44,
55,
-59,
60,
-16,
40,
18,
21,
37,
-37,
-21,
19,
15,
24,
4,
-31,
53,
-2,
19,
-17,
34,
1,
3,
-6,
-18,
17,
-39,
25,
11,
27,
-32,
30,
17,
25,
-24,
-12,
9,
-36,
25,
33,
-3,
-33,
23,
15,
71,
-61,
-25,
-25,
-30,
-29,
-20,
9,
38,
3,
28,
-71,
-6,
0,
47,
-32,
-4,
35,
24,
25,
-53,
15,
-3,
20,
-29,
55,
-6,
63,
10,
-17,
-34,
-46,
16,
18,
29,
9,
41,
-10,
-4,
-2,
-54,
-15,
15,
28,
16,
-3,
21,
-12,
-38,
-36,
-8,
6,
-61,
8,
14,
-13,
-10,
40,
26,
-3,
-48,
-45,
-12,
-14,
-43,
-18,
6,
66,
-32,
-10,
15,
-34,
-17,
-48,
-40,
24,
17,
41,
-35,
18,
-12,
-47,
-9,
38,
-18,
13,
-13,
0,
0,
9,
59,
29,
5,
4,
59,
1,
-1,
-19,
10,
-10,
-22,
70,
8,
20,
-38,
6,
45,
-21,
21,
8,
-9,
-35,
-52,
6,
-34,
-5,
-12,
-40,
-37,
-36,
-52,
10,
36,
-37,
-26,
-31,
-53,
-37,
-33,
12,
40,
-95,
-31,
-40,
42,
5,
13,
-9,
-2,
-66,
-18,
-25,
33,
25,
-9,
42,
-3,
-23,
12,
-9,
0,
15,
-5,
46,
5,
-15,
19,
-15,
-46,
-2,
-10,
-44,
-13,
-25,
51,
15,
13,
-15,
14,
-14,
-22,
-26,
49,
48,
0,
5,
37,
-27,
22,
-32,
-10,
16,
31,
51,
-15,
-11,
37,
-7,
-21,
46,
14,
-30,
8,
16,
28,
-53,
-60,
-2,
39,
35,
8,
6,
75,
-2,
-36,
22,
44,
0,
2,
52,
-3,
0,
-31,
-1,
-29,
30,
42,
27,
-3,
29,
3,
-14,
35,
-27,
-69,
-66,
-22,
31,
-21,
19,
-16,
-18,
3,
-26,
4,
-5,
19,
-53,
67,
-21,
-20,
1,
-1,
3,
-22,
-59,
15,
-27,
-3,
-33,
1,
-33,
15,
7,
14,
-55,
-33,
0,
-13,
-6,
23,
-19,
28,
-12,
9,
-5,
-3,
-12,
-52,
-38,
-6,
-12,
28,
-10,
-4,
-3,
-29,
-13,
14,
10,
14,
3,
-1,
17,
-29,
9,
15,
29,
-17,
47,
20,
-70,
32,
15,
34,
-22,
30,
36,
27,
17,
3,
13,
-37,
31,
-10,
11,
-19,
-9,
-3,
0,
1,
-7,
-8,
-13,
16,
-27,
-21,
-13,
25,
29,
-49,
29,
-4,
-31,
-40,
31,
21,
0,
-3,
10,
17,
6,
33,
-33,
49,
-9,
-24,
51,
-45,
-14,
0,
6,
86,
4,
38,
-57,
-38,
-21,
-8,
-48,
38,
9,
24,
18,
-3,
7,
28,
1,
-13,
7,
-38,
20,
10,
22,
2,
22,
11,
26,
-30,
-31,
30,
36,
31,
4,
5,
29,
26,
-29,
-17,
22,
-38,
-38,
9,
0,
26,
34,
-16,
0,
-31,
31,
0,
-3,
-23,
-2,
-22,
-22,
19,
-53,
63,
4,
28,
-8,
-49,
-17,
14,
57,
-13,
-27,
-7,
-16,
44,
20,
-14,
2,
-2,
-16,
5,
-24,
6,
17,
60,
9,
-66,
21,
38,
12,
6,
26,
-28,
-15,
-6,
9,
-19,
-20,
22,
-20,
-40,
-10,
20,
-22,
-38,
-59,
8,
-9,
-4,
17,
-27,
12,
38,
33,
20,
-22,
52,
12,
14,
1,
-37,
-6,
-47,
-64,
-5,
-34,
-22,
34,
14,
-26,
26,
-40,
0,
0,
-13,
-14,
6,
-12,
3,
8,
34,
18,
4,
41,
0,
24,
-1,
10,
31,
-15,
-20,
-22,
-31,
-42,
-20,
76,
-52,
-26,
-27,
15,
4,
-6,
-26,
12,
33,
11,
4,
20,
19,
-20,
-62,
-14,
58,
-21,
-26,
19,
-8,
28,
39,
-80,
-25,
0,
16,
5,
-42,
-7,
-11,
-20,
-42,
27,
-20,
7,
0,
-9,
-14,
0,
19,
-10,
47,
21,
14,
-7,
1,
-11,
39,
15,
1,
3,
2,
67,
-18,
25,
7,
-6,
-2,
-46,
1,
-48,
-14,
18,
-7,
-10,
-17,
23,
25,
-18,
32,
9,
30,
-6,
-26,
58,
-1,
-5,
-29,
-13,
13,
-21,
6,
-6,
2,
25,
15,
-18,
5,
-16,
9,
27,
-5,
-29,
-13,
-37,
-30,
4,
0,
-9,
-12,
16,
73,
63,
-39,
7,
-22,
24,
25,
11,
-40,
0,
-44,
23,
-7,
19,
36,
6,
-4,
-70,
-6,
-1,
-29,
12,
-21,
8,
-38,
20,
-7,
55,
-5,
-11,
-6,
16,
79,
62,
-29,
-16,
-37,
-51,
-46,
11,
-59,
31,
11,
-29,
-10,
44,
11,
-5,
3,
-3,
-6,
-24,
5,
-17,
30,
49,
27,
4,
-6,
-7,
7,
-27,
-26,
8,
11,
-5,
-10,
-30,
-22,
-2,
17,
4,
11,
-11,
4,
6,
-14,
8,
-36,
-31,
27,
15,
13,
-9,
41,
-52,
62,
73,
5,
-34,
-66,
-19,
44,
37,
-10,
17,
2,
-31,
-5,
-5,
29,
41,
4,
41
] |
Moore, J.
This is certiorari to review a mandamus proceeding in the circuit court for Wayne county in which the controller of the city of Detroit was ordered to issue library bonds to the amount of $750,000. It is claimed the bonds are illegal and should not be issued. The argument against their validity is summarized by counsel in the brief as follows:
“(1) That the Detroit library commission is a municipal corporation separate and distinct from said school district of Detroit and from the said city of Detroit.
“(2) That as compared with said city of Detroit, a full-fledged municipal corporation, said Detroit library commission is but a quasi municipal corporation.
“(3) That the boundaries of said Detroit library commission are the boundaries of said commission at the time of its incorporation, i. e., the boundaries of said school district of Detroit and of said city of Detroit as they existed on March 29, 1901.
“(4) That the boundaries of said library commission have never been extended by legislative act.
“(5) That any act of the legislature extending the boundaries of said full-fledged municipal corporation of Detroit did not or could not automatically extend the boundaries of said quasi municipal corporation, the Detroit library commission, especially when neither of the separate acts incorporating said two municipal corporations so provided.
“(6) That since said city of Detroit is incorporated for city and full-fledged municipal purposes only, and since it has become subject to the provisions of said Act No. 279, Pub. Acts 1909, it can legislate only for city and full-fledged municipal purposes. Consequently any extension of boundaries by said city under said Act No. 279 affects the boundaries of said city only and does not and cannot affect the boundaries of said school district of Detroit or said Detroit library commission.
“(7) That bonds issued for library purposes are not bonds issued for full-fledged municipal purposes ; and inasmuch as Detroit can levy and collect taxes for only city and full-fledged municipal purposes, it cannot levy and collect taxes to pay the principal and interest of bonds issued, not for city and full-fledged municipal purposes, but for library purposes.
"(8) That said Act No. 323' is unconstitutional under the provisions of section 30 of article 5 of said new Constitution because it is a special act and a general act might have been made applicable.
“(Í0) That said Local Act No. 323 is not effective in said Detroit library commission because said act was not properly and legally submitted to the voters of said Detroit library commission, the district to be affected by said Local Act No. 323, as required by the second and last provision of section 30 of article 5 of the Constitution.
“(11) That the act is an act entitled in part, ‘An act to authorize the common council of the city of Detroit to borrow money.’ Said act is therefore unconstitutional under sections 20 and 21 of article 8 of said Constitution, which prohibit the passage of special acts granting power to cities. The balance of said title reads as follows: ‘ — for the purpose of • completing the erection of and equipping the new main library building in the city of Detroit.’
“The purpose of said Act No. 323 is not a city or full-fledged municipal purpose and therefore said act fails under the provision of said section 21 of the Constitution.”
We shall not undertake to deal with each of these objections in detail but before considering any of them will refer to what is shown by the record.
The Detroit library commission now in charge of library matters in the city of Detroit, was, previous to 1901, an adjunct of the board of education of the city of Detroit. It is still associated with it to the extent that its membership must be chosen by this board.
At its session in 1901, the legislature passed an act entitled:
“An act to incorporate the Detroit library commission, and to provide means for acquiring land and the erection of a public library building or buildings thereon, and the maintenance of the same.” Act No. 359, Local Acts 1901.
By the provisions of this legislation the money of this corporation, aside from that received from fines, comes from the common council and the board of estimates of the city of Detroit, and it is raised by taxation upon the taxable property of the city. Later proceedings were begun to build a library building. Part of the site was acquired by purchase and the balance of it by condemnation proceedings. The original act as amended authorized the issue of a million dollars .worth of bonds. After the building was under way, it was discovered that the million dollars would not be sufficient to complete the building and equip it, and in 1915 the legislature passed Local Act No. 323, entitled :
“An act to authorize the common council of the city of Detroit to borrow money for the purpose of completing the erection and equipping the new main library building in the city of Detroit.”
We quote portions of the act as follows:
“Section 1. The common council of the city of Detroit is hereby authorized to borrow for the purpose of completing the erection of and equipping the new main library building in the city of Detroit a sum of money not to exceed the sum of seven hundred fifty thousand dollars on the faith and credit of said city, and upon the best terms that can be made, and to issue bonds of said city to an amount not exceeding said sum, pledging the faith and credit of said city for the payment of the principal and interest, but said bonds shall not be negotiated at less than their par value. Said bonds shall be denominated ‘Public library bonds of the city of Detroit.’ ■ * * * No bonds shall be issued under this act until the issue of the same shall have been authorized and approved by the board of estimates of the city of Detroit.
“SEC. 2. * * * The principal realized from the issue and sale of said bonds shall be deposited in the eity treasury to the credit of the public library fund for the purposes hereinbefore mentioned, and shall be applied exclusively to the purpose of completing the erection and equipping the new main library building in the city of Detroit. * * *
“SEC. 3. This act shall not take effect until a majority of the qualified electors of the city of Detroit voting on the question of the approval of this act, at any general or special election to be held in said city, shall so determine, and the common council of said city is hereby authorized and required to give notice of submitting the question of the approval of this act to the qualified electors of said city, by giving due notice thereof.” * * *
Detailed instructions are given in the act of the manner of conducting the election and making a canvass of the votes and issuing a certificate of the result.
On April 16, 1918, a certificate was duly issued from which we quote:
“Certificate of Board of Canvassers.
“This is to certify that at a general election held in the city of Detroit, Michigan, November 7th, 1916, there was submitted to the qualified electors of said city the question of the approval of an act entitled ‘An act to authorize the common council of the city of Detroit to borrow money for the purpose of completing the erection of and equipping the new main library building in the city of Detroit,’ approved May 18th, 1915, being Act No. 328 of the Local Acts of the legislature of the State of Michigan, passed at the regular session of 1915, at which election a majority of the qualified electors of said city voting on said question determined that said act should take, effect.
“That the election was conducted and the votes canvassed and returns made in all respects as the aforesaid election held in said city is by law required to be conducted and immediately upon the conclusion of such canvass the board of canvassers made and signed certificates showing the whole number of votes cast upon said proposition and the number for and against the same, respectively; that said board of canvassers en-, dorsed upon the certificates and declared in writing the result of said election; that such certificate and declaration were then filed with the city clerk of said city and entered and attached upon the records of said city and a copy of said certificate and declaration, certified to by said city clerk, was filed with the controller of said city; that the whole number of votes cast upon said proposition was 68,502 of which 52,714 were for the proposition and 15,788 against.”
The common council and the board of estimates acted as provided in the act.
The most serious argument against issuing the bonds is stated in one of the briefs as follows:
“1. The act of 1915, although submitted to the electors, is unconstitutional because it does not comply with section 30, article 5, of the Constitution of 1909, which reads as follows:
“ ‘The legislature shall pass no local or special act in any case where a general act can be made applicable,’ * * *
which question shall be a judicial one.
“2. The act of 1915 is unconstitutional because it is in contravention of section 1, article 12, of the Constitution of 1909, which reads:
“ ‘Corporations may be formed' under general laws but shall not .be created, nor shall any rights, privileges or franchises be conferred upon them, by special act of the legislature.’ ”
It is argued with much emphasis that the act is a local one, when a general act was applicable, and therefore void.
Article 5 of the Constitution is entitled “Legislative Department.” Section 30 of article 5 reads:
“The legislature shall pass no local or special act in any case where a general' act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act shall take effect until approved by a majority of the electors voting thereon in the district to be affected.”
Section 38 of the same article reads:
“Any bill passed by the legislature and approved by the governor, except appropriation bills, may be referred by the legislature to the qualified electors; and no bill so referred shall become a law unless approved by a majority of the electors voting thereon.”
An interpretation was put upon the meaning of these- sections by the official address issued when the Constitution was submitted to the electors, reading in part as follows:
“The legislature is inhibited from passing any local or special act in any case where a general act can be made applicable, and then no local or special act shall take effect until approved by a majority of the electors voting thereon in the district to be affected. This is , an entirely new and very important provision. It is intended to eliminate the vast volume of local legislation which has burdened the legislature in recent years and in many instances brought discredit upon it.”
We may now approach the question, Is Act No. 323 a local act? As we have seen, Act No. 359 of 1901 providing means for acquiring a site and erecting a library building purported to be a local act. The act now under consideration purports to be a local act. It is found in the volume of Local Acts. The proceeds arising from the sale of the bonds are to be deposited in the city treasury of Detroit. The act itself before it can become valid must have the approval of a majority of the electors of the city of Detroit voting in relation thereto before it can become a valid act. We think it must be said the act is local. See the opinion of Justice Steere handed down at this term in Common Council of Detroit v. Engel, ante, 536, involving the legality of the issue of school bonds.
Regarding the act, then, as local legislation, can it be said that it is unconstitutional because a general law might have been passed that would be applicable? We have already seen .that a site for a library building has been acquired .upon which there is an unfinished library building which it is estimated will require an expenditure of approximately $750,000 to finish and equip. Our attention has not been called to a like situation anywhere in the State and it is not likely to arise again in Detroit. The fact that eminent counsel are divided upon the question of whether a general law could be framed that would be applicable to the situation indicates that the legislation is on the border line which divides general from special legislation. We think it is not going far afield to say that the framers of the Constitution were aware that such situations might arise. It is our duty, of course, to construe the provisions of the Constitution so as to give them all effect if possible. We think it not a strained construction to say that, if the legislature was in doubt as to whether a given law would come under the head of general legislation or would be special, if in the act itself there was a referendum to the electors of the district to be affected, it would be valid legislation when approved by the electors. Treating, then, the legislation as special or local, as all the material requirements of the act itself have been met by the electors at a general election, by the common council, and by the board of estimates, it should be said of the library bonds that they are valid and the judgment of the circuit court is affirmed, but without costs to either party.
Bird, Steere, Brooke, and Kuhn, JJ., concurred with Moore, J. | [
22,
24,
16,
-25,
6,
58,
5,
-49,
4,
16,
-43,
-2,
16,
0,
14,
5,
2,
45,
-22,
19,
-34,
32,
-31,
-4,
-48,
14,
56,
32,
-23,
-19,
46,
-41,
8,
30,
10,
-10,
-19,
-10,
88,
-17,
-24,
-13,
-42,
12,
1,
-2,
63,
14,
36,
-81,
-52,
50,
27,
32,
-4,
4,
-35,
-38,
22,
-5,
-20,
45,
38,
28,
-38,
-47,
8,
21,
32,
-44,
11,
5,
13,
-17,
-8,
-14,
47,
-59,
-24,
20,
-28,
12,
2,
0,
-18,
-41,
-44,
-2,
-12,
13,
38,
5,
-20,
24,
17,
-30,
0,
-40,
3,
-19,
5,
-3,
-11,
24,
19,
0,
-11,
-32,
37,
-9,
-44,
-23,
-3,
-27,
7,
12,
2,
14,
58,
2,
1,
-12,
-56,
-12,
-9,
-2,
11,
-2,
-3,
-31,
-2,
43,
8,
-20,
-26,
14,
-29,
35,
79,
17,
12,
13,
14,
8,
-20,
-23,
1,
24,
16,
-62,
-36,
-14,
76,
-2,
-66,
4,
8,
5,
8,
-46,
17,
3,
0,
10,
-59,
-2,
-39,
2,
-8,
2,
-29,
42,
-2,
-27,
-2,
-49,
-47,
57,
-13,
7,
-23,
-25,
-8,
-10,
0,
-3,
48,
-20,
-15,
-11,
61,
-10,
-22,
-28,
-22,
59,
20,
20,
-20,
-21,
-41,
-24,
-20,
23,
-12,
-18,
11,
7,
-17,
40,
-11,
30,
33,
57,
16,
7,
-65,
-41,
30,
8,
15,
11,
19,
61,
-19,
-19,
2,
-1,
-10,
-40,
3,
17,
-5,
-10,
-5,
-4,
8,
56,
11,
40,
-68,
58,
4,
81,
-42,
-32,
21,
-35,
38,
11,
-21,
-21,
-13,
-14,
-21,
-35,
-34,
-28,
30,
-4,
28,
56,
-12,
-3,
23,
-6,
39,
37,
-28,
22,
-34,
-2,
-28,
3,
-33,
8,
35,
-52,
-7,
31,
-25,
-23,
-7,
52,
8,
30,
-40,
-2,
16,
-24,
-11,
20,
17,
24,
33,
-12,
64,
26,
30,
47,
-11,
43,
-1,
46,
-3,
-4,
-25,
2,
11,
-6,
1,
39,
-2,
14,
54,
-41,
39,
29,
80,
20,
-30,
12,
-10,
-20,
7,
3,
50,
-26,
-65,
-47,
38,
10,
44,
-22,
-13,
26,
0,
-46,
-37,
-61,
18,
17,
38,
33,
57,
-30,
-67,
-26,
7,
-40,
-27,
29,
8,
26,
-49,
35,
28,
-4,
-18,
47,
-15,
46,
38,
36,
-19,
-30,
-52,
5,
28,
-1,
24,
28,
-14,
67,
28,
20,
26,
7,
-11,
34,
-33,
-16,
-6,
32,
63,
0,
16,
-29,
7,
-33,
-22,
18,
-55,
-15,
-7,
-26,
11,
18,
-22,
-10,
-49,
38,
6,
50,
-30,
22,
0,
15,
4,
37,
1,
16,
1,
-7,
-45,
33,
12,
-61,
34,
-32,
-4,
12,
-7,
-26,
-19,
-51,
0,
58,
14,
25,
-51,
-35,
-6,
-19,
-10,
-86,
-33,
-45,
-15,
-56,
-49,
32,
57,
16,
-14,
-47,
0,
0,
-28,
-3,
32,
37,
-53,
14,
-26,
-4,
-48,
39,
17,
-8,
12,
-23,
14,
13,
-21,
62,
-26,
3,
-12,
-11,
-36,
8,
-45,
9,
-27,
-39,
7,
-14,
0,
20,
31,
20,
-57,
39,
-73,
8,
-54,
-7,
-67,
30,
18,
10,
-1,
1,
18,
52,
28,
-19,
-6,
15,
-4,
24,
-38,
5,
-31,
9,
-5,
-22,
-14,
-17,
30,
-13,
0,
57,
-16,
60,
-25,
5,
15,
-1,
21,
12,
-76,
1,
-4,
71,
17,
11,
24,
7,
-30,
-41,
-3,
38,
0,
-4,
15,
71,
-12,
0,
22,
33,
-15,
107,
-25,
-4,
-37,
-27,
25,
-1,
-27,
-6,
-76,
-64,
-3,
30,
-12,
-20,
15,
35,
-58,
-10,
1,
-31,
-16,
-2,
-15,
-13,
-27,
8,
7,
9,
14,
-7,
-20,
-34,
48,
-48,
3,
8,
-14,
8,
-10,
7,
35,
6,
0,
-30,
8,
6,
15,
-22,
-44,
-8,
17,
19,
36,
73,
51,
16,
-6,
16,
19,
-40,
-43,
-6,
-29,
-20,
-1,
-14,
-8,
-22,
-34,
15,
13,
6,
-30,
29,
-21,
9,
-9,
1,
16,
-40,
17,
-21,
5,
-64,
-6,
65,
-18,
0,
-36,
2,
1,
-30,
25,
28,
24,
38,
-29,
11,
-9,
-25,
60,
5,
-57,
38,
-1,
11,
-27,
22,
-1,
-16,
-35,
1,
3,
-17,
36,
-58,
50,
-19,
-26,
34,
2,
1,
3,
54,
4,
-41,
-8,
-45,
10,
-40,
28,
-48,
-18,
2,
62,
-23,
-23,
39,
-92,
4,
26,
-27,
-18,
-8,
-28,
2,
48,
-8,
0,
24,
-43,
-18,
-31,
28,
-2,
30,
-16,
4,
-50,
50,
-53,
-5,
-9,
15,
-37,
-40,
38,
-38,
-29,
33,
-25,
-41,
57,
30,
7,
-7,
23,
-46,
-41,
26,
-20,
15,
18,
-19,
-26,
-1,
-29,
-76,
-21,
-45,
21,
44,
8,
-25,
16,
-49,
-13,
15,
-16,
-8,
-44,
-34,
11,
-2,
-26,
15,
-4,
-7,
8,
23,
-25,
-9,
-43,
50,
7,
3,
-62,
-6,
25,
13,
-3,
-1,
-50,
61,
22,
-4,
14,
-34,
-15,
-13,
17,
7,
-22,
3,
26,
-3,
0,
37,
1,
0,
5,
-39,
-7,
8,
6,
-23,
-18,
-23,
13,
-23,
-11,
36,
34,
-30,
8,
-15,
9,
48,
-11,
-37,
-20,
-28,
-39,
23,
5,
57,
-18,
13,
-10,
-16,
24,
26,
-12,
25,
-52,
-68,
-19,
21,
42,
6,
-21,
22,
42,
10,
-8,
14,
43,
59,
0,
-34,
48,
-35,
-3,
-19,
34,
-4,
-23,
-25,
-27,
10,
-59,
40,
-48,
18,
-19,
5,
-31,
34,
-37,
-4,
40,
-5,
27,
-15,
11,
0,
38,
72,
-2,
-36,
-9,
-17,
10,
-73,
46,
52,
-7,
33,
30,
-25,
11,
-17,
-7,
0,
-13,
-27,
28,
20,
38,
-46,
10,
14,
15,
7,
37,
42,
14,
-32,
-9,
4,
9,
-4,
-18,
8,
-8,
-26,
24,
-27,
-2,
-13,
-17,
43,
47,
7,
-18,
-1,
-25,
-24,
-14,
19,
-62,
-57,
-25,
-25,
7,
-4,
19,
14,
-25,
-14,
-50,
28,
-43,
41,
-36,
31,
-1,
36,
-11,
-7,
8,
-16,
37,
-17,
14,
-18,
-13,
-21,
-6,
-11,
-10,
59,
-40,
21,
5,
-44,
-25,
-35,
36,
52,
-69,
26,
-52,
4,
-14,
10,
-22,
57,
23,
-11,
-3,
22,
-12,
-35,
9,
-5,
-38,
34,
33,
37,
46,
8,
-11,
30,
49,
-22,
35,
-36,
51,
35,
-33,
-4,
109,
4,
-29,
-23,
2,
-23,
10,
-68,
-36,
-48,
-13,
18,
0,
22,
31,
13,
22,
18,
34,
-56,
48,
4,
25,
42,
-6,
9,
74,
29,
41,
-3,
16,
24,
-45,
-17,
34,
23,
-49,
51
] |
Kuhn, J.
An ordinance of the city of Detroit, which, is entitled,- “An ordinance to license and regurlate the business of junk dealers,” provides in part as follows:
“Section 1. No person, partnership or corporation shall engage in the business of a junk dealer for the purchase or sale of what is commonly called junk, rags, paper, bagging, -iron, brass, copper, tin, zinc, aluminum, scrap metal, bottles and other articles, whether manufactured or in the process of manufacture, or raw material, whether old or new, nor transport through the streets or alleys of the city of Detroit any conveyance for the purpose of collecting or disposing of such articles without a license from the mayor as herein provided.
“Section 2. The mayor is hereby authorized to grant a license to any person, persons or corporation of good character and standing, being a resident and citizen of the city of Detroit, to engage in the business, of a junk dealer, for the purchase and sale of the articles mentioned in section 1, on paying into the city treasury the sum of one dollar ($1.00) and executing a bond to the city of Detroit in the penal sum of two hundred dollars ($200.00) with one or more sureties to be approved by the mayor, conditioned thgit he will faithfully observe the provisions of this ordinance.
“Section 3. The mayor is hereby authorized to grant a license to any person of good character being a resident or citizen of the city of Detroit to engage in the business of buying and selling articles mentioned in section 1 with a cart, wagon or other vehicle on his paying into the city treasury the sum of fifty cents ($.50) and every person receiving such license shall have the number of his license placed in a conspicuous place on each side of said vehicle by means of two tin labels, such labels to be furnished by the license collector, of suitable pattern, which pattern shall be changed on the first day of June of each and every year for the use of the succeeding year.”
The defendant, a Michigan corporation, was convicted in the recorder’s court of the city of Detroit for violation, of said ordinance, because of failure to take out a license. The defendant buys scrap iron, mostly from manufacturers and dealers, and it is claimed that at least 60 per cent, of its business never comes into its warehouse or yards. That about 35 per cent, is iron bought directly from factories and manufacturers in Detroit and that about 5 per cent, is brought into the yards by licensed junk gatherers. Its business is wholesale, and it has nobody in its employ who goes out with a wagon and buys and collects; the purchases being made by the wagonload from the licensed junk gatherers.
On'this appeal it is the principal contention of respondent’s counsel that the defendant is not a “junk dealer” within the meaning of the ordinance. Admittedly the defendant engages in the purchase and sale of junk, at least as to 5 per cent, of its business, but it is said that because defendant purchased in wagonloads at wholesale rather than in smaller quantities, the terms and provisions of the ordinance do not apply. An examination of the provisions of the ordinance above set forth discloses that in section 1 the words “junk dealer” are used in a comprehensive way and would, it seems, include all who buy junk, whether at wholesale or piecemeal. Section 2 provides for the licensing of junk dealers upon the payment of a fee of one dollar and upon the filing of a bond in the sum of $200, while section 3 makes provision for the licensing of persons buying and selling junk by wagon or other vehicle upon the payment of a license fee of 50 cents and without being required to file a bond. It can be admitted that section 3 applies only to junk gatherers, and for them apparently it is only necessary to pay the 50-cent fee and, upon satisfying the mayor of good character, the applicant will be entitled to a license. An examination of section, 2, however, shows that it is more comprehensive and, provides, in addition to the fee of one dollar, for a bond of $200 with one or more sureties to be approved by the mayor. In our opinion this provision covers all dealers in junk, whether they are engaged by wholesale or retail. In the case of Weadock v. Judge of Recorder’s Court, 156 Mich. 376, the meaning that should'be given to the words “junk dealer” was under consideration, and the court said:
“He buys old junk from the owner or from the junk gatherer, and keeps the same in his yard or place of business until sales can be made.”
The defendant in this case admittedly buys the same sort of property as the licensed junk gatherer buys, but simply buys it in much greater quantities. The common council, under the police power conferred by the charter provision, has unquestionably the power to license and regulate wholesale junk dealers. See Weadock v. Judge of Recorder’s Court, supra. If the construction insisted upon by defendant’s counsel could be given to the terms of this ordinance, considerable of the value of the ordinance would be destroyed, because if part of the property it was sought to trace got into the hands of the wholesale dealer, it would become immune from police visitation and regulatory measures. In City of Grand Rapids v. Brandy, 105 Mich. 678, it was said, with reference to this class of business:
“The necessity of a rigid control over this business in our large cities is clear. Convictions are difficult, though the public authorities may be well convinced that stolen goods are bought and sold at these places. The business is not necessary to the welfare of society or the public. The common council, with the knowledge of all the facts béfore them to a greater extent than courts can possibly have, have determined that it is well, in their judgment, to require these conditions. While the exercise of any arbitrary power may seem harsh, still we are of the opinion that this requirement is not so unreasonable as to require the courts to declare it void.”
It is also insisted that the junk business of the defendant is purely incidental to its main business, inasmuch as it consists of only 5 per cent, of its total business. We do not see how it is important that the junk business done by the defendant constitutes only a small percentage of its total business, for while, relatively, the percentage may be small, nevertheless the purchase of junk in wagonloads could hardly be called a negligible activity. Being engaged in the business admittedly of buying junk as a dealer, it clearly comes within the provisions of the ordinance, and a license should be required.
It is also insisted that the court should have permitted the effect of this ordinance on its business to be shown, as in section 6 of the ordinance it is provided :
“No person licensed under the provision of this ordinance shall sell or remove from his place of business any article or articles purchased until the same has been in his possession at least five full days,”
—and the defendant complains of not being permitted to testify that junk handled by it would vary in price during, the said period of five days. Conceding for the purpose of this contention that the defendant would suffer some loss by being obliged to hold the junk five days, it does not follow that the questions asked were necessarily relevant. It is true that a regulation of this kind under the police power may entail pecuniary loss upon the person engaged in the regulated business, but it is rather for the legislature to determine whether the benefits to society on the one hand outweigh the pecuniary loss to the licensee on the other. We are not impressed that the regulation was such an unreasonable and arbitrary interference with the defendant’s business as to require the court to declare it void.
. We have examined the other points raised by counsel, and deeming them without merit, they will not need further discussion.
Judgment of the lower court is affirmed.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. | [
-9,
1,
31,
-32,
-3,
8,
-9,
-19,
-20,
46,
4,
5,
19,
-11,
9,
33,
59,
5,
-40,
9,
25,
-22,
-5,
-25,
-23,
8,
15,
-11,
-5,
25,
-25,
-24,
14,
6,
5,
57,
-26,
10,
59,
-13,
-16,
-8,
-17,
28,
17,
30,
43,
-31,
33,
-42,
-26,
31,
3,
-1,
-39,
-34,
-25,
16,
28,
7,
40,
-30,
25,
9,
4,
-15,
-24,
36,
44,
-1,
-1,
14,
-21,
-8,
17,
-30,
42,
-11,
-66,
2,
-37,
2,
56,
9,
-4,
60,
-18,
-14,
-35,
-77,
11,
-42,
25,
26,
57,
-7,
10,
10,
-50,
-56,
-21,
62,
-15,
1,
4,
-4,
23,
-16,
17,
-3,
16,
-51,
35,
-22,
44,
-15,
-3,
1,
47,
27,
-2,
-36,
-6,
-35,
16,
-48,
-9,
-30,
-16,
4,
57,
13,
-1,
-36,
-8,
13,
-45,
69,
-16,
91,
10,
14,
-24,
-7,
-26,
-3,
6,
29,
0,
3,
-75,
-51,
32,
10,
-49,
10,
-20,
38,
40,
12,
-12,
1,
50,
-21,
-41,
24,
-51,
-29,
-13,
-12,
-30,
-1,
15,
-48,
55,
-30,
9,
17,
-17,
-19,
10,
-11,
-26,
14,
-25,
-4,
14,
-40,
20,
-22,
75,
-14,
-42,
-1,
-35,
-3,
25,
56,
35,
-32,
-46,
-35,
-40,
0,
18,
-8,
-10,
33,
-46,
24,
-16,
-8,
34,
25,
39,
13,
-44,
-24,
-26,
-52,
-7,
-53,
22,
15,
19,
10,
9,
53,
29,
-30,
17,
-45,
63,
-10,
-42,
-9,
60,
13,
39,
58,
-45,
41,
-23,
2,
-11,
-12,
-27,
2,
43,
6,
5,
-17,
-32,
14,
-70,
-4,
-38,
-19,
23,
63,
36,
42,
14,
12,
4,
3,
-19,
22,
-53,
12,
-34,
0,
-1,
24,
-44,
2,
23,
10,
-10,
26,
-18,
-17,
9,
-13,
51,
68,
-61,
34,
-21,
-79,
-19,
31,
-3,
19,
10,
36,
42,
-12,
-3,
49,
-27,
9,
-39,
23,
52,
-29,
-31,
-2,
-18,
-14,
-12,
-39,
-14,
38,
5,
-37,
61,
-14,
26,
70,
-4,
44,
-24,
37,
-61,
-47,
20,
12,
32,
-38,
44,
-32,
16,
-60,
-36,
-20,
12,
-30,
-44,
-41,
-12,
-26,
42,
16,
14,
-9,
-17,
22,
-10,
-53,
24,
-13,
6,
31,
45,
-3,
23,
15,
-25,
24,
41,
78,
7,
7,
-24,
-15,
-57,
27,
26,
42,
-20,
-35,
-44,
69,
23,
-79,
-6,
-31,
-22,
-19,
6,
-29,
48,
-9,
46,
-12,
23,
-37,
-49,
-39,
-8,
37,
-40,
-9,
7,
-40,
-15,
-25,
-11,
-21,
-35,
71,
-31,
-13,
-7,
23,
7,
41,
64,
-39,
-56,
12,
7,
-11,
-21,
1,
39,
-64,
-2,
-31,
0,
21,
-41,
-31,
33,
-65,
-29,
52,
35,
66,
22,
-21,
52,
-16,
-3,
-51,
-31,
-25,
16,
-10,
-35,
-15,
-34,
11,
38,
5,
-47,
1,
6,
-46,
39,
9,
-24,
-9,
54,
55,
14,
82,
8,
-6,
-9,
-25,
-3,
-58,
-22,
-5,
19,
-33,
-4,
-8,
-13,
35,
29,
-27,
-23,
-47,
28,
5,
5,
39,
-27,
93,
-11,
14,
1,
-69,
-29,
3,
-50,
24,
28,
29,
-27,
29,
17,
-6,
-35,
25,
66,
66,
-16,
-53,
-55,
43,
-27,
35,
17,
15,
14,
20,
9,
40,
10,
15,
49,
29,
-27,
17,
11,
-21,
-27,
-25,
-60,
38,
7,
29,
14,
9,
-20,
-6,
-40,
-26,
-20,
-6,
61,
-29,
40,
11,
-35,
10,
25,
-12,
-15,
16,
3,
-32,
-12,
-11,
18,
-13,
-77,
27,
-14,
-57,
28,
29,
-13,
51,
-25,
27,
-72,
71,
14,
0,
36,
-12,
15,
-8,
12,
18,
-23,
-14,
41,
-5,
-2,
-14,
15,
-22,
28,
-1,
5,
-5,
51,
-32,
30,
-10,
-39,
-7,
25,
-50,
-8,
30,
-39,
14,
-13,
7,
7,
37,
47,
-16,
6,
-11,
-2,
-2,
-3,
-57,
-18,
4,
-48,
-2,
8,
-27,
-20,
-1,
10,
40,
5,
-34,
69,
24,
-5,
-37,
14,
31,
49,
-9,
16,
-22,
13,
45,
-42,
-17,
1,
18,
-21,
-12,
58,
59,
-6,
-5,
-23,
2,
-19,
-35,
16,
15,
-14,
53,
-40,
32,
-35,
19,
27,
11,
27,
-7,
-14,
-11,
3,
-44,
-18,
19,
-22,
37,
45,
-16,
21,
-21,
-8,
-2,
26,
11,
14,
-42,
11,
39,
-31,
0,
48,
8,
-33,
14,
-12,
-15,
-27,
-32,
24,
-18,
7,
-47,
-19,
30,
22,
-10,
0,
32,
12,
58,
12,
-21,
-35,
30,
-27,
53,
-30,
6,
-6,
-17,
27,
-4,
29,
-59,
11,
0,
-17,
-47,
0,
26,
-23,
-28,
-2,
-38,
-1,
-46,
43,
-32,
-48,
26,
-20,
64,
-5,
-34,
47,
-71,
37,
-1,
-39,
-25,
-5,
1,
7,
10,
0,
-11,
-52,
-26,
-22,
2,
-13,
-6,
-21,
27,
9,
-21,
0,
-43,
23,
8,
-65,
-19,
-28,
7,
15,
15,
-4,
-15,
-13,
33,
36,
-30,
-33,
1,
-37,
6,
36,
9,
-32,
-18,
47,
-1,
30,
-46,
32,
-9,
-5,
24,
-7,
63,
53,
-14,
0,
-3,
-4,
40,
-27,
22,
-18,
32,
56,
-55,
5,
-3,
-40,
-60,
-4,
-5,
-3,
1,
-33,
-23,
-4,
36,
-19,
-21,
51,
33,
12,
-47,
-21,
48,
-16,
-6,
-19,
-33,
-86,
9,
-39,
-36,
-25,
37,
37,
0,
6,
25,
-11,
23,
24,
2,
37,
-14,
11,
-8,
11,
48,
-47,
2,
-26,
8,
-42,
3,
-45,
-11,
-4,
-9,
55,
47,
35,
13,
24,
0,
65,
-12,
-54,
7,
0,
-42,
-62,
-48,
29,
3,
17,
36,
0,
-10,
35,
5,
-39,
14,
-32,
-30,
24,
-13,
17,
6,
-10,
26,
-4,
-11,
-7,
-4,
10,
-7,
2,
-23,
-6,
-23,
19,
-24,
30,
-36,
6,
-17,
10,
0,
11,
10,
-4,
5,
-49,
-7,
25,
5,
13,
67,
-54,
-35,
-8,
-6,
-18,
-26,
18,
-21,
7,
19,
4,
-62,
-13,
-16,
4,
44,
-4,
-3,
18,
35,
10,
-52,
-9,
-14,
49,
-24,
-59,
47,
-17,
-20,
-8,
-7,
3,
-21,
43,
-10,
-7,
77,
-12,
26,
-41,
15,
-7,
22,
9,
26,
27,
49,
28,
-49,
-10,
35,
-11,
0,
21,
8,
-19,
42,
-7,
51,
25,
-23,
0,
15,
-2,
-4,
5,
-26,
36,
46,
22,
-43,
40,
-16,
19,
-12,
-17,
-44,
-23,
-2,
-33,
-17,
-7,
54,
0,
-24,
29,
-23,
-52,
-7,
19,
3,
11,
-64,
-6,
-12,
-82,
-6,
13,
22,
-22,
11,
-34,
25,
3,
-42,
-14,
6,
-54,
54
] |
Fellows, J.
Plaintiff and defendant were married June 10, 1914. On New Year’s day following, defendant left the church where they were attending early mass, handing her husband the key to their home, and went to the home of her parents where she has since remained. However, a few days later she wrote him a letter in which she complained of his conduct towards her but offered to return if he would “act like a husband ought to.” Shortly thereafter he went to. her parents’ home to see her and then asked her to return to him. There is some conflict as to just what took place at this interview but it fairly appears that she refused to return to him unless he would be a different man. He insists, and it is undisputed, that he was and is a man of good habits, never drank or used tobacco and that he told her he could not make a different man of himself, and that he left her parents’ home without any assurance from her that she would return. Later she came to get some of the household furniture which he refused to give up, and in March following she brought an action of replevin for the same. This bill, charging desertion, was filed February 27, 1917. Defendant, in her answer, sets up the conduct of her husband justifying, as she claims, her return to her parents and her refusal to live with plaintiff, but asks no affirmative relief. The testimony was taken in open court and the bill dismissed. Plaintiff appeals.
A careful consideration of this record satisfies us that there existed no such genuine affection on the part of either of these parties for the other as would prompt the overlooking of -matters of difference that arose in the family. This husband appears to be willing to continue their matrimonial venture. The record discloses him to be a man of excellent habits, a good provider, and of an economical disposition; indeed, defendant insists that he was parsimonious. Defendant is a woman of exemplary character, prone to depend upon her mother and other relatives for advice. She properly discharged her household duties while living with plaintiff, but it is apparent that she was disappointed in the outcome of her marriage and. magnified slight inattentions of her husband until she satisfied herself, with the aid of her family advisors, that she had just cause for leaving and remaining away from him. This record does not satisfy us that she was justified in such desertion and does satisfy us that it was against the will of the plaintiff. She has persisted in such desertion for the statutory period, and we are satisfied that she had not during that period, and has not now, any intention of resuming her marital relations with her husband. While admissions of counsel do not make out a case in divorce proceedings, it is significant that at the beginning of the case defendant’s counsel frankly expressed the opinion “that a reconciliation is undoubtedly out of ' the question.” We are satisfied from the whole record that plaintiff has "made out a case of wilful desertion continued for the statutory period and is entitled to a decree of divorce.
Section 11486, 3 Comp. Laws 1915, provides:
“When any decree of divorce is hereafter granted in any of ’the courts of this State, it shall be the duty of the court granting such decree to include in it a provision in lieu of the dower of the wife in the property of the husband, and such provision shall be in full satisfaction of all claims that the wife may have in any property which the husband owns or may thereafter own, or in which he may have any interest.”
Upon the argument of the case it was most strenuously urged by counsel for plaintiff that we should allow only a nominal sum, sufficient to comply with the requirement of .the section quoted, and no more. But we are impressed that the case calls for more than a nominal allowance; at the same time it is not a case calling for a large amount of alimony. The parties lived together but a little over six months. There is no child to be considered. Defendant in no way assisted plaintiff in the accumulation of his prop erty — all of it either came from his father or was earned by him before his marriage. He owned, when they were married, 10 acres, of land worth $150 per acre, and had $800 in cash. Some of this cash has been used since the marriage. He also has a one-fifth interest in a valuable farm left by his father, which is subject to the life use of his mother. Taking everything into consideration, we conclude that the plaintiff should pay the defendant $700 within 60 days from the settlement of the decree, the same to be in lieu of dower or any interest in plaintiff’s property; this sum to also include the amount allowed for attorney fee and costs in the court below. This sum to be a lien on plaintiff’s land until paid.
It follows that the decree of the court below is reversed, and one will be here entered in conformity with this opinion. No costs in this court will be allowed to either party.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, and Stone, JJ., concurred with Fellows, J.
Kuhn, J.
As we find the defendant guilty of wrongdoing and give relief based thereon, I do not think substantial alimony should be awarded to her. A nominal award of $1 in my opinion is sufficient to satisfy the statute. | [
23,
-35,
0,
31,
-35,
-51,
-21,
87,
17,
-40,
-37,
13,
20,
14,
-24,
-19,
2,
-10,
-16,
0,
-24,
-15,
-1,
24,
23,
46,
-12,
-2,
-13,
26,
65,
66,
-39,
-42,
-9,
-63,
7,
-52,
43,
10,
12,
-56,
6,
4,
-25,
22,
14,
-22,
-36,
7,
36,
-115,
2,
31,
73,
15,
-28,
46,
-18,
-18,
-1,
-13,
-14,
-8,
-10,
10,
37,
57,
-20,
20,
0,
-77,
-18,
-44,
-30,
-21,
15,
3,
-21,
4,
27,
-24,
21,
19,
-4,
-16,
-1,
20,
-27,
10,
22,
46,
-20,
1,
7,
16,
-37,
2,
26,
-2,
-13,
-21,
-22,
-12,
2,
49,
-14,
6,
-22,
-1,
2,
11,
34,
20,
2,
41,
-50,
-74,
-28,
-67,
52,
53,
6,
-42,
42,
-28,
-5,
-19,
63,
-20,
-12,
0,
35,
-46,
-18,
-54,
32,
-32,
9,
-40,
0,
41,
21,
26,
23,
16,
-37,
-26,
-47,
-15,
13,
0,
8,
-1,
82,
-7,
1,
-27,
25,
-21,
-54,
2,
-28,
6,
-14,
-17,
-29,
47,
34,
2,
13,
23,
-42,
25,
5,
47,
-23,
16,
-52,
13,
13,
79,
-1,
-42,
3,
-23,
-8,
-15,
-35,
-5,
-44,
-13,
49,
12,
36,
44,
-18,
-3,
-10,
-25,
-14,
31,
-5,
64,
17,
-13,
-8,
39,
5,
-32,
12,
-4,
-16,
-73,
-71,
-8,
-14,
-12,
-62,
51,
-15,
-52,
-43,
15,
-67,
-49,
-5,
-10,
-2,
-24,
-50,
13,
10,
8,
15,
43,
17,
23,
3,
4,
-24,
-4,
28,
37,
8,
-1,
-54,
31,
14,
39,
14,
12,
-8,
23,
-28,
-5,
6,
65,
36,
-7,
-36,
3,
36,
55,
48,
-14,
29,
8,
55,
-30,
34,
-32,
14,
-11,
-5,
2,
13,
49,
-10,
21,
0,
30,
-12,
12,
-31,
-42,
-14,
-34,
30,
2,
30,
-41,
5,
-22,
23,
7,
-13,
-3,
-61,
-1,
12,
-58,
14,
-34,
3,
-4,
-23,
0,
40,
-3,
-19,
-3,
10,
-5,
13,
15,
19,
-9,
-56,
7,
-33,
-9,
4,
8,
-35,
2,
7,
-26,
-2,
21,
-49,
38,
14,
10,
-6,
35,
-33,
4,
-8,
-34,
-31,
18,
-26,
3,
-52,
13,
16,
3,
0,
10,
-33,
-9,
-5,
-7,
-45,
31,
16,
-23,
-8,
-27,
-30,
1,
-18,
10,
25,
-53,
54,
-39,
21,
-4,
66,
-13,
-6,
8,
-32,
14,
12,
20,
11,
17,
-5,
-37,
6,
44,
-17,
-22,
-31,
-12,
-7,
-14,
-35,
21,
32,
-14,
8,
15,
26,
11,
-39,
-35,
-21,
34,
-12,
28,
-12,
11,
-5,
-26,
-55,
35,
16,
15,
4,
31,
82,
-13,
-16,
22,
20,
-26,
11,
1,
31,
33,
22,
0,
-42,
-31,
44,
-14,
-2,
-2,
-20,
11,
35,
-54,
-41,
23,
-1,
13,
29,
28,
-5,
80,
-10,
47,
5,
-20,
34,
-45,
16,
9,
7,
36,
16,
-50,
12,
73,
-25,
-50,
8,
-2,
32,
21,
31,
0,
-31,
-37,
-2,
30,
33,
-14,
25,
46,
0,
18,
-50,
9,
-17,
-60,
-11,
25,
22,
-20,
12,
0,
-57,
-47,
42,
-5,
17,
-58,
9,
51,
-25,
-14,
-9,
-44,
-76,
5,
-46,
25,
43,
-2,
62,
-30,
-30,
26,
47,
0,
2,
-67,
23,
1,
4,
-3,
26,
16,
27,
30,
-13,
32,
10,
-52,
4,
5,
32,
-26,
-9,
24,
-34,
65,
-5,
-16,
-4,
39,
-4,
0,
8,
-39,
-44,
49,
32,
-8,
0,
20,
-31,
27,
-65,
61,
23,
-4,
-17,
-21,
11,
-52,
0,
35,
-39,
19,
-17,
2,
-12,
-28,
1,
-7,
-25,
28,
17,
-14,
25,
14,
-14,
32,
-14,
17,
1,
0,
-26,
-11,
16,
1,
0,
-20,
-1,
-29,
-38,
48,
-34,
8,
-63,
-18,
22,
17,
49,
-75,
5,
-12,
4,
5,
5,
7,
-7,
-12,
-40,
47,
-17,
57,
-8,
-4,
-1,
4,
-47,
-20,
-19,
33,
-13,
-25,
3,
-10,
-22,
15,
-34,
18,
-23,
-81,
47,
47,
7,
7,
21,
-19,
73,
-10,
-11,
-2,
36,
-17,
-34,
0,
44,
8,
10,
26,
-31,
55,
4,
-30,
-18,
-25,
-17,
31,
-22,
5,
-13,
-11,
6,
16,
10,
35,
-22,
-33,
11,
47,
32,
16,
42,
50,
-40,
1,
5,
-18,
27,
9,
45,
29,
-1,
10,
42,
-31,
-12,
-15,
48,
14,
-1,
-30,
7,
18,
6,
-2,
-28,
-30,
3,
48,
-21,
22,
-12,
24,
48,
3,
-24,
22,
-28,
10,
11,
-37,
-54,
-18,
-22,
-18,
-11,
57,
36,
-21,
-34,
-1,
11,
-9,
-30,
19,
2,
35,
64,
-18,
17,
4,
-1,
-21,
25,
-37,
45,
16,
-23,
-35,
-29,
-25,
1,
10,
33,
-12,
-36,
11,
-32,
11,
24,
17,
-20,
-66,
26,
-15,
-19,
2,
4,
12,
36,
-10,
-12,
-18,
-36,
-18,
-18,
40,
-1,
-41,
-26,
37,
-54,
-6,
32,
-14,
-25,
-19,
15,
3,
-40,
50,
13,
52,
29,
12,
-30,
-25,
-24,
-30,
7,
-39,
29,
-6,
61,
13,
-33,
-32,
-32,
18,
18,
9,
-12,
-50,
-20,
7,
18,
6,
-43,
13,
22,
12,
-17,
38,
-25,
58,
-8,
26,
-17,
-14,
-63,
-3,
-1,
8,
24,
-10,
21,
-23,
-5,
18,
43,
-15,
-27,
2,
-30,
-35,
1,
-44,
-4,
14,
-18,
1,
34,
-39,
-26,
-37,
-14,
26,
11,
42,
57,
16,
33,
-5,
35,
-2,
73,
-20,
-19,
37,
-61,
-17,
-40,
9,
9,
-14,
-58,
-49,
15,
-73,
36,
8,
4,
-20,
79,
-15,
7,
-4,
14,
-11,
-1,
8,
28,
-39,
17,
40,
-37,
1,
7,
36,
-22,
58,
12,
20,
-39,
-28,
34,
-3,
44,
11,
-20,
-14,
28,
-33,
-22,
2,
22,
0,
-39,
11,
-6,
-26,
11,
40,
-6,
-10,
34,
-12,
-59,
9,
34,
22,
4,
5,
-2,
-21,
-13,
-80,
10,
23,
-8,
1,
12,
7,
-5,
30,
63,
-6,
-43,
-37,
49,
4,
-21,
40,
34,
3,
8,
-19,
-46,
7,
-18,
45,
18,
-19,
-4,
18,
-12,
38,
14,
54,
-33,
25,
-8,
-11,
-27,
25,
-27,
5,
-19,
-10,
14,
-40,
13,
28,
-11,
-65,
32,
-44,
-18,
-27,
-1,
21,
47,
10,
10,
-16,
18,
-5,
-34,
-42,
-16,
-14,
-18,
-23,
-69,
-23,
5,
-5,
17,
15,
76,
0,
-1,
-80,
19,
-8,
-50,
-46,
37,
38,
-14,
5,
-15,
24,
-71,
-53,
11,
-37,
81,
69,
14,
30,
-36,
-15,
0,
-45,
36,
-51,
42,
25
] |
Steere, J.
Hiram J. Hoyt, an old resident and attorney of Muskegon, died on May 17, 1909, survived, as his heirs, by plaintiff, his widow, and Wilbur S. Hoyt, their son. He left some property of uncertain value, mostly incumbered, numerous creditors and a will which provided that after payment of his debts, funeral charges, etc., and a bequest of the proceeds of a $1,500 life insurance policy to his sister, Lute E. Hoyt, the remainder of his estate, if any, should become the property of plaintiff and their son Wilbur.
The will was duly admitted to probate, but the par ties named in it as his executors declined to act as such and on June 21, 1909, the probate court appointed as administrator of the estate with the will annexed defendant Andrew Fleming, who was an old1 acquaintance of the family, had formerly been in deceased’s employ for several years and was somewhat familiar with his affairs. Fleming had at different times held official positions of trust and responsibility and when he accepted the appointment as administrator his business for some years, as he stated it, had been “real estate, loans and expert accountant,” his principal work being the latter.
At the time of his death deceased’s debts amounted to over $24,000, some $11,000 of which was secured by incumbrances on the most available of his assets. He had evidently been quite extensively interested in a number of unprofitable mining operations in the West, as the inventory of his estate, which was then appraised at about $28,000, contained numerous items of ventures in that line in which his stocks, aside from those hypothecated during his lifetime, were found to be worthless. After paying secured indebtedness, funeral expenses and for a monument to deceased amounting to $570, and a widow’s allowance to plaintiff of $2,000, the proceeds from the remaining property of the estate was devoted to payment of the unsecured indebtedness and cost of administration. Liquidation proved slow and the estate had not been closed when this case was heard in March, 1917. Except the incumbered property which went to pay secured indebtedness, the assets of the estate were found to consist of a quantity of worthless mining stocks and some vacant land in the vicinity of Muskegon, for which there was then no demand or market, consisting of about 140 lots at Muskegon Heights and 11 acres of unimproved, sandy land situated beyond the eastern limits of the city, appraised in the inven tory of ■ the estate at $1,100. While deceased had owned- this tract for many years, it remained uninclosed and unimproved, covered with a growth of oak grubs, and had long been used by the public as a dumping ground.
Shortly after Fleming was appointed administrator he obtained a license from the probate court to sell the real estate, which he endeavored to do, with poor success for some time. He continued his efforts, however, selling lots in Muskegon Heights when purchasers could be secured, obtaining a license to sell real estate from the probate court each year. He testified, and it is not denied, that he repeatedly made varied efforts to sell the 11-acre tract, for which $1,200 was asked, as well as lots in Muskegon Heights; that he advertised the same for sale, personally solicited possible purchasers, and placed the property on the market with real estate agents. During the first four years he sold 48 lots in Muskegon Heights at prices ranging from $40 to $60 each. Plaintiff had a dower interest in this real estate not subject to the claims of creditors and was paid $5 for release of her dower in each lot when sold. In August, 1913, the price for these lots was raised to $65 which apparently stopped sales, as no lots were sold between that time-and January, 1916. In December, 1915, an arrangement was made with a real estate dealer and agent named Rouse, who was interested in that locality, to handle the sale of those lots, by which as sold they were to realize to the estate $90 each and $10 each to plaintiff for her dower interest. Rouse testified that he advertised them in the paper at $110 each and took people to see them from time to time with poor success until along in May, 1916; and in June things picked up so he sold more lots that season than any year since; that he was “in the business not there only but all over”; and the price asked by the estate was then a fair one in his opinion, for if he thought they were cheap he “would have bought the whole smear,” as he had the money, and later he did buy some of those lots for people who wanted them but did not have the price to pay down, selling to them at an advance on a small amount down and monthly payments of $5 or $10.
Although the 11-acre tract was on the market at $1,200 and repeated efforts were also made to sell it to different parties, no one willing to pay that much for it was found until April, 19Í6, when it was sold for that price to defendant John Emerson who had a desk in Fleming’s office, and, as Fleming described his position, “in matters of real estate sales and loans he acts as sales manager. For his compensation he receives 50 per cent, of any commissions that are obtained.”
To effect a sale of this real estate it was necessary for the administrator to not only secure permission from the probate court but a'release of her dower interest from plaintiff. When asked to sign a release she at first objected because of the price, as she had at times when lots were sold, but ultimately did so, accepting $100 therefor, the estate realizing $1,100, which was the original appraisal of the property in the probate proceedings. Emerson did not have the money available to pay down on the purchase and borrowed it from his wife, defendant Stella Emerson,' who had means and furnished the amount in cash or its equivalent. The property was therefore first conveyed to her by Emerson’s direction, and later, when he decided to plat it, Emerson gave her other security, as he testified, and she deeded it to him. It is undisputed that the sale was in fact made to Emerson. It was thereafter duly reported to the probate court and affirmed by it. In the summer of 1916 a marked increase, or so-called boom, in demand and prices for real estate developed in and around Muskegon, during which Emerson cleared up, platted, and profitably sold lots in this property.
On November 25, 1916, .plaintiff filed this bill charging misconduct and fraud on the part of Fleming in handling the property of the estate as administrator, particularly in selling the Muskegon Heights lots at much below their true value and market price (which did not concern the defendants Emerson) ; and also charging that Emerson and Fleming, who were associated in business and as plaintiff believed copartners, well knowing the land was worth several times the amount for which Fleming as administrator sold it, conspired together with Mrs. Emerson to cheat and defraud plaintiff and said estate by effecting an administrator’s sale of the property to Emerson through his wife for the joint benefit of Emerson and Fleming, and that the whole transaction was in bad faith, fraudulent and void. Her prayer for relief asks that all deeds to this 11 acres be declared void as between the parties hereto and set aside as to them with an accounting ordered relative to lots sold to innocent purchasers ; that Fleming be “required to give account of said estate for any and all moneys that said estate has been defrauded of” by reason of his having sold other lands belonging to it for less than their fair value; that he be removed as administrator of said estate, and a personal decree be made against defendants as equity and justice require.
Defendants duly answered in denial of all charges of conspiracy, fraud, or other misconduct, particularly alleging as further grounds why plaintiff is not entitled to relief that Wilbur Hoyt, an heir of deceased, is not a party plaintiff nor made a defendant by said bill, and that the probate court has exclusive jurisdiction over the subject-matter of said suit.
Although upon the hearing and in plaintiff’s testi mony the honesty of Fleming’s conduct in selling the Muskegon Heights lots for the prices received was attacked and other charges of maladministration were made, aside from sale of the 11-acre tract those charges have apparently been abandoned, and it is now stated in the brief of plaintiff’s counsel that the only question raised on appeal is “whether the sale made by Fleming, administrator, to his copartner or associate in business, Emerson, through his wife, was fraudulent.” The presiding trial judge who heard the testimony of the witnesses taken in open court did not find that any of plaintiff’s charges of conspiracy and fraud had been sustained and dismissed her bill of complaint.
The basis of plaintiff’s charge of fraud as to this 11-acre tract is that Fleming and Emerson conspired together to defraud her and her husband’s estate by its sale to the latter for their joint benefit and profit at a price far less than its then actual market value. For her to prevail this must be affirmatively shown by competent testimony. The fact that a subsequent boom in suburban property made a speculative possibility of higher prices a certainty and enabled Emerson to profit by his investment is immaterial if it was purely his sole purchase of the land at its then market value and Fleming had no interest in the transaction beyond selling this unproductive property of the estate as administrator at the best price then obtainable.
Defendants testify positively in denial of any such understanding, conspiracy, or fraudulent conduct as plaintiff charges. Both Fleming and Emerson say under oath that they were not copartners, bore no relations towards each other in this transaction except that of vendor and purchaser, and that Fleming never had any interest in the purchase nor in the profits ' therefrom. It is undisputed that this property was on the market at $1,200 and Fleming had repeatedly tried to sell it to others likely to be interested at that price before he sold it to Emerson, and none of them would pay that much for it. During that winter he had made special effort to sell it, as others besides himself testified. P. P. Schnorback, an old resident of Muskegon who had dealt in real estate, testified that Fleming approached him several times and asked him to take it off his hands at $1,200 as he wanted to settle up the Hoyt estate and it was practically all they had left except some lots in Muskegon Heights; that such outlying property was of very small value until the spring of 1916 and he did not want it at that price but later told Fleming he was in a position to take it and was told it had been sold to Emerson; that if he sold it in April, 1916, for $1,200, the price previously given witness, it was a fair price at that time. Joseph Castenholz, a large owner and dealer in real estate, with experience of several years in platting and selling lots and who knew this property, was solicited by Fleming to buy it for $1,200 not long before the sale to Emerson and refused to consider it. He testified:
“I told him I didn’t like the location and surroundings. I didn’t like the kind of houses that were being built opposite it or in that direction, and it was on the other side of the railroad track. The roads to it were very deep sand and there was a piece of property right in front of it that kind of blocked it out, as I consider it. In fact, I didn’t like the locality and didn’t give it any consideration to speak of. I was in a position to have purchased it if it had appealed to me. * * * Considering the condition of this particular location and surroundings, I consider $1,200 all that it was worth one year ago. * * *
“I had property offered to me up there that might look low and I wouldn’t touch it. That was the attitude of the public generally or dealers in real estate at that time.”
But a week or so before Emerson bought it Fleming offered the property for $1,200 to John Ten Haven who lives near and was familiar with it. Fleming had tried to sell it to him several times before without success. On this occasion Ten Haven called to inquire if it was still for sale. Fleming told him it had not yet been sold, that it was for sale at $1,200 and urged him to buy it, but Ten Haven did not accept the offer and left the office with no indication that he ever intended to. After that Fleming suggested to Emerson that he raise the money and buy it, which he concluded to do after consulting with his wife, who consented to let him have the money, his father-in-law and others, including John McLaughlin, an attorney and abstractor, in whom he had confidence, whose business gave him knowledge of real estate transactions and prices. McLaughlin testified that he knew this property was for sale, and when Emerson told him Fleming’s price he replied that was about all it was worth, but that the conditions were beginning to brighten a little and perhaps he might be able to make a little something out of it, saying:
“I thought their price was reasonable. That was my judgment, based on my knowledge of values. * * * There wasn’t any great desire for property situated as that was at that time; any great market— if you want to put it that way. The increase, of course, through the entire city of Muskegon, and through the city of Muskegon Heights, came in the summer of 1916, and has practically continued up to this time. I should say the big increase began to show itself in the month of June.”
The charges of fraud in plaintiff’s bill, filed after a marked activity in suburban real. estate with enhanced values had occurred and this property had been cleared, platted, and much of it sold, are to be tested by conditions and values at the time the sale was made. The real issue is Fleming’s good faith in making the sale of this land at that time for the price asked and paid. ,
The evidence is undisputed and conclusive that up to and including the time he last offered it to Ten Haven he, as administrator, was trying unsuccessfully to sell this unproductive asset of an apparently insolvent estate for the price he did sell it to the first person he found willing to pay that amount. He had a license to sell it from the probate court in which it had been appraised at the price he realized for the estate. He had no right as administrator to plat it on speculation in anticipation of a real estate boom, or' to sell lots on time when creditors of the estate were ’ waiting, as could a private owner. It is now evident, in the light of subsequent events, that he made a mistake and sold too soon, as many private owners weary of long holding unimproved real estate have done, and that in selling it to Emerson, with whom he officed and had business relations, he gave greater plausibility, as it turned out, to these charges; but to establish legal fraud it must be convincingly shown by competent testimony that he sold this property in bad faith for personal gain. It is claimed for plaintiff that this is shown by proof of existing conditions, prospects, active interest in and actual value of real estate existing at the time of the sale, but which defendants contend developed later. Upon that issue opinion testimony of persons claimed to have experience or knowledge was introduced by the respective parties.
Of the numerous witnesses called but two testified directly to a greater market value for this property than $1,200 at the time it was sold; one of them was Ten Haven, who was offered it at that price shortly before it was sold to Emerson, and to whom he then made overtures to purchase from him at an advanced price. Called as a witness by plaintiff, he said he considered the property worth “something like $3,000 at that time,” although he told Emerson he “wouldn’t consider $3,000,” but “I thought $2,200 would be enough./’ Emerson denies that he ever made any direct offer to him at any price, although requested to do so, and his own testimony does not disclose that he did more than inquire and suggest what he might do. He testified that he had just bargained to sell for $8,000 a 15-acre tract adjoining this, with a house and barn on it. What those improvements were worth he did not state, but being asked on cross-examination:
“When you found out that the price was $1,200, at the time you did talk with him (Fleming), did you consider that to be a fair price for that property?” he replied, “Well, I didn’t know. I was acting for the man. The man had left town and I didn’t see him again. I wasn’t buying it for myself. I think it was a reasonable price.”
Plaintiff’s other witness who valued the property in excess of $1,200 when sold in April, first went to Muskegon in September, 1916, six months later, after it is conceded conditions and prices had radically changed. While the parties are at variance as to the exact time the activity in demand and marked advance in prices for outlying property started, it is undisputed that for several years before that time the reverse, and what is sometimes the result, of a boom prevailed. A witness called by plaintiff to testify that the stage of quick progress and activity in real estate was very marked in 1915 and the advance in values reached its height in 1916, which he stated indicated “an oversale or slackening up” in the fall, also testified of previous conditions in the real estate market that “there were thousands of lots thrown on the market by the tax sales,” and witness bought tax lots at what he designates “the last sale of taxes, that is to say the homestead sale, * • * * for around ten dollars,” which he appraised at $300 when testifying in 1917. This would seem to indicate that dealing in such property, whether platted for resale or not, was, or at least had been, to the owners whose thousands of lots were sold for taxes, a chance proposition, uncertain as to time and results.
The refusal of Wilbur S. Hoyt, an heir and. residuary legatee, to join plaintiff in this litigation, and his expressed disapproval • of her action cannot be regarded as entirely immaterial. He was a man of affairs of mature years, located and engaged in business in the west, on friendly terms with his mother, who at times had been with him there. When this suit was commenced without his knowledge and Fleming notified him of it, he sent to plaintiff at Muskegon a telegram dated San Francisco, December 4, 1916, as follows:
“Greatly shocked at receipt clipping, Chronicle, November 27th. I am sure your action is ill-advised and founded on false reports. We are victims of evil-minded people. My confidence in Fleming based on 40 years’ friendship too strong to be influenced by such gossips. Please delay further action until receipt letter. Wilbur S. Hoyt.”
He also wrote to Fleming two letters on the subject of some length, disclaiming any previous knowledge of or consent to the proceeding, which he deprecated, and excusing his mother on account of her age, etc., saying in part:
“I have never had the slightest hint from my mother that she was at all dissatisfied with your handling of the affairs of the estate. On the contrary, she has always expressed to me her deep appreciation of your unselfish efforts, and we always joined in mutual congratulations in our extreme good fortune in having such a friend. * * * I am so greatly distressed that I am in no condition to discuss the matter with you, but I do want to ask that you be as charitable as possible toward my mother. Remember, Andrew, she is a woman of advanced years and while it is impossible for me to understand how any one or any number of people could have so deceived her as to lead her to take this action, I am sure that it must have been very strong influence.
“I shall not rest until you are completely vindicated. * * * If necessary I will make trip to Michigan, though it would be most inconvenient, as my partner is sick and my business demands my presence.”
While his position in the matter could not affect her individual rights in this litigation, the fact that during all the time the estate was in probation she gave no intimation of dissatisfaction to her son, also interested as an heir and residuary legatee, with whom she was in close and friendly relations, presents at least an unusual situation and has some bearing on her mental condition and peculiarities of her testimony as to Fleming’s alleged fraudulent conduct in recklessly sacrificing the property of the estate against her protests, not alone in the disposition of the 11 acres but in other particulars which have been abandoned. She testified strongly as to her amicable relations with her son, and said that after she commenced this suit and he wrote her, she then wrote him all the particulars, after which he did not object; that “the last letter from Wilbur was beautiful. He didn’t mention it at all.” Saying also of the suit:
“I never had said one word to Wilbur. I had kept it from him, and last winter when I was with him the six months I said every little while to myself, ‘I ought to tell Wilbur but I guess I won’t. He has got more than he can see to.' His partner was flat on his back and Wilbur was doing all the work himself.”
Fleming was acting under authority of the probate court in handling this estate and making the sale. It was his duty to convert the assets into money' for liquidation of its indebtedness and was licensed by that court to do so. He could make no valid sale until it had been reported to and approved by the court. Under the law it was the duty of the court before approving this sale to examine into the proceedings reported, with authority to examine witnesses under oath, and determine if the proceedings were fair, for the interest of the estate and the price proportionate to the value of the property sold. Presumptively those steps were taken and the order of approval, from which no appeal was taken, based upon a determination by the probate court that the price was proportionate to the market value made at the time of the sale, when and where existing conditions were known and witnesses not necessitated to retrospectively testify of past events and values seen through the haze of an intervening activity and inflation in prices. To grant the relief asked for by plaintiff would be to ignore and in effect set aside this order of the probate court, made within the scope of its jurisdiction and not appealed from by any direct proceedings. It may at least be said such orders and determinations of the probate court are entitled to serious consideration, and not to be thus by indirection overruled without impelling reasons.
We are not able to conclude from this record, considered in its entirety, that the charges of conspiracy and fraud contained in plaintiff’s bill are sustained by a preponderance of the evidence and find no occasion to disturb the decree of the trial court dismissing said bill. The same is therefore affirmed, with costs to defendants.
Bird, Brooke, Fellows, and Stone, JJ., concurred. Moore, J., took no part in the decision. Ostrander, C. J., and Kuhn, J., did not sit. | [
31,
55,
22,
23,
-19,
29,
46,
-13,
98,
-64,
-38,
-77,
-20,
28,
-2,
-7,
14,
-57,
-69,
4,
5,
-72,
-77,
-35,
9,
-21,
-16,
25,
-39,
-45,
46,
13,
-36,
14,
-11,
57,
-17,
19,
8,
-39,
-5,
-48,
22,
41,
25,
13,
-3,
-57,
25,
-16,
55,
12,
40,
25,
-13,
-3,
-3,
27,
39,
39,
11,
-69,
37,
4,
-5,
36,
21,
9,
-2,
-40,
-21,
32,
50,
19,
-1,
-19,
-11,
-6,
0,
-8,
-20,
-7,
-2,
33,
-26,
-12,
-62,
17,
23,
-10,
0,
15,
2,
53,
19,
55,
9,
67,
-44,
40,
34,
-38,
-14,
15,
-4,
-12,
-12,
-52,
7,
-1,
-25,
32,
15,
11,
-19,
-7,
-31,
-66,
14,
51,
12,
-41,
32,
21,
11,
39,
-13,
-6,
39,
-29,
-41,
-3,
-44,
-38,
-23,
-24,
16,
-60,
22,
-23,
-3,
-29,
-23,
-11,
-27,
15,
18,
-17,
15,
-8,
-33,
45,
-17,
32,
65,
28,
16,
19,
19,
-8,
-42,
-35,
89,
-21,
-36,
-9,
57,
-19,
-9,
20,
-11,
31,
-34,
-50,
13,
34,
21,
-21,
-25,
21,
-22,
-37,
-9,
-13,
-32,
-72,
13,
26,
43,
9,
-4,
-21,
20,
-16,
-45,
64,
-23,
-35,
-25,
44,
21,
-27,
12,
-41,
-27,
-6,
16,
-2,
-52,
-16,
6,
8,
-21,
6,
-62,
36,
-111,
-16,
42,
11,
61,
-8,
14,
22,
14,
20,
50,
-44,
-42,
-67,
12,
-17,
-27,
-20,
9,
11,
-44,
28,
-34,
-5,
20,
-46,
-25,
-13,
32,
-4,
-7,
28,
-40,
34,
-51,
-3,
-56,
83,
1,
-16,
-25,
0,
-18,
-23,
-23,
48,
-19,
6,
17,
50,
1,
6,
0,
5,
8,
-4,
91,
5,
-36,
-9,
18,
0,
-5,
-49,
56,
-7,
2,
-43,
18,
-29,
-36,
6,
-22,
-23,
14,
2,
32,
0,
17,
-35,
-20,
-6,
44,
-21,
-13,
45,
-14,
5,
30,
44,
-12,
-7,
-12,
-12,
9,
49,
-12,
-2,
57,
-24,
15,
5,
-8,
-24,
7,
15,
-55,
33,
44,
19,
-24,
38,
-13,
40,
-34,
-29,
-20,
-28,
-38,
-63,
52,
25,
20,
-4,
-1,
-5,
77,
-40,
-12,
-38,
22,
24,
-31,
-43,
-27,
18,
-3,
11,
-24,
11,
62,
14,
24,
6,
12,
3,
-4,
45,
31,
-46,
-61,
-13,
22,
-20,
96,
-6,
-14,
-41,
24,
-23,
-59,
39,
-8,
14,
38,
2,
46,
51,
10,
-24,
1,
9,
-46,
19,
-20,
36,
-1,
17,
-15,
36,
-29,
-19,
-44,
-52,
-8,
38,
0,
-25,
-18,
-9,
10,
-2,
4,
7,
-17,
-12,
10,
-19,
44,
-28,
61,
20,
33,
49,
86,
34,
29,
-7,
9,
-37,
-69,
24,
-20,
-23,
20,
58,
36,
44,
56,
-26,
9,
18,
35,
-12,
11,
-28,
98,
15,
20,
0,
-40,
-17,
32,
11,
22,
6,
-25,
5,
-64,
10,
63,
-65,
-26,
70,
58,
16,
50,
68,
50,
7,
-19,
44,
17,
36,
-13,
7,
-47,
0,
0,
0,
54,
7,
33,
5,
16,
-25,
-14,
11,
12,
-58,
-27,
1,
4,
-22,
6,
-17,
-68,
-5,
-12,
-21,
-37,
0,
25,
22,
-27,
-27,
-4,
17,
25,
-13,
13,
-68,
-51,
0,
-1,
-25,
-4,
39,
9,
46,
54,
-41,
2,
-12,
41,
18,
-58,
85,
27,
18,
11,
11,
40,
-28,
-53,
-8,
-61,
15,
-17,
-37,
16,
41,
-38,
-35,
-6,
8,
11,
36,
-38,
-12,
-35,
16,
1,
-56,
-18,
-26,
7,
8,
0,
19,
-11,
-26,
4,
-19,
-3,
-40,
0,
-49,
30,
-27,
-33,
-14,
32,
26,
-20,
8,
-26,
15,
-2,
-22,
-14,
-7,
17,
43,
3,
-19,
26,
-41,
4,
68,
-4,
18,
-49,
28,
38,
-16,
-72,
20,
-22,
9,
-3,
37,
10,
6,
-28,
-18,
-34,
20,
-27,
27,
16,
24,
-17,
-3,
-4,
-2,
-51,
27,
-44,
6,
40,
-46,
31,
-9,
2,
-8,
14,
23,
52,
38,
-29,
10,
11,
46,
-11,
-13,
-23,
3,
-39,
11,
-3,
44,
-13,
-10,
30,
-29,
29,
-50,
-27,
-38,
-58,
-27,
26,
13,
-40,
32,
-19,
60,
6,
5,
-8,
57,
39,
-19,
27,
-5,
-63,
-11,
-12,
38,
-9,
24,
19,
12,
37,
-29,
-13,
-59,
-64,
-11,
7,
33,
48,
2,
-11,
9,
18,
26,
19,
8,
-17,
24,
-14,
-29,
1,
8,
-27,
-33,
-25,
-22,
-12,
2,
25,
-24,
0,
29,
10,
55,
-24,
13,
-13,
-43,
-28,
-37,
-36,
0,
41,
21,
-9,
26,
35,
-10,
-22,
-26,
-7,
-26,
2,
-37,
58,
6,
72,
17,
-43,
-44,
44,
9,
-13,
-3,
9,
12,
47,
20,
-16,
-26,
-29,
-14,
4,
35,
-32,
35,
10,
14,
8,
2,
19,
36,
-16,
-29,
-24,
-58,
8,
81,
-5,
-19,
-22,
-1,
-14,
-17,
-18,
58,
-12,
-34,
-38,
-61,
-18,
4,
-20,
50,
-17,
6,
-41,
54,
30,
12,
64,
-13,
-25,
0,
-21,
-1,
0,
15,
35,
47,
-22,
-94,
20,
40,
-18,
-29,
50,
-66,
-7,
13,
-22,
-15,
-17,
29,
7,
32,
6,
48,
-27,
-20,
12,
-11,
0,
-76,
-37,
21,
-38,
-19,
-6,
27,
-31,
1,
67,
-61,
-69,
15,
-28,
-1,
-65,
-14,
9,
-20,
-86,
-68,
32,
-34,
11,
28,
-31,
23,
28,
-25,
-48,
-3,
7,
22,
-10,
17,
-5,
1,
-45,
-11,
0,
9,
-43,
-27,
12,
-15,
15,
-18,
14,
-49,
-13,
29,
6,
-31,
-20,
-3,
-19,
-1,
-19,
17,
-7,
-11,
10,
22,
47,
-6,
8,
-15,
-60,
33,
-7,
0,
-16,
37,
42,
-68,
39,
40,
-16,
-18,
-59,
30,
-15,
-40,
45,
-64,
2,
12,
-8,
8,
-6,
-2,
-15,
-18,
8,
31,
18,
13,
-1,
15,
-49,
21,
-57,
22,
42,
50,
-45,
52,
16,
-30,
-10,
58,
14,
-2,
59,
23,
-34,
45,
14,
64,
20,
-48,
-13,
26,
-12,
-32,
17,
13,
18,
53,
-44,
-8,
49,
24,
31,
-30,
19,
49,
-47,
-4,
46,
117,
-17,
22,
-15,
-9,
-23,
-34,
19,
-9,
2,
-30,
21,
-4,
-66,
9,
6,
-2,
12,
-46,
-9,
-55,
30,
-64,
53,
26,
3,
-52,
44,
13,
-21,
10,
-21,
-42,
-8,
-18,
-77,
10,
9,
-36,
-37,
12,
29,
14,
70,
-13,
-8,
-6,
5,
-24,
51,
61,
15,
-10,
0,
32,
-31,
-26,
-41,
-47,
1,
24,
17,
53,
8,
-5,
9,
-12,
-44,
-57,
34,
-27
] |
Steere, J.
On the morning of May 11, 1914, plaintiff alighted from the rear exit of one of defendant’s south-bound street cars on Woodward avenue at a point north of its intersection with Larned street, in the city of Detroit, and, walking immediately eastward at the rear of that car upon the closely adjacent parallel track, was struck by a passing north-bound car. The car threw him to one side and its wheels did not run over him, but in the accident he suffered an open wound upon his knee which became infected, resulting in abscesses and stiffening of the joint. His physician testified this condition was permanent and describes it as follows:
“The anchylosed condition or solidifying of the knee joint is due to infection; that is, after the injury had happened some other germs got into it and set up an infection and this is the result.”
On trial of this action, which was brought in the circuit court of Wayne county to recover damages for such injury, it was the opinion of the presiding judge that actionable negligence was not shown, and a verdict of no cause of action was directed on defendant’s motion at the conclusion of plaintiff’s testimony. After denial of a motion by plaintiff for a new trial he removed the case to this court for review on numerous assignments of error.
It is "here admitted in the brief of plaintiff’s counsel that “there is no question but what plaintiff was guilty of contributory negligence in walking to the rear of the car from which he alighted,” and said that all assignments of error center upon the single contention that there was evidence of “subsequent negligence” on the part of defendant, owing to the failure of the motorman to promptly check his car on discovery of plaintiffs peril, which should have been submitted to the jury.
Woodward avenue is the principal and most congested thoroughfare in Detroit, extending centrally through it north from the Detroit river with a double street car line along it into which various other car lines lead and center. The accident occurred in the down town business district between Congress and Larned streets, which run east and west crossing Woodward one block apart, of which plaintiff’s witness Meade testified:
“It is a short block. This happened near the southerly end of the block; it is about 30 to 50 feet nearer thé southern than the north end. * * * There was a car coming down there in the morning every few minutes. There were many cars going up and down— Woodward, Hamilton, interurbans and Brush.”
Plaintiff was a cap maker by trade, about 56 years of age, active and able-bodied, his hearing and eyesight good, and, as he stated, “a fast walker.” At the time of the accident he was going to his place of employment. The nearest stopping place of street cars to the building in which he was employed was at the Woodward avenue and Larned street crossing. He had worked in this building for several years and was familiar with the locality, activities and condition of traffic at that point. The only witness to the accident besides himself was a young man named Lawrence Meade, employed in a clothing and haberdasher establishment four doors north of the corner of Larned on the east side of Woodward avenue, who was out sweeping the sidewalk in front of the store and just at that time happened to be leaning upon his broom facing southerly and watching the passing traffic, his position being north of the rear of the car from which plaintiff alighted. He testified that he noticed the north-bound car which struck plaintiff approaching on the easterly track as it was crossing Larned street, where it did not stop, and observed that after passing the crossing its speed was increased and he also saw plaintiff come out from behind a car which was standing back of another car on the other track, walking easterly as though about to cross that upon which the approaching car was coming, and thought he was. liable to be hit by it if he was not careful. He estimated the car was then going approximately 15 miles an hour and was about 50 feet from plaintiff as he came out from behind the other car, saying: “and he continued to cross until the car hit him.” He did not remember what part of the car struck plaintiff, but the wheels did not go over him and he rolled about 15 feet with his head to the westward, and the car stopped about within its own length after it struck him; that he could not tell how many steps plaintiff took after he passed the rear of the car he had left nor whether or not he was looking at the approaching car, but as he came out from the rear of the southbound standing car and went easterly onto the track of the on-coming north-bound car he was walking at an angle towards it.
It was conceded upon the trial that the car tracks on Woodward avenue are 4 feet, 8V2 inches wide, and the space between the two tracks, called the “devil-strip” was about five feet wide. In alighting from his south-bound car on the west track, from its right or west rear exit and passing behind it to reach the east. side of the avenue plaintiff was hid by the car he left from the approaching north-bound car on the other track, and it from him, until he had passed the overhang of his car on the five feet wide devil-strip. His general description of the accident and attending circumstances runs in one portion of his testimony as follows:
“I did not walk around without stopping, I had to stop to turn around to go back of the platform. After I started to walk around the car, I did not stop, I walked straight on to pass over the track and was walking until I was struck. I do not know whether I was walking three or four miles an hour or not, as I have never timed myself to see how fast I walked. I was walking quite fast as I am a fast walker, and was walking fast from the time that I got off the car until I was struck. * * * I passed over the first car track and passed over the strip between the north and south-bound tracks and onto the other track and just as I got on the other track I was struck. I do not remember whether I was thrown down as I was struck. When I first saw the car that struck me I was between the north and south-bound tracks.” * * *
In justification of his own conduct, now urged as proof of subsequent negligence on the part of defendant, he also testified that when he passed around back of the car from which he alighted to the “empty space,” or devil-strip between the two tracks, he “looked around up and down Woodward avenue to see if anything was coming” and saw the car which struck him coming from the south in the middle of the block beyond Larned street close to the Avenue Theater, and, expecting it would stop at the other corner of that street, thought “I can pass in the same time,” saying further, “I started to walk as soon as I thought to myself he has got to stop the other side comer, * * * I kept my eye on the car” which did not stop at the corner but “she went medium at first and after that she came to the corner-she started quicker,” and
“At the last track she catched me.
“Q. All the time you were walking fast — all the time you were looking at the car it was running?
“A. Yes, sir. * * * -
“Q. Did you look, or did you see the car just as you stepped over the first rail of the north-bound track?
“A. Yes, sir.
“Q. How far was it away from you then?
“A. Well, I think it was between — of course I could not tell you exactly but about 75 or 80 feet — between 75 and 80 feet.”
. Asked how many steps he took from the time he saw the car (which was after he came upon the devil-strip walking fast) until he was struck, he replied, “I' don’t remember exactly whether I took five, or may be took one, I don’t remember exactly.”
It is evident this line óf excusing testimony cannot be reconciled with plaintiff’s other more reasonable and probable repeated statements, that he “walked straight on to pass over the track,” did not see the car until he was in “the middle, or empty space,” within not over two steps of the other track, and was walking fast from the time he got off his car until he was struck. Unless he walked down the track to meet it with suicidal intent, it is inconceivable that he was struck by an oncoming car he had first seen upon this track near the middle of the next block south, beyond Larned street crossing, which he kept his eye on and noted was approaching the crossing where he expected it to stop at a medium rate,- but after passing that crossing increased its speed as it bore down upon him. He could see the car as soon'as'its motorman could see him, says he saw it was coming towards him, did not turn his head away and asserts “I kept my eye on the car, certainly.”
Plaintiff was an adult, familiar with the location and condition of traffic there, in full possession of his faculties and is not shown to have been confused or his attention distracted by any other passing cars or vehicles or apparent dangers. Meade testified that his course as he came out from behind the standing car was at an angle towards the one which struck him. His appearance to the motorman near the track, or even crossing it, if sufficient distance away to easily step aside, would not in itself be a warning that he was in peril. Until it became manifest that he did not see the approaching car or in some manner was apparent from his conduct that he was in a position of peril which the motorman could and should have discovered in time to avoid the injury, the rule of subsequent, or discovered, negligence has no application. It is not shown the car was running at an unlawful or excessive rate of speed. It was between crossings approaching the center of the block and was stopped within its length after the accident.
Of a similar accident where the car was claimed to be running at 30 miles an hour, it was said:
“But the duties arising from the circumstances are reciprocal. The alighting passenger, desiring to cross the street, owes the duty to exercise reasonable vigilance for his own safety. He knows that an approaching car cannot turn out for him; that it is heavy and cannot be instantly stopped. He knows that until he is- in a position to see an on-coming car he cannot be observed by its driver. He can in an instant put himself in a position where the sharpest lookout and most careful management will not save him.” Davis v. Railway Co., 191 Mich. 131.
Under the most favorable view of plaintiff’s testi mony, as an entirety, we are well satisfied this case is analogous .to and in principle controlled by Doty v. Railway Co., 129 Mich. 464; Clark v. Railway, 168 Mich. 457; Davis v. Railway Co., supra, and the cases there cited.
The judgment is affirmed.
Ostrander, C. J., and Bird, Moore, Brooke, Fellows, and Stone, JJ., concurred with Steere, J. Kuhn, J., concurred in the result. | [
-21,
41,
30,
2,
23,
6,
75,
15,
-3,
-7,
-36,
-41,
32,
5,
-4,
-8,
11,
-1,
-58,
-22,
-26,
-13,
-49,
8,
-16,
32,
-6,
-37,
-19,
-29,
50,
-21,
4,
48,
-43,
-18,
29,
16,
27,
4,
81,
-2,
-56,
-11,
26,
12,
34,
-3,
-1,
-17,
4,
52,
-28,
-22,
-36,
-38,
3,
27,
-54,
-42,
-3,
5,
27,
2,
-30,
53,
20,
16,
-24,
44,
-65,
10,
18,
-24,
-31,
17,
-11,
-1,
23,
-19,
27,
13,
25,
16,
-22,
21,
-61,
20,
-28,
-41,
25,
-44,
28,
44,
35,
30,
-50,
-38,
2,
0,
-14,
72,
-19,
-9,
-16,
-6,
-15,
-59,
11,
30,
-18,
50,
0,
27,
48,
-29,
50,
4,
27,
29,
-6,
-31,
-13,
-16,
-14,
18,
-2,
0,
19,
32,
60,
-35,
7,
-9,
-21,
19,
-32,
-51,
12,
19,
40,
11,
-3,
0,
-5,
51,
-40,
19,
19,
16,
-10,
-24,
20,
-10,
19,
38,
-37,
2,
34,
55,
-24,
-50,
62,
14,
-43,
8,
-55,
43,
-4,
14,
40,
14,
72,
-68,
17,
54,
-16,
8,
-82,
48,
32,
-40,
9,
-17,
-34,
-52,
16,
-19,
3,
12,
14,
42,
-51,
21,
-21,
13,
5,
-38,
-7,
-5,
34,
-38,
-35,
-60,
-58,
6,
-8,
-18,
42,
7,
20,
-25,
15,
-7,
56,
-24,
66,
-24,
13,
-5,
10,
-7,
40,
49,
38,
3,
-55,
-31,
-50,
-9,
36,
-27,
-31,
10,
29,
-13,
-38,
-1,
-4,
8,
27,
30,
21,
18,
-38,
-29,
-32,
-8,
0,
-3,
55,
8,
-32,
-47,
-55,
-22,
12,
-13,
-12,
21,
26,
77,
-30,
41,
17,
23,
2,
52,
-10,
-37,
-44,
-2,
-26,
0,
-38,
-58,
-5,
14,
72,
47,
-8,
-75,
-28,
-24,
23,
28,
-56,
-11,
-36,
-1,
5,
-42,
-3,
10,
-29,
21,
27,
16,
-46,
-17,
30,
35,
7,
60,
14,
43,
-44,
16,
62,
12,
-6,
-13,
37,
22,
46,
12,
50,
40,
28,
-41,
-20,
57,
-59,
-30,
-30,
-7,
0,
-26,
-55,
0,
21,
40,
-7,
47,
-45,
-39,
37,
49,
-6,
-18,
10,
35,
28,
-14,
-2,
19,
4,
15,
6,
-55,
-59,
-82,
38,
-57,
-50,
-2,
47,
-32,
-2,
6,
33,
-18,
-9,
51,
6,
-44,
-37,
11,
0,
58,
11,
-49,
37,
-12,
-40,
-63,
15,
26,
-4,
74,
-3,
-12,
33,
-24,
-4,
-13,
-9,
-64,
-30,
2,
-67,
26,
64,
9,
-8,
8,
-55,
2,
-53,
-15,
-41,
16,
15,
63,
15,
-1,
21,
-16,
18,
-51,
5,
-27,
32,
-40,
0,
-1,
16,
25,
-69,
-79,
28,
41,
3,
-67,
7,
-6,
34,
0,
1,
-9,
60,
15,
32,
-4,
49,
-7,
-20,
-54,
-1,
-65,
-1,
-5,
-8,
24,
-15,
-25,
32,
10,
7,
4,
66,
28,
37,
31,
-10,
-4,
20,
27,
12,
22,
7,
-103,
-17,
5,
-17,
7,
-5,
-4,
-6,
3,
-5,
-28,
-8,
-25,
24,
-36,
-18,
48,
-7,
-14,
-58,
-21,
47,
25,
-10,
-20,
21,
-15,
-18,
24,
42,
-4,
-31,
2,
26,
-17,
-54,
31,
-28,
-31,
-11,
16,
-38,
-20,
18,
-54,
41,
-35,
-26,
-13,
-54,
-6,
-25,
12,
27,
43,
-13,
9,
18,
-34,
14,
54,
17,
-7,
11,
19,
39,
-11,
-28,
-75,
54,
-50,
-10,
38,
3,
-3,
1,
7,
6,
-41,
-8,
-5,
1,
-44,
2,
-43,
-29,
50,
45,
26,
32,
2,
23,
-29,
23,
-15,
24,
-9,
1,
67,
-20,
5,
23,
-7,
33,
48,
24,
-27,
45,
-26,
-39,
68,
84,
-35,
-62,
-12,
-4,
11,
-58,
-15,
-32,
0,
-27,
-18,
-26,
9,
32,
-42,
-50,
33,
20,
-18,
-8,
36,
18,
-11,
19,
75,
42,
-13,
38,
-20,
-30,
44,
9,
-11,
-23,
-20,
14,
-23,
33,
-14,
-55,
-6,
-8,
-11,
-5,
56,
24,
14,
-55,
-31,
-38,
16,
29,
-13,
19,
-13,
-44,
-5,
-50,
26,
-44,
3,
-13,
-17,
40,
41,
-34,
22,
-15,
23,
31,
-13,
-11,
15,
-57,
-8,
-50,
-13,
-42,
21,
-18,
9,
-16,
2,
30,
22,
-32,
-7,
1,
2,
-59,
-40,
-14,
-21,
12,
-10,
-7,
-11,
11,
32,
11,
-5,
29,
-7,
5,
35,
48,
52,
35,
-3,
8,
-6,
13,
-35,
-1,
38,
46,
-42,
-43,
33,
-34,
-35,
-41,
12,
51,
-17,
30,
-25,
-22,
6,
-16,
23,
-3,
-33,
26,
18,
-4,
-57,
39,
35,
-3,
10,
45,
64,
12,
-1,
-25,
12,
-2,
3,
-36,
-42,
36,
-6,
21,
41,
-29,
-13,
25,
-5,
18,
-5,
-8,
23,
41,
-43,
-49,
-72,
14,
5,
38,
21,
-44,
-49,
33,
15,
-17,
-17,
-26,
-6,
24,
-5,
68,
-44,
9,
36,
-32,
8,
10,
-40,
84,
4,
-41,
65,
53,
34,
-24,
0,
-26,
39,
18,
-28,
-16,
59,
-31,
-63,
22,
-32,
-14,
-41,
2,
-4,
9,
21,
-23,
51,
53,
20,
30,
-34,
-20,
-56,
8,
-24,
26,
-29,
28,
0,
0,
9,
25,
-23,
12,
-25,
5,
32,
42,
22,
-8,
-18,
10,
-28,
4,
-24,
2,
-14,
-54,
-14,
5,
32,
0,
-30,
-20,
28,
-24,
-53,
53,
-29,
-14,
-10,
-1,
26,
-26,
41,
40,
10,
-46,
5,
34,
61,
-9,
0,
20,
4,
-48,
45,
-25,
9,
-10,
-12,
-11,
-11,
-8,
-18,
4,
-17,
-49,
37,
-24,
-42,
-62,
-31,
1,
1,
10,
-26,
-3,
-1,
37,
57,
-34,
-34,
31,
12,
41,
-47,
35,
-40,
-15,
-34,
-15,
34,
-34,
-33,
1,
-51,
-4,
65,
1,
25,
-17,
-3,
-50,
-12,
-71,
63,
79,
-17,
-36,
-9,
16,
-9,
-47,
-35,
9,
24,
-49,
7,
-52,
-32,
11,
12,
-15,
38,
-45,
10,
-2,
0,
31,
30,
9,
5,
-27,
33,
-45,
40,
-11,
71,
0,
28,
-43,
-30,
8,
-32,
27,
-69,
-16,
-38,
56,
-5,
-29,
38,
-20,
-16,
20,
13,
-28,
81,
16,
6,
-24,
46,
2,
17,
16,
-40,
33,
39,
41,
-5,
-12,
-29,
16,
-42,
-14,
-39,
6,
22,
-19,
7,
-6,
-33,
42,
10,
-17,
-21,
30,
-34,
-7,
-46,
-14,
41,
2,
-23,
-3,
3,
-74,
30,
-54,
1,
-50,
23,
-47,
25,
37,
-7,
2,
-34,
-42,
19,
38,
42,
-19,
-2,
25,
-19,
-18,
0,
2,
74,
-15,
24,
-6,
36,
-26,
-29,
-27,
-1,
-1,
-20,
8,
35
] |
Ostrander, C. J.
The trial court gave the following opinion:
“This bill of complaint was filed to set aside a sale and a mortgage given in consideration of the transfer of property wherein defendant sold what is known as the Cassopolis Steam Laundry and its equipment to plaintiff for the sum of eleven hundred dollars. Payment for the same having been made by the plaintiff giving a note secured by real estate mortgage on'lot number three in block one south, range two east, in the village of Cassopolis, in the sum of seven hundred dollars and giving back a mortgage on the laundry and equipment purchased for the sum of four hundred dollars.
“It is alleged by complainant that while he had worked in the laundry several months, he had no prior knowledge of the business, judgment or experience of the value of materials and equipments used in the conduct of the business.
“Defendant was many years the senior of plaintiff, had owned and operated this laundry and other laundries of a like character and was an experienced and capable business man, very efficient in the line of laundry work.
“The plaintiff is twenty-two years of age. Defendant knew that he was inexperienced in the laundry business, inexperienced in machinery and equipment and induced the plaintiff to buy the laundry and knowing that the laundry and its machinery equipment was worn out. That the machinery had been used for many years and its usefulness greatly impaired. The boiler, an old one, leaked, having been in use many years and practically worthless.
“The plaintiff, though working in the laundry for a time prior to the sale and up. to the time of the sale did not know of these defects, defendant carefully concealing the knowledge he had of its worthlessness from plaintiff.
“The plaintiff took possession of the laundry and proceeded to conduct the business, but within a short time discovered the true condition of the machinery, was obliged to shut down and discontinue the work on account of its worthless condition, and shortly thereafter notified defendant that a fraud had been perpetrated upon him and thereupon tendered back to the said Arthur B. Cornthwaite, the defendant, the laundry plant with all its machinery and equipment, at the same time demanding from defendant the note and mortgage given to secure the purchase price thereof, the defendant refused and this bill was then filed.
“A careful consideration of the testimony in this reqord affirmatively approves plaintiff’s condition, while defendant with some force argues, and while the records show that the plaintiff worked for several months in this laundry and ought to have known the true condition as well as the defendant and that in the light of such employment he was as well aware of its condition as the defendant and should have used his eyes, nevertheless the record discloses defendant is as already stated many years older than plaintiff and plaintiff is a mere boy in judgment. In view of the relations of these parties and his inability to properly judge and determine his rights in such a transaction, he was not able to cope with defendant in judgment, experience or foresight.
“The court could not avoid seeing during the trial, what was plain to all, that plaintiff was far below the average man in mental vigor and in ability to grasp business details and protecting himself in a transaction of this character. He mortgaged the only bit of property he possessed, and it had only been recently turned over to him by his guardian.
“Defendant is a shrewd, keen man of business experience, and, common regard for the rights of others, especially the rights of this boy, ought to have restrained him from attempting to make a sale of this character.
“Since the proofs were taken in this case and some ten days thereafter, the boiler, machinery and other apparatus of this laundry had been taken out from the place where they were installed and are a mere lot of used up material fit practically for the scrap pile only. This court has had an opportunity to examine in the open the boiler taken out and fully exposed. Many holes could be seen, the iron rotten and practically worthless, only for old iron.
“There was no adequate consideration for the note and mortgage given on lot No. 3 aforesaid. It was a fraud upon plaintiff and the note should be canceled and the mortgage released and discharged.
“The laundry machinery equipment returned to defendant.
“No costs or other damages to be awarded plaintiff, and a decree may be settled accordingly.”
Pursuant thereto, a decree was entered. Appellant contends that the parties were competent to contract, that something tangible was sold and delivered, that a price or consideration was agreed to and paid, that no warranties were asked for or given, that the sale was not in any respect executory but completed. This is true. It is true, also, that what was sold was not only certain machinery but a business, and the seller agreed not to engage in the business in the same community. The seller left the community, went to another State, and there purchased and operated a business. The buyer began work for the seller in the laundry in April, 1916. The last day of September, in the same year, he purchased the plant and business. It was not a large business. It was. carried on in a rented building. Washings were done twice each week. Defendant had carried on the business for seven years.
Plaintiff expressly, and inferentially, charges that defendant defrauded him, and bases the charges largely upon the failure, or neglect, of defendant to acquaint him with the condition of the physical property which he sold to him, it being claimed that it was old, decrepit, and, except when in charge of one having mechanical ability, acquainted with its peculiarities, incapable of performing its functions. Plaintiff testifies that defendant told him the—
“machinery was in good condition; everything was running that needed running, and hadn’t had much trouble with it, and he didn’t see why it wouldn’t continue running. * * * He stated to me that the boiler was new six years ago. He said the boiler would hold out as long as I ever wanted one.”
On cross-examination he testified that defendant told him that “perhaps it would last as long as” he wanted a boiler. As to the other machinery he says defendant said;
“All working; wasn’t so much spoken of that, because I told him as to the boiler, I didn’t know anything about the boiler and the steam engine; practically, knew nothing; the only reason I hated to buy it, because I knew nothing of them; was afraid of them in fact, and he mentioned that one was running; he hadn’t had much trouble and ought to continue to run.”
Asked what was said about the burner, plaintiff testified:
“Well, the burner was one that he had trouble with; that is the time it was choked up with carbon and had been out down there, and Richard Bryant and the Hayden plumbing department cleared it up and brought it back. I always cleaned it out and I took that down and cleaned it and brought it back and didn’t do any good then.”
Plaintiff testified with respect to his knowledge and experience of machinery and what he knew about the particular machinery. He said:
“I went to work in the City Steam Laundry in April, 1916. I gathered and delivered laundry and rubbed collars and shirts. I gathered laundry on "Monday mornings. It probably took about one day in the week to gather and delivery laundry. I worked on collars polishing them. I shaped collars and tied up the goods and delivered them. That is practically all there was of it. That is what I did when working for Mr. Cornthwaite. Arthur B. Cornthwaite owned the business, was in charge of and operating it. He looked after the machinery and after the management of the business while I was there. I only operated the collar polisher. That isn’t in the machinery room. I built fires in the boiler from the time I first commenced to work there. I started the fires in the morning. We had fire in the boiler only two or 'three days out of the week. I looked after the fire in the boiler until Mr. Cornthwaite arrived when he took charge of it. I had nothing more to do with the boiler aside from starting the fire. I have never had any experience in running gas engines or steam engines or a boiler or in operating an extractor or washing machine. I did not do this work while working for Mr. Cornthwaite. I have never worked around machinery or any other laundry. All the experience I have had in the laundry business was what I acquired in the laundry in question here at Cassopolis from April up to the time I bought it.”
He attempted to operate the machinery after his purchase, having a man to “do the boiler work.” That work he “watched to see the man did as far as I knew.”
When some of the machinery failed, plaintiff sought to have repairs made, discarded some of it, and ordered new machinery. Some new things were installed, some were not. Plaintiff bought a new washer in about two weeks after he took possession. This he proposed to do — intended to do — vwhen he bought the business. A new extractor was among the things ordered by him as well as a new collar shaper. The washing machine and extractor were installed November 1, 1916. Plaintiff again started the machinery and soon had a leaky boiler. On November 14, 1916, he wrote to defendant, this letter evidently not being the first of the correspondence. The contents of the letter were:
“Friend Cornthwaite,
“Your letter received. It seems you do not exactly understand the trouble here. Well first the small tub and extractor went bang. The pulley on the extractor wore in two. Caused by brace rod on brake. It had been wearing for some time. Would not have happened if brake band had been kept full. Next the burner for body iron and collar shaper quit work. It is done for I guess, at least no one here can fix it. I have a new one here in the express office. C. O. D. $22.50 looks like too much. Remember what you paid for yours? Next the boiler went out. It is no fault of any one. Only the mfg. A hole has rotted right where the rib is in the middle rather low down. Seems to be doing the same stunt all the way round. It is simply a rotten piece of metal. There are just two ways out. Patch this boiler — ? Don’t think it would pay. Buy a new one — ? Too much money owing to circumstances.
“Yours truly,
“Stapleton.
“Am sending shirts and collars Dowagiac (40 per cent.)”
The business, not conducted by operating the ma chinery, but the laundry business, plaintiff carried on until late in December. There is testimony tending to prove that the property and business were sold to plaintiff for too large a sum — that they were not worth $1,100.
It is evident from the opinion of the trial court that conclusion was rested upon something which is not before this court. While the claim was made and the issues fairly tendered that defendant was experienced and plaintiff inexperienced, in business affairs, that defendant knew and plaintiff did not know the condition of the property sold, that defendant was mature and the plaintiff immature in years, it is not claimed in the bill (and no such issue appears to have been tendered at the trial) that plaintiff is “far below the average man in mental vigor and in ability to grasp business details,” and what was disclosed upon this subject to the observation of the trial court we cannot reexamine ; nor can this court have the benefit of the observation of the particular property made by the trial judge after the proofs were closed. We can review, and have reviewed, the testimony, and that is persuasive of at least two conclusions, one that defendant was not guided by the ethical notions of conduct which some would think ought to have prevented him from selling the property to a boy in his employ unless certain that the boy was properly advised and fully understood the hazard of the purchase, the other that in rescinding the bargain and bringing this suit the young man, plaintiff, is seeking indemnity for losses growing out of an experiment in business which he freely, if not very intelligently, made. Beyond this, the testimony fairly supports — requires—certain other conclusions, which are (1) that these parties did not deal with each other upon equal terms, defendant knowing when they made their bargain that plaintiff was not in possession of the knowledge he himself possessed concerning the quality and condition of the machinery — knowledge which, if plaintiff had possessed it, ought to and probably would affect his judgment and conclusion; (2) circumstances required defendant, the seller, to,speak, to disclose; (3) the property was greatly overvalued, advantage was taken by defendant of plaintiff’s want of knowledge and his lack of experience which if possessed would have discovered to him what he needed to know to place the parties upon an equal footing.
These conclusions sustain the decree, and it is affirmed, with costs to appellee.
Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
-26,
-8,
65,
-14,
-2,
-42,
49,
-69,
19,
35,
26,
-2,
7,
7,
15,
-29,
19,
-64,
-10,
-11,
15,
-31,
-21,
-34,
-11,
-28,
17,
-62,
-53,
-15,
-46,
0,
-12,
9,
-22,
37,
10,
23,
28,
-51,
3,
-8,
56,
-65,
40,
36,
-7,
-19,
0,
-28,
15,
-21,
36,
-31,
4,
-26,
-11,
26,
16,
40,
15,
-79,
-24,
-54,
7,
-25,
0,
11,
4,
-24,
-30,
10,
38,
-74,
28,
-23,
-28,
33,
1,
-27,
17,
-36,
58,
-29,
-20,
3,
33,
5,
-9,
7,
34,
21,
1,
-27,
-38,
-5,
44,
56,
-5,
25,
-50,
27,
-4,
-11,
-2,
39,
-26,
-46,
-21,
28,
-17,
1,
59,
-8,
-12,
11,
0,
-56,
-50,
10,
25,
27,
-2,
-30,
-18,
4,
-69,
27,
-15,
50,
-33,
-7,
-44,
36,
18,
24,
23,
-15,
-46,
-3,
10,
31,
-34,
-42,
-38,
27,
0,
-32,
-7,
-37,
-76,
29,
19,
-7,
24,
-18,
-28,
-23,
3,
29,
19,
-19,
9,
-67,
13,
9,
-1,
-1,
-20,
13,
-11,
23,
-43,
-51,
1,
-2,
4,
-71,
-49,
-20,
-23,
-30,
-41,
-3,
-4,
-8,
20,
-3,
-12,
24,
54,
0,
-9,
7,
-22,
-43,
19,
6,
31,
23,
-41,
-12,
-25,
-30,
9,
1,
8,
-12,
-48,
3,
6,
8,
-32,
-17,
-23,
17,
-9,
-36,
10,
3,
-21,
5,
-3,
-8,
-50,
-31,
13,
1,
38,
25,
-26,
-14,
-7,
26,
17,
-16,
41,
-18,
1,
12,
-28,
27,
19,
16,
-32,
5,
-43,
-14,
4,
24,
-8,
-7,
-37,
11,
0,
26,
-51,
30,
-17,
-22,
45,
29,
-81,
13,
20,
-48,
11,
16,
-18,
33,
2,
-22,
43,
-17,
-10,
0,
-4,
-27,
38,
-2,
22,
-32,
25,
11,
5,
0,
1,
31,
-42,
-15,
-17,
-7,
7,
-34,
61,
-1,
-18,
0,
8,
-36,
-47,
-42,
-11,
7,
23,
11,
13,
49,
15,
-37,
-13,
0,
7,
-1,
25,
3,
-25,
-14,
-4,
9,
4,
-6,
-5,
15,
-24,
4,
30,
-26,
48,
8,
-39,
9,
-30,
1,
2,
3,
-12,
5,
14,
-8,
32,
57,
4,
-38,
-42,
8,
-5,
-17,
-28,
6,
9,
2,
6,
65,
38,
4,
-11,
49,
-29,
56,
69,
28,
-53,
-43,
28,
-20,
-16,
-20,
36,
35,
-42,
15,
-38,
19,
4,
-21,
-21,
-5,
-18,
53,
21,
-33,
18,
-31,
-1,
2,
-20,
10,
-31,
31,
-36,
59,
23,
39,
21,
21,
-27,
-8,
-69,
14,
-23,
27,
-24,
-25,
-28,
-11,
34,
-1,
6,
32,
-9,
-32,
-7,
-7,
-15,
-25,
20,
-23,
22,
-8,
18,
7,
21,
37,
48,
25,
25,
-32,
-5,
3,
4,
8,
4,
-34,
1,
-3,
-17,
20,
-27,
52,
-13,
41,
-9,
-13,
22,
-12,
-1,
-22,
48,
-70,
-17,
1,
31,
23,
77,
42,
24,
0,
32,
2,
9,
-23,
8,
26,
-1,
-42,
15,
-24,
39,
29,
0,
0,
44,
-11,
-2,
0,
53,
-12,
-15,
0,
31,
14,
11,
5,
-5,
-26,
-46,
-27,
5,
14,
0,
-15,
-5,
9,
-9,
8,
8,
-39,
16,
34,
-39,
-12,
19,
-9,
-25,
-47,
-19,
5,
63,
23,
-28,
-8,
19,
7,
-15,
13,
-23,
5,
35,
34,
12,
-15,
-15,
19,
-17,
-6,
29,
2,
-10,
-14,
9,
28,
-13,
12,
-7,
-42,
20,
13,
28,
-12,
-12,
0,
2,
1,
-37,
-19,
-70,
-70,
-40,
39,
-12,
-11,
37,
-6,
-15,
0,
-16,
-23,
46,
-18,
-23,
21,
5,
-3,
16,
-41,
11,
11,
15,
-5,
-27,
15,
43,
5,
0,
-27,
-28,
9,
37,
8,
-16,
-14,
34,
-21,
-28,
-1,
-25,
17,
-9,
52,
31,
30,
-27,
-18,
-4,
-38,
5,
-1,
18,
13,
-33,
-45,
-13,
-46,
1,
15,
-46,
44,
-34,
26,
29,
16,
51,
0,
-7,
-5,
-7,
-21,
3,
42,
24,
1,
19,
3,
-62,
-31,
6,
-14,
-2,
31,
-20,
-36,
-20,
13,
-2,
32,
-17,
21,
-30,
-18,
-15,
-4,
-7,
-24,
-62,
-28,
23,
-15,
25,
-33,
-36,
-20,
23,
13,
56,
-33,
23,
-24,
16,
-57,
51,
-17,
-10,
62,
58,
18,
40,
-21,
-5,
-7,
41,
-35,
-3,
-7,
-1,
-14,
-32,
-19,
11,
60,
43,
-11,
21,
-12,
-2,
-20,
58,
-24,
31,
-8,
-4,
-55,
-45,
10,
-19,
53,
25,
-21,
54,
-28,
0,
-11,
23,
26,
11,
29,
11,
16,
73,
-1,
11,
-30,
19,
41,
30,
16,
-15,
2,
-14,
22,
-11,
-29,
21,
-49,
34,
-35,
5,
-10,
-29,
28,
-3,
35,
11,
24,
0,
54,
-39,
-15,
-18,
8,
-4,
-13,
-16,
6,
-25,
4,
34,
-24,
42,
-23,
37,
15,
28,
-26,
35,
-30,
-4,
5,
-50,
12,
24,
44,
15,
19,
0,
8,
9,
-19,
-19,
-6,
-39,
3,
-46,
-43,
14,
73,
41,
-20,
54,
-18,
-1,
-54,
-10,
23,
-12,
-4,
31,
-35,
11,
1,
1,
0,
4,
-24,
-75,
-34,
7,
58,
3,
-23,
26,
18,
15,
45,
-39,
8,
-15,
-1,
-17,
-6,
-4,
-20,
-23,
-29,
31,
-14,
6,
15,
2,
50,
-28,
-2,
18,
-3,
-11,
-26,
-19,
0,
-25,
28,
46,
-11,
-8,
39,
18,
3,
15,
-13,
42,
-8,
-23,
-26,
21,
82,
28,
-25,
41,
19,
15,
-32,
-28,
7,
27,
9,
-13,
-17,
-10,
12,
16,
-3,
11,
44,
-27,
-23,
-18,
-42,
-27,
31,
-22,
-18,
35,
9,
-3,
-44,
14,
-19,
-26,
0,
46,
-32,
-17,
-64,
-43,
9,
-9,
37,
44,
-14,
29,
33,
-35,
-1,
24,
-10,
24,
-35,
21,
-58,
27,
-51,
-2,
2,
33,
-13,
-44,
-1,
-13,
-17,
-10,
56,
31,
17,
24,
-4,
-15,
21,
7,
19,
-3,
7,
-15,
-58,
46,
38,
-23,
4,
9,
-36,
-15,
56,
-41,
-18,
-7,
33,
35,
-74,
7,
-34,
41,
70,
-21,
-18,
19,
6,
-12,
-28,
31,
-10,
89,
16,
-26,
-22,
28,
4,
17,
-29,
16,
-19,
-46,
-27,
20,
-41,
-8,
21,
27,
18,
30,
47,
-21,
-83,
-12,
5,
-29,
-37,
-47,
-22,
14,
29,
-8,
26,
20,
-13,
-26,
50,
-10,
-17,
10,
22,
-21,
23,
-13,
42,
35,
7,
-3,
-52,
-10,
-7,
-24,
5,
15,
-29,
-6,
21,
31,
5,
-6,
-4,
-6,
1,
-17,
32,
48,
37,
-27,
-8,
6,
-16,
15,
-11,
38,
43,
10,
37
] |
Per Curiam.
The charges in this case arose from the shooting death of a pizza delivery man. Defendants Rush and Spearman, both of whom were minors at the time of the crime, were tried together in the circuit court under the automatic waiver law, MCL 600.606; MSA 27A.606. Rush was tried by a jury and Spearman by the court. Rush was charged with first-degree (felony) murder, MCL 750.316; MSA 28.548, possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), and assault with intent to rob while armed, MCL 750.89; MSA 28.284. Spearman was charged with first-degree (felony) murder.
Spearman was convicted of second-degree murder, MCL 750.317; MSA 28.549, and sentenced as an adult to eighteen to forty years’ imprisonment. Rush was convicted of second-degree murder, possession of a firearm during the commission of a felony, and assault with intent to rob while armed. He was sentenced as an adult to the mandatory two years’ imprisonment for the felony-firearm conviction and to concurrent terms of twenty to forty years’ imprisonment for each of the other two convictions. Both defendants appeal as of right. We vacate Spearman’s conviction and remand for reconsideration and affirm in part and reverse in part with regard to Rush.
Defendants, and perhaps others, planned to rob a pizza delivery person by ordering a pizza delivered to a vacant home and waiting for the delivery person. Rush hid behind a bush with a sawed-off shotgun. When the delivery man arrived, Rush jumped out from behind the bush and shot him. All the participants fled; no money was taken.
We will deal first with the arguments raised by Spearman.
Spearman first argues that the trial court impermissibly used the intent to rob to satisfy the mens rea requirement of second-degree murder. We disagree.
Second-degree murder is established where the defendant causes a death with malice and without provocation. People v Harris, 190 Mich App 652, 659; 476 NW2d 767 (1991). Malice is defined as the intent to kill or to do great bodily harm, or as the wilful and wanton disregard of the likelihood that the natural tendency of the defendant’s actions will be to cause death or great bodily harm. People v Kelly, 423 Mich 261, 273; 378 NW2d 365 (1985); People v Aaron, 409 Mich 672, 728; 299 NW2d 304 (1980). Malice may not be inferred solely from the intent to commit another felony but it may be inferred from the facts and circumstances surrounding the commission of that felony. Kelly, 423 Mich 273; Aaron, 409 Mich 727-730.
Where, as in this case, a defendant is being held vicariously liable for a killing committed by another, he must be found to have had the same mens rea required to convict the principal, that is, malice as defined above. Kelly, 423 Mich 278; Aaron, 409 Mich 731. However, "if the aider and abettor participates in a crime with knowledge of his principal’s intent to kill or to cause great bodily harm, he is acting with 'wanton and willful disregard’ sufficient to support a finding of malice.” Kelly, 423 Mich 278-279. An aider and abettor may also be held liable "on agency principles” where he acts "intentionally or recklessly in pursuit of a common plan.” Aaron, 409 Mich 731.
In this case, a person who was present at the home where the crime was planned testified that Spearman said that they were going to rob the pizza man. This witness also testified that he saw Rush with a bulge under his clothes, which the witness concluded was a weapon that he believed that Rush had purchased a few days before the murder. Another person who was present when the crime was planned testified that Spearman asked him to get off the phone so that he could order a pizza. The witness did not remain in the room while Spearman made the call.
Spearman’s statement to the police was admitted into evidence outside the presence of Rush’s jury. In that statement, Spearman indicated that the robbery was Rush’s idea and that the owner of the home where it was planned—whose phone number was given to the pizza parlor to confirm the order—was the one who called for the pizza. Spearman nevertheless indicated that he was aware that, when they arrived at the vacant home to wait for the pizza, Rush hid in the bushes with a sawed-off shotgun. The shotgun had been purchased at a K mart store by or for Rush only two days before the crime and had been sawed off in the basement of the home where the robbery was planned on the day before the crime. Spearman characterized his own role in the event as that of a "lookout.”
The evidence on the record, especially Spear-man’s confession, was sufficient to support a finding beyond a reasonable doubt that he acted with wilful and wanton disregard of the possibility that death or great bodily harm would result from a planned robbery that involved someone hiding behind bushes with a sawed-off shotgun.
Spearman, relying on People v Allen, 390 Mich 383; 212 NW2d 21 (1973), argues that the elements of the crime, specifically malice, must be established independently of his confession. We disagree. According to two recent well-reasoned interpretations of the corpus delicti rule, the only things that must be proven independently of a defendant’s confession are the fact of death and the fact that death was the result of some criminal agency. People v Williams, 422 Mich 381, 391-392; 373 NW2d 567 (1985); People v Hughey, 186 Mich App 585, 587-589; 464 NW2d 914 (1990). Those elements were established in this case by the stipulated testimony of the medical examiner. It was therefore proper to rely on Spearman’s confession to find that he acted with malice.
Spearman next argues that the trial court erred in relying on Rush’s confession to determine Spearman’s role in the robbery. The trial court found that, in addition to being a lookout, Spear-man "was on the porch . . . acting sis the person who was to receive the pizza.” Spearman correctly points out that the only support for this finding was Rush’s confession. According to Spearman’s own statement—which was the only other evidence placing him at the scene—-he acted only as a lookout and was standing two or three houses away from the appointed delivery site at the time of the shooting.
Spearman correctly points out that a nontestifying codefendant’s confession is inadmissible against a defendant. See People v Banks, 438 Mich 408, 420-421; 475 NW2d 769 (1991); People v Watkins, 438 Mich 627, 646, 651-652; 475 NW2d 727 (1991). In this case, however, the confession was admitted only against Rush, who was being tried by a jury. The court’s use of the confession against Spearman was therefore improper. The issue thus is whether this improper use by the trial court was harmless and, if it was not, what remedy is appropriate.
To find a defendant guilty on an aiding and abetting theory, the people must show that (1) a crime was committed either by the defendant or by another, (2) the defendant performed acts or gave encouragement that aided or assisted in the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time he gave aid or encouragement. People v Rockwell, 188 Mich App 405, 411; 470 NW2d 673 (1991). Mere presence at the scene, even with knowledge, is insufficient. Id., at 412; People v Anderson, 166 Mich App 455, 475; 421 NW2d 200 (1988). However, "other factors such as a close association between the defendant and the principal actor, his participation in planning or executing the crime, and evidence of flight after the crime could be considered in determining whether there was sufficient evidence that he acted in concert with the principal.” Id.; People v Trudeau, 51 Mich App 766, 772; 216 NW2d 450 (1974). Aiding and abetting "describes all forms of assistance . . . and comprehends all words or deeds which may support, encourage or incite the commission of a crime.” Rockwell, 188 Mich App 411-412.
In this case, there was evidence from which the court could properly find that Spearman participated in planning the robbery, that he ordered the pizza, that he was a lookout, and that he fled the scene of the crime. However, the evidence was not so overwhelming that we can say that the error was harmless beyond a reasonable doubt. Whether the trial court would have found Spearman guilty of second-degree murder on an aiding and abetting theory had it not improperly relied on Rush’s confession is a question that should be answered by the trial court in the first instance. The trial court can make that determination on the basis of the evidence already submitted at trial but excluding Rush’s confession. Spearman’s conviction is hereby vacated, and the case is remanded for reconsideration in light of the evidence properly admitted against Spearman. See People v Simon, 189 Mich App 565, 567-569; 473 NW2d 785 (1991).
Spearman next argues that his sentence violates the principle of proportionality set out in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). This argument is without merit. The sentence imposed on Spearman was within the minimum sentence range recommended by the guidelines and is therefore presumptively proportional. People v Broden, 428 Mich 343, 354-355; 408 NW2d 789 (1987); People v Dukes, 189 Mich App 262, 266; 471 NW2d 651 (1991). Spearman has not met the heavy burden of overcoming this presumption.
Spearman lastly contends that the trial court violated his right to procedural due process by not giving him advance notice of its intention to depart from the guidelines and an opportunity to be heard on the subject. Because his sentence was not in fact a departure from the minimum range recommended by the guidelines, we need not consider this argument further.
We now turn to the arguments raised by Rush.
Initially, although not raised by Rush, we are constrained by Administrative Order No. 1990-6, 436 Mich lxxxiv, to hold that the trial court did not have jurisdiction to try him on the felony-firearm charge because it did not conduct a pretrial waiver hearing with regard to that charge. People v Deans, 192 Mich App 327, 330-331; 480 NW2d 334 (1991). The automatic waiver statute that grants a court jurisdiction to try a juvenile defendant for certain enumerated life felonies without conducting a waiver hearing does not grant the court ancillary jurisdiction to also try the defendant for nonenumerated nonlife felonies such as felony-firearm. Id. Because this is a jurisdictional defect, we must reverse Rush’s felony-firearm conviction and the mandatory two-year sentence even in the absence of an objection.
Rush first argues that his signed confession was involuntary and inadmissible because he was held for about two hours after being arrested instead of being taken to the juvenile division of the probate court immediately as required by MCL 764.27; MSA 28.886. Rush confessed during this two-hour delay in the presence of his mother, sister, and brother. All present were informed of Rush’s Miranda rights. It is undisputed that no one asked for an attorney or requested an end to the questioning.
It is true that, "[e]xcept as otherwise provided in section 606 of the revised judicature act . . ., if a child under 17 years of age is arrested . . . the child shall be taken immediately before the juve nile division of the probate court.” MCL 764.27; MSA 28.886. This Court has recently resolved a conflict regarding the effect of violating this provision for the purpose of obtaining a confession. See People v Good, 186 Mich App 180, 186-190; 463 NW2d 213 (1990) (adopting a totality of the circumstances test for determining the voluntariness and admissibility of the resulting confession). Moreover, where the evidence against the defendant is overwhelming, the error may be harmless. People v Strunk, 184 Mich App 310, 320-322; 457 NW2d 149 (1990).
We believe, however, that the § 27 requirement does not apply where, as in this case, the prosecutor chooses to charge the defendant under the automatic waiver rules instead of filing a petition with the probate court. See People v Brooks, 184 Mich App 793; 459 NW2d 313 (1990); see also Good, 186 Mich App 185, n 2 (dicta). In Brooks, this Court interpreted § 606 of the Revised Judicature Act, MCL 600.606; MSA 27A.606, as exempting from the probate court’s jurisdiction those minors whom the prosecutor chooses to charge as adults under the automatic waiver rules. Brooks, 184 Mich App 797-798. We agree with Brooks that the procedural rule of § 27 applies only where the juvenile is under the probate court’s jurisdiction.
As noted by the Brooks panel, §27 specifically requires minors to be taken before the probate court immediately "[ejxcept as otherwise provided in section 606.” MCL 764.27; MSA 28.886. Section 606 grants circuit and recorder’s courts jurisdiction to try minors between the ages of fifteen and seventeen who have been charged as adults with certain enumerated life felonies. MCL 600.606; MSA 27A.606. Probate courts have exclusive jurisdiction with regard to such juveniles only if the prosecutor chooses to proceed against them as minors by filing a petition with the probate court. MCL 712A.2(a)(l); MSA 27.3178(598.2)(a)(l); see also MCL 764. If; MSA 28.860(6) (allowing prosecutor to treat minors as adults by authorizing the filing of a complaint and warrant instead of the filing of a petition).
As noted by the panel in Good, a juvenile’s appearance before the probate court under § 27 is closely analogous to an adult’s arraignment. Good, 186 Mich App 186-188. On the other hand, a juvenile charged as an adult under the automatic waiver rules is specifically granted the right to a speedy arraignment. See MCR 6.907(A). He is also afforded other adult procedural safeguards such as the right to bail under certain circumstances and the right to a speedy trial. See MCR 6.909(A) and (C).
We agree with the Brooks panel that the fact that other procedural safeguards are provided indicates that § 27 was not meant to apply in automatic waiver cases. Therefore, given that there is no allegation that Rush’s confession was otherwise involuntary, we find that the trial court did not commit clear error in refusing to suppress it.
Rush next complains that testimony that the crime was committed at an abandoned house where crack cocaine had been used was inadmissible similar-acts evidence. We fail to see how this testimony constitutes similar-acts evidence where there was absolutely no evidence that the crime was in any way drug-related. We believe that the proper analysis is whether the evidence was more prejudicial than probative under MRE 403.
MRE 403 provides that "[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,” confusion, and the like. However, evidentiary errors are not grounds for reversal unless a substantial right was affected. Additionally, because Rush did not object at trial, the error, if any, will not be grounds for reversal absent manifest injustice.
In this case, evidence that the crime was committed at an abandoned crack house did not tend to make the existence of any fact at issue more or less probable than it would have been without such evidence. Therefore, its probative value was nil. See MRE 401. On the other hand, the prejudicial effect of the evidence was potentially high. The evidence was therefore clearly inadmissible under the balancing test of MRE 403. However, given the overwhelming evidence against Rush, the error was harmless beyond a reasonable doubt and does not require reversal.
Finally, Rush contends that the trial court erred in sentencing him as an adult instead of as a juvenile. In deciding whether to sentence a juvenile defendant as an adult in automatic waiver cases, the court "shall” consider the following factors, "giving each weight as appropriate”: (a) the defendant’s prior record, character, maturity, and pattern of living, (b) the seriousness and circumstances of the offense, (c) whether the crime is part of a repetitive pattern that shows either that the defendant is not amenable to treatment or that he will disrupt the treatment of others, (d) whether, despite the defendant’s potential for rehabilitation, the nature of his behavior is likely to render him dangerous when released at age twenty-one, (e) whether the defendant is more likely to be rehabilitated at adult or juvenile facilities, and (f) the best interests of the public and the protection of public security. MCL 769.1(3); MSA 28.1072(3); see also MCR 6.931(E)(3).
We have found no published cases establishing a standard of review for posttrial dispositional hearings in automatic waiver cases. However, in the usual pretrial waiver case, a probate court’s decision to waive jurisdiction will be affirmed "whenever that court’s findings, based on substantial evidence and thorough investigation, show either that the juvenile is not amenable to treatment or that, despite his potential for treatment, the nature of his difficulty is likely to render him dangerous to the public, if released at age nineteen or twenty-one, or to disrupt the rehabilitation of other children.” People v Fowler, 193 Mich App 358, 363; 483 NW2d 626 (1992); see also People v Dunbar, 423 Mich 380, 387; 377 NW2d 262 (1985); People v Schumacher, 75 Mich App 505, 512; 256 NW2d 39 (1977). Because the criteria to be considered under the two statutes are identical, we hold that the same standard of review applies to post-conviction dispositional hearings in automatic waiver cases. Compare MCL 769.1(3); MSA 28.1072(3) with MCL 712A.4(4); MSA 27.3178(598.4)(4).
Both experts who testified at Rush’s dispositional hearing recommended that he be sentenced as a juvenile. The trial court, however, rejected their recommendations. The court analyzed each statutory factor and found that Rush had no prior record, that he was physically but not mentally mature, and that there was nothing "terribly negative” in his pattern of living. The court found that the offense committed and the circumstances surrounding it were very serious and militated toward treating Rush as an adult. The court further found that, although Rush was amenable to treatment in a juvenile setting and would not be disruptive, the period of incarceration available if he were treated as a juvenile would be "inadequate to be an appropriate sentence” and that the best interests of Rush and the public would therefore be served by sentencing him as an adult.
Rush argues that the trial court erred in relying solely on the seriousness of the offense. He points out that, although not mentioned by the court, it is undisputed that the crime was not part of a repetitive pattern. He also asserts that the trial court did not find that he would be dangerous if released at age twenty-one or that his prospects of rehabilitation would be better in the adult system.
As noted by Rush, there are cases decided in the context of pretrial waiver hearings that hold that the court may not rely solely on the seriousness of the offense to justify sentencing a juvenile defendant as an adult. See Dunbar, 423 Mich 393; Schumacher, 75 Mich App 512. The prosecutor counters that, since those cases were decided, both statutes were amended to allow the court to consider the enumerated factors, "giving each weight as appropriate to the circumstances.” The prosecutor argues that this language allows the court to give preemptive weight to any one factor. See MCL 769.1(3); MSA 28.1072(3); see also MCL 712A.4(4); MSA 27.3178(598.4)(4). We are not persuaded by the prosecutor’s argument. However, our review of the record convinces us that the trial court did not rely solely on the seriousness of the offense in deciding to sentence Rush as an adult and, therefore, we find it unnecessary to resolve this dispute.
We review a trial court’s findings of fact regarding the factors enumerated in the sentencing statute, MCL 769.1(3); MSA 28.1072(3), under the clearly erroneous standard. People v Passeno, 195 Mich App 91; 489 NW2d 152 (1992). At the dispositional hearing, the trial court indicated that, after considering all the evidence, it was convinced that the best interests of both the public and Rush warranted sentencing him as an adult. At sentencing, the trial court further indicated that it felt that a significant sentence was necessary to deter Rush from being involved in any crimes like this in the future. It is therefore clear to us that the trial court considered factors other than the seriousness of the offense. Thus, after carefully reviewing the entire record, we are not left with a definite and firm conviction that a mistake has been made, and therefore we affirm the trial court’s decision to sentence Rush as an adult. People v Gistover, 189 Mich App 44, 46; 472 NW2d 27 (1991).
In conclusion, we vacate Spearman’s conviction and remand the case for reconsideration on the existing record. We further hold that Rush’s felony-firearm conviction is reversed for lack of jurisdiction. His assault and murder convictions and the resulting sentences are affirmed.
We do not retain jurisdiction.
There was conflicting testimony regarding whether three other men were involved in the planning and commission of the crime. Two of them testified against Bush and Spearman. Apparently, none of the three was charged.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). | [
44,
44,
-5,
-31,
-67,
-15,
-20,
51,
-3,
63,
-30,
3,
-2,
-13,
58,
30,
-24,
-2,
1,
-6,
13,
0,
-12,
-28,
-17,
-36,
18,
50,
-26,
51,
48,
20,
28,
-41,
20,
-18,
46,
-18,
56,
21,
14,
-20,
2,
5,
5,
-17,
41,
-40,
21,
-21,
22,
9,
13,
-26,
13,
-2,
40,
-35,
21,
67,
-3,
-3,
-56,
-32,
-59,
-51,
61,
38,
-41,
8,
-27,
-7,
-60,
10,
30,
-12,
-49,
14,
-5,
-62,
17,
-7,
40,
-7,
-25,
-8,
3,
-23,
-11,
-49,
15,
-21,
-16,
-3,
4,
37,
42,
-19,
3,
-52,
19,
-9,
1,
26,
-42,
21,
-25,
-26,
4,
32,
-1,
63,
13,
-1,
-52,
-29,
-4,
7,
-45,
42,
-14,
-7,
11,
-22,
17,
-8,
0,
6,
1,
25,
28,
20,
47,
22,
-41,
39,
-9,
14,
21,
31,
-82,
42,
3,
5,
11,
11,
-8,
46,
39,
-10,
-15,
19,
-37,
-28,
1,
19,
9,
-36,
-68,
-12,
28,
-58,
31,
23,
-37,
44,
-110,
-5,
-57,
22,
-15,
-22,
49,
17,
72,
22,
0,
-27,
-16,
-81,
-9,
48,
20,
42,
9,
27,
-18,
-32,
5,
-29,
-35,
-14,
-12,
-1,
63,
31,
11,
-3,
-21,
-7,
9,
-32,
25,
-39,
-39,
-15,
7,
41,
-1,
-32,
-3,
1,
-64,
5,
-48,
0,
-18,
-1,
5,
25,
-96,
-24,
26,
-25,
14,
-81,
-54,
-4,
-60,
-36,
8,
-75,
-72,
6,
-8,
1,
39,
-27,
15,
33,
37,
-8,
3,
-10,
59,
64,
31,
42,
-15,
-3,
28,
-14,
36,
56,
-14,
-20,
-12,
0,
-31,
-12,
-35,
28,
22,
9,
-28,
67,
-32,
-19,
-42,
48,
-44,
-19,
17,
-15,
35,
-1,
-17,
13,
21,
-29,
44,
51,
20,
20,
-23,
14,
-46,
43,
-7,
17,
24,
-58,
4,
4,
-13,
0,
32,
-28,
-9,
-11,
97,
-35,
40,
-11,
-2,
-8,
71,
-13,
-46,
-43,
-12,
50,
-27,
17,
48,
-24,
13,
-11,
48,
-30,
6,
-12,
37,
-50,
2,
-75,
37,
4,
-20,
4,
-3,
22,
28,
-9,
-30,
-14,
0,
0,
3,
22,
-27,
-17,
14,
-10,
-8,
29,
32,
18,
-45,
-57,
25,
27,
15,
-11,
-4,
-15,
-26,
8,
39,
-8,
4,
-9,
-57,
21,
0,
24,
48,
-44,
-11,
11,
-14,
-48,
-40,
-18,
-49,
19,
55,
-35,
-29,
8,
4,
3,
62,
-67,
28,
37,
-6,
5,
28,
9,
-38,
-36,
4,
-52,
12,
-30,
-67,
19,
36,
-29,
-24,
-29,
42,
-32,
12,
17,
-43,
13,
-8,
-8,
3,
30,
55,
48,
-2,
1,
-30,
-50,
-4,
-5,
32,
-13,
36,
-19,
2,
-38,
-80,
35,
-43,
-44,
20,
1,
5,
-27,
2,
-16,
-44,
-33,
56,
-2,
-81,
-14,
-33,
-11,
16,
-9,
-55,
-11,
25,
-23,
22,
10,
8,
3,
-9,
32,
20,
10,
-2,
-3,
13,
-29,
12,
-37,
28,
-3,
-95,
-10,
44,
-68,
-17,
-38,
-46,
42,
18,
1,
13,
39,
46,
15,
21,
1,
6,
-47,
-33,
-27,
2,
-17,
20,
-20,
0,
0,
-2,
-3,
-15,
28,
-5,
4,
-16,
28,
-18,
-4,
-8,
9,
11,
-18,
39,
-32,
23,
40,
-18,
42,
-14,
4,
6,
3,
12,
14,
-12,
10,
-22,
13,
9,
0,
-15,
21,
-9,
-15,
-47,
-10,
46,
-23,
60,
-58,
33,
6,
-51,
-60,
23,
-53,
0,
16,
19,
36,
3,
-9,
36,
10,
56,
19,
-26,
17,
4,
-23,
-3,
24,
-16,
-19,
35,
-31,
-28,
36,
37,
-2,
-12,
2,
-32,
-18,
70,
-40,
-26,
31,
-16,
29,
-28,
-19,
41,
10,
-25,
-1,
23,
45,
-37,
17,
14,
-22,
38,
16,
31,
-18,
-22,
34,
51,
-24,
52,
-21,
8,
-32,
0,
-4,
8,
25,
-20,
-25,
39,
-34,
24,
4,
60,
-7,
10,
32,
-9,
14,
0,
15,
-4,
-2,
-59,
9,
-24,
-27,
-6,
19,
-20,
-22,
30,
8,
-8,
-69,
-28,
-5,
8,
-11,
-33,
-7,
19,
-1,
-33,
-48,
-12,
73,
-2,
6,
33,
28,
-10,
69,
4,
-38,
-61,
-1,
-27,
-8,
17,
-2,
-37,
27,
0,
8,
1,
17,
-64,
13,
10,
9,
-13,
-75,
0,
-14,
16,
9,
-17,
14,
10,
33,
-44,
3,
35,
-14,
-52,
-15,
2,
-8,
24,
-21,
35,
-31,
-8,
-6,
-4,
36,
20,
1,
41,
16,
21,
42,
-34,
15,
31,
26,
-77,
15,
-10,
2,
-4,
-32,
3,
-4,
4,
20,
6,
10,
-41,
-22,
-20,
-35,
-20,
19,
-21,
-33,
32,
-17,
45,
0,
-3,
15,
13,
31,
0,
-25,
-12,
53,
39,
46,
-14,
5,
7,
14,
4,
-28,
-4,
26,
-23,
-13,
0,
-21,
61,
50,
36,
-4,
17,
7,
-33,
6,
39,
13,
-30,
0,
22,
37,
-23,
16,
-10,
-55,
-39,
19,
88,
-47,
-40,
-25,
9,
43,
-35,
67,
1,
-33,
36,
-18,
-23,
31,
-36,
-11,
18,
-66,
-66,
-17,
-5,
16,
17,
36,
15,
49,
-19,
18,
19,
40,
70,
11,
34,
33,
2,
15,
20,
-7,
34,
-1,
22,
-17,
57,
-11,
-62,
22,
-40,
43,
-16,
-30,
0,
-1,
49,
-9,
8,
-73,
30,
53,
-48,
-24,
-45,
-47,
16,
11,
-18,
-10,
-25,
10,
21,
0,
4,
46,
26,
20,
53,
40,
20,
27,
26,
-4,
37,
-43,
1,
-28,
3,
-21,
-6,
24,
-10,
83,
-21,
27,
41,
-4,
-28,
-40,
5,
27,
8,
17,
16,
-38,
-33,
20,
-5,
34,
-6,
30,
-45,
-19,
-48,
-42,
39,
-2,
38,
35,
0,
-44,
-27,
-8,
-57,
4,
26,
31,
-52,
-6,
-7,
-19,
-13,
14,
17,
-62,
-23,
-34,
-32,
8,
-3,
-14,
34,
11,
-66,
13,
-7,
-5,
16,
19,
1,
29,
-42,
12,
44,
-44,
-18,
42,
70,
11,
-1,
-30,
-6,
-9,
36,
2,
-28,
3,
-12,
-49,
-13,
-25,
25,
-32,
26,
-24,
-22,
28,
-12,
67,
-26,
16,
-31,
-62,
-17,
-6,
-45,
-12,
-19,
22,
-10,
35,
-16,
55,
-37,
14,
-33,
-11,
21,
15,
60,
32,
26,
-44,
10,
-7,
26,
-42,
-13,
-17,
49,
5,
8,
-12,
-8,
13,
-15,
-43,
17,
-40,
34,
52,
57,
5,
-64,
-47,
-1,
3,
-29,
43,
-25,
36,
14,
51,
-20,
-50,
7,
23,
8,
35,
-9,
5,
2,
17,
-29,
-44,
-41,
-27,
52,
5,
22,
36,
-49,
19,
-51,
-2,
-43,
18,
-39,
36
] |
Fellows, J.
The proceedings instituted for the purpose of cleaning out and straightening the “Campbell creek drain,” located in Ionia county, is not a stranger to this court. Nash v. Kenyon, 151 Mich. 152; Yeomans v. Board of Sup’rs of Ionia Co., 174 Mich. 451. A detailed statement of the proceedings prior to those leading up to the present case will be found in these cases and need not be here repeated. It will suffice to say that the present plaintiff is the Mr. Johnson referred to in the Nash Case as having contracted, for the sum of $266.40, to construct the section of the job theie referred to, and the same person referred to in the Youmans Case as having, with others, instituted unsuccessful mandamus proceedings in November, 1903, to compel the present defendant to spread the identical tax here involved. The former mandamus proceedings, which ended in the circuit court, are made a part of this record.
The plaintiff here asserts rights as the owner of lands assessed for said improvement, and as- grantor with covenants of warranty of other premises, which were also assessed for said improvement, and claims that such rights authorize him to proceed in accordance with the provisions of Act No. 176, Public Acts 1915 (1 Comp. Laws 1915, § 4927). After this act became effective plaintiff filed with the county clerk his application as required by the terms of the act. Pursuant to this application and the provisions of the act the county clerk presented to defendant a certified copy of the special assessment roll of the Campbell creek drain for the year 1902. Defendant refused to spread such special assessment and this proceeding in mandamus was instituted, resulting in the peremptory writ being allowed by the circuit court. This writ of certiorari was then issued by this court to bring up such proceedings.
In the mandamus case instituted by the present plaintiff and others in 1903, against the present defendant, it was sought to compel this defendant to spread the identical tax here involved in order that this plaintiff might be paid for the performance of his contract on the drain in question. He admits that one of his reasons for instituting this proceeding is to collect such pay. One would not be required to read between the lines to discover this. In that case, in answer to the order to show cause, the respondent there, defendant here, set up fully the proceedings it insisted were invalid, and specifically alleged eight reasons for such invalidity. The issue tendered by such answer, and the sole issue so tendered, was the invalidity of such proceedings. While it is true that where several issues are presented and a general judgment rendered, one who asserts that such judgment determines a particular issue has the burden of proving it (Hoffman v. Silverthorn, 137 Mich. 60), still, where the issue is single and the pleadings disclose but one issue, we must assume, at least in the absence of proof, that the case was determined upon the single issue made by the pleadings. This court so regarded such proceedings in the case of Yeomans v. Board of Sup’rs of Ionia Co., supra, and there stated:
“The same drain proceedings were in controversy, the same points raised, and the same alleged tax litigated as before us now; and, after full hearing, the side which Yeomans then represented prevailed, the application for mandamus being denied. No appeal was ever taken from said judgment, and it yet stands unreversed in that court, adjudicating invalid the proceedings upon which the order relator is seeking to collect is based.”
We must therefore, assume from an examination of the pleadings in that.case, which pleadings tendered but the one issue, that of the validity of the proceedings, that the court in there denying the writ of mandamus did so on the sole grounds there submitted to it, and that it has been determined between this plaintiff and this defendant that such drain proceedings were invalid.
Plaintiff relies upon the rights conferred upon him by the act of 1915. Does that act give to him the right which may be enforced by mandamus to compel the spreading of a tax which, in a proceeding between him and this defendant, the same parties, has been held invalid? We think not. We are not here dealing with a case where, in disregard of a plain ministerial duty, a public body has arrogated to itself the determination of the validity of the proceedings. Here we have a tax, held invalid many years ago, now sought to be enforced by the same person who was a party to the proceeding in which it was held invalid. The act in question does not contemplate and does not afford relief under such circumstances. The writ of mandamus is not a writ of right (Yeomans v. Board of Sup’rs of Ionia Co., supra), and will not issue to compel an unlawful act, or to work an injustice (Citizens’ Life Ins. Co. v. Com’r of Insurance, 128 Mich. 85; Board of Sup’rs of Cheboygan Co. v. Township of Mentor, 94 Mich. 386; Wooster v. Calhoun Circuit Judge, 150 Mich. 459). The levy and collection of this tax, something over $2,000, would compel those assessed to pay for an improvement, only a small por tion of which was completed; and under the guise of removing a cloud on his title allow plaintiff to recover that which the circuit court of Ionia county-held in 1903 he was not entitled to recover.
It follows that the case must be reversed and the petition for mandamus denied. Defendant will recover costs of both courts.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. | [
4,
27,
49,
-2,
-22,
63,
-17,
17,
-16,
42,
-4,
-19,
63,
-5,
0,
-1,
0,
-19,
-13,
17,
40,
19,
-39,
-18,
-21,
34,
-31,
-4,
-5,
9,
-32,
-14,
-52,
44,
-28,
-9,
31,
-27,
35,
-37,
-27,
-17,
-68,
13,
-1,
-23,
38,
-22,
9,
-7,
-13,
-9,
0,
-28,
-10,
8,
32,
16,
-12,
-31,
-65,
45,
12,
29,
5,
-27,
-47,
-19,
57,
-41,
-10,
3,
37,
-23,
24,
42,
-4,
-47,
-10,
-7,
-37,
24,
3,
-6,
-31,
48,
-29,
23,
70,
42,
33,
-14,
-12,
15,
31,
-7,
-31,
2,
-3,
36,
-26,
-31,
-3,
41,
19,
-60,
-27,
-10,
-14,
-20,
68,
-43,
86,
-20,
-14,
-69,
24,
-47,
-21,
-45,
25,
-35,
-18,
-13,
-38,
-8,
-9,
-40,
-31,
12,
18,
-30,
10,
10,
2,
39,
1,
9,
-8,
-3,
-11,
6,
-2,
12,
24,
29,
34,
-10,
15,
-27,
-22,
-1,
11,
6,
-20,
-32,
49,
-18,
27,
6,
13,
53,
0,
-35,
-33,
19,
-7,
5,
-1,
7,
18,
18,
-41,
-35,
46,
-19,
-1,
5,
2,
28,
3,
-13,
41,
10,
-14,
-6,
1,
2,
-8,
7,
46,
-18,
21,
1,
3,
23,
-21,
-1,
-1,
1,
9,
-39,
8,
-32,
-3,
-5,
20,
6,
-56,
48,
-4,
7,
-21,
8,
-56,
0,
40,
-19,
40,
24,
30,
-35,
52,
10,
-26,
-6,
36,
19,
20,
24,
1,
-34,
43,
8,
-38,
18,
58,
34,
-2,
45,
-35,
-12,
-28,
36,
27,
44,
-29,
-27,
-7,
1,
-26,
-25,
-35,
-10,
0,
-48,
0,
20,
3,
-42,
38,
57,
-11,
-12,
-47,
-11,
-2,
-6,
10,
35,
-47,
29,
33,
0,
-22,
-13,
-16,
35,
-60,
-6,
-3,
-32,
-44,
-6,
-17,
17,
-50,
-40,
-41,
11,
-27,
-18,
-48,
-8,
11,
25,
1,
-55,
0,
-4,
-10,
-15,
1,
-36,
16,
-26,
-47,
-20,
6,
0,
34,
14,
-20,
0,
-3,
0,
13,
16,
18,
-21,
-12,
12,
3,
-20,
-39,
18,
54,
-25,
-5,
-7,
-23,
30,
22,
-10,
24,
8,
14,
15,
14,
-5,
48,
-5,
-19,
-13,
-8,
-30,
-6,
-41,
4,
4,
-37,
14,
-26,
35,
-20,
-13,
-34,
10,
-8,
-10,
34,
23,
-29,
-33,
-7,
-36,
-31,
-9,
17,
-24,
14,
15,
1,
14,
-29,
14,
-2,
-15,
-2,
1,
-6,
27,
5,
5,
13,
-29,
-3,
-5,
-58,
3,
-7,
-14,
-5,
16,
-2,
-29,
30,
13,
-24,
16,
3,
28,
0,
25,
18,
76,
-29,
3,
27,
13,
31,
-2,
2,
17,
6,
8,
45,
30,
-1,
8,
54,
0,
1,
-44,
34,
-29,
28,
26,
15,
21,
-35,
14,
36,
36,
23,
13,
-88,
0,
-24,
41,
-42,
6,
14,
-26,
-31,
-1,
20,
22,
67,
15,
34,
21,
-75,
15,
23,
-12,
6,
-42,
32,
-53,
-38,
-15,
-3,
0,
-25,
37,
-12,
1,
-9,
49,
-7,
33,
26,
11,
-18,
-46,
21,
5,
1,
-28,
69,
-5,
-58,
11,
3,
-22,
-40,
1,
-11,
-13,
-3,
-55,
-18,
-7,
35,
18,
-11,
1,
-29,
17,
23,
3,
-2,
-23,
34,
-27,
-13,
27,
0,
79,
-53,
-29,
32,
8,
-46,
47,
34,
0,
45,
12,
46,
-44,
-57,
-12,
-20,
33,
-17,
2,
28,
18,
3,
-7,
-15,
37,
-15,
-31,
-81,
36,
-41,
-92,
9,
9,
45,
13,
-37,
7,
-36,
19,
-43,
-49,
-32,
1,
1,
0,
-59,
-31,
13,
-65,
1,
49,
32,
-34,
3,
-30,
2,
42,
22,
-18,
6,
-42,
0,
33,
30,
-4,
11,
-17,
-28,
-26,
-21,
36,
-53,
-15,
28,
-27,
15,
-9,
13,
14,
35,
-7,
-52,
-27,
-2,
14,
22,
-7,
51,
18,
13,
5,
23,
-22,
0,
-39,
34,
-4,
14,
-17,
3,
-13,
21,
8,
-28,
27,
10,
9,
-23,
-86,
-3,
-6,
0,
-16,
25,
4,
45,
3,
41,
21,
-62,
-3,
-35,
-30,
-16,
-22,
-11,
5,
-27,
18,
13,
6,
30,
3,
3,
-2,
37,
20,
15,
7,
-16,
-5,
-18,
55,
1,
16,
-38,
29,
-19,
-18,
15,
-31,
55,
-19,
-18,
11,
-23,
-6,
6,
17,
15,
-13,
28,
-30,
19,
-18,
-11,
-44,
-16,
33,
68,
-36,
-33,
11,
2,
-28,
20,
-23,
53,
12,
-9,
-19,
-3,
28,
-18,
5,
-5,
8,
-12,
24,
-20,
4,
-38,
6,
30,
23,
-15,
13,
-11,
-18,
7,
-50,
-52,
15,
-39,
24,
-11,
37,
-18,
0,
-19,
5,
49,
-29,
-47,
-7,
25,
9,
-70,
-33,
-69,
-26,
-18,
-41,
-10,
20,
40,
36,
-8,
-2,
-73,
-23,
55,
-56,
-12,
8,
-40,
-28,
6,
14,
-8,
29,
-6,
16,
20,
20,
-3,
4,
3,
-44,
1,
-5,
41,
-12,
20,
18,
2,
-13,
4,
6,
15,
19,
-10,
2,
9,
8,
27,
16,
-52,
-1,
3,
-10,
1,
-42,
-12,
-33,
-40,
-84,
0,
4,
-20,
5,
-29,
-21,
-1,
-7,
3,
0,
21,
-13,
-28,
-15,
18,
49,
22,
57,
12,
17,
-7,
-14,
11,
25,
-6,
19,
-2,
-2,
5,
-6,
-16,
11,
-8,
-11,
-11,
44,
-29,
5,
-14,
13,
34,
-14,
-53,
44,
12,
-26,
-32,
38,
51,
10,
27,
-24,
-3,
-40,
-27,
-30,
9,
10,
-36,
34,
-40,
40,
-9,
10,
6,
-1,
-35,
-8,
-8,
15,
23,
-1,
41,
-34,
43,
26,
30,
7,
5,
4,
-25,
-39,
43,
23,
5,
-4,
-1,
6,
-23,
17,
4,
-3,
13,
26,
-1,
7,
7,
-26,
-51,
0,
-8,
-2,
3,
68,
-2,
-19,
-5,
35,
29,
16,
-46,
-13,
-3,
-20,
4,
-7,
16,
27,
-32,
-36,
-5,
20,
-18,
36,
-4,
-9,
-12,
-16,
-31,
-35,
-2,
-15,
24,
20,
65,
20,
-39,
11,
-40,
11,
8,
41,
-47,
51,
-29,
14,
0,
-13,
20,
-10,
43,
-47,
16,
-43,
28,
-44,
-51,
-11,
-7,
1,
17,
-14,
-2,
45,
-46,
-21,
28,
10,
-21,
-11,
-28,
-5,
33,
36,
16,
6,
11,
-10,
3,
10,
29,
4,
-9,
7,
3,
21,
-57,
-30,
58,
14,
-8,
23,
61,
-32,
0,
-38,
27,
41,
-2,
18,
33,
-31,
4,
9,
25,
69,
32,
17,
41,
8,
-47,
11,
8,
-29,
52,
42,
-11,
5,
34,
-17,
7,
35,
-5,
-7,
-57,
-15,
20,
41,
-41,
46,
-11,
39,
10,
-20,
74,
-28,
-67,
49
] |
Brooke, J.
In this case relator seeks by mandamus to compel the trial court to set aside an order permitting Clara K. Butler to intervene in an action at law in which relator is plaintiff and one Hiland G. Butler, husband of said Clara K. Butler, is defendant. It appears that in February, 1916, relator commenced an action in assumpsit against said Hiland G. Butler. At the time said action was commenced an affidavit of his attorney was filed setting forth among other things that defendant was a nonresident of the State and had concealed and was attempting to conceal his property in the State of Michigan for the purpose of defrauding his creditors. Upon the filing of said affidavit a writ of attachment was issued, returnable February 25, 1916. On March 10, 1916, the writ was returned by the sheriff who certified that he was unable to find the defendant in his county and further that he had attached certain real estate described. At the time said attachment was made the record title to the attached premises stood in the names of said Clara K. Butler, wife of defendant, and of W. P. Butler and Ethel Reliance Butler, son and daughter-in-law of said defendant. Thereafter said Clara K. Butler filed a petition for leave to intervene under the provisions of section 11, chap. 12, Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 12362), which follows:
“In an action either at law, or in equity, any one claiming an interest in 'the litigation may, at any time, be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding.”
This motion came on to be heard on April 17, 1916, and was thereafter granted by respondent. A motion made on April 24, 1916, for an order vacating said ordér was denied. The only question raised by this proceeding is whether the learned circuit judge was correct under the undisputed facts in granting the order permitting Clara K. Butler, wife of the defendant, who claims to own the property attached, to intervene in the suit at law between relator and her husband. We are of opinion that it must be held that the order permitting intervention was erroneously entered. Prior to the passage of the judicature act, so called, such intervention was not permitted. In Peterson v. Swenningston, 178 Mich. 294, it is said:
“The trial court correctly denied Lee's motion for leave to intervene. Whatever the rule may be in other jurisdictions having different rules of practice or enabling statutes, it is the rule in this State that a third person not a party to the action cannot directly intervene to establish ownership of property levied upon by execution. * * *
“He having sold the property before this action was begun, its title and ownership are matters between defendant’s grantee and plaintiff to be litigated in independent, appropriate proceedings between themselves, in which both are parties to the record.”
We are unable to see how Clara K. Butler, a stranger to the action at law pending between relator and her husband, has an “interest” in the litigation. The primary purpose of the action at law is to establish the fact that Hiland G. Butler is. indebted to relator. If said Hiland G. Butler does not appear and defend in that action judgment would doubtless pass against him by default. The issuing of the attachment against the lands once owned by Hiland G. Butler, the record title to which now stands in the names of his wife and son, serves only to effect substituted service upon the ■original defendant, so bringing him within the jurisdiction of the court. The passing of judgment against him in that action affects not at all the title to the real estate claimed to be owned by Clara K. Butler and her son aftd daughter-in-law. Assuming judgment is obtained, execution must be levied upon the attached lands and a bill in aid of execution filed against those in whose name the legal title to said lands stands. In that proceeding Mrs. Butler may properly contest the claim made by relator that Hiland G. Butler in disposing of said property to his wife and son did so fraudulently and with the purpose to defeat and defraud his creditors, of whom relator claims to be one.
The identical question under statutes essentially similar to the section of the judicature act above quoted has been determined in several of our sister States, in accordance with the contention of the relator. See Dunker v. Jacobs, 79 Neb. 485 (112 N. W. 579); Meyer & Sons Co. v. Black, 4 N. M. 352 (16 Pac. 620); Loving v. Edes, 8 Iowa, 427; Gates v. Lumber Co., 9 Ohio C. C. 378. For cases in which intervention may properly be permitted under the section relied upon, see Weatherby v. Kent Circuit Judge, 194 Mich. 46, and McMillan v. School District, 200 Mich. 280.
The mandamus will issue as prayed.
Ostrander, C. J., and Steere and Stone, JJ., concurred with Brooke, J.
Fellows, J.
I do not agree with all that has been said by Mr. Justice Brooke, in this case. I agree that Mrs. Butler may not intervene for the purpose of moving a dissolution of the attachment proceedings because that would not be “in subordination to and in recognition of the propriety of the main proceeding.” She may not, in this proceeding, have determined the question of fraud in the conveyance to her; but the avowed purpose of this attachment case is to ultimately file a bill in aid of execution with a view of subjecting the property standing in her name to the payment of the judgment obtained in the case, on the ground that such property was fraudulently conveyed to her. As between her and her husband, she is entitled to the property conveyed to her even though in fraud of creditors. If in fraud of creditors the conveyance to her will be set aside upon the bill in aid of execution, and the property become subject to sale to satisfy the judgment. She, therefore, has an interest in the question to be determined in the attachment case, viz., the liability of her husband and the amount thereof. I think, for the purpose of being heard on that question, she is within the purview of the judicature act quoted by Justice Brooke. In Weatherby v. Kent Circuit Judge, 194 Mich. 46, and McMillan v. School District, 200 Mich. 280, cited by my Brother, intervention by those who might ultimately be called upon to pay the judgment was held proper under this statute. I think these cases authorize Mrs. Butler to intervene in this case “in subordination to and in recognition of the propriety of the main proceeding.” As I understand the record this will require a modification of the order made by respondent, the record indicating that Mrs. Butler was permitted to intervene for the purpose of moving for dissolution of the attachment.
Bird, Moore, and Kuhn, JJ., concurred with Fellows, J. | [
-12,
22,
9,
59,
-33,
2,
3,
54,
-19,
-19,
-32,
-32,
-9,
25,
7,
-25,
35,
0,
14,
-18,
17,
-38,
-38,
26,
51,
4,
3,
-44,
13,
-27,
-19,
-28,
13,
29,
-27,
-32,
15,
-11,
20,
11,
17,
19,
33,
21,
-45,
10,
-24,
-8,
10,
-53,
-38,
-9,
-38,
70,
9,
-1,
-7,
13,
45,
-11,
-27,
-14,
7,
26,
25,
64,
-7,
-30,
-15,
-4,
11,
-30,
35,
-33,
-35,
24,
-31,
-66,
47,
31,
-7,
5,
-11,
27,
-15,
-5,
-14,
4,
11,
0,
-36,
66,
-39,
82,
-1,
5,
-6,
5,
15,
37,
13,
-26,
-37,
-19,
-16,
35,
-3,
-52,
20,
33,
-7,
54,
16,
2,
-38,
-36,
-39,
-59,
17,
-31,
2,
-12,
45,
47,
6,
-10,
-30,
-19,
46,
0,
-37,
30,
9,
-7,
-22,
-51,
-3,
-16,
-8,
-9,
30,
-21,
-30,
-15,
54,
-21,
39,
6,
-19,
-6,
1,
81,
41,
82,
21,
6,
33,
-6,
12,
26,
7,
7,
-17,
-11,
2,
-38,
-22,
15,
-3,
-61,
-25,
41,
-64,
-8,
-7,
-21,
-7,
1,
-6,
-3,
-7,
36,
-17,
-59,
-17,
-64,
21,
-32,
53,
-12,
8,
-23,
9,
36,
13,
78,
-35,
8,
-7,
28,
39,
52,
-29,
-5,
6,
-67,
-11,
-56,
-22,
-11,
-48,
-40,
-50,
-39,
-59,
-38,
1,
8,
-58,
70,
12,
18,
12,
30,
-6,
-35,
15,
-18,
-1,
2,
33,
-19,
-3,
-21,
-29,
31,
-35,
45,
45,
-11,
25,
41,
27,
-19,
18,
-30,
-8,
-17,
-5,
-9,
-7,
-45,
-20,
23,
-48,
25,
1,
-20,
-14,
1,
-2,
-3,
-52,
26,
20,
-37,
13,
4,
34,
-22,
-10,
-8,
54,
49,
-10,
-6,
1,
4,
7,
5,
-9,
-3,
-22,
-24,
-10,
43,
19,
-18,
-4,
10,
8,
-56,
-25,
3,
18,
18,
-17,
-77,
5,
-7,
6,
-35,
23,
28,
-12,
-7,
15,
-1,
20,
-3,
31,
5,
9,
22,
28,
14,
-2,
22,
-17,
-21,
-44,
15,
-22,
16,
-7,
-7,
35,
7,
27,
17,
35,
-27,
-63,
42,
-50,
0,
18,
0,
-15,
-6,
22,
0,
-22,
-27,
-25,
-11,
-13,
6,
-29,
8,
-38,
-24,
-11,
42,
-13,
17,
-33,
-25,
-36,
32,
12,
5,
-44,
-7,
43,
5,
-1,
-37,
-17,
21,
-23,
-19,
-8,
-27,
-40,
2,
-26,
20,
10,
17,
-6,
-75,
-2,
30,
-20,
-5,
-39,
26,
-9,
73,
-37,
29,
70,
-10,
-23,
26,
4,
20,
-19,
-17,
33,
25,
14,
14,
-52,
-15,
-14,
-2,
22,
32,
63,
-18,
7,
25,
25,
16,
0,
-33,
32,
-5,
19,
-5,
2,
-42,
36,
28,
40,
-20,
28,
-24,
6,
-30,
38,
20,
25,
7,
-24,
30,
0,
19,
22,
-4,
-4,
14,
8,
2,
-11,
-8,
5,
9,
9,
35,
10,
19,
-28,
44,
9,
35,
-37,
-35,
28,
-8,
43,
54,
0,
-18,
-8,
10,
19,
16,
-9,
-13,
42,
34,
-44,
-20,
-8,
7,
3,
-13,
-32,
15,
3,
8,
8,
16,
25,
-52,
-11,
35,
12,
-4,
-4,
53,
-19,
-7,
-46,
-7,
-18,
-5,
6,
30,
12,
11,
48,
-12,
-53,
4,
-17,
10,
-29,
-34,
25,
39,
-11,
-1,
36,
-33,
8,
-5,
-6,
18,
-15,
-25,
-17,
-36,
22,
34,
20,
6,
45,
0,
-40,
-41,
-48,
40,
-8,
35,
31,
-6,
2,
25,
12,
24,
-48,
3,
-54,
0,
-33,
0,
6,
-71,
-12,
-11,
23,
9,
-6,
-14,
-28,
21,
8,
-4,
32,
14,
2,
-46,
-58,
-38,
25,
42,
21,
-3,
-32,
-15,
25,
-11,
-14,
-46,
10,
18,
-32,
21,
5,
-47,
8,
-32,
-27,
-11,
15,
-9,
0,
25,
-23,
-18,
-12,
-15,
-43,
27,
-11,
1,
36,
10,
-16,
-13,
12,
-1,
20,
50,
-11,
1,
2,
10,
-55,
44,
-10,
42,
9,
-48,
8,
38,
-24,
-3,
-26,
23,
33,
-66,
16,
0,
34,
-1,
-12,
26,
21,
-17,
-2,
30,
-19,
36,
19,
14,
-7,
46,
-3,
-16,
-56,
0,
36,
-43,
3,
-16,
-4,
6,
-3,
-19,
-1,
-52,
25,
38,
48,
4,
48,
-20,
-34,
-6,
27,
-3,
21,
21,
8,
32,
55,
-53,
30,
35,
11,
-5,
-26,
9,
35,
-7,
-31,
8,
-21,
13,
20,
24,
4,
26,
-60,
4,
10,
-18,
-18,
25,
28,
31,
24,
10,
-4,
-4,
-8,
-33,
18,
37,
-20,
-46,
-27,
-4,
37,
-36,
-28,
-10,
13,
13,
16,
17,
16,
-46,
-6,
-49,
3,
36,
-41,
-24,
10,
4,
26,
-12,
0,
-11,
37,
-17,
29,
-28,
-56,
22,
-31,
17,
29,
47,
-41,
-19,
4,
-38,
-8,
-17,
18,
27,
4,
52,
69,
-15,
11,
29,
-22,
39,
-29,
-39,
15,
2,
5,
25,
-56,
-44,
-8,
22,
-53,
-28,
-4,
-4,
16,
-24,
-21,
-40,
-25,
33,
-3,
23,
41,
-47,
4,
-9,
-53,
-16,
22,
-27,
44,
4,
28,
26,
13,
-20,
-9,
-57,
-29,
15,
2,
-46,
6,
50,
57,
11,
-13,
20,
11,
-1,
-10,
31,
-5,
6,
5,
3,
-25,
-35,
-22,
-11,
-1,
44,
-5,
-1,
-11,
12,
15,
-13,
-43,
-18,
19,
19,
-28,
51,
8,
-46,
-48,
1,
7,
11,
18,
-5,
8,
-5,
20,
8,
0,
-10,
13,
39,
-2,
-2,
11,
-12,
24,
-29,
-51,
21,
-7,
-38,
-16,
35,
-14,
0,
-2,
28,
-16,
-35,
21,
-6,
-42,
21,
43,
39,
9,
-15,
-4,
14,
26,
15,
-15,
-29,
-4,
42,
-67,
31,
1,
4,
-17,
61,
1,
-22,
-28,
29,
13,
52,
-11,
61,
17,
-36,
-11,
-94,
0,
21,
-44,
-13,
-5,
13,
41,
-9,
-15,
27,
-3,
0,
64,
-10,
-16,
-6,
-27,
10,
-11,
-7,
0,
71,
-21,
-23,
-54,
5,
-24,
-24,
-1,
42,
-4,
58,
35,
-42,
-36,
-28,
61,
-5,
20,
0,
-29,
-27,
8,
4,
-30,
45,
-25,
19,
34,
-11,
14,
46,
-108,
16,
-2,
-1,
2,
-20,
64,
-3,
-62,
1,
-42,
14,
1,
-30,
14,
2,
-11,
-7,
14,
-20,
-1,
-38,
-35,
-10,
-76,
13,
50,
39,
-19,
-42,
-31,
9,
-30,
8,
-11,
-38,
0,
-17,
-57,
-33,
57,
16,
1,
-1,
42,
72,
-10,
-21,
30,
2,
-26,
-23,
52,
23,
17,
-42,
19,
8,
-34,
-8,
4,
-55,
45,
33,
-10,
13,
24,
-8,
27,
-4,
-14,
-11,
-14,
6
] |
Per Curiam.
Plaintiff appeals from a May 24, 1990, order dismissing her claims of sexual discrimination, breach of contract, and intentional infliction of emotional distress. MCR 2.116(C)(10). We affirm.
This appeal arises out of an employment relationship between plaintiff and defendant, General Motors Corporation. In November 1982, plaintiff was hired by gm and placed in the Risk Management Department. Initially, management was dissatisfied with plaintiff’s job performance becáuse of her consistent tardiness, inability to deal with other workers effectively, and failure to complete work in a timely fashion. In 1985, plaintiff applied for a new position in the Corporate Strategic Planning Group of gm. Notwithstanding the interviewers’ concerns about her past job performance, plaintiff was given a transfer to the cspg, and worked there until her termination.
In August 1987, plaintiff took a leave of absence in order to have a child. When she returned to work, she was consistently reprimanded for tardiness. In February and March 1988, plaintiff’s absences and tardiness became excessive. When the supervisors’ efforts to reconcile the problem failed, they consulted with the personnel department to seek a solution. As part of the investigation into plaintiff’s performance, an employee in personnel requisitioned plaintiff’s phone records for her office extension. These phone records revealed that plaintiff made nearly $1,700 in phone calls at gm’s expense.
Gm management sent plaintiff a letter informing her that she would be billed for the phone calls that were not related to her employment responsibilities with gm. The letter also reprimanded plaintiff for her excessive tardiness, inability to deal with her co-workers, and abuse of her phone privileges. Management sent an additional letter to plaintiff asking that she submit a payment plan for her personal phone calls by the following day. Plaintiff responded to the letter with a note that stated, in part, as follows:
I have discontinued efforts to review the bills. For the following reasons, my plan for repayment of the phone bills of [plaintiff’s extension] is as follows: I will pay zero amount of such telephone bills.
Plaintiff was subsequently discharged from her duties with gm and thereafter filed this action.
Plaintiff first argues that it was error for the trial court to summarily dismiss count i of her complaint, which alleged breach of contract. We disagree.
When she was hired, plaintiff was interviewed by Wayne Morrison, a gm employee. Plaintiff alleged that Morrison told her that she would remain at gm as long as she did her job. However, on the day she was hired, plaintiff signed an employment agreement stating that she was employed month to month only. The agreement contains a total integration clause and indicates that oral modifications are not permitted. Plaintiff also signed a number of subsequent compensation statements that acknowledged that the terms of the original employment agreement controlled her relationship with gm. Finally, the employee handbook, a copy of which plaintiff received, describes the employment terms as month to month.
Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), stands for the proposition that employment contracts terminable only for cause are enforceable to the same degree as other contracts. Id. at 610. See also Valentine v General American Credit, Inc, 420 Mich 256, 258; 362 NW2d 628 (1984). It is clear from Toussaint that an employer who makes oral representations that employment may be terminated only for cause may be bound contractually if those representations are supported by company policy. Toussaint, supra at 598. Our Supreme Court has held that oral manifestations by an employer that an employee’s job is secure must be clear and unequivocal. Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 645; 473 NW2d 268 (1991). The representation must be based upon more than just an employer’s statement regarding hopes for a long relationship. Id. at 640.
This Court has evaluated the same form contract and gm handbook involved in this case and concluded that they create an at-will employment relationship. See Singal v General Motors Corp, 179 Mich App 497, 504-505; 447 NW2d 152 (1989) (relying on Taylor v General Motors Corp, 826 F2d 452 [CA 6, 1987]). Plaintiff has not produced any evidence corroborating her claim that gm made oral manifestations regarding a just-cause employment relationship. Accordingly, plaintiff has failed to rebut the clear indication in her employment agreement that she was terminable at will.
Count ii of plaintiffs complaint alleges sexual discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. This claim is based on plaintiffs comparison of herself with male employees who also "abused” their phone privileges. The trial court concluded that "this is a case where it really is not one that centers on sexual discrimination but, rather, it is one without any factual dispute and I believe it is one of insubordination.” We agree with the trial court.
A motion for summary disposition under MCR 2.116(0(10) tests the factual sufficiency of the claim at issue. Marsh v Dep’t of Civil Service (After Remand), 173 Mich App 72, 77; 433 NW2d 820 (1988). Under MCR 2.116(G)(5), the court must consider the affidavits, pleadings, depositions, and other documentary evidence presented by the parties. The benefit of doubt is to be given to the nonmoving party. If the trial court determines that there is a significant deficiency in the claim that cannot be cured by a full development of the factual record, then summary disposition under MCR 2.116(0(10) is appropriate.
In order to avoid summary disposition in this case, plaintiff had to establish a genuine issue of material fact regarding whether a prima facie case of discrimination exists. See Meeka v D & F Corp, 158 Mich App 688, 694; 405 NW2d 125 (1987). To establish a prima facie case of sexual discrimination under the disparate-treatment theory, a plaintiff must show that she was a member of a class deserving of protection under the statute, and that, for the same conduct, she was treated differently than a man. Marsh, supra at 79. The crux of the sexual discrimination case is that there are similarly situated individuals who have been treated differently because of their sex. Id. It is plaintiff’s burden to establish a prima facie case of sexual discrimination with evidence that is legally admissible and sufficient to state a prima facie claim. Id. at 80.
Our review of plaintiff’s proofs reveals a factual deficiency that cannot be overcome. None of the male employees to whom plaintiff compared herself refused to reimburse gm for their phone usage. If plaintiff had shown that these men did refuse to pay, but were not terminated, her case would be much stronger. In light of her failure to make this showing, none of the men were similarly situated and, thus, the trial court properly dismissed this claim.
Finally, plaintiff contends that she was not terminated for insubordination. Specifically, plaintiff contends that defendants’ insubordination justifica tion was merely a pretext for discriminating against her on the basis of sex. We disagree.
A second way to make a prima facie showing of discrimination based upon sex is to prove that the discrimination was intentional. Hickman v W-S Equipment Co, Inc, 176 Mich App 17, 21; 438 NW2d 872 (1989). In order to succeed under this theory, a plaintiff must show that she was a member of an affected class, that she was discharged, that the defendant was predisposed to discriminate against persons in the class, and that the defendant actually acted upon that disposition when the termination decision was made. Id.
In this case, plaintiff is obviously a member of a protected class and was discharged. The only question is whether she has made the requisite showing of a pretext for intentional discrimination in order, to sustain the action. This question must be answered in the negative. All the incidents to which plaintiff points are actions taken by defendants in order to extract from plaintiff compliance with the rules under which all employees of gm were expected to work. Plaintiff did not produce any evidence at the hearing on the motion for summary disposition that indicated a pattern of discrimination against women within gm. Rather, plaintiff made unsubstantiated allegations of discrimination against her that were insufficient to create a genuine issue of material fact regarding intentional discrimination.
Affirmed.
A good portion of the calls were made to plaintiff's relatives in Rhode Island and New Jersey. In addition, the records revealed that plaintiff used her GM-issued phone credit card to make calls from California while she was on vacation.
It is also clear that none of the individuals named as defendants are liable because they were not parties to either the express or implied contract plaintiff alleges was formed on the day she was hired.
Plaintiff’s contention that she followed gm’s directive to submit a plan for reimbursement for the phone calls is without merit. Plaintiff’s letter, which indicated that her plan was to pay zero, was nothing more than an enticement for gm to take action. | [
-10,
-23,
-70,
57,
52,
-51,
-10,
-20,
-30,
24,
-9,
13,
39,
-25,
-13,
-23,
25,
0,
2,
-14,
0,
-21,
-10,
21,
-24,
16,
2,
-53,
-30,
9,
-30,
-3,
-67,
-43,
-18,
-31,
25,
36,
-24,
31,
-21,
-36,
36,
-38,
-44,
-26,
44,
22,
25,
-11,
47,
64,
-31,
24,
37,
-16,
43,
-18,
-23,
20,
-35,
32,
30,
-37,
36,
19,
30,
26,
-40,
42,
-29,
-4,
1,
11,
0,
-47,
1,
-6,
10,
3,
5,
-30,
-11,
37,
30,
57,
6,
56,
-15,
0,
-36,
5,
-55,
-27,
-33,
21,
-20,
-8,
52,
4,
-61,
12,
27,
41,
3,
3,
35,
-19,
-18,
20,
19,
-19,
4,
-37,
-4,
23,
56,
23,
40,
-21,
34,
8,
49,
0,
4,
-15,
0,
-22,
-13,
73,
-9,
16,
41,
-20,
21,
-28,
-1,
6,
4,
-14,
-28,
33,
3,
18,
4,
-4,
36,
1,
-14,
-14,
0,
29,
-12,
31,
18,
-5,
15,
-41,
27,
-30,
11,
12,
-9,
26,
-7,
-11,
-39,
50,
35,
-16,
31,
-9,
-22,
-25,
19,
0,
-15,
19,
-26,
-29,
-52,
1,
-32,
0,
36,
0,
-3,
-25,
-19,
23,
-24,
-25,
55,
37,
45,
38,
49,
27,
-7,
2,
33,
-28,
-13,
17,
19,
-1,
-25,
-11,
-21,
13,
13,
23,
-15,
-53,
-33,
-39,
22,
-36,
0,
49,
-4,
-64,
-26,
-29,
-50,
-44,
18,
-11,
21,
16,
31,
21,
42,
24,
-47,
-23,
68,
0,
62,
2,
-39,
25,
42,
9,
-44,
32,
-77,
-13,
30,
4,
22,
9,
6,
33,
-46,
-42,
-20,
16,
35,
-43,
29,
36,
21,
3,
-10,
-5,
-35,
47,
-2,
-50,
-5,
0,
34,
-34,
-40,
-30,
3,
21,
11,
-21,
-49,
-8,
-86,
-43,
-45,
-6,
40,
-40,
-1,
0,
8,
-8,
-8,
13,
49,
-21,
17,
28,
-38,
-11,
-17,
-41,
23,
-25,
-12,
7,
-1,
12,
14,
-16,
-13,
-48,
0,
-12,
15,
-22,
-18,
-39,
0,
-40,
31,
16,
-14,
27,
-22,
-66,
-27,
-25,
19,
-28,
-2,
17,
-54,
25,
57,
-13,
-13,
45,
23,
28,
6,
57,
-39,
20,
-26,
21,
60,
-16,
34,
11,
3,
-17,
23,
-1,
37,
14,
58,
-30,
-55,
32,
-39,
-12,
14,
-5,
-7,
23,
5,
-2,
20,
40,
0,
-66,
-23,
-26,
-29,
-5,
5,
-39,
8,
61,
32,
-71,
6,
-16,
-12,
-11,
-5,
-17,
-1,
-18,
-45,
8,
-14,
41,
-31,
-4,
19,
34,
-27,
66,
16,
-14,
-5,
25,
12,
-10,
40,
-39,
-40,
55,
-13,
-47,
17,
47,
-16,
-47,
33,
-4,
62,
2,
21,
20,
25,
-6,
15,
-15,
5,
-2,
3,
42,
-27,
-46,
-9,
-38,
-6,
-12,
-34,
-47,
-19,
-10,
24,
14,
-3,
-8,
12,
22,
21,
-35,
36,
-3,
19,
-5,
23,
25,
-4,
-59,
36,
58,
-60,
8,
-10,
-58,
15,
29,
16,
-14,
25,
25,
-19,
65,
-15,
-18,
17,
46,
20,
-2,
11,
-21,
4,
-18,
-23,
-16,
34,
-50,
-43,
22,
-25,
-77,
-3,
38,
-4,
-16,
-33,
2,
-6,
8,
-24,
8,
-18,
-8,
-10,
-36,
31,
53,
16,
-91,
-32,
-56,
-15,
-24,
-61,
-38,
56,
53,
55,
-8,
-4,
42,
11,
25,
-10,
29,
-4,
14,
-5,
-19,
-32,
-17,
-8,
0,
23,
38,
57,
0,
12,
-7,
-15,
-2,
-29,
-28,
-28,
72,
-32,
51,
28,
-12,
0,
57,
32,
19,
30,
-47,
5,
-31,
15,
19,
0,
18,
6,
8,
-34,
25,
21,
8,
36,
15,
-33,
17,
46,
-29,
-30,
22,
28,
44,
6,
41,
25,
-27,
-12,
-44,
-50,
0,
26,
0,
-35,
-54,
56,
42,
10,
4,
-20,
-78,
8,
-29,
96,
-29,
5,
-39,
30,
3,
35,
-34,
-59,
6,
-49,
16,
5,
-4,
27,
-75,
7,
49,
2,
-67,
-22,
-64,
-14,
-33,
20,
19,
4,
28,
-3,
5,
-20,
-6,
39,
0,
-46,
-2,
10,
-6,
28,
1,
22,
-1,
47,
10,
-40,
-37,
32,
0,
21,
-23,
14,
3,
19,
32,
3,
-25,
0,
63,
24,
-6,
-11,
19,
18,
-10,
-6,
-43,
-4,
-14,
23,
-4,
25,
-21,
-27,
0,
-13,
-35,
2,
27,
29,
19,
53,
20,
-16,
-8,
-41,
-45,
-36,
3,
3,
12,
-30,
4,
37,
14,
10,
-15,
2,
-4,
11,
4,
-2,
-8,
18,
-2,
-5,
8,
-59,
23,
18,
24,
0,
12,
-55,
-7,
13,
39,
-3,
-24,
0,
-11,
4,
-3,
-28,
-21,
-59,
-30,
14,
3,
5,
18,
-33,
29,
12,
-35,
-24,
-39,
0,
42,
-13,
11,
-24,
-15,
4,
-22,
-75,
-4,
43,
47,
58,
-12,
-19,
-3,
0,
-12,
-11,
-9,
-3,
7,
-22,
54,
11,
-13,
32,
-31,
-36,
-5,
25,
-32,
48,
29,
3,
26,
-12,
-17,
6,
-17,
-36,
8,
57,
-5,
-8,
8,
3,
32,
-15,
-30,
-35,
-5,
1,
29,
-38,
-48,
12,
-24,
-2,
11,
-10,
-57,
-20,
-62,
2,
26,
15,
-10,
0,
-41,
-23,
40,
-10,
35,
20,
0,
-19,
-28,
3,
-31,
-37,
-8,
-14,
8,
8,
-9,
-35,
18,
-34,
-27,
-14,
16,
-42,
44,
-24,
-43,
-38,
4,
54,
20,
2,
-4,
14,
59,
-65,
39,
26,
4,
6,
-4,
-16,
-27,
-37,
28,
60,
4,
-29,
34,
27,
-9,
0,
-22,
-17,
65,
32,
0,
-11,
-2,
1,
0,
-46,
17,
-47,
-15,
19,
52,
-86,
-22,
94,
-44,
-9,
-2,
28,
13,
-8,
-7,
25,
-1,
27,
-7,
44,
-10,
-6,
2,
18,
24,
8,
1,
10,
5,
28,
3,
-6,
-35,
3,
2,
29,
1,
-27,
-45,
3,
36,
18,
31,
-41,
17,
-59,
-31,
-49,
1,
14,
27,
-10,
17,
39,
-7,
-25,
41,
42,
-24,
-9,
-27,
-17,
-19,
35,
1,
45,
-10,
-28,
10,
48,
0,
-8,
42,
29,
-22,
6,
-14,
26,
13,
-37,
-36,
14,
1,
-26,
-53,
-31,
-23,
22,
9,
-3,
13,
42,
30,
-41,
-16,
-10,
-32,
-22,
-16,
-1,
12,
27,
52,
7,
18,
33,
2,
-29,
-11,
23,
-53,
-24,
-23,
-32,
6,
-6,
34,
2,
36,
16,
-15,
-13,
-3,
11,
-13,
-34,
-34,
-7,
-16,
30,
14,
44,
51,
56,
-59,
-16,
-9,
62,
27,
-15,
-11,
-24,
1,
22,
19,
7,
-39,
-9,
1,
35,
-7,
11,
-39,
28,
0,
-22,
29,
-2,
-39,
7,
-2,
7,
-5
] |
Connor, J.
Plaintiff instituted this action to seek reimbursement from defendant for medical expenses paid on behalf of Sandra Moon and incurred as a result of a motor vehicle accident. Plaintiff asserted that defendant’s employee benefit plan included medical benefits subject to coordination under the no-fault act, MCL 500.3109a; MSA 24.13109(1). The trial court held that coordination by plaintiff under the no-fault act was not available because defendant’s plan excluded any benefits for motor vehicle accidents in this case. We affirm.
The parties stipulated the facts in the trial court. Sandra Moon was injured in an automobile accident on November 19, 1988. Her no-fault automobile insurance policy, issued to her father, Harold Moon, contained a valid coordination of benefits provision pursuant to MCL 500.3109a; MSA 24.13109(1). The automobile accident occurred in Michigan while Sandra Moon was a resident of Michigan.
At the time of her accident, Sandra Moon and Harold Moon were both covered under the Rospatch Corporation Employee Benefit Plan, which was administered pursuant to the Employee Retirement Income Security Act of 1974 (erisa), 29 USC 1001 et seq. The Rospatch Corporation Employee Benefit Plan (defendant) contained two separate provisions purporting to exclude the payment of expenses incurred as a result of automobile accidents:
MICHIGAN NO-FAULT EXCLUSION
Benefits are not payable under this Plan for injuries received in an accident involving a car or other motor vehicle._
OUT OF MICHIGAN NO-FAULT EXCLUSION
Benefits will not be paid under this plan for injuries received in an accident involving a car or other motor vehicle which is owned or leased by a covered person or any member of his immediate family or involving any car or other motor vehicle for which there is in effect, or is required to be in effect, any policy of No-Fault insurance. This exclusion is not applicable to expenses not paid by any policy of No-Fault insurance as a result of state required policy deductibles or máximums.
Plaintiff paid the medical expenses incurred by Sandra Moon under its no-fault policy. Defendant reviewed those expenses and determined that if it were required to pay expenses for the injuries, it would pay $13,546.85. The only issue the parties could not resolve was whether defendant had to pay any expenses associated with Sandra Moon’s automobile accident.
On appeal, plaintiff challenges the trial court’s ruling that defendant’s plan provided for the exclusion of benefits for injuries incurred in this case. Plaintiff claims defendant’s plan provided for a coordination of medical benefits, and therefore plaintiff was entitled to seek reimbursement under MCL 500.3109a; MSA 24.13109(1).
The trial court held that, despite the ambiguity in the two different clauses, defendant’s plan excluded benefits in this case and did not provide for coordination with other insurance benefits. The trial court held that defendant’s plan was unambiguous because the Michigan exclusion for no-fault benefits was the only provision that applied.
The seminal case in Michigan regarding coordination of benefits is Federal Kemper Ins Co, Inc v Health Ins Administration, Inc, 424 Mich 537, 551-552; 383 NW2d 590 (1986). The Supreme Court held that the defendant health insurer, under a group plan, was primarily liable for medical cover age as a result of a motor vehicle accident where the defendant’s coordinated benefits clause conflicted with the plaintiffs no-fault policies. The Court reasoned that because the Legislature required insurers to offer coordinated coverage with other health insurance under no-fault policies in order to reduce premiums, the no-fault insurer must be secondarily liable in order to effectuate the Legislature’s intent. Id., pp 546, 551-552.
The application of Federal Kemper to this case depends on whether defendant’s plan can be construed as including a provision for the coordination of benefits or for the exclusion of coverage. If defendant’s plan included a "pure” exclusion, then it could not be required to coordinate its benefits with those paid in accordance with the no-fault act.
In Auto-Owners Ins Co v Autodie Corp Employee Benefít Plan, 185 Mich App 472, 474; 463 NW2d 149 (1990), an almost identical clause was interpreted as an exclusion rather than a coordination provision. The panel relied on Transamerica Ins Co of North America v Peerless Industries, 698 F Supp 1350, 1355-1356 (WD Mich, 1988), which held that because the exclusion in the defendant’s plan for automobile accidents under Michigan’s no-fault act was clear and unambiguous, no other health or accident insurance existed for purposes of MCL 500.3109a; MSA 24.13109(1). Peerless, supra, pp 1353, 1355. This type of an exclusion is considered a "pure” exclusion, because it clearly is not dependent upon the existence of any other insurance. Transamerica Ins Co of America v IBA Health & Life Assurance Co, 190 Mich App 190, 194-195; 475 NW2d 431 (1991).
Plaintiff contends this case should be distinguished from Autodie because defendant’s plan appears to coordinate benefits with no-fault insur anee benefits for motor vehicle accidents that occur outside the State of Michigan. This arguably is an "escape” exclusion that does not avoid coordination under MCL 500.3109a; MSA 24.13109(1). See Peerless, supra, pp 1351, 1354; Auto-Owners Ins Co v Lacks Industries, 156 Mich App 837, 838-839; 402 NW2d 102 (1986).
We believe that this "escape” provision is inapplicable and irrelevant in this case because the parties agree that Sandra Moon’s accident occurred in Michigan while she was a resident of Michigan. Generally, exclusions in insurance contracts are to be read independently of one another. Hawkeye-Security Ins Co v Vector Construction Co, 185 Mich App 369, 384; 460 NW2d 329 (1990). Under the facts of this case, the only applicable provision clearly excludes coverage, and another inapplicable exclusion cannot be relied upon to make the entire plan ambiguous. Id., pp 384-385. See also Fresard v Michigan Millers Mutual Ins Co, 414 Mich 686, 697-698; 327 NW2d 286 (1982) (Fitzgerald, C.J.).
Defendant also argued below, as an alternative theory, that because it was self-insured, 29 USC 1144(a) preempted the coordination of benefits under the state no-fault insurance act. Defendant conceded through the testimony of its administrator that its plan includes stop-loss insurance coverage, or excess insurance coverage for claims in excess of $50,000. Defendant pays all benefits due claimants under the plan, but defendant can seek reimbursement for those claims that exceed $50,000 as a means of protecting the plan. The trial court held that defendant was not a self-insured plan within the meaning of the erisa because of the excess insurance coverage, and consequently federal law did not preempt the coordination of benefits in this case.
We believe the trial court erred in this portion of its ruling. The panel in Auto Club Ins Ass’n v Frederick & Herrud, Inc (On Remand), 191 Mich App 471, 475; 479 NW2d 18 (1991), recently held that stop-loss coverage does not transform an employee benefit plan into an insured plan for purposes of the erisa, citing FMC Corp v Holliday, 498 US —; 111 S Ct 403; 112 L Ed 2d 356, 366 (1990). We are satisfied that Auto Club, supra, was correctly decided and, under Administrative Order No. 1990-6, 436 Mich lxxxiv, and Administrative Order No. 1991-11, 439 Mich xlv, both this Court and the trial court are bound by that decision.
Affirmed in part and reversed in part.
The trial court granted summary disposition in this case under MCR 2.116(0(10), ruling that there were no genuine issues of material fact and defendant was entitled to judgment as a matter of law. Under this rule, summary disposition is appropriate only when there is no factual support for a claim. See SSC Associates Limited Partnership v General Retirement System of the City of Detroit, 192 Mich App 360, 363-365; 480 NW2d 275 (1991).
In FMC Corp, supra, 112 L Ed 2d 362, Justice O’Connor wrote in the Court’s opinion that the plan in that case was self-funded because it did not purchase an insurance policy from any insurance company in order to satisfy the obligations to its participants. Consequently, an insurance policy that nierely protects the plan from disastrous consequences, but does not directly insure the obligations owed to the plan members, does not affect the plan’s status as self-insured, according to the panel in Auto Club, supra.
But see Frankenmuth Mutual Ins Co v Meijer, Inc, 176 Mich App 675, 677-679; 440 NW2d 7 (1989), wherein another panel of this Court held that stop-loss coverage does not render an erisa plan uninsured. The panel in that case placed its reliance on Northern Group Services, Inc v Auto Owners Ins Co, 833 F2d 85 (CA 6, 1987), opinion clarifying first decision 898 F2d 1125 (CA 6, 1990), which the panel in Auto Club, supra, p 474, believed was effectively overruled by the decision in FMC Corp, supra. The federal courts have also held that FMC Corp, supra, overruled Northern Group, supra. Auto Club Ins Ass’n v Health & Welfare Plans, Inc, 961 F2d 588, 592-593 (CA 6, 1992), and cases cited therein. But see Michigan United Food & Commercial Workers Unions v Baerwaldt, 767 F2d 308, 312-313 (CA 6, 1985); Auto Club Ins Ass’n v Mutual Savings & Loan Ass’n, 672 F Supp 997, 1000 (ED Mich, 1987); State Farm Mutual Automobile Ins Co v American Community Mutual Ins Co, 659 F Supp 635, 637-639 (ED Mich, 1987), aff'd 863 F2d 49 (1988) (stop-loss insurance only did not affect the status of an employee benefit plan as insured for purposes of the savings clause pursuant to the erisa). See also Udell v Georgie Boy Mfg, Inc, 174 Mich App 171, 179; 435 NW2d 413 (1988), vacated and remanded for reconsideration 432 Mich 889 (1989). | [
-28,
39,
-23,
5,
46,
-4,
25,
-5,
3,
43,
7,
27,
67,
14,
21,
-7,
14,
0,
-31,
-14,
-62,
-38,
-50,
8,
-37,
36,
42,
-54,
-4,
-7,
-28,
-11,
6,
-13,
-19,
-4,
18,
15,
-9,
8,
11,
-17,
57,
-14,
-20,
-28,
34,
18,
27,
-21,
10,
28,
-43,
17,
41,
19,
70,
-23,
-14,
-18,
-32,
0,
44,
19,
9,
-5,
20,
25,
18,
35,
-13,
12,
-43,
-28,
-2,
-3,
-5,
44,
3,
-3,
16,
-16,
13,
12,
9,
38,
-50,
6,
-15,
-7,
-59,
-21,
-21,
13,
-12,
22,
-77,
1,
-10,
50,
-21,
-10,
21,
12,
-8,
16,
9,
-51,
21,
20,
-50,
4,
-6,
10,
44,
-12,
11,
0,
22,
39,
23,
-7,
44,
11,
-19,
39,
3,
-23,
-31,
-13,
35,
32,
56,
15,
-5,
-27,
-7,
-17,
24,
19,
24,
-11,
-9,
-12,
33,
67,
4,
-66,
24,
-82,
0,
2,
12,
24,
2,
-16,
1,
-15,
33,
-7,
-10,
-24,
7,
69,
-40,
-15,
15,
77,
34,
-6,
72,
-52,
-19,
-85,
10,
-6,
19,
4,
-38,
-17,
0,
6,
-21,
11,
0,
-38,
6,
-9,
24,
-54,
34,
-41,
-22,
14,
-15,
47,
58,
19,
-9,
6,
16,
-87,
10,
18,
1,
-12,
-12,
-11,
-47,
29,
14,
-33,
4,
-36,
-53,
-10,
-5,
-42,
-47,
-60,
-8,
-15,
8,
-42,
-67,
-18,
-8,
-46,
-19,
-1,
1,
-51,
-27,
65,
-41,
-11,
-44,
-16,
45,
-6,
32,
-48,
-11,
14,
9,
21,
-20,
8,
60,
-4,
41,
6,
-2,
-10,
-35,
-12,
-18,
23,
19,
23,
-43,
58,
-64,
74,
-26,
-39,
5,
-8,
-11,
-16,
-42,
26,
30,
-19,
-45,
-86,
56,
21,
33,
-28,
13,
25,
-56,
-30,
-23,
38,
31,
-55,
25,
40,
10,
-76,
32,
-10,
19,
1,
53,
-2,
4,
39,
29,
-8,
58,
49,
8,
-36,
12,
-10,
9,
28,
-39,
-22,
27,
0,
60,
-41,
-30,
-23,
20,
3,
24,
-9,
-11,
67,
-30,
-40,
39,
-73,
9,
-21,
-10,
19,
-5,
20,
-9,
-101,
-1,
8,
-10,
6,
-5,
39,
47,
-5,
-8,
2,
51,
34,
1,
5,
-41,
6,
48,
7,
-10,
-9,
57,
-41,
-97,
63,
-20,
13,
-44,
0,
-34,
6,
27,
31,
-28,
49,
19,
-5,
-25,
-19,
-21,
-41,
11,
60,
0,
59,
14,
-18,
25,
-17,
-37,
10,
-52,
-47,
33,
3,
-47,
-50,
33,
25,
-52,
1,
-14,
15,
-63,
53,
12,
-2,
27,
-38,
-7,
0,
39,
-37,
-55,
30,
-42,
-57,
12,
10,
-19,
1,
43,
-37,
-11,
-48,
29,
12,
-5,
-31,
0,
-40,
-25,
30,
-10,
22,
-2,
0,
19,
-16,
15,
-21,
-71,
-32,
17,
12,
5,
51,
-22,
15,
38,
8,
-21,
-24,
41,
-42,
53,
37,
-11,
40,
-86,
-21,
18,
36,
-91,
-94,
-13,
-50,
7,
-45,
75,
-25,
-23,
5,
44,
-25,
-4,
-12,
-11,
42,
26,
-30,
-8,
-21,
15,
21,
-59,
8,
9,
-12,
-4,
-17,
-7,
16,
7,
11,
37,
-37,
-39,
1,
21,
-5,
-35,
25,
-31,
-95,
-2,
6,
-9,
32,
35,
-74,
-48,
-76,
-30,
-84,
-35,
19,
-17,
22,
25,
31,
0,
-6,
44,
61,
10,
-19,
-33,
4,
-4,
-67,
-45,
19,
2,
3,
16,
0,
37,
13,
0,
-16,
24,
0,
-35,
-26,
2,
59,
-36,
1,
9,
-16,
9,
6,
39,
-11,
-16,
-27,
-27,
3,
57,
20,
75,
5,
33,
6,
-11,
55,
13,
11,
36,
16,
-17,
6,
68,
7,
-60,
41,
29,
-59,
4,
17,
20,
33,
-80,
3,
7,
4,
0,
1,
-64,
-49,
12,
9,
20,
-17,
-31,
-6,
2,
18,
18,
32,
9,
-22,
-60,
-27,
19,
-11,
-81,
-32,
-25,
-21,
-16,
33,
64,
-64,
-15,
52,
-2,
-61,
-20,
-56,
-21,
5,
24,
-1,
-1,
7,
12,
42,
4,
45,
24,
8,
8,
-36,
16,
-6,
24,
-59,
28,
-25,
-28,
41,
-19,
-48,
19,
43,
12,
38,
-13,
-45,
11,
-21,
-7,
-64,
-29,
31,
-41,
-30,
17,
14,
-24,
-7,
-24,
-13,
-23,
-16,
12,
11,
-18,
-21,
22,
-27,
15,
-10,
8,
22,
55,
34,
27,
33,
-33,
11,
-22,
49,
-41,
-13,
8,
-1,
1,
-13,
9,
-10,
42,
-4,
-12,
95,
-40,
-14,
-16,
-4,
40,
-13,
-24,
11,
-16,
2,
-54,
23,
-8,
4,
-43,
12,
1,
32,
-26,
1,
11,
-36,
-1,
37,
-13,
13,
-27,
-27,
-24,
-44,
16,
-1,
-14,
4,
55,
-15,
8,
-7,
-12,
6,
3,
27,
-34,
22,
19,
14,
-22,
33,
40,
52,
47,
2,
0,
6,
-31,
8,
12,
75,
-52,
12,
68,
52,
-13,
-26,
27,
7,
-28,
-24,
-3,
-34,
16,
20,
21,
41,
-36,
34,
47,
-37,
-22,
29,
-25,
-41,
5,
10,
7,
-26,
-25,
-51,
50,
-12,
5,
9,
-76,
-20,
-17,
-38,
0,
24,
0,
46,
37,
-48,
16,
-11,
16,
26,
17,
-20,
6,
18,
-37,
30,
27,
-20,
33,
16,
49,
11,
0,
-31,
49,
15,
-8,
-24,
-19,
6,
-31,
18,
45,
30,
-64,
-28,
24,
20,
-26,
4,
10,
3,
-33,
41,
-21,
29,
-9,
58,
73,
4,
-28,
-48,
41,
48,
-24,
-5,
26,
18,
-57,
14,
65,
-3,
-16,
-74,
-11,
10,
23,
10,
-34,
-28,
-36,
-18,
-12,
-30,
-50,
-12,
45,
37,
-12,
10,
6,
-25,
-14,
22,
-40,
-5,
17,
39,
15,
-16,
-9,
-50,
27,
-27,
44,
29,
-29,
-6,
6,
15,
-40,
32,
5,
13,
-26,
-59,
-47,
-17,
-14,
56,
13,
-6,
-8,
53,
-22,
44,
-13,
24,
5,
0,
-22,
45,
10,
-29,
10,
29,
-17,
3,
-32,
50,
-5,
51,
-18,
0,
30,
-78,
-39,
43,
0,
8,
-43,
1,
25,
-3,
2,
66,
52,
-1,
12,
-22,
-12,
37,
18,
12,
-31,
0,
-47,
-13,
13,
-19,
0,
-14,
44,
-38,
-12,
26,
-7,
-40,
28,
0,
-12,
43,
-5,
36,
41,
-12,
49,
-14,
35,
-27,
2,
32,
14,
-6,
-27,
-30,
19,
-2,
-8,
22,
-38,
-21,
6,
-13,
-26,
-7,
-65,
-27,
-2,
2,
-19,
-10,
-7,
6,
28,
26,
13,
-34,
31,
65,
85,
-18,
14,
1,
22,
38,
-5,
3,
-17,
22,
35,
25,
25,
66,
-11,
-56,
-23,
68,
-48,
-13,
-32,
-22,
0,
-29,
40,
11
] |
On order of the Court, this is to advise that the Court is considering a proposal to amend GCR 1963, 790. Before determining whether it should be adopted, changed before adoption, or rejected, this notice is given to afford any interested person the opportunity to comment on the form or the merits of the proposal, the text of which is as follows:
(The present language is to be repealed and replaced by the following language unless otherwise indicated below:)
Rule 790. Pretrial Release.
.1 — .3 (Unchanged.)
.4 Money Bail; Satisfaction of Money Bail.
(a) (Unchanged.)
(b) If the court finds that the defendant’s appearance cannot otherwise be assured, it may require the defendant to post a surety bond, or cash in the full amount of the bail. In making this finding, the court shall consider the factors listed in subrule .5 and state the reasons why a surety bond, or cash in the full amount of the bail, is necessary.
(c) Unless the court requires monetary bail as provided in subrule (b), the court shall advise the defendant of the option to satisfy the monetary requirement of bail under (1) or (2).
(1) The defendant may post cash or its equivalent in the full amount of the bail set by the court, or a surety bond, written by a licensed surety bondsman.
(2) (Unchanged.)
.5 (Unchanged.)
.6 Termination of Money Bail.
(a) If the conditions of the bail are met and the defendant is discharged from all obligations in the case, the court shall discharge the surety, return the cash (or its equivalent) posted in the full amount of the bail, or return 90 percent of the deposited money and retain 10 percent if there has been a deposit of 10 percent of the bail, whichever is applicable.
(b) -(c) (Unchanged.)
.7 (Unchanged.)
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption in its present form. Timely comments will be substantively considered and your assistance is appreciated by the Court.
A copy of this order will be given to the secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in GCR 1963, 933. Comments on this proposal may be sent to the Supreme Court clerk within 60 days after it is published in the State Bar Journal.
Staff Comment: The proposed changes would require the court to advise the defendant of the option to post cash, a 10 percent deposit, or a surety bond under GCR 1963, 790.4(c) and allow a defendant to post cash in the full amount of the bail in lieu of surety bond under GCR 790.4(b). The posting of the equivalent of cash would be permitted under the change; GCR 790.6 makes explicit that the judge is to return cash posted in the full amount when a defendant fulfills the obligations of the bail as stated in GCR 790.6.
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court. | [
25,
-17,
-14,
47,
-47,
8,
27,
14,
-3,
41,
67,
-19,
-13,
-23,
25,
27,
-9,
-14,
-18,
12,
-43,
17,
51,
21,
23,
33,
-3,
-15,
20,
24,
-28,
17,
-32,
9,
-35,
-10,
17,
-17,
24,
44,
42,
43,
42,
15,
-81,
-35,
-22,
-10,
26,
-45,
-42,
26,
55,
19,
33,
57,
-29,
-31,
-40,
64,
33,
6,
-15,
32,
-33,
70,
-22,
37,
-40,
-51,
32,
42,
-26,
32,
25,
-21,
10,
-16,
-18,
46,
-9,
-6,
0,
12,
46,
-36,
20,
-48,
52,
-24,
-10,
37,
-45,
-17,
-33,
-32,
68,
-49,
47,
77,
1,
-41,
-27,
-15,
10,
4,
5,
-21,
-18,
-4,
49,
-16,
18,
-50,
-14,
-43,
-58,
26,
42,
-16,
19,
16,
6,
2,
-12,
-13,
21,
-15,
2,
-16,
32,
45,
6,
-7,
24,
-19,
10,
23,
16,
-31,
-25,
14,
36,
-14,
19,
-17,
40,
-8,
1,
36,
5,
73,
-13,
31,
4,
9,
5,
-22,
-64,
-12,
26,
23,
-19,
-22,
-27,
-24,
-1,
-17,
-45,
42,
-21,
23,
33,
68,
-18,
-34,
-4,
13,
-1,
9,
-9,
20,
2,
11,
-12,
44,
-28,
36,
-28,
14,
-3,
-6,
12,
30,
-9,
-3,
32,
-2,
-47,
10,
-10,
28,
4,
23,
14,
-19,
-2,
-39,
-12,
4,
-70,
4,
-56,
4,
-11,
-8,
-17,
-3,
32,
-10,
-59,
-4,
-8,
-34,
-1,
-38,
51,
12,
20,
-4,
-1,
72,
-11,
-28,
2,
77,
26,
29,
77,
67,
0,
-29,
-11,
-86,
50,
-33,
20,
-42,
6,
-40,
-29,
12,
-21,
40,
-42,
24,
22,
13,
-64,
11,
48,
14,
20,
6,
-42,
34,
15,
-35,
-20,
20,
27,
-42,
-43,
-29,
18,
9,
-33,
-40,
1,
-3,
27,
18,
-25,
27,
-4,
-58,
-6,
-10,
32,
18,
24,
28,
-5,
3,
26,
14,
-46,
6,
11,
22,
21,
-23,
6,
-24,
-57,
8,
-30,
-5,
-66,
-76,
-22,
-19,
-18,
-38,
26,
-28,
2,
36,
11,
-45,
13,
18,
6,
-12,
47,
-11,
36,
-15,
-2,
19,
-1,
-64,
-33,
-28,
36,
41,
41,
15,
15,
31,
14,
-38,
23,
37,
-20,
-23,
-18,
-5,
-77,
-36,
-27,
101,
11,
18,
-39,
14,
-73,
-12,
61,
-2,
31,
50,
71,
-11,
63,
-27,
-12,
37,
-10,
0,
38,
-73,
-10,
-49,
-23,
3,
18,
55,
-22,
-16,
-25,
6,
1,
-41,
37,
-11,
-52,
-9,
16,
-26,
-16,
-39,
-23,
-40,
-44,
34,
6,
-22,
30,
4,
-11,
14,
3,
-61,
-14,
50,
0,
-24,
-11,
35,
-14,
7,
39,
50,
-25,
6,
6,
-55,
-24,
-40,
-48,
3,
17,
-17,
-59,
-4,
-40,
-22,
-82,
2,
-78,
18,
17,
14,
-4,
7,
15,
-58,
30,
-68,
-41,
-11,
32,
44,
-20,
-4,
-27,
-10,
-9,
2,
6,
0,
3,
1,
-20,
-16,
29,
66,
-45,
-10,
16,
-32,
-29,
36,
-19,
-63,
-91,
20,
48,
-41,
-33,
-22,
26,
29,
-31,
-40,
39,
41,
-40,
-7,
-31,
51,
-20,
-36,
-19,
19,
-6,
-57,
-23,
-1,
24,
-56,
4,
-44,
-6,
6,
-37,
-15,
5,
-5,
29,
-12,
-22,
25,
-11,
31,
3,
17,
22,
12,
43,
1,
-7,
-6,
43,
-46,
-43,
-35,
-35,
28,
9,
-30,
-26,
-25,
25,
66,
34,
-2,
-8,
1,
3,
-37,
-10,
-52,
8,
54,
-70,
4,
-30,
-4,
0,
1,
-57,
39,
59,
23,
9,
-44,
-25,
11,
-25,
-13,
8,
-11,
32,
-55,
-25,
31,
-37,
-38,
-1,
46,
-5,
41,
-4,
2,
-12,
-29,
-28,
30,
46,
27,
-40,
13,
-19,
26,
-3,
-15,
5,
-19,
52,
15,
-90,
27,
3,
-14,
-14,
27,
-2,
18,
-31,
24,
19,
12,
9,
6,
42,
-4,
-8,
-5,
12,
32,
26,
14,
2,
-28,
47,
-2,
34,
5,
12,
-35,
-24,
45,
-24,
-14,
16,
-19,
-27,
46,
-24,
10,
29,
2,
-16,
-33,
-32,
15,
53,
45,
-9,
-48,
60,
-28,
-2,
22,
-76,
-9,
32,
-51,
-3,
54,
73,
-29,
21,
16,
16,
36,
46,
14,
-8,
46,
10,
-29,
47,
-20,
-9,
33,
25,
-17,
30,
-22,
-62,
36,
8,
36,
-14,
30,
68,
7,
36,
-17,
-14,
-21,
37,
0,
46,
19,
31,
-30,
-12,
3,
-48,
-9,
-45,
2,
-34,
-21,
4,
34,
39,
26,
-12,
59,
42,
-17,
30,
65,
-25,
8,
14,
-23,
-44,
-44,
-49,
-39,
-48,
-2,
56,
-56,
-19,
14,
-29,
-7,
40,
-72,
0,
-9,
2,
-68,
-16,
-2,
-28,
54,
15,
110,
-32,
36,
-26,
-42,
-17,
13,
-48,
-7,
-37,
-5,
-36,
25,
-13,
-65,
-37,
7,
-11,
7,
6,
53,
-18,
37,
-17,
34,
52,
25,
19,
-27,
-20,
63,
8,
5,
-33,
-8,
-21,
21,
-14,
5,
1,
0,
-10,
28,
-7,
-12,
-2,
-51,
50,
-1,
-24,
-3,
7,
-61,
14,
-24,
-24,
0,
-2,
-34,
-10,
-20,
6,
-53,
-47,
0,
-40,
-23,
-36,
12,
43,
15,
37,
16,
-40,
-26,
14,
8,
26,
-26,
-9,
48,
7,
61,
5,
-14,
-6,
-8,
-13,
36,
1,
-2,
-28,
-11,
-13,
-34,
-11,
28,
-1,
-3,
-3,
-4,
-10,
2,
13,
31,
20,
5,
26,
-55,
-3,
-33,
8,
-47,
64,
-12,
63,
-62,
-16,
36,
37,
-27,
25,
-19,
0,
5,
16,
34,
-16,
-19,
20,
10,
-20,
-4,
25,
9,
40,
7,
14,
-56,
21,
-19,
4,
32,
-6,
3,
-26,
-19,
-10,
77,
-36,
16,
21,
-11,
0,
-31,
-15,
23,
43,
-36,
-25,
-21,
-31,
-23,
-7,
-17,
43,
6,
6,
30,
9,
26,
14,
-23,
-33,
-5,
4,
31,
-44,
42,
27,
-1,
-13,
3,
39,
1,
27,
33,
2,
-14,
36,
-15,
40,
-44,
53,
-35,
19,
-12,
-22,
-27,
24,
24,
-26,
14,
-43,
19,
-39,
-4,
-11,
-2,
44,
-34,
15,
35,
5,
-19,
-20,
18,
-48,
1,
-1,
0,
1,
33,
-2,
-39,
-44,
9,
40,
25,
6,
-3,
26,
39,
-8,
48,
-55,
6,
66,
-73,
16,
-9,
27,
-44,
-12,
22,
-4,
-18,
-20,
2,
-18,
-22,
46,
-5,
5,
-61,
-22,
0,
7,
-2,
9,
20,
30,
35,
-29,
51,
32,
-92,
-66,
36,
-24,
-19,
15,
35,
-97,
39,
-3,
65,
-45,
57,
-14,
-58,
1,
33,
-45,
10,
4,
-16,
19,
17,
-5,
12,
-29,
5,
18,
-30,
97,
33,
-6,
-19
] |
Levin, J.
These cases concern contractual limitations on the coverage provided by uninsured motorist endorsements to automobile insurance policies:
i) the "owned vehicle exclusion” which denies coverage under an uninsured motorist endorsement when the insured or relatives in his household are injured while occupying a motor vehicle owned by any of them if it is not the vehicle to which the uninsured motorist endorsement specifically applies;
ii) "limits of liability” and "other insurance” clauses which prevent recovery beyond the limits of a single uninsured motorist endorsement notwithstanding that the injured person is insured under multiple uninsured motorist endorsements or a single endorsement covering more than one vehicle;
iii) a set-off clause requiring deduction of no- fault benefits paid or payable from amounts otherwise payable under an uninsured motorist endorsement.
In Blakeslee v Farm Bureau Mutual Ins Co of Michigan and Boettner v State Farm Mutual Ins Co this Court allowed recovery notwithstanding contractual limitations on uninsured motorist coverage. Those decisions were based on the Court’s perception of the legislative policy reflected in the Motor Vehicle Accident Claims Act and the uninsured motorist amendment to the Insurance Code.
We conclude that the rationale of those decisions governs the disposition of the questions raised in Bradley, Hickman, Ellis and Ruesing concerning the validity of the owned vehicle exclusion and in Fletcher concerning the limits of liability clause:
i) An owned vehicle exclusion which denies uninsured motorist coverage to a liability insured when his injuries are sustained in a family-owned vehicle which is not a vehicle for which the endorsement was purchased is violative of the legislative policy.
ii) Where premiums have been paid for multiple statutorily mandated uninsured motorist endorsements, an injured person may stack benefits and recover under each endorsement in an aggregate amount not greater than the actual loss.
Bradley, Hickman, Ellis, Ruesing and Fletcher arose before the amendments of the Motor Vehicle Accident Claims Act restricting the liability of the fund established under that act to persons not owning a motor vehicle for which security must be maintained under the no-fault act and to accidents occurring before January 2, 1976 and the repeal of the uninsured motorist amendment to the Insurance Code. Davidson, Williams and Schigur concern coverage issued and accidents occurring after restriction of the fund’s liability and repeal of the amendment.
We conclude that in policies effective on or after October 1, 1973, the date of repeal of the uninsured motorist amendment, "other insurance” clauses which provide that damages shall be deemed not to exceed the policy limits and that the uninsured motorist coverage of the policy shall apply pro rata where there is other similar insurance available are enforceable and benefits under such policies may not be stacked.
We further conclude in Williams and Schigur that it would defeat the reasonable expectations of the insured to permit the insurer to deduct no-fault benefits from the amount otherwise recoverable for non-economic and excess economic loss under uninsured motorist coverage, and that the set-off is, to that extent, unenforceable.
I
The uninsured motorist endorsement was developed and the policy language defining its scope was drafted in the 1950’s by the insurance industry and have become fairly standard. By 1968, legislation in 46 states required that uninsured motorist coverage be offered with all automobile liability insurance policies issued within the state. Most of the statutes, including Michigan’s, contain similar or identical language, requiring that the coverage be provided unless expressly rejected in writing, without defining the scope of the coverage or permissible exclusions and limitations.
Subject to a variety of exclusions and limitations, the standard endorsement provides "family protection” for the insured and family members against loss caused by an uninsured motorist without regard to whether the covered vehicle is involved in the accident. The coverage is portable: The insured and family members are covered not only when occupying the covered vehicle, but also when in another automobile, and when on foot, on a bicycle or even sitting on a porch.
The exclusions and limitations of the standard endorsement have been the subject of much litigation and comment. The two most often encountered, the "owned vehicle” exclusion and "other insurance” clause, have been dealt with by courts across the country and held invalid by a clear majority as contrary to the public policy of the uninsured motorist statutes.
This Court invalidated an other insurance limitation in Blakeslee, an owned vehicle exclusion in Boettner, and in Pappas v Central National Ins Group of Omaha, a limitation denying recovery to a non-family member who was using the covered vehicle.
A
In 1965 the Legislature established the Motor Vehicle Accident Claims Fund, liable only when the damages caused by an uninsured motorist exceeded amounts payable by an insurer, and amended the Insurance Code to provide that no automobile liability policy could be issued without uninsured motorist coverage "for the protection of persons insured thereunder,” unless such coverage was rejected. In Blakeslee and Boettner this Court read the enactments together and concluded that the legislative purpose in amending the Insurance Code was to protect the accident claims fund by promoting the purchase of uninsured motorist coverage. That perception of the legislative purpose also underlies the rationale of Pappas.
In Blakeslee the decedent was a guest passenger. His estate collected under the driver’s uninsured motorist endorsement and also sought to collect under the endorsement to the decedent’s own automobile liability policy. This Court held that a clause providing that the amount payable under the uninsured motorist endorsement would be reduced by the amount of other similar insurance available to the insured on account of the same accident was violative of the uninsured motorist amendment:
"The language of the statute is plain, unambiguous and mandatory.
"It unequivocally requires that '[n]o * * * policy * * * be delivered * * * unless [uninsured motorist] coverage is provided therein.’ Stated in the affirmative, every policy must have this coverage.
"Given this clear purpose [to reduce claims against the fund] and the mandatory language of the statute, such language must be read into those provisions of a policy of insurance that differ or vary from the statutory language.
* * *
"[T]he insured may pyramid recovery until his judicially determined loss has been satisfied.” (Emphasis in original.)
In Boettner a couple owned two automobiles covered by separate policies with uninsured motorist endorsements, each containing "other insurance” and "owned vehicle” exclusion clauses. This Court permitted their estates to recover under both policies, holding the other insurance clause inapplicable and, following the Blakeslee rationale, voiding the owned vehicle exclusion: coverage is not limited to an injury suffered by the insured while occupying that motor vehicle. ” (Emphasis supplied.)
"Should the Blakeslee rationale be extended to void 'exclusions’ clauses also? We hold the answer is yes.
"The purpose of the 'other insurance’ clause and the 'exclusions’ clause is the same. That is the clauses are an attempted means to avoid the statutory obligation of providing uninsured motorist coverage. * * * The statute commands coverage for all motor vehicles and such
In Pappas the plaintiff was a guest passenger on a motorcycle. The uninsured motorist endorsement covered the owner and his family but not other riders. Under the public liability portion of the policy, however, persons "using” the motorcycle were covered. This Court read the liability provision of the policy as applying to the guest passenger as a "user”, declared that she was "insured thereunder” within the meaning of the uninsured motorist amendment, and held that the uninsured motorist endorsement could be no less broad than the liability coverage because the statute requires that all persons insured for liability be protected by the uninsured motorist endorsement:
"Central [the insurer] contends that the Legislature expressed an intention to allow the insurer and the insured freedom to define contractually the class of persons to whom protection would be extended under the uninsured motorist clause of an automobile liability policy issued in this state.
"We disagree.
"The principal purpose of [the amendment to the Insurance Code] was to reduce claims against the Motor Vehicle Accident Claims Fund. Central’s contention that the Legislature intended that the insurer and the insured should have the ability to narrowly define the class of persons protected is inconsistent with that purpose, as well as with the plain meaning of the statute. Central’s argument that a decision in its favor will not defeat the Legislature’s intent because Pappas may recover against another insurer misses the mark. The legislative policy expressed in the statute is not affected by circumstances peculiar to the situation of a particular plaintiff.
"Where a policy of insurance does not offer statutorily required uninsured motorist coverage, conforming language must be read into the terms of the policy.”
B. Bradley, Hickman and Ellis
We agree with the Court of Appeals in Bradley, Hickman, and Ellis that Blakeslee and Boettner are controlling and that the owned vehicle exclusion is unenforceable.
Bradley was injured while riding a motorcycle covered by an uninsured motorist endorsement; he collected from his insurer. He also owned an automobile insured by Mid-Century under a policy with an uninsured motorist endorsement, and resided with his father who owned a vehicle insured by Citizens, also under a policy with an uninsured motorist endorsement. He seeks recovery under both endorsements. His damages exceed the combined policy limits.
Hickman was injured while riding his motorcycle which had no uninsured motorist coverage. He sought to recover under the uninsured motorist endorsement to . his wife’s automobile liability policy.
Craig Hull died as a result of injuries sustained while riding his motorcycle which had no uninsured motorist coverage. He lived with his stepfa ther, Wilbert Ellis, who owned an automobile with uninsured motorist coverage. As administrator of Hull’s estate, Ellis sought to recover under this coverage.
The thrust of the owned vehicle exclusion (see fn 15) is that the owner of a vehicle or a member of his family occupying the vehicle when it is involved in an accident with an uninsured motorist can only recover under an uninsured motorist endorsement specifically covering that vehicle and may not have resort to the uninsured motorist coverage of a policy issued for a different family vehicle. Since Bradley, Hickman and Hull were injured while riding their own motorcycles — a family vehicle — the owned vehicle exclusion of the uninsured motorist endorsements covering other family vehicles would preclude recovery, although the endorsements would have provided coverage were they injured while riding a bicycle, as a pedestrian, or while occupying a vehicle not owned by them or a family member.
Typically, family members resident in a household will be included among those insured for liability under an automobile policy. Bradley, Hickman and Hull were persons insured for public liability by the policies under which they seek to recover. Bradley, Hickman and Hull’s estate claim that therefore they were "persons insured thereunder” within the meaning of the uninsured motorist amendment. Accordingly, they were entitled to uninsured motorist protection despite the owned vehicle exclusion.
The insurers assert that Bradley, Hickman and Hull were not "persons insured thereunder” for liability within the meaning of the statute because the statute means insured for liability in the circumstances of the accident; at the time of the accident the liability coverage of the policies under which they seek to recover was not operative because they were not then using the vehicle covered by that policy. The liability portion of the policies provides that a person is insured for liability "with respect to the owned automobile” or "described automobile”. Since they were not using that vehicle and were therefore not covered for liability by the policy issued for that vehicle at the time of the accident, the insurers were free to enforce the exclusion unconstrained by the statutory mandate which requires protection only for persons insured for liability by the policy at the time of the accident.
The insurers contend that since a family member injured while riding in one family vehicle would not, while occupying that vehicle, be insured for liability under the policy insuring another family vehicle, the statute does not require and the policy explicitly precludes uninsured motorist protection under the policy insuring the other vehicle. It is not violative of the statute to fail to provide a liability insured with uninsured motorist protection under a policy insuring a family owned vehicle not involved in the accident.
Several panels of the Court of Appeals so held in cases decided before its decisions in these cases. The insurers stress that in Pappas the injured person was held to be insured for liability at the time of the accident by the policy endorsed with the uninsured motorist coverage under which she was permitted to recover.
The instant cases involve the same exclusion, the owned vehicle exclusion, invalidated in Boettner. In Boettner, a couple owned two automobiles covered by separate policies and were killed while driving together in one of them. The liability section of the policy covering the non-involved automobile would not have been operative at the time of the accident, and, accordingly, the couple was not at that time insured for liability under the policy covering that vehicle. Nevertheless, their estates were held entitled to recover under the uninsured motorist endorsement covering the non-involved vehicle.
The insurers argue that Boettner applies only to those cases where the person seeking to recover is the named insured in the policy; while it might be inconsistent with the statute to fail to provide the named insured with portable uninsured motorist coverage, other liability insureds may be denied such coverage. In Pappas, however, the plaintiff, a guest passenger, was not the named insured, did not pay the premium and, indeed, was not even a household member. Nevertheless, she was held entitled, because of the statute, to the uninsured motorist protection of the endorsement to the liability policy covering the vehicle.
The rationale of Blakeslee, Boettner and Pappas does not permit the distinctions advanced by the insurers. The legislative objective in enacting the uninsured motorist amendment was that all persons be protected against the negligent uninsured motorist. The statute mandates coverage, unless rejected, for all persons purchasing automobile liability insurance. Because the industry had generally treated insureds and their relatives living in the same household as a unit, they would all be covered by such endorsements. The accident claims fund would provide protection to those not so covered. In this way, the populace as a whole would be covered and the fiscal integrity of the fund would be protected.
The "with respect to the owned/described automobile” limitations on the liability coverage of the policies by their terms apply not only to relatives who may be insured for liability under the policy, but also to the named insured. If insurers can, by such limitations, narrow the scope of their statutory obligation to provide uninsured motorist coverage, it would mean that no one must have portable uninsured motorist coverage. But, as Boettner held, the legislative purpose of protecting the accident claims fund requires that the coverage be portable so that it protects persons insured for liability not only when occupying the insured vehicle, but also when in other vehicles, when on foot or on a bicycle, and in all other circumstances.
The insurers do not question that the Legislature intended that the coverage be portable and that the insured and family members would be covered if injured while occupying a vehicle not owned by a family member, or when a pedestrian, bicyclist, or under other circumstances. However, if we were to read the statute as allowing an owned vehicle exclusion, we see no reason why uninsured motorist coverage could not be further limited to losses incurred in the vehicle to which the liability coverage specifically pertains, thus eliminating all portability. The result would be that when the loss is not incurred in respect to the specific vehicle for which the liability/uninsured motorist coverage is purchased, the insured as well as family members "insured thereunder” would have immediate recourse to the accident claims fund.
The obligation to provide uninsured motorist coverage was tied to liability coverage to facilitate its purchase and to determine the persons who must be provided with uninsured motorist coverage, and not to provide insurers a means of limiting the coverage to situations in which liability coverage would be in effect. The legislative declaration that no policy shall be delivered unless coverage is provided for the protection of persons "insured thereunder” leaves no room for contractual limitations modifying the generality of "insured thereunder” or exclusions based on the circumstances of the accident. The words "insured thereunder” refer to persons primarily insured for public liability by the policy and not to the circumstances or times that the public liability coverage is actually operative. The same principles apply whether the injured person is the named insured or a relative insured for liability. The amendment contemplated that all such persons would have fully portable coverage. Additionally, it would not be consistent with the goal of protecting the fund to exclude from the portability of uninsured motorist coverage injuries incurred in a family vehicle to which the endorsement does not specifically apply.
The insurers seek also to limit the holding in Boettner to the case where there is an uninsured motorist endorsement in effect with respect to the family vehicle in which the insured is injured. In Blakeslee, Boettner and Pappas the policy insuring the vehicle in which injury occurred had an uninsured motorist endorsement. While Bradley’s motorcycle policy had an uninsured motorist endorsement, Hickman and Hull did not have such cover age. The insurers in Hickman and Ellis would have us limit this Court’s earlier decisions by holding that the owned vehicle exclusion is enforceable if the family vehicle involved in the accident is not covered by an uninsured motorist endorsement. They further argue that it would be unjust to require an insurer who has received only one premium to provide coverage for any number of owned vehicles.
Neither Boettner nor our disposition in these cases extends coverage to any number of motor vehicles; the only vehicle covered is the vehicle named in the policy. When the insured purchases uninsured motorist coverage for a vehicle, he insures his family and other occupants of that vehicle against negligent uninsured motorists. His family is insured under all circumstances and guests are covered while occupying the vehicle. Additional vehicles are not covered vehicles unless a premium is paid for them. Thus, an unrelated third party riding in the covered vehicle would be insured against uninsured motorists, but when riding in a different family vehicle he would not be so insured, unless an uninsured motorist premium had also been paid with respect to that vehicle.
The status of the named insured and his relatives as persons insured against negligent uninsured motorists is not altered by there being other family vehicles having no uninsured motorist coverage. They acquire their insured status when coverage is purchased for any household vehicle. Thereafter, they are insured no matter where they are injured. They are insured when injured in an owned vehicle named in the policy, in an owned vehicle not named in the policy, in an unowned vehicle, on a motorcycle, on a bicycle, whether afoot or on horseback or even on a pogo stick.
We do not suggest that a person insured for liability under a policy providing uninsured motorist coverage for one vehicle has additional rights to coverage because he was riding in another owned vehicle at the time of the accident. A person so insured who is injured in an owned vehicle not named in the policy is required to be covered because he is an insured within the intendment of the amendment and the amendment has been held to require that all insureds have fully portable uninsured motorist coverage.
We agree with the analysis of the Court of Appeals:
"In the instant case [Bradley] and its two companion cases, Ellis v State Farm Ins Co, [supra], and Hickman v Community Service Ins Co, [supra], the plaintiff is an 'insured’ under the liability section definition of the insurance policy in question. Once having been afforded this status, and so long as it exists, MCL 500.3010; MSA 24.13010 [the amendment to the Insurance Code] requires that an offer of uninsured motorist insurance must be extended, for protection from injuries caused by uninsured motorists wherever the 'insured’ happens to be and whatever the 'insured’ happens to be doing at the time of the injury.”
We conclude that once uninsured motorist coverage is purchased, the insured and his relatives insured for liability have uninsured motorist protection under all circumstances. Uninsured motorist coverage, like no-fault coverage, is personal and portable.
C. Ruesing
In Ruesing, which also concerns the owned vehicle exclusion, the Court of Appeals followed decisions of that Court (see fn 30) distinguishing Blakeslee and Boettner and concluded that uninsured motorist coverage was not mandatory because the decedent was not insured for liability at the time of the accident; as set forth in Part B, supra, we disagree with that analysis. Nevertheless, we affirm.
Francis Ruesing, Jr., took his father’s automobile without permission and allowed a friend to drive. He was killed in an accident, caused by the friend’s negligence, involving another vehicle. Ruesing, Sr., administrator of his son’s estate, could not recover for the friend’s negligence under the liability portion of the policy because it did not provide coverage when the vehicle was being driven without his permission. He sought to recover under the uninsured motorist coverage.
While Ruesing, Jr., was included as an insured for uninsured motorist coverage, the owned vehicle exclusion by its terms precludes recovery because, although the vehicle was specifically covered by the endorsement, it was deemed to be an owned vehicle "other than an insured automobile” because it was being driven without permission.
Ruesing, Jr., was not insured for liability under the terms of the policy; the primary coverage extended only to the named insured. Because Ruesing, Jr., was not a person insured for liability, the contractual limitation on the portability of his uninsured motorist coverage under the policy does not violate the Blakeslee, Boettner and Pappas rationale.
Ruesing, Sr., advances two reasons why the limitation on portability is violative of the uninsured motorist amendment, notwithstanding that Ruesing, Jr., was not a liability insured:
i) Were the facts altered slightly the exclusion would lead to unacceptable results. If Ruesing, Sr.’s vehicle were stolen and he was run over by the thief, the exclusion would bar his recovery. If that were the case, we would no doubt void the exclusion since Ruesing, Sr., is a liability insured and within the intendment of the amendment. Ruesing, Sr., argues "[i]f the exclusion denies or would deny benefits to an insured under the liability provision of the policy, then the exclusion is void. * * * Nothing in the law provides that the exclusion is void in some circumstances but not others.”
Ruesing, Jr., in contrast with Bradley, Hickman and Hull was not a primary insured under the policy; he was not insured for liability unless, under a separate provision, he was using the vehicle with the owner’s permission. Since he was not a primary insured, the circumstances of his use could properly affect the scope of the liability coverage and the corresponding mandatory uninsured motorist protection.
Boettner’s conclusion that an owned vehicle exclusion is void as to "persons insured thereunder” does not mean that such a clause is a nullity and cannot be applied to persons not so insured. While in Pappas we said "[w]here a policy of insurance does not offer statutorily required uninsured motorist coverage, conforming language must be read into the terms of the policy”, we are not here presented with a case where statutorily required coverage is denied. If the exclusion were used to deny coverage to a liability insured — Ruesing, Sr., or one using the vehicle with his permission — we would reform the insurance policy.
ii) Ruesing, Sr., further argues that we are presented with such a case since he would be entitled, as his son’s heir-at-law, to maintain a wrongful death action for the friend’s negligence. He is thus a "person insured thereunder who [is] legally entitled to recover damages from * * * [an] operator of [an] uninsured motor vehicle, * * * because of * * * death, resulting therefrom.”
Were we to accept this argument, we would attribute to the Legislature an intent to mandate coverage in all cases where a liability insured has a relative whose death was caused by a negligent uninsured motorist and whose property, had he died intestate, would devolve in any part upon the insured, although the relative did not reside in the household of the insured and may have been a distant relation living in a different state.
We think that the Legislature meant that uninsured motorist coverage must be provided to protect those "insured thereunder” when they themselves suffer "bodily injury, sickness or disease, including death, resulting therefrom” and not to protect them when loss is incurred as a result of personal injury sustained by others.
No other reasons for invalidating the exclusion’s operation with respect to one insured for uninsured motorist coverage, but not for liability, were argued to us in this case and therefore we conclude that because Ruesing, Jr., was not insured for liability under the policy, the limitation on the portability of uninsured motorist coverage as applied to him was not violative of the uninsured motorist amendment.
D. Fletcher
In Blakeslee this Court invalidated an "other insurance” clause. The insured was permitted to stack benefits under different policies — inter-policy stacking — to recover the amount of her actual loss. The issue here is whether the rationale of Blakeslee applies when an insured seeks to stack coverages on two vehicles insured under the same policy and the insurer invokes a limits of liability clause which has much the same effect as an other insurance clause.
The Fletchers had two automobiles covered by a single policy written by Aetna. Their son, Scott, was injured while a passenger on his brother’s motorcycle which collided with an automobile being negligently driven by an uninsured motorist. The Fletchers sought to recover a total of $40,000, $20,000 under the endorsement for each automobile. Aetna admitted liability of only $20,000, relying on a limits of liability clause in the uninsured motorist endorsement:
"Regardless of the number of * * * automobiles * * * to which this policy applies,
"[T]he limit for uninsured motorist coverage stated in the declaration as applicable to 'each accident’ is the total limit of Aetna Casualty’s liability for all damages because of bodily injury sustained by one or more persons as the result of any one accident.”
The question is whether intra-policy stacking is sufficiently different from intpr-policy stacking to justify different treatment under the statute.
The insurer argues that when there are two different policies, by reason of the other insurance clause one of the policies does not provide the required coverage when the accident occurs although it appears to have been issued in compli anee with the statute because when issued it contained the required endorsement. In such a case (Blakeslee) the Court voids the clause to make the policy conform to the statute. In the instant case, however, there is only one policy and that policy conforms to the statute because the injured person is able to collect for injuries inflicted by an uninsured motorist up to the policy limit — such a policy is not a "motor vehicle liability policy” that failed to provide coverage for persons insured thereunder. We reject this distinction as formalistic.
The effect of the "limits of liability” clause is the same as the "other insurance” clause. The insured pays two premiums, secures statutory coverage for two vehicles, but would be permitted to collect under only one coverage. We agree with the Court of Appeals that the Blakeslee rationale that the Legislature intended to protect against the negligence of uninsured motorists while maintaining the fiscal integrity of the Motor Vehicle Accident Claims Fund applies and that no distinction can be made on the basis that family-owned vehicles are insured under a single rather than multiple policies, and with its adoption of the analysis of an earlier panel:
"While plaintiff subsumed all of its business with defendant’s parents under one code number, we believe that this did not alter the fundamental character of its dealings with them. Although there was one policy number issued by plaintiff insurance company, two premiums were charged and paid which covered two cars. The question thus presented is whether the Michigan Supreme Court intended the question of multiple coverage to be dependent on the number of insurance policies issued by the insurer or by the number of premiums paid by the insured. To hold that the answer depends on the question of how many policy numbers were issued would be illogical since the insurance companies would merely combine several separate policies issued to the same insured under one policy. Plaintiff insured the parents’ two cars and required two separate premiums to be paid. From the insured’s point of view, this relationship is the same as having two policies, regardless of how the insurer subsequently handles those paid premiums for its administrative purposes.”
This Court said in Blakeslee:
"It would be unconscionable to permit an insurance company offering statutorily required coverage to collect premiums for it with one hand and allow it to take the coverage away with the other by using a self-devised 'other insurance’ limitation.”
We conclude that an insurer may not collect an uninsured motorist premium for statutorily required uninsured motorist coverage for more than one vehicle and yet limit its liability to that which would arise if there were only one vehicle and one premium paid. A different result is not justified where the vehicles are insured and the premiums paid under one policy rather than multiple policies.
II. Davidson
The accidents in Bradley, Hickman, Ellis (Part B, supra), Ruesing (Part C, supra) and Fletcher (Part D, supra), all occurred before the repeal of the uninsured motorist amendment to the Insurance Code. In Davidson the insured motorist coverage was issued and the accident occurred after repeal of the amendment.
Gary Davidson was injured when his motorcycle was struck by an uninsured motorist. The motorcycle and an automobile owned by Davidson were insured by State Farm Mutual under separate policies, each having an uninsured motorist endorsement. Davidson collected under the uninsured motorist endorsement to the motorcycle policy and sought also to collect under the uninsured motorist endorsement to the automobile no-fault policy.
State Farm denied liability and sought a declaratory judgment. It relied alternatively on "limits of liability”, "other insurance”, and "owned vehicle exclusion” clauses contained in the policy covering the automobile. Its motion for summary judgment was granted.
The Court of Appeals affirmed, ruling the owned vehicle exclusion applicable and enforceable:
"Prior to the repeal of the mandatory minimum uninsured motorist statute, MCL 500.3010; MSA 24.13010, the above-cited exclusions clause would be void. Boettner v State Farm Mutual Insurance Co, 388 Mich 482; 201 NW2d 795 (1972). That statute, however, was repealed with the enactment of the no-fault insurance act, MCL 500.3101 et seq.; MSA 24.13101 et seq. The basis for finding such exclusions clauses invalid having been eliminated, and finding on the present record no basis for upsetting the agreement entered into by the parties, we affirm the trial court.”
State Farm advances the rationale of the Court of Appeals and directs our attention to Horr v Detroit Automobile Inter-Ins Exchange, where this Court, before Blakeslee and Boettner, enforced an "other insurance” clause to prevent stacking of uninsured motorist benefits applicable to an accident occurring in 1963, two years before the uninsured motorist amendment to the Insurance Code:
"We find no statutory or decisional law of this state applicable in 1963 to the insurance clauses requiring our interpretation and the parties assert there were none. Consequently, our task is limited to determining the intent of the contracting parties.”
The Court construed the language "damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other [available] insurance”, to mean that the maximum coverage of the policy combined with other available insurance was $10,000 and that the two policies involved, which both contained this clause, did not stack and the companies were liable on a pro rata basis, each contributing $5,-000.
State Farm asks us to return to the pre-Blakes lee/Boettner position enunciated in Horr, and enforce the literal terms of the insurance contract.
Davidson counters that public policy and unconscionability challenges were not addressed in Horr and are not foreclosed by repeal of the uninsured motorist amendment. He argues that we should "ascertain that meaning of the contract which the insured would reasonably expect”, that the "other insurance” and "owned vehicle exclusion” clauses are adhesion provisions and should not be enforced, and that the uninsured motorist amendment was repealed not because the Legislature changed the public policy announced in Boettner/ Blakeslee but because the no-fault act made insurance compulsory and the Legislature assumed that there would be no uninsured motorists and, therefore, no need for uninsured motorist insurance.
Davidson contends that neither the owned vehicle exclusion nor the other insurance clause should be enforced. State Farm contends that the other insurance clause is inapplicable because the owned vehicle exclusion precludes recovery under the endorsement to the automobile policy and consequently there is no "other insurance” available.
We hold that in policies effective on or after October 1, 1973, the date of repeal of the uninsured motorist amendment, other insurance clauses which provide that damages shall be deemed not to exceed the policy limits and that the uninsured motorist coverage of the policy shall apply pro rata where there is other similar insurance available are enforceable and benefits under such policies may not be stacked.
We need not decide whether owned vehicle exclusions to otherwise portable coverage defeat the reasonable expectations of insureds because if the exclusion were held invalid and the endorsement to the automobile policy construed to provide coverage, Davidson would, under the other insurance clause, have other insurance available and be deemed to have suffered damages not in excess of the higher of the limits of liability of the two policies. Both policies provide $20,000 coverage; Davidson collected $20,000 under the endorsement to the motorcycle policy and so would not be entitled to further benefits under the endorsement to the automobile policy.
In a policy with an other insurance clause, the insurer makes no promise to provide coverage in the stated amounts without regard to the insured’s having available from other sources similar insurance benefits or protection. The insurer promises only that the insured will have insurance coverage in the stated policy limits from some source.
We turn to the question whether policies which provide such coverage are against public policy or unconscionable or defeat reasonable expectations of the insured.
A
In Blakeslee, this Court held an other insurance clause invalid as contrary to the public policy reflected in the uninsured motorist amendment and the Motor Vehicle Accident Claims Act. The uninsured motorist amendment was repealed and the liability of the fund restricted before State Farm issued the policy and endorsement containing the clauses sought to be invalidated here.
Davidson argues that the legislative decision to repeal the uninsured motorist amendment was based on an erroneous assumption that the uninsured motorist problem would be resolved by the compulsory insurance provision of the no-fault act. It continues to be the policy of this state that persons who suffer loss due to automobile accidents have a source and means of recovery.
State Farm counters that the Legislature did not overlook the risk of uninsured motorists when drafting the no-fault legislation and repealing the uninsured motorist amendment. Criminal penalties and other sanctions are imposed on those who fail to maintain security and actions to recover economic damages from such persons are permitted. We are satisfied, however, that the Legislature may have thought that these sanctions would be sufficient to eliminate uninsured motorists and therefore State Farm’s argument does not fully respond to Davidson’s contention.
When Blakeslee and Boettner were decided we perceived a legislative statement of public policy. Uninsured motorist coverage was required to be offered with each and every liability policy and, when accepted, it was to provide coverage in statutory amounts and to all liability insureds. Also, the fund was potentially liable for all amounts not recovered from insurers. Guided by the legislative policy reflected in the uninsured motorist amendment and the Motor Vehicle Accident Claims Act, this Court voided unambiguous clauses of insurance contracts and held the insurers liable under both policies in each case.
Blakeslee and Boettner were decided October 31, 1972. On December 13, 1972 the House Committee on Insurance reported on SB 1480, recommending that the bill be passed after the adoption of certain amendments. The bill, as previously passed by the Senate, consisted of two sections on mortgage guarantee insurance. The House Committee on Insurance recommended amendments which would change the assigned claims provisions of the adopted, but not yet effective, no-fault act and repeal the uninsured motorist amendment to the Insurance Code. The amendments were adopted, and the bill passed and reported back to the Senate which also passed the bill as amended. SB 1480 was approved as 1972 PA 345 on January 9, 1973.
Davidson correctly states that the no-fault act and the repeal of the uninsured motorist amendment became effective the same day. We are not convinced, however, that the Legislature repealed the uninsured motorist amendment simply because it believed that there would be no uninsured motorists after the effective date of no-fault. Rather, we are persuaded, in light of the Legislature’s providing for the repeal soon after our decisions in Blakeslee and Boettner and so providing in a bill which dealt with the assigned claims facility, that the uninsured motorist amendment was repealed because the Legislature concluded that the policy of compensating accident victims no longer demanded that uninsured motorist endorsements provide the coverage required by Blakeslee and Boettner.
The concerns which led to enactment of the uninsured motorist amendment and the Motor Vehicle Accident Claims Act are no longer as pressing. This is not due to any elimination of the uninsured motorist, but, rather, to the no-fault act’s providing other forms of protection against his negligence. Before no-fault, an accident victim seeking compensation could proceed only in tort. If the negligent driver was uninsured the victim would ordinarily receive no compensation for his injuries other than that recovered from the Motor Vehicle Accident Claims Fund. Under the no-fault act, an accident victim proceeds against his own insurer. If he is not insured, he claims benefits from the insurer of the vehicle or driver involved in the accident. If the owner and driver are uninsured motorists, he proceeds against the assigned claims facility which provides no-fault benefits where there is no insurance applicable to the accident. Thus, victims of uninsured motorists now have insurance compensation without regard to whether there is uninsured motorist coverage.
Also, before no-fault, uninsured motorist coverage protected the fiscal integrity of the fund. It cannot similarly protect the assigned claims facility which assigns to insurers on a rotating basis no-fault claims where there is no coverage otherwise applicable. In the no-fault system uninsured motorist coverage is a substitute for residual liability insurance. It provides some compensation in cases where the victim has suffered severe (above-the-threshold) injuries and there is no residual liability coverage to provide compensation for pain and suffering and excess economic loss. (See Part III, infra.) In contrast, the assigned claims facility provides PIP benefits for medical expenses and work loss. By statute, the assigned claims facility is liable for PIP benefits when there is no PIP insurance otherwise applicable; it is irrelevant whether the injured person has uninsured motorist coverage available to him. Consequently, judicial extension of uninsured motorist coverage would have no financial effect on the assigned claims facility.
We are persuaded that the Legislature repealed the uninsured motorist amendment not because it assumed there would be no uninsured motorists, but because after the passage of no-fault a person injured by an uninsured motorist had a source of recovery for all damages except pain and suffering and excess economic loss.
The uninsured motorist amendment and the Motor Vehicle Accident Claims Act were enacted to assure that persons injured by negligent uninsured motorists would have some source of recovery. The no-fault act, which assures that all persons injured in motor vehicle accidents receive a minimum level of compensation, fulfills that apparent legislative objective.
True, no-fault benefits may be insufficient to fully compensate one injured by a negligent uninsured motorist. But no accident victim is permitted, under the no-fault act, to recover for below-threshold pain and suffering, and one’s ability to recover where a tort action is permitted is largely dependent on the fortuitous circumstances of the tortfeasor’s collectibility and insurance coverage. Because uninsured motorist coverage could, under the uninsured motorist amendment, be refused by an insured, only the fund guaranteed a source of recovery for tort damage and the limit of its liability was $20,000. The Legislature apparently saw the substitution of a right to PIP benefits— unlimited medical expense and work loss and survivor’s loss in amounts and for times limited by law — as an appropriate substitute for whatever additional recoveries might result from continuing mandatory uninsured motorist coverage and the possible $20,000 recovery from the fund. We are persuaded that there is no legislative policy requiring us to hold other insurance clauses unenforceable.
B
Davidson argues that the other insurance clause is "a standard adhesion provision employed * * * to avoid the obligation of providing uninsured motorist coverage notwithstanding [the insurer’s] collection of premiums”. He directs our attention to Blakeslee and Boettner where this Court said "[i]t would be unconscionable to permit an insurance company offering statutorily required coverage to collect premiums for it with one hand and allow it to take the coverage away with the other by using a self-devised * * * limitation”, and cases from other jurisdictions where the insured was permitted to recover under more than one policy to avoid allowing a windfall to the insurer who charges multiple premiums.
While there was unconscionability language in Blakeslee and Boettner, those decisions rested on the legislative policy of the uninsured motorist amendment and the Motor Vehicle Accident Claims Act. As the quoted language indicates, the self-devised limitations were unconscionable because the insured had paid for statutorily required coverage and the limitations encroached on the scope and extent of that coverage. Blakeslee and Boettner did not hold that other insurance clauses are unconscionable where the offer, scope and extent of coverage is not mandated by statute.
Davidson argues that it is unconscionable to require an insured to pay two premiums for two coverages and be limited to recovery under one policy.
The argument has a mathematical nicety, but it assumes a windfall to the insurer. Insurance premiums are not necessarily computed to accurately reflect risk, and, indeed, this Court’s decision in Shavers holding the compulsory feature of the no-fault act unconstitutional indicates the Court’s recognition of this reality.
The risk that a member of a family with three drivers and ten youngsters will sustain injury due to an uninsured motorist is certainly much greater than the risk that a driver who lives alone will sustain such injury. Yet the cost of uninsured motorist coverage is the same for both. Although the coverage protects persons, the premium is linked to the vehicle. One premium is paid for each vehicle, regardless of the number of persons the insurer undertakes to protect by the endorsement. Nor is the amount of the premium affected by the number of persons insured. Thus, the insurer spreads the cost of uninsured motorist coverage evenly among the vehicles to which there is uninsured motorist coverage applicable, and not according to the risk underwritten by each individual policy.
Because the premium rate is not based on the risk covered, but, rather, reflects an apportionment of the cost of uninsured motorist coverage, an unconscionability argument based upon the insured’s purchasing two coverages and collecting only once must fail.
The insured does not purchase two coverages; he contributes twice to the total cost of uninsured motorist coverage. He is required to do so because he has chosen to have both vehicles participate in the system. He could withhold payment for the second vehicle, and that vehicle would not have uninsured motorist coverage. Occupants of that vehicle who do not have other uninsured motorist coverage applicable to them would have no right to compensation for injuries above the threshold inflicted by a negligent uninsured motorist. Or, he may choose to provide coverage for such persons. To do so, he must place the vehicle in the system, and the cost to him of the coverage is one car’s pro rata share of the cost of uninsured motorist coverage.
With each premium the insured is promised that for each accident involving a negligent uninsured motorist he will have available to him $20,000/ 40,000 coverage from some source. The premium has no relation to the risk that he or a family member will be involved in such an accident. Rather, it is a standardized charge for participation in the uninsured motorist coverage system. Since there is presently no requirement that the premium charged for voluntarily provided and purchased automobile insurance accurately reflect the risk covered by such insurance, and there is no evidence that the insurer reaps a windfall, we cannot say that other insurance clauses are unconscionable because they limit the coverage applicable to a single accident to that provided by a single policy.
C
Davidson argues that the other insurance clause defeats reasonable expectations of insureds. We are not persuaded that one injured by a negligent uninsured motorist expects to have recourse to more than one policy..
Other insurance and prorating clauses have long been with us. It has never been thought that insureds could stack liability insurance. Indeed, such clauses in liability policies are expressly per mitted by statute. One who has purchased two liability policies, each providing $20,000 coverage for each family member driver and all persons driving a designated vehicle with permission, does not expect to have $40,000 liability insurance available to him should he be involved in an accident. To be sure, the first policy covered the insured, his family, and all persons driving the covered vehicle, and the second policy, different only in its designating a different covered vehicle, provided duplicate operator’s coverage for the insured and his family, and the premium charged for the second policy did not reflect that duplication of coverage. Nevertheless, the insured has no expectation of duplicate coverage should he or a family member be involved in an accident.
In this context, uninsured motorist coverage is similar to liability insurance. There is nothing in the nature of uninsured motorist coverage to make expectations of duplicate coverage more likely or reasonable. Uninsured motorist coverage is largely portable, but so is liability coverage. Most liability policies contain both owner’s and operator’s cover age; the operator’s coverage in general follows the insured, no matter whose car he is driving.
It may be argued that expectations of duplicate coverage were engendered by the uninsured motorist amendment and this Court’s decisions in Blakeslee and Boettner — that uninsured motorist coverage took on a definite form and scope and insureds would not expect that coverage to suddenly change.
Whatever expectations in relation to insurance coverage existed before no-fault, we cannot say that those expectations could reasonably survive its effective date. Uninsured motorist coverage itself changed after no-fault, not because the language of the policies changed, but because the no-fault act changed the obligations and liabilities of insurers and drivers. Uninsured motorist coverage is now a substitute for residual liability insurance and is no longer the primary means of recovery for one injured by an uninsured motorist. Because the purpose and function of the endorsement is different from what was provided when Blakeslee and Boettner were decided, we cannot say that an insured has reasonable expectations that the scope of the coverage will remain unchanged.
Further, any argument that insureds, contrary to policy provisions and the treatment generally accorded other types of insurance, developed expectations that stacking would be permitted, because Blakeslee and Boettner permitted such stacking, must also account for the rationale of those cases. Blakeslee and Boettner were based on the uninsured motorist amendment and the Motor Vehicle Accident Claims Act and could therefore not engender reasonable expectations that the Court would invalidate similar insurance clauses in the absence of such legislative provisions.
III. Williams and Schigur
In Williams and Schigur the plaintiffs purchased the standard no-fault policy and also paid an additional premium for uninsured motorist coverage. Both plaintiffs were involved in accidents with negligent uninsured motorists. The insurers paid no-fault benefits as required by the policies. Arbitrators found both plaintiffs entitled to $20,000 uninsured motorist benefits exclusive of economic loss. Relying on a clause in the policy, the companies deducted the amount of the no-fault benefits from the $20,000 payable under the endorsement. The clause reads:
"In consideration of the insurance afforded under section I of this endorsement and the adjustment of applicable rates any amount payable under the protection against uninsured motorists (family protection) coverage shall be reduced by the amount of any personal protection benefits paid or payable under this or any other automobile insurance policy because of bodily injury to an eligible injured person.”
The insurers would have us construe the clause as authorizing the subtraction of amounts paid for no-fault benefits from the policy limits of uninsured motorist protection without regard to the total damages which would be payable by the uninsured motorist or the nature of those damages, economic or non-economic. We decline to do so. The set-off clause, whether regarded as ambiguous or inconsistent with the reasonable expecta tions of the insured, cannot be enforced in the manner the insurers seek.
Under the no-fault motor vehicle liability act an insured may collect from his insurer for work loss and medical expenses without regard to fault. He may sue the negligent tortfeasor for excess economic loss and, if the threshold of injury is met, for non-economic loss. The statute requires that motorists carry residual liability insurance in addition to no-fault insurance to provide a source of recovery to persons severely injured as a result of driver negligence. If a motorist is uninsured he may be sued for all economic loss as well as above-threshold non-economic loss.
A purpose of the no-fault act is to provide a contractual right of action against one’s own insurer for wage loss and medical expenses arising from a motor vehicle accident. A tort action for non-economic and excess economic loss was preserved in cases of severe loss. The Legislature has thus divided an injured person’s loss into two categories — loss for which the no-fault insurer is liable and loss for which the tortfeasor is liable. No-fault insurance provides security for the first type; uninsured motorist coverage, which presupposes that the insured is entitled to recovery under the tort system, provides security for the second type — it is offered to protect against being left with a worthless claim against an uninsured motorist.
One who has purchased uninsured motorist coverage would not expect to collect twice for the same economic loss and the insurer prevents this from happening through the set-off clause. But neither would he expect to have his uninsured motorist coverage reduced or eliminated altogether because of other coverage he has purchased. He would expect, even in the face of the set-off clause, that amounts paid by the insurer for economic loss would not reduce the amount payable for non-economic or excess economic loss.
In providing insurance against the uninsured motorist, the insurer promises the insured that his right of action for greater than threshold injuries will not be worthless if the tortfeasor turns out to be uninsured.
If the tortfeasor is insured or otherwise collectible, the insurer paying no-fault benefits has a statutory right to reimbursement for benefits theretofore paid by it only out of a recovery for those economic losses. So, too, if the insurer contracts to make good for an uninsured motorist —coverage complementary and supplementary to the basic no-fault policy and standing in the place of third-party residual liability insurance — the insurer and the insured should have corresponding rights relative to amounts recoverable under an uninsured motorist endorsement; the insurer should be permitted a set-off only to the extent a recovery duplicates benefits it has already paid.
The insured is entitled to payment under the "all sums recoverable” language of the uninsured motorist endorsement for all economic and above the threshold non-economic loss for which an unin sured motorist would be liable. Pursuant to the set-off clause, that total amount is reduced by the amount of no-fault benefits paid, and the remainder, not exceeding the limits of the endorsement, is the obligation of the insurer to the insured.
In O’Donnell v State Farm Mutual Automobile Ins Co, this Court approved reduction of no-fault benefits by the amount of Social Security survivors’ benefits. In that case both the no-fault benefits and the Social Security benefits set off were statutorily required; the insured’s expenditures for both benefits were involuntary. No issue was there presented of the reasonable expectations of persons who had voluntarily paid an additional premium for coverage beyond that provided under the no-fault act which would be defeated by minimizing that coverage by deducting amounts paid under the required coverage.
Unless voluntarily purchased uninsured motorist coverage provides meaningful protection for severe, above-threshold, injuries without regard to what the insurer is required to pay under the mandatory no-fault coverage, it serves no apparent purpose in the context of a no-fault statute mandating the payment of benefits. If the set-off were enforced in the manner the insurers seek, no-fault benefits paid would reduce uninsured motorist coverage dollar for dollar. As soon as the insurer has paid out $20,000 in no-fault benefits, there would be no recovery whatsoever under the uninsured motorist endorsement. The insured could be entitled to collect substantial non-economic damages from the uninsured motorist but would, by reason of the set-off, receive nothing from the insurer.
If the set-off of no-fault benefits were to be enforced in the manner the insurers seek, it would mean that the uninsured motorist endorsement, designed to secure recovery from an uninsured motorist, would provide no recovery in those cases where the injuries are most severe because the severity of the injuries maximized the no-fault benefits for work loss or medical expenses. We agree with the reasoning of the Supreme Court of Colorado:
"[T]he reduction of uninsured motorist coverage by PIP amounts paid or payable actually penalizes those who are more seriously injured for as the PIP benefits increase, the amounts recoverable under uninsured motorist coverage decrease. Two insureds may pay the same premium for uninsured motorist coverage in the minimum amounts. The one with PIP-type losses of less than $15,000 may recover some amounts under his uninsured motorist coverage for losses not otherwise covered by PIP, whereas the more seriously injured insured who sustains PIP-type losses in excess of $15,-000 would recover nothing under his uninsured motorist policy provisions.”
The insured paid premiums in exchange for coverage above and beyond that afforded under the no-fault act; the premium was not paid with the expectation that coverage would be afforded only in cases where no-fault benefits are paid in amounts substantially less than the limits of uninsured motorist coverage but non-economic loss is so severe as to entitle the insured to collect from the uninsured tortfeasor.
A contrary holding would tend to make the coverage illusory and defeat the reasonable expectations of insureds and the policy of the no-fault act to distinguish between economic and non-economic loss.
We affirm the judgments of the Court of Appeals except in Williams and Schigur, where we reverse.
Coleman, C.J., and Kavanagh, Williams, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Levin, J.
See fn 15.
See fn 42.
See fn 16.
See p 60, post.
Blakeslee v Farm Bureau Mutual Ins Co of Michigan, 388 Mich 464; 201 NW2d 786 (1972).
Boettner v State Farm Mutual Ins Co, 388 Mich 482; 201 NW2d 795 (1972).
MCL 257.1101 et seq.; MSA 9.2801 et seq.
MCL 500.3010; MSA 24.13010. See fn 20, infra, for text.
1974 PA 223; MCL 257.1105; MSA 9.2805.
1975 PA 322; MCL 257.1133; MSA 9.2833.
1972 PA 345.
See Widiss, A Guide to Uninsured Motorist Coverage (Cincinnati: W H Anderson Co, 1969), Appendix A, Standard Uninsured Motorist Endorsements, pp 291 et seq.
See Widiss, supra, § 1.11, p 15.
See, e.g., Mehling, Note, Contractual Attempts to Limit Liability Under Uninsured Motorist Coverage, 47 Cincinnati U L Rev 245 (1978); Davis, Uninsured Motorist Coverage: Some Signiñcant Problems and Developments, 42 Mo L Rev 1 (1977); Plevin, Set-Off Under Uninsured Motorist’s Coverage, 20 Cleveland St L Rev 10 (1971); York, Comment, "Stacking” Uninsured Motorist Protection, Medical Payments, and Personal Injury Protection Coverages in Texas, 7 St Mary’s L J 837 (1976); Chvatal, Uninsured Motorist Coverage: Validity of Medical Payments Set-off and "Other Insurance’’ Provisions, 26 Federation of Insurance Counsel Quarterly 287 (1976).
"This insurance does not apply [under uninsured motorist coverage]:
"(b) to bodily injury to an insured while occupying a highway vehicle (other than an insured highway vehicle) owned by the named insured, any designated insured or any relative resident in the same household as the named or designated insured, or through being struck by such a vehicle * * Widiss, supra, 1966 Standard Uninsured Motorist Endorsements, p 292.
Insured automobile is defined as:
" '[I]nsured highway vehicle’ means a highway vehicle:
"(a) described in the schedule as an insured highway vehicle to which the bodily injury liability coverage of the policy applies;
"(c) while being operated by the named or designated insured or by the spouse of either if a resident of the same household; but the term 'insured highway vehicle’ shall not include:
"(iii) under subparagraphs (b) and (c) above, a vehicle owned by the named insured, any designated insured or any resident of the same household as the named or designated insured; or
"(iv) under subparagraphs (b) and (c) above, a vehicle furnished for the regular use of the named insured or any resident of the same household.” Id., pp 294-295.
"With respect to bodily injury to an insured while occupying a highway vehicle not owned by the named insured, this insurance shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such vehicle as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.
"Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.” Id., pp 296-297.
Holding owned vehicle exclusion invalid: State Farm Mutual Automobile Ins Co v Hinkel, 87 Nev 478; 488 P2d 1151 (1971); Mullis v State Farm Mutual Automobile Ins Co, 252 So 2d 229 (Fla, 1971); Touchette v Northwestern Mutual Ins Co, 80 Wash 2d 327; 494 P2d 479 (1972); State Farm Mutual Automobile Ins Co v Reaves, 292 Ala 218; 292 So 2d 95 (1974); State Farm Mutual Automobile Ins Co v Robertson, 156 Ind App 149; 295 NE2d 626 (1973); Doxtater v State Farm Mutual Automobile Ins Co, 8 Ill App 3d 547; 290 NE2d 284 (1972); Vantine v Aetna Casualty & Surety Co, 335 F Supp 1296 (ND Ind, 1971); Elledge v Warren, 263 So 2d 912 (La App, 1972).
Similarly, see Hogan v Home Ins Co, 260 SC 157; 194 SE2d 89C (1973); Aetna Casualty & Surety Co v Hurst, 2 Cal App 3d 1067; 83 Cal Rptr 156 (1969); Allstate Ins Co v Meeks, 207 Va 897; 153 SE2d 222 (1967).
Holding "other insurance” clause invalid: Safeco Ins Co of America v Jones, 286 Ala 606; 243 So 2d 736 (1970); Kackman v Continental Ins Co, 319 F Supp 540 (D Alas, 1970); Sellers v United States Fidelity & Guaranty Co, 185 So 2d 689 (Fla, 1966); State Farm Mutual Automobile Ins Co v Murphy, 226 Ga 710; 177 SE2d 257 (1970); Simpson v State Farm Mutual Automobile Ins Co, 318 F Supp 1152 (SD Ind, 1970); Patton v Safeco Ins Co of America, 148 Ind App 548; 267 NE2d 859 (1971); Sturdy v Allied Mutual Ins Co, 203 Kans 783; 457 P2d 34 (1969); Meridian Mutual Ins Co v Siddons, 451 SW2d 831 (Ky, 1970); Johnson v Travelers Indemnity Co, 359 Mass 525; 269 NE2d 700 (1971); Harthcock v State Farm Mutual Automobile Ins Co, 248 So 2d 456 (Miss, 1971); Gordon v Maupin, 469 SW2d 848 (Mo App, 1971); Protective Fire & Casualty Co v Woten, 186 Neb 212; 181 NW2d 835 (1970); United Services Automobile Ass’n v Dokter, 86 Nev 917; 478 P2d 583 (1970); American Mutual Ins Co v Romero, 428 F2d 870 (CA 10, 1970); Turner v Nationwide Mutual Ins Co, 11 NC App 699; 182 SE2d 6 (1971); Curran v State Automobile Mutual Ins Co, 25 Ohio St 2d 33; 266 NE2d 566 (1971); Markham v State Farm Mutual Automobile Ins Co, 326 F Supp 39 (WD Okla, 1971); Smith v Pacific Automobile Ins Co, 240 Or 167; 400 P2d 512 (1965); Harleysville Mutual Casualty Co v Blumling, 429 Pa 389; 241 A2d 112 (1968); Bryant v State Farm Mutual Automobile Ins Co, 205 Va 897; 140 SE2d 817 (1965); State Farm Mutual Automobile Ins Co v United Services Automobile Ass’n, 211 Va 133; 176 SE2d 327 (1970).
Pappas v Central National Ins Group of Omaha, 400 Mich 475; 255 NW2d 629 (1977).
"(2) No payment shall be made out of the fund in respect to a claim or judgment for damages or in respect to a judgment against the secretary, of any amount paid or payable by an insurer by reason of the existence of a policy of insurance or of any amount paid or payable by any other person by reason of the existence of any policy, contract, agreement or arrangement, providing for the payment of compensation, indemnity or other benefits.
"(3) No amount sought to be paid out of the fund shall be sought in lieu of making a claim or receiving a payment that is payable by reason of the existence of a policy of insurance, or in lieu of making a claim or receiving a payment that is payable by reason of the existence of any policy, contract, agreement or arrangement, providing for the payment of compensation, indemnity or other benefits, to which the claimant would be entitled in the absence of this act.” MCL 257.1122; MSA 9.2822.
"Where any amount is recovered from any other source in partial discharge of the claim or judgment, or where a claim or judgment for damages is reduced by an amount paid or payable by an insurer or any other person, as provided in [subsections (2) or (3) of section 22] of this act, then the limitations set forth in subsection 1 of this section shall be applicable to the excess of the claim or judgment over the amount by which the claim or judgment is partially satisfied or is reduced under [subsections (2) or (3) of section 22], Any amount paid out of the fund in excess of the amount authorized by this section may be recovered by action brought by the secretary.” MCL 257.1123(2); MSA 9.2823(2).
"No automobile liability or motor vehicle liability policy * * * shall be delivered or issued for delivery in this state * * * unless coverage is provided therein or supplemental thereto * * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles, including owners or operators insured by an insolvent insurer, because of bodily injury, sickness or disease, including death, resulting therefrom, unless the named insured rejects such coverage in writing as provided herein.” MCL 500.3010; MSA 24.13010.
Blakeslee v Farm Bureau Mutual Ins Co of Michigan, supra, pp 473-475.
Boettner v State Farm Mutual Ins Co, supra, pp 487-488.
Pappas v Central National Ins Group of Omaha, supra, pp 479-482.
Bradley v Mid-Century Ins Co, 78 Mich App 67; 259 NW2d 378 (1977).
Hickman v Community Service Ins Co, 78 Mich App 1; 259 NW2d 367 (1977).
Ellis v State Farm Ins Co, 78 Mich App 189; 259 NW2d 421 (1977).
The Citizens policy in Bradley and the policy in Hickman define "insured” for purposes of the uninsured motorist coverage as including the named insured and a relative. The Mid-Century policy in Bradley and the policy in Ellis define "insured” for that purpose as including the named insured and a relative residing in his household.
The Mid-Century policy was issued to Bradley and thus he was insured for liability as the named insured. The Citizens policy in Bradley defines those insured for liability as follows:
"1. The named assured with respect to the owned automobile;
"2. If the named assured is an individual, or husband and wife, or if the automobile is owned jointly by two or more related residents of the same household.
"(a) The named assured with respect to a non-owned automobile,
"(b) Any resident of the named assured’s household with respect to the owned automobile, and
"(c) Any relative with respect to a non-owned private passenger automobile not regularly furnished for the use of such relative.”
In Hickman liability coverage is extended to the named insured and any resident of his household.
In Ellis the "insured” for liability purposes includes a relative of the named insured or his spouse, if a resident of the same household.
But see State Farm Mutual Automobile Ins Co v Ruuska, 90 Mich App 767, 775; 282 NW2d 472 (1979), lv gtd 407 Mich 948 (1979).
Rice v Detroit Automobile Inter-Ins Exchange, 66 Mich App 600; 239 NW2d 675 (1976); Nunley v Turner, 57 Mich App 473; 226 NW2d 528 (1975), lv den 394 Mich 816 (1975); Priestly v Secretary of State, 67 Mich App 96; 240 NW2d 282 (1976).
The insurers rely on Rice v Detroit Automobile Inter-Ins Ex change, supra. The plaintiff in Bice was not the named insured, but, rather, a relative living in the same household. The Court held:
"[The insurance company] was obliged to provide uninsured motorist protection only to the extent that an insured, other than a named insured, is covered for the purpose of liability protection under the policy.” Id., p 607.
The Commissioner of Insurance in his report to the Governor regarding this legislation said:
"By adding uninsured motorist coverage to standard automobile liability insurance, only a minute segment of the public would remain exposed to potential uncompensated loss. That category is the pedestrian struck by an uninsured motorist under conditions imposing legal liability on such motorist, where the pedestrian is a member of a family not possessing an insured automobile. The current voluntary uninsured motorist coverage insures all family members against injury or death from an uninsured motorist either as an occupant of an automobile or as a pedestrian.” Letter from Allen L. Mayerson, Commissioner of Insurance, and John W. Wickstrom, Chief Deputy Commissioner of Insurance, to Governor George Romney (April 6, 1965), regarding HB 2467 (which is substantially identical with SB 544 which subsequently was enacted as § 3010 of the Insurance Code; see fn 8 supra) (emphasis in original).
Courts in other states have so held. See Touchette v Northwestern Mutual Ins Co, supra (son of named insured driving own vehicle); State Farm Mutual Automobile Ins Co v Reaves, supra (brother of named insured injured while riding mother’s motorcycle); Doxtater v State Farm Mutual Automobile Ins Co, supra (son of named insured on motorcycle); State Farm Mutual Automobile Ins Co v Hinkel, supra (son riding own motorcycle).
The insurers rely on Nunley, supra. In Nunley the plaintiff owned an automobile for which he had uninsured motorist coverage and a motorcycle for which he did not. He was injured while riding the motorcycle and sought to recover under the uninsured motorist endorsement to the automobile policy. The trial court ruled in his favor; the Court of Appeals reversed. The rationale of the Court of Appeals was that an alternative holding "would mean that an insurer to whom a premium had been paid on one car would be liable for uninsured motorist coverage on any number of motor vehicles bought by an insured subsequent to the original purchase of uninsured motorist coverage without purchasing such additional coverage.” The Court distinguished Boettner as being a case where "there were two identical policies of insurance, issued by the same company on two different automobiles owned by husband and wife, and upon which two separate uninsured motorist coverage premiums were paid”.
One commentator has observed:
"It is difficult to accept the propriety of such a restriction on coverage. First, the importance or value of the imputed business purpose for this exclusion seems tenuous as applied to the purchaser who owns more than one vehicle. Acquisition of insurance for a second vehicle is relatively inexpensive; therefore permitting the insurer to withhold coverage for the small return seems of dubious merit. Second, the acceptance of this exclusion as a 'legitimate business purpose’ of the insurer with respect to vehicles owned by relatives (residing in the same household) only follows if one expects that such relatives in the same household would buy insurance from the same company. This seems an unwarranted assumption.” Widiss, supra, § 2.9, p 29.
See Vantine v Aetna Casualty & Surety Co, supra; State Farm Mutual Automobile Ins Co v Robertson, supra.
See fn 33, supra.
Bradley v Mid-Century Ins Co, supra, p 72.
Ruesing v Aetna Casualty & Surety Co, unpublished opinion of the Court of Appeals, decided June 15, 1977 (Docket No. 28760).
Pappas, supra, p 482.
Pappas, supra. Compare State Farm Mutual Automobile Ins Co v Sivey, 404 Mich 51; 272 NW2d 555 (1978).
See, e.g., State Farm Mutual Automobile Ins Co v Ruuska, supra, 90 Mich App 777-778.
The standard "limits of liability” clause reads:
"Regardless of the number of insureds under this policy, the company’s liability [under uninsured motorist coverage] is limited as follows:
"(a) The limit of liability stated in the [uninsured motorist coverage] as applicable to 'each person’ is the limit of the company’s liability for all damages because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting 'each person’, limit of liability stated in the [uninsured motorist coverage] as applicable to 'each accident’ is the total limit of the company’s liability for all damages because of bodily injury sustained by two or more persons as the result of any one accident.” Widiss, supra, p 293.
The corresponding "other insurance” clause is set forth in fn 16, supra.
Brown, Intra-Policy Stacking of Uninsured Motorist and Medical Payments Coverages: To Be or Not to Be, 22 SD L Rev 349 (1977).
"No automobile liability or motor vehicle liability policy insuring against loss * * * shall be delivered or issued * * * with respect to any motor vehicle * * * unless coverage is provided therein * * * for bodily injury * * * for the protection of persons insured thereunder.” MCL 500.3010; MSA 24.13010.
See Federated American Ins Co v Raynes, 88 Wash 2d 439; 563 P2d 815 (1977).
Citizens Mutual Ins Co v Turner, 53 Mich App 616, 618; 220 NW2d 203 (1974).
Blakeslee v Farm Bureau Mutual Ins Co, supra, p 474.
To be sure, it may be less expensive to purchase insurance for two automobiles on one policy than on separate policies for the two vehicles. It, however, appears that the saving is due to a discount which bears no relation to the scope of the risk covered by the uninsured motorist endorsement. In the instant case, the straight rate for each automobile was computed and 15% deducted from the premium for each automobile. The discount applied to all components of the premium. The discount was given on the first vehicle as well as the second.
See fn 42, supra, for a substantially similar clause.
See second paragraph, fn 16, supra.
See fn 15, supra, for a similar clause.
per curiam opinion filed July 25, 1977 (Docket No. 29626).
Horr v Detroit Automobile Inter-Ins Exchange, 379 Mich 562; 153 NW2d 655 (1967).
Id., p 566.
This issue is present in Raska v Farm Bureau Mutual Ins Co of Michigan, unpublished per curiam opinion by the Court of Appeals (Docket No. 78-2, May 24, 1979), lv gtd 407 Mich 946 (1979), which involves an "owned vehicle exclusion” to an endorsement providing otherwise portable medical expense and disability coverage. State Farm Mutual Automobile Ins Co v Ruuska, 90 Mich App 767; 282 NW2d 472 (1979), lv gtd 407 Mich 948 (1979), presents the issue of the validity of an owned vehicle exclusion to the residual liability coverage required by the no-fault act and the portability of residual liability insurance generally.
The other insurance clause held inapplicable in Boettner referred only to injury "while occupying an automobile not owned by a named insured.” The clause we apply here is operative where "the insured has other similar insurance available to him.”
4 Michigan House J (1972) 3235-3237.
3 Michigan Senate J (1972) 2041-2042.
MCL 500.3172; MSA 24.13172.
Indeed, rarely will the case arise where an uninsured motorist endorsement and the assigned claims provisions of the no-fault act are applicable to the same accident.
The assigned claims provisions are involved only where there is no other PIP insurance applicable to the injury. In order for there to be no PIP insurance applicable, the injured person and relatives domiciled in his household must have no PIP insurance and the owners and drivers of all involved motor vehicles must be uninsured. Uninsured motorist coverage is usually provided as an endorsement to a basic automobile insurance policy. If there is no PIP insurance applicable to an injury, it- is unlikely that there will be uninsured motorist coverage applicable.
Uninsured motorist coverage is offered with motorcycle liability policies. An accident involving an uninsured motor vehicle and a motorcyclist who lives in a household with no PIP insurance applicable to its members and who has purchased uninsured motorist coverage for his motorcycle appears to be the only situation where uninsured motorist coverage and the assigned claims provisions will be applicable to the same injury.
MCL 257.1123; MSA 9.2823.
Van Tassel v Horace Mann Mutual Ins Co, 296 Minn 181, 187; 207 NW2d 348, 351-352 (1973) (based on "the fact that the legislature required an uninsured-motorist provision in all policies, added to the fact that a premium has been collected on each of the policies involved”).
United Services Automobile Ass’n v Dokter, 86 Nev 917, 920; 478 P2d 583, 585 (1970).
Shavers v Attorney General, 402 Mich 554, 609; 267 NW2d 72 (1978).
The essential insurance act, 1979 PA 145, does not become effective until January 1, 1981. Uninsured motorist coverage is not specifically mentioned but might be within the scope of the act. See § 2102, subds (2) and (3).
The stacking of liability policies — one person’s receiving the combined coverages in one accident — is an issue distinct from those which arise when the owner of a vehicle seeks indemnification in that capacity and the driver seeks indemnification in a different capacity (see Ruuska, fn 55 supra), or where the insured driver seeks to enforce the policy limits of his own policy although lesser limits of liability are applicable to the involved vehicle.
MCL 257.520, subds (i) and (j); MSA 9.2220, subds (i) and (j).
We reject the argument that other insurance clauses in uninsured motorist coverage are impermissible because the Legislature has not authorized them as it has in liability insurance policies.
Liability insurance is extensively regulated by statute. Required and permissive provisions in such policies are set forth in MCL 257.520; MSA 9.2220. MCL 257.520(g); MSA 9.2220(g) provides:
"Any policy which grants the coverage required for a motor vehicle liability policy may also grant any lawful coverage in excess of or in addition to the coverage specified for a motor vehicle liability policy and such excess or additional coverage shall not be subject to the provisions of this chapter.”
The implication is that the statutory liability coverage is subject to strict requirements and regulation and that the insurer is free to issue other forms of coverage or excess liability coverage subject to whatever contractual limitations it wishes as long as otherwise lawful. Thus, if other insurance clauses are permissible in statutory liability policies, a fortiori they are permissible in uninsured motorist endorsements.
The deduction was $13,000 in Schiipir. The record does not indicate the amount of no-fault benefits paid in Williams.
The uninsured motorist endorsement reads the same as it did under prior law. The insurer commits itself "to pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury * * (Emphasis supplied.) If this clause is read alone, the insurer would be obligated to pay all amounts payable by the uninsured motorist — all economic as well as above-the-threshold non-economic damages — although some economic damages have been compensated by no-fault benefits already paid.
The set-off clause is subject to the construction that it authorizes the deduction of amounts paid for no-fault benefits from the total amount recoverable as damages from the uninsured motorist. The set-off clause authorizes reduction of amounts "payable under the protection against uninsured motorist coverage”. The uninsured motorist endorsement providing such coverage obligates the insurer to "pay all sums * * * recoverable]” as damages from the uninsured motorist. The set-off clause can be read as authorizing subtraction of no-fault benefits paid from "all sums * * * recover[able]” as damages from the uninsured motorist, and not from the policy limits of the uninsured motorist coverage.
Professor Keeton states the following principle:
"The objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations.” Keeton, Insurance Law, § 6.3(a), p 351.
See also Keeton, Insurance Law Rights at Variance with Policy Provisions, Part One, 83 Harv L Rev 961 (1970), Part Two, 83 Harv L Rev 1281 (1970); Case Note, The Role of Public Policy and Reasonable Expectations in Construing Insurance Contracts, 47 Temple L Quarterly 748 (1974).
The doctrine of reasonable expectations has been recognized in the case law. C & J Fertilizer, Inc v Allied Mutual Ins Co, 227 NW2d 169 (Iowa, 1975); Jones v Continental Casualty Co, 123 NJ Super 353; 303 A2d 91 (1973); Corgatelli v Globe Life & Accident Ins Co, 96 Idaho 616; 533 P2d 737 (1975); Smith v Westland Life Ins Co, 15 Cal 3d 111; 123 Cal Rptr 649; 539 P2d 433 (1975); National Indemnity Co v Flesher, 469 P2d 360 (Alas, 1970); and Kievit v Loyal Protective Life Ins Co, 34 NJ 475, 482-483; 170 A2d 22 (1961):
"When members of the public purchase policies of insurance they are entitled to the broad measure of protection necessary to fulfill their reasonable expectations. * * * Where particular provisions, if read literally, would largely nullify the insurance, they will be severely restricted so as to enable fair fulfillment of the stated policy objective.”
See, also, Gray v Zurich Ins Co, 65 Cal 2d 263, 269-270; 54 Cal Rptr 104; 419 P2d 168 (1966), quoted in Zurich Ins Co v Rombough, 384 Mich 228, 232-233; 180 NW2d 775 (1970).
MCL 500.3105(2), 500.3107; MSA 24.13105(2), 24.13107.
See McKendrick v Petrucci, 71 Mich App 200, 204; 247 NW2d 349 (1976), and Schigur v West Bend Mutual Ins Co, 80 Mich App 640, 643; 264 NW2d 83 (1978).
MCL 500.3135; MSA 24.13135.
MCL 500.3131; MSA 24.13131.
MCL 500.3135; MSA 24.13135.
Similar is the contractual right to medical benefits in pre-no-fault policies, a set-off for which has also been invalidated. See Tuggle v Government Employees Ins Co, 207 So 2d 674; 24 ALR3d 1343 (Fla, 1968); Stephens v Allied Mutual Ins Co, 182 Neb 562; 156 NW2d 133 (1968); In the Matter of the Arbitration Between Hutchison and Hartford Accident & Indemnity Co, 34 AD2d 1010; 312 NYS2d 789 (1970); Taylor v State Farm Mutual Automobile Ins Co, 237 So 2d 690 (La App, 1970).
Carnevale v Sentry Ins a Mutual Co, 469 F Supp 681 (WD Pa, 1979).
MCL 500.3116; MSA 24.13116, as amended by 1978 PA 461.
See Workman v Detroit Automobile Inter-Ins Exchange, 404 Mich 477, 504 (opinion of the Court), 522 (opinion of Levin, J.); 274 NW2d 373 (1979).
O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979).
Newton v Nationwide Mutual Fire Ins Co, 197 Colo 462, 467; 594 P2d 1042 (1979). | [
-16,
1,
35,
14,
49,
28,
22,
-18,
-9,
24,
0,
27,
42,
12,
-63,
41,
20,
25,
-24,
20,
-35,
0,
-56,
27,
-29,
-44,
36,
-39,
-13,
73,
17,
-20,
-11,
-3,
-125,
-14,
-41,
69,
-33,
22,
18,
-33,
-25,
-5,
14,
-7,
21,
-7,
-6,
-14,
4,
-8,
-27,
-4,
45,
5,
21,
36,
-19,
1,
-32,
11,
52,
31,
-42,
-1,
0,
70,
55,
7,
-32,
-2,
-37,
-24,
25,
6,
59,
51,
-24,
-10,
-13,
-24,
42,
-38,
16,
29,
-29,
-77,
-8,
-47,
-55,
-57,
-31,
-7,
-10,
-15,
-29,
-20,
6,
40,
-5,
-29,
45,
11,
-21,
47,
-41,
-23,
10,
12,
-22,
-10,
15,
5,
51,
-20,
-43,
42,
49,
71,
1,
-16,
10,
14,
-33,
39,
-8,
-46,
-56,
-6,
-8,
-2,
18,
6,
-10,
5,
-19,
-31,
21,
4,
-24,
1,
-18,
-42,
23,
57,
11,
-52,
2,
8,
41,
83,
-6,
-25,
-31,
-47,
-18,
-27,
54,
-29,
-34,
-26,
22,
38,
-34,
-26,
-11,
54,
25,
9,
9,
-7,
22,
-15,
43,
15,
26,
-19,
-12,
50,
-20,
9,
-13,
20,
-20,
-52,
-18,
-6,
-42,
-1,
18,
-38,
7,
-42,
-6,
-5,
5,
66,
-18,
-10,
17,
-64,
-38,
10,
33,
35,
-24,
4,
-27,
1,
-22,
-17,
1,
-46,
3,
19,
13,
-19,
-26,
-31,
-1,
0,
14,
-37,
-35,
-20,
-64,
-44,
-33,
-10,
-42,
-13,
0,
35,
-53,
38,
-64,
-38,
51,
68,
53,
5,
-20,
-5,
18,
-21,
15,
9,
25,
-20,
39,
-38,
41,
28,
-34,
-21,
-11,
-30,
-16,
30,
-13,
79,
24,
-13,
40,
-14,
41,
5,
42,
5,
-26,
-8,
23,
-9,
0,
-52,
-2,
6,
-10,
-48,
12,
30,
-51,
-52,
-48,
4,
0,
-9,
15,
-2,
63,
-80,
39,
-1,
-17,
-16,
12,
-11,
-38,
27,
52,
6,
21,
29,
0,
-45,
-59,
-39,
18,
5,
-75,
22,
4,
-29,
72,
-49,
27,
-14,
22,
-29,
-18,
31,
20,
19,
-9,
-73,
35,
-60,
-14,
-38,
-45,
-15,
5,
9,
34,
-76,
33,
-4,
12,
49,
2,
16,
-6,
-14,
-25,
-23,
33,
42,
26,
9,
-14,
33,
16,
-21,
-15,
24,
59,
4,
-52,
-3,
-41,
-9,
-51,
39,
1,
-26,
1,
63,
-5,
25,
56,
-10,
-4,
20,
-1,
-51,
14,
32,
-52,
-3,
-29,
12,
32,
-19,
-4,
33,
-47,
-67,
-55,
25,
-66,
-20,
-32,
11,
-4,
22,
6,
-8,
-14,
17,
-6,
35,
-42,
-60,
0,
-10,
43,
-12,
-85,
-40,
-81,
6,
-55,
23,
2,
36,
67,
-23,
-72,
-71,
-8,
6,
-7,
-37,
8,
-32,
-14,
86,
-26,
-4,
25,
-20,
-7,
-30,
26,
-31,
-9,
-92,
4,
-13,
16,
5,
-23,
8,
-8,
-5,
-10,
13,
21,
-45,
43,
-3,
20,
11,
-53,
4,
26,
-35,
-64,
-53,
-43,
-45,
-22,
-28,
50,
-20,
-54,
-14,
39,
-71,
-2,
7,
15,
-1,
-1,
-17,
-32,
0,
-24,
40,
-26,
17,
15,
-30,
17,
-41,
-28,
33,
-11,
-19,
25,
-7,
7,
3,
-24,
-22,
-35,
11,
-63,
-36,
0,
46,
10,
38,
40,
-1,
-33,
-37,
-22,
3,
34,
40,
0,
37,
49,
-5,
-25,
2,
31,
-53,
7,
33,
-35,
-16,
13,
-18,
-19,
16,
37,
-21,
20,
16,
47,
-8,
25,
11,
47,
8,
-12,
-30,
5,
66,
-55,
-14,
26,
-52,
-1,
-16,
60,
-15,
-6,
3,
7,
-28,
53,
-36,
18,
-14,
-10,
61,
-22,
33,
29,
8,
-29,
-12,
31,
2,
49,
-33,
-55,
-11,
2,
-41,
13,
0,
14,
-29,
-46,
15,
6,
60,
8,
-22,
-51,
9,
-33,
15,
8,
-50,
35,
7,
24,
33,
40,
17,
-17,
-25,
-53,
14,
-11,
36,
-44,
-1,
23,
-4,
-4,
4,
17,
8,
-11,
15,
-51,
-4,
-15,
-43,
-4,
52,
14,
-14,
-31,
36,
16,
27,
1,
59,
1,
68,
10,
-17,
36,
-30,
-51,
-29,
-17,
-27,
52,
73,
-70,
29,
-8,
22,
9,
45,
-8,
26,
29,
1,
-15,
-70,
-79,
54,
-27,
-63,
-18,
40,
3,
-22,
-62,
-8,
-18,
-25,
8,
26,
8,
-9,
-2,
6,
-18,
40,
61,
-4,
74,
72,
78,
43,
20,
61,
-2,
53,
-9,
-6,
20,
17,
-18,
27,
5,
-33,
78,
-14,
21,
50,
-39,
-57,
-44,
-22,
28,
18,
-29,
-20,
0,
30,
-40,
0,
-30,
17,
-36,
-40,
17,
90,
-1,
26,
31,
-51,
7,
52,
-29,
22,
-61,
-18,
34,
-38,
-12,
-49,
-57,
35,
30,
15,
15,
-8,
-10,
-1,
-46,
-33,
-3,
32,
87,
0,
30,
-17,
19,
31,
99,
43,
-39,
-10,
-96,
10,
35,
-2,
-13,
-61,
-8,
-19,
-7,
-31,
9,
3,
-18,
-61,
-4,
-20,
28,
41,
0,
0,
-9,
20,
26,
-93,
5,
27,
0,
-26,
-14,
1,
4,
-39,
-80,
-18,
-8,
-24,
36,
-40,
10,
14,
2,
-16,
0,
5,
38,
86,
59,
-32,
15,
31,
16,
-10,
17,
-12,
-28,
63,
-7,
18,
22,
-18,
54,
-20,
56,
-42,
26,
-23,
5,
-30,
13,
-29,
21,
8,
-36,
-16,
-12,
-10,
-52,
-19,
17,
53,
5,
-25,
-7,
-28,
0,
0,
-57,
31,
4,
49,
37,
45,
-38,
-72,
44,
55,
-33,
10,
42,
28,
9,
-4,
49,
0,
-1,
-44,
3,
33,
13,
-12,
-33,
-19,
-25,
-8,
4,
-9,
-23,
30,
26,
-25,
52,
55,
-2,
41,
14,
62,
35,
-56,
6,
29,
-21,
-14,
-25,
-11,
-24,
-24,
-43,
62,
-25,
-38,
10,
9,
-32,
-24,
78,
-8,
-19,
-18,
-67,
-14,
0,
87,
52,
-47,
-21,
30,
-27,
48,
2,
66,
32,
17,
-49,
-26,
27,
-20,
42,
-1,
-3,
41,
32,
35,
-26,
99,
20,
-10,
27,
-54,
-25,
6,
28,
-17,
-4,
13,
6,
7,
0,
33,
69,
-17,
20,
10,
-42,
-45,
43,
47,
14,
22,
-76,
10,
24,
12,
4,
40,
48,
30,
5,
38,
-6,
14,
-3,
6,
35,
22,
-40,
31,
-12,
-66,
31,
-33,
34,
-29,
-72,
54,
20,
0,
-33,
5,
-5,
31,
22,
12,
-22,
-47,
-25,
-3,
-1,
31,
-16,
-41,
-46,
53,
-54,
27,
-23,
21,
0,
64,
9,
-31,
16,
38,
42,
-7,
-9,
0,
29,
26,
-35,
41,
5,
-2,
44,
13,
-23,
37,
-53,
-56,
47,
22,
-27,
8,
-13,
-77,
23,
49,
43,
-34
] |
Butzel, J.
Sarah Doherty, over 75 years of age, was a sister of Anna T. Murphy, now deceased, formerly the wife of Patrick J. Murphy, an attorney, who is the defendant and appellant herein. In a suit brought by Mrs. Doherty against the estate of Anna T. Murphy in which she claimed an interest, the decree provided that the estate pay to her an amount certain and in addition thereto, $100 per month during her lifetime; that the payment thereof be secured by a surety bond to be executed by Patrick J. Murphy, both as administrator and in his individual capacity.
Murphy and Mrs. Doherty had also entered into a contract prepared by Murphy and known as Exhibit “A” wherein Mrs. Doherty agreed to make him the beneficiary in a. policy of insurance in a benevolent association, in which she was insured. He agreed that:
“In the event of the illness of the said Sarah M. Doherty the said Patrick J. Murphy agrees to furnish the said Sarah M. Doherty with appropriate medical care and attention.”
In the instant case, Patrick J. Murphy has appealed from a judgment rendered against him in garnishment proceedings ancillary to a principal suit against Mrs. Doherty in which a judgment of $500 was rendered against her.
The testimony shows that Mrs. Doherty was in great need of medical care and attention, and that John W. Warren, plaintiff, furnished-it to her; that Murphy not only knew plaintiff was attending Mrs. Doherty, hut told him that she “must he cared for.” Plaintiff attempted to show the reasonable value of the services rendered. Defendant objected, stating that the issue was solely one of garnishment, and the court ruled that the judgment of $500 rendered in a suit brought to recover for the services obviated further proof in regard to the reasonableness of the charges. Although Murphy first disclosed an indebtedness to Mrs. Doherty, he subsequently amended his disclosure to show nothing was due her. A judgment was rendered against him, both in the common pleas court and on appeal to the circuit court for Wayne county.
Murphy claims that the court erred in finding him individually liable. He contends that if he was indebted to Mrs. Doherty at the time the garnishment proceedings were instituted, it was solely as administrator of the estate of Anna T. Murphy, and that an administrator cannot be garnisheed prior to the closing of the estate. We believe, however, that Murphy’s liability is established by Exhibit “ A. ” He unconditionally agreed to furnish medical care and attention to Mrs. Doherty. He knew that the services were being rendered by plaintiff and told him that Mrs. Doherty must be cared for. Defendant admits that he did not furnish Mrs. Doherty with appropriate medical care and attention, but claims that he was never asked to dó so. The testimony shows that Mrs. Doherty was in a comatose condition when plaintiff was called in, and that she required medical care and attention. Under the circumstances, the fact that Murphy was not specially requested by Mrs. Doherty to furnish the medical services does not release him from his indebtedness to her for the cost of such services. See Jackson v. Pacific Coast Condensed Milk Co., 61 Ore. 158 (120 Pac. 1); Crites v. Willamette Valley Lumber Co., 87 Ore. 10 (169 Pac. 339, Ann. Cas. 1918D, 1050).
Judgment is affirmed, with costs to plaintiff.
Clark, C. J., and McDonald, Potter, Sharpe, North, Pead, and Wiest, JJ., concurred. | [
-17,
-23,
-57,
18,
-1,
22,
30,
-26,
21,
-50,
-40,
-52,
72,
32,
-19,
-32,
-9,
1,
-16,
-29,
21,
-26,
6,
44,
18,
62,
-1,
-21,
2,
-63,
-13,
-9,
-51,
10,
-4,
-4,
37,
-28,
-28,
-18,
7,
8,
15,
53,
-32,
-1,
11,
13,
83,
-39,
-18,
0,
33,
16,
2,
0,
14,
15,
-5,
-68,
9,
-47,
-10,
-22,
34,
48,
49,
13,
-16,
-8,
25,
8,
-7,
19,
-39,
-15,
-21,
11,
-19,
-21,
-14,
-33,
-12,
18,
9,
-9,
-33,
22,
21,
32,
-20,
44,
-54,
3,
-46,
66,
-11,
-38,
44,
30,
9,
2,
8,
85,
-30,
26,
-7,
-49,
-89,
26,
-40,
-20,
45,
-39,
-12,
-42,
-35,
-35,
-7,
36,
10,
8,
30,
-31,
14,
-6,
85,
-22,
3,
9,
37,
-17,
-7,
-43,
-29,
5,
-62,
6,
75,
26,
24,
1,
-11,
4,
62,
15,
-10,
-95,
13,
-20,
-1,
8,
-1,
28,
2,
-16,
-8,
-1,
-5,
-32,
55,
31,
32,
-15,
-65,
-17,
-36,
34,
-17,
29,
75,
34,
-37,
4,
6,
-9,
21,
-40,
28,
-24,
-35,
11,
-11,
-29,
12,
2,
48,
13,
-5,
50,
-17,
-51,
-7,
20,
-9,
32,
43,
3,
7,
-16,
17,
-1,
-6,
-6,
31,
-11,
4,
-4,
-33,
-51,
24,
-33,
13,
18,
-92,
9,
19,
3,
-59,
14,
-43,
29,
-39,
-6,
-67,
-46,
-37,
-76,
2,
-65,
-9,
-68,
-33,
78,
-22,
29,
34,
-16,
35,
-14,
-51,
5,
1,
-28,
46,
6,
7,
11,
-52,
57,
-8,
48,
24,
56,
0,
-33,
-24,
1,
-12,
14,
-46,
29,
-33,
51,
0,
-30,
49,
-6,
24,
-15,
-2,
23,
101,
-43,
14,
-23,
31,
-13,
-22,
22,
-15,
0,
-52,
21,
19,
15,
-11,
-27,
11,
-5,
-2,
3,
39,
26,
37,
-4,
2,
-37,
-39,
27,
-16,
6,
52,
34,
41,
19,
-7,
-17,
105,
-40,
34,
-13,
-10,
15,
42,
-24,
-25,
-72,
12,
30,
51,
-50,
-57,
48,
-34,
-28,
-25,
-25,
11,
18,
5,
-9,
45,
-3,
5,
-19,
33,
39,
-61,
-37,
35,
7,
-3,
4,
6,
0,
72,
17,
37,
-21,
-30,
45,
45,
51,
33,
25,
44,
14,
2,
45,
31,
-14,
29,
2,
-35,
0,
22,
12,
-10,
18,
53,
16,
-31,
-29,
-14,
6,
-10,
7,
41,
37,
-17,
-34,
-15,
44,
-9,
-29,
-46,
-28,
-8,
38,
-45,
-3,
18,
34,
-15,
-12,
-16,
5,
-7,
5,
16,
12,
44,
-26,
-36,
34,
-18,
-27,
-6,
13,
-46,
4,
17,
16,
-8,
11,
21,
-4,
18,
28,
-10,
46,
-6,
-50,
12,
-22,
-28,
43,
-23,
-8,
-19,
41,
26,
-1,
81,
-50,
-61,
-38,
-3,
24,
12,
61,
49,
-4,
2,
5,
-11,
-6,
27,
11,
-2,
8,
29,
42,
-1,
-20,
15,
-26,
-59,
-34,
-2,
-35,
6,
13,
27,
25,
-3,
-16,
-7,
7,
-43,
13,
-3,
-3,
17,
-17,
-38,
1,
14,
54,
-11,
-40,
-35,
-67,
-21,
16,
-27,
-38,
-40,
-19,
-10,
-28,
-9,
13,
-13,
-22,
-22,
35,
-21,
-12,
-8,
20,
18,
34,
-17,
-37,
-27,
-9,
-11,
-56,
-2,
-42,
7,
42,
34,
43,
55,
16,
37,
14,
20,
18,
-19,
9,
24,
24,
-7,
19,
23,
-33,
-33,
-21,
25,
-89,
-22,
-16,
8,
8,
23,
-18,
8,
69,
-49,
13,
-35,
-4,
6,
28,
23,
-16,
48,
-68,
39,
-7,
10,
-2,
6,
-20,
26,
-24,
-20,
14,
-23,
-28,
41,
-14,
-33,
10,
13,
-71,
-56,
-48,
-6,
-32,
33,
-12,
-10,
-10,
-18,
-35,
-4,
-11,
18,
-1,
5,
49,
24,
41,
-1,
-17,
-2,
-20,
-17,
22,
12,
-23,
24,
-30,
-44,
-52,
-9,
-3,
-52,
-34,
-30,
-5,
36,
-19,
-26,
-8,
27,
-41,
-56,
-42,
-23,
-3,
-7,
-15,
-28,
31,
-19,
11,
27,
-37,
46,
52,
-12,
33,
-25,
5,
45,
-55,
0,
11,
-15,
-28,
-80,
48,
4,
-31,
-27,
22,
0,
24,
19,
-26,
18,
3,
-5,
-25,
22,
3,
-44,
6,
-14,
26,
53,
20,
-4,
-5,
38,
-2,
8,
16,
44,
25,
34,
6,
-61,
-20,
8,
47,
-3,
-9,
-15,
6,
-4,
-8,
-9,
-50,
6,
-38,
45,
3,
-91,
-44,
-58,
-2,
-6,
-5,
-7,
-20,
-15,
18,
-37,
3,
-9,
-8,
28,
17,
2,
-41,
-66,
51,
-21,
17,
2,
-2,
-62,
-25,
-18,
-30,
19,
15,
43,
44,
-47,
34,
14,
6,
-35,
-31,
4,
-47,
6,
-37,
-5,
-15,
-59,
-7,
15,
-22,
-33,
17,
-20,
52,
9,
-43,
-35,
29,
3,
11,
-8,
5,
48,
-10,
-12,
59,
6,
24,
-4,
15,
-1,
32,
28,
22,
51,
-25,
25,
-2,
-20,
74,
9,
5,
68,
-20,
-6,
0,
-36,
-16,
-6,
16,
4,
30,
-37,
24,
29,
16,
-37,
-66,
52,
18,
-14,
18,
-26,
-23,
20,
10,
38,
9,
-11,
21,
-6,
6,
28,
21,
-25,
21,
-38,
-34,
53,
41,
-34,
11,
-15,
10,
-22,
-9,
7,
9,
5,
19,
8,
-13,
-54,
-18,
-24,
40,
-10,
5,
18,
-19,
-10,
-11,
-32,
-19,
-2,
46,
-38,
10,
9,
-11,
-91,
-40,
52,
44,
-10,
60,
-44,
-33,
13,
-37,
23,
35,
5,
20,
17,
16,
-15,
42,
18,
-50,
-17,
48,
0,
-42,
1,
-23,
-4,
-32,
-10,
-24,
-24,
-40,
-25,
14,
16,
10,
32,
-15,
-2,
41,
-60,
-21,
62,
47,
11,
-5,
20,
-8,
-6,
59,
-42,
39,
-23,
22,
25,
-12,
-15,
-21,
35,
7,
-13,
10,
-17,
14,
23,
-18,
36,
3,
-25,
7,
1,
-19,
-16,
1,
12,
33,
-2,
-22,
-12,
27,
-1,
-31,
-24,
17,
16,
9,
2,
33,
3,
-25,
-25,
-12,
-2,
11,
21,
13,
-25,
10,
59,
-15,
-39,
6,
2,
-43,
11,
-68,
-7,
-9,
69,
45,
-13,
44,
-33,
19,
28,
-53,
25,
0,
-14,
-25,
1,
2,
-118,
-12,
-23,
2,
-40,
44,
-14,
21,
-4,
0,
50,
-18,
10,
-23,
-13,
-79,
23,
-18,
-15,
-32,
-57,
-49,
27,
12,
18,
-15,
23,
-2,
-40,
26,
-52,
33,
18,
-15,
-12,
-26,
51,
3,
14,
33,
66,
-50,
35,
36,
0,
21,
-13,
16,
28,
28,
-23,
-18,
26,
53,
13,
23,
31,
10,
81,
-23,
-46,
-30,
36,
1,
15,
11,
0,
-23,
47,
-4
] |
Potter, J.
Plaintiff sued defendant on a promissory note as follows:
“$500. Jan. 11, 1926
“John Johnson after date does promise to pay to the order of Mrs. Frank O’Dess five hundred dollars at 7 per cent, interest for................ Value received.
“John Johnson,
“Mike Gunter.
“No..... Due April 11, 1926.”
Defendant Gunter pleaded he was an indorser and received no notice of dishonor for a period of four years. There was judgment for plaintiff and defendant Gunter appeals.
To charge one as maker of a note it must appear from the instrument he makes an unconditional promise to pay. 8 C. J. p. 65; 38 O. J. p. 343; 2 Bonvier’s Law Dictionary (Rawle’s 3d Rev.), title, “Maker.”
The note sued upon does not contain the language “I promise to pay,” or “We promise to pay,” or other apt language indicating Gunter promises to pay. It recites, “John Johnson * # * does promise to pay.” The language of the instrument specifically indicates who promises to pay, and thereby impliedly excludes those not named. Gunter made no promise to pay. Not having unconditionally promised to pay, Gunter is not a maker of the note. He signed the note. He is not a maker, drawer, or acceptor, and hence is an indorser. 2 Comp. Laws 1929, § 9312, provides:
“A person placing his signature upon an instrument, otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate .words his intention to be bound in some other capacity.”
Gunter, being an indorser, was entitled to notice of dishonor. -2 Comp. Laws 1929, § 9338; Mellen-Wright Lbr. Co. v. McNett, 242 Mich. 369. Gunter received no notice of dishonor for at least three years, and cannot be held liable on the instrument as an indorser. Judgment as to Gunter reversed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, WmsT, and Butzel, JJ., concurred. | [
-23,
-18,
-66,
3,
37,
12,
27,
9,
11,
15,
45,
-14,
34,
-3,
8,
2,
32,
-30,
-6,
-24,
-11,
-33,
-6,
-45,
26,
87,
-1,
55,
34,
21,
27,
46,
-42,
48,
-18,
0,
25,
4,
8,
-44,
9,
-62,
36,
11,
-7,
-43,
-19,
-39,
-3,
-57,
27,
-9,
24,
-36,
-34,
30,
13,
-38,
-45,
5,
-67,
-31,
28,
-60,
-68,
-18,
13,
26,
-4,
-21,
-70,
25,
21,
-3,
-22,
-66,
27,
46,
-21,
-13,
68,
11,
-50,
7,
-42,
22,
15,
-51,
-2,
-21,
-10,
46,
4,
-47,
-15,
1,
16,
36,
12,
26,
28,
-34,
-20,
3,
32,
-6,
27,
-66,
-47,
20,
34,
-16,
21,
-14,
-38,
-40,
-42,
-9,
26,
39,
0,
26,
58,
-22,
0,
25,
0,
-25,
27,
9,
52,
-7,
-22,
-29,
-13,
6,
35,
-33,
-32,
7,
-7,
-39,
-1,
-5,
-2,
29,
-15,
-13,
-25,
-10,
-16,
-2,
-3,
19,
9,
30,
19,
-59,
9,
-36,
29,
13,
20,
-35,
2,
12,
9,
31,
35,
-25,
48,
12,
-15,
2,
9,
2,
0,
-4,
37,
-25,
36,
48,
-16,
0,
32,
47,
-46,
29,
70,
69,
-21,
-18,
-23,
34,
12,
-8,
-14,
0,
18,
-32,
65,
4,
10,
-8,
10,
-8,
32,
4,
5,
33,
-34,
0,
-23,
-34,
-36,
-24,
39,
-18,
-18,
66,
-9,
3,
-35,
14,
-43,
-18,
7,
-4,
2,
-10,
-6,
48,
-19,
68,
-7,
-32,
5,
-22,
49,
40,
-36,
-13,
-31,
12,
26,
-17,
-39,
-12,
-30,
21,
-5,
29,
-19,
27,
-31,
2,
-32,
-2,
11,
-20,
-20,
59,
-30,
11,
19,
-14,
34,
20,
-16,
-2,
1,
-77,
13,
19,
-7,
-21,
20,
22,
-94,
-11,
7,
8,
-3,
9,
-16,
30,
0,
77,
6,
-25,
41,
-34,
0,
-9,
23,
62,
-27,
-24,
-17,
18,
-21,
-45,
49,
-41,
26,
-20,
7,
11,
-8,
-27,
-51,
8,
-54,
-46,
-8,
-7,
0,
-10,
29,
-54,
-2,
65,
7,
6,
3,
2,
31,
20,
37,
17,
-16,
31,
-7,
-58,
7,
0,
44,
-6,
5,
-3,
8,
9,
24,
31,
-18,
64,
24,
29,
-51,
33,
-59,
-46,
-5,
-10,
27,
56,
-26,
-16,
20,
33,
-7,
9,
10,
-50,
9,
-19,
-13,
38,
3,
30,
33,
-13,
-49,
-63,
-41,
0,
11,
9,
-43,
41,
-37,
-18,
-58,
2,
36,
-38,
-67,
-12,
-66,
26,
-109,
-22,
21,
4,
-30,
15,
11,
-10,
-18,
-19,
-23,
39,
-19,
-5,
3,
28,
-27,
0,
-2,
11,
15,
17,
-26,
-9,
-37,
11,
71,
2,
25,
-4,
5,
-39,
-21,
-32,
36,
-18,
8,
57,
5,
0,
-8,
6,
35,
-42,
73,
-17,
-38,
9,
-9,
12,
14,
31,
-43,
0,
9,
25,
-35,
19,
-2,
7,
53,
-42,
-16,
46,
15,
2,
49,
17,
-26,
-34,
5,
26,
12,
29,
-23,
-48,
33,
8,
-51,
-16,
30,
-8,
46,
-5,
-45,
6,
-27,
-13,
-8,
53,
-37,
61,
15,
-31,
14,
-44,
-8,
-89,
26,
-61,
-16,
-34,
-6,
1,
38,
-27,
-106,
15,
-63,
104,
-21,
4,
-3,
20,
-2,
8,
18,
-57,
16,
16,
19,
38,
39,
-24,
26,
-15,
20,
0,
-6,
62,
58,
-33,
-27,
10,
-2,
27,
-7,
34,
-17,
1,
-24,
20,
48,
-29,
-4,
29,
8,
-8,
-30,
27,
-39,
6,
12,
51,
-2,
5,
-35,
10,
-29,
27,
-38,
-7,
63,
20,
-11,
46,
44,
84,
6,
-50,
0,
63,
17,
-4,
-11,
-7,
57,
38,
-8,
-19,
1,
-10,
-7,
16,
-22,
33,
-28,
11,
10,
-45,
-25,
17,
-16,
-59,
-14,
-18,
0,
-11,
0,
14,
-35,
16,
2,
14,
-20,
-46,
0,
-25,
47,
32,
32,
-6,
-30,
-37,
23,
-8,
-31,
10,
-27,
-19,
20,
18,
-1,
-8,
6,
-8,
-16,
-85,
7,
-21,
-40,
15,
17,
36,
56,
-7,
4,
-25,
-38,
-7,
20,
-50,
2,
26,
4,
25,
-8,
9,
-5,
-30,
-8,
-11,
-21,
15,
8,
35,
-19,
16,
63,
-12,
-2,
10,
44,
-3,
-12,
-17,
11,
6,
-3,
25,
-37,
-36,
-27,
-6,
34,
32,
12,
0,
5,
-6,
61,
-49,
2,
2,
10,
-30,
-17,
34,
30,
11,
-8,
-15,
41,
41,
-34,
-2,
1,
-34,
-24,
-32,
-3,
-11,
-18,
-35,
49,
10,
26,
20,
14,
-12,
33,
-50,
18,
2,
10,
-34,
-45,
22,
43,
14,
8,
-7,
-42,
-15,
-12,
47,
-29,
44,
-2,
-32,
-1,
0,
44,
-9,
18,
15,
-1,
56,
-4,
-20,
16,
1,
-12,
12,
34,
-32,
20,
-41,
-46,
10,
4,
3,
-4,
0,
-35,
17,
-6,
24,
-34,
33,
33,
27,
-36,
0,
-5,
14,
9,
-3,
-21,
7,
-10,
28,
40,
-42,
6,
8,
-26,
-37,
30,
-26,
8,
8,
8,
16,
11,
16,
16,
-44,
13,
-8,
67,
-30,
28,
5,
-8,
0,
47,
-19,
-8,
85,
-21,
-30,
-51,
-55,
5,
-11,
-23,
58,
-1,
-18,
8,
-52,
1,
42,
53,
-4,
78,
-25,
30,
-21,
33,
16,
20,
4,
-29,
47,
-48,
-19,
6,
0,
-27,
40,
10,
13,
10,
12,
-56,
-29,
-77,
16,
14,
-59,
14,
10,
-34,
28,
11,
-27,
11,
-5,
16,
-67,
-38,
-4,
13,
-24,
20,
22,
-27,
-52,
29,
-12,
-40,
-20,
-12,
11,
7,
-14,
38,
14,
0,
-28,
5,
83,
53,
-57,
-75,
-9,
27,
-24,
15,
-17,
-17,
-4,
-28,
25,
23,
-75,
38,
11,
-34,
25,
-59,
-28,
-48,
-44,
-50,
-43,
-40,
11,
31,
-49,
47,
19,
-4,
-38,
21,
-60,
5,
-1,
25,
25,
-2,
-39,
43,
10,
1,
17,
-13,
27,
34,
-28,
2,
3,
-30,
1,
15,
27,
7,
2,
-8,
-67,
-33,
-15,
12,
-9,
41,
9,
-36,
-5,
33,
4,
36,
37,
64,
6,
10,
-47,
19,
-7,
-28,
2,
-41,
-32,
-14,
-4,
-20,
11,
-19,
-12,
-89,
38,
0,
61,
-7,
-6,
-9,
-21,
15,
-58,
-2,
41,
-1,
-14,
-3,
-14,
58,
54,
5,
-62,
-28,
-18,
17,
-58,
-6,
35,
75,
11,
7,
-21,
2,
-41,
-54,
19,
20,
35,
39,
-31,
-27,
-39,
49,
-26,
-56,
10,
19,
-30,
23,
-38,
6,
-34,
16,
6,
9,
4,
11,
-11,
18,
13,
-17,
-3,
16,
-2,
41,
-3,
4,
55,
-28,
13,
74,
33,
18,
-12,
13,
24
] |
Potter, J.
Defendant, a resident of Pontiac, Oakland county, was, on March 18, 1931, charged in a complaint made by Joe Palace, with the murder of Richard Coffee, at Pontiac, on November 27, 1930. A warrant was issued by the justice of the peace before whom complaint was made, and defendant arrested. At the April, 1931, term of court, defendant was arraigned, an information filed by the prosecuting attorney against him, he stood mute, and a plea of not guilty was entered by order of the court. The case was brought on for trial in the circuit court, May 8,1931. Before calling a jury, defendant moved for an order requiring the prosecuting attorney to indorse upon the information the witnesses named in the motion, whom defendant, by his attorney, offered to prove were known to the prosecuting attorney, as well as their addresses, and what they would testify to. This motion the court passed with a remark, “I don’t know anything about what witnesses are to be produced yet, so I am unable to rule on the motion.” At this time there was before the court the information with the names of witnesses indorsed thereon, the motion of defendant naming the witnesses, defendant’s offer to prove their residence, what they would testify to, and knowledge of the prosecuting attorney of the facts to be proved by them. A jury was then impaneled. The prosecuting attorney and defendant’s counsel made opening statements.
On the examination of the witness Heywood Gfullotte, it appeared he had made a written statement, and a carbon copy of this was presented to him, and he identified it as such and stated it contained the facts as witness had stated them to defendant’s counsel. Defendant offered the paper in evidence. The prosecuting attorney objected to the offer because the question was a repetition. The court rejected the offer because the paper was not properly identified, and sufficient foundation had not been laid for its introduction. We think there was no error in this ruling of the court.
Was there error in refusing to order the prosecuting attorney to indorse the names of all the eyewitnesses known to the people on the information, and call such witnesses?
The only legitimate object of a criminal prosecution is to show the facts — to lay before the triers the whole transaction as it was, whether it tends to establish guilt or innocence. Hurd v. People, 25 Mich. 405; People v. Etter, 81 Mich. 570; People v. Kindra, 102 Mich. 147. Eyewitnesses to alleged crimes should not only be produced, but sworn and examined by the prosecutor. Maher v. People, 10 Mich. 212 (81 Am. Dec. 781); People v. Deitz, 86 Mich. 419; People v. Kindra, supra; People v. Moore, 155 Mich. 107. The prosecution cannot claim a conviction upon evidence which either expressly or impliedly shows that but a part of the res gestae has been proven. The prosecuting attorney cannot thus deprive defendant of the benefit of the presumption of innocence and throw upon him the burden of proof. Maher v. People, supra; Hurd v. People, supra; Wellar v. People, 30 Mich. 16; Meister v. People, 31 Mich. 99; People v. Elco, 131 Mich. 519. There is no fairness in permitting the prosecuting attorney to select only those eyewitnesses whom he desires to call and not call others equally qualified to testify, and he cannot be permitted to resort to it. Wellar v. People, supra; People v. Swetland, 77 Mich. 53.
. “It is the duty of the people to produce all available eyewitnesses or excuse their nonproduction in a proper way.” People v. Todaro, 253 Mich. 367.
“The failure to indorse and produce these witnesses is not a mere irregularity. It is a positive invasion of a substantial right of defendant under the law.” People v. Blazenzitz, 212 Mich. 675, citing People v. Hall, 48 Mich. 482, 487 (42 Am. Rep. 477); People v. Price, 74 Mich. 37, 41; People v. Howes, 81 Mich. 396, 400.
Defendant’s counsel, by motion timely made, raised the question of the indorsement of the names of these witnesses on the information and their production as eyewitnesses. No order was made by the trial court. The prosecuting attorney said in his closing argument to the jury: “It is not my duty to put a witness on the stand I know about.” Under the circumstances, we think the refusal of the trial court to indorse the names of all of the eyewitnesses upon the information known to the people when the matter was called to his attention was error which tended to prejudice the rights of defendant.
Defendant introduced testimony tending to show his good character. On cross-examination of defendant’s good character witnesses the prosecuting attorney asked the following questions, and against defendant’s objection the court permitted the witnesses to answer the same:
“If it develops while he worked for you he was keeping company with a married woman and if you happened to know that, would that change his reputation in your opinion for being a law-abiding citizen? * * *
“If you knew, and the facts of this case show, that 'Mr. Hill was keeping company with a married woman, would that change your opinion any? * * *
“If yoq knew on the evening of .November 27, 1930, respondent went out to a social gathering, with no idea of. anticipating any trouble, and put that revolver loaded into his belt, took it with him, would that affect your opinion as to his reputation as a law-abiding citizen?”
Under all the authorities this cross-examination was improper.
“The appropriate proof of character is by establishing general reputation.” 22 C. J. p. 479, citing People v. Albers, 137 Mich. 678.
"When a defendant has put his character in issue by proof of general reputation, it is not competent nor relevant on the part of the prosecution to introduce evidence of independent acts of misconduct. 1 Wharton Criminal Evidence (10th Ed.), § 61.
“Rebutting evidence of character should in like manner be by proof of general reputation.” 22 C. J. p. 480.
“Nothing but general reputation is allowable for such a purpose. It cannot be attacked by proof of particular acts or particular suspicions. This doctrine is elementary.” Proctor v. Houghtaling, 37 Mich. 41, 44.
The reason for the rule is that to hold otherwise would raise collateral issues.
“As has often been remarked, the general reputation of any one may be expected to be within the knowledge of attainable witnesses at all times, but it would be impossible to be prepared for all the particular slanders which perjured and malicious witnesses might invent.” Proctor v. Houghtaling, supra, 45.
The rule of this case was followed by this court in Thibault v. Sessions, 101 Mich. 279, and Smitley v. Pinch, 148 Mich. 670.
“Within what limits must the rebutting evidence be confined? I think that that evidence must be of the same character and confined within the same limits — that as the prisoner can only give evidence of general good character, so the evidence called to rebut it must be evidence of the same general description, showing that the evidence which has been given in favor of the prisoner is not true, but that the man’s general reputation is bad.” Regina v. Rowton, Leigh & Cave C. C. Res., 520, 531.
There is a difference in the rules governing the introduction of rebuttal testimony and governing cross-examination. A witness who testifies to another’s good reputation may be cross-examined to test his knowledge and candor (22 C. J. p. 483); for that purpose it has been held he may be asked if he has heard of specific cases of misconduct. He may be asked these questions only to test his credibility and ascertain the weight to be given to his testimony. Rex v. Martin, 6 Car. & P. 562 (172 Eng. Repr. 1364); Leonard v. Allen, 11 Cush. (65 Mass.) 241; Commonwealth v. O’Brien, 119 Mass. 342 (20 Am. Rep. 325).
On the other hand, it has been held the people may not, on cross-examination of defendant’s good character witnesses, go into specific acts or conduct on particular occasions, and, when the trial court has permitted such cross-examination over defendant’s ■objection, judgment of conviction has been reversed. Nelson v. State, 32 Fla. 244 (13 South. 361).
4 Chamberlayne on Evidence, § 3314, thus summarizes the general rule:
“Where a witness testifies that the reputation of a certain person is good, he may be asked on cross-examination if he has not heard of particular acts of misconduct by such person. The inquiry must be limited to what the witness has heard, facts within his personal knowledge not being regarded as competent. The evidence is not received with a view to affecting the reputation of the person under con sicLeration. It is said to be admitted to test tbe credibility or the knowledge of the witness. This practice of cross-examination may be justified on either ground and the inquiry may disclose both a lack of knowledge and a lack of fairmindedness. A witness to good character in effect says either that he never has heard anything to the discredit of the person in question or that whatever bad rumors may have been existent are outweighed and overwhelmed by a general good reputation. Hence, it follows that an inquiry as to bad rumors may disclose that the witness is wilfully testifying to good reputation without regard to the facts or that he has no sufficient knowledge upon which to base his testimony. The practice borders dangerously near the forbidden practice of proving reputation by specific acts of misconduct, as testimony of a rumor that a person has been guilty of a particular act naturally must have some effect on the minds of the jurors in the direction of injuring the reputation of such person, although the presiding judge may expressly charge that it is to be considered as affecting the weight of the testimony of the witness only.”
Measured by this rule, the cross-examination of these witnesses over defendant’s objection was clearly error. Such cross-examination had nothing to do with the witness’s knowledge. Some of the questions were based upon the existence of something it was assumed the witness knew nothing about, but which the prosecuting attorney assumed might be subsequently developed on the trial. So far as based upon facts developed subsequent to the trial upon cross-examination, it was inadmissible. People v. Snyder, 173 Mich. 616; People v. Huff, 173 Mich. 620.
“Evidence, however, of general good character previous to the date of the transaction charged can not be rebutted by evidence of bad character after the act, and the cross-examination must be confined to acts prior in time to the act charged. ’ ’ People v. Huff, supra, citing People v. Laird, 102 Mich. 135.
There was a clear abuse of the right of cross-examination.
After the jurors had been deliberating for some time,- they were brought in and the trial court thereupon charged them as follows:
“In conferring together you ought to pay proper respect to each other’s opinions, and listen, with a disposition to be convinced, to each other’s arguments. And on the one hand, if much the larger number of your panel are for conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one, which makes no impression upon the minds of so many jurors equally honest, equally intelligent with himself, and who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath. And, on the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably, and ought not to doubt the correctness of a judgment which is not concurred in by most of those with whom they are associated; and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.”
This identical language was used by the trial court in Commonwealth v. Tuey, 8 Cush. (62 Mass.) 1, and is quoted in People v. Engle, 118 Mich. 287. We think the charge in this case complies with rules in the cases cited, and under the circumstances was not erroneous.
Complaint is made of the improper argument of the prosecuting attorney; of his stating to the jury what he thought of defendant’s guilt; that defendant’s counsel could lose no friends in Oakland county, “because he cannot lose something he doesn’t have,” and to his stating to the jury, “If you want to live with him (defendant) bring in a verdict of not guilty,” and other things.
(a) “The impropriety of expressing a personal opinion to the jury upon disputed facts has always been regarded as great, and has in some notable instances led to unpleasant strictures on the character of celebrated counsel. Whatever allowance may be made for professional enthusiasm, a deliberate and solemn averment of counsel’s opinion should never be allowed to influence the jury, and when given, as here, as an opinion under oath, it should have beén at once shut out and its influence guarded against by proper instructions, as requested.” People v. Quick, 58 Mich. 321.
A question similar to that raised here was before the court in People v. Montague, 71 Mich. 447, and received the condemnation of this court.
(b) The prosecuting attorney should be permitted to argue'the testimony, but has no right to state what he personally thinks or believes of defendant’s guilt, except as shown by proof. If he has first-hand knowledge of facts which legitimately tend to show defendant’s guilt, it is his duty to present them under- oath from the witness stand the same as any -other witness. If his knowledge is only that based upon the testimony, he should confine himself to his duty as a prosecuting official.
(c) The reflections by the prosecuting attorney upon defendant’s counsel, objected to, were, so far as this record is concerned, uncalled for and unjustified.
(d) Defendant was a colored man. There was no reason to seek to appeal to racial prejudice. The jurors may not have wanted to live with him, but that is no reason why he was not entitled to a fair trial, in accordance with the usual orderly practice. "We think the argument of the prosecuting attorney prejudicial and' erroneous.
The other errors complained of are not likely to arise on a new trial. Conviction reversed. New trial ordered.
Fead, Wiest, and Butzel, JJ., concurred with Potter, J. Clark, C. J., and McDonald and North, JJ., concurred in the result. | [
3,
-3,
3,
-24,
5,
-14,
-16,
0,
-36,
19,
36,
-35,
-8,
0,
-1,
3,
11,
31,
52,
-65,
29,
21,
-17,
-5,
-18,
6,
4,
18,
-44,
-14,
-1,
55,
-9,
8,
1,
-6,
43,
8,
4,
7,
4,
-11,
-10,
22,
-22,
-31,
-13,
-5,
37,
-26,
15,
3,
16,
26,
-17,
-43,
-13,
1,
24,
18,
-14,
8,
-5,
-43,
-56,
-32,
-2,
35,
-21,
6,
-32,
-26,
2,
16,
-1,
-32,
-23,
-41,
16,
9,
-19,
19,
23,
-25,
20,
-39,
0,
-80,
0,
-8,
-7,
-6,
10,
1,
30,
-9,
21,
2,
33,
-23,
-29,
11,
-44,
-1,
33,
9,
-25,
-16,
15,
42,
29,
6,
54,
-46,
-2,
-37,
-11,
-34,
33,
3,
5,
-30,
44,
37,
-35,
-10,
-34,
-24,
41,
-15,
9,
34,
0,
-20,
13,
22,
43,
-2,
11,
17,
17,
-32,
-1,
17,
-1,
12,
-63,
85,
-5,
18,
-35,
11,
24,
0,
-45,
12,
45,
-87,
-7,
-1,
-7,
1,
-53,
-49,
-23,
-6,
-44,
-14,
-24,
-18,
-56,
-21,
33,
0,
8,
-14,
-47,
-5,
0,
5,
13,
21,
-26,
-58,
-2,
-9,
-12,
3,
36,
8,
35,
0,
-59,
-7,
42,
68,
-18,
-4,
43,
-50,
50,
-32,
31,
-44,
3,
-15,
-49,
-6,
33,
0,
-56,
-47,
34,
-19,
22,
-14,
11,
-31,
17,
29,
-33,
-5,
-12,
38,
-11,
1,
9,
11,
-2,
14,
39,
2,
-5,
26,
-55,
-69,
-4,
27,
17,
22,
-40,
-30,
34,
3,
53,
7,
-21,
-28,
-56,
21,
25,
6,
-4,
-7,
-29,
-39,
9,
-58,
21,
14,
-16,
9,
16,
3,
3,
-11,
48,
-7,
-45,
9,
-31,
-40,
45,
41,
-22,
-14,
-17,
18,
1,
30,
-3,
-19,
-29,
12,
26,
3,
-33,
24,
-18,
-9,
18,
-37,
-55,
5,
55,
63,
8,
-60,
33,
-26,
35,
18,
8,
-81,
6,
-80,
0,
-10,
-27,
15,
15,
13,
13,
-15,
22,
5,
13,
-32,
43,
-13,
-43,
33,
-33,
-11,
24,
37,
9,
14,
-54,
18,
-17,
6,
18,
-42,
-67,
6,
-21,
-3,
48,
-31,
-23,
-11,
-30,
42,
11,
-2,
61,
55,
-34,
-52,
11,
-62,
-6,
-12,
-3,
-6,
-13,
-15,
7,
12,
16,
17,
0,
42,
18,
-23,
0,
-6,
35,
43,
36,
-13,
-51,
-10,
19,
-31,
26,
-21,
-37,
55,
-35,
15,
14,
-1,
45,
13,
18,
5,
-29,
45,
-63,
-5,
15,
-25,
2,
30,
48,
22,
11,
-22,
12,
42,
23,
8,
-35,
-3,
-46,
31,
-17,
39,
15,
0,
-26,
38,
11,
-42,
-6,
-10,
84,
4,
-28,
15,
56,
-27,
49,
-4,
6,
37,
31,
-4,
25,
-32,
42,
0,
29,
11,
-78,
-17,
-15,
17,
-22,
7,
-4,
14,
12,
-33,
-41,
6,
19,
18,
3,
61,
-8,
13,
15,
23,
3,
-18,
38,
17,
-15,
-17,
-15,
6,
-35,
-9,
-12,
17,
4,
-5,
22,
18,
-34,
-34,
-29,
1,
17,
-9,
27,
51,
22,
17,
-14,
-9,
-16,
-10,
-11,
-73,
1,
6,
15,
-69,
-14,
-2,
13,
45,
-8,
21,
-14,
-2,
-5,
-6,
-40,
-28,
-1,
37,
34,
-20,
2,
8,
-26,
27,
-30,
-27,
-26,
-23,
55,
-10,
-25,
-17,
35,
-36,
12,
12,
5,
32,
43,
-31,
-1,
-31,
73,
5,
0,
-13,
-8,
-16,
-31,
0,
17,
21,
34,
17,
62,
0,
-21,
25,
-32,
-35,
21,
-4,
38,
-29,
-23,
-25,
9,
37,
2,
7,
0,
7,
9,
11,
55,
33,
35,
-1,
-8,
-3,
48,
5,
-23,
17,
-35,
11,
-13,
40,
22,
20,
-1,
16,
1,
-13,
39,
-4,
1,
18,
20,
-11,
-11,
9,
-35,
25,
2,
-31,
9,
-38,
-51,
-24,
0,
0,
72,
25,
-7,
-4,
-19,
-22,
1,
-16,
8,
-67,
17,
-4,
-52,
3,
23,
38,
-71,
-51,
-37,
15,
-17,
-15,
-25,
20,
50,
14,
-44,
-21,
-26,
-5,
-56,
-17,
-44,
25,
18,
-1,
47,
0,
-31,
9,
-31,
9,
12,
-10,
11,
20,
-38,
4,
22,
-40,
-28,
35,
17,
-60,
-20,
-21,
54,
10,
-4,
19,
34,
-4,
-81,
-35,
-14,
40,
52,
-19,
30,
0,
25,
-61,
17,
-20,
-21,
-49,
-9,
53,
5,
-14,
18,
42,
-8,
-29,
33,
15,
9,
68,
-20,
-23,
19,
12,
-21,
-12,
40,
-20,
51,
-6,
-13,
-47,
-29,
-41,
7,
-50,
-25,
-8,
11,
-48,
-14,
-60,
-43,
12,
0,
13,
-30,
41,
-39,
-2,
14,
8,
-15,
6,
20,
0,
32,
2,
35,
24,
24,
-20,
43,
-23,
18,
-22,
91,
-10,
-9,
-5,
-55,
18,
-19,
-24,
-28,
-6,
-32,
7,
51,
-41,
-16,
21,
39,
87,
-4,
44,
-13,
26,
20,
-8,
-22,
0,
13,
25,
60,
-21,
-33,
20,
28,
46,
8,
27,
-17,
-50,
-6,
-6,
-23,
13,
-21,
-27,
32,
-29,
82,
-1,
-20,
15,
37,
-29,
0,
25,
18,
27,
-33,
-30,
-21,
-43,
-3,
6,
39,
-21,
43,
53,
7,
13,
41,
34,
5,
19,
6,
50,
32,
1,
11,
63,
-23,
-53,
-44,
8,
-35,
0,
-4,
-5,
-29,
-2,
5,
-17,
-28,
-46,
9,
0,
-70,
-15,
-18,
3,
9,
40,
0,
-4,
28,
19,
-10,
87,
11,
-4,
-14,
30,
11,
-12,
8,
31,
13,
-5,
31,
5,
0,
-45,
-33,
16,
6,
-40,
15,
64,
2,
25,
-18,
-70,
-2,
-33,
-8,
-38,
0,
-28,
8,
13,
6,
-3,
15,
-7,
-13,
33,
26,
-20,
-3,
-24,
23,
-8,
19,
16,
2,
-68,
-4,
9,
-1,
-3,
26,
12,
0,
-4,
-5,
-22,
18,
-16,
18,
23,
-22,
-27,
38,
-13,
-14,
-47,
-24,
22,
16,
10,
-44,
19,
-17,
-3,
-9,
-13,
19,
12,
0,
19,
-8,
33,
37,
-9,
12,
-4,
-28,
48,
22,
-35,
3,
-53,
21,
31,
17,
-60,
26,
-18,
-9,
12,
-66,
-46,
13,
3,
-35,
-13,
-2,
16,
-67,
-71,
5,
23,
4,
-12,
-17,
-39,
-14,
-3,
-42,
44,
19,
-16,
19,
-7,
-20,
25,
42,
21,
-10,
-43,
16,
-25,
8,
-42,
24,
3,
13,
-15,
-33,
-21,
-42,
31,
27,
-8,
42,
-22,
-14,
-1,
22,
14,
-33,
16,
-7,
19,
-34,
-28,
-17,
-19,
13,
53,
51,
38,
44,
-14,
-23,
31,
-40,
37,
-8,
21,
4,
-16,
-17,
27,
-1,
-1,
-30,
-36,
16,
37,
-22,
29
] |
Retaxation oe Costs.
Per Curiam.
By appeal plaintiff seeks retaxation of costs, awarded defendant for printing records and briefs on two appeals, claiming that such cost exceeds the customary and usual price of other mentioned printers. Defendant was not obliged to shop around to find the lowest bidder, but had a right to have the printing done by a reputable printer and tax the reasonable expense thereof. See Behr v. Baker, 257 Mich. 487.
The taxation by the clerk will stand affirmed. | [
-31,
43,
-22,
12,
21,
-12,
15,
-51,
2,
14,
13,
5,
-45,
6,
-28,
1,
15,
-21,
34,
-1,
-46,
-15,
-16,
22,
14,
-24,
36,
-21,
35,
-17,
-37,
22,
-37,
-24,
18,
-23,
-29,
6,
-3,
-11,
-11,
-23,
-1,
0,
-67,
6,
66,
16,
-17,
28,
5,
25,
-75,
-28,
5,
49,
32,
-23,
-8,
14,
-16,
14,
15,
19,
13,
36,
-25,
5,
31,
22,
-8,
-15,
68,
8,
13,
-108,
-18,
11,
-72,
43,
27,
-12,
-2,
-21,
14,
5,
8,
-56,
57,
-26,
-21,
-13,
-37,
-5,
23,
70,
8,
-8,
15,
34,
24,
23,
68,
14,
-41,
-27,
10,
-30,
-18,
-6,
26,
70,
4,
-26,
12,
55,
-61,
-7,
31,
28,
-58,
44,
-5,
-19,
1,
-10,
-4,
10,
-9,
-5,
-53,
24,
-77,
-24,
-12,
29,
21,
0,
-100,
1,
0,
20,
17,
-4,
-15,
5,
52,
-6,
-66,
23,
48,
78,
-22,
39,
2,
-13,
2,
-18,
1,
33,
20,
-14,
4,
3,
20,
91,
2,
-4,
30,
48,
26,
19,
12,
7,
-38,
40,
-2,
30,
0,
22,
6,
8,
5,
-22,
-11,
29,
-17,
35,
-9,
-16,
42,
-8,
-39,
15,
-33,
-14,
52,
68,
-66,
24,
-5,
-11,
20,
36,
26,
-45,
-34,
-25,
-18,
3,
6,
43,
-95,
-34,
32,
60,
17,
-3,
1,
72,
-10,
-48,
38,
-30,
-2,
3,
2,
29,
68,
20,
-20,
32,
-39,
-39,
-2,
-18,
12,
22,
45,
19,
-20,
22,
-27,
-66,
-4,
45,
34,
81,
-10,
30,
30,
19,
-30,
11,
-11,
-63,
28,
0,
-11,
-35,
-3,
12,
22,
-15,
-3,
24,
1,
51,
-12,
-3,
-59,
-1,
-24,
0,
-12,
-1,
-59,
-32,
-6,
-11,
24,
-17,
-31,
-23,
-84,
52,
9,
18,
29,
21,
12,
-12,
13,
-68,
22,
44,
-27,
-6,
-42,
-48,
-44,
-56,
26,
-26,
20,
-4,
18,
-3,
29,
3,
-19,
24,
-4,
10,
0,
-2,
-54,
-29,
-36,
-17,
6,
54,
0,
-13,
29,
14,
42,
-67,
12,
9,
-43,
-40,
34,
-29,
18,
-4,
-14,
86,
6,
-1,
55,
30,
-46,
13,
-18,
-41,
-9,
15,
25,
61,
-38,
56,
-4,
24,
73,
-90,
-1,
47,
-58,
24,
100,
57,
68,
-43,
0,
61,
23,
28,
48,
28,
6,
-30,
-40,
21,
12,
10,
26,
-9,
31,
31,
-20,
-34,
-64,
-5,
-31,
23,
36,
59,
-29,
-29,
-49,
9,
19,
-4,
-48,
4,
-23,
-33,
-64,
-63,
34,
35,
28,
47,
8,
-54,
1,
31,
-36,
57,
8,
-16,
-1,
18,
-4,
-7,
-6,
-11,
5,
46,
67,
6,
-67,
9,
-14,
-11,
-63,
39,
-1,
-30,
-49,
-23,
4,
-16,
3,
2,
-50,
-14,
-2,
9,
-26,
-42,
-80,
13,
-38,
-19,
-13,
0,
50,
-5,
-41,
-48,
22,
-16,
-6,
-33,
7,
-28,
-50,
33,
13,
7,
-5,
-19,
11,
-5,
14,
16,
-12,
26,
-27,
10,
32,
52,
-45,
-38,
-22,
-36,
-10,
21,
19,
-66,
-61,
-75,
-25,
11,
20,
36,
-20,
-7,
-15,
4,
18,
-79,
36,
-2,
-33,
10,
-17,
64,
-62,
-11,
6,
-46,
52,
-30,
-5,
-11,
64,
-33,
-29,
-14,
46,
13,
-2,
30,
12,
-9,
-37,
55,
-24,
-47,
-69,
47,
31,
46,
37,
30,
27,
19,
7,
-63,
-24,
-54,
-92,
-22,
-31,
5,
21,
28,
-70,
53,
37,
28,
20,
23,
-2,
-28,
36,
-47,
-70,
58,
0,
36,
-30,
5,
5,
-9,
10,
-72,
-2,
-14,
-27,
16,
12,
4,
1,
8,
-21,
41,
-36,
-49,
16,
22,
22,
-31,
-12,
-9,
30,
3,
-25,
53,
-13,
-19,
-44,
-15,
-23,
36,
42,
-4,
-39,
27,
4,
-18,
-3,
-9,
7,
-8,
74,
-11,
-48,
39,
14,
-3,
11,
60,
-27,
36,
-28,
-20,
53,
45,
-59,
-12,
-5,
-55,
-21,
38,
-8,
-27,
-15,
8,
-22,
57,
22,
-7,
40,
-40,
-32,
44,
61,
61,
-35,
2,
-53,
9,
81,
14,
-4,
6,
-65,
-18,
-4,
-51,
-9,
24,
0,
-9,
49,
15,
16,
39,
-17,
-17,
-34,
-49,
-73,
-46,
-22,
-40,
-71,
-62,
16,
-7,
-5,
54,
-56,
-6,
80,
-19,
14,
-22,
-73,
-19,
10,
-18,
-6,
33,
-49,
24,
-8,
21,
35,
72,
15,
58,
6,
-18,
10,
-11,
-32,
46,
-29,
-16,
17,
-29,
-33,
32,
-33,
10,
18,
7,
39,
42,
35,
-48,
-62,
4,
8,
-15,
14,
-34,
35,
4,
50,
-38,
-43,
19,
27,
-71,
34,
35,
37,
24,
-15,
-11,
-25,
47,
6,
-37,
-35,
-3,
17,
-6,
-44,
17,
-1,
-43,
49,
32,
-46,
0,
-4,
-8,
-24,
26,
-30,
-5,
-25,
66,
20,
-1,
26,
-10,
-22,
-65,
12,
-22,
25,
16,
37,
-26,
-5,
40,
-49,
10,
0,
-24,
28,
33,
-37,
9,
0,
20,
9,
-19,
-3,
12,
82,
-31,
-4,
-21,
53,
39,
-38,
-26,
5,
-39,
-4,
-60,
3,
-20,
-2,
0,
-19,
-5,
7,
20,
7,
-5,
6,
29,
18,
6,
6,
29,
-9,
38,
-41,
-25,
0,
-30,
-80,
-22,
33,
-39,
5,
-15,
-76,
0,
-10,
-8,
-4,
45,
0,
32,
-5,
25,
-15,
60,
37,
-30,
-34,
17,
15,
-13,
23,
43,
-18,
-29,
18,
-35,
17,
11,
-34,
-9,
14,
23,
-5,
-26,
-27,
20,
-28,
-8,
68,
40,
9,
-23,
-11,
-34,
63,
19,
1,
19,
-65,
-2,
-22,
61,
77,
-23,
7,
10,
20,
-57,
57,
-1,
2,
14,
32,
-18,
16,
-17,
-17,
-4,
-4,
2,
-9,
2,
-14,
-64,
-32,
-12,
10,
-5,
80,
-32,
-39,
6,
29,
16,
-36,
45,
62,
45,
83,
60,
-123,
-57,
-3,
6,
23,
-8,
20,
6,
-28,
4,
17,
41,
-68,
17,
52,
13,
-49,
33,
16,
7,
79,
-29,
-64,
-12,
39,
-17,
-8,
38,
18,
-47,
35,
-59,
0,
73,
-23,
-1,
-7,
-35,
-8,
-32,
-48,
40,
39,
-9,
-46,
-15,
1,
22,
-49,
10,
20,
0,
-45,
22,
-4,
-28,
3,
10,
-29,
-48,
-34,
28,
30,
-29,
-67,
-19,
33,
19,
8,
7,
-35,
-41,
20,
70,
-40,
-73,
23,
-30,
-94,
0,
-32,
51,
23,
23,
28,
-37,
-17,
6,
9,
-24,
27,
13,
77,
24,
-70,
-16,
66,
-40,
-7,
53,
62,
-71,
-23,
0,
-16,
59,
59,
-8,
35,
-2,
-15,
-16,
20,
-35,
18,
37,
3,
-14
] |
Potter, J.
Plaintiff sued defendants to recover damages claimed to have been sustained by reason of being struck by an automobile driven by defendant Woodrow Wilson. Plaintiff was a farmer living on highway U. S. 31, north of South Haven. Defendant Carl Hunt was the owner of a Chevrolet truck being used at the time of plaintiff’s injury by his brother Wilbur Hunt in hauling peaches. The injury to plaintiff occurred September 10, 1930. Wilbur Hunt was driving this truck south on highway H. S. 31, and when the truck was near plaintiff’s house on the highway, loaded with 150 bushels of peaches, its rear axle broke and the right rear wheel fell off. The truck was stopped on the right side of the pavement about five o’clock in the afternoon when it was still light. The driver of the truck, Wilbur Hunt, got a ride into South Haven and went to the Chevrolet garage of Decker-Moore, Inc., to get them to repair the truck. Their employees went out to where the truck was standing, and found it was necessary to pull the bearing from the broken axle. This could not be readily done on the highway, and one of Decker-Moore’s men took the axle to South Haven in order to pull the bearing, the other men remaining near the truck. While the truck sat on the highway it got dark. Plaintiff crossed the highway from his home to talk with the men about the truck. He sat on the edge of the highway about 15 feet off the wrought or traveled portion of the road. No tail light was on the standing truck. No warning lights or other signals indicated the truck was standing on the highway. It had green rear lights. Defendant Wilson testified, and it was not disputed, he was driving a Buick truck south on U. S. 31; it was dark and foggy in streaks; he saw the standing truck and two green lights when some distance away, but thought the truck was moving, and did not discover it was standing still until he was within about 15 feet from it. He intended to pass the truck on the left-hand side, but, when too near the truck to stop, he discovered other automobiles coming toward him, making it impossible for him to pass on the left side of the truck, so he turned out to the right, off the traveled portion of the road, ran over the plaintiff, brushed a telephone pole, came back into the highway, and stopped. There was judgment for plaintiff against the defendants Wilson and Hunt. We think there is no doubt about the liability of Wilson. He has not appealed. The important question is whether or not plaintiff was entitled to a judgment against defendant Hunt.
Defendant Hunt claims that after the accident, and after the men working for Decker-Moore, Inc., came out, the truck was under their charge, that they were independent contractors, and he is not liable for what they did or failed to do. The proofs, however, show this truck remained on the highway after it broke down; that after going to the garage of Decker-Moore, Inc., Wilbur Hunt came back to where the truck was standing to watch over it, to look after it, and that he lighted the lights on it, and, after it got dark, had he thought it necessary, he could have used a flashlight, which he had, to warn persons of the danger arising from the truck being left standing on the highway without a tail light. We think the testimony was sufficient to carry the question of his control of the truck to the jury.
Defendants’ claim is that, if Hunt was negligent, such negligence must have been the proximate cause of the injury to plaintiff before there can be recovery. There is much discussion in the books of the question of proximate cause. As said in Stoll v. Laubengayer, 174 Mich. 701:
“No general or authoritative definition has been evolved. ’ ’
Many authorities are discussed in that case. They are of but little assistance. If plaintiff’s injury would not have occurred but for the negligence of defendant Hunt, then Hunt’s negligence may be said to have been a proximate cause of plaintiff’s injury. It is not necessary for Hunt’s negligence to have been the sole cause of plaintiff’s injury.
“Where an injury is the combined result of the negligence of the defendant, and an accident for which neither the plaintiff nor the defendant is responsible, the defendant must pay damages, unless the injury would have happened if he had not been negligent.” Jaworski v. Detroit Edison Co., 210 Mich. 317, quoting from 1 Thompson on Negligence (2d Ed.), § 68.
“If a man does an act and he knows, or by the exercise of reasonable foresight should have known, that in the event of a subsequent occurrence, which is not unlikely to happen, injury may result from his act, and such subsequent occurrence does happen and injury does result, the act committed is negligent, and will be deemed to be the proximate cause of the injury.” Tozer v. Railroad Co., 195 Mich. 662, 666.
“It is elementary that where injury results from the concurrent negligence of two or more, each proximately contributing to the result, recovery may be had against one or more, although but one satisfaction may be had.” Banzhof v. Roche, 228 Mich. 36, 41.
“There may be more than one proximate cause for the same injury, and the mere fact that some other cause co-operates with the negligence of the defendant to produce the injury for which suit is brought does not relieve him from liability.” 2 Blashfield, Cyc. of Automobile Law, p. 1204.
See, also, Reed v. Ogden & Moffett, 252 Mich. 362.
It was the duty of Hunt to use reasonable care that the truck which he had been driving, so stopped in the highway, did not constitute a source of danger to other users of the highway. 42 C. J. p. 1007; Reed v. Ogden & Moffett, supra.
In Empey v. Thurston, 58 Ont. L. R. 168, 174 (1 D. L. R. [1926] 289), where a motor car was stopped on the road at night, it was held it was the duty of those in charge of it to use more than ordinary precautions to warn oncoming drivers of other motor vehicles.
In Seibert v. A. Goldstein Co., 99 N. J. Law, 200 (122 Atl. 821), where a truck was stopped on the highway without proper rear lights, at night, in a snowstorm, and no one went back to warn, by the use of a light or otherwise, the drivers of other vehicles of the obstruction on the highway, it was held the question of negligence was for the jury.
In Knight v. Wessler, 67 Utah, 354 (248 Pac. 132), where defendant left an nnlighted truck at the side of the highway at night, which caused the driver of an automobile to suddenly turn to avoid striking it, which caused his car to collide with plaintiff’s car, defendant’s negligence was held to be the proximate cause of plaintiff’s injury.
In Reed v. Ogden & Moffett, supra, the cases above referred to were cited with approval, and the owners of a truck standing on the highway at night without proper rear lights when it was dark and foggy were held liable for injuries caused by the driver' of an automobile putting on his brakes to avoid hitting the truck, as a result of which his car skidded and hit plaintiff’s car, resulting in injury and the damages complained of.
Under the circumstances, we think there was sufficient testimony to make the question of Hunt’s negligence and liability a question for the jury. Plaintiff was not guilty of contributory negligence. He was-where he had a right to be, and he was not bound to anticipate he would be run over by a motor truck driving off the pavement 15 feet on the right-hand side of the wrought' or traveled portion of the highway. • Judgment is affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
-16,
42,
1,
33,
-28,
-9,
-1,
40,
46,
13,
-20,
-8,
52,
17,
-16,
-17,
65,
-26,
12,
11,
-19,
-39,
0,
-19,
-22,
-26,
-5,
-30,
-49,
58,
37,
-22,
-10,
-23,
-47,
33,
23,
14,
5,
20,
10,
-22,
-14,
-11,
11,
-21,
38,
-38,
37,
8,
4,
-18,
4,
-20,
9,
-10,
49,
43,
-13,
0,
34,
10,
55,
-1,
-49,
-24,
-2,
53,
-15,
21,
-31,
20,
-4,
-7,
14,
-21,
6,
-6,
-12,
-16,
-26,
-7,
85,
11,
-4,
11,
-53,
0,
-8,
-43,
-26,
2,
-6,
24,
13,
0,
-57,
-31,
25,
-9,
-41,
0,
27,
25,
-23,
9,
-17,
-71,
0,
0,
-1,
71,
33,
15,
12,
-37,
10,
-3,
35,
25,
15,
-11,
2,
-21,
-29,
17,
-50,
-11,
-25,
34,
23,
17,
50,
44,
5,
3,
-27,
-47,
-29,
-6,
23,
4,
-40,
-5,
-10,
22,
-2,
77,
-32,
38,
-6,
1,
-23,
-3,
10,
-2,
33,
-3,
56,
5,
-45,
-16,
45,
4,
-7,
34,
0,
-9,
-22,
-20,
8,
21,
7,
-4,
34,
60,
21,
-10,
-62,
3,
-42,
15,
23,
-12,
-44,
-102,
-11,
42,
-55,
56,
39,
-48,
20,
-53,
-32,
46,
-8,
-55,
-13,
18,
63,
-31,
4,
-114,
-24,
-21,
44,
14,
41,
27,
-12,
-13,
33,
-24,
15,
11,
-4,
-29,
20,
-15,
23,
24,
4,
4,
-35,
-24,
-22,
-46,
31,
-9,
19,
-1,
-31,
42,
-58,
-16,
-27,
-51,
34,
21,
52,
-18,
4,
-28,
18,
27,
-52,
11,
-4,
29,
5,
-19,
-27,
-3,
-2,
18,
-24,
5,
28,
6,
24,
30,
31,
-2,
4,
-24,
36,
53,
10,
24,
-47,
-47,
50,
-1,
-62,
-42,
24,
33,
30,
-68,
5,
-13,
-34,
-27,
11,
26,
-19,
-24,
-18,
-72,
59,
-45,
7,
-16,
0,
28,
24,
-14,
3,
-4,
13,
-4,
-50,
-11,
20,
3,
-3,
-50,
-27,
10,
-66,
-41,
15,
-19,
59,
13,
36,
48,
9,
-22,
-12,
59,
-7,
34,
-12,
35,
-31,
-15,
3,
28,
17,
41,
21,
2,
12,
-53,
-20,
28,
65,
36,
-14,
75,
-3,
40,
-11,
-13,
67,
49,
19,
16,
-36,
-46,
22,
-56,
9,
-13,
52,
20,
-27,
44,
36,
9,
8,
14,
6,
-59,
34,
14,
-28,
41,
21,
-6,
32,
-8,
-12,
-48,
-25,
-13,
-9,
59,
18,
5,
8,
-53,
-9,
11,
2,
-12,
-41,
17,
-16,
-27,
60,
27,
27,
0,
-7,
13,
-24,
3,
-22,
19,
-27,
-44,
-22,
2,
-7,
-27,
2,
0,
-9,
2,
22,
47,
12,
-21,
26,
7,
-41,
-28,
17,
-4,
0,
-49,
88,
-29,
0,
7,
-2,
7,
30,
-47,
21,
-31,
-24,
-31,
-23,
-49,
-6,
-4,
-19,
-7,
-1,
25,
18,
-7,
-3,
26,
24,
-19,
52,
14,
5,
45,
-19,
-11,
16,
7,
-1,
-54,
-11,
-20,
-26,
-10,
-9,
0,
-1,
-17,
-17,
0,
29,
46,
6,
-3,
-15,
-10,
10,
-24,
3,
-9,
-46,
33,
-37,
-7,
-26,
-45,
-23,
55,
13,
0,
49,
1,
-39,
30,
-36,
45,
0,
50,
-53,
-6,
-39,
-20,
-87,
-40,
68,
-22,
9,
-46,
16,
43,
-37,
-27,
11,
13,
3,
-29,
-8,
13,
-25,
24,
35,
20,
-34,
12,
-44,
17,
42,
9,
41,
-25,
42,
-10,
-16,
53,
-13,
-40,
7,
27,
2,
-39,
-6,
17,
47,
-21,
-15,
-40,
9,
42,
57,
-6,
5,
-32,
22,
-45,
26,
12,
39,
-12,
6,
53,
9,
-67,
39,
29,
33,
-3,
1,
15,
51,
-3,
-29,
3,
35,
-24,
-11,
37,
-32,
18,
-51,
-8,
-66,
-13,
-4,
-11,
-34,
6,
8,
21,
-30,
-10,
-37,
-21,
7,
23,
46,
10,
21,
16,
7,
-4,
-5,
0,
-15,
46,
42,
6,
-23,
-1,
6,
8,
20,
-18,
11,
2,
0,
-12,
-48,
-34,
6,
-25,
17,
-45,
-37,
64,
25,
-12,
9,
45,
-6,
-67,
-45,
58,
-46,
33,
-33,
-36,
44,
44,
-33,
0,
-2,
-1,
50,
-42,
-51,
-43,
-10,
-1,
-91,
-27,
-65,
30,
-35,
25,
-45,
-28,
4,
-8,
-47,
12,
9,
-24,
-56,
-74,
-37,
-28,
-27,
6,
-32,
-3,
51,
-54,
32,
25,
32,
13,
-26,
62,
14,
1,
-3,
-17,
24,
-4,
37,
18,
34,
29,
33,
-52,
-32,
1,
-17,
3,
2,
28,
46,
-22,
-55,
-40,
-3,
4,
-47,
16,
-24,
3,
-7,
-24,
-8,
0,
-22,
28,
36,
-56,
-11,
33,
16,
-5,
-32,
-14,
21,
-26,
6,
-57,
-22,
10,
36,
-71,
-10,
3,
71,
14,
3,
-11,
-44,
-6,
34,
-19,
-48,
-54,
-21,
-5,
42,
7,
-36,
19,
-31,
29,
33,
60,
-4,
34,
53,
0,
31,
-46,
27,
-5,
-13,
-74,
-25,
-39,
49,
-14,
-60,
47,
29,
7,
-14,
-24,
-5,
16,
-10,
-63,
-11,
-40,
34,
1,
20,
-32,
-3,
-28,
-3,
-7,
0,
-17,
20,
8,
42,
30,
5,
7,
35,
-32,
-30,
2,
47,
10,
17,
11,
-5,
33,
-18,
81,
25,
-54,
42,
40,
30,
26,
0,
0,
34,
-61,
1,
-8,
27,
12,
-29,
27,
-4,
25,
-27,
-35,
-2,
-26,
3,
-42,
0,
-28,
21,
-5,
1,
44,
-27,
51,
63,
19,
0,
27,
20,
33,
-33,
19,
14,
16,
11,
33,
5,
-4,
-11,
-46,
-9,
-20,
-39,
17,
-8,
-6,
7,
35,
-39,
-59,
-58,
0,
31,
-19,
37,
-42,
6,
4,
14,
13,
-14,
-9,
20,
-5,
-16,
-20,
27,
-20,
-14,
-64,
23,
85,
-10,
7,
-55,
-54,
0,
54,
12,
-37,
52,
-18,
-29,
9,
-54,
46,
30,
-22,
-33,
21,
21,
-13,
-24,
-39,
31,
3,
-58,
-19,
21,
-7,
-52,
-26,
-4,
28,
4,
19,
-9,
7,
3,
8,
-5,
28,
-21,
-22,
-33,
-40,
25,
66,
38,
2,
0,
-11,
34,
25,
0,
-40,
-19,
-21,
81,
26,
-34,
13,
-21,
-81,
25,
28,
-29,
45,
2,
-23,
-14,
47,
-7,
-57,
-30,
-16,
33,
16,
-22,
52,
22,
-34,
19,
-3,
2,
5,
-21,
-13,
-15,
12,
-32,
-22,
46,
-47,
8,
26,
-9,
-4,
-1,
-16,
-43,
48,
25,
-29,
-29,
-58,
-18,
41,
-23,
27,
0,
64,
24,
-30,
-40,
22,
-8,
-21,
-19,
-28,
64,
12,
-23,
5,
13,
49,
3,
-3,
-71,
-2,
-20,
-28,
0,
79,
3,
9,
-10,
-77,
4,
6,
39,
12
] |
Potter, J.
Plaintiff brought suit against defendant by summons. Garnishment proceedings were instituted against the Peoples State Trust & Savings Bank. Disclosure was filed July 15, 1929, showing liability to the principal defendant of $554.99. This disclosure was sworn to by Archie E. Allen, auditor of the bank. A motion was filed by plaintiff to enter judgment against the bank upon the disclosure for the amount disclosed. On the same day a motion was filed by the garnishee defendant for leave to file an amended disclosure, alleging an error had been made in the first disclosure, and, as a matter of fact, at the time the original disclosure was made the hank was not indebted to the principal defendant, bnt the principal defendant was indebted to the bank. Both motions came on for hearing at the same time. Both were argued. The trial court found the first disclosure was erroneous and purely a mistake, permitted an amendment of the disclosure, denied the motion for a judgment, and permitted the garnishee defendant to file an amended disclosure which in effect amounted to denial of judgment for plaintiff. The general statute of amendments (3 Comp. Laws 1929, § 14144 et seq.) is broad and is to be liberally construed. Peacock v. Railway Co., 208 Mich. 403 (8 A. L. R. 964); La Plante v. DuPont, 223 Mich. 343 (31 A. L. R. 694, 23 N. C. C. A. 1); Wabash R. Co. v. Marshall, 224 Mich. 593; Gillen v. Wakefield State Bank, 246 Mich. 158. The right to permit amendments, in accordance with the statute, is vested in the sound judgment and discretion of the trial court. It aims to abolish technical errors in proceedings and to have cases disposed of as nearly as possible in accordance with the substantial rights of the parties. We think the action of the trial court was fairly within his discretion. Drake v. Railway Co., 69 Mich. 168 (13 Am. St. Rep. 382); Barber v. Howd, 85 Mich. 221; Dunn v. Detroit Savings Bank, 118 Mich. 547; Gerow v. Hyde, 131 Mich. 442.
Judgment is affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Lead, Wiest, and Butzel, JJ., concurred. | [
-24,
-15,
27,
-33,
38,
44,
31,
-39,
-6,
-2,
-1,
-32,
13,
-4,
-32,
-9,
-5,
4,
36,
-47,
49,
2,
15,
-6,
17,
25,
-12,
10,
-1,
-56,
16,
26,
-48,
46,
-17,
-49,
7,
-9,
-10,
0,
48,
6,
9,
10,
-5,
0,
-24,
4,
51,
-45,
43,
-26,
-27,
10,
-35,
-17,
-33,
-16,
-6,
13,
-4,
-15,
70,
-78,
-2,
-40,
37,
8,
-15,
1,
-18,
1,
7,
-12,
-50,
-1,
4,
-7,
-58,
-4,
-25,
-52,
14,
-32,
-23,
-5,
-14,
-13,
-20,
8,
9,
29,
-15,
-8,
49,
3,
-13,
19,
13,
-7,
-37,
-4,
-19,
19,
54,
26,
-34,
-51,
-37,
20,
-1,
-10,
26,
-57,
-52,
-34,
-2,
-14,
30,
-27,
12,
-19,
39,
-1,
-9,
13,
-9,
-22,
5,
26,
15,
35,
-33,
9,
-2,
9,
11,
-45,
15,
3,
-3,
-36,
-1,
-6,
-27,
38,
-25,
32,
32,
-31,
-49,
-9,
3,
34,
-7,
18,
-8,
-75,
32,
-25,
25,
39,
-21,
-54,
-35,
23,
-16,
14,
38,
-39,
-23,
-39,
13,
-34,
-10,
0,
0,
-45,
-18,
7,
35,
37,
21,
13,
11,
-28,
-3,
-23,
12,
29,
56,
2,
-58,
0,
0,
54,
-14,
-3,
35,
-61,
60,
-60,
10,
-7,
45,
-6,
18,
-64,
36,
1,
-12,
13,
11,
-18,
-54,
-10,
42,
-44,
0,
6,
-32,
16,
-21,
44,
-22,
-19,
19,
-40,
-13,
20,
-4,
-35,
2,
-7,
-46,
-6,
29,
-12,
63,
11,
-16,
-42,
-27,
-42,
50,
1,
-17,
-11,
-59,
13,
-9,
16,
-20,
-8,
-18,
-27,
13,
-42,
-38,
6,
8,
54,
-22,
-1,
-3,
-48,
-26,
27,
12,
1,
-29,
-53,
64,
4,
27,
-28,
-32,
9,
-9,
3,
-37,
-7,
7,
33,
14,
8,
0,
3,
-15,
43,
43,
0,
1,
11,
51,
83,
-23,
0,
23,
29,
0,
13,
22,
-54,
-33,
-5,
2,
-44,
-47,
-60,
51,
26,
-42,
-16,
47,
1,
18,
56,
41,
-32,
-6,
13,
-14,
29,
19,
17,
28,
-47,
-26,
-10,
-24,
-1,
32,
-1,
6,
-17,
24,
-28,
22,
-25,
31,
5,
-12,
14,
0,
-4,
11,
-21,
-21,
-3,
-7,
-34,
-6,
4,
6,
9,
6,
17,
-26,
50,
21,
29,
16,
-40,
27,
10,
-46,
2,
25,
84,
9,
-10,
-13,
-33,
-30,
-3,
-13,
-13,
-20,
41,
-23,
0,
-6,
8,
31,
-16,
-3,
51,
-40,
16,
-59,
8,
31,
19,
11,
-15,
57,
-11,
-36,
15,
28,
7,
8,
-11,
-49,
6,
-33,
0,
6,
35,
41,
27,
-4,
65,
-7,
-72,
57,
-6,
50,
7,
6,
-34,
12,
-50,
17,
-13,
44,
32,
-1,
-10,
-1,
-20,
7,
-26,
49,
41,
-40,
-36,
11,
31,
58,
41,
-13,
34,
32,
0,
5,
-6,
72,
23,
19,
9,
-9,
-7,
19,
-5,
-11,
0,
39,
0,
23,
-12,
13,
21,
-17,
0,
22,
-21,
5,
32,
21,
1,
-42,
17,
-17,
11,
8,
-9,
9,
27,
15,
19,
-9,
-20,
-45,
-23,
5,
-67,
-7,
3,
-4,
-3,
-11,
25,
35,
17,
-61,
-17,
-18,
-7,
-24,
-12,
-24,
-37,
53,
39,
-35,
-60,
12,
34,
-16,
4,
22,
7,
5,
-16,
22,
-13,
0,
21,
8,
39,
-2,
0,
-20,
-3,
17,
15,
69,
38,
52,
-6,
28,
-18,
-36,
19,
-17,
30,
16,
10,
8,
52,
52,
30,
22,
-3,
-47,
-4,
-19,
17,
-3,
-48,
27,
13,
-4,
41,
6,
36,
55,
-51,
13,
36,
14,
-6,
6,
-31,
4,
-24,
-6,
-66,
-40,
0,
-11,
-37,
-21,
23,
-26,
-13,
1,
-35,
-20,
-32,
-20,
-80,
-17,
-10,
19,
-26,
16,
25,
-5,
-38,
28,
-9,
51,
-24,
-23,
-21,
50,
80,
21,
-35,
-55,
3,
-7,
-26,
-11,
33,
1,
-1,
51,
-24,
16,
31,
38,
-29,
-28,
-48,
-21,
40,
-7,
-17,
32,
-31,
59,
-3,
-40,
0,
-42,
-16,
-1,
-48,
-79,
-22,
-3,
3,
-35,
27,
28,
41,
-6,
16,
26,
10,
10,
-17,
5,
29,
18,
-21,
-28,
34,
39,
-18,
-15,
14,
30,
7,
-9,
-41,
16,
-38,
-33,
13,
26,
-3,
57,
8,
51,
-4,
13,
-60,
29,
55,
55,
-32,
-59,
11,
-8,
-38,
-23,
50,
35,
5,
-8,
-32,
26,
18,
-7,
10,
22,
21,
-57,
5,
26,
-7,
49,
1,
-55,
-19,
-31,
2,
31,
21,
-14,
-38,
-65,
-1,
-24,
34,
11,
3,
-2,
-12,
24,
26,
-42,
24,
-48,
-10,
-54,
26,
49,
43,
-9,
-11,
26,
-10,
-11,
5,
-21,
7,
-10,
35,
7,
12,
0,
-16,
-16,
20,
54,
-10,
14,
-25,
-73,
18,
5,
34,
32,
25,
6,
35,
-58,
46,
14,
29,
-9,
-25,
2,
-36,
-10,
40,
35,
-70,
-28,
39,
19,
13,
9,
-36,
-24,
-22,
-11,
-11,
-30,
44,
36,
-67,
27,
-19,
80,
-18,
-1,
16,
36,
-30,
41,
21,
11,
18,
0,
-13,
-11,
-54,
25,
59,
39,
-9,
0,
-32,
-17,
26,
-9,
37,
18,
18,
30,
-13,
37,
0,
-24,
-6,
35,
-6,
-24,
3,
-29,
19,
-29,
-42,
-55,
60,
1,
1,
-36,
-27,
-54,
-12,
-22,
-49,
-6,
-17,
31,
3,
52,
-8,
43,
56,
14,
14,
-14,
-46,
-50,
35,
6,
54,
13,
-38,
6,
-22,
12,
7,
-20,
-18,
-25,
18,
-13,
-30,
36,
10,
29,
3,
-43,
2,
21,
-13,
-30,
6,
-25,
-62,
20,
76,
-33,
3,
-11,
-1,
35,
-49,
55,
-30,
-8,
-12,
14,
-32,
11,
-27,
41,
-33,
-31,
34,
15,
-11,
41,
6,
-17,
-27,
1,
-67,
-18,
-15,
23,
-14,
-41,
-13,
-5,
2,
9,
-6,
-41,
67,
-1,
6,
-25,
9,
-11,
24,
47,
12,
35,
53,
-21,
-22,
-4,
1,
-25,
-15,
54,
45,
8,
13,
34,
4,
-59,
7,
21,
-10,
3,
-58,
-4,
2,
24,
14,
4,
-4,
-26,
-69,
-12,
14,
-40,
1,
-59,
-56,
19,
21,
-25,
-31,
-28,
-11,
0,
-56,
11,
14,
-32,
-42,
18,
-27,
38,
-19,
23,
-6,
5,
-44,
-13,
-37,
-10,
2,
39,
-16,
-19,
-22,
43,
-50,
-61,
23,
-15,
-14,
-30,
-41,
33,
-12,
51,
25,
8,
-3,
12,
-41,
14,
-11,
19,
-16,
-27,
30,
23,
6,
-5,
-57,
28,
53,
-13,
27,
3,
6,
36,
-10,
-45,
22,
0,
30,
-25,
-29,
55,
22,
-38,
58
] |
Fead, J.
Defendant, under contract with the city of Detroit, constructed a sewer over 25 feet deep between the sidewalk and curb in front of plaintiffs’ premises. Plaintiffs’ house was about two years old and in good condition. A week or two after the sewer was constructed, the house moved slightly forward and was damaged. The sidewalk and pavement adjoining the sewer also sank. Plaintiffs had judgment on trial before the court.
There was ample testimony to justify the conclusion that the construction of the sewer caused the damage to plaintiffs. By force of circumstances, plaintiffs were not able to trace the moving of the house unequivocally and directly to a specific act of defendant. However, the testimony was that two possible conditions could have caused the ground to shift — that the contractor .neglected to fill in with earth around the tunnel during construction, and absorption of moisture through the brick of the sewer, the ground being of a soft, damp character. The contractor himself did not think the latter condition responsible for the damage. There was evidence of voids around the tunnel which could have caused it. It is not an application of the doctrine of res ipsa loquitur to find negligence from a condition which is shown to have existed and which conld have caused the damage, and all other possible explanations are excluded.
The circuit judge, on view of the premises, was of the opinion that the weight of the building did not cause the ground to move, but that the land shifted because of the contractor’s failure to take reasonable precautions. Bissell v. Ford, 176 Mich. 64.
In our opinion, the verdict cannot be said to be against the preponderance of the evidence, and judgment is affirmed, with coáts.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Btjtzel, JJ., concurred. | [
-48,
48,
8,
-62,
-14,
28,
1,
22,
10,
52,
55,
-11,
80,
-65,
-17,
-43,
-3,
1,
-23,
0,
-3,
-3,
36,
15,
-25,
31,
63,
-51,
-12,
44,
5,
5,
-12,
-15,
-47,
34,
18,
9,
27,
-31,
11,
-12,
-26,
-82,
47,
-3,
28,
-7,
-13,
-4,
0,
0,
-39,
-34,
-27,
-40,
-23,
19,
-28,
22,
10,
0,
-38,
14,
7,
25,
-29,
15,
1,
40,
-20,
28,
38,
-25,
50,
-23,
20,
14,
-17,
-6,
-10,
25,
64,
14,
32,
-29,
-35,
-16,
-13,
-4,
0,
-20,
39,
51,
-66,
25,
-18,
13,
-12,
15,
-11,
63,
-24,
12,
-18,
-4,
-16,
-46,
-13,
-13,
20,
41,
-4,
15,
-39,
-5,
50,
-5,
-29,
-41,
-17,
-13,
-23,
-27,
-61,
-13,
-7,
-40,
1,
-18,
4,
3,
-21,
15,
-6,
14,
-9,
26,
14,
31,
3,
-6,
10,
-10,
-33,
67,
15,
9,
39,
-22,
-29,
6,
27,
-18,
10,
32,
-41,
-44,
56,
34,
29,
4,
-17,
31,
-79,
6,
-42,
-5,
15,
17,
20,
-33,
4,
-52,
45,
-14,
-16,
16,
-12,
-50,
-1,
-29,
12,
-3,
-9,
-35,
-37,
-3,
32,
-29,
30,
-13,
-43,
-1,
-36,
46,
-22,
50,
25,
-37,
-19,
-19,
-26,
-30,
-20,
28,
-11,
1,
33,
-3,
30,
36,
21,
-31,
10,
-40,
52,
-9,
-16,
-14,
0,
-27,
16,
7,
-26,
24,
-18,
20,
36,
-4,
22,
-5,
1,
-16,
4,
6,
15,
18,
-23,
14,
23,
75,
-29,
0,
-18,
-3,
-34,
1,
10,
15,
-38,
-62,
27,
24,
-3,
17,
-10,
41,
-42,
-1,
50,
65,
-2,
-5,
71,
36,
-27,
9,
-27,
-30,
0,
37,
-4,
-26,
-58,
-19,
-77,
38,
-18,
64,
-50,
-10,
-39,
-17,
-12,
54,
0,
42,
-49,
17,
29,
-44,
-33,
-5,
19,
36,
43,
-7,
-16,
2,
-10,
9,
-50,
27,
19,
27,
-23,
70,
19,
8,
25,
21,
0,
52,
1,
74,
33,
-57,
16,
-16,
-2,
26,
-10,
-30,
-31,
-45,
30,
-21,
-23,
34,
-33,
51,
37,
84,
18,
-10,
40,
-52,
-47,
-7,
7,
25,
18,
-74,
10,
13,
-10,
-12,
-27,
0,
3,
3,
-2,
-10,
-35,
-16,
-14,
36,
-7,
24,
25,
-5,
-18,
11,
-45,
-30,
-18,
-28,
0,
32,
-7,
-38,
-22,
22,
9,
-28,
19,
8,
-24,
13,
21,
-32,
48,
-12,
21,
13,
-33,
-59,
-15,
14,
-34,
-66,
39,
18,
5,
-5,
0,
41,
-32,
22,
19,
9,
-17,
-4,
-18,
28,
-6,
-41,
-8,
-7,
-4,
-13,
0,
-7,
-60,
0,
40,
4,
39,
31,
5,
15,
25,
-19,
19,
-34,
56,
-11,
-18,
43,
3,
40,
4,
-33,
2,
37,
-21,
-40,
-38,
36,
-32,
24,
-26,
-35,
12,
34,
18,
40,
12,
-30,
45,
53,
21,
5,
21,
30,
-3,
-41,
69,
-12,
-24,
-40,
-15,
-77,
-30,
-6,
-39,
-6,
-2,
0,
9,
4,
38,
10,
47,
7,
-11,
24,
-48,
31,
68,
18,
-6,
4,
-33,
-36,
-10,
-24,
-15,
13,
12,
6,
-30,
-14,
-7,
46,
3,
24,
-35,
2,
15,
27,
-35,
-50,
25,
-37,
12,
15,
-5,
-4,
7,
-18,
24,
36,
-29,
29,
35,
-42,
33,
-24,
-2,
-8,
-24,
-25,
8,
46,
-47,
-1,
-21,
-4,
95,
-11,
-52,
4,
-37,
-20,
-11,
23,
17,
-39,
21,
29,
5,
8,
-18,
-15,
-32,
44,
-25,
33,
16,
-29,
-6,
29,
-19,
-23,
4,
-38,
16,
-1,
-48,
27,
48,
6,
30,
-14,
22,
-23,
54,
-18,
-29,
19,
21,
-22,
-15,
8,
-40,
-13,
-31,
6,
-42,
0,
-4,
-20,
-10,
35,
20,
-29,
-1,
-9,
-18,
-2,
-2,
-46,
-17,
-27,
-2,
8,
-6,
9,
52,
-40,
-38,
28,
44,
38,
17,
-43,
-3,
10,
57,
-29,
-44,
-10,
27,
55,
-17,
-22,
54,
27,
-5,
-10,
-37,
26,
-4,
-40,
-3,
-8,
-69,
9,
-30,
18,
19,
23,
16,
-48,
88,
-13,
4,
-14,
19,
28,
-17,
-7,
-20,
-24,
-20,
11,
-15,
2,
-8,
26,
-17,
-2,
40,
-11,
-21,
-57,
2,
-21,
48,
4,
-20,
-4,
-36,
33,
8,
-1,
-21,
-35,
-9,
25,
20,
34,
33,
-48,
28,
22,
18,
45,
19,
-34,
3,
-23,
11,
-40,
27,
15,
15,
-45,
23,
-9,
1,
0,
-9,
23,
40,
4,
-18,
-10,
0,
-22,
52,
11,
-33,
8,
53,
23,
31,
2,
22,
19,
14,
44,
6,
3,
-6,
-27,
-36,
-34,
54,
-35,
-10,
-59,
-44,
-79,
12,
13,
-74,
29,
-1,
11,
-6,
47,
1,
14,
-5,
-9,
-4,
-64,
21,
-8,
23,
-38,
-34,
-22,
71,
-7,
-10,
-5,
21,
-48,
48,
-30,
-34,
-18,
4,
5,
-31,
-1,
8,
-17,
6,
-34,
26,
-26,
44,
23,
-38,
-9,
-42,
46,
30,
-30,
4,
52,
-56,
-14,
47,
-27,
6,
5,
0,
10,
-1,
-32,
19,
-19,
35,
30,
-16,
-11,
-33,
14,
-16,
9,
7,
59,
14,
32,
38,
3,
35,
29,
-10,
23,
-39,
11,
29,
-7,
-4,
-50,
5,
-7,
23,
-30,
11,
36,
-2,
-9,
-1,
64,
1,
-42,
-2,
10,
-8,
-69,
-6,
-16,
45,
-42,
5,
75,
3,
2,
2,
23,
1,
9,
-9,
14,
-11,
-6,
-12,
13,
-56,
-4,
-37,
25,
-10,
-3,
66,
-19,
13,
38,
-7,
11,
27,
0,
56,
59,
-40,
17,
4,
-46,
0,
9,
26,
20,
22,
34,
-9,
-12,
-11,
-11,
-15,
1,
-8,
8,
2,
23,
25,
3,
-31,
-32,
-19,
-28,
-13,
94,
23,
-10,
10,
-2,
-27,
-20,
-16,
-11,
34,
-26,
-23,
-28,
-4,
6,
-21,
-64,
-6,
-20,
-33,
-43,
-3,
-3,
0,
2,
-5,
38,
-30,
-18,
21,
43,
6,
32,
20,
-32,
-48,
-17,
-48,
17,
-56,
4,
-8,
-21,
-8,
26,
-11,
-17,
29,
-12,
-18,
-33,
38,
-67,
-16,
68,
-1,
-10,
-10,
-23,
64,
2,
34,
14,
23,
31,
24,
-28,
-22,
-28,
-16,
-14,
25,
1,
-20,
-16,
30,
-21,
28,
-16,
-45,
44,
-3,
-3,
-8,
-8,
-2,
-64,
-8,
-12,
-46,
-72,
2,
-44,
-15,
35,
13,
-15,
5,
-60,
-52,
-32,
-35,
11,
43,
23,
-37,
-21,
-19,
-20,
28,
14,
-25,
34,
-3,
40,
4,
17,
17,
-2,
48,
-37,
-48,
38,
22,
32,
-40,
26,
-65,
37,
-1,
-19,
55,
14,
-21,
37
] |
Btitzel, J.
This is an appeal from a decree granting a divorce to the plaintiff husband on grounds of extreme cruelty. The parties are in accord as to the legal principles involved, the sole question being whether the trial court made a correct decision on the facts presented.
Michael and Marian Kinek were married in Whiting, Indiana, in 1941. They have 1 child, a girl born in 1942. They lived together until 1943 when Michael was inducted into the army. During his 3 years of service, his wife lived with her parents in Whiting. She supplemented her regular allotment checks by working in a factory. Michael met an English girl while in the army and desired to marry her. He instituted divorce proceedings in the Wayne county circuit court upon being discharged from the service in 1946. The suit was contested and the bill was dismissed. Since 1947 plaintiff has resided in Greenville, Michigan, where he became half owner of a bar. His wife remained at home in Indiana. While living in Greenville, the plaintiff became infatuated with a young lady living in Lansing, and the evidence seems to indicate that they were very intimate. The wife and the child joined the plaintiff in Greenville in the early part of June, 1948. Although the husband was not pleased at her arrival, his better judgment prevailed and the wife and child moved into the home of the husband’s partner. The husband and his partner occupied the upstairs bedroom, the wife and child using the one downstairs.
Very shortly after the wife’s arrival, the Kineks met with plaintiff’s attorney at his office and he advised them to reconcile their differences and resume ■their marital relationship. This was done, although there is a direct conflict in testimony as to the intimacy of the relationship. However, the wife performed the usual houséhold tasks and the husband claims that he stopped his Lansing affair at least for the time being. During the next 3 months the husband was not shown guilty of any conduct which would support a divorce or constitute a defense to one, although he was not as warm and friendly as a husband should have been. There was some testimony that the husband did not give sufficient money to his wife, but the family was provided with food and shelter, and as the husband’s financial position was not strong, it cannot be said that he was derelict in his duty.
During the reconciliation period the husband’s mother died. When he returned from the funeral, he was publicly accused by the wife of murdering his mother. She testified that she said this because she felt that his lack of attention towards his mother had brought about her' earlier demise. The wife made scenes at the husband’s place of business. On one occasion she accused him in vile terms and in a loud voice of being intimate With every woman in Greenville. This was done in the presence of-customers, employees of the establishment, and the little daughter. On another occasion she accused the husband’s partner of running a bawdy house, a completely unfounded accusation. There were also constant quarrels over money.
On August 30, 1948, the husband filed a petition for divorce, alleging extreme cruelty. He was granted the decree and this appeal followed.
The trial court found that there was a reconciliation in June, 1947, and that the parties had condoned all previous marital offenses. This being true, the wife could not use the husband’s prior misconduct as a recrimination in the action. The court further found that the husband had acted properly after the reconciliation, but that the wife’s conduct constituted' extreme and repeated cruelty. The appeal is taken on 3 grounds: First, that the wife was not guilty of cruelty; Second, that the husband was guilty of misconduct after the reconciliation had taken place; and, Third, that there was never a complete re'conciliation and condonation between the parties.
There was no evidence to support the wife’s charge that the husband was guilty of misconduct after the reconciliation, nor is there any doubt that under our decisions the wife’s conduct offered sufficient statutory grounds for divorce. False accusations of misconduct have often been held to constitute extreme cruelty. Ziontz v. Ziontz, 324 Mich 155; Mark v. Mark, 319 Mich 258. Repeated interference with the husband’s business is extreme cruelty. Cotton v. Cotton, 243 Mich 436; Gordon v. Gordon, 330 Mich 67. The wife accused the husband of murdering his mother. Calling improper names can at times constitute extreme cruelty. Begrow v. Begrow, 162 Mich 349 (139 Am St Rep 562).
The critical issue in this case is whether the husband’s offer of reconciliation was made in good faith, or whether it was a ruse designed by him to show condonation in a later effort by him to obtain a divorce. With the conflicting testimony we must largely rely upon the finding of the trial judge who saw and heard the witnesses and was better able than we are .to arrive at the truth. Creech v. Creech, 126 Mich 267; Jaguish v. Jaguish, 314 Mich 386. The court found that the reconciliation was made in good faith, that the parties resumed cohabitation, and that the husband made an honest attempt toward reestablishing the marriage. While there are implications of fraud in the record, that is a charge that requires strong evidence for support. In Farley v. Farley, 278 Mich 361 (109 ALR 678), we said at page 367:
“The rule is recognized in 9 RCL, p 380, § 173, 19 CJ, p 84, § 193, and 14 ALR 939, that fraud inducing condonation prevents the latter from taking effect; however, this rule must be applied in consideration of the well-settled maxim:
“ ‘Fraud is never presumed; it must be proven by a preponderance of the testimony.’ Steele v. Shaffer, 241 Mich 632.”
There is not sufficient evidence in the record to establish that the husband’s attempt at reconciliation was not made in good faith, and under these circumstances, we must accept the trial court’s findings.
The decree provided that the wife was to have custody of the child, and that the husband was to pay $15 each week towards its support until the child reached the age of 17 years. The husband was ordered to pay $1,250 to the wife as a property settlement. The wife testified that she had saved $2,500 and when the husband returned from the service, he took the greater share. The testimony indicates that the husband offered to pay $1,500, and the wife should be given that much.
The decree will be modified to increase the property settlement to $1,500, and, as modified, is affirmed. No costs.
Reid, C. J., and Boyles, North, Dethmers, Carr, Bushnell, and Sharpe, JJ., concurred. | [
25,
-7,
-18,
33,
-69,
-76,
-40,
11,
-9,
-40,
-46,
-43,
3,
-19,
-24,
-33,
34,
9,
19,
34,
22,
-5,
-36,
40,
5,
65,
45,
-4,
-4,
-18,
-9,
37,
-9,
-57,
-3,
-25,
50,
-54,
-8,
15,
-36,
-67,
-3,
44,
-35,
11,
50,
-46,
-44,
0,
22,
-19,
63,
-8,
35,
41,
28,
43,
8,
-10,
-30,
38,
6,
15,
25,
-7,
53,
14,
9,
-49,
12,
-88,
-57,
-38,
-21,
-6,
16,
54,
14,
3,
25,
-26,
10,
30,
-50,
8,
-2,
28,
-50,
91,
32,
28,
-15,
-25,
13,
-3,
4,
11,
-33,
-16,
-11,
-1,
4,
24,
4,
49,
36,
-24,
-12,
-5,
26,
34,
51,
33,
-7,
-4,
26,
-46,
8,
14,
22,
77,
19,
-3,
61,
-53,
-15,
-25,
43,
-41,
-24,
0,
6,
-3,
10,
-89,
4,
-83,
-24,
-54,
-6,
-17,
0,
17,
40,
-35,
-18,
-41,
-5,
-26,
-54,
-42,
8,
35,
83,
20,
14,
-26,
-5,
-17,
21,
-14,
11,
60,
4,
-70,
-14,
44,
-22,
7,
31,
18,
17,
16,
9,
75,
-14,
9,
-24,
41,
-3,
21,
24,
-21,
-34,
-35,
-29,
-48,
-26,
-36,
-32,
-48,
53,
-18,
41,
29,
13,
6,
28,
22,
26,
11,
28,
9,
29,
-23,
20,
22,
10,
-10,
16,
47,
40,
-53,
-54,
-29,
-24,
-41,
-80,
-19,
57,
-19,
-15,
-33,
-81,
-50,
20,
10,
7,
0,
-7,
18,
-2,
13,
-48,
1,
-13,
25,
11,
-28,
-30,
6,
23,
45,
-11,
6,
-55,
17,
8,
45,
-3,
26,
-54,
24,
10,
15,
-18,
13,
82,
22,
-22,
31,
-20,
28,
-21,
35,
-15,
-15,
-24,
-53,
2,
-44,
11,
-43,
-15,
-3,
-24,
48,
-41,
24,
-10,
20,
-39,
4,
-16,
15,
24,
-23,
14,
-6,
47,
-24,
-45,
-44,
26,
-24,
-18,
-24,
-37,
36,
-32,
-13,
11,
-35,
10,
0,
-38,
0,
7,
-3,
19,
-24,
34,
22,
23,
23,
-31,
11,
21,
-16,
-22,
2,
-42,
-47,
1,
4,
-4,
-43,
-13,
24,
-23,
22,
5,
45,
17,
-24,
-23,
-21,
17,
1,
-33,
-4,
24,
20,
-26,
-9,
8,
62,
10,
8,
1,
-20,
34,
8,
-80,
37,
-30,
-5,
2,
-34,
25,
-57,
-66,
-1,
-28,
12,
47,
-59,
-8,
46,
79,
18,
-7,
21,
21,
44,
8,
53,
58,
35,
-2,
-13,
0,
37,
-30,
27,
10,
-30,
-38,
5,
-9,
-9,
45,
16,
-21,
-18,
-7,
-8,
-16,
-26,
-35,
5,
-4,
10,
5,
4,
5,
32,
5,
3,
-9,
-51,
37,
51,
17,
19,
30,
3,
47,
-34,
22,
19,
41,
-60,
-12,
-4,
-47,
-18,
17,
-15,
-2,
3,
24,
12,
46,
-15,
-21,
40,
5,
-1,
-41,
45,
-22,
23,
-68,
0,
-28,
20,
23,
-1,
-8,
-27,
-13,
1,
-7,
8,
-30,
-7,
-4,
3,
34,
-19,
23,
-79,
50,
-31,
-43,
-5,
17,
-14,
47,
-19,
-10,
51,
-9,
-33,
7,
15,
6,
-83,
0,
5,
-44,
13,
-13,
-4,
-44,
-29,
24,
-34,
5,
-1,
-21,
55,
8,
-49,
24,
27,
-11,
-22,
-62,
6,
31,
20,
24,
7,
-30,
-5,
21,
-27,
26,
-21,
0,
18,
-14,
-3,
37,
36,
17,
-2,
-15,
5,
63,
1,
-9,
-15,
46,
-40,
-70,
-8,
9,
17,
-42,
13,
29,
-28,
-24,
-74,
-21,
-38,
18,
-8,
11,
-15,
-15,
-12,
-4,
33,
-28,
45,
-11,
-45,
-41,
27,
34,
-21,
-1,
46,
-13,
-19,
-2,
-33,
0,
29,
-20,
-47,
-24,
-39,
41,
-3,
-19,
7,
-12,
15,
45,
20,
0,
-22,
-36,
23,
16,
-7,
-6,
7,
5,
-6,
-20,
14,
10,
-4,
-70,
-4,
1,
-27,
66,
-65,
0,
1,
21,
-22,
6,
-32,
24,
-7,
12,
27,
-9,
26,
-4,
-21,
5,
-19,
-20,
-7,
-62,
8,
18,
-78,
-2,
25,
-8,
24,
-7,
-13,
0,
-11,
62,
12,
-50,
-11,
-8,
4,
65,
35,
40,
14,
49,
-26,
-4,
13,
-2,
-6,
-35,
30,
-21,
-39,
-54,
2,
-14,
-9,
0,
2,
-28,
21,
12,
-32,
7,
-17,
-3,
18,
-36,
-12,
-19,
44,
4,
-20,
-4,
22,
-12,
15,
-49,
36,
40,
8,
-23,
48,
-24,
-17,
70,
-18,
-10,
-54,
10,
9,
-10,
17,
50,
-7,
-10,
-43,
-58,
-24,
10,
-8,
-30,
13,
-33,
74,
9,
-14,
16,
-21,
-40,
-14,
26,
35,
6,
-23,
-54,
0,
-19,
51,
-1,
-45,
-33,
35,
33,
-25,
-14,
31,
-18,
11,
-2,
-56,
12,
-8,
-11,
-21,
18,
40,
23,
7,
4,
-3,
-39,
32,
-26,
-3,
-40,
-2,
32,
-9,
-1,
9,
-8,
-29,
0,
-30,
19,
12,
-1,
34,
-11,
-25,
-17,
-3,
51,
-6,
-54,
-22,
-6,
30,
-7,
-29,
-41,
9,
30,
-47,
71,
-15,
-39,
-39,
-17,
7,
-62,
8,
-40,
26,
1,
-26,
-38,
-17,
-19,
-15,
18,
23,
20,
-20,
43,
31,
-32,
-67,
-2,
-21,
19,
20,
16,
6,
32,
-11,
72,
75,
-18,
-19,
-20,
12,
-6,
22,
-8,
37,
38,
47,
29,
-14,
-16,
33,
0,
7,
-35,
26,
59,
2,
-8,
32,
17,
-10,
-23,
26,
-17,
-2,
-10,
-6,
12,
33,
-26,
49,
62,
-20,
-27,
4,
42,
-26,
-7,
24,
25,
38,
20,
-3,
50,
5,
33,
-47,
-52,
1,
9,
14,
0,
28,
2,
4,
-34,
-10,
-8,
-51,
-23,
-3,
14,
-34,
21,
31,
29,
-66,
5,
16,
-22,
42,
19,
-33,
-26,
29,
-15,
15,
16,
-10,
3,
39,
10,
28,
-3,
-42,
18,
58,
40,
-5,
-4,
0,
-14,
-5,
-25,
-37,
3,
-24,
29,
35,
44,
-35,
6,
37,
-3,
-20,
17,
26,
-13,
16,
3,
17,
-29,
31,
5,
-54,
3,
-82,
5,
9,
-9,
-28,
-27,
-45,
-28,
42,
43,
-75,
-21,
-26,
29,
21,
-2,
-14,
43,
2,
6,
17,
-9,
12,
9,
18,
-11,
-8,
-2,
17,
33,
34,
-5,
35,
8,
15,
23,
-6,
-10,
20,
-11,
23,
-23,
-5,
-9,
-24,
17,
84,
8,
-24,
-22,
-7,
29,
-39,
-6,
-7,
38,
61,
-1,
-63,
-9,
0,
-8,
12,
10,
-27,
-3,
-31,
-58,
-23,
19,
3,
-7,
1,
8,
32,
20,
-23,
13,
21,
0,
-8,
33,
-5,
28,
17,
16,
-6,
-39,
-6,
-12,
32,
33,
0,
-32,
21,
-48,
14,
21,
40,
-48,
7,
21,
17
] |
Reid, C. J.
Robert Brooks is being detained in the Lapeer State home and training school as a feeble-minded person by virtue of a commitment by the probate court for Ionia county dated November 8, 1947.
Petitioner in the instant habeas corpus case, Howard Brooks, claims the proceedings for the commitment are defective because no order was made for personal service on Murrel W. Jinks, the county agent, and petitioner in the case before the probate court, but the record shows that said petitioner Jinks appeared on the hearing and the proceedings are not void for want of personal service on him. See In re Petition of Roth, 271 Mich 178, 180.
Petitioner also claims the petition is void for want of recital of facts on which the statement of feeble-mindedness of Robert Brooks is based.
The petition, .of Jinks .states:
“And that the facts upon which skid 'allegation is based, are as follows: As a result of psychometric tests given the above individual we find that this boy is definitely a mentally deficient individual and according to the revised Stanford-Binet Scale he has an intelligence quotient of 58. He is able to read words of only 2 or -3 letters and in some cases a longer word that he is familiar with, such as- the word mother. However, in the performance test where it is not necessary to read or write he shows improvement. He certainly is extremely undeveloped both physically and mentally.”
We consider the above statement, in part at least, ‘to be a recital of facts sufficient for the purpose of conferring jurisdiction on the-probate’court.
Petitioner also claims the proceedings defective on the ground that the physicians’ statements contained only conclusions and not facts. The recital of facts in one doctor’s certificate is as follows:
“He is definitely mentally retarded and although 15 years old is in the sixth grade. He cannot subtract ' 9 fram 100, does not know how to multiply, and shows little interest in any type of academic learning.
“He needs special training of the type that will fit him for some useful vocation. It is my recommendation that he he placed in an institution that can give him this training.”
These recitals do not necessarily show anything more than illiteracy or ignorance on the part of Robert Brooks. The recited facts may be due to feeble-mindedness, hut the doctor’s certificate does not disclose facts indicating that to he the case.
The petitioner also claims a lack of holding a proper inquest and lack of record of inquest. There is no record of an inquest and we cannot presume' an inquest was held.
A properly held inquest is of utmost importance to the safeguarding of the rights of a person brought into court and there charged as being feeble-minded.
For want of proper certificate of the doctor and also for want of an inquest duly held and recorded, we determine in this case that the commitment of Robert Brooks is void. Our decisions in the cases of In re Fidrych, ante, 485 and In re Floyd Brooks, ante, 628, this day decided, control our decision in the instant case in certain particulars. The writ will issue and have the effect of releasing Robert Brooks, sub ject to further proceedings. No costs, a question of public importance being involved.
Boyles, North, and Butzel, JJ., concurred with Reid, C. J.
Dethmers, J. For reasons stated in controlling opinion in Be Fidrych, ante, 485, I concur in the result.
Carr, Bushnell, and Sharpe, JJ., concurred.with Dethmers, J. | [
62,
-27,
18,
82,
-28,
-32,
29,
-46,
-46,
46,
23,
-47,
2,
3,
11,
-15,
-49,
-10,
-6,
-45,
-58,
-12,
21,
81,
7,
0,
-6,
57,
-33,
9,
56,
-2,
-11,
-43,
-8,
0,
54,
-33,
35,
28,
-43,
22,
19,
-20,
-47,
-52,
-22,
27,
16,
-37,
-25,
4,
61,
2,
8,
-13,
27,
9,
-10,
-32,
6,
14,
36,
-57,
-34,
2,
-21,
5,
-30,
-35,
7,
12,
0,
5,
7,
-1,
-51,
35,
38,
57,
52,
-48,
-7,
10,
11,
-49,
0,
11,
-20,
17,
22,
4,
-23,
-1,
-36,
1,
14,
-19,
72,
-28,
-41,
6,
41,
10,
-27,
2,
-36,
-10,
-64,
28,
8,
10,
51,
-29,
-21,
-67,
-13,
-40,
-21,
7,
-28,
0,
61,
-24,
27,
-62,
-14,
-12,
49,
6,
21,
54,
19,
5,
16,
21,
8,
-2,
7,
-31,
-46,
-4,
-1,
18,
75,
11,
5,
-38,
45,
-5,
-24,
0,
37,
-31,
-4,
47,
14,
-1,
-44,
6,
60,
-8,
-34,
0,
33,
-33,
12,
37,
8,
21,
20,
39,
-21,
-29,
-20,
16,
16,
81,
13,
-20,
8,
-28,
54,
-25,
-45,
4,
-30,
2,
27,
27,
-21,
14,
2,
31,
24,
7,
-22,
14,
2,
-44,
-73,
17,
46,
8,
-10,
-13,
15,
13,
-33,
11,
-20,
-19,
19,
-5,
23,
7,
-16,
-23,
29,
-4,
9,
17,
47,
30,
14,
5,
-7,
-7,
-37,
-27,
37,
21,
-43,
-26,
0,
-18,
29,
-27,
-5,
12,
-47,
-38,
47,
32,
13,
-7,
-48,
20,
-3,
-16,
-30,
41,
-28,
-23,
-12,
-37,
25,
-13,
-12,
-2,
-9,
-2,
-20,
4,
-30,
23,
-33,
7,
0,
10,
4,
-10,
-15,
-39,
7,
29,
-23,
-26,
53,
-27,
25,
12,
19,
73,
-34,
-39,
14,
8,
5,
-14,
41,
-17,
11,
-34,
44,
-25,
30,
-7,
-7,
1,
30,
-2,
34,
32,
-29,
5,
47,
-47,
-9,
20,
13,
-24,
-22,
27,
5,
-37,
-38,
-37,
-43,
-15,
-19,
-40,
-50,
4,
55,
-37,
17,
-2,
13,
1,
-15,
-34,
2,
3,
19,
34,
-5,
-10,
-16,
11,
23,
62,
-37,
42,
12,
1,
-17,
28,
-44,
-31,
-22,
40,
5,
-16,
-42,
-31,
-29,
-44,
35,
13,
-20,
-24,
-9,
13,
-17,
-11,
-1,
-42,
-4,
-11,
12,
-42,
13,
-9,
54,
-3,
17,
-36,
11,
4,
-35,
27,
19,
-14,
-8,
-39,
-38,
16,
64,
-11,
-22,
21,
-25,
-7,
-22,
-7,
-4,
28,
-28,
-29,
5,
-23,
2,
51,
45,
13,
-9,
4,
23,
16,
18,
87,
5,
35,
42,
-18,
14,
-24,
-40,
-12,
-2,
42,
26,
-26,
17,
0,
-58,
39,
-10,
8,
31,
-35,
-1,
-14,
42,
-47,
-32,
18,
46,
-9,
-62,
-5,
7,
-34,
-16,
22,
5,
-6,
11,
-67,
-2,
-8,
-11,
-52,
-21,
24,
14,
14,
5,
20,
0,
-2,
26,
5,
55,
12,
22,
11,
-4,
13,
-18,
11,
-54,
46,
29,
-3,
10,
12,
52,
-59,
21,
-22,
-53,
6,
-19,
4,
-12,
-4,
-42,
8,
13,
-41,
-24,
-17,
10,
17,
14,
-18,
-26,
73,
13,
14,
28,
10,
40,
-40,
16,
59,
23,
-40,
39,
-19,
21,
42,
-4,
-13,
76,
-56,
-27,
-2,
-22,
26,
-21,
-10,
-14,
44,
8,
1,
-38,
-4,
30,
-43,
37,
-3,
46,
7,
-36,
23,
-33,
-49,
24,
36,
19,
-3,
44,
-10,
41,
-24,
-30,
0,
-23,
7,
6,
21,
2,
-7,
-1,
-34,
33,
-12,
36,
-5,
27,
-19,
28,
-26,
-22,
18,
6,
17,
21,
-17,
8,
31,
-4,
21,
10,
36,
-20,
-4,
66,
42,
50,
-30,
-35,
18,
54,
-48,
5,
-45,
-20,
0,
-56,
-32,
-48,
-7,
-3,
17,
2,
13,
-21,
25,
38,
-13,
-9,
-15,
68,
-18,
11,
-55,
-18,
-9,
0,
18,
-41,
23,
-19,
32,
-42,
-12,
-19,
2,
7,
-4,
21,
-10,
-51,
-64,
-24,
-16,
-2,
-46,
-33,
52,
-13,
4,
-48,
-23,
15,
8,
5,
-22,
-33,
-4,
33,
-30,
20,
15,
-13,
-12,
-11,
18,
-66,
16,
2,
-3,
20,
-10,
-17,
23,
22,
22,
-13,
18,
-6,
53,
46,
-21,
-10,
19,
6,
39,
-58,
10,
8,
-13,
-25,
-39,
30,
-1,
-10,
2,
-3,
-37,
47,
4,
-3,
41,
13,
-33,
0,
3,
53,
-4,
22,
-22,
6,
-31,
24,
49,
-22,
-12,
-44,
2,
-21,
15,
12,
-31,
-55,
-16,
-50,
36,
-9,
8,
-1,
-7,
36,
5,
25,
28,
-31,
-4,
-18,
-2,
27,
45,
47,
-12,
-11,
-40,
11,
-5,
-11,
-12,
-1,
34,
41,
-33,
60,
4,
25,
1,
-68,
1,
-23,
-12,
34,
-63,
-15,
24,
23,
-18,
-3,
-38,
-19,
44,
11,
-30,
40,
28,
-44,
62,
-100,
-51,
-5,
19,
-35,
1,
13,
30,
1,
-15,
-45,
-38,
-57,
15,
-31,
-12,
-19,
-31,
4,
13,
-13,
41,
15,
-29,
15,
12,
-28,
-19,
-19,
-20,
25,
34,
12,
84,
10,
3,
-15,
-7,
66,
-4,
24,
35,
-29,
-5,
-14,
-10,
-23,
25,
16,
42,
-4,
-53,
-25,
-36,
68,
0,
20,
1,
59,
-47,
16,
-22,
-8,
24,
0,
8,
-14,
-35,
-13,
-2,
41,
35,
7,
-38,
19,
-40,
30,
60,
-17,
-15,
35,
-41,
-9,
-13,
16,
-20,
-1,
-17,
2,
44,
-60,
13,
-20,
-15,
22,
-4,
6,
-12,
-15,
10,
34,
-36,
-50,
27,
15,
-21,
22,
0,
-47,
-15,
-3,
-1,
-34,
5,
14,
15,
-42,
7,
-24,
49,
18,
28,
36,
41,
12,
-69,
-69,
18,
-47,
45,
-38,
19,
-55,
48,
-17,
-16,
-64,
0,
-11,
26,
-25,
-27,
-16,
-55,
27,
16,
39,
15,
-9,
-9,
10,
-9,
-15,
0,
-20,
16,
-4,
-104,
46,
-21,
37,
25,
33,
-28,
-10,
20,
-50,
73,
0,
-37,
22,
-46,
43,
33,
35,
-9,
2,
-48,
25,
0,
-87,
30,
-23,
53,
-25,
-32,
-28,
-12,
-40,
7,
-13,
21,
-40,
22,
-10,
5,
5,
11,
-73,
-32,
-8,
25,
29,
1,
36,
40,
-57,
5,
-36,
24,
-32,
12,
12,
-15,
-10,
27,
6,
10,
-63,
-54,
-14,
16,
-75,
-49,
24,
-14,
-18,
-19,
24,
31,
24,
6,
-10,
46,
-24,
-35,
5,
17,
14,
0,
12,
55,
78,
-30,
-17,
4,
3,
15,
-3,
13,
4,
25,
-21,
-11,
-14,
-40,
55,
3,
6,
28,
-13,
33
] |
Dethmers, J.
Plaintiff Heino claimed that title to an undivided f interest in the 80 acres of land in question had vested in her and the remaining 1 in her sister, defendant Irene Anderson. The latter claimed, however, that she subsequently had acquired the entire fee by virtue of a conveyance to her from her attorney, who had purchased it on tax sale after default in payment of taxes by the 2 sisters. The other defendants claimed under her.
On September 16,1943, Heino executed and placed in escrow a quitclaim deed to her claimed f interest in favor of plaintiff Hill; and at the same time an agreement was entered into between them which provided for such execution and placing in escrow of said deed, that Hill would pay the expenses of litigation to establish Heino’s title to a f interest against her sister’s claim of full ownership, that such litigation should be prosecuted in Heino’s name, that title should remain in Heino until such litigation was concluded or until a compromise or settlement thereof might be accomplished, that she should remain owner of the premises until all the terms of the agreement had been fulfilled, and that if title should be determined by such litigation to be in Heino, or she acquired any interest in the property by reason of a compromise of such litigation or settlement thereof between her and the defendants therein, then plaintiff Hill, upon becoming entitled to delivery of the deed from the escrow agent, would, at the same time and as a condition precedent thereto, convey to Heino a certain interest in the proceeds from any oil or gas produced from the premises. On October 15, 1943, Heino commenced such litigation. It appears that discussions followed between an attorney representing both Hill and Heino and the defendants’ attorneys, looking to a settlement of the litigation.
Thereafter, on November 23,1943, Heino and Hill and the attorney who represented them both discussed a settlement, after which Heino and the attorney left Hill in the attorney’s office and, with Hill’s full knowledge, went to the office of defendants’ attorneys for the purpose of considering a settlement. While there Heino signed several copies of an agreement with the 2 defendant oil companies, some of which copies had previously been signed by authorized agents of those companies. This agreement provided for the execution and delivery by Heino to her sister, Irene Anderson, of a quitclaim deed to the premises and for development of the lands for oil by the 2 companies and the payment by them to Heino of certain proceeds from the oil and for discontinuance of said litigation. Heino also executed the agreed quitclaim deed in favor of her sister and plaintiffs’ attorney signed a stipulation and order for dismissal of the suit. After these instruments had thus been executed by Heino and her attorney they were handed over to 1 of defendants’ attorneys, and copies of the agreement signed by authorized agents of the oil companies were given to Heino. Then, at the suggestion of Heino’s attorney, defendants’ attorneys agreed to obtain the signatures of higher officials of the oil companies on copies of the agreement still retained by them and to forward them to plaintiffs’ attorney and, according to defense testimony, this was complied with shortly thereafter. At that same time and place Heino told defendants’ attorneys about the deed to Hill which she had executed and delivered to her attorney as escrow agent. She testified that she so informed them prior to the execution of the deed, agreement and stipulation in the office of defendants’ attorneys. Testimony for the defendants, on the contrary, was that she first made mention thereof after said instruments had been duly executed and delivered to defendants’ attorneys. Heino testified that such delivery to defendants’ attorneys was expressly conditioned by her upon their obtaining a quitclaim deed from Hill and upon their furnishing her with copies of said agreement signed by higher oil company officials. Testimony for defendants denied that any such conditions were expressed or intended. The defense admitted, however, that defendants’ attorneys had agreed to obtain signatures of higher oil company officials on the agreement and that they drafted a deed for signature by Hill and handed it to plaintiffs’ attorney for the purpose of obtaining Hill’s signature thereon in the interests of avoiding any possible trouble with Hill and that said deed was never signed by him.
After the deed from Heino to her sister had been recorded, Hill recorded his deed from Heino and the latter attempted to repudiate her deed to her sister and her agreement with the oil companies. Then plaintiffs brought this suit to set the same aside and to quiet title to an undivided -f interest in the premises in themselves and for other relief. Prom decree for defendants, plaintiffs appeal.
Plaintiffs contend that delivery of the deed by Heino to defendants’ attorneys did not pass title because it was conditioned upon their obtaining a similar deed from Hill and obtaining the signatures of higher oil company officials on the agreement and because they were aware, at the time, of Hill’s interest, which he never thereafter conveyed to defendants. In this connection plaintiffs rely on Wisconsin & Michigan R. Co. v. McKenna, 139 Mich 43. In considering the applicability of the law in that case to the facts at bar, we note that the trial court appears to have believed defendants’ version of the disputed facts and to have rejected that of plaintiffs. An examination of the entire record fails to persuade us of error in that regard on the part of the trial court. Viewed in the light of testimony for the defense, the instant case bears no similarity to the McKenna Case in respects controlling of the result. In the McKenna Case 2 of the 3 owners of premises executed a conveyance and placed it in the hands of their own attorney with the understanding between them and the prospective grantees that before delivery to the latter said attorney was to obtain the signature thereto of the third person then known by the grantees to be the» owner of an interest in the premises. He declined to sign. Under such circumstances this Court held that delivery never occurred. In the instant case Heino, sole owner of the title sought to be conveyed, executed the deed and made an unconditional delivery thereof to the grantee’s attorneys. That was sufficient to pass Heino’s interest to her sister. Furthermore, in the McKenna Case the grantees knew prior to the execution of the deed by 2 of the owners that a third person owned an-interest and the latter never executed any instrument or did anything to divest himself therefrom. In the instant case, on the contrary, Hill had no title and there was nothing of record to disclose his interest, nor did the defendants or their attorneys know of it until after delivery of the deed to them by Heino when they were shown a copy of the agreement between Hill and Heino under which Hill’s claimed interest came into being and by which Heino still retained full ownership and title and was authorized by Hill to make the compromise settlement in question. Under such circumstances, the Heino deed to defendants was effective to cut off any possible interest in Hill. The McKenna Case was a suit for specific performance of an oral agreement to give a deed which it was found by the court had never been delivered and for which no consideration had been given, so that the statute of frauds intervened. In the instant case suit is brought to cancel a deed properly found by the trial court to have been delivered unconditionally in exchange for a valuable consideration. The McKenna Case is ■without application here. The question of whether delivery of the Heino deed to defendants’ attorneys .was conditioned upon their obtaining for her the signatures of higher oil company officials on the mentioned agreement was one of fact which the trial court resolved, properly we think, in favor of defendants. While it appears that plaintiffs’ attorney desired the signatures of higher officials, it equally appears, in the absence of any claims or attempt by plaintiffs to sustain the burden of proving to the contrary, that the agents who had signed the agreements prior to.November 23d and those who delivered them were authorized to do so, thus binding the oil companies thereby. In consequence, the agreements constituted a valid consideration for the Heino deed. Upon exchange of the instruments nothing was left to be done necessary to give the transaction legal force or binding effect, nor did any offer of Heino remain unaccepted and subject to withdrawal by her at will.
Decree affirmed. Costs to defendants.
Reid, C. J., and Boyles, North, Carr, Bitshnell, and Sharpe, JJ., concurred. Butzel, J., did not sit.
See CL 1948, § 566.106 (Stat Ann § 26.906). — Reporter. | [
8,
48,
-17,
-24,
1,
1,
-38,
27,
11,
30,
20,
20,
57,
57,
28,
38,
7,
23,
-9,
-26,
-12,
-22,
-27,
37,
31,
-21,
39,
-32,
20,
-8,
-28,
39,
-19,
-14,
34,
0,
32,
29,
12,
-24,
-18,
36,
54,
5,
-26,
17,
-46,
-47,
30,
-1,
6,
1,
37,
15,
11,
28,
-32,
1,
0,
24,
-10,
-51,
20,
36,
-2,
1,
-8,
-12,
12,
-21,
-1,
-10,
1,
-1,
-1,
18,
29,
-7,
-17,
8,
0,
18,
-2,
-57,
-9,
52,
2,
-12,
-6,
-16,
-40,
-33,
-25,
61,
1,
-15,
-26,
28,
-37,
22,
-12,
-18,
-17,
70,
-12,
13,
-5,
5,
9,
24,
24,
0,
60,
30,
33,
-36,
-35,
-48,
-7,
-7,
-20,
-38,
5,
42,
1,
40,
-51,
-8,
-38,
-6,
-12,
-22,
0,
0,
-67,
-3,
8,
-74,
38,
-15,
19,
23,
-16,
-11,
-17,
32,
-37,
-19,
-12,
-29,
-69,
-30,
13,
10,
-9,
-81,
44,
-12,
-10,
-22,
-14,
-22,
52,
-11,
-40,
-32,
64,
-8,
-23,
8,
92,
39,
-86,
-51,
35,
-9,
18,
-33,
-16,
-1,
38,
-12,
-29,
-46,
-61,
-10,
-36,
40,
-55,
38,
-6,
-64,
-11,
27,
-13,
15,
-8,
35,
-37,
51,
18,
-45,
0,
-39,
26,
-4,
7,
49,
17,
-29,
-30,
9,
-14,
-15,
-61,
6,
29,
-13,
-1,
-26,
9,
2,
2,
4,
-10,
-19,
61,
-7,
53,
-16,
-14,
-22,
0,
44,
-31,
-42,
47,
37,
11,
41,
14,
-15,
-17,
15,
23,
-16,
28,
28,
5,
31,
-49,
-9,
-63,
64,
12,
-29,
-4,
-12,
-3,
-14,
14,
-35,
-18,
4,
5,
-24,
7,
5,
22,
8,
29,
16,
17,
14,
-44,
-41,
1,
-57,
-8,
17,
84,
13,
-25,
3,
0,
14,
-4,
32,
-18,
28,
29,
-2,
8,
-47,
39,
14,
42,
-50,
24,
11,
-52,
-45,
37,
-60,
27,
-30,
8,
-18,
-43,
-7,
16,
19,
6,
-58,
-9,
23,
0,
0,
-13,
-34,
27,
35,
4,
10,
34,
12,
15,
-34,
-10,
-1,
-12,
14,
2,
-9,
-25,
-1,
-2,
0,
-54,
-10,
-11,
-34,
37,
27,
34,
22,
83,
-7,
-19,
-5,
1,
-20,
-2,
43,
-29,
-49,
28,
-7,
-26,
57,
11,
6,
15,
33,
-49,
-1,
15,
-45,
20,
-3,
-9,
20,
-24,
0,
6,
9,
0,
43,
-41,
36,
22,
16,
49,
22,
40,
-38,
-28,
-43,
-67,
34,
-41,
-8,
-10,
-7,
30,
-81,
-28,
-29,
-11,
-30,
23,
35,
54,
-28,
-15,
-16,
20,
-40,
4,
31,
38,
-86,
-39,
-48,
-6,
14,
33,
13,
71,
0,
53,
2,
-11,
-49,
7,
18,
12,
1,
-18,
15,
-59,
52,
37,
-4,
32,
-20,
-28,
9,
-48,
27,
35,
7,
-24,
-7,
-40,
-5,
0,
-14,
8,
-9,
9,
39,
34,
21,
-36,
-15,
43,
-26,
3,
-28,
-2,
5,
59,
-1,
2,
-9,
52,
-28,
-22,
43,
8,
30,
-2,
-9,
-7,
-1,
12,
-11,
-29,
0,
0,
22,
-25,
-58,
19,
18,
21,
1,
5,
-36,
30,
3,
-15,
-27,
-8,
-11,
9,
0,
11,
0,
-23,
-9,
72,
45,
-15,
-9,
-25,
0,
2,
18,
11,
-47,
12,
47,
-34,
48,
45,
-11,
29,
52,
-2,
-17,
-31,
1,
-4,
6,
51,
0,
9,
-18,
-22,
-44,
14,
1,
-10,
-4,
1,
29,
-7,
13,
-7,
1,
4,
37,
-6,
22,
50,
-28,
1,
-13,
-21,
-16,
-32,
15,
-8,
51,
53,
-52,
-22,
-26,
-59,
12,
-4,
-49,
70,
-47,
29,
21,
-5,
29,
-38,
-8,
28,
-36,
14,
-26,
-28,
34,
-54,
-2,
-39,
-13,
1,
-12,
-17,
50,
64,
53,
18,
-21,
5,
-27,
-11,
1,
34,
-30,
55,
29,
-21,
-17,
-41,
-58,
-42,
-42,
-36,
-21,
25,
-1,
-5,
-43,
-46,
-12,
-20,
48,
42,
28,
19,
-46,
39,
1,
38,
27,
0,
1,
20,
15,
-29,
24,
-41,
9,
12,
-51,
20,
-22,
-5,
-10,
-25,
25,
-40,
-2,
-1,
-33,
-48,
-52,
-4,
-10,
-1,
-81,
44,
-33,
-16,
46,
29,
-3,
-40,
18,
17,
-1,
-9,
-14,
21,
-16,
-29,
-14,
-27,
-64,
93,
-4,
2,
-25,
18,
-22,
15,
-24,
-18,
60,
10,
52,
13,
43,
-16,
-2,
3,
16,
-38,
50,
24,
21,
-8,
38,
-15,
2,
-14,
39,
-5,
-2,
46,
-3,
82,
19,
-3,
25,
40,
21,
-20,
23,
7,
-21,
-6,
-43,
46,
1,
11,
-13,
-34,
38,
14,
25,
4,
-53,
41,
-43,
42,
-22,
-10,
42,
9,
19,
4,
-34,
34,
-22,
-8,
-17,
32,
47,
-26,
-3,
-30,
0,
-20,
17,
-57,
19,
-63,
4,
32,
6,
-2,
-3,
-22,
48,
75,
57,
10,
-52,
-24,
-54,
-22,
-47,
-5,
43,
-49,
-33,
5,
-12,
0,
-52,
23,
-47,
-25,
-6,
-2,
7,
27,
19,
-3,
31,
26,
14,
-40,
-20,
-3,
-33,
-29,
-12,
10,
9,
31,
46,
-33,
24,
22,
-40,
-3,
17,
-9,
-27,
-25,
-39,
-31,
15,
-44,
-14,
18,
0,
0,
43,
-40,
36,
-9,
-21,
0,
-24,
12,
57,
-33,
47,
-21,
38,
-38,
-24,
-16,
25,
36,
17,
-16,
-38,
-43,
4,
40,
-48,
1,
39,
23,
-9,
18,
11,
-44,
-37,
1,
-43,
-45,
8,
23,
-9,
-40,
27,
21,
29,
20,
-40,
-8,
32,
-29,
-18,
-28,
-46,
10,
-22,
24,
-65,
-32,
-12,
30,
-46,
19,
39,
6,
46,
-5,
-17,
-7,
16,
8,
23,
-25,
-40,
59,
10,
1,
52,
-50,
28,
-86,
-5,
9,
42,
30,
31,
-18,
-18,
-22,
-26,
-47,
-30,
23,
-54,
-2,
0,
-11,
48,
50,
1,
-60,
2,
-48,
-8,
-31,
18,
11,
3,
-27,
-26,
-67,
-1,
-19,
-10,
-52,
15,
18,
1,
-57,
12,
-45,
12,
69,
23,
-18,
56,
-37,
-19,
-36,
-16,
4,
-1,
25,
-34,
-28,
-6,
17,
-21,
2,
16,
-9,
61,
53,
-29,
-30,
40,
-49,
34,
-31,
40,
-36,
15,
-33,
46,
-11,
-47,
-13,
-3,
-12,
18,
66,
-30,
14,
59,
-27,
-50,
-13,
-13,
-53,
10,
31,
-1,
24,
25,
0,
-64,
-8,
9,
-27,
34,
43,
-1,
5,
15,
-24,
18,
11,
-13,
47,
47,
32,
27,
6,
76,
17,
-45,
36,
-12,
2,
11,
3,
28,
40,
-15,
53,
-2,
-55,
-33,
28,
8,
2,
56,
24,
-23,
8,
5,
0,
-17,
-21,
28
] |
Boyles, J.
John Paul Res filed the bill of complaint in this Case for an absolute divorce. The defendant, Hazel, filed an answer and cross bill for separate maintenance, “under PA 1899 No 243, as amended,” praying that the plaintiff-eross-defend.ant be required to pay sufficient sums for the support of herself and minor children, “pursuant to the provisions of PA 1899 * No 243, as amended by CL 1929, § 12794 (Stat Ann § 25.211).” Later, the defendant-cross-plaintiff filed, without objection, an amended cross bill praying for a decree from bed and hoard, “pursuant to CL 1929, § 12729.”
These parties were first married in 1923, from ■which marriage 3 children were born, the youngest •of whom is now about 19 years of age. They were divorced in 1933, and remarried in 1935. The second marriage was likewise unsuccessful and resulted in a separation in .1937, since which time they have not lived together. The instant case was started in 1947. The trial court, after a hearing, denied plaintiff any relief and entered a decree granting the defendant-cross-plaintiff’s prayer for a limited divorce from bed and board. The decree gives her an allowance of $600 per month as separate maintenance, and makes certain other provisions, including requiring .the plaintiff-cross-defendant to comply ■with a certain term in an antenuptial agreement. Plaintiff appeals. The defendant does not cross-appeal.
Appellant contends that he should have been granted an absolute divorce, but, if not, that it was the duty of the trial court, under the proofs in the case, to grant the cross-plaintiff a divorce from the bonds of matrimony, instead of a divorce from bed and hoard. It is a fair inference that the purpose of plaintiff’s present appeal is mainly to obtain from this Court the dissolution of the marriage, on the ground that this Court, hearing the case de novo, has the power to and should enter a decree for an absolute divorce. Cole v. Cole, 193 Mich 655; Ratcliffe v. Ratcliffe, 308 Mich 488; Jaquish v. Jaquish, 314 Mich 386; Shields v. Shields, 319 Mich 316.
Appellant, in urging that this Court should grant either him or the cross-plaintiff a divorce from the bonds of matrimony, relies on decisions of this Court,, based upon “public policy.” In Burlage v. Burlage, 65 Mich 624, the Court granted an absolute divorce, to the wife under a limited divorce bill of complaint. It found that the defendant husband had been guilty of such aggravated and revolting acts of personal violence and extreme and repeated cruelty that the-Court should grant the wife an absolute divorce (p 627) “on grounds of public policy, to prevent themischiefs arising from turning out into the world, in enforced celibacy, persons who are neither married nor unmarried. If they have scruples about remarriage, there is nothing to prevent. their continuing single as long as they choose. But when the. conduct of the party complained of has broken up the marriage relation, and made it impossible to continue it, the law authorizes the courts to annul it.
“We think this is such a case, and that defendant ought not to continue in the relation of complainant’s husband.”
In that case, the wife was about 21 years of age- and the husband 6 or 7 years older. In the case at bar, the parties are both past middle life and their 3 children are about 19 to 25 years of age.
Appellant also relies on Conkey v. Conkey, 237 Mich 326, where the Court said that while a divorce may not be granted on the ground of public policy, it should be considered in determining whether a divorce should be from bed and board, or absolute. In that case, the plaintiff wife was 29, the defendant 31, and they were hopelessly estranged. Justice Nelson Sharpe filed a vigorous dissenting opinion, which has later been followed under comparable circumstances.
Appellant also relies on Ratcliffe v. Ratcliffe, supra, but in that case both parties were 19 years of age at the time of marriage, suit for divorce was filed 2 years later, the trial court granted a decree of absolute divorce, and this Court said:
“Because of the peculiar circumstances disclosed by this record, we have no inclination to disagree with the conclusion reached by the trial judge, who had the advantage of hearing and observing the parties and their witnesses. We are in accord with his statement that:
“ ‘There is no prospect of reconciliation. To grant the amendment would add tragedy to tragedy, condemn the parties to enforced celibacy, turn them out neither married nor unmarried, prevent either from again marrying, and wreck and ruin their lives.’ ”
In Coon v. Coon, 163 Mich 644, relied upon by appellant,- the husband filed a bill of complaint for divorce, the wife filed a cross bill for separate maintenance which she later sought leave to withdraw. Such leave was denied by the trial court, and she was granted an absolute divorce against her express desires. This Court, deciding that she should have been permitted to withdraw her cross bill, and in dismissing the plaintiff’s bill of complaint, said :
“In the instant case we do not perceive how the interests of the State or the legal rights of the com plainant would be prejudiced by the granting of defendant’s motion. Certainly it is not for the interest of the State that the guilty husband, who has violated his marriage covenant, should obtain by indirection a divorce from his innocent wife, who is willing to condone his offense and renew marital relations.”
In Dreijer v. Dreijer, 200 Mich 619, the parties had been married 25 years, ages 44 and 47 years respectively, and this Court affirmed the trial court in granting the wife a decree of divorce from bed and board only, and in denying the defendant’s motion to amend by granting an absolute divorce. This Court held:
“The discretion of the Court in these, as in other, cases, will be moved as the facts seem to demand. * * * (and quoting from syllabus), neither the best interests of the parties nor any consideration of public policy requiring the exercise by the Court of its discretion to grant an absolute decree, and, the amount of alimony being reasonable, the order of the court below denying the motion will be affirmed.”
In Kelly v. Kelly, 252 Mich 92, the husband, age 46, filed a bill of complaint for absolute divorce from his wife, age 50. They had been married 24 years. She filed a cross bill for divorce from bed and board, under CL 1915, § 11398 (CL 1948, § 552.7 [Stat Ann § 25.87]), and was granted a decree accordingly, with an allowance for support. Subsequently, the plaintiff filed a petition to amend by granting an absolute divorce, which the trial court denied, notwithstanding a stipulation filed by the parties. . On the plaintiff’s appeal from such order, this Court (Butzbl, J.) said:
“The more serious question, however, is whether the Court should amend the decree at the present time.
“In determining public policy,, the Court should consider the best interests of all of the parties in volved, and particularly those of the wife and children. * * *
“In determining public policy, the Court should not force a divorce upon an innocent party at the request of the guilty one except when very unusual circumstances demand it and then only after proper provision has been made for the support of the wife and children. * * * We find that the conclusion of the court below was correct.”
"We conclude that a divorce from bed and board, or from the bonds of matrimony, should not be granted merely on the grounds of public policy, nor has the legislature given recognition to public policy as one of the statutory grounds for divorce. Whether a decree should provide for an absolute divorce, or only from bed and board, depends upon the circumstances of each case, and one of the considerations seems to be the age of the parties. We find in the record before us no impelling reason why the cross-plaintiff should be compelled to accept an absolute divorce from the bonds of matrimony against her express wishes, when she has not asked for it, and thus free the plaintiff from the bonds of matrimony, which result he alone desires. We would thereby be granting him the relief from the bonds of matrimony which he sought in filing his bill of complaint, and the relief to which the trial court properly found he was not entitled. Ignoring entirely any testimony of grounds for divorce happening prior to the remarriage in 1935, the admission of which appellant complains about, the record is replete with evidence of grounds on which cross-plaintiff might rely for divorce, happening between 1935 and the filing of her cross bill in 1947. Proofs show that during that time plaintiff-appellant was habitually drunk, absented himself from home, physically assaulted the defendant, was guilty of improper association with another woman over a long period of time at various hotels, hunting lodges and cottages, and that he was in several sanitariums and hospitals to be cured of alcoholism. There would be no benefit in a recital of the testimony as to happenings during the second marriage, between 1935 and 1947, on which the court quite properly based the decree granting the cross-plaintiff a divorce from bed and board. While we do not agree with the decree in stating that “the testimony contains nothing in support of plaintiff’s bill of complaint,” we are in accord with the trial court’s conclusion that the testimony definitely preponderates in favor of the cross-plaintiff in establishing that the cross-plaintiff proved sufficient grounds for a divorce from bed and board. The trial court was amply justified in denying appellant an absolute divorce and in granting a limited decree to cross-plaintiff instead of dissolving the marriage. We decline to do so.
Another contention of appellant for reversal involves property matters. Prior to their marriage, the parties entered into an antenuptial agreement which has been set up by appellant as a part of his bill of complaint, together with the 1933 decree of divorce dissolving their first marriage, to which said agreement refers. Appellant claims that the trial court did not follow the intent of the agreement. Most of the testimony in this lengthy record partakes of the nature of an accounting between the parties. We have given it consideration. The 1933 decree of divorce ordered John P. Rex to repay to his wife $13,000, in semiannual instalments, with interest at 6% per annum. In the antenuptial agreement in 1935 he acknowledges his obligations under said decree and agrees to perform them in regard to the payments required. He now claims that he has done so. However, it is plain from the record that the payments he has been making are those required under other provisions of the agreement, and the trial court so found. The instant decree now properly requires him to pay up, and in that respect is fully supported by the record. We are not here called upon to consider or determine whether such a provision may properly be included in a decree of divorce from bed and board. The question whether the provisions of the earlier decree or of the ante-nuptial agreement cannot properly be included or enforced in the present case under a decree • from bed and board has not been raised. But, it is pertinent here to note that the 1933 decree requires appellant to “repay” the $13,000 to cross-plaintiff. Under CL 1948, § 552.19 (Stat Ann § 25.99), the court may “restore” to the wife any of the personal estate that has come to the husband by reason of the marriage, or award her the value thereof. Furthermore, if the “estate and effects” awarded helare not sufficient for support of herself and minor children, the court may decree to her such part of the personal estate of the husband and such alimony out of his estate, real and personal, to be paid to her in gross or otherwise, having regard to the ability of the husband, character and situation of the parties and all the other circumstances of the case. CL 1948, § 552.23 (Stat Ann 1949 Cum Supp § 25.103). The record before us does not indicate whether the trial court, in ordering appellant to pay cross-plaintiff $13,000 and interest, relied on the above-cited provisions of the statute. On the record before us, the decree for such repayment will be affirmed.
Appellant contends that the allowance of $600 per month to cross-plaintiff for separate maintenance is too large. There is no merit in the claim. The record supports the conclusion that $600 per month is a proper allowance to the cross-plaintiff for her separate maintenance. The plaintiff owns approximately $200,000, net value, of personal property. In lL935, in the antenuptial agreement, plaintiff agreed to pay her $300 a month for her household expenses,’ upon consummation of their contemplated remarriage, and agreed to increase it as his income might warrant. At that time his income was about $8,000 a year, and his annual income is now about $25,000. An increase from $300 per month in 1935 to $600 per month at the present time is not out of line with the increased costs of living, and quite proper in-view of the plaintiff’s income and ability to pay, and the proofs as to the living requirements of the cross-plaintiff.
The decree requires plaintiff to place the capital stock of the 2 corporations which he owns, and from which he derives his income, with a trust company to hold in trust for his 3 sons, 2 of whom are now more than 21 years of age, and the third is now near his majority. The decree is to operate as such a trust instrument if appellant fails to execute the same. The decree also orders appellant to deliver to the trust company 2 life insurance policies amounting to $25,000, to be held in trust for cross-plaintiff and the 3 sons. All of said provisions in the decree requiring the setting up of trusts for appellant’s property are illegal and void and must be deleted. The jurisdiction of the court in divorce cases is circumscribed by statute and there is no such authority vested in the court in granting a divorce as has been thus attempted.
Jurisdiction in divorce proceedings is strictly statutory. The court cannot decree payment direct to children upon their reaching majority, or even during minority, or create.a lien for such payment. We have held that provisions in a divorce decree, even by consent, providing payment of a sum to the wife’s mother and sums to the children at majority, are void.
“Our statutes give the court power to grant alimony to the wife for the support of herself and minor children, and to give a lien against the property of the husband to secure the payment of the same; but they do not give the court power to decree the payment of any sum to the children upon their reaching majority, or to create a lien to secure the payment thereof. In fact, our courts of chancery in divorce cases have no power to decree that any sum be paid direct to the children, even during their minority. Swiney v. Swiney, 107 Mich 459.” Maslen v. Anderson, 163 Mich 477.
“It (alimony) must be awarded to her, though for their benefit. No sum can be decreed to be paid to the children, even during their minority. Swiney v. Swiney, 107 Mich 459; Maslen v. Anderson, 163 Mich 477.” Judson v. Judson, 171 Mich 185.
Counsel for cross-plaintiff relies on cases wherein this Court has recognized and upheld antenuptial agreements in the entering of decrees in divorce cases. They do not apply to the, setting up, in the instant decree, of .a trust for the benefit of the children (either adult or minor) for the simple reason that there is no su6h provision for such a trust, in the antenuptial agreement. Cross-plaintiff cannot go behind the instant decree and rely on the antenuptial agreement for support of the trust, there being no such support in the agreement itself. Conceding that the antenuptial agreement be considered as a property settlement, it'does not even remotely provide that the stock in the corporations owned by the plaintiff be placed in a trust fund beyond his control, to be “distributed to the beneficiaries” whenever plaintiff is not competent “to continue to manage said corporations,” and enjoining him from encumbering, or doing anything to cause said stock to be issued, sold, transferred or assigned. The trust provisions in the decree appealed from are a nullity.
Finally, appellant claims that the allowance by the trial court of $2,500 fees to the attorney for cross-plaintiff is excessive. The attorney was involved in this case, for cross-plaintiff, from December 16, 1948, to April 14, 1950, made over 100 contacts with the case by appearances in court, preparation of papers, conferences, letters, pretrial hearings, petitions for discovery of assets, attempts to compel plaintiff to disclose true assets, and actual trial of the case — probably actually spending a minimum of 25 or 30 days on this case. Much of this work was caused by appellant’s reluctance to disclose the facts regarding his net worth, property ownership, and annual income, requiring petitions and hearings to compel disclosure. The amount involved, the services performed by counsel for cross-plaintiff, and the results accomplished, indicate that the allowance of $2,500 attorney fees for his services was not excessive. See Crary v. Goldsmith, 322 Mich 418; Fletcher v. Board of Education of School District Fractional No. 5, 323 Mich 343, and cases cited therein.
A decree may be entered in this Court in. consonance with this opinion and remanding the same for enforcement thereof, without costs in this Court, each party having prevailed only in part.
Reid, C. J., and North, Dethmers, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred.
Obviously an error. Reference was intended to PA 1889, No 243 ■(CL 1929, § 12794 [CL 1948, § 552.301, Stat Ann §25.211]).
CL 1948, § 552.7 (Stat Ann § 25.87).
See, also, to the same effect, Cowdrey v. Cowdrey, 211 Mich 305; Hatfield v. Hatfield, 213 Mich 368; Vander Laan v. Vander Laan, 228 Mich 52; Terrell v. Terrell, 317 Mich 49. | [
-25,
3,
7,
32,
-35,
13,
-4,
-34,
42,
-6,
-42,
-17,
10,
-32,
-31,
-79,
6,
17,
-10,
13,
-31,
31,
14,
65,
41,
32,
62,
1,
-42,
45,
-5,
4,
-53,
-2,
-17,
-34,
-21,
-1,
23,
25,
-8,
-23,
18,
35,
-34,
13,
22,
7,
2,
0,
-31,
-85,
47,
-11,
22,
9,
-30,
23,
25,
21,
27,
20,
-45,
35,
13,
-38,
58,
29,
-25,
-45,
-1,
-1,
-19,
-68,
-13,
-39,
-29,
14,
-52,
36,
34,
-46,
-6,
5,
-24,
12,
22,
24,
-18,
59,
-46,
15,
-70,
-7,
-14,
-30,
-10,
18,
42,
31,
27,
-10,
23,
-9,
4,
52,
-8,
13,
-9,
12,
38,
-24,
13,
24,
41,
-7,
-82,
-31,
1,
-50,
33,
53,
44,
-29,
50,
-2,
-13,
-31,
20,
-13,
-26,
37,
-14,
-53,
9,
-50,
60,
-15,
15,
-8,
3,
11,
23,
23,
7,
19,
-37,
-50,
17,
-39,
23,
32,
81,
30,
30,
-37,
-29,
-59,
3,
-10,
75,
13,
-27,
-7,
-20,
27,
-14,
45,
-35,
-25,
2,
1,
-39,
24,
-9,
-19,
12,
7,
-50,
5,
11,
14,
23,
-22,
-7,
13,
1,
-19,
-28,
-51,
30,
-43,
15,
-23,
16,
5,
2,
23,
28,
12,
-28,
-21,
7,
26,
-27,
-24,
-1,
23,
-61,
-60,
34,
25,
-43,
19,
-81,
29,
19,
-17,
-21,
-26,
-18,
-16,
19,
7,
-60,
-30,
-10,
-26,
47,
-9,
-54,
-10,
-18,
-3,
-39,
16,
-8,
12,
37,
-3,
-57,
-16,
-3,
-58,
-17,
-7,
18,
54,
30,
22,
29,
0,
-19,
11,
-5,
-25,
7,
16,
-5,
4,
-30,
5,
23,
-17,
2,
27,
8,
-49,
-8,
13,
25,
-13,
34,
-35,
-3,
-33,
-45,
43,
0,
1,
1,
36,
1,
-3,
-16,
-21,
-42,
0,
57,
18,
16,
-34,
34,
-3,
9,
11,
-5,
-5,
-23,
63,
46,
-22,
9,
-41,
7,
-18,
-23,
-65,
-9,
-21,
22,
-48,
32,
-37,
28,
-7,
-20,
-1,
-22,
13,
18,
-13,
11,
51,
17,
11,
13,
-21,
5,
27,
-19,
34,
67,
-49,
17,
-25,
30,
5,
14,
-2,
35,
21,
27,
-8,
-12,
-37,
-10,
13,
10,
26,
-51,
-27,
-53,
3,
8,
-5,
0,
-65,
3,
39,
-4,
47,
1,
-57,
22,
-9,
38,
-26,
-3,
45,
47,
32,
-24,
28,
10,
-13,
-43,
29,
-9,
20,
21,
-3,
-23,
-5,
29,
20,
-1,
-41,
18,
-45,
13,
0,
43,
-8,
4,
25,
45,
-3,
-44,
23,
-6,
31,
-20,
14,
2,
24,
33,
47,
-59,
29,
-11,
22,
-32,
23,
35,
5,
24,
-52,
20,
24,
37,
30,
9,
-30,
-22,
-58,
7,
-34,
21,
37,
-47,
10,
-7,
0,
20,
-39,
-12,
-28,
-16,
-5,
-41,
67,
0,
34,
-33,
36,
-55,
11,
27,
0,
-46,
-54,
43,
3,
-4,
-43,
22,
21,
13,
-61,
15,
2,
-38,
10,
32,
-14,
-48,
39,
0,
-25,
-4,
-42,
-2,
50,
55,
40,
42,
6,
-18,
-23,
12,
19,
-71,
45,
-5,
28,
3,
-49,
-6,
-25,
-15,
-23,
-29,
33,
25,
-31,
-18,
-41,
-74,
5,
-29,
17,
44,
2,
27,
37,
0,
15,
24,
35,
-57,
-32,
54,
29,
-29,
-10,
0,
45,
-6,
-46,
19,
8,
16,
-34,
19,
-1,
37,
-39,
-22,
51,
2,
29,
-18,
-36,
-6,
33,
-31,
-34,
-3,
-27,
-16,
32,
-10,
-1,
4,
35,
-13,
-34,
-62,
1,
31,
-61,
-5,
13,
-9,
-31,
-28,
63,
-55,
-25,
34,
-58,
14,
-35,
-20,
5,
-9,
-23,
-24,
57,
-21,
8,
14,
-2,
-3,
6,
-25,
-12,
11,
0,
29,
17,
-40,
-28,
4,
7,
-11,
41,
-13,
-24,
-26,
-39,
8,
3,
65,
-87,
2,
-5,
42,
-3,
9,
-12,
-9,
-47,
-60,
31,
6,
40,
9,
-47,
36,
23,
-55,
-42,
-28,
12,
25,
-25,
3,
-18,
1,
75,
20,
-31,
30,
3,
18,
66,
-4,
40,
-8,
-36,
18,
-31,
15,
59,
-12,
10,
11,
16,
-27,
42,
4,
-51,
-39,
35,
21,
-17,
-24,
-35,
33,
36,
17,
-3,
-11,
-6,
45,
-53,
-12,
-1,
28,
-75,
23,
108,
-5,
18,
17,
57,
9,
10,
-26,
3,
49,
13,
50,
-32,
-40,
-4,
8,
-7,
-10,
-43,
-14,
-9,
6,
33,
30,
47,
-8,
-5,
10,
-25,
-36,
16,
-30,
0,
-10,
42,
22,
62,
-19,
6,
2,
-5,
-18,
20,
-20,
-17,
-2,
-11,
-62,
-22,
12,
5,
-4,
10,
32,
-29,
-9,
-35,
0,
21,
17,
-19,
17,
2,
41,
-29,
28,
-9,
13,
8,
-16,
1,
-18,
-8,
-21,
21,
-10,
20,
25,
38,
-3,
26,
75,
-23,
-11,
-20,
-22,
12,
29,
0,
-14,
-11,
28,
14,
-15,
-26,
-5,
-56,
20,
22,
-29,
31,
-37,
-34,
-14,
-34,
19,
-4,
-29,
48,
-11,
-13,
1,
-15,
2,
-4,
29,
-1,
-17,
4,
-16,
-1,
-15,
-12,
84,
-71,
13,
6,
-29,
-22,
26,
-45,
16,
27,
-44,
-31,
-9,
-46,
34,
55,
-7,
-26,
-11,
55,
-44,
-26,
-22,
48,
25,
16,
11,
-4,
-52,
49,
-23,
-12,
21,
-1,
52,
-44,
-17,
-7,
18,
-57,
4,
62,
20,
-6,
-1,
-49,
-16,
-22,
24,
14,
28,
-40,
-50,
5,
10,
-28,
5,
3,
-5,
28,
94,
15,
0,
17,
14,
-2,
-15,
13,
0,
-28,
-30,
33,
-16,
-15,
-8,
-15,
-21,
-18,
-5,
22,
39,
2,
37,
0,
-22,
-45,
-27,
-12,
-2,
-36,
38,
-32,
-16,
47,
-41,
-58,
-27,
-4,
-12,
55,
57,
11,
-66,
3,
-25,
17,
16,
11,
-5,
-16,
-16,
22,
-18,
-25,
1,
14,
15,
-7,
35,
-5,
-37,
5,
-5,
-20,
15,
-15,
4,
-22,
4,
8,
25,
27,
-15,
-30,
32,
-33,
-23,
45,
8,
10,
-12,
-11,
-38,
37,
50,
-57,
14,
8,
20,
-23,
-13,
19,
70,
-32,
19,
-4,
-6,
4,
-1,
23,
25,
-7,
-37,
-6,
-47,
43,
31,
21,
-19,
3,
9,
6,
-65,
-25,
-14,
1,
-18,
1,
-11,
-57,
39,
26,
-18,
-6,
-8,
-37,
-31,
3,
5,
-5,
18,
-3,
2,
-23,
8,
-6,
13,
19,
-65,
30,
1,
31,
-89,
51,
70,
16,
10,
-6,
3,
-67,
-8,
-1,
7,
1,
-60,
-4,
9,
45,
24,
-32,
-8,
46,
10,
14,
5,
55,
55,
35,
-1,
22,
-29,
13,
-30,
-35,
32,
-12,
22,
10
] |
Sharpe, J.
Plaintiffs filed their bill of complaint against defendants for an injunction restraining them from draining water from defendants Hawley’s premises upon plaintiffs’ premises and for damages sustained up to the time of the hearing.
Plaintiffs, Clark Maynard and Mabel Maynard, own 80 acres of land on the west side of Albrecht avenue in Kent county, Michigan. This highway extends north and south. Defendants Prank Hawley and Lillian Hawley own 80 acres of land' on the east side of this highway. The highway was established and built about 1887. It was originally a township road and was maintained as such until the enactment of PA 1931, No 130 (CL 1948, § 247.1 et seq. [Stat Ann §9.141 et seq.~\), when it became mandatory on all county road commissions to take over and maintain township highways.
Twenty-one Mile road runs east and west and bounds plaintiffs’ and defendants Hawley’s property on the north. Prom Twenty-one Mile road on the north, Albrecht avenue slopes downhill in a southerly direction to a point 1,380 feet south of Twenty-one Mile road. There is a drop in elevation of 19 feet from Twenty-one Mile road to this point. Prom this low point, proceeding south for a distance of one-eighth of a mile, Albrecht avenue rises. About 1887, at this low point the township highway authorities constructed a 12-inch wooden culvert under the road running east and west. The culvert carried water from the east side of the road to the west side of the road. In 1912 or 1913 this culvert was replaced by a 10-inch steel pipe. In the spring of 1950, the county road commission replaced the 10-inch steel culvert with a 12-inch concrete culvert. In 1950, about 3 acres of plaintiffs’ property was flooded and unusable. The 3 acres of flooded land lie directly west of the culvert. The Hawley property is generally higher in elevation than the road. At some points it has an elevation of 361 feet above the highway. Some 30 acres of the Hawley property and practically all of plaintiffs’ land for a distance of 40 rods west of the highway, except for 5 or 6 acres, form a large drainage basin. Water from the high levels of defendants’ 30 acres drains into the 3-acre tract and has done so since 1887 and it also appears that water from 12 to 15 acres of plaintiffs’ property also drains into the 3-acre tract. On the northwest corner of defendants’ property there is an area of about 11 acres known as the north swamp. Also upon defendants’ land there is a smaller swamp near to the east side of Albrecht avenue where the culvert crosses the avenue.
Because of the bad condition of Albrecht avenue, defendant road commission in the spring of 1950 began to improve and gravel it for the purpose of properly draining the highway. In the course of this improvement, ditches were dug along the east and west side of the highway about 21 feet deep.
During the construction of the highway on the east side of the road, one of the employees of the road commission dug a side trench into the north swamp on defendants’ property. . Water drained from the pond from 3 p.m., on May 12, 1950, until the next morning at 7 a. m., when it was plugged by plaintiffs.
The cause came on for trial and at its conclusion, the trial court denied plaintiffs any relief. In doing so an opinion was filed which contained the following excerpts:
“Mr. Maynard testified that this 3 acres is a low place to the west of and very near to Albrecht avenue; that the lowest part of this 3 acres is about a foot and a half lower than the land adjoining the 3 acres on the south, the low side; that there is no open», ditch to drain any part of this 3 acres, and that there is no covered or tile drain in or from this 3-acre area; that when this depression or 3-acre area gets full of water he does nothing about it except to wait until the water seeps away by being absorbed into the ground beneath or until the water evaporates into the air. Under these conditions, whether or not this 3-acre area may be planted and cultivated for crop, depends practically upon the weather. Whether or not there shall be a continuous surplus of rain or cold weather preventing planting, cultivating or harvesting, not subject to human regulation, is not a basis for legal claim. *' * *
“Prior to the construction of the ditch on the east side of the avenue in the spring of 1950 by the county road commission, especially in the spring of the year and at times of heavy rainfall, water was deposited and stood upon the avenue, and, from about 200 feet south of 21 Mile road to this 12-inch tile culvert, the roadway of the avenue served as a ditch or watercourse for the surface water which fell as rain upon this watershed, which was formed by the surface slants of about 30 acres of land sloping down to the east and the Hawley land sloping down to the west and meeting at their lowest level on or near the right-of-way of the avenue. The north end of the line of meeting of these 2 slopes is a little to the east of Albrecht avenue at 21 Mile road and is upon the Hawley land and the line of meeting, being the foot of the basin, extends southerly to and across Heiss street, through the 30-inch culvert which is about 20 rods west of the intersection of Heiss street and Albrecht avenue. South of the 12-inch culvert the foot of the watercourse in the drainage basin veers to the southwest, being very close to the avenue at the 12- inch culvert and slants southwesterly upon the Maynard land to the 30-inch culvert in Heiss. street.
“It was solely for the necessary purpose of draining Albrecht avenue that the ditch was constructed *by the road commission in the spring of 1950 along the east side of the avenue. This avenue, being by law placed under the control and jurisdiction of the county road commission, it became, was, and is its duty and responsibility to keep the road in reasonable repair and in a condition reasonably safe and fit for public travel. Failure to do so may impose liabilities. It is also the right and duty of the county road commission to provide the road with ditches adequate for drainage. The ditch along the side of the road now drains no more water toward the culvert and the low 3-acre area of the Maynard land than was drained before the ditch was dug, because the water previously went upon Albrecht avenue, drained to the south upon the avenue to the culvert, crossed the road through the culvert and to the Maynard land. One difference now is that the water runs south in the roadside ditches instead of flowing upon the bed of the road as it did before the county road commission improved the avenue.
“During the course of the construction of the ditch along the east side of Albrecht avenue opposite the north swamp on Hawley’s land, after the foreman of the ditch-digging crew left the job in the afternoon, one of the workmen operating a digger machine dug a short side-ditch from the highway ditch to the north swamp on the Hawley land. As a result some water was let out of the swamp into the highway ditch. This condition existed only from some time after 3 o’clock in the afternoon of one day until the morning of the following day, at which time this side ditch was effectively filled up and plugged by Mr. Maynard and the ground leveled to its former condition. This was done by the foreman of the road job causing a load of dirt or soil to .be delivered at the side-ditch and Mr. Maynard shoveled the dirt into the side-ditch, thereby closing the ditch. Since that time elo water has drained from this north swamp into the road ditch. The person who dug the side-ditch did so in violation of and contrary to orders which were given to him by Mr. Townes, the road commission foreman. * * *
“No water escaped from this north swamp into the east highway ditch after the side-ditch was filled up by Mr. Maynard as above stated. The replacement of the 10-inch steel-pipe culvert which crossed Albrecht avenue, by using a 12-inch concrete tile, as was done by the road commission, in no way contributed to or caused any damage to plaintiffs. It was a matter of good judgment and good engineering on the part of the road commission, as to how to manage and dispose of the water and protect the highway, and it follows that the acts of the county road commission in removing the 10-inch steel pipe culvert and installing in its place a 12-ineh concrete culvert across Albrecht avenue, as was done by the county road commission, in no way caused or contributed to any damage to plaintiffs and is to the advantage and benefit of all concerned. * * *
“Plaintiffs claim that this 12-inch cement culvert across Albrecht avenue was placed lower than was the original culvert-in 1887, and drains more water upon the Maynard land than did the original. The testimony does not support this claim. * * *
“Plaintiffs have entirely failed to establish a cause of action against the defendant Kent county road commission for damages as claimed, and have entirely failed to show that plaintiffs suffered any damage or injury from water coming upon or being upon their'land for which defendant road commission was in any way blameable.”.
Plaintiffs appeal and urge that it was unlawful for the defendant road commission to dig a ditch along the easterly side of the highway which connected with 2 ponds on the property of defendants Hawley thus lowering the ponds and causing water to flow upon plaintiffs’ premises which did not other wise flow upon said premises. Plaintiffs concede that the trial court was correct in denying relief as against Lillian Hawley, joint tenant of the land owned by Frank Hawley, her husband, since the exclusive control of the land was in her husband. See Morrill v. Morrill, 138 Mich 112 (110 Am St Rep 306, 4 Ann Cas 1100), and Dombrowski v. Gorecki, 291 Mich 678.
It is undisputed that for many years Albrecht avenue was during certain times impassable and unfit for public travel. In order to remedy such conditions the county road commission embarked upon the project of turnpiking and graveling the highway. In CL 1948, § 224.21 (Stat Ann § 9.121), responsibility is imposed on counties for the reasonable repair of highways and liability imposed for failure to do so. Under CL 1948, § 222.15 (Stat Ann § 9.75), “The highway shall be constructed in such manner as to form a-turnpike sufficiently crowning to shed water, with gutters or ditches adequate for drainage. The width of the turnpike shall be not less than 18 feet between side ditches.”
In Tower v. Township of Somerset, 143 Mich 195, we said:
“ 'Highway commissioners have the right to have the surface water, falling or coming naturally upon the highway, drain through the natural and usual channel ux>on and over the lower lands’ and may construct drains or ditches for that purxoose. 2 Farnham on Waters and Water Rights, p 969.”
Plaintiffs urge that they suffered damage by reason of the partial drainage of the north x>ond and the enlarging of the culvert. The trial court found as a fact that the x>erson who dug the ditch which Xoartially drained the xaond did so in violation of orders of the county road commission; and that the ditch along the east side of Albrecht avenue did not increase the amount of water overflowing, on plaintiffs’ land as, before the ditch was dug and the culvert enlarged, water flowed over the highway to the culvert then onto plaintiffs’ land; and that ho water escaped from the north pond after the side-ditch was filled by plaintiffs.
The trial court also found as a fact that the new culvert did not drain any more water onto plaintiffs’ land than the old culvert. Ordinarily a 12-inch culvert will drain more water than a 10-inch culvert, depending on the location and depth of the culvert, but, for reasons hereinafter stated, this finding of fact became unimportant. We have examined the record and conclude that there is competent evidence to support a finding of fact that the ditch on the east side of Albrecht avenue and the new culvert did not increase the amount of water flowing upon plaintiffs’ land as, prior to the improvement in the highway, water flowed over the highway and through the old culvert upon plaintiffs’ land, while at the present time more of the surface water can-flow through roadside ditches and through the new culvert and less over the highway. It also clearly appears that outside of the few hours that the north pond was being .drained, plaintiffs’ land only receives the surface water which it has received for many years.
This is a chancery case and we review the record de novo. From a careful examination of the record we are unable to find that plaintiffs suffered any damage by reason of any unlawful act of any of the defendants. We are in accord with the decision of the trial court that plaintiffs failed to make a case entitling them to relief in a court of equity. The decree is affirmed, with costs to defendants.
Reid, C. J., and Boyles, North, Dethmers, Butzel, Carr, and Bushnell, JJ., concurred. | [
-41,
72,
57,
-34,
-27,
27,
12,
8,
6,
24,
14,
-40,
28,
14,
13,
-44,
-2,
-78,
29,
8,
-33,
-20,
41,
1,
-20,
62,
66,
-35,
-14,
26,
-50,
9,
-50,
29,
16,
-39,
53,
24,
10,
4,
-63,
-10,
-3,
-77,
54,
18,
50,
11,
17,
8,
-32,
28,
-9,
-15,
-38,
-45,
-44,
-25,
-32,
-29,
-27,
11,
2,
28,
55,
27,
0,
-2,
18,
-18,
-41,
63,
-19,
-54,
39,
8,
22,
14,
6,
29,
-53,
38,
29,
15,
-4,
-37,
-58,
-10,
-8,
-7,
-12,
-53,
-17,
16,
34,
4,
-17,
22,
6,
31,
12,
41,
22,
-6,
-3,
-19,
-20,
-11,
-39,
-3,
14,
7,
32,
-58,
-7,
-35,
-7,
-5,
-4,
12,
5,
4,
8,
3,
-48,
33,
1,
-3,
-10,
8,
27,
-11,
-6,
37,
14,
33,
-13,
-41,
31,
15,
10,
-2,
-11,
-28,
-23,
56,
3,
-57,
36,
-24,
-11,
4,
1,
-16,
14,
1,
21,
-26,
27,
62,
11,
26,
-16,
-12,
-52,
0,
-1,
-10,
-1,
-5,
34,
-4,
24,
-25,
4,
-52,
10,
23,
-10,
-3,
28,
-19,
23,
-17,
-36,
-31,
-53,
-26,
-56,
12,
35,
-35,
19,
16,
9,
49,
-13,
20,
-25,
-13,
13,
8,
-15,
-11,
-18,
7,
8,
2,
-4,
13,
14,
13,
14,
0,
37,
-5,
63,
-45,
15,
-20,
38,
-20,
64,
22,
-5,
21,
5,
-48,
4,
-40,
62,
-36,
32,
13,
-25,
53,
-7,
23,
-23,
19,
-26,
4,
-20,
-2,
36,
21,
-47,
0,
-2,
34,
-20,
-22,
-72,
-8,
6,
-11,
-17,
33,
-42,
-17,
22,
29,
5,
-29,
0,
-13,
-14,
36,
-24,
4,
31,
6,
3,
5,
-45,
-60,
-16,
32,
-30,
6,
34,
-18,
-51,
-44,
27,
29,
-25,
-19,
-10,
13,
-34,
2,
-40,
0,
-14,
19,
30,
-68,
26,
0,
37,
6,
-46,
-10,
33,
-11,
-16,
0,
40,
16,
21,
-9,
-16,
28,
-34,
68,
0,
-11,
-28,
-21,
6,
44,
-5,
-1,
-34,
57,
64,
5,
29,
25,
-7,
3,
-13,
26,
70,
-44,
11,
-34,
-40,
-5,
58,
1,
30,
13,
-5,
16,
-35,
55,
-28,
-51,
2,
-1,
-24,
31,
-5,
-97,
6,
11,
-41,
16,
8,
25,
-20,
-3,
6,
-15,
-7,
-37,
9,
21,
-20,
5,
-17,
52,
5,
-15,
2,
-4,
-25,
45,
19,
-18,
62,
49,
28,
-10,
-7,
-31,
-12,
34,
-9,
-49,
8,
21,
-26,
-7,
4,
30,
-25,
23,
-26,
20,
13,
45,
20,
55,
32,
-6,
5,
13,
-53,
-22,
10,
-6,
-23,
30,
23,
3,
12,
7,
9,
25,
5,
-39,
-5,
-36,
49,
-23,
-17,
29,
7,
33,
51,
4,
7,
15,
-31,
25,
-41,
-3,
-24,
29,
19,
-10,
-28,
-1,
2,
12,
-4,
-58,
8,
16,
-21,
-6,
-44,
25,
5,
23,
46,
-3,
-42,
-15,
-51,
-32,
-30,
-18,
-22,
-11,
7,
0,
23,
35,
-19,
24,
-14,
41,
40,
16,
5,
23,
31,
-38,
-46,
-27,
-2,
-37,
11,
25,
-33,
6,
47,
-18,
-31,
-9,
41,
14,
-20,
-8,
10,
33,
36,
37,
-15,
13,
5,
-2,
12,
60,
-28,
44,
3,
-39,
22,
34,
-89,
52,
38,
3,
25,
-26,
46,
-29,
-11,
-11,
-35,
21,
0,
-7,
40,
6,
43,
-29,
-91,
0,
-53,
0,
6,
8,
18,
26,
5,
11,
37,
-41,
4,
-22,
-22,
-36,
-4,
-45,
-3,
-40,
-4,
-20,
-18,
14,
-53,
-78,
0,
14,
3,
-23,
12,
-29,
6,
4,
37,
26,
-10,
-18,
5,
25,
42,
-59,
-5,
41,
-43,
1,
-7,
86,
14,
-44,
-62,
-26,
-51,
33,
10,
-10,
-18,
34,
32,
6,
-50,
-26,
14,
-29,
18,
-1,
16,
3,
29,
-31,
-10,
33,
18,
5,
-30,
-7,
-11,
-33,
25,
-4,
0,
21,
55,
13,
-14,
-32,
17,
-21,
19,
-34,
24,
22,
-3,
3,
-37,
74,
-32,
19,
-26,
5,
8,
11,
27,
-13,
6,
2,
-10,
18,
-40,
5,
-36,
6,
-27,
-23,
4,
-32,
-104,
-23,
-15,
47,
30,
0,
53,
-29,
13,
-44,
-5,
-15,
5,
33,
1,
-17,
-54,
3,
29,
26,
-6,
19,
13,
0,
-17,
24,
12,
-72,
7,
31,
46,
18,
18,
-8,
-8,
29,
44,
-13,
20,
29,
40,
9,
33,
-20,
-35,
-50,
-19,
-16,
-24,
17,
-12,
-6,
0,
-11,
32,
-9,
-28,
55,
11,
-30,
-25,
17,
-31,
-19,
49,
30,
-7,
25,
36,
28,
-13,
39,
36,
-33,
-31,
-55,
10,
-37,
6,
-40,
-25,
40,
28,
51,
28,
-9,
0,
41,
10,
2,
-25,
-91,
32,
-46,
-22,
-40,
12,
-35,
14,
19,
-2,
-16,
-27,
-6,
-24,
-31,
-26,
-36,
-3,
-22,
-25,
23,
22,
-6,
-4,
-37,
0,
-50,
4,
-11,
5,
1,
-46,
26,
-7,
-26,
9,
-37,
-44,
-16,
15,
-31,
-29,
0,
20,
-49,
13,
-8,
34,
-41,
33,
-13,
10,
-8,
-36,
-16,
-13,
64,
6,
-3,
-12,
16,
28,
-5,
24,
61,
3,
-1,
-38,
-20,
-15,
37,
-21,
37,
16,
-19,
17,
-18,
-43,
67,
3,
-20,
-17,
6,
-16,
-7,
49,
36,
14,
0,
-6,
-27,
51,
-14,
7,
33,
-25,
-16,
48,
18,
1,
-2,
-6,
-7,
1,
-53,
-16,
54,
10,
-18,
-20,
27,
-23,
26,
0,
-22,
13,
-6,
-12,
-5,
-36,
8,
67,
1,
-27,
-15,
8,
14,
10,
-21,
-29,
15,
-17,
-10,
-38,
-17,
-9,
-11,
-40,
-18,
10,
36,
-7,
6,
42,
-3,
-5,
-27,
2,
-2,
-38,
52,
9,
9,
-9,
26,
-36,
13,
1,
14,
-9,
-24,
-46,
10,
-17,
2,
-31,
15,
-6,
27,
-7,
34,
-17,
-46,
-25,
-20,
-36,
-15,
-35,
16,
-31,
13,
45,
-12,
3,
-18,
-46,
0,
-24,
-8,
-9,
58,
-45,
-51,
-42,
0,
-19,
3,
50,
-69,
4,
-38,
7,
-15,
-5,
34,
68,
-10,
13,
-15,
7,
14,
-3,
2,
20,
51,
12,
-23,
-45,
21,
-23,
-79,
-13,
-8,
-28,
-29,
-3,
-38,
32,
21,
-15,
61,
-9,
-2,
-56,
-15,
15,
-35,
27,
21,
-13,
-40,
-7,
-23,
33,
51,
-5,
-3,
-1,
-31,
-37,
2,
23,
44,
28,
5,
7,
0,
-27,
-16,
-36,
1,
26,
45,
44,
40,
76,
35,
21,
-15,
66,
-20,
-40,
2,
52,
-18,
-24,
21,
-46,
25,
3,
-11,
4,
-13,
3,
38
] |
Reid, C. J.
Plaintiff Anna Stone filed her bill of complaint for a divorce from bed and board but not from the bonds of matrimony, for alimony and a property division. Defendant Leo F. Stone answered and in bis cross bill prayed for an absolute divorce and a property division. Each party charged the other with extreme cruelty.
From a decree dismissing her bill of complaint and awarding defendant an absolute decree of divorce on his cross bill, plaintiff appeals.
The parties were married at Detroit, Michigan, on August 16, 1919. For most of the period since the marriage and for all the period since February 1, 1946, plaintiff has been a resident of Detroit, Michigan. Two children, a daughter and a son, were born of the marriage. Shirley Ann was 22 when the case was heard, and Frederick Leo was then 20.
Plaintiff admits that defendant was a good provider and that he was generous and uncomplaining-in his allowances. Plaintiff claims defendant’s attitude toward her changed in April or May, 1948, coincident with defendant’s employment of a certain married woman as his secretary; that thereafter defendant became entirely different in his attitude toward plaintiff and the children; that as early as May, 1947, defendant began staying out late at night without plaintiff, and commenced drinking alcoholics, and on returning home at 3 or 4 a.m. his breath would reek with liquor, he would not tell plaintiff where he had been, called plaintiff a “g. d. skunk” and “son of a b.” and said to her, “You stink;” and that on one occasion he beat her until her arm was black and blue. Plaintiff further claims she found evidence of defendant’s intercourse with other women.
Defendant denied his alleged misconduct.
We do not deem it necessary to recite even in generalized substance the testimony of the parties themselves nor of the other witnesses on the subject of plaintiff’s claims as to her husband’s (defendant’s) claimed wrongdoing and extreme cruelty. The trial court found that the material facts charged by plaintiff against the defendant are untrue. The court concluded the plaintiff wife for some reason or other is laboring under a very strained mental condition, and gave credence to. defendant’s testimony as against plaintiff’s. After a careful consideration of all the testimony we agree with the conclusion by the trial court, that plaintiff failed to prove her case against defendant.
Defendant husband, as cross-plaintiff, alleges that for 5 years prior to her commencement of suit, cross-defendant (the wife) adopted an attitude of indifference and lack of love for him, refused his proffered love and embraces, told him to stay away from her and leave her alone; that on many occasions without reason she would fly into fits of rage and anger toward him and refuse to speak to him for days at a time; that she without just cause, about 2 years before the filing of the cross bill, flew into a rage at him, left his bed and the parties’ mutual bedroom, and for 2 months slept on a cot in an otherwise empty bedroom; that when a conference of the parties with a priest was being held for the purpose of a reconciliation, she broke off the conference; that in March, 1949, without just cause she flew into a rage at him, grabbed a cup of coffee and saucer out of his hand, threw the same at him; and that for 14 months before filing of the cross bill she refused to cook for plaintiff. Cross-defendant admitted that she called cross-plaintiff a “dirty polack”; it appears that his name was Kaminski but 5 years ago' it was changed to Stone.
The trial court found the material allegations of the defendant husband in his cross bill to be true,, with which conclusion we are in accord, and we consider the divorce granted cross-plaintiff should be affirmed.
At the time of the marriage, the-parties were employees of Karp Coal & Ice. He drove a truck ancL she was a clerk, but resigned' her position at defendant’s request apparently 3 months after the marriage. A statement of approximate income of the defendant during the marriage appears in the record. He left the employment of the coal company and entered the employment of Thompson Auto and about 15 years ago he became president of GricoTwo Axle Drive Company, which position he still holds. His annual income is about $20,000.
Defendant started the formation of Grico Two-Axle Drive Company. He testified:
“I am president of Grico Two Axle Drive Company. It is special equipment that we build for light duty trucks for heavy hauling. We can take our unit, and a light truck, and make a carrying-capacity of 12 tons on this truck. I am not the sole stockholder. The other stockholders are Mr. Hiecoch, Anstutz, and Mrs. Donovan. We all work for the company. The unit is not patented. We have-our own franchise.”
The report of the -friend of the court recites:
“The defendant husband has submitted to the-friend of the court the income tax- return for the year 1949 which shows him to have a gross income of $19,071.81. The assets of the parties consist of the home located at 17178 Muir land avenue valued. at $30,000 upon which there is aproximately $4,000 due; a summer home at Silver lake valued at $12,000; household furniture in the sum of $5,000; an interest in the factory building located on 8 Mile road in the sum of $33,000 on which there is a mortgage of approximately $7,000. The husband also has stock in the Grico Two Axle Company valued at $4,700. Both parties own automobiles, the wife a 1948 Dodge and the husband a 1949 Mercury. They also have a vacant lot and an interest in a land contract, the total of which is about $3,000.”
It becomes necessary to consider plaintiff’s claim that the property awarded her is insufficient and less than what she is justly entitled to.
The trial court awarded plaintiff $200 per month, “until such time as the plaintiff and cross-defendant, Anna Stone, shall remarry,” and also awarded her the Muirland home valued in the report of the friend of the court at $30,000, the household furniture, $5,000, and the Dodge automobile, $2,500. Defendant’s weekly salary at the time of the hearing was $300.
The decree awarded the cross-plaintiff husband the factory (leased to Grico Company) valued at $26,000, the summer home at Silver Lake subdivision, Green Oak township, Livingston county, valued at $12,000, certain lots valued at $3,000, Grico stock valued at $4,700 and the Mercury automobile valued at $2,550, and required him to pay her $200 per month, as above indicated.
The plaintiff wife argues that the Muirland home is not worth $26,000, but it appears that she did not accept defendant’s offer of $30,000 in cash in lieu of the home.
We see no just cause to disturb the award thus made, especially in view of the value to the wife of the monthly payments of $200 each. It is not without importance that the property was accumu lated by the parties during the marriage. Neither of the parties had any property of consequence at the time of the marriage. Their property interests represent accumulations and savings of income received from a business venture originated by the foresight and good judgment of defendant and carried on by him no doubt with consistent industry and somewhat unusual success. To the result the wife contributed nothing more than ordinary frugality at the most.
.The decree appealed from is affirmed. Costs to defendant.
Boyles, North, Dethmers, Butzel, Carr, BushnelLj and Sharpe, JJ., concurred. | [
-24,
22,
32,
12,
-60,
-29,
-15,
34,
-6,
-62,
-35,
10,
-19,
13,
-2,
-27,
-16,
-28,
20,
-30,
-16,
8,
4,
14,
6,
24,
15,
-59,
-7,
-42,
-9,
2,
-22,
-17,
14,
-19,
50,
-26,
-25,
30,
-9,
-58,
42,
3,
-27,
45,
25,
-17,
-27,
13,
-37,
-61,
0,
14,
-5,
-37,
-3,
29,
18,
-27,
16,
-25,
-34,
-12,
30,
-50,
46,
10,
-6,
-5,
22,
-35,
4,
-51,
-67,
-15,
-11,
-15,
-7,
7,
5,
-27,
45,
-11,
-4,
-8,
3,
41,
-46,
17,
24,
66,
-19,
17,
4,
-5,
8,
13,
27,
27,
-11,
-11,
-25,
3,
13,
68,
40,
-47,
-10,
0,
53,
-20,
67,
24,
2,
-42,
-26,
-51,
-24,
-89,
27,
32,
1,
-39,
39,
26,
-36,
-29,
35,
-34,
-19,
10,
56,
12,
-11,
-56,
11,
-46,
-17,
16,
17,
18,
12,
18,
58,
37,
-41,
-6,
-27,
-32,
-29,
-5,
29,
40,
75,
-43,
21,
-31,
-11,
-34,
54,
-34,
-14,
-31,
-35,
-30,
-9,
-5,
14,
-12,
27,
22,
-81,
0,
-18,
0,
17,
5,
-38,
9,
-10,
34,
21,
-54,
39,
-19,
14,
-33,
-60,
43,
30,
4,
-9,
23,
29,
8,
14,
16,
28,
29,
-15,
-6,
-9,
-10,
10,
-9,
39,
21,
-28,
-18,
24,
0,
23,
-54,
-23,
2,
-12,
-28,
-57,
-3,
37,
-64,
5,
35,
-54,
-63,
-3,
-33,
16,
-3,
10,
8,
-3,
6,
-26,
-1,
43,
-8,
42,
7,
-69,
-30,
-14,
0,
23,
1,
-59,
5,
-7,
18,
29,
-4,
30,
28,
-12,
14,
42,
-13,
31,
67,
-34,
8,
-8,
19,
-3,
4,
-42,
-32,
12,
-39,
51,
-29,
27,
-16,
7,
-39,
-19,
41,
3,
12,
-14,
47,
-31,
5,
37,
27,
11,
-26,
22,
14,
58,
-43,
14,
-57,
36,
10,
-24,
-16,
-27,
12,
-5,
12,
13,
12,
-4,
-35,
-9,
-41,
-15,
-10,
30,
-64,
35,
-31,
35,
37,
-14,
-3,
-21,
-35,
20,
17,
-40,
25,
-20,
23,
-10,
-13,
-34,
-10,
-69,
47,
21,
-8,
-15,
-25,
-15,
3,
13,
12,
1,
-5,
-29,
0,
-17,
-21,
7,
0,
9,
42,
-15,
-33,
8,
-1,
-50,
30,
30,
-47,
0,
-44,
38,
0,
-44,
15,
-12,
2,
-22,
-67,
9,
69,
30,
12,
-14,
10,
33,
-4,
16,
28,
20,
37,
-5,
9,
41,
47,
6,
76,
-28,
-65,
10,
-42,
-16,
33,
11,
0,
-2,
0,
39,
13,
-22,
24,
1,
23,
14,
9,
-6,
15,
0,
15,
-9,
37,
-16,
-9,
50,
15,
43,
21,
9,
8,
5,
33,
-13,
34,
18,
-31,
21,
-6,
14,
-44,
-5,
-20,
-23,
24,
25,
13,
19,
-41,
-32,
70,
-37,
31,
3,
41,
20,
38,
-17,
14,
-43,
2,
53,
-24,
8,
-28,
-17,
4,
-48,
-43,
12,
16,
5,
-14,
16,
-8,
7,
43,
38,
-40,
-26,
17,
-57,
-10,
19,
-12,
-20,
23,
17,
6,
-11,
-24,
-18,
-41,
-18,
5,
11,
-2,
-21,
3,
-5,
-55,
-7,
10,
-3,
-27,
-16,
35,
-19,
19,
-22,
-20,
-10,
-10,
-50,
-24,
1,
-10,
15,
27,
-2,
32,
36,
40,
-49,
-22,
7,
11,
-19,
-16,
2,
34,
2,
-21,
0,
48,
42,
-3,
0,
-42,
40,
-29,
-37,
20,
14,
12,
-10,
19,
25,
32,
-20,
-20,
32,
-36,
-10,
21,
41,
-35,
24,
24,
-8,
-35,
-15,
48,
2,
-18,
5,
-44,
-3,
17,
-11,
6,
-58,
-25,
-4,
-47,
1,
-13,
7,
-26,
24,
-19,
23,
5,
-16,
22,
19,
-47,
21,
29,
-18,
-10,
-57,
6,
63,
-42,
-38,
30,
-25,
-27,
36,
34,
-1,
2,
6,
-1,
-12,
-30,
20,
-41,
2,
30,
11,
-29,
30,
-43,
26,
-5,
-27,
-9,
-6,
42,
4,
-43,
65,
1,
-24,
-34,
22,
32,
-16,
-15,
-46,
0,
8,
44,
22,
-47,
25,
-29,
5,
33,
-11,
16,
13,
10,
30,
66,
19,
20,
34,
-17,
-23,
-19,
-26,
35,
-7,
48,
-6,
69,
-30,
-33,
-17,
-23,
9,
8,
27,
3,
5,
-55,
45,
-64,
-39,
-24,
-13,
-47,
-3,
65,
14,
11,
9,
30,
-25,
7,
-39,
27,
26,
-13,
12,
-15,
-42,
0,
53,
16,
0,
-10,
14,
11,
26,
0,
-24,
23,
-25,
13,
-6,
-11,
-16,
-16,
-30,
21,
24,
24,
17,
9,
-36,
24,
21,
-26,
36,
6,
58,
-15,
18,
0,
31,
-9,
27,
-22,
-39,
61,
6,
-26,
-41,
18,
-40,
27,
9,
-35,
-7,
-17,
-16,
-6,
15,
-19,
65,
13,
-6,
13,
-18,
29,
-57,
1,
-28,
26,
7,
-25,
-37,
21,
0,
-44,
3,
-22,
11,
11,
5,
-1,
20,
-12,
14,
14,
24,
-46,
-27,
-21,
-30,
42,
-21,
-55,
-45,
21,
10,
-6,
20,
3,
-30,
-3,
-26,
-17,
-62,
5,
-8,
16,
20,
-9,
-19,
7,
-2,
13,
-30,
-1,
70,
-29,
47,
12,
-28,
-88,
11,
-25,
-14,
-19,
-50,
-67,
-31,
1,
11,
48,
23,
-26,
-1,
22,
-21,
-27,
-18,
60,
-23,
12,
5,
-2,
-30,
59,
-8,
14,
14,
25,
0,
-23,
3,
38,
59,
-34,
6,
25,
-6,
-16,
43,
-6,
53,
26,
-25,
18,
43,
-23,
-17,
34,
21,
-6,
-30,
11,
54,
26,
40,
3,
12,
-29,
25,
-11,
-47,
24,
3,
-40,
-51,
2,
25,
-14,
0,
-13,
-72,
-96,
-26,
48,
51,
21,
50,
28,
-9,
-18,
-35,
8,
-20,
40,
52,
-48,
-2,
16,
0,
-18,
17,
25,
-21,
-2,
69,
21,
-55,
-7,
7,
34,
35,
-58,
-52,
-23,
-10,
34,
-13,
-45,
4,
16,
0,
25,
15,
-45,
-36,
25,
20,
-45,
28,
-49,
-12,
29,
-18,
51,
-22,
47,
-1,
-13,
-27,
-16,
15,
-29,
-3,
-3,
-13,
-8,
-11,
65,
29,
-22,
-9,
-24,
0,
23,
-16,
-23,
36,
2,
7,
-41,
-43,
-30,
29,
-9,
-34,
-28,
-21,
9,
2,
20,
-5,
34,
-8,
9,
-27,
9,
-24,
-16,
-3,
19,
-31,
11,
22,
-60,
31,
41,
13,
-2,
-14,
-8,
-37,
-26,
2,
10,
-11,
35,
24,
-47,
-37,
14,
12,
28,
27,
-4,
-2,
38,
-53,
26,
48,
50,
-55,
64,
24,
-9,
47,
-51,
-29,
-11,
-19,
-49,
61,
49,
-14,
-15,
9,
33,
-12,
23,
-21,
43,
0,
33,
-43,
57,
-38,
-3,
-8,
-67,
5,
46,
11,
32
] |
Bushnell, J.
Plaintiff Herbert A. Tarnow, on October 10, 1938, while loading a packing case at ¡the Kalamazoo station of defendant Railway Express Agency, slipped and injured his back. He was paid compensation to December 24, 1938, when he-returned to work to help out during the holiday rush •season. A settlement '.receipt was then filed and approved.
Tarnow’s work thereafter was of a clerical nature and did not involve heavy lifting. Although wearing a brace, he suffered increasing pain and was unable to continue work after March 10,1944.
A complete physical examination with a myelogram, on August 11, 1949, showed a “ruptured intervertebral disc, or a nucleus pulposus.” A persistent lumbar defect was observed with a fluorosc'ope. An operation performed in October of 1949 disclosed an old ruptured disc, described by his physician as “pretty well disintegrated, battered up;an old disc in the spaces between lumbar 3 and lumbar 4,” to which the accident of October 10,1938, was attributed as the “likely cause.”
An application for hearing and adjustment of claim, dated September 30, 1949, was received by the commission on October 14, 1949.
The deputy commissioner, after a hearing on January 13,1950, held on July 31,1950, that Tarnow, was not entitled to compensation.
On appeal the deputy’s award was reversed by the commission and one was entered November 21, 1950, granting compensation at $18 per week from March 10, 1944 (the date when Tarnow ceased working) to May 20, 1948, the end of the 500-week compensable period.
The situation presented, the statutory problem relating thereto, and the reasoning of the commission in support of its award are tersely stated in the following quotation from the opinion of the commission :
“These proceedings for further compensation were commenced on October 14, 1949, approximately 17 months after the expiration of the 500-week compensable period. Defendant contends that plaintiff’s right to further compensation is barred for failure to bring proceedings within the 500-week period and by section 14 of part 3 of the workmen’s compensation act (PA 1912 [1st ex sess], No 10) as amended by PA 1943, No 245 (CL 1948, § 413.14 [Stat Ann 1950 Rev § 17.188]).
“There can he no doubt that proceedings for further compensation may be commenced after the expiration of the 500-week period if the petitioner has not been paid compensation for either total or partial disability .up to the end of that period. See Murray v. Ford Motor Company, 296 Mich 348, where proceedings for further compensation were started approximately 4 months after the expiration of the 500-week period.
“The amended section 14 of part 3 on which defendant relies as a bar to plaintiff’s recovery in this proceeding reads as follows:
“ ‘If payment of compensation is made (other than medical expenses) and an application for further compensation is later filed with the commission, no compensation shall be awarded by the commission for any period which is more than 1 year prior to the date of the filing of such application.’ That provision became effective July 30, 1943. It was not In effect at the time'of the injury. Does it apply to a petition for further compensation filed several years after its enactment but relating to an injury which occurred several years prior to its enactment ? The right to petition for further compensation is ■a substantive right. Plaintiff had that right without the limitation of section 14 at the time the accident occurred. That right was a benefit which accrued to him when the accident happened. That right was a contractual right that existed because his employer had elected to be subject to the workmen’s compensation act. The act was then elective and not compulsory. The provisions of the workmen’s compensation act were a part of the contract of hire. The provisions of the act in effect when the accident o.ccurred, being a part of the contract of hire, are controlling of the substantive rights of the plaintiff. 'Those rights became vested in bim by amendment. Plaintiff’s right to proceed for further compensation is controlled solely by the provisions of the act in effect when the accident happened.” ■ ’
If the 1943 amendment is applicable, since plaintiff’s application for further compensation was not filed until 17 months after the expiration of the 500-week compensable period, and the amendment precludes the allowance of compensation for more than 1 year prior to the date of filing such application, plaintiff is barred from recovery because the 1 year retroactive period began 5 months after the expiration of the compensable period.
Plaintiff argues that he acquired a contractual vested right to compensation at the time of his injury, which could not be affected by the 1943 amendment. He urges the view that this amendment is not a procedural one in the nature of a statute of limitation, as argued by defendant. He bases his argument upon the absence of language restricting the time within which his claim for further compensation must he filed or asserted.
Plaintiff, in answer to defendant’s argument that the claim, if it became a vested right in 1938, is barred by the 6-year statute of limitation, as applied in Hajduk v. Revere Copper & Brass, Inc., 268 Mich 220, and Ardelian v. Ford Motor Co., 272 Mich 117, says the statute of limitations under Scalzo v. Family Creamery Co., 308 Mich 587, bars only those payments which do not fall within 6 years prior to filing of the claim for further compensation.
Did the contractual obligation to pay further compensation arise in 1938, the time of Tarnow’s injury, or in 1944 when, because of conditions resulting from that injury, he was no longer able to work ?
Tarnow’s right to compensation arose at the time of the injury, and he was so paid until he returned to lighter work and payment of compensation was then suspended. If he again became unable to work due to conditions resulting from his injury, he would have been entitled, upon proper proof, to further compensation for the unexpired portion of the 500-week compensable period.
“ ‘The law which must control the compensation to be paid is that which was in effect at the time the right to compensation springs into existence.’ ” Thomas v. Continental Motors Corp., 315 Mich 27.
That right arose at the time of the injury (1938) and became subject to review upon a petition for further compensation after he was unable to work in 1944.
That petition did not present a new case or a new cause of action. ■ The jurisdiction which the commission had acquired in 1938 was not divested by Tarnow’s resumption of lighter work and the abatement of compensation during such employment. Giampa v. Chrysler Corporation, 272 Mich 327.
The general rule to be applied in determining whether a statute operates retrospectively or prospectively only is stated in 50 Am Jur, p 494 et seq.
In Angell v. City of West Bay City, 117 Mich 685, the Court said:
“The general rule is that a statute is to be construed as having a prospective operation only, unless its terms show clearly a legislative intention that its terms should operate retrospectively. Ludwig v. Stewart, 32 Mich 27; Harrison v. Metz, 17 Mich 377; McKisson v. Davenport, 83 Mich 211 (10 LRA 507); Atherton v. Village of Bancroft, 114 Mich 241; Cooley, Constitutional Limitations (6th ed) 455.”
In Nash v. Robinson, 226 Mich 146, 149, it was said:
“Courts, as a rule, are loth to give retroactive effect to ■ statutes, and this is especially so when, by so doing, it would disturb contractual or vested rights.”
In holding that an intent on the part of the legislature to give retroactive effect was not indicated, the Court said:
“In our opinion the act in question is prospective in operation and has no application to causes in which the court has acquired jurisdiction of the subject matter and the parties.” Barber v. Barber, 327 Mich 5.
. Defendant argues for the application of the rule in Allen v. Kalamazoo Paraffine Co., 312 Mich 575. In that case an employer declined to pay compensation in the increased amount provided by legislative amendment because of the contractual relation which came into existence at the time of injury. This Court said:
“Defendant company elected to accept the benefit of the act providing for workmen’s compensation as well as such amendments to the act as the legislature might deem proper to make.”
In the Allen Case the injury did not become compensable until the later loss of industrial vision. At the time of the injury the statutory compensation was $18 per week, but when the right to compensation arose the statute then provided for the payment of $21 per week, and it was so ordered. Here, Tar-now’s rate of compensation was properly held to be unaffected by the amendment increasing the amount of compensation.
The application of the 6-year statute of limitations, as argued by the defendant, would be improper in this instance, because section 14 of part 3 of the act in effect at the time of the injury provided for the award of payments for the unexpired portion of the 500-week period, even though the petition for review was not filed until after the expiration of the 500-week period. Scalzo v. Family Creamery Co., supra.
The award of further compensation covered a period within 6 years prior to date of the filing of the petition. Hajduk v. Revere Copper & Brass, Inc., supra; Ardelian v. Ford Motor Co., supra; and Scalzo v. Family Creamery Co., supra. See, also, Palchak v. Murray Corporation of America, 318 Mich 482.
The amendment here in question may not be regarded as wholly procedural in character, as defendant contends. Obviously its effect, if so applied under the facts before us in this case, would result in taking from the plaintiff a right which the statute, in force at the time of his injury, granted to him. There is nothing in the amendment in question here indicating that' the legislature intended any such
possible result. In other words, there is nothing to overcome the presumption that prospective operation only was intended. It seems obvious that the purpose of the amendment was to limit the amount of recovery in certain cases. Such result must follow in any instance where the statute in its present form is invoked to defeat recovery, partially or wholly, and is applicable. The amendment may not be regarded as relating merely to procedure, nor may it be classed as remedial legislation. Under the general rule followed by this Court in the cases above cited, it should not be given a retroactive effect in the instant case.
The award is affirmed, with costs to appellee.
Reid, C. J., and Boyles, North, Dethmers, Butzel, Carr, and Sharpe, JJ., concurred.
CL 1948, § 609.13 (Stat Ann 1949 Cum Supp § 27.605). — RePORTER.
CL 1929, § 8453 (Stat Anil § 17.188). — Reporter. | [
13,
-14,
-9,
59,
-3,
7,
-33,
-37,
14,
40,
-13,
2,
17,
-46,
8,
-1,
30,
6,
-2,
31,
-39,
-8,
52,
81,
-12,
-10,
-40,
45,
-15,
17,
-13,
-25,
5,
14,
-34,
13,
32,
-10,
17,
0,
17,
40,
-16,
27,
0,
-5,
69,
12,
48,
-46,
33,
-3,
20,
-33,
31,
0,
66,
4,
0,
-37,
-42,
-16,
14,
-54,
10,
-14,
35,
9,
0,
-2,
-26,
19,
25,
-5,
-18,
-24,
-8,
72,
28,
-24,
37,
-57,
-7,
-6,
-30,
30,
21,
25,
20,
12,
-21,
7,
-18,
13,
-54,
1,
-33,
7,
-18,
-12,
-40,
19,
-15,
-8,
41,
5,
22,
-9,
-49,
74,
-1,
-6,
15,
5,
39,
-22,
10,
10,
-15,
29,
-4,
-7,
35,
-9,
-34,
38,
-59,
-12,
32,
-20,
-1,
-38,
-26,
-8,
46,
13,
-7,
-31,
77,
-6,
-11,
42,
-19,
-20,
-21,
6,
-7,
-6,
28,
-15,
-9,
14,
75,
-45,
-7,
-1,
-20,
0,
22,
0,
11,
-10,
18,
1,
61,
28,
4,
-4,
-5,
24,
22,
28,
83,
-29,
4,
21,
73,
7,
-24,
18,
-44,
-45,
19,
-30,
-30,
-14,
-24,
16,
107,
-8,
30,
-35,
-15,
-1,
6,
-31,
-5,
7,
21,
27,
-2,
-56,
-16,
-53,
-45,
-4,
6,
9,
40,
23,
18,
-10,
53,
-27,
-21,
11,
-36,
-26,
-8,
-13,
-29,
25,
-1,
-5,
-58,
5,
-20,
49,
31,
2,
-35,
-20,
36,
30,
38,
-11,
0,
-12,
28,
15,
-12,
-36,
-36,
-1,
-46,
14,
-66,
-36,
-39,
-13,
-3,
48,
-51,
-28,
-13,
-38,
0,
6,
-49,
-30,
-46,
43,
15,
119,
54,
-53,
9,
4,
-6,
-42,
-3,
-14,
32,
-64,
-18,
-64,
-14,
-32,
75,
-10,
-41,
-10,
22,
-27,
-63,
-6,
-23,
-41,
-37,
-26,
31,
-18,
7,
24,
20,
49,
31,
9,
12,
25,
-39,
2,
-28,
-16,
18,
12,
-57,
0,
43,
27,
-44,
-64,
89,
-27,
29,
2,
-14,
19,
25,
-15,
-37,
61,
14,
9,
-12,
-73,
-14,
-7,
4,
-26,
9,
31,
9,
79,
11,
-2,
24,
-20,
14,
56,
42,
51,
21,
49,
-23,
4,
41,
26,
33,
36,
16,
15,
34,
-7,
2,
64,
9,
1,
-45,
57,
30,
19,
-5,
-15,
-35,
-57,
-3,
17,
-12,
31,
14,
12,
40,
-15,
-8,
28,
6,
16,
17,
44,
6,
52,
-3,
-36,
-54,
5,
16,
-54,
-30,
19,
-48,
-22,
30,
54,
9,
-14,
-22,
36,
-30,
26,
-80,
-31,
-17,
53,
71,
-38,
33,
-20,
-31,
34,
3,
0,
-9,
-8,
12,
-5,
77,
-8,
-27,
-46,
68,
55,
8,
-59,
-14,
-37,
-9,
31,
27,
-24,
35,
2,
-13,
-67,
29,
-6,
-41,
-4,
13,
-41,
-16,
9,
-3,
0,
-14,
29,
-8,
49,
33,
-61,
-19,
25,
27,
53,
4,
36,
-33,
-9,
24,
-6,
-21,
-37,
12,
0,
56,
-8,
-21,
-3,
29,
42,
12,
-16,
1,
-26,
20,
-37,
17,
-91,
51,
-72,
11,
-6,
-65,
-13,
0,
-39,
-7,
-45,
-5,
47,
12,
-2,
-14,
-42,
-29,
-19,
-48,
17,
-44,
14,
-63,
-16,
45,
-9,
9,
-21,
9,
-71,
13,
25,
-98,
-11,
-66,
35,
41,
14,
48,
-23,
10,
-13,
4,
8,
-24,
19,
-30,
-33,
-45,
-6,
-24,
-33,
38,
-46,
37,
-1,
1,
-28,
-7,
-52,
-75,
-31,
-14,
-25,
-31,
-36,
47,
-70,
-20,
41,
2,
15,
16,
-24,
1,
-4,
47,
-38,
9,
-3,
16,
-3,
4,
7,
-2,
14,
40,
42,
-30,
-5,
7,
15,
-29,
30,
21,
15,
-1,
56,
-11,
53,
-37,
2,
0,
-10,
64,
-19,
-24,
-69,
28,
-14,
-18,
-22,
30,
-21,
25,
24,
53,
-17,
-10,
22,
0,
-16,
-22,
-5,
-15,
-19,
37,
39,
17,
59,
63,
-20,
-4,
25,
-3,
-52,
-20,
-47,
-11,
20,
40,
4,
-50,
44,
16,
-26,
-28,
24,
-14,
0,
-58,
-36,
17,
3,
-7,
-10,
34,
46,
7,
34,
12,
52,
12,
-27,
0,
25,
-36,
-70,
-42,
14,
-47,
1,
-17,
1,
-3,
-15,
-45,
0,
-5,
36,
-19,
-12,
-46,
5,
6,
-28,
-2,
32,
6,
-23,
-17,
-13,
1,
4,
36,
-33,
-28,
-12,
-47,
5,
-10,
-17,
42,
1,
84,
-2,
-2,
-3,
30,
34,
15,
-20,
-35,
-6,
19,
61,
22,
21,
19,
-23,
36,
-4,
-4,
10,
-35,
44,
27,
20,
5,
-18,
19,
-41,
-45,
0,
-35,
-49,
3,
48,
-3,
-11,
-45,
-38,
23,
-27,
-21,
21,
18,
71,
69,
-39,
-55,
-47,
0,
7,
-36,
-40,
-21,
5,
-32,
10,
6,
-52,
38,
0,
-1,
22,
14,
-7,
-29,
33,
0,
18,
-66,
10,
13,
-16,
66,
-40,
13,
-19,
1,
41,
-6,
-17,
27,
17,
-17,
6,
34,
-34,
-12,
-41,
0,
17,
-23,
-16,
-12,
-13,
-36,
-12,
-30,
7,
-7,
-12,
-10,
47,
-65,
-32,
0,
-7,
-1,
-12,
-22,
-36,
-21,
-33,
28,
0,
-5,
52,
-14,
-14,
-41,
20,
-22,
58,
15,
14,
57,
-12,
-26,
19,
-33,
15,
-5,
8,
-19,
-42,
25,
20,
-67,
17,
19,
39,
-39,
-47,
61,
-48,
-6,
-12,
44,
-11,
-32,
-15,
-33,
27,
33,
39,
14,
15,
-45,
14,
41,
-12,
-10,
8,
20,
-48,
-56,
83,
-36,
-14,
24,
-24,
-12,
1,
-38,
7,
21,
-22,
-8,
8,
-25,
18,
-33,
-31,
-37,
15,
-60,
-6,
64,
-36,
51,
7,
49,
-28,
-22,
0,
-18,
-27,
46,
-23,
-6,
-17,
-28,
-14,
15,
11,
37,
4,
-34,
-1,
22,
55,
-13,
-17,
-1,
-29,
-23,
43,
12,
20,
31,
63,
79,
36,
3,
6,
13,
-56,
-30,
27,
-9,
-1,
-7,
-46,
-22,
-48,
-14,
56,
22,
-36,
5,
-54,
-18,
29,
-3,
-24,
35,
-18,
-14,
10,
39,
-25,
17,
-4,
33,
10,
9,
-43,
-4,
-79,
18,
15,
-36,
37,
-54,
-27,
16,
15,
6,
40,
5,
9,
14,
-15,
-20,
-12,
16,
45,
25,
-10,
36,
6,
-6,
3,
13,
26,
10,
2,
-69,
-22,
15,
-1,
-50,
0,
32,
36,
-7,
21,
1,
-3,
44,
-23,
2,
22,
-14,
-57,
26,
-10,
1,
24,
-4,
-5,
-48,
36,
1,
-33,
0,
-31,
25,
-19,
34,
-59,
31,
20,
42,
-6,
18,
-35,
17,
1,
8,
96,
39,
-37,
44,
20,
-38,
-49,
-50,
21,
38,
17,
51,
-7
] |
E. E. Borradaile, J.
Defendant appeals as of right his conviction of criminal sexual conduct in the second degree, MCL 750.520c; MSA 78.788(3). Defendant was tried before a jury in Detroit Recorder’s Court and sentenced to from ten to fifteen years in the state penitentiary.
During the early morning hours of June 29, 1985, the complainant, an eleven-year-old girl, was asleep in her bed with her sister when a man entered her room, tripped on some clothes and fell against her bed. She woke up and looked at his face. The man put some covers on her and left the room. He returned about a minute later, got on top of her, and grabbed her buttock. She managed to struggle free and call her mother at which time the man ran out of her room. He ran toward the back door, while the complainant ran toward her mother’s room near the front of the house.
The complainant woke her stepfather. He and her cousin searched the house but did not find anyone and the stepfather went back to bed. Shortly after returning to bed, the complainant’s stepfather heard a noise in the basement and called the police. Complainant described the man to her mother and stepfather as someone they knew from the neighborhood. She said that he had a green Cadillac and wore a hat that had the words "Get Paid” on it. At trial the girl’s mother testified that she recognized the description of the man. The police arrived at the complainant’s house at approximately 6:45 a.m. and found a basement window open and the screen removed. The police, with the complainant and her mother, went over to the house where the complainant said the man lived. The mother went in and got the name "Quinton” from a young girl in the house. The police subsequently arrested the defendant and placed him in a line-up. The complainant picked out the defendant with no hesitation.
The defendant, on appeal, has raised a number of questions concerning, among other things, the prosecutor’s comments in final argument, the trial court’s decisions regarding the competency of witnesses and the production of evidence, the trial court’s interruption of defense counsel during cross-examination, the final instructions to the jury, the identification procedure, and sentencing. We affirm.
i
The issue which requires the greatest discussion relates to the trial judge’s failure to give in full the language from Criminal Jury Instruction 3:1:18 concerning the jury’s procedures in deliberations and verdict. The trial judge, after advising the jury that the matter of punishment was not within the province of the jury, stated:
When you retire to the Jury Room, you will elect a foreperson who will preside over your deliberations and who will be your spokesperson in court.
Upon the count in the Information charging Criminal Sexual Conduct in the Second Degree, you may find the defendant guilty or you may find him not guilty.
And I am confident you know that in order to render a verdict, your decision will have to be unanimous.
And I would again remind you this matter is not to be discussed except when you are all assembled in the Jury Deliberation Room.
Before the jury was sent out to deliberate, the trial judge inquired of each counsel if there were any omissions or misstatements and both indicated that there were none.
Defendant claims that because five of the jurors had previously served on other juries they would influence the other jurors by reason of their experience. Defendant contends that the trial judge erred so as to require reversal by failing to advise the jurors that they must not sacrifice their own independent judgment for the sake of unanimity. Defendant admits that the jury was polled, but claims that the record is silent as to juror peer pressure.
Defendant argues that the instruction should have been the same as that contained in People v Sullivan, 392 Mich 324; 220 NW2d 441 (1974), which was made applicable to nondeadlocked juries in People v Goldsmith, 411 Mich 555; 309 NW2d 182 (1981); People v Janice Davis, 135 Mich App 602; 354 NW2d 274 (1984).
In People v Hardin, 421 Mich 296, 313; 365 NW2d 101 (1984), the Supreme Court, when dealing with the issue raised in this case, stated:
There is absolutely no indication in People v Sullivan that coercion is not a relevant inquiry. In Sullivan, we simply held that the coercive effect of an Allen [Allen v United States, 164 US 492; 17 S Ct 154; 41 L Ed 528 (1896)] charge can be eliminated. Moreover, our statement to the effect that substantial departure from aba instruction 5.4 shall be grounds for reversible error does not eliminate the relevancy of coercion to the ascertainment of whether the departure is "substantial.”
Indeed, in People v Goldsmith, 411 Mich 555; 309 NW2d 182 (1981) (per curiam), this Court impliedly recognized that even aba instruction 5.4 was somewhat coercive. We issued the opinion in People v Goldsmith to make it clear that a proper Sullivan instruction may be given as part of the main charge to the jury. We asserted that the effect of delivering the aba charge prior to deliberations differed from its effect when given in a deadlocked situation. "When given during the original instructions, the aba charge’s coercive impact upon the jury is greatly diminished.” Id., p 559. [Emphasis changed.]
We might note that in People v Petrella, 424 Mich 221, 277; 380 NW2d 11 (1985), our Supreme Court has said:
Moreover, we remind the bench and bar once again that the Michigan Criminal Jury Instructions do not have the official sanction of this Court. Their use is not required, and trial judges are encouraged to examine them carefully before using them, in order to insure their accuracy and appropriateness to the case at hand.
The Sullivan case, supra, dealt solely with a supplemental instruction relating to a jury which had deadlocked or appeared to be having problems arriving at a verdict. The Sullivan Court discussed the ABA Project on Minimum Standards for Crim inal Justice, noting the standards relating to trial by jury were approved by the House of Delegates in 1968. Section 5.4, which is set forth in Sullivan, supra, p 335, is substantially the same language as contained in CJI 3:1:18. We might note that the Criminal Jury Instruction Committee on August 5, 1985, added CJI 3:1:18A, dealing with a deadlocked jury, which adds some additional language indicating that the jury has returned from deliberations with an inability to reach a verdict.
The tentative draft of the ABA Project on Minimum Standards for Criminal Justice printed in May, 1968, has little discussion other than to say that, as to section 5.4(a),
for the reasons set forth in the commentary to section 5.4(b), infra, the advisory committee has concluded that the instruction commonly referred to as the Allen charge, or "dynamite” charge should not be given to a jury which has been unable to agree after some deliberations. Nonetheless, it is most appropriate for the court to instruct the jury initially as to the nature of its duties in the course of deliberations, and section 5.4(a) so provides. The standard does not require the use of any particular language, but does identify the five points on which the jury might properly be advised.
The aba committee notes that the instruction proposed is similar to instruction 8.11 of Jury Instructions and Forms for Federal Criminal Cases, 27 FRD 97-98 (1961), which in addition to the language proposed in 5.4(a) indicated: "You are not partisans. You are judges — judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.” The committee goes on to note that the charge proposed makes no reference to a minority and instead requires that all jurors consult with one another. The committee felt that the proposed instruction did not have the coercive impact of the Allen charge. The committee notes that in Burroughs v United States, 365 F2d 431 (CA 10, 1966), the practice provided for in section 5.4(a) was recommended. However, we note that in the Burroughs case the defendant challenged the trial court’s instruction because the court put a limit on the length of time for deliberation by the jury. The issue was raised as to the coerciveness of the instruction in that case.
The same issue was dealt with in People v Janice Davis, supra, where a challenge was raised as to the coercive effect, of the original instruction by the trial judge. While the panel dealt with the language of CJI 3:1:18 in referring to the aba proposed instruction, we are satisfied that this case is distinguishable from the Janice Davis case because there was no coercion in the instruction given by the trial judge.
In State v Watkins, 99 Wash 2d 166, 175; 660 P2d 1117, (1983), the Washington Supreme Court dealt with the aba standards and specifically standard 5.4, noting in a footnote: "An instruction similar to the aba recommendation is set forth in WPIC 1.04, which recommends that the instruction be given in every case before the jury retires.” No note as to use is provided by the Criminal Jury Instruction committee in CJI 3:1:18 and we cannot find error in this case based on the failure of the trial judge to give the instruction where it is quite clear that the trial judge did not act coercively in instructing the jury relative to its deliberations.
MCR 2.516(B)(3) provides:
After the arguments are completed, the court shall instruct the jury on the applicable law, the issues presented by the case, and, if a party re quests as provided in subrule (A)(2), that party’s theory of the case. The court may, in its discretion, make comments on the evidence, the testimony, and the character of the witnesses as the interests of justice require.
In the proposed rules of criminal procedure found at 422A Mich 148, MCR 6.407(G) would, if adopted, set up language under the rules of criminal procedure but that language shows "after closing arguments are made or waived, the court shall instruct the jury as required or permitted by law, but if the parties consent, the court may instruct the jury before the parties make closing argument.”
Defendant raises a number of other objections concerning the trial court’s instructions on reasonable doubt and failure to instruct on alibi and lesser included offenses. As noted above, no timely objection was raised to the instructions and for error to result in reversal there must be either timely objection or manifest injustice. People v Jones, 78 Mich App 309, 314; 259 NW2d 359 (1977). The Michigan Supreme Court in People v Kelly, 423 Mich 261, 270; 378 NW2d 365 (1985), indicated that, in determining the effect of jury instructions, they must be reviewed in their entirety and not extracted piecemeal from the transcript.
Specifically on reasonable doubt, defendant takes exception to the trial court’s use of "rely and act upon in the most important of your own affairs” in the instructions on reasonable doubt. In People v Davis, 171 Mich 241, 248; 137 NW 61 (1912), the Supreme Court found no error in the use of "your ordinary affairs of life” when read in connection with the entire instruction which adequately set forth the meaning of reasonable doubt. We find in this case that the court has not erred.
Defendant claims that the trial judge should have given the "perfect defense” instruction for alibi, but this Court has ruled in People v Prophet, 101 Mich App 618, 628; 300 NW2d 652 (1980), that no prejudice or manifest injustice results to a defendant when the court gives only the reasonable doubt instruction as to alibi.
Appellate counsel in this case claims that the trial court should have sua sponte given an instruction on lesser included offenses even though trial counsel requested that no instructions be given on lesser included offenses and made no objection when the trial court did not give any such instruction. In People v Pixler, 134 Mich App 143, 145; 350 NW2d 765 (1984), this Court has found that a trial judge did not err in failing to instruct as to a lesser included offense when such instruction was not requested and defense counsel did not object when such instruction was not given.
ii
Defendant has raised a number of other questions on appeal with which we will deal briefly.
Defendant objects to the prosecutor’s use of the word "rape” in both his opening and closing arguments to the jury. Defense counsel objected to the prosecutor’s referring to the victim’s identification of defendant as the "one who tried to rape me” but that statement was in fact brought out in the victim’s testimony and she was referred back to the preliminary examination where she stated: "I almost got raped.” We agree that a prosecutor cannot place unfounded prejudicial statements into the trial proceedings, but we find that the statements regarding rape by the prosecutor in this case were not unfounded. People v Williams, 114 Mich App 186; 318 NW2d 671 (1982), lv den 422 Mich 909 (1985).
Defendant also claims that the trial court erred in finding that the complainant, an eleven-year-old girl, was competent to testify and also argues that counsel should have been given an opportunity to examine the witness concerning her competence to testify. MCL 600.2163; MSA 27A.2163 requires the court to determine the competency of a child under ten years of age and thus would not be applicable to this case. Further, MRE 601 contains a presumption of competency for every witness unless the court finds the person to be incompetent. People v Draper, 150 Mich App 481, 488; 389 NW2d 89 (1986), lv pending. The burden of determining competency is placed squarely on the trial court and questions by counsel are not proper. MRE 601.
Defendant also objects that the trial court allowed a police officer to testify from his police report, over defense objection, without a proper showing that he needed his memory refreshed or lacked knowledge of the case. We find that the trial court erred, but the error was harmless. People v Paintman, 139 Mich App 161, 174; 361 NW2d 755 (1985), lv den 422 Mich 931 (1985).
Defendant further argues that the discussion concerning deletion of a statement concerning the term "rape” in the line-up sheet introduced as Exhibit 3 was prejudicial in that it was discussed in front of the jury. However, defendant has failed to offer any support for the conclusion that such discussion results in error requiring reversal. Case law would indicate that, as long as the statement objected to was not read in front of the jury, it is not prejudicial to argue as to its inadmissibility. Schweim v Johnson, 10 Mich App 81; 158 NW2d 822 (1968); People v Keith, 119 Mich App 699; 326 NW2d 612 (1982), lv den 417 Mich 1018 (1983). In this case there was no reading of the actual statement in the argument concerning deletion, and the court advised the jury that there were deletions in some documents because those things deleted were not material to the case. No error occurred.
Defendant argues that the judge’s interruptions in defense counsel’s cross-examination prejudiced the jury against the defendant and caused the defense counsel to abandon an important line of questioning. MRE 611(a) provides the court with broad power to control the interrogation of witnesses in a case. The Supreme Court in People v Fleish, 321 Mich 443, 464; 32 NW2d 700 (1948), stated:
So far as the cross-examination of a witness relates either to facts at issue or relevant facts, it is a matter of right; but when its object is to ascertain the accuracy or credibility of a witness, its method and duration are subject to the discretion of the trial judge and, unless abused, its exercise is not the subject of review.
In People v Taylor, 386 Mich 204, 208; 191 NW2d 310 (1971), the Supreme Court indicated that a trial court is allowed a great deal of discretion in connection with limitations placed on cross-examination and refused to allow review unless the record shows a clear abuse of such discretion. In the instant case, the trial judge did not deny defense counsel the right to continue questioning, but only requested that he state his questions in a different manner so that the witness would understand the questions. The record and case law would support the fact that this did not prejudice defendant. We find no error.
in
Defendant on appeal also argues that the line-up in this case was impermissibly suggestive because it contained no other men from the neighborhood and the police told the complainant that the suspect was in the line-up. Defendant would further argue that the withholding of evidence with regard to the identification procedure denied defendant due process of law.
Trial counsel raised no objection to the identification during trial and made no motion to suppress the identification testimony. In People v Lee, 391 Mich 618, 626; 218 NW2d 655 (1974), and People v Coles, 417 Mich 523, 552; 339 NW2d 440 (1983), the Supreme Court has indicated that it will not examine a question regarding suggestiveness of identification procedures when there is no motion to suppress at trial. Our review of the lineup procedure would indicate that it was not impermissibly suggestive. Further, appointed counsel was present at the time the line-up was held. Our review of the line-up identification record shows that, even if no neighbors were present, the men in the line-up closely approximated the description of defendant. We cannot find that the fact that the complainant was told her attacker would be in the line-up is prejudicial. People v Barnes, 107 Mich App 386, 390; 310 NW2d 5 (1981), lv den 413 Mich 867 (1982).
Even if the line-up were shown to be suggestive, the facts of this case show that under the Kachar guidelines, there is an independent basis for the in-court identification. People v Kachar, 400 Mich 78; 252 NW2d 807 (1977). The complainant testified that she knew the man from the neighborhood and had even seen him the day before near her stepfather’s car. When the incident happened, complainant was able to see defendant’s face because it was light out. The incident occurred at approximately 6:30 a.m. in late June and the identification took place that same afternoon shortly after 2:00 p.m. In addition, the description given by complainant did not vary from the time she first told her mother and the time of trial.
Defendant’s argument that he may have been denied effective assistance of counsel at the line-up cannot be reviewed here because no motion was made to suppress the identification or for an evidentiary hearing at trial. Defendant’s complaint that no other men from the neighborhood were in the line-up was information that could have been readily obtainable from the defendant. We find no error.
IV
Finally, defendant complains about a sentence of from ten to fifteen years where the sentencing guidelines recommended a minimum of forty-two to sixty months. The trial judge adequately stated the reasons for imposing a harsher sentence, noting that defendant had just got out of prison, was on parole, and defendant was in a house exploiting a small child. The trial judge also noted that defendant had a prior criminal record. Defense counsel objects that those items are already dealt with in the sentencing guidelines.
In People v Kenneth Johnson, 144 Mich App 125, 137; 373 NW2d 263 (1985), lv den 424 Mich 854 (1985), this Court noted:
It is not an abuse of discretion for the trial court to rely on some of the same factors already considered in the sentencing guidelines as a basis for departing from the recommended minimum sentence range. The sentencing judge may justifiably conclude that the guidelines give inadequate weight to certain factors or that the facts of the case warrant a more severe sentence.
The trial judge in sentencing noted that this was defendant’s fourth felony conviction and the trial judge was not even mentioning defendant’s one misdemeanor conviction. In addition, the trial judge felt that the exploitation of an eleven-year-old child was inexcusable. We are not shocked by the sentence given and see no need to determine whether the sentencing guidelines scores were accurately computed.
Affirmed. | [
16,
19,
-37,
6,
-29,
-40,
-58,
-10,
-26,
-17,
6,
-10,
-28,
15,
20,
0,
-46,
-55,
-14,
-31,
57,
5,
11,
55,
-42,
-19,
58,
4,
-56,
19,
27,
-4,
33,
-29,
-26,
12,
52,
-34,
19,
53,
43,
13,
6,
-24,
-63,
15,
18,
52,
0,
-22,
10,
-19,
9,
51,
-20,
-33,
22,
28,
42,
13,
3,
20,
-23,
-35,
5,
-21,
11,
23,
-54,
6,
24,
-29,
-66,
12,
-10,
-3,
-35,
-9,
55,
67,
-3,
-19,
54,
38,
36,
-69,
14,
-24,
-55,
16,
19,
8,
-31,
-12,
27,
-18,
27,
-15,
49,
-29,
7,
11,
9,
-1,
-5,
56,
4,
-26,
-46,
39,
-20,
-15,
59,
10,
-43,
-7,
-7,
-11,
-15,
-17,
12,
-3,
13,
-32,
13,
-36,
0,
-20,
36,
-43,
-76,
41,
28,
-7,
-15,
2,
20,
30,
59,
3,
9,
-3,
38,
23,
46,
-20,
-27,
10,
25,
29,
12,
0,
-10,
45,
18,
-45,
-62,
-37,
-64,
-18,
7,
-8,
-44,
40,
-20,
-28,
-39,
27,
19,
27,
-9,
4,
31,
-2,
31,
12,
-45,
-9,
2,
24,
-18,
-5,
-4,
4,
-5,
4,
24,
-36,
-13,
0,
-5,
31,
-22,
36,
22,
7,
60,
29,
27,
6,
22,
-14,
24,
54,
49,
-79,
-10,
4,
25,
-20,
33,
17,
-5,
-4,
-16,
-43,
-2,
15,
-7,
35,
-12,
-25,
-14,
-40,
-47,
-32,
-16,
11,
-16,
5,
78,
35,
-13,
-32,
-31,
-16,
38,
-7,
48,
-9,
25,
-24,
18,
-7,
4,
12,
-47,
-12,
-29,
-12,
38,
19,
11,
18,
-30,
-21,
-14,
14,
-5,
-12,
-6,
2,
-10,
13,
20,
44,
3,
20,
-80,
-79,
-19,
-13,
-13,
19,
-4,
7,
-39,
34,
-16,
3,
5,
18,
5,
45,
-22,
-36,
-31,
62,
-3,
-6,
32,
-6,
-17,
-67,
50,
11,
15,
-4,
-43,
29,
1,
-12,
9,
-29,
4,
16,
63,
20,
-2,
8,
24,
-3,
2,
65,
19,
11,
-23,
-37,
2,
12,
-23,
-48,
-34,
-27,
26,
-7,
40,
-45,
8,
-52,
-50,
11,
21,
25,
15,
34,
-1,
3,
-2,
-12,
8,
-30,
38,
-25,
-20,
2,
14,
7,
-35,
6,
-1,
-14,
-3,
-42,
-20,
-24,
-44,
0,
-14,
-30,
30,
-23,
-45,
8,
-23,
23,
35,
-13,
59,
73,
15,
-85,
-15,
26,
-15,
-15,
27,
-45,
-17,
40,
-3,
4,
31,
-8,
-2,
8,
9,
-37,
54,
30,
-14,
30,
40,
-55,
7,
-32,
18,
21,
70,
-44,
1,
8,
48,
31,
-37,
-7,
-15,
24,
-15,
-19,
-30,
32,
64,
52,
-6,
-9,
5,
-20,
11,
-11,
-30,
39,
66,
4,
15,
31,
8,
-23,
61,
-21,
12,
11,
-19,
-5,
7,
1,
-48,
-29,
1,
-20,
-58,
-20,
-38,
41,
49,
22,
-20,
-4,
4,
-4,
-12,
-3,
22,
-27,
30,
48,
2,
38,
-48,
-1,
1,
-44,
0,
-3,
0,
8,
-13,
-14,
-43,
-15,
29,
-44,
-5,
12,
44,
37,
-11,
68,
-10,
8,
62,
29,
35,
12,
-4,
13,
-2,
-37,
40,
-19,
-8,
-3,
-9,
41,
21,
69,
6,
19,
28,
23,
19,
-19,
13,
2,
26,
-27,
31,
48,
-36,
-16,
-10,
39,
-34,
-9,
-2,
-24,
44,
6,
39,
-5,
28,
-25,
32,
16,
-33,
28,
-13,
-65,
-82,
-14,
35,
-7,
-21,
-30,
71,
19,
-63,
-26,
12,
-38,
-5,
13,
7,
21,
20,
-50,
9,
26,
20,
2,
1,
-22,
-20,
-46,
5,
-8,
43,
-8,
-13,
-22,
-9,
-1,
59,
27,
19,
0,
-35,
9,
41,
-14,
-6,
43,
-27,
26,
-51,
-25,
18,
38,
-12,
9,
11,
52,
-28,
5,
-7,
-23,
-15,
-29,
11,
-18,
12,
-3,
18,
-49,
14,
-48,
-58,
-29,
9,
-7,
52,
10,
-8,
-13,
23,
11,
2,
32,
-34,
-34,
29,
14,
15,
-28,
-8,
34,
-10,
15,
-19,
-12,
8,
-51,
-36,
-5,
-46,
-84,
-49,
-50,
-4,
-3,
-41,
-1,
37,
45,
25,
5,
62,
24,
-18,
73,
20,
38,
9,
-14,
16,
44,
0,
-18,
4,
-41,
-51,
-14,
11,
-12,
37,
-29,
-38,
-20,
4,
-6,
13,
43,
-41,
12,
17,
5,
-18,
-67,
5,
-39,
-27,
29,
-12,
30,
-37,
5,
-20,
-11,
10,
12,
-19,
-1,
-10,
-48,
5,
23,
0,
10,
1,
1,
-14,
-70,
56,
-7,
18,
8,
32,
3,
-34,
-7,
-37,
5,
0,
-34,
-21,
-8,
29,
-12,
-22,
-6,
-12,
60,
-10,
11,
-10,
-22,
-47,
-40,
-36,
30,
-23,
-22,
43,
11,
9,
-6,
0,
-3,
14,
-7,
48,
-26,
-5,
37,
9,
25,
-67,
-1,
4,
41,
-9,
3,
-28,
-77,
-6,
-24,
59,
-37,
25,
8,
36,
12,
51,
33,
-24,
17,
41,
-31,
-50,
-22,
1,
9,
30,
-108,
-21,
-10,
12,
23,
51,
0,
-60,
-40,
-3,
-4,
-24,
10,
-9,
21,
33,
-70,
18,
38,
-75,
17,
5,
-5,
19,
-5,
8,
-12,
23,
6,
-9,
18,
5,
17,
4,
-55,
22,
1,
15,
7,
54,
-66,
-35,
1,
-17,
-2,
-10,
13,
29,
10,
-35,
3,
-12,
36,
10,
-9,
-10,
-14,
20,
-18,
-23,
-18,
-30,
7,
9,
-27,
17,
-7,
-7,
34,
9,
10,
-10,
35,
13,
-40,
-2,
44,
-6,
34,
0,
-3,
35,
-6,
46,
-9,
46,
36,
29,
-36,
-13,
2,
3,
6,
-22,
44,
-44,
4,
-24,
34,
-7,
-41,
-14,
23,
56,
-49,
23,
25,
-31,
-19,
15,
42,
-14,
-10,
-22,
13,
-46,
27,
43,
-48,
14,
-28,
0,
39,
-19,
-35,
-21,
-38,
-35,
2,
-11,
-33,
-5,
17,
-10,
11,
4,
-71,
17,
-27,
-46,
30,
19,
-10,
-26,
-35,
-22,
14,
3,
-3,
25,
54,
22,
26,
-35,
-4,
-13,
-47,
-38,
-13,
51,
51,
14,
-28,
-19,
0,
-35,
27,
-20,
-39,
-68,
-49,
4,
-11,
35,
-42,
22,
57,
36,
13,
-54,
-7,
30,
67,
-23,
-31,
51,
13,
-7,
4,
-2,
11,
-4,
34,
-2,
11,
-71,
15,
-48,
6,
0,
2,
32,
-2,
18,
4,
-13,
-33,
3,
-2,
-41,
-20,
-17,
-8,
9,
8,
-2,
-104,
-61,
-35,
-27,
-22,
14,
39,
-22,
48,
-79,
1,
-11,
-42,
-34,
51,
-5,
25,
27,
-31,
-10,
4,
-34,
44,
16,
61,
6,
-24,
-15,
-39,
-15,
-29,
-2,
-18,
61,
41,
11,
-9,
-23,
19,
52,
6,
-34,
28,
42,
50
] |
Per Curiam.
Plaintiffs appeal as of right from the trial court’s order granting defendant’s motion for summary disposition. MCR 2.116(C)(8). We reverse and remand for further proceedings.
Plaintiffs’ complaint alleges that at 2 a.m. on August 17, 1985, plaintiffs and two companions parked their automobile in defendant’s parking lot. Plaintiffs and their friends observed a group of seven or eight people standing outside of another vehicle. These people were drinking alcohol, using obscenities and "noticeably acting like disorderly persons.” Plaintiffs and their companions ignored the group and entered the restaurant. Forty minutes later, plaintiffs and their friends left defendant’s business and plaintiffs were attacked by the same group of unruly persons they had observed earlier. During the attack, one of plaintiffs’ companions reentered defendant’s establishment and asked the manager to call the police. The manager refused to call the police, refused to allow plaintiffs’ friend to call the police and told plaintiffs’ friend to go across the street and use a public telephone to summon the police. Defendant’s restaurant was located at Eight Mile and Gratiot Roads. Plaintiffs further alleged that the delay in summoning the police allowed the unruly group to continue its attack and, in fact, to leave the area before the police arrived. Specifically, plaintiffs alleged that defendant was negligent in failing to maintain its premises in a safe and prudent manner because it allowed unruly patrons to congregate in its parking lot and, thereby, to attack plaintiffs and because it failed, refused or neglected to allow plaintiffs’ friend to call the police so that they could aid plaintiffs.
Defendant moved for summary disposition, claiming that plaintiffs had failed to state a cause of action upon which relief could be granted. Defendant read plaintiffs’ complaint as alleging that it owed plaintiffs a duty to protect them from attack by unknown third persons or to intercede on their behalf when the attack occurred. Defendant claimed that plaintiffs were, in reality, alleging that it owed them a duty to provide police protection. Defendant alleged that it owed no such duty. Defendant further alleged that even if its employees had called the police there was no guarantee that the police would have responded.
The trial court granted defendant’s motion, holding that defendant did not owe plaintiffs a duty to protect them from assaults by third persons.
A motion for summary disposition for failure to state a claim upon which relief can .be granted, MCR 2.116(C)(8), is tested by the pleadings alone. Beaudin v Michigan Bell Telephone Co, 157 Mich App 185, 187; 403 NW2d 76 (1986). Only the legal basis of the complaint is examined. Id. The factual allegations of the complaint are accepted as true, along with any inferences which may fairly be drawn therefrom. Id. Unless the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery, the motion should be denied. Id.
In Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418; 418 NW2d 381 (1988), plaintiff Willie Williams was shopping in the defendant’s store, which was located in a high-crime area in Detroit. While the defendant generally had a plainclothes security guard on duty, the guard was ill on that day and the defendant was robbed. The plaintiff was injured when he inadvertently ran out behind the robber in the ensuing panic and was shot. The plaintiff alleged that the defendant had breached its duty to exercise reasonable care for the safety of its patrons by failing to provide armed, visible security guards and by failing to intercede on the plaintiff’s behalf after learning that a robbery was in progress.
Our Supreme Court noted:
In determining standards of conduct in the area of negligence, the courts have made a distinction between misfeasance, or active misconduct causing personal injury, and nonfeasance, which is passive inaction or the failure to actively protect others from harm. The common law has been slow in recognizing liability for nonfeasance because the courts are reluctant to force persons to help one another and because such conduct does not create a new risk of harm to a potential plaintiff. Thus, as a general rule, there is no duty that obligates one person to aid or protect another.
Social policy, however, has led the courts to recognize an exception to this general rule where a special relationship exists between a plaintiff and a defendant. Thus, a common carrier may be obligated to protect its passengers, an innkeeper his guests, and an employer his employees. The rationale behind imposing a duty to protect in these special relationships is based on control. In each situation one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself. The duty to protect is imposed upon the person in control because he is best able to provide a place of safety.
Owners and occupiers of land are in a special relationship with their invitees and comprise the largest group upon whom an affirmative duty to protect is imposed. The possessor of land has a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land. Consequently, a landlord may be held liable for an unreasonable risk of harm caused by a dangerous condition in the areas of common use retained in his control such as lobbies, hallways, stairways and elevators. Likewise, a business invitor or merchant may be held liable for injuries resulting from negligent maintenance of the premises or defects in the physical structure of the building.
The duty a possessor of land owes his invitees is not absolute, however. It does not extend to conditions from which an unreasonable risk cannot be anticipated or to dangers so obvious and apparent that an invitee may be expected to discover them himself. Furthermore, "the occupier is not an insurer of the safety of invitees, and his duty is only to exercise reasonable care for their protection.” [Id. at 498-500, quoting Prosser & Keeton, Torts (5th ed), § 61, p 425.]
The Court then held that as a matter of law a merchant’s duty of reasonable care does not include providing armed, visible security guards to deter criminal acts of third parties. Id. at 501. While the Court noted that 2 Restatement Torts, 2d, §344, pp 223-224, provided that a business owner is subject to liability for physical harm caused by the intentional acts of third parties, it declined to apply that section to the Williams facts because of the public policy concerns underlying its decision. 429 Mich 501 n 15. For instance, the Court noted that the duty to provide police protection was vested in the government and could not be transferred to private citizens. The Court further noted that, while a merchant could control the condition of his premises by correcting defects which could result in injury to an invitee, he could not control crime in his community. Id. at 501-502. Moreover, the Court noted that to impose a duty on a merchant to provide armed guards to protect invitees from a third party’s criminal act would require him to provide a safer environment than was available in the community at large; because a merchant is not an insurer of his invitees’ safety, such a duty should not be imposed. Id. at 502. The Court also noted that such a duty should not be imposed because a merchant would be unable to predict the extent of his duty and, therefore, it would be unfair to impose liability when he failed to correctly guess how many guards would be required. Id. at 502-503. Finally, the Court noted that imposing such a duty would be against the public interest because shifting the responsibility to prevent crime onto a merchant would amount to advocating him to resort to self-help. Id. at 503-504.
We believe that the facts in this case are easily distinguished from those in Williams. Plaintiffs first alleged that defendant should have ejected intoxicated, unruly patrons from its premises. This type of allegation is different from a claim that defendant could have prevented the assault on plaintiffs by providing armed and visible security guards. In fact, defendant was in a position to control the unruly patrons’ actions or to eject them from its premises. Plaintiffs’ allegations are sufficient to support an inference that defendant had or should have had knowledge about the unruly patrons’ presence on its premises. Hence, plaintiffs did state a claim upon which relief could be granted.
Moreover, to the extent that Williams suggests that merchants have no duty to intervene in a criminal act of which they become aware, id. at 497-498, we find this case distinguishable on the policy rationales discussed in Williams. Here, defendant was not asked to provide police protection to plaintiffs. Instead, defendant’s employees were asked to summon the police or to allow plaintiffs’ companion to summon the police. Self-help was not required and defendant was informed of the extent of the criminal activity. Hence, we believe that these specific acts alleged by plaintiffs could result in a breach of defendant’s duty to exercise reasonable care for its invitees’ protection and, therefore, plaintiffs did state a claim upon which relief could be granted.
Defendant also claims that its employees’ failure to eject the unruly persons or to summon the police or to allow plaintiffs’ companion to summon the police was not the proximate cause of plain tiffs’ injuries. Proximate cause is a question of fact for the jury unless reasonable men would not differ as to whether defendant’s alleged breaches of duty were not the cause of plaintiffs’ injuries or were too insignificantly connected to or too remotely affected by defendant’s breaches of duty. See, e.g., Fiser v Ann Arbor, 417 Mich 461; 339 NW2d 413 (1983), reh den 418 Mich 1201 (1984). There may be more than one proximate cause of an injury, and a defendant cannot escape liability for its negligent conduct merely because the negligence of others may also have contributed to the harm caused. Brisboy v Fibreboard Corp, 429 Mich 540-547; 418 NW2d 650 (1988). We are unable to say that reasonable men would agree that defendant’s employees’ failure to eject the unruly patrons or to notify the police or to allow plaintiffs’ friend to notify the police was not the proximate cause of plaintiffs’ injuries. Fiser, supra.
Reversed and remanded for further proceedings. | [
-25,
18,
-29,
31,
33,
-32,
-2,
35,
-25,
54,
-2,
7,
-3,
24,
0,
-19,
-16,
-22,
16,
-33,
-19,
-56,
-3,
8,
-21,
2,
29,
-6,
30,
54,
1,
-35,
1,
-47,
19,
5,
41,
14,
-27,
45,
-11,
23,
51,
-17,
0,
-7,
-9,
0,
34,
-10,
29,
47,
-32,
44,
-13,
-31,
-18,
0,
22,
-3,
-60,
62,
2,
2,
-5,
31,
-17,
13,
-47,
-13,
-30,
42,
-43,
-35,
-18,
-31,
-12,
9,
7,
3,
-6,
-14,
50,
44,
-6,
15,
9,
-28,
2,
-56,
3,
2,
-67,
-57,
-9,
57,
13,
-49,
23,
-24,
19,
-25,
-26,
31,
-26,
56,
11,
-47,
-4,
-69,
-54,
9,
43,
-13,
-22,
14,
-1,
3,
11,
10,
50,
-10,
54,
-27,
4,
-32,
12,
0,
-51,
90,
0,
13,
11,
-13,
30,
-11,
-12,
10,
27,
0,
-2,
20,
-15,
-6,
46,
2,
-6,
35,
16,
34,
11,
5,
-32,
48,
-32,
24,
29,
-14,
-27,
18,
-2,
-19,
15,
-11,
33,
-14,
0,
-30,
-11,
-22,
56,
-20,
23,
11,
35,
-15,
-31,
13,
-51,
-68,
6,
44,
8,
-10,
36,
-75,
-31,
-39,
-79,
48,
-16,
-33,
-22,
30,
46,
18,
41,
32,
-24,
-53,
-5,
1,
19,
-61,
12,
-49,
68,
13,
20,
-9,
-8,
26,
-40,
-38,
40,
-41,
58,
-42,
-53,
1,
-40,
0,
-66,
-11,
-72,
-36,
-32,
-25,
-13,
0,
23,
-7,
-4,
40,
-24,
-21,
22,
9,
44,
-24,
20,
27,
-26,
-46,
-7,
33,
-12,
-35,
0,
9,
51,
4,
-13,
-32,
-16,
-58,
-23,
48,
26,
7,
26,
37,
8,
-21,
-12,
55,
-9,
17,
-55,
20,
-34,
22,
3,
-10,
-2,
-29,
-26,
49,
20,
48,
7,
32,
6,
14,
-8,
-7,
54,
1,
27,
11,
-1,
16,
-32,
2,
2,
-17,
-23,
30,
-6,
10,
9,
-7,
19,
-6,
-61,
-31,
20,
21,
2,
-16,
7,
10,
-30,
-33,
42,
13,
-22,
33,
19,
-67,
-14,
-32,
0,
-10,
-7,
-66,
55,
-13,
15,
-48,
11,
33,
1,
-22,
-11,
27,
5,
-16,
24,
53,
-13,
17,
-37,
-7,
9,
59,
17,
2,
-5,
-45,
-30,
-21,
7,
-4,
60,
12,
-34,
-36,
-36,
48,
30,
-59,
-9,
1,
19,
36,
25,
9,
-42,
50,
-56,
-33,
-15,
-24,
-60,
-21,
33,
4,
-8,
56,
48,
-93,
54,
-6,
-20,
0,
-54,
-15,
2,
1,
-18,
-42,
22,
-2,
11,
-8,
-45,
8,
82,
7,
25,
-14,
14,
-7,
-33,
-36,
31,
1,
41,
21,
-28,
-5,
30,
29,
-43,
22,
5,
5,
58,
-19,
8,
-34,
25,
-25,
14,
-16,
-11,
-16,
-22,
-10,
-23,
-42,
-17,
-16,
-3,
13,
-52,
-46,
-21,
-6,
-17,
-42,
-66,
-16,
6,
-30,
-38,
-21,
4,
-4,
11,
32,
26,
-15,
-36,
29,
48,
41,
36,
-14,
51,
-8,
-47,
32,
32,
-12,
-27,
0,
-18,
3,
-2,
18,
31,
44,
-36,
16,
8,
53,
-5,
8,
10,
36,
60,
-44,
-60,
20,
40,
40,
19,
42,
50,
45,
9,
21,
-6,
-6,
-13,
33,
-42,
-1,
-11,
-14,
-11,
18,
44,
-4,
-64,
12,
5,
1,
-45,
8,
-1,
-19,
19,
-26,
-1,
-4,
8,
-15,
9,
31,
-31,
-18,
-57,
11,
0,
-15,
-5,
-40,
29,
-49,
13,
-16,
25,
5,
-16,
10,
14,
15,
1,
13,
51,
-4,
57,
9,
5,
-2,
61,
35,
1,
26,
3,
-4,
-3,
-9,
-39,
-11,
19,
17,
-43,
42,
-9,
36,
22,
1,
8,
-4,
49,
-37,
-48,
57,
-20,
-1,
-49,
25,
37,
-17,
-26,
-12,
-14,
23,
16,
-2,
-10,
-6,
63,
30,
-19,
2,
-68,
2,
27,
-16,
46,
18,
-43,
-30,
0,
31,
59,
-39,
-46,
-18,
28,
-34,
-6,
-26,
27,
-20,
44,
11,
-59,
9,
-17,
-24,
11,
37,
24,
-2,
-16,
-34,
-36,
70,
-6,
-46,
6,
-13,
-12,
-57,
2,
-1,
43,
4,
-18,
5,
28,
37,
-22,
22,
-37,
58,
-12,
35,
0,
17,
0,
40,
-10,
-10,
-43,
61,
40,
28,
-1,
-33,
-54,
-18,
-12,
-58,
-44,
-3,
-9,
-8,
-51,
-31,
-9,
-45,
25,
8,
29,
27,
19,
78,
20,
23,
-42,
-1,
-76,
3,
-37,
-21,
27,
-4,
-6,
13,
5,
0,
13,
8,
5,
-13,
41,
-62,
13,
6,
0,
35,
-11,
-6,
-23,
-26,
5,
-21,
-7,
5,
-16,
-25,
-9,
4,
1,
19,
20,
-40,
6,
-35,
-27,
9,
11,
35,
29,
21,
49,
-10,
-1,
53,
0,
-20,
10,
-44,
0,
45,
17,
-4,
-47,
-14,
-8,
-40,
-8,
-31,
-4,
0,
6,
0,
38,
-1,
-32,
-5,
17,
37,
-32,
20,
-68,
24,
15,
-3,
7,
15,
-53,
-15,
58,
-21,
36,
-17,
-4,
-42,
-11,
11,
24,
-39,
-36,
-29,
33,
-53,
-51,
3,
10,
-10,
12,
9,
-52,
10,
-7,
9,
15,
-18,
-4,
-6,
-7,
34,
40,
-9,
-35,
-10,
-36,
23,
12,
-46,
9,
12,
-28,
9,
18,
18,
-5,
-9,
-12,
23,
-7,
-46,
19,
-71,
-39,
12,
-7,
29,
-29,
3,
-30,
-37,
-6,
-3,
0,
20,
26,
10,
13,
-21,
-1,
-8,
10,
-63,
23,
47,
-47,
16,
38,
-3,
2,
0,
-10,
7,
-29,
57,
63,
-14,
-15,
-10,
-3,
12,
7,
4,
0,
-11,
3,
5,
-72,
6,
4,
6,
17,
11,
-24,
-18,
-18,
15,
-34,
-11,
39,
12,
-13,
-7,
20,
106,
-23,
22,
6,
-17,
-9,
-21,
-4,
7,
-6,
16,
26,
-28,
-34,
28,
-26,
17,
54,
-10,
-7,
21,
2,
31,
-30,
6,
34,
-65,
-45,
35,
-8,
45,
30,
-16,
39,
1,
-13,
-4,
-12,
-9,
16,
-14,
52,
44,
-38,
1,
16,
-17,
-1,
44,
1,
-60,
-22,
-8,
-5,
2,
37,
21,
-18,
4,
-3,
-21,
-14,
33,
33,
-27,
-15,
37,
-45,
17,
31,
55,
-6,
-39,
-9,
18,
-24,
28,
-40,
-34,
-1,
-9,
1,
29,
-30,
-4,
-38,
-14,
-34,
46,
29,
27,
24,
4,
-2,
-18,
-28,
7,
26,
1,
38,
3,
-22,
-17,
-28,
15,
-50,
53,
1,
-11,
30,
-7,
-9,
76,
-34,
-19,
-20,
-25,
9,
13,
-4,
24,
16,
27,
-74,
18,
21,
11,
2,
14,
37,
-10,
24,
5,
33,
32,
-9,
-20,
-41,
-19,
43,
-16,
27,
11,
-29,
7,
-51,
33,
3,
20,
-10,
19
] |
G. R. McDonald, P.J.
Defendant appeals as of right from a May 8, 1987, order changing custody of two of the parties’ minor children from defendant to plaintiff. We reverse.
The parties’ judgment of divorce was entered on November 12, 1980. Each party was awarded custody of two of their four children with extensive visitation of the other two. Plaintiff was given custody of Carl and Angela Wilson, and defendant was given custody of Terry and Cheri Wilson._
During an extended visitation in July of 1986, plaintiff discovered what appeared to be cigarette burns on Cheri. Plaintiff contacted the Mecosta County Protective Services, who interviewed Cheri. Cheri explained that the scars were caused by cigarettes, and that defendant’s husband, Alvin Gauck, had burned her with a cigarette because he was mad at her mother. Protective services referred plaintiff to the friend of the court. Plaintiff then petitioned for an amendment to the custody order. The trial court entered a temporary custody order granting plaintiff custody of Cheri and Terry Wilson. Defendant was not notified of this order, nor was the order properly filed with the clerk of the court.
Defendant subsequently filed a motion to vacate this order and an evidentiary hearing was held on January 28 and 29, 1987. As a result of this hearing, the trial court vacated its temporary order on procedural grounds and entered an order amending the judgment of divorce to change custody of Terry and Cheri Wilson to plaintiff.
Defendant raises an issue of first impression in this Court. At the start of the motion hearing, the trial judge noted for the record the substance of a conference between himself and counsel in chambers which was acknowledged by counsel on the record:
The Court: I will note for the record, I’ve had a brief conference with counsel in Chambers before going on the record; at that conference, it was agreed the burden of proof is in fact on the Petitioner. In this case, Mr. Wilson. And that he has a burden of proof of showing that by clear and convincing evidence that a change of custody would be warranted before such a change could be effected. Of course, it’s my understanding that the stipulation is there’s an established custodial envi ronment with the mother; that raises that burden of proof to the clear and convincing standard. Have I clearly stated the stipulation.
However, in making his decision, the trial judge clearly stated that the prior custodial environment with defendant had been destroyed by the temporary custody order of August 3, 1986. He then went on to find that no custodial environment had arisen with plaintiff because all the parties, including the children, were aware of the interim nature of plaintiffs custody. Based on these findings the court held that the appropriate basis for its decision would be a preponderance of the evidence. Defendant claims error in this finding on two grounds. First, defendant claims that it is against the great weight of the evidence, and second, defendant claims that it violates the stipulation of the parties entered into prior to the hearing.
Stipulations as to facts were expressly approved by the Supreme Court in Dana Corp v Employment Security Comm, 371 Mich 107, 110; 123 NW2d 277 (1963), where the Court said:
To the bench, the bar, and administrative agencies, be it known herefrom that the practice of submission of questions to any adjudicating forum, judicial or quasi-judicial on stipulation of fact, is praiseworthy in proper cases. It eliminates costly and time-consuming hearings. It narrows and delineates issues. But once stipulations have been received and approved they are sacrosanct. Neither a hearing officer nor a judge may thereafter alter them. This holding requires no supporting citation. The necessity of the rule is apparent. A party must be able to rest secure on the premise that the stipulated facts and stipulated ultimate conclusionary facts as accepted will be those upon which adjudication is based. Any deviation therefrom results in a denial of due process for the obvious reason that both parties by accepting the stipulation have been foreclosed from making any testimonial or other evidentiary record.
While this language appears to establish an absolute rule as to the effect of stipulations, there are some exceptions. A stipulation will not be construed to effect the waiver of a right unless such an intent is plainly indicated. In re Cole Estate, 120 Mich App 539; 328 NW2d 76 (1982). The trial court also has the discretion to set aside a stipulation when an injury would result to one party and nonenforcement would not materially prejudice the other party. Wechsler v Zen, 2 Mich App 438; 140 NW2d 581 (1966). In addition, the parties may not bind a court by a stipulation to an erroneous interpretation of law. Magreta v Ambassador Steel Co, 378 Mich 689; 148 NW2d 767 (1967), modified 380 Mich 513; 158 NW2d 473 (1968) .
In determining whether to change custody, the trial court must first determine whether an established custodial environment exists so that the proper burden of proof may be established. Baker v Baker, 411 Mich 567; 309 NW2d 532 (1981). If an established custodial environment is found, the proponent of the change must present clear and convincing evidence that such a change is in the best interest of the child. MCL 722.27(1)(c); MSA 25.312(7)(1)(c). Otherwise the proponent’s burden is that of a mere preponderance of the evidence. Baker, supra.
This Court has held that the existence or nonexistence of an established custodial environment is a question of fact. Blaskowski v Blaskowski, 115 Mich App 1; 320 NW2d 268 (1982). However, the Blaskowski panel did not assert that the determination of a custodial environment is a question of fact for the trier of fact, but specifically stated that it was a question of fact "for the trial court to resolve based on the statutory factors.” This Court has also held that the parties may not limit the statutory factors the trial court considers under MCL 722.23; MSA 25.312(3) by stipulation. Williamson v Williamson, 122 Mich App 667; 333 NW2d 6 (1982). The factors to be considered in determining the best interests of the child are all matters of fact. So, obviously, are the statutory factors listed in MCL 722.27(1)(c); MSA 25.312(7)(1)(c). We believe the Williamson rule should be extended to include the determination of the existence of a custodial environment. The determination of the proper burden of proof in matters as important as deciding the custody of a child should not be left to the parties, but should be made by the trial judge based on a consideration of the factors listed in the statute. Thus, the trial court in the instant case erred in originally accepting the parties’ stipulation as to the standard of proof necessary to effectuate a change of custody.
Moreover, although the trial court later rejected the application of the stipulated burden of proof, this did not cure the error, as it resulted in a violation of defendant’s right to due process. While a trial court is free to reject a stipulation of the parties as incomplete or legally erroneous, it must do so before final acceptance, not after. Dana Corp, supra. Defendant argues that she was prejudiced in the presentation of her case when the trial court, at the close of her case in chief, announced that there was no established custodial environment and that the burden of proof would be by a preponderance of the evidence. While it is likely that defendant put on the best case possible, regardless of the burden of proof, it is possible that certain tactical decisions would have been made differently. Additional proofs may have been offered or different lines of cross-examination might have been pursued had she been aware from the first that the trial court’s decision would be based on a preponderance of the evidence. Thus the matter is remanded to the trial court for a new hearing where the parties will be apprised of the burden of proof before presenting their cases in chief.
The trial court must determine whether an established custodial environment exists as of the date of rehearing rather than the date of the hearing held herein. Carson v Carson, 156 Mich App 291; 401 NW2d 632 (1986). We are aware that this will work to defendant’s disadvantage as it is likely that the court will find an established custodial environment with plaintiff based on the fact that the children have been in his custody since July 1986; nevertheless, the defendant is entitled to her day in court.
Defendant also claims error in the trial court’s failure to state on the open record whether the children were able to express a preference and whether that preference was considered by the court in making its custody determination. We agree, and remind the trial court on remand that although the confidence of the children need not be revealed, the court must state on the record whether the children were able to express a reasonable preference, and whether this preference was considered by the court in arriving at its determination. Arndt v Kasem, 135 Mich App 252; 353 NW2d 497 (1984), Flaherty v Smith, 87 Mich App 561; 274 NW2d 72 (1978).
Reversed and remanded.
R. E. Robinson, J., concurred. | [
-27,
-20,
12,
44,
14,
-21,
-79,
-18,
-37,
-14,
-2,
-22,
9,
14,
4,
-39,
13,
23,
88,
-26,
-16,
36,
24,
68,
28,
36,
53,
-59,
12,
26,
-37,
-30,
-5,
-4,
-16,
7,
29,
16,
-10,
18,
25,
-70,
50,
-38,
-65,
4,
-5,
36,
12,
13,
19,
38,
60,
10,
-39,
18,
16,
11,
39,
1,
-32,
10,
-49,
-4,
31,
0,
25,
3,
4,
8,
76,
-24,
-8,
-65,
-12,
28,
-7,
-26,
44,
35,
-32,
-5,
48,
-2,
-1,
42,
-26,
32,
-29,
73,
-3,
-6,
-49,
-58,
-66,
6,
23,
-32,
40,
34,
-9,
-36,
60,
61,
-27,
59,
39,
-29,
-35,
34,
22,
-8,
33,
-18,
-3,
-20,
6,
0,
24,
6,
25,
10,
46,
-82,
25,
-19,
-13,
-25,
79,
-7,
-67,
3,
1,
-40,
29,
-27,
-5,
-2,
-23,
-34,
-20,
46,
18,
-40,
0,
29,
-21,
-5,
-34,
-17,
4,
18,
12,
25,
40,
-46,
16,
-15,
-25,
-11,
33,
32,
11,
5,
-32,
-60,
2,
-15,
-69,
-38,
54,
-22,
-44,
43,
11,
45,
-26,
-5,
-62,
22,
-53,
-21,
62,
-3,
62,
-36,
-76,
1,
-58,
4,
-1,
-33,
27,
10,
23,
-3,
28,
27,
14,
44,
-45,
11,
-32,
18,
57,
-30,
-66,
-10,
19,
-40,
-8,
66,
-23,
-61,
-40,
-31,
11,
2,
-50,
47,
2,
-52,
64,
-45,
-37,
13,
38,
22,
15,
5,
6,
59,
6,
-17,
-26,
17,
0,
-1,
52,
-32,
16,
-20,
31,
-52,
-12,
56,
-28,
31,
58,
-1,
-22,
8,
-42,
13,
21,
-11,
-60,
22,
-17,
16,
3,
-9,
4,
1,
21,
27,
-32,
11,
-18,
-6,
24,
-27,
-1,
-50,
-25,
-1,
-61,
45,
-52,
3,
33,
60,
-12,
16,
-15,
1,
3,
50,
-26,
-13,
-10,
45,
1,
-43,
25,
-59,
-15,
-27,
8,
-27,
7,
-42,
-7,
-3,
-54,
-23,
-3,
10,
12,
12,
65,
38,
15,
-10,
17,
-40,
-37,
-27,
14,
-2,
16,
4,
10,
-29,
0,
-34,
14,
-11,
1,
56,
-18,
2,
-23,
-31,
50,
-2,
-16,
58,
50,
1,
-17,
13,
-2,
-2,
0,
11,
5,
20,
-43,
-3,
-25,
13,
85,
15,
-48,
-37,
4,
-35,
11,
-68,
44,
-1,
-18,
-4,
4,
54,
39,
12,
-5,
15,
27,
-39,
-11,
0,
10,
31,
-20,
64,
50,
9,
-17,
-39,
5,
13,
-28,
-31,
-15,
24,
-1,
-83,
1,
4,
14,
11,
9,
-4,
0,
44,
26,
9,
3,
18,
7,
-11,
-9,
-23,
-38,
-40,
-1,
-30,
9,
3,
14,
10,
48,
-6,
-37,
-14,
30,
-19,
1,
0,
-33,
-14,
-26,
-59,
44,
-47,
75,
-24,
-60,
37,
-22,
-7,
8,
11,
-43,
-14,
-13,
57,
-43,
5,
-24,
-8,
13,
11,
-35,
-21,
12,
36,
-15,
-7,
43,
10,
-15,
-41,
-25,
14,
-36,
-45,
13,
-30,
17,
46,
0,
-35,
-36,
13,
-4,
52,
15,
0,
35,
2,
-46,
-7,
6,
-44,
-4,
-23,
9,
31,
-72,
19,
-24,
15,
-61,
28,
16,
-14,
22,
-36,
24,
10,
-38,
-7,
-45,
16,
-44,
-15,
10,
-69,
-11,
47,
56,
-19,
-12,
-8,
-8,
1,
-16,
4,
54,
-13,
-3,
49,
32,
7,
58,
11,
6,
4,
29,
25,
13,
-12,
16,
-3,
-28,
27,
51,
12,
55,
35,
-12,
52,
-45,
-5,
-30,
24,
23,
20,
-26,
-16,
47,
-39,
0,
-67,
-13,
35,
23,
-12,
21,
-37,
28,
23,
-1,
39,
-29,
-14,
3,
14,
-11,
17,
-16,
-38,
-17,
7,
14,
-36,
19,
-6,
39,
2,
-7,
42,
-31,
-12,
-36,
18,
-27,
-16,
-25,
-5,
-50,
8,
14,
38,
-28,
-7,
-22,
0,
9,
21,
39,
17,
17,
-80,
23,
-13,
-7,
-25,
-6,
-16,
42,
-1,
58,
13,
-29,
-37,
37,
-19,
-70,
-60,
-28,
30,
0,
-29,
0,
26,
-58,
58,
-12,
70,
-37,
-68,
-51,
-3,
30,
16,
0,
-18,
-4,
0,
29,
-30,
19,
25,
-13,
0,
-68,
58,
9,
-4,
25,
21,
-1,
11,
0,
-7,
0,
51,
-46,
23,
-54,
-73,
-32,
-8,
23,
-19,
-34,
-37,
-11,
10,
-19,
-7,
-57,
38,
-8,
5,
-9,
5,
-16,
20,
-20,
66,
-2,
50,
12,
54,
-1,
-44,
28,
-16,
-29,
-22,
26,
9,
0,
17,
-1,
-4,
41,
88,
-19,
-44,
-1,
46,
11,
9,
-30,
47,
-18,
1,
4,
7,
-3,
9,
32,
17,
-30,
38,
6,
-19,
-40,
14,
-10,
-8,
-25,
-37,
-25,
63,
0,
-49,
-3,
31,
62,
-9,
31,
-98,
9,
11,
-28,
29,
-31,
12,
27,
60,
2,
11,
19,
-53,
64,
17,
-51,
5,
38,
-4,
-12,
-16,
31,
-25,
0,
15,
-22,
43,
53,
-21,
9,
37,
52,
17,
40,
-17,
-11,
-33,
-7,
-15,
24,
-24,
-8,
-38,
29,
-15,
-18,
-3,
10,
-49,
14,
-29,
-47,
3,
47,
-20,
-18,
-23,
74,
-41,
-22,
56,
18,
0,
-23,
14,
51,
16,
-31,
6,
-31,
-43,
61,
62,
1,
-24,
-33,
32,
-10,
52,
-23,
-21,
-39,
-11,
21,
-16,
-9,
3,
-25,
27,
-20,
18,
47,
-32,
-43,
-6,
25,
-41,
17,
-27,
-13,
-16,
12,
-39,
5,
62,
-7,
-8,
12,
-53,
36,
-56,
63,
-36,
-6,
-9,
33,
16,
6,
8,
53,
2,
61,
-36,
12,
12,
-49,
-15,
-33,
46,
27,
33,
-27,
-11,
4,
-29,
-2,
18,
37,
27,
18,
26,
-15,
-37,
-13,
0,
1,
-2,
7,
-1,
-23,
-22,
22,
-29,
-29,
-4,
-16,
-37,
-25,
9,
14,
-9,
7,
24,
103,
-17,
-18,
38,
3,
-13,
18,
-33,
-41,
-15,
-11,
2,
7,
-41,
-46,
-1,
20,
-47,
-39,
-2,
70,
15,
53,
13,
12,
-29,
-15,
-50,
11,
-6,
10,
23,
-17,
-25,
-17,
16,
-25,
55,
-5,
-1,
-39,
-10,
15,
-28,
-7,
-27,
7,
-27,
-24,
-70,
-38,
34,
-10,
-17,
17,
-40,
-34,
19,
-36,
28,
-27,
1,
7,
-22,
-18,
-34,
-48,
44,
-21,
53,
-17,
34,
-11,
-17,
-3,
41,
-47,
-25,
74,
33,
-10,
-13,
-14,
-27,
23,
-11,
6,
32,
-31,
50,
-23,
17,
17,
-25,
9,
-12,
-23,
-20,
22,
-30,
-5,
33,
13,
14,
-8,
-27,
-22,
40,
-47,
5,
-5,
21,
-15,
-45,
-11,
8,
-40,
12,
-3,
23,
38,
-35,
-19,
16,
-10,
41,
5,
-20,
24,
-19,
42,
30
] |
Per Curiam.
Defendant was convicted by a jury of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), under an aiding and abetting theory. Defendant’s motion for new trial was subsequently denied. She was sentenced to a term of from thirty to sixty years imprisonment. Defendant appeals as of right. We affirm.
Defendant’s conviction arises out of an incident involving her six-year-old daughter. According to the testimony of the daughter, defendant had held down her arms and legs so that Roy Erving, defendant’s ex-boyfriend, could orally penetrate her.
i
Defendant’s first claim of error is that the trial court abused its discretion by denying her request to dismiss a prospective juror for cause. Specifically, defendant asserts that venireman James Anderson should have been excused due to bias and the appearance of impropriety.
The trial court has an obligation to safeguard a defendant’s right to a fair trial before an impartial jury. See People v Gardner, 37 Mich App 520, 527-528; 195 NW2d 62 (1972), lv den 387 Mich 771 (1972). Jurors are presumed to be competent and impartial and the burden of proving otherwise is on the party seeking disqualification. McNabb v Green Real Estate Co, 62 Mich App 500,- 505; 233 NW2d 811 (1975).
The dismissal of prospective jurors is governed by MCR 2.511(D).
If a party shows that a prospective juror comes within one of this court rule’s enumerated categories, the trial court is without discretion to retain the juror, who must be excused for cause. People v Lamar, 153 Mich App 127, 134-135; 395 NW2d 262 (1986) . Otherwise, the decision to excuse for cause is within the discretion of the trial court. People v Walker, 162 Mich App 60, 64; 412 NW2d 244 (1987) . In this case, venireman Anderson stated during voir dire that he was a personal friend of prosecution witness Gary Wiedyk and had known him for approximately fifteen years. He indicated that Wiedyk discussed many work-related cases with him when they socialized, but had never discussed the present case, whereupon defense counsel challenged him for cause.
The trial court then questioned Anderson, who indicated that he could give the same weight to Wiedyk’s testimony as he did to that of other witnesses and did not know of any reason why he would not be a proper juror. The trial court then denied defendant’s request to dismiss Anderson for cause. Subsequently, defense counsel dismissed Anderson through exercise of a peremptory challenge.
In Wilson v Ex-Cell-O Corp, 12 Mich App 637; 163 NW2d 492 (1968), lv den 382 Mich 760 (1969), the defendant challenged three veniremen for cause. After the trial court refused to excuse them, the defendant later excused them through peremptory challenges. This Court first noted:
"An impartial jury is all that a party is entitled to, and when he has obtained that he has no valid ground for complaint.” Pearce v Quincy Mining Co (1907), 149 Mich 112, 116, 117 [112 NW 739]. [Id., pp 641-642.]
The Court then held that, since the prospective jurors were, in fact, excused, defendant could not complain that it did not have an impartial jury.
In the present case, defendant does not argue that she was denied an impartial jury. Rather, she asserts that reversal of her conviction is required because she was forced to use her final peremptory challenge to excuse Anderson and was, thus, unable to challenge other prospective jurors during voir dire. We find that Wilson applies with equal force to a criminal proceeding. Our review of the record indicates no abuse of the trial court’s discretion. Defendant did not overcome the presumption that Anderson was impartial and competent.
ii
Defendant next claims that the trial court abused its discretion by ruling that if defense counsel impeached the victim with a statement she made at the preliminary examination, a statement in which she said that she did not know whether she was telling the truth, then the prosecutor could introduce the rest of her testimony from the transcript that was relevant to the question that elicited that response. The testimony relevant to defense counsel’s question concerned questions regarding other alleged sexual acts involving defendant and other men which apparently confused the child such that she had trouble understanding what she had been asked. Defense counsel brought out neither the question nor the response during cross-examination. Defendant further asserts that the other acts evidence was more prejudicial than probative, that there was a less prejudicial way of rehabilitating the witness, and that she was prevented from confronting her accusers.
A trial court’s determination that the entire context of a given pretrial statement is admissible to explain the statement is reviewable under the abuse of discretion standard. See Moody v Pulte Homes, Inc, 423 Mich 150, 162; 378 NW2d 319 (1985). Rulings on relevancy are reviewable under the same standard. See People v Flanagan, 129 Mich App 786, 792-793; 342 NW2d 609 (1983).
MRE 106 provides:
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
In this case, the trial court only allowed the preliminary examination transcript to be admitted in order to explain the victim’s apparent confusion in light of the complexity of the questions posed to her and to prevent her statement from being taken out of context. This ruling was consistent with MRE 106.
Therefore, defendant’s claim that there was a less prejudicial way of rehabilitating the witness fails. Further, the prejudicial effect to defendant would not outweigh the fairness to the witness of ensuring that the jury heard her statement as well as heard the context in which it was made.
Our review of the record shows defendant’s claim that she was denied the opportunity to confront her accusers to be without merit. We find no abuse of the trial court’s discretion in ruling on this evidentiary issue.
hi
Defendant’s next claim of error is that she was denied a fair trial because a prosecution expert witness implicitly vouched for the victim’s credibility. She asserts that the testimony was presented in such a way as to act as proof that sexual abuse had occurred, which was violative of MRE 702.
The prosecutor contends that the trial court did not abuse its discretion by admitting the testimony because the expert never testified regarding rape trauma syndrome or other scientific theories and never indicated that she felt the victim was telling the truth. The prosecutor asserts, as was asserted at trial, that the testimony was used in order to show how information regarding the sexual abuse came to the attention of the authorities.
The admission of evidence is within the sound discretion of the trial court and will not be set aside absent an abuse of that discretion. People v Leach, 114 Mich App 732, 736; 319 NW2d 652 (1982). The determination as to qualification and admissibility of the testimony of an expert is also within the trial court’s discretion. People v Hernandez, 84 Mich App 1, 18; 269 NW2d 322 (1978).
MRE 702 provides:
If the court determines that recognized scien tifie, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
In support of her position, defendant relies principally on People v Pullins, 145 Mich App 414; 378 NW2d 502 (1985), in which the victim’s therapist testified concerning "rape trauma syndrome” and stated that the victim’s symptoms were consistent with those of a person who had been raped. Id., p 419. The panel noted:
Michigan adheres to the traditional test governing the admissibility of scientific evidence as originally set forth in Frye v United States, 54 US App DC 46, 47; 293 F 1013 (1923):
"[WJhile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” [Id., p 420.]
The Court then held that evidence of rape trauma syndrome is not admissible to prove that a rape occurred:
However, we do not mean to imply that evidence of emotional and psychological trauma suffered by a complaining witness in a rape case is inadmissible. Such evidence is relevant and jurors are fully competent to consider such evidence in determining whether a rape occurred, but it should not be presented with an aura of scientific reliability unless the Frye test is met. [Id., pp 421-422.]
Several other panels of this Court have ad dressed the same issue regarding expert testimony in these matters. In People v Matlock, 153 Mich App 171; 395 NW2d 274 (1986), the defendant’s conviction was reversed on the ground that the victim’s rape counselor vouched for the credibility of the victim. Specifically, the rape counselor testified that of the more than one hundred patients (which would include the victim) she had treated over a four-year period, she had never encountered a lying child. Further, on two occasions the counselor expressed her opinion that children do not lie about sexual abuse, at one time stating that it was her "personal opinion” and later stating "I just believe.”
In People v Draper, 150 Mich App 481; 389 NW2d 89 (1986), this Court found that the trial court did not abuse its discretion by admitting expert testimony of what indicators are used in the field of psychology to determine whether a child has been sexually abused:
Their testimony concerning the characteristics normally found in sexually abused children assisted the jury in understanding the evidence. Also, the practice of psychology is a field where knowledge belongs more to experts than to the common man. The challenged expert witness testimony was therefore properly admitted under MRE 702. Cook v City of Detroit, 125 Mich App 724, 735; 337 NW2d 277 (1983). [Id., p 488.]
In People v Skinner, 153 Mich App 815; 396 NW2d 548 (1986), this Court found the defendant’s reliance on Pullins, supra, to be misplaced:
In the present case, there was no claim by Jalovaara that the characteristics exhibited by the victim conclusively established that she had been raped. Quite the opposite, Jalovaara stated that, although the profile consisted of behavioral characteristics that generally indicated sexual abuse, manifestation of those symptoms did not conclusively establish that abuse had, in fact, occurred. Pullins, supra, does not apply to the instant case. Jalovaara’s testimony regarding the profile of sexually-abused children was properly admitted. [Skinner, supra, p 823.]
In a recent case, People v Stricklin, 162 Mich App 623; 413 NW2d 457 (1987), the defendant sought to admit the deposition of a child psychologist to support his claim that a child who has been sexually molested would be likely to fantasize instances of sexual abuse. The trial court excluded the evidence on the basis that the child’s credibility was a matter to be determined by the jury. In reversing the defendant’s conviction and remanding for a new trial, this Court held:
Although an expert cannot be used as a human lie detector to give a stamp of scientific legitimacy to the truth of the witness’ statement, People v Izzo, 90 Mich App 727, 730; 282 NW2d 10 (1979), an expert can testify as to the traits or characteristics of sexually abused children if such testimony will assist the jury in understanding the evidence. People v Draper, 150 Mich App 481, 487-488; 389 NW2d 89 (1986). Assuming that the psychologist’s testimony would have been based on his knowledge of child development and not on an evaluation of the female child’s credibility, it cannot be said that he would have usurped the jury’s responsibility for determining credibility. In re Rinesmith, 144 Mich App 475, 482; 376 NW2d 139 (1985). Upon retrial, Richard Stricklin should be permitted to introduce the expert’s testimony, provided the trial judge is convinced that the appropriate foundation has been established. [Id., p 637.]
In the present case, the expert, Lynn Butterfield, testified regarding the types of things she looked for in order to tell whether a child had been sexually abused. She also testified about what she did to make sure that the statements concerning abuse that the victim made to her were, in fact, coming from the victim. This included speaking with the victim at various times and noting consistencies in what the victim told her. She also noted "the things that I had looked for, you know, were present with her.”
On cross-examination, Butterfield indicated that some of the characteristics of a sexually-abused child could also arise when a child is put in a foster home. She also stated that just because a child says she has been sexually abused does not necessarily make it true.
Butterfield did not testify regarding rape trauma syndrome. Pullins, supra. Nor did she vouch for the victim’s credibility, but went so far as to indicate that just because a child says that she has been abused does not necessarily make it true. Matlock, supra. See also People v Smith, 425 Mich 98; 387 NW2d 814 (1986). She testified, rather, as to child behavior following alleged sexual abuse. Draper, supra. See also People v Beckley, 161 Mich App 120, 128; 409 NW2d 759 (1987). We find no abuse of the trial court’s discretion in admitting Butterfield’s testimony.
IV
Defendant claims that she was denied a fair trial when the prosecutor posed several questions to her during cross-examination regarding the victim’s truthfulness. She contends that the prosecutor compounded the error by commenting on the testimony during closing argument. We note initially that defendant objected to neither the questions posed nor the closing argument.
We find People v Buckey, 424 Mich 1; 378 NW2d 432 (1985), to be dispositive of the issue regarding the prosecutor’s cross-examination questions. In Buckey, the prosecutor appealed from this Court’s reversal of the defendant’s conviction. At trial, the prosecutor had asked the defendant to comment on the credibility of the prosecution witnesses. Although defendant had failed to object to the questioning, this Court had reversed. 133 Mich App 158, 166; 348 NW2d 53 (1984). The Supreme Court held:
We agree with the Court of Appeals that it was improper for the prosecutor to ask defendant to comment on the credibility of prosecution witnesses. Defendant’s opinion of their credibility is not probative of the matter. However, we do not agree that the error resulted in unfair prejudice to defendant. [424 Mich 17.]
The Supreme Court reinstated the conviction on two grounds. First, the Supreme Court was unpersuaded that defendant had suffered any prejudice. Second, the Court cited defendant’s failure to object at trial. The Court adopted the concurring opinion of Judge Cynar that " '[a] timely objection by defense counsel could have cured any prejudice, either by precluding such further questioning or by obtaining an appropriate cautionary instruction.’ ” Id., p 18, quoting 133 Mich App 167.
Our review of the record fails to reveal that defendant suffered prejudice. Defendant qualified her answers, even stating at one point that "it’s hard to believe that she was sexually abused.” Further, a timely objection was never made in order to preclude further questioning or to obtain a cautionary instruction, Buckey, supra. Accordingly, we find no error requiring reversal.
Turning to the prosecutor’s closing argument, the prosecutor summarized defendant’s cross-examination testimony, which he was allowed to do. Defendant’s lack of objection precludes appellate review unless failure to do so would result in manifest injustice. People v Kvam, 160 Mich App 189, 199; 408 NW2d 71 (1987). Because the remarks do not meet this standard, we decline to review them.
v
Defendant’s last claim of error is that the trial court abused its sentencing discretion by departing from the sentencing guidelines based in part on her refusal to admit guilt coupled with the fact that she had also been a victim of child abuse. She asserts that the thirty to sixty year sentence, imposed even though she had no prior record, shocks the conscience.
On review of an exercise of a trial court’s sentencing discretion, we may afford a defendant relief if we find that the trial court abused its discretion such that it shocks our conscience. People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983). The sentence imposed must be tailored to the particular circumstances of the case and the offender in an effort to balance both society’s need for protection and its interest in maximizing the offender’s rehabilitative potential. People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973).
Departures from the sentencing guidelines are both encouraged and permitted. People v Purzycki, 143 Mich App 108, 109; 371 NW2d 490 (1985). The reasons for departure from the sentencing guidelines must be articulated at sentencing and placed on the sentencing information report. People v Fleming, 428 Mich 408, 428-429; 410 NW2d 266 (1987). A trial court’s reasons for departing from the recommended range can be factors already considered by the guidelines. People v Wyngaard, 151 Mich App 107, 114; 390 NW2d 694 (1986).
A trial court cannot, however, base its sentence, in whole or in part, on a defendant’s refusal to admit guilt. People v Yennior, 399 Mich 892; 282 NW2d 920 (1977). However, lack of remorse can be considered in determining a defendant’s potential for rehabilitation. See People v Wesley, 428 Mich 708, 711; 411 NW2d 159 (1987); People v Ronald Crawford, 161 Mich App 77, 82; 409 NW2d 729 (1987). The distinction between a sentence based on a refusal to admit guilt and a sentence based on the resultant reduction in the potential for rehabilitation is subtle. Wesley, supra, p 727. As stated by Justice Archer in Wesley:
While this Court has never specifically addressed the issue, in determining whether sentencing was improperly influenced by defendant’s failure to admit guilt, the Court of Appeals has focused upon three factors: (1) the defendant’s maintenance of innocence after conviction, (2) the judge’s attempt to get the defendant to admit guilt, and (3) the appearance that had the defendant affirmatively admitted guilt, his sentence would not have been so severe. See, e.g., People v Gray, 66 Mich App 101; 238 NW2d 540 (1975); People v Grable, 57 Mich App 184; 225 NW2d 724 (1974); People v Fleming, 142 Mich App 119, 127; 369 NW2d 499 (1985). Under the Court of Appeals analysis, if there is an indication of the three factors, then the sentence was likely to have been improperly influenced by the defendant’s persistence in his innocence. If, however, the record shows that the court did no more than address the factor of remorsefulness as it bore upon defendant’s rehabilitation, then the court’s reference to a defendant’s persistent claim of innocence will not amount to error requiring reversal. [Id., p 713.]
In the present case, the trial court told defendant that she could rightfully stand upon her claim of innocence even though she had been convicted of the offense. He noted, however, that there was no indication that defendant could be rehabilitated through counseling or other procedures since she denied that the offense had occurred. Our review of the record does not indicate that the trial court attempted to get defendant to admit guilt or gave the appearance that the sentence would not have been so severe if she had admitted guilt. The trial court was concerned with defendant’s failure to appreciate the detrimental effect of her actions rather than her failure to admit guilt.
The trial court also mentioned defendant’s own history of abuse as a child. The court indicated that it was considering the view that one must understand why a person abuses others after being abused herself. The court noted, however, that the converse is also true and the fact that she was abused makes it more likely that she will abuse again unless she is rehabilitated. Contrary to defendant’s assertion that the trial court turned "her own victimization into a means of enhancing her sentence,” we find that the trial court considered this fact and how it bore on rehabilitation.
We note that the trial court articulated permissible reasons for imposition of the thirty to sixty year sentence. In addition to the reasons previously discussed, the trial court also considered the protection of society, the protection of the child, and the deterrence to defendant and others. See Coles, supra; People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972). While we may not have imposed the same sentence had we sat as trial judges, the appellate review of a sentence does not have for a purpose another substitute sentence and another subjective exercise of discretion. People v James Crawford, 144 Mich App 86, 89-90; 372 NW2d 688 (1985). After reviewing the record, we find no abuse of the trial court’s sentencing discretion and our collective conscience is not shocked.
Aifirmed.
MCR 2.511(D) provides in relevant part:
The parties may challenge jurors for cause, and the court shall rule on each challenge. A juror challenged for cause may be directed to answer questions pertinent to the inquiry. It is grounds for a challenge for cause that the person:
(3) is biased for or against a party or attorney;
(4) shows a state of mind that will prevent the person from rendering a just verdict, or has formed a positive opinion on the facts of the case or on what the outcome should be.
The trial court had previously denied the prosecutor’s request to admit evidence of the other acts, ruling that it would be admissible if the testimony became probative of "the credibility of the witness, or understanding why the witness may have brought in some other factors that aren’t related to this particular case inadvertently.”
When Butterfield met the victim in January, 1985, the child was in foster care. | [
-1,
-18,
-33,
40,
0,
-17,
-6,
3,
-99,
22,
7,
-38,
44,
11,
-18,
-36,
4,
-29,
-19,
-68,
20,
-14,
-44,
11,
-58,
-19,
28,
51,
-6,
-28,
39,
-32,
-7,
-31,
25,
7,
14,
61,
-34,
46,
12,
0,
-21,
29,
-52,
-11,
-5,
2,
27,
21,
49,
-22,
-13,
12,
-15,
-45,
30,
31,
-9,
13,
-10,
21,
-34,
-38,
-2,
-64,
-17,
13,
-19,
25,
-4,
-36,
-55,
-24,
8,
-17,
-54,
0,
20,
44,
6,
-32,
39,
19,
36,
13,
3,
-5,
-5,
5,
-23,
-20,
-53,
-26,
-18,
-36,
43,
-18,
20,
-30,
7,
-46,
20,
-29,
-7,
35,
-16,
20,
7,
20,
37,
-33,
-10,
-7,
-20,
-13,
-9,
11,
-31,
-37,
19,
46,
12,
3,
26,
-21,
54,
-17,
-27,
-14,
-2,
29,
47,
-39,
-19,
14,
10,
22,
24,
23,
36,
32,
-5,
43,
-15,
5,
-50,
-1,
-10,
7,
-28,
-1,
-21,
9,
-2,
-46,
-36,
-38,
53,
20,
-38,
22,
-31,
16,
13,
-38,
-26,
-12,
22,
1,
-1,
-12,
29,
-28,
0,
-42,
-12,
-52,
-8,
-30,
-28,
51,
-29,
31,
-27,
11,
-57,
-3,
-66,
18,
-1,
-24,
12,
-10,
15,
65,
14,
43,
13,
-29,
20,
-51,
-58,
25,
20,
-5,
-24,
1,
0,
40,
-25,
31,
-25,
-31,
-7,
-80,
7,
-13,
7,
18,
-39,
-33,
18,
-21,
11,
-56,
20,
-28,
-35,
31,
23,
26,
3,
-8,
-13,
-52,
46,
12,
90,
35,
19,
-7,
37,
-1,
-49,
7,
-41,
21,
-25,
0,
18,
5,
25,
40,
-79,
-17,
-29,
-17,
-39,
12,
6,
9,
-45,
0,
-40,
31,
28,
61,
-50,
-22,
50,
0,
11,
23,
-12,
-15,
-44,
59,
-11,
-12,
13,
-10,
7,
-38,
-75,
-40,
-22,
24,
5,
4,
18,
7,
-28,
-21,
41,
-23,
41,
11,
-7,
7,
35,
-16,
35,
-29,
0,
-34,
16,
4,
-28,
-12,
-10,
1,
-12,
-27,
-56,
10,
-30,
-8,
17,
-44,
-23,
-62,
-23,
-59,
-5,
-49,
15,
-70,
-22,
-9,
-2,
13,
-28,
0,
51,
-5,
5,
-21,
0,
-30,
35,
-44,
-35,
-28,
-6,
2,
0,
33,
-27,
6,
15,
2,
34,
-28,
18,
-68,
14,
-26,
4,
-39,
1,
35,
-25,
-27,
49,
9,
46,
17,
-21,
60,
-16,
-68,
-29,
-17,
12,
17,
0,
41,
13,
60,
-6,
13,
71,
-30,
-7,
-37,
-6,
-2,
-23,
23,
-29,
36,
-17,
-32,
20,
7,
-26,
17,
4,
29,
-19,
6,
-16,
-4,
-32,
-36,
-22,
-38,
-1,
18,
1,
47,
84,
52,
41,
-45,
2,
-38,
16,
5,
33,
-39,
52,
39,
9,
22,
-9,
-11,
83,
-49,
-11,
5,
2,
-27,
65,
35,
-27,
-6,
7,
34,
-14,
-28,
-19,
-25,
-2,
40,
41,
-6,
-20,
1,
49,
19,
20,
-18,
36,
-12,
26,
-16,
-42,
17,
30,
-56,
-34,
39,
13,
11,
-10,
-13,
-6,
50,
69,
-39,
19,
22,
2,
30,
-7,
12,
37,
8,
22,
-12,
-31,
-60,
-1,
3,
18,
-24,
-13,
-50,
-15,
-7,
-46,
40,
-28,
0,
49,
26,
-9,
-2,
3,
-5,
10,
32,
58,
-25,
31,
-50,
0,
14,
-29,
12,
-17,
57,
-64,
14,
-4,
-16,
7,
13,
-7,
-73,
-24,
6,
-38,
6,
-52,
-9,
-9,
4,
81,
18,
15,
2,
75,
11,
-58,
-68,
34,
-6,
9,
76,
49,
68,
29,
7,
-4,
-8,
13,
16,
11,
-2,
16,
-31,
-26,
12,
-26,
-40,
36,
-48,
-6,
46,
57,
19,
51,
-20,
13,
-16,
53,
-30,
68,
23,
-29,
19,
-15,
24,
24,
45,
-7,
34,
22,
50,
-8,
-17,
-35,
-22,
17,
33,
12,
-11,
-40,
-40,
41,
-24,
42,
-32,
-22,
-8,
16,
31,
-4,
4,
-59,
10,
65,
-16,
15,
10,
-43,
-16,
11,
41,
5,
31,
19,
-7,
-16,
-68,
-81,
32,
8,
-5,
9,
-45,
-2,
-5,
-30,
-18,
-30,
-73,
-15,
0,
-16,
-29,
7,
63,
-32,
36,
-17,
-6,
27,
8,
24,
-9,
77,
-35,
15,
16,
18,
-62,
0,
23,
-28,
-28,
20,
-10,
-34,
15,
35,
-7,
5,
37,
0,
-9,
-7,
16,
0,
28,
-2,
5,
-11,
-21,
59,
11,
22,
-27,
14,
7,
-33,
-36,
-10,
-34,
20,
-38,
-6,
-7,
-72,
19,
27,
-16,
-3,
31,
26,
47,
14,
-10,
39,
-35,
-15,
13,
-37,
52,
-15,
0,
-5,
-2,
-26,
-52,
33,
22,
-36,
87,
-16,
11,
-11,
24,
-17,
-26,
-59,
22,
-15,
-24,
-16,
57,
-11,
4,
75,
20,
39,
-3,
7,
-4,
22,
59,
65,
49,
-7,
-30,
-48,
35,
1,
9,
-8,
-47,
-42,
15,
-3,
-60,
43,
-8,
1,
39,
13,
24,
-32,
66,
24,
23,
-35,
-51,
22,
13,
13,
-50,
-25,
14,
-10,
13,
18,
15,
-64,
-32,
48,
-2,
-55,
44,
3,
15,
35,
-3,
17,
51,
-10,
23,
-2,
-31,
47,
-17,
-18,
26,
37,
5,
-56,
53,
16,
-9,
-15,
-55,
10,
-1,
-12,
40,
-29,
8,
-43,
-1,
-2,
-25,
11,
-25,
44,
4,
-34,
40,
8,
15,
-42,
-3,
46,
-19,
46,
12,
-23,
-12,
1,
-26,
-17,
-64,
42,
-22,
-19,
15,
10,
50,
-30,
-20,
-6,
6,
-17,
-5,
21,
9,
-21,
10,
39,
-38,
-41,
15,
41,
-17,
46,
45,
9,
0,
-22,
-5,
-4,
23,
33,
15,
-9,
-7,
-41,
-55,
28,
25,
5,
-47,
64,
-55,
26,
36,
13,
16,
-27,
15,
-27,
-35,
-38,
36,
36,
0,
-55,
-11,
25,
-2,
-25,
-14,
-34,
5,
0,
73,
-10,
2,
-37,
17,
-4,
-3,
13,
-28,
30,
23,
-20,
-14,
-27,
-10,
5,
62,
-68,
8,
-19,
3,
45,
51,
33,
22,
-31,
38,
26,
-18,
-19,
17,
42,
30,
-10,
-27,
1,
-21,
-58,
17,
0,
-11,
-34,
-31,
8,
14,
0,
-49,
0,
32,
-7,
-36,
-52,
4,
2,
-29,
-62,
49,
-10,
17,
-4,
-33,
10,
-13,
26,
2,
21,
38,
22,
-40,
-6,
24,
5,
21,
65,
40,
11,
-14,
-6,
30,
29,
-30,
-10,
-65,
-41,
-39,
-8,
-16,
-40,
17,
-14,
-5,
-15,
-34,
2,
-40,
-18,
35,
-31,
-6,
-12,
-25,
45,
12,
-44,
10,
5,
-36,
23,
17,
40,
61,
39,
-18,
-9,
14,
5,
-38,
19,
29,
3,
-6,
53,
-25,
-10,
4,
9,
-11,
-2,
-7,
-4,
37,
39,
30
] |
Per Curiam.
Plaintiff, West Michigan Health Care Network, appeals as of right from a September 17, 1986, judgment in favor of defendant, Transamerica Insurance Corporation of America, for $5,001.30, plus interest and costs. This case is a declaratory judgment action brought to determine which party was primarily liable for medical expenses incurred by Khiem Nguyen after he was injured in an automobile collision. On appeal, we granted the Attorney General’s motion to intervene.
On July 8, 1984, Khiem Nguyen was seriously injured in an automobile collision and required extensive medical treatment. At the time of the accident, Nguyen belonged to plaintiffs health maintenance organization (hmo) and had a policy of no-fault automobile insurance with defendant. Both plaintiffs member certificate and defendant’s policy provide for personal injury protection benefits and contain coordination of benefits clauses.
Section 5.06 of plaintiff’s member certificate provides:
5.06 EMPLOYMENT OR AUTO RELATED INJURY OR ILLNESS
Benefits provided for services related to any employment related condition, disease, or injury for which Workers’ Compensation or any similar program provides reimbursement or for any automobile related injury to the extent there is coverage under any no-fault automobile policy shall be billed by wmhcn to the responsible carrier or program. Where services are provided, wmhcn or the Primary Care Physician is assigned the member’s rights to seek reimbursement.
Defendant’s no-fault policy’s coordination of benefits clause provides:
The Company shall not be liable to the extent any Personal Protection Insurance allowable expenses benefits are paid, payable, or required to be provided to or on behalf of the person named in the Policy . . . under the provisions of any valid and collectible
1. individual, blanket or group accident disability or hospitalization insurance,
2. medical or surgical reimbursement plan,
3. workmen’s compensation or disability laws of a similar nature or any other State or Federal Government law, or
4. automobile or premises insurance affording medical expense benefits.
Both parties paid for Nguyen’s medical expenses. Thereafter, both parties disputed which one was primarily liable for the insured’s medical expenses. On July 3, 1985, plaintiff brought a complaint for declaratory judgment, asking the trial court to determine which party was primarily liable for the medical expenses and also requesting that the court order defendant to reimburse plaintiff for all the medical expenses it had paid. Defendant responded that plaintiff was not entitled to relief because of the coordination of benefits clause in Transamerica’s policy. Additionally, defendant counter-claimed for the amount it already had spent on the medical expenses.
On February 20, 1986, defendant moved for summary disposition pursuant to MCR 2.116(0(10), contending that, under Michigan law, the coordination of benefits provision in the no-fault automobile policy required that plaintiff be primarily liable for the medical expenses. Plaintiff responded that defendant’s claims were preempted by the Employee Retirement Income Security Act.
On July 8, 1986, the trial court decided that plaintiff was primarily liable for the medical expenses and granted defendant’s motion for summary disposition. After the parties stipulated to the amount of damages, the court entered the judgment from which plaintiff appeals.
The relevant portion of Michigan’s no-fault insurance act, MCL 500.3109a; MSA 24.13109(1), provides:
An insurer providing personal protection insurance benefits shall offer, at appropriately reduced premium rates, deductibles and exclusions reasonably related to other health and accident coverage on the insured. The deductibles and exclusions required to be offered by this section shall be subject to prior approval by the commissioner and shall apply only to benefits payable to the person named in the policy, the spouse of the insured and any relátive of either domiciled in the same household.
In Federal Kemper Ins Co, Inc v Health Ins Administration, Inc, the Michigan Supreme Court held that, where the coordinated benefits provisions of a health insurance policy and a no-fault automobile insurance policy conflict, the health coverage insurer should be primarily liable for the payment of medical expenses incurred by the insured. The Court indicated that its decision would further the legislative intent of § 3109a by containing both auto insurance and health care costs, eliminating duplicative recovery and vesting in the insured the option of coordinating benefits.
Here, both plaintiff’s hmo member certificate and defendant’s no-fault automobile policy contain coordination of benefits clauses. Plaintiff contends that the instant case is distinct from Federal Kemper because plaintiff is an hmo, not a health coverage insurer. In United States Fidelity & Guaranty Co v Group Health Plan of Southeast Michigan, this Court held that services offered by an hmo constitute "health and accident coverage” as defined by MCL 500.3109a; MSA 24.13109(1). The Court determined that the hmo was primarily liable for medical expenses where both the hmo contract and the no-fault automobile insurance policy had coordination of benefits clauses. Under Federal Kemper and United States Fidelity, therefore, the within plaintiff should be primarily liable for the instant medical expenses.
Plaintiff, however, argues that the Federal Kemper case and MCL 500.3109a; MSA 24.13109(1) do not apply here because erisa preempts them. Erisa subjects employee benefit plans to federal regulation. Section 514(a) of erisa preempts "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by erisa, except for state laws regulating insurance, banking or securities, which are exempt from preemption pursuant to 29 USC 1144(b)(2)(A).
In Metropolitan Life Ins Co v Massachusetts, the United States Supreme Court held the "insurance savings clause” saved a Massachusetts statute from erisa preemption because the state law regulated insurance. The Court stated:
The presumption is against pre-emption, and we are not inclined to read limitations into federal statutes in order to enlarge their pre-emptive scope.[The presumption is against pre-emption, and we are not inclined to read limitations into federal statutes in order to enlarge their pre-emptive scope.[ ]
In Benike v Scarborough Ins Trust, the defendants contended that erisa preempted an otherwise applicable Michigan insurance law because plaintiff’s health insurance coverage was provided under an employee benefit plan. This Court, citing Metropolitan Life Ins Co, supra, held that the "insurance savings clause” saves Michigan insurance law from erisa preemption.
In State Farm Mutual Automobile Ins Co v CA Muer Corp, this Court held that erisa preempted Michigan law since the employee benefit plan at issue was an uninsured plan that was self-funded by the employer. In its decision, this Court distinguished between commercially insured and uninsured employee benefit plans and determined that erisa would preempt only self-funded plans.
Plaintiff herein argues that erisa preemption is required in the instant case because Nguyen’s health care coverage was purchased as part of a General Motors employee benefit plan. The instant medical benefit plan, however, was commercially insured through plaintiff; it was not an uninsured plan funded by General Motors. The insurance savings clause in the federal statute, therefore, saves the applicable Michigan insurance law from erisa preemption.
Plaintiff argues that an hmo is not health insurance, but a health care provider. This argument fails, however, because an hmo shifts the risk of health care expenses away from its members. The transfer of risk away from the insured is. the distinguishing characteristic of an insurance plan. A self-funded plan itself bears the risk of paying all covered expenses. An insurance company, on the other hand, charges a fixed premium to its policyholders and assumes the risk of payment of future covered expenses. An hmo is very similar to an insurance company because it receives a fixed premium and thereafter it and its participating physicians assume the risk. Here, plaintiff pays a fixed fee per member to its participating physicians, who bear the risk of future covered expenses. Because plaintiff transfers the risk away from its members, the hmo constitutes a form of insurance and, as such, the state laws which regulate it escape erisa preemption.
Next, amicus curiae Association of Health Maintenance Organizations in Michigan argues for plaintiff that the federal hmo act preempts § 3109a of the Michigan no-fault act. The association claims the state act is invalid because it conflicts with and frustrates the effectiveness of the federal statute. We disagree. MCL 500.3109a; MSA 24.13109(1) does not conflict with or frustrate the purpose of the federal hmo act. 42 USC 300e(b) permits health maintenance organizations to charge insurance companies for services provided to an insured only where the applicable law or insurance policy entitles the insured to insurance benefits. MCL 500.3109a; MSA 24.13109(1) requires a no-fault automobile insurer to offer coordinated benefits to its insured at reduced rates and provides that the health and accident coverage provider will be primarily liable for medical benefits in the case of an accident.
The federal and state statutes work together to allow coordination of benefits in order to reduce insurance rates and avoid duplicative recovery. Pursuant to § 3109a, insureds who select coordinated no-fault insurance will receive primary medical benefits from their health and accident coverage and any excess medical benefits from the no-fault automobile insurer. Conversely, insureds who select noncoordinated no-fault insurance will receive primary medical benefits from their no-fault insurer. Moreover, pursuant to 42 USC 300e(b)(1), an hmo is entitled to receive reimbursement from an automobile insurer that is primarily liable under a noncoordinated policy for medical services provided by the hmo to the insured. Also, an hmo is entitled to receive reimbursement from an automobile insurer liable under a coordinated policy for all excess benefits provided to the insured.
Section 3109a does not conflict with 42 USC 300e(b)(1) because the Michigan statute does not prevent an hmo from receiving reimbursement for its services, as provided by the federal hmo act. In summary, 42 USC 300e(b)(1) permits an hmo to be reimbursed for services rendered to a member where the member is entitled to benefits from an insurance policy. However, when a member chooses to have a coordinated automobile insurance policy, then an hmo is liable for primary medical expenses and can only seek reimbursement for the excess benefits that its members are entitled to under a coordinated automobile insurance policy.
Furthermore, the hmo act, although it has a section that preempts specific state laws, does not expressly preempt or invalidate state laws that provide for coordination of benefits.
Affirmed.
The Association of Health Maintenance Organizations in Michigan and Michigan Association of Insurance Companies have submitted amicus curiae briefs.
29 USC 1001 et seq.
424 Mich 537; 383 NW2d 590 (1986).
131 Mich App 268, 272-273; 345 NW2d 683 (1983).
29 USC 1144(a).
See Shaw v Delta Air Lines, Inc, 463 US 85, 91; 103 S Ct 2890; 77 L Ed 2d 490 (1983).
471 US 724; 105 S Ct 2380; 85 L Ed 2d 728 (1985).
29 USC 1144(b)(2)(A).
Metropolitan Life, supra, at 741.
150 Mich App 710, 714; 389 NW2d 156 (1986).
154 Mich App 330; 397 NW2d 299 (1986).
Northern Group Services, Inc v Auto-Owners Ins Co, 833 F2d 85 (CA 6, 1987), would save most self-insured plans, as well as insured plans from erisa preemption.
42 USC 300e et seq.
42 USC 300e(b) provides:
(b) A health maintenance organization shall provide, without limitations as to time or cost other than those prescribed by or under this subchapter, basic and supplemental health services to its members in the following manner:
(1) Each member is to be provided basic health services for a basic health services payment which (A) is to be paid on a periodic basis without regard to the dates health services (within the basic health services) are provided; (B) is fixed without regard to the frequency, extent, or kind of health service (within the basic health services) actually furnished; (C) except in the case of basic health services provided a member who is a full-time student (as defined by the Secretary) at an accredited institution of higher education, is fixed under a community rating system; and (D) may be supplemented by additional nominal payments which may be required for the provision of specific services (within the basic health services), except that such payments may not be required where or in such a manner that they serve (as determined under regulations of the Secretary) as a barrier to the delivery of health services. Such additional nominal payments shall be fixed in accordance with the regulations of the Secretary. A health maintenance organization may include a health service, defined as a supplemental health service by section 300e-l(2) of this title, in the basic health services provided its members for a basic health services payment described in the first sentence. In the case of an entity which before it became a qualified health maintenance organization (within the meaning of section 300e-9(d) of this title) provided comprehensive health services on a prepaid basis, the requirement of clause (C) shall not apply to such entity until the expiration of the forty-eight month period beginning with the month following the month in which the entity became such a qualified health organization. The requirements of this paragraph respecting the basic health services payment shall not apply to the provision of basic health services to a member for an illness or injury for which the member is entitled to benefits under a workmen’s compensation law or an insurance policy but only to the extent such benefits apply to such services. For the provision of such services for an illness or injury for which a member is entitled to benefits under such a law, the health maintenance organization may, if authorized by such law, charge or authorize the provider of such services to charge, in accordance with the charges allowed under such law, the insurance carrier, employer, or other entity which under such law is to pay for the provision of such services or, to the extent that such member has been paid under such law for such services, such member. For the provision of such services for an illness or injury for which a member is entitled to benefits under an insurance policy, a health maintenance organization may charge or authorize the provider of such services to charge the insurance carrier under such policy or, to the extent that such member has been paid under such policy for such services, such member.
42 USC 300e(10). | [
-27,
33,
-18,
41,
38,
5,
19,
-42,
-12,
19,
-25,
15,
38,
21,
-25,
0,
-12,
0,
11,
37,
-44,
-20,
-60,
52,
-52,
-25,
29,
-61,
-15,
7,
-12,
-23,
15,
-31,
-75,
4,
15,
0,
-23,
25,
28,
7,
47,
-7,
-26,
-16,
32,
40,
47,
-8,
-1,
5,
-47,
-35,
-13,
-8,
30,
-48,
8,
-35,
-28,
-9,
51,
-21,
22,
-9,
8,
56,
42,
44,
7,
0,
-10,
-12,
0,
3,
-4,
-9,
7,
-21,
0,
-11,
-2,
-29,
-12,
36,
-30,
3,
10,
-11,
-66,
-65,
-13,
-40,
30,
21,
-30,
3,
13,
18,
-33,
-24,
-9,
17,
-5,
3,
9,
-39,
-9,
9,
-23,
-8,
-29,
-10,
3,
-22,
0,
-1,
28,
52,
-21,
-12,
3,
30,
29,
17,
-2,
-21,
-80,
27,
42,
-11,
-6,
-36,
10,
22,
1,
-29,
36,
16,
60,
-26,
17,
17,
9,
94,
-14,
-56,
30,
-52,
46,
-6,
-19,
7,
0,
3,
-64,
-15,
36,
-21,
-26,
-36,
41,
19,
-20,
4,
-2,
64,
11,
-25,
48,
-87,
19,
-53,
-1,
22,
21,
-13,
-42,
-14,
-14,
-18,
-19,
-20,
-29,
-46,
5,
-5,
-22,
-23,
19,
-30,
-69,
29,
-13,
29,
44,
30,
39,
44,
2,
-57,
-23,
6,
-5,
-10,
-16,
-53,
8,
11,
35,
-42,
5,
-45,
14,
14,
50,
-20,
-56,
-67,
6,
25,
30,
-33,
-31,
-22,
-29,
-60,
0,
-7,
3,
-41,
3,
59,
-31,
14,
-19,
-23,
61,
32,
16,
-18,
0,
-4,
41,
-19,
9,
-4,
11,
-20,
32,
23,
37,
1,
-13,
-17,
10,
56,
-23,
17,
-39,
48,
-56,
53,
-1,
-17,
19,
-22,
47,
-25,
-6,
44,
39,
-32,
0,
-48,
17,
54,
43,
-1,
-19,
18,
-22,
-46,
-47,
18,
27,
-44,
34,
12,
25,
-66,
19,
12,
20,
-34,
43,
14,
-50,
8,
-8,
-24,
43,
-2,
11,
0,
-38,
-5,
2,
10,
16,
-35,
17,
-9,
17,
-32,
-4,
-14,
-3,
-3,
-8,
16,
-11,
19,
-3,
-71,
48,
-54,
20,
-35,
-25,
8,
37,
18,
-6,
-60,
-13,
30,
12,
25,
39,
52,
41,
16,
-29,
26,
25,
21,
18,
-16,
-21,
18,
20,
22,
10,
8,
51,
-44,
-57,
29,
-8,
16,
-59,
2,
-5,
46,
21,
60,
-11,
69,
-28,
-19,
-17,
-41,
-54,
-43,
-5,
86,
-56,
32,
-4,
-12,
48,
-34,
-5,
-21,
-76,
-17,
0,
-34,
-40,
-82,
32,
29,
5,
25,
-38,
-23,
-37,
44,
39,
56,
40,
14,
18,
0,
33,
-24,
-34,
12,
-24,
2,
6,
-3,
8,
45,
57,
8,
-17,
-51,
38,
44,
-58,
-29,
0,
-3,
10,
11,
-23,
6,
4,
-30,
27,
-33,
17,
17,
-29,
-39,
-2,
14,
-39,
-4,
-48,
-28,
9,
-9,
-8,
-32,
42,
-34,
57,
22,
9,
51,
-34,
23,
11,
7,
-58,
-67,
-16,
-16,
2,
-35,
76,
12,
-6,
-4,
35,
-44,
7,
-22,
-19,
13,
-20,
-7,
-29,
-21,
-41,
21,
-69,
-14,
-13,
-23,
-4,
-11,
19,
51,
-39,
6,
31,
-10,
-18,
-26,
-3,
-11,
-59,
40,
-10,
-63,
-22,
-7,
-22,
25,
37,
-38,
-20,
-37,
-44,
-32,
-29,
-21,
-4,
15,
29,
44,
-18,
-8,
15,
16,
24,
-22,
-16,
11,
-13,
-11,
-25,
-11,
-3,
-6,
-4,
-12,
25,
10,
-28,
-17,
39,
-3,
-35,
-44,
18,
42,
-6,
-25,
40,
-25,
-5,
-12,
57,
-34,
-35,
40,
-8,
-7,
41,
30,
36,
30,
58,
15,
-4,
19,
12,
16,
-16,
71,
23,
-22,
72,
-25,
-74,
13,
-13,
-24,
-11,
-17,
-3,
8,
-61,
-1,
25,
0,
9,
11,
-48,
-42,
50,
8,
5,
-43,
-9,
16,
-28,
14,
19,
45,
16,
-10,
-21,
-4,
19,
-29,
-79,
4,
20,
47,
-26,
40,
35,
-33,
-28,
43,
2,
-29,
-29,
-60,
-16,
8,
24,
-4,
-10,
20,
25,
43,
10,
23,
16,
7,
-5,
-18,
25,
15,
12,
-67,
16,
0,
-13,
66,
-29,
-22,
12,
34,
29,
27,
-25,
-17,
8,
-21,
3,
-51,
-24,
59,
-21,
9,
-1,
31,
46,
26,
-46,
-4,
-34,
2,
9,
15,
-43,
-6,
48,
-31,
8,
-13,
17,
29,
78,
42,
86,
18,
-44,
40,
11,
9,
-23,
-14,
46,
10,
17,
16,
-30,
-10,
58,
-8,
-8,
95,
-39,
-77,
40,
-19,
30,
34,
0,
33,
-18,
37,
-39,
-6,
-7,
39,
-46,
-41,
-15,
7,
-19,
-27,
-33,
-54,
-10,
37,
36,
-15,
-15,
-52,
14,
-65,
7,
-30,
3,
27,
45,
6,
-13,
-5,
-24,
-34,
4,
16,
6,
-1,
34,
-1,
-31,
25,
18,
58,
30,
-3,
31,
-39,
-73,
56,
28,
67,
-81,
1,
37,
18,
3,
-37,
11,
11,
26,
-22,
-24,
-37,
25,
26,
-4,
-1,
-11,
49,
11,
-49,
2,
34,
10,
-58,
-8,
-35,
3,
-72,
-56,
-10,
-13,
4,
22,
30,
-45,
-26,
-18,
-30,
-29,
12,
19,
9,
65,
-43,
19,
-11,
-3,
-1,
28,
-5,
29,
42,
-15,
18,
-3,
21,
58,
15,
58,
-11,
2,
-65,
18,
27,
0,
19,
-17,
17,
-56,
-2,
-7,
40,
-75,
8,
8,
31,
-26,
20,
34,
-5,
-28,
-29,
-35,
3,
-34,
47,
57,
45,
-59,
-53,
32,
15,
-16,
0,
-3,
-18,
-28,
21,
18,
15,
-1,
-64,
3,
9,
84,
-23,
-17,
-32,
-22,
-10,
-17,
-38,
-34,
27,
40,
33,
-22,
8,
-9,
-18,
-25,
35,
-60,
-21,
15,
32,
14,
-6,
30,
-47,
-10,
-13,
-9,
44,
-21,
-9,
-29,
40,
-29,
29,
19,
0,
-58,
10,
-48,
-28,
-7,
46,
11,
-5,
-24,
49,
-11,
47,
-27,
63,
15,
-26,
-70,
-6,
-12,
10,
3,
39,
0,
21,
-6,
41,
-69,
45,
-28,
25,
17,
-47,
2,
1,
25,
-6,
5,
28,
9,
-24,
18,
78,
15,
-27,
26,
-20,
2,
18,
23,
53,
-29,
29,
-36,
-15,
44,
-49,
10,
34,
-6,
-15,
-4,
5,
-24,
-3,
21,
28,
-8,
0,
-7,
5,
-31,
-23,
33,
-35,
-1,
8,
5,
48,
14,
-10,
-14,
-38,
16,
-51,
14,
26,
-15,
-3,
14,
-26,
-10,
31,
-70,
10,
-47,
8,
-1,
-43,
25,
30,
31,
13,
19,
-6,
33,
47,
77,
22,
-1,
2,
4,
-16,
-50,
-5,
-4,
-18,
56,
9,
47,
41,
-9,
-74,
-14,
50,
-53,
-42,
-15,
-22,
10,
-1,
14,
-13
] |
ON REMAND
Before: Sawyer, P.J., and G. R. McDonald and R. M. Maher, JJ.
G. R. McDonald, J.
On June 2, 1987, this Court filed an opinion in the instant case finding that plaintiffs were not collaterally estopped from proceeding against defendant Roper Corporation, the manufacturer of an allegedly defective stove, even though plaintiffs had not prevailed in their claim against Sears, Roebuck and Company, the retailer, 160 Mich App 595; 408 NW2d 513 (1987). We reached this conclusion in part because plaintiffs had not chosen to split their cause of action and sue each party separately, but were forced to try each defendant separately as a result of the trial court’s erroneous entry of default judgment (later reversed by this Court) against defendant Roper. We believe the application of collateral estoppel in the instant case would be unjust as it would deny plaintiffs the opportunity to proceed against the alleged primary tortfeasor in the original action.
Defendant filed an application for leave to appeal to the Supreme, Court and by order dated December 22, 1987, the Supreme Court remanded the case to this Court fór "consideration of whether defendant Roper Corporation waived the right to rely on the doctrine of collateral estoppel,” 429 Mich 886 (1987). As our prior analysis of the case resulted in a finding that collateral estoppel did not apply to the facts of this case, we had previously declined to address this issue. One can only assume by thisi remand that the Supreme Court does not agree that collateral estoppel is inapplicable to the fácts of this case so we will, therefore, address the] waiver issue.
Plaintiffs claim tha|t defendant’s failure to raise the issue of collateral estoppel at some time prior to the motion for summary disposition currently under our review precludes its application in this case.
Specifically, plaintiffs argue that defendant’s failure to request the trial court to use a procedure whereby defaujlt judgment is not issued against a joint tortfeasor who suffers a default until there is a finding of liability against the joint tortfeasor who goes to trial constitutes a waiver of the application of collateral estoppel. We disagree. Even if this procedure were applicable in the instant case, it does not follow that defendant’s failure to request the procedure barred its use of the collateral estoppel effect of the Sears judgment. Plaintiffs cite no case law to support such an argument and we do not agree with plaintiffs’ position.
Plaintiffs next argue that defendant Roper should have raised the collateral estoppel issue to this Court prior to remand. We disagree.
The trial court ruled at Roper’s motion for summary disposition:
I am satisfied it was not a viable issue during the case and during the appeal. It became a viable issue after the appeal when the dust had cleared. It was not before the Court of Appeals nor would they have to have the perspectivity [sic] to see this as a possible change in their orders, but until they remanded the case back and until they confirmed the judgment against Sears, I don’t believe it could have been an issue.
It was not until this Court reversed the trial court’s entry of a default judgment against Roper that the issue of collateral estoppel became ripe. Moreover, the trial court, and not the Court of Appeals, should determine the collateral estoppel effect of a prior judgment as it is in a better position, after hearing the proofs and jury verdict, to determine whether the same issues were fully litigated in the prior proceeding.
Roper has not waived the defense of collateral estoppel in the instant case by failing to raise the issue prior to remand either with the trial court or with this Court in the prior appeal. The trial court did not err in holding that the issue was not waived.
Affirmed. | [
-30,
19,
-18,
22,
-17,
-20,
-2,
-24,
-16,
10,
0,
-50,
-8,
41,
54,
-34,
9,
29,
-23,
6,
-37,
-3,
-29,
49,
8,
-24,
57,
-92,
72,
-2,
7,
-16,
4,
28,
-27,
21,
27,
13,
-5,
-13,
26,
38,
50,
-32,
7,
7,
55,
-19,
16,
-33,
18,
23,
-2,
-21,
-19,
4,
-21,
-15,
-22,
26,
25,
-14,
13,
5,
-6,
-1,
10,
35,
-45,
8,
-9,
-30,
-23,
-20,
-24,
-46,
13,
38,
2,
-15,
35,
-12,
-1,
-56,
-14,
32,
12,
-12,
-17,
-11,
-83,
11,
-77,
-20,
-60,
57,
-2,
-51,
11,
37,
20,
46,
0,
13,
14,
51,
15,
-31,
-5,
62,
-19,
-2,
-14,
2,
-49,
-63,
-31,
-26,
-41,
26,
17,
-14,
27,
-34,
60,
-7,
10,
-26,
7,
15,
-30,
22,
3,
27,
-12,
44,
6,
-11,
-22,
-17,
-29,
6,
-16,
-16,
18,
4,
11,
-44,
-37,
9,
9,
13,
-50,
0,
26,
14,
18,
-5,
-10,
-17,
46,
15,
0,
39,
-19,
-4,
-11,
29,
-77,
-29,
4,
-3,
-16,
30,
26,
-16,
39,
-2,
-6,
12,
17,
52,
-4,
23,
-49,
14,
-8,
-2,
-20,
38,
-34,
-38,
-26,
70,
-3,
18,
-6,
43,
6,
38,
-59,
-18,
3,
-2,
0,
6,
25,
-21,
-2,
-10,
-49,
62,
-50,
-44,
-19,
-11,
26,
-26,
-7,
9,
-46,
36,
35,
-3,
-21,
6,
10,
21,
13,
-27,
-7,
-25,
-23,
44,
31,
-20,
-10,
-9,
27,
-31,
26,
-6,
-14,
-61,
-60,
-18,
13,
-6,
1,
-13,
-20,
-13,
0,
-4,
-10,
-38,
-82,
20,
-36,
3,
27,
53,
-69,
-6,
-22,
38,
-4,
38,
-39,
-23,
-14,
-20,
33,
11,
6,
-35,
-57,
19,
-3,
-24,
24,
17,
7,
-7,
-34,
-4,
27,
29,
36,
44,
26,
24,
-2,
-21,
12,
-16,
-7,
-41,
7,
34,
21,
-20,
30,
18,
3,
22,
-13,
-4,
-2,
-47,
-22,
29,
-23,
-47,
45,
-5,
-20,
23,
17,
-23,
0,
-8,
26,
-22,
-6,
-35,
30,
-8,
-23,
18,
-46,
5,
-4,
6,
1,
-24,
-5,
35,
-2,
47,
-3,
-18,
-9,
-18,
1,
7,
33,
-3,
42,
-23,
-1,
1,
-40,
12,
13,
-9,
5,
-34,
-25,
88,
24,
-3,
-29,
-4,
7,
20,
8,
5,
-4,
35,
19,
-2,
14,
-51,
-2,
-40,
-66,
69,
-34,
12,
-34,
-51,
47,
1,
17,
-21,
-19,
6,
-53,
-8,
-47,
-8,
42,
-6,
-14,
29,
-37,
-20,
4,
-25,
15,
9,
-5,
-38,
3,
-52,
-4,
-2,
-8,
17,
71,
-3,
-8,
-25,
-35,
-14,
-5,
-4,
-11,
-7,
26,
-64,
13,
-40,
16,
-42,
31,
-10,
-40,
-22,
-18,
4,
6,
-50,
14,
82,
17,
-13,
-58,
36,
-80,
-23,
-43,
-21,
14,
-33,
9,
-32,
8,
31,
12,
52,
27,
-30,
-41,
-24,
28,
-10,
18,
-15,
34,
8,
42,
26,
-6,
-70,
13,
-59,
9,
-22,
17,
10,
36,
40,
-29,
41,
-13,
57,
-27,
-25,
-26,
14,
51,
33,
0,
70,
-28,
-1,
27,
-41,
-3,
39,
30,
-24,
-65,
11,
-37,
-14,
19,
22,
-8,
-24,
28,
-12,
35,
-6,
23,
-34,
-22,
52,
-55,
-30,
55,
25,
1,
18,
-25,
44,
-7,
16,
-18,
38,
-32,
-4,
-52,
-3,
-14,
4,
20,
-33,
60,
0,
19,
-33,
-20,
33,
4,
-56,
-17,
7,
-15,
19,
-12,
-1,
47,
16,
30,
0,
-20,
16,
-23,
-8,
47,
86,
29,
9,
-35,
24,
15,
2,
6,
23,
3,
35,
-21,
-20,
-27,
-40,
16,
4,
39,
31,
22,
36,
-12,
29,
15,
19,
-1,
-13,
-28,
31,
12,
-116,
-41,
-50,
5,
11,
51,
18,
5,
-51,
4,
-6,
28,
-13,
46,
-12,
-10,
40,
-39,
39,
-29,
-3,
-14,
-21,
16,
42,
-7,
0,
7,
-25,
-26,
-14,
-22,
-55,
39,
-19,
-33,
11,
8,
29,
-47,
7,
-18,
-45,
4,
18,
6,
-41,
54,
-16,
21,
22,
-24,
9,
-9,
17,
8,
-27,
-40,
45,
-10,
5,
4,
-33,
28,
23,
0,
-17,
6,
48,
35,
19,
3,
-22,
11,
-34,
18,
-71,
-6,
-29,
-7,
27,
-18,
23,
-53,
-1,
31,
-7,
51,
44,
11,
34,
20,
-26,
-23,
-15,
4,
71,
-10,
-49,
26,
-39,
6,
16,
22,
-7,
-13,
37,
-2,
23,
-33,
-35,
7,
-15,
32,
20,
33,
-7,
-6,
-9,
-8,
66,
-14,
-7,
-40,
37,
58,
70,
0,
7,
50,
-3,
36,
28,
-2,
-42,
-7,
-22,
-19,
17,
44,
-7,
18,
17,
17,
-41,
-13,
-30,
-29,
7,
-1,
17,
-19,
42,
17,
-42,
-17,
30,
51,
40,
29,
-15,
-29,
13,
-11,
62,
21,
-10,
-4,
26,
-14,
28,
21,
35,
-15,
-32,
-48,
0,
37,
-10,
6,
-10,
-16,
-20,
-32,
-72,
7,
-5,
-18,
-5,
2,
-6,
-18,
40,
7,
-16,
33,
6,
-24,
-15,
-7,
-6,
18,
-61,
28,
-30,
16,
3,
1,
-10,
-1,
5,
18,
24,
22,
-1,
-42,
4,
-4,
14,
-9,
-3,
11,
-23,
5,
36,
31,
-48,
20,
-47,
-19,
18,
33,
47,
-38,
-16,
-6,
14,
2,
19,
-48,
-22,
-4,
21,
25,
-8,
27,
51,
11,
-47,
-40,
15,
16,
-20,
17,
-3,
29,
-33,
-36,
-57,
0,
5,
58,
13,
-18,
4,
-15,
0,
-7,
-7,
24,
36,
22,
-41,
-72,
40,
9,
17,
31,
1,
-19,
27,
5,
28,
-26,
6,
16,
-10,
19,
19,
0,
-36,
-37,
-18,
7,
24,
25,
4,
-14,
7,
-14,
48,
-19,
-19,
7,
21,
-34,
12,
54,
55,
14,
83,
4,
-15,
-28,
-13,
26,
-49,
-45,
-7,
35,
40,
41,
10,
-25,
42,
-16,
15,
-2,
-33,
21,
-12,
31,
0,
-5,
10,
-14,
38,
5,
5,
-31,
30,
-23,
14,
34,
29,
50,
37,
22,
11,
-12,
19,
7,
-45,
-2,
-58,
-6,
-12,
-39,
-28,
9,
13,
-44,
-30,
0,
6,
-35,
7,
-77,
0,
-2,
48,
-4,
19,
2,
-4,
-80,
-10,
-27,
10,
-15,
3,
-3,
24,
29,
-38,
-19,
-37,
13,
-43,
40,
-63,
-37,
-3,
36,
-41,
-42,
19,
19,
-14,
-39,
7,
0,
-14,
3,
-3,
-33,
-5,
55,
-18,
74,
24,
-41,
29,
-12,
11,
32,
-28,
18,
10,
15,
-21,
-13,
-7,
32,
18,
-39,
19,
-13,
31,
0,
8,
4,
-11,
-56,
-25,
-3,
-21,
68,
11,
-1,
3
] |
Murray, P.J.
I. INTRODUCTION
The United States Constitution created a federal government of limited, enumerated powers, and reserved to the states all powers not specifically granted to the federal government. See US Const, art I, § 8; US Const, Am X. As eloquently stated by the principal architect of the Constitution when arguing for its ratification by the states, “[t]he powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” The Federalist No. 45, p 311 (James Madison).
In the exercise of its reserved powers, Michigan has always regulated the marriage relationship.* This case involves both the definition of marriage established by the people through a direct vote as set forth in our state constitution (Const 1963, art 1, § 25), as well as by the people’s representatives as contained in statute (MCL 551.1). These laws (and others) prohibit recognition of a contract of marriage entered into by two individuals of the same sex. Here, defendant — who had a sex-change operation subsequent to the parties’ marriage — argues that under these provisions a Michigan court had no jurisdiction to grant a divorce to the plaintiff because defendant is also now a female. For the reasons that follow, we hold that the circuit court had jurisdiction to enter the divorce judgment, and we therefore affirm.
II. FACTS AND PROCEEDINGS
Plaintiff and defendant were married in Ann Arbor, Michigan on August 30, 1984. In the late 1980s, plaintiff and defendant moved to Philadelphia, Pennsylvania, where they lived together until September 2005. During that month defendant drove plaintiff to Michigan for an extended visit with her daughter, Beryl Ellen Niles. Plaintiff never returned to Philadelphia, and never lived again with defendant.
The underlying divorce action was initiated by plaintiffs children, Niles and her brother Joseph Buxbaum, who also served as plaintiffs guardians. Plaintiff was 79 years old and suffering from dementia when the complaint was filed on her behalf. Defendant responded to the complaint and filed a motion for summary disposition, arguing that guardians and conservators lack authority to file a complaint for divorce on behalf of an incapacitated ward. The trial court denied defendant’s motion from the bench, concluding that under Michigan caselaw guardians and conservators have authority to file a complaint for divorce.
Defendant subsequently filed a second motion for summary disposition, this time arguing that the trial court did not have jurisdiction to grant a divorce. The basis for defendant’s argument was that defendant, who was born a man, underwent gender reassign ment surgery to become a woman in November 2003. As a result, defendant argued, the parties were no longer married because Michigan law only recognized marriage as the union between one man and one woman. And, defendant argued, because the parties were not married the trial court had no jurisdiction to grant a divorce. Defendant further argued that granting a divorce would be an implicit recognition of marriage between individuals of the same gender, which is prohibited under the Michigan Constitution.
The trial court denied defendant’s motion, concluding that the parties entered into a valid marriage contract, not a same-sex marriage contract, and that it had the ability to dissolve a marriage that was lawfully entered into in this state. Soon thereafter the court entered a final judgment of divorce, from which defendant now appeals.
III. ANALYSIS
Defendant raises two issues. First, can a guardian or conservator file a complaint for divorce on behalf of the spouse over whom the guardianship or conservatorship is placed? Second, if the complaint was properly filed, did the circuit court have jurisdiction to enter a judgment of divorce between married persons purportedly of the same sex? We address these issues in that order below, and ultimately decide both questions in the affirmative.
A. POWER TO FILE A DIVORCE COMPLAINT
Defendant’s first dispositive motion, which the trial court denied, challenged the ability of a guardian or conservator to file a complaint for divorce on behalf of an incompetent spouse. This Court reviews de novo a trial court’s decision on a motion for summary disposition, Driver v Naini, 490 Mich 239, 246; 802 NW2d 311 (2011), and reviews issues of statutory and court rule interpretation under the same standard, Bint v Doe, 274 Mich App 232, 234; 732 NW2d 156 (2007).
In Houghton v Keller, 256 Mich App 336, 338; 662 NW2d 854 (2003), we addressed this precise issue and concluded that “a guardian can bring an action for divorce on behalf of an incompetent spouse.” Defendant acknowledges Houghton but argues that Houghton is either erroneous or otherwise not conclusive on the merits of the issue presented in this case. Specifically, defendant notes that Houghton cited to Smith v Smith, 125 Mich App 164; 335 NW2d 657 (1983), which in turn relied on the General Court Rules. Because the General Court Rules have been replaced by the Michigan Court Rules, defendant argues, Houghton cannot control the outcome of this case under the Michigan Court Rules.
For at least two reasons, this argument is without merit. First, Houghton did not solely rely on Smith, as the Court specifically considered the language contained in two Michigan court rules, MCR 3.202(A) and MCR 2.201(E). See Houghton, 256 Mich App at 338. Second, although the Smith Court relied on GCR 1963, 722.2 for its holding, the Houghton Court properly concluded that several rules within subchapter 3.200 requires the same result reached in Smith.
Subchapter 3.200 is titled “Domestic Relations Actions,” and MCR 3.201(A)(1) provides that subchapter 3.200 applies to actions for divorce, separate maintenance, and the annulment of a marriage. MCR 3.202(A) provides: “Except as provided in subrule (B), minors and incompetent persons may sue and be sued as provided in MCR 2.201.” MCR 2.201(E) pertains to minors and incompetent persons and provides in relevant part as follows:
(1) Representation.
(a) If a minor or incompetent person has a conservator, actions may be brought and must be defended by the conservator on behalf of the minor or incompetent person.
(b) If a minor or incompetent person does not have a conservator to represent the person as plaintiff, the court shall appoint a competent and responsible person to appear as next friend on his or her behalf, and the next friend is responsible for the costs of the action.
(c) If the minor or incompetent person does not have a conservator to represent the person as defendant, the action may not proceed until the court appoints a guardian ad litem....
Thus, contrary to defendant’s argument, the current court rules specifically allow a guardian or conservator to bring an action for divorce on behalf of a mentally incompetent spouse. See Houghton, 256 Mich App at 338 (“We agree with the reasoning in Smith and conclude that, on the basis of MCR 3.202(A) and MCR 2.201(E), a guardian can bring an action for divorce on behalf of an incompetent spouse.”).
Defendant also argues that MCR 3.202(A) conflicts with MCL 552.11, which provides that “[a]n action for a divorce may be brought by a wife or a husband, and in all cases the respondent may answer the bill without oath or affirmation.” Defendant argues that because MCL 552.11 only refers to a wife and a husband bringing an action for divorce, no one else can do so, even when acting on behalf of one spouse. A similar argument was rejected in Houghton, 256 Mich App at 338-339:
Defendant appears to be suggesting that if the Legislature intended to provide for actions by a guardian, the Legislature would have expressly provided for this in MCL 552.6. However, the converse argument can be made that, had the Legislature intended to prohibit actions by guardians on behalf of a spouse, it would have expressly said so in the language of MCL 552.6. Nothing in the language of MCL 552.6 expressly prohibits guardians from filing a complaint for divorce on behalf of a party to the marriage. Defendant has not shown how the language in MCR 3.202(A), providing in relevant part that “incompetent persons may sue and be sued as provided in MCR 2.201,” changes the statutory requirements for divorce.
Defendant further argues that MCR 3.202(A) is unconstitutional because it is in conflict with the statutory requirements of MCL 552.6. However, as noted above, the court rule does not change the statutory provisions pertaining to divorce and, therefore, the premise of defendant’s argument fails.
The above reasoning is equally applicable to this case. Had the Legislature intended to prohibit an action by a guardian on behalf of a spouse, it could have expressly said so in the language of MCL 552.11. Nothing within the language of MCL 552.11 expressly prohibits a guardian or conservator from filing a complaint for divorce on behalf of an incompetent spouse. Consequently, we reject defendant’s argument on this issue.
B. JURISDICTION TO ENTER A DIVORCE
Turning now to the second issue raised by defendant, we must decide whether the trial court properly denied defendant’s second motion for summary disposition, which challenged the trial court’s authority to enter a divorce judgment. As we have already noted, this Court reviews de novo a trial court’s decision on a motion for summary disposition. Driver, 490 Mich at 246. To the extent this Court’s review requires consideration of subject-matter jurisdiction, our review is also de novo. Pontiac Food Ctr v Dep’t of Community Health, 282 Mich App 331, 335; 766 NW2d 42 (2009). Issues of constitutional interpretation are likewise reviewed de novo. Dep’t of Transp v Tomkins, 481 Mich 184, 190; 749 NW2d 716 (2008).
At issue is the meaning of article 1, § 25 of the Michigan Constitution of 1963. In interpreting constitutional provisions, the primary duty of the judiciary is to ascertain the purpose and intent of the provision at issue. Adair v Michigan, 486 Mich 468, 477; 785 NW2d 119 (2010). In doing so, courts apply the rule of common understanding: “[T]he interpretation given the provision should be the sense most obvious to the common understanding and one that reasonable minds, the great mass of the people themselves, would give it.” Id. (quotation marks and citations omitted). Words should be given their common and most obvious meaning, and consideration of dictionary definitions used at the time of passage for undefined terms can be appropriate. Nat’l Pride at Work, Inc v Governor, 481 Mich 56, 67, 69, 73, 75; 748 NW2d 524 (2008).
There is no dispute that a same-sex marriage is not recognized in Michigan. The constitutional amendment defining marriage approved by Michigan voters in 2004, and which is set forth in Const 1963, art 1, § 25, provides: “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” (Emphasis supplied.) Based on this language, the marriage amendment provides that the only “agreement” recognized as a marriage is one made between a man and a woman. Consistent with the marriage amendment, MCL 551.1 renders invalid a marriage that is contracted between individuals of the same sex:
Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting that unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.[ ] [Emphasis added.]
Consequently, the constitution and statutes of Michigan preclude the recognition or validity of a marriage contracted between two persons of the same sex. Or, as stated by our Supreme Court in Nat’l Pride, 481 Mich at 76-77, “the marriage amendment specifically states that the ‘only’ agreement that can be recognized as a marriage ... is the union of one man and one woman.” More specifically, the Court held:
However, the marriage amendment specifically states that the “only” agreement that can be recognized as a marriage or similar union is the union of one man and one woman. “Only” means “the single one ... of the kind; lone; sole[.]” Random House Webster’s College Dictionary (1991). Therefore, a single agreement can be recognized within the state of Michigan as a marriage or similar union, and that single agreement is the union of one man and one woman. A domestic partnership does not constitute such a recognizable agreement.[ ] [Nat’l Pride, 481 Mich at 76-77.] [Emphasis added.]
There is no dispute that when the parties entered into their marriage contract defendant was a man and plaintiff was a woman. Thus, the marriage contract was valid and enforceable under Michigan law at the time it was entered. And although defendant underwent gender reassignment surgery in 2003, that does not alter the undisputed fact that when the marriage contract was entered into, plaintiff was a woman and defendant was a man. Therefore, by granting a divorce from a marriage that was contracted into in this state between a man and a woman, the trial court did not act contrary to Michigan law.
We likewise reject defendant’s argument that his alleged postoperative status somehow magically dissolved what was otherwise a valid marriage. Although, as we have pointed out, a valid marriage requires contractual assent between the parties, that is not all that is required. Indeed, it has long been true that a marriage is comprised of more than a civil contract. In Kuntz v Kuntz, 244 Mich 78, 81; 221NW 285 (1928), the Supreme Court held: “Marriage is more than a civil contract. Rights are acquired and obligations assumed which the parties themselves may not annul. They are bound thereby unless the courts, acting under legislative authority, shall terminate the relation by a decree of divorce.”
Our statutes also make clear that there are only certain limited circumstances under which a Michigan marriage can be annulled, and the circumstances presented by this case do not fall within those narrow circumstances. See MCL 552.1, 552.2, 552.3, 552.35, and Rodenhiser v Duenas, 296 Mich App 268, 279-281; 818 NW2d 465 (2012). Once validly entered into, one spouse’s actions cannot unilaterally result in the legal dissolution of the marriage without court involvement. The circuit court had jurisdiction to enter a judgment of divorce for a marriage validly entered into between one man and one woman in Michigan.
Affirmed. No costs, a question of public importance at issue. MCR 7.219(A).
MARKEY and WHITBECK, JJ., concurred with MURRAY, P.J.
Because the states held all the power prior to creation of the Constitution, and it was the states that consented to the establish ment of a federal government for certain limited purposes, the states retained, as opposed to being granted, all powers not expressly given to the federal government. See Chisholm v Georgia, 2 US (2 Dall) 419, 435; 1 L Ed 440 (1793) (“Every state in the Union, in every instance where its sovereignty has not been delegated to the United States, I consider to be as completely sovereign, as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of government actually surrendered: each state in the Union is sovereign, as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the states have surrendered to them[.]”) and United States v Lopez, 514 US 549, 584; 115 S Ct 1624; 131 L Ed 2d 626 (1995) (Thomas, J., concurring).
The marriage relationship, there can be no doubt, has always been exclusively within the power of the states to define and regulate. See Andrews v Andrews, 188 US 14, 32; 23 S Ct 237; 47 L Ed 366 (1903), abrogated on other grounds Sherrer v Sherrer, 334 US 343, 353; 68 S Ct 1087; 92 L Ed 1429 (1948); Trustees of Dartmouth College v Woodward, 17 US (4 Wheat) 518, 600-601; 4 L Ed 629 (1819).
Niles was also appointed plaintiffs conservator.
Plaintiff died during the pendency of this appeal. Niles, as personal representative of plaintiffs estate, substituted for plaintiff as appellee in this appeal. Burnett v Burnett, unpublished order of the Court of Appeals, entered January 2, 2013 (Docket No. 309640). Because plaintiff died after the judgment was entered and an appeal was pending, the case is not moot. See McCormick v McCormick, 221 Mich App 672, 678-679; 562 NW2d 504 (1997).
GCR 1963, 722.2 provided: “ ‘Actions for divorce and separate maintenance by or against incompetent persons shall be brought as provided in sub-rule 201.5.’ ” Smith, 125 Mich App at 166, quoting GCR 1963, 722.2. GCR 1963, 201.5(1) provided: “ ‘Whenever an infant or incompetent person has a guardian of his estate, actions may be brought and shall be defended by such guardian in behalf of the infant or incompetent person.’ ” Id., quoting GCR 1963, 201.5(1).
Defendant’s policy argument — that allowing guardians to file for divorce on behalf of an incompetent spouse who never filed for divorce while competent could lead to divorces brought by family members (acting as guardians or conservators) merely for financial gain — is an interesting one. But those arguments are properly made to the Legislature or the Supreme Court (in its rulemaking function), not this Court.
As the Nat’l Pride Court recognized, there are several other statutes that spell out what does, or does not, constitute a marriage in Michigan. Nat’l Pride, 481 Mich at 72 n 9. MCL 551.2, for example, provides: “So far as its validity in law is concerned, marriage is a civil contract between a man and a woman, to which the consent of parties capable in law of contracting is essential.”
The marriage amendment’s focus on the agreement to marry is consistent with Michigan law, which has always required (among other formalities) a contract between the mariying parties. See Roszel v Roszel, 73 Mich 133, 137; 40 NW 858 (1888); MCL 552.35. The amendment also confirmed what was longstanding Michigan law, i.e., that “[t]o constitute a perfect union, the contracting parties should he two persons of the opposite sexes ....” In re Fitzgibbons’ Estate, 162 Mich 416,420; 127 NW 313 (1910) (quotation marks and citation omitted).
Though our holding puts to rest defendant’s challenge to the circuit court’s jurisdiction, we point out that the constitution and relevant statutes explicitly state that only a marriage agreement between one man and one woman is recognized by Michigan law. Under the most obvious and commonly understood meaning of the words “man” and “woman,” a postoperative male-to-female transsexual is not a “woman.” Random House Webster’s College Dictionary (2001) defines “man” as “an adult male person!.]” “Male,” in turn, is defined as “a person bearing an X and Y chromosome pair in the cell nuclei and normally having a penis, scrotum, and testicles and developing hair on the face at adolescence” and “an organism of the sex or sexual phase that normally produces a sperm cell or male gamete.” Id. “Woman” is defined as “an adult female person,” and “female” is defined as “a person of the sex whose cell nuclei contain two X chromosomes and who is normally able to conceive and bear young” or “any organism of the sex or sexual phase that normally produces egg cells.” Id. Based on these definitions, it would appear that defendant is not a woman under the marriage amendment and marriage statutes because he still has an X and Y chromosome pair and cannot— and never could — bear children. We note that other jurisdictions have reached this conclusion, see Kantaras v Kantaras, 884 So2d 155 (Fl App, 2004) and In re Estate of Gardiner, 273 Kan 191, 214; 42 P3d 120 (2002), but we need not do so here. | [
-15,
-27,
5,
-8,
-38,
5,
8,
33,
3,
-2,
-28,
-29,
29,
10,
-6,
-34,
-9,
35,
-33,
21,
-51,
-6,
-19,
49,
15,
36,
27,
33,
-34,
-57,
17,
-39,
-11,
-7,
-23,
28,
-5,
22,
9,
6,
24,
-36,
2,
11,
-71,
-12,
21,
7,
-35,
3,
-45,
-19,
12,
28,
-16,
-16,
15,
20,
9,
28,
-5,
38,
0,
-32,
33,
-23,
21,
25,
10,
-39,
28,
-46,
-51,
-46,
11,
-5,
43,
-14,
23,
6,
52,
1,
-10,
-47,
0,
-11,
-43,
25,
-69,
8,
-8,
13,
-46,
-5,
-5,
26,
4,
18,
58,
-4,
-24,
-1,
47,
10,
2,
39,
13,
-10,
19,
-49,
30,
-13,
-31,
-5,
14,
50,
-45,
2,
-23,
5,
-26,
19,
-15,
-19,
36,
-44,
-27,
-33,
16,
0,
-2,
3,
-9,
-61,
-10,
0,
-1,
-41,
-14,
-49,
20,
-19,
48,
-39,
49,
-15,
-13,
-9,
6,
-68,
6,
20,
44,
61,
-18,
-14,
1,
-21,
46,
-28,
20,
-13,
-27,
7,
-21,
-33,
-31,
24,
12,
1,
20,
2,
-59,
-19,
-2,
-36,
-48,
15,
-32,
30,
-20,
32,
32,
-53,
-20,
-33,
-43,
-99,
-73,
-29,
-40,
-26,
25,
-6,
42,
61,
34,
43,
-40,
21,
-2,
-12,
2,
11,
4,
-16,
32,
-5,
-32,
10,
-19,
-12,
4,
-39,
-29,
-44,
23,
-5,
-33,
12,
67,
-27,
39,
2,
-72,
-47,
53,
0,
-19,
-17,
37,
5,
23,
0,
50,
-4,
-12,
10,
27,
0,
-27,
2,
-13,
26,
42,
-2,
-2,
3,
-9,
-5,
3,
-19,
14,
71,
17,
33,
-7,
44,
15,
-14,
-26,
6,
-56,
-47,
-43,
53,
61,
-15,
29,
-15,
14,
34,
50,
18,
4,
20,
-29,
-6,
18,
-20,
-13,
9,
14,
16,
3,
-11,
13,
5,
35,
18,
-1,
-56,
7,
30,
13,
45,
7,
22,
-42,
22,
-6,
69,
35,
77,
7,
-3,
-27,
21,
20,
-23,
30,
50,
-16,
9,
29,
23,
6,
-12,
10,
-12,
-10,
-24,
-5,
5,
-82,
11,
21,
-14,
1,
4,
3,
32,
55,
-41,
17,
-54,
24,
-9,
-28,
-18,
25,
-61,
32,
-3,
21,
-44,
22,
-15,
0,
-6,
-27,
-3,
-56,
-8,
-29,
35,
-27,
-28,
-46,
-10,
-23,
57,
-40,
3,
-22,
0,
26,
-5,
43,
6,
15,
15,
-4,
26,
12,
32,
-20,
66,
-13,
26,
5,
-43,
5,
22,
28,
63,
-74,
-31,
-48,
-76,
22,
-11,
6,
0,
37,
25,
11,
29,
3,
14,
33,
43,
-48,
39,
-31,
13,
-33,
32,
-40,
22,
-2,
2,
7,
-3,
0,
47,
12,
-22,
-2,
21,
-53,
40,
-61,
-10,
-41,
-62,
-37,
34,
46,
48,
12,
-18,
15,
4,
40,
-17,
-42,
13,
-17,
50,
4,
5,
32,
-13,
-16,
-7,
-16,
17,
-10,
10,
27,
9,
-53,
-18,
0,
-50,
-7,
2,
-46,
0,
10,
-51,
8,
-22,
15,
2,
-88,
6,
50,
17,
-15,
14,
-43,
43,
-35,
-17,
-18,
9,
-47,
-17,
12,
33,
-31,
-8,
-15,
-35,
11,
20,
32,
-24,
-98,
34,
12,
28,
-13,
13,
-15,
-19,
-39,
-59,
62,
80,
2,
-8,
42,
0,
-27,
14,
-45,
11,
-14,
-57,
53,
80,
-6,
0,
77,
-39,
-35,
-26,
-37,
17,
14,
7,
4,
-2,
7,
-3,
-5,
21,
-45,
61,
-5,
44,
34,
47,
10,
41,
42,
-16,
22,
-4,
21,
48,
0,
-19,
-33,
-40,
-10,
-25,
-5,
-60,
-21,
-10,
34,
-40,
-54,
25,
53,
-33,
-10,
-40,
4,
-24,
13,
-17,
-16,
-45,
14,
-25,
-16,
-31,
24,
2,
11,
0,
36,
13,
-24,
-75,
-3,
1,
-5,
-39,
2,
-59,
-13,
-19,
34,
-40,
-21,
34,
-11,
-13,
-7,
-18,
0,
-30,
-26,
5,
-22,
-38,
12,
40,
-18,
19,
30,
5,
-15,
6,
30,
-17,
13,
-46,
-15,
75,
-50,
-25,
10,
-2,
-18,
0,
-4,
-33,
42,
-36,
33,
4,
-23,
-13,
16,
19,
-3,
0,
7,
32,
18,
-10,
70,
-7,
-32,
26,
-17,
2,
18,
20,
21,
-15,
22,
-27,
-29,
56,
-39,
1,
12,
12,
-6,
-3,
29,
20,
0,
-36,
22,
36,
12,
-3,
23,
2,
-25,
-29,
8,
0,
40,
40,
26,
-28,
14,
-22,
-11,
29,
-23,
-8,
-12,
16,
52,
33,
25,
-3,
27,
9,
19,
-80,
29,
12,
7,
0,
-16,
24,
-35,
63,
-14,
14,
-15,
-22,
-54,
2,
-47,
-37,
0,
25,
-50,
6,
22,
-4,
-17,
-5,
35,
-63,
-3,
28,
-22,
15,
-48,
-69,
-3,
-18,
-37,
-22,
7,
-4,
2,
11,
9,
-41,
14,
33,
15,
30,
3,
49,
61,
12,
23,
10,
-6,
-1,
-14,
-49,
5,
51,
2,
1,
0,
-25,
-31,
-31,
11,
22,
-24,
-34,
-15,
6,
-12,
-33,
-20,
-39,
25,
8,
18,
15,
0,
-1,
-10,
-16,
22,
-15,
7,
24,
-11,
-36,
13,
0,
-14,
-14,
41,
-10,
72,
-21,
18,
13,
25,
-51,
42,
-19,
48,
45,
27,
0,
3,
-17,
-3,
63,
-22,
10,
18,
51,
-42,
42,
8,
33,
2,
20,
19,
7,
-37,
20,
7,
50,
-35,
-42,
25,
-40,
-8,
38,
-8,
42,
-11,
32,
-37,
-46,
46,
20,
22,
-30,
3,
-4,
17,
6,
12,
17,
4,
-18,
-61,
1,
11,
16,
15,
-5,
17,
-31,
4,
17,
-17,
27,
33,
2,
24,
20,
32,
5,
-10,
43,
-7,
-54,
14,
-41,
-11,
2,
38,
43,
-23,
-17,
19,
4,
11,
-40,
25,
-20,
-71,
7,
31,
10,
-32,
12,
32,
21,
98,
2,
-23,
-42,
-1,
-69,
5,
49,
-42,
32,
-33,
-2,
-8,
-38,
-13,
31,
1,
-20,
52,
-19,
40,
50,
32,
-51,
27,
-31,
-60,
5,
-6,
0,
-17,
29,
1,
-29,
0,
8,
-40,
-32,
-96,
-28,
-11,
-4,
-25,
42,
55,
-5,
-51,
-46,
40,
-3,
3,
34,
32,
-39,
-11,
-15,
-1,
-5,
24,
42,
1,
2,
15,
-4,
-64,
-26,
44,
22,
-50,
4,
28,
-6,
-6,
-71,
-23,
34,
10,
4,
-27,
-19,
31,
-21,
5,
44,
-24,
11,
13,
-12,
-20,
-12,
17,
18,
20,
5,
4,
-25,
25,
25,
11,
2,
0,
-5,
-63,
-45,
66,
3,
-47,
16,
31,
-25,
39,
0,
-32,
-10,
23,
-7,
-29,
22,
-17,
-60,
-5,
-37,
8,
16,
-11,
-2,
66,
10,
-5,
2,
-34,
31,
2,
-51,
22,
-22,
53,
4
] |
METER, P.J.
We granted defendant’s delayed application for leave to appeal his plea-based conviction of attempted unlawful taking of a child, MCL 750.92; MCL 750.350. The trial court sentenced defendant to five years’ nonreporting probation and ordered that defen dant have no contact with the victim, AW, his biological child. Defendant argues that his conviction must be reversed because he could not be convicted of attempting to take his biological child, even though his parental rights to the child had earlier been terminated. We disagree and affirm.
The parties stipulated to the following factual summary:
Beginning on Sunday, January 3rd, 2010, at 6896 Pen-rod, in the City of Detroit, County of Wayne, State of Michigan, the Defendant did assist or aid and abet Ms. La[Q]uanda Wambar [the child’s biological mother] in maliciously, forcibly or fraudulently taking or carrying away [AW]... [and d]id take or carry away or entice away [AW], then age six, with the intent to detain or conceal [AW] from her legal guardian at the time ....
And that that happened between the time of January 3rd, 2010, until they were discovered by police on January 5th, 2010, at 15327 Cheyenne, in the City of Detroit, County of Wayne, State of Michigan. And that [defendant] actively assisted [LaQuanda] in helping [LaQuanda] to do that, to detain the child away from that person.[ ]
Before entering his plea (during which he expressly preserved for appeal the issue we address today), defendant argued for a dismissal of the attempted-taking count on the basis of MCL 750.350(2). MCL 750.350 states:
(1) A person shall not maliciously, forcibly, or fraudulently lead, take, carry away, decoy, or entice away, any child under the age of 14 years, with the intent to detain or conceal the child from the child’s parent or legal guardian, or from the person or persons who have adopted the child, or from any other person having the lawful charge of the child. A person who violates this section is guilty of a felony, punishable by imprisonment for life or any term of years.
(2) An adoptive or natural parent of the child shall not be charged with and convicted for a violation of this section.[ ]
Defendant argued that MCL 750.350(2) precluded his conviction in the present case because “natural parent” means biological parent and encompasses him. The trial court disagreed, stating, in part:
tilt’s just inconceivable the [LJegislature would have wanted to allow for an exemption, if you will, of a person, of a parent being charged with kidnapping once the parental rights have been terminated. Don’t [sic] seem conceivable that the [Legislature would have wanted to protect a parent who no longer, really in the eyes of the law, is a parent. For all intents and purposes, they have no right to be a parent. Those rights have been permanently terminated.
In the present appeal, defendant raises the “natural parent” issue once again. Resolution of this issue involves statutory interpretation, and thus our review is de novo. People v Flick, 487 Mich 1, 8-9; 790 NW2d 295 (2010).
The overriding goal of statutory interpretation is to ascertain and give effect to the Legislature’s intent. The touchstone of legislative intent is the statute’s language. The words of a statute provide the most reliable indicator of the Legislature’s intent and should be interpreted on the basis of their ordinary meaning and the overall context in which they are used. An undefined statutory word or phrase must be accorded its plain and ordinary meaning, unless the undefined word or phrase is a term of art with a unique legal meaning. When we interpret the Michigan Penal Code, we do so according to the fair import of [the] terms, to promote justice and to effect the objects of the law. [Id. at 10-11 (citations and quotation marks omitted).]
Defendant claims that this Court should interpret the term “natural” to be a synonym for biological. The legal and ordinary definitions of the word “natural” do imply a physical link. Random House Webster’s College Dictionary (1997) defines “natural,” in relevant part, as being “related by blood rather than by adoption.” Similarly, Black’s Law Dictionary (9th ed) defines “natural,” in part, as “[o]f or relating to birth,” as in a “natural child as distinguished from [an] adopted child.”
A pertinent question, however, is whether defendant is AW’s “parent” for purposes of the statute in question. According to Black’s, the term “parent” has a specific meaning in the law. See Flick, 487 Mich at 11 (acknowledging that certain terms have a unique legal meaning). Indeed, Black’s Law Dictionary (9th ed) defines the term “parent,” in part, as “[t]he lawful father or mother of someone” (emphasis added). Black’s goes on to state:
In ordinary usage, the term denotes more than responsibility for conception and birth. The term commonly includes (1) either the natural father or the natural mother of a child, (2) either the adoptive father or the adoptive mother of a child, (3) a child’s putative blood parent who has expressly acknowledged paternity, and (4) an indi vidual or agency whose status as guardian has been established by judicial decree. In law, parental status based on any criterion may be terminated by judicial decree. [Emphasis added.]
This explication indicates that a person may cease to be a parent for certain purposes under the law if that person’s status as a parent has been terminated in a legal proceeding. Here, defendant’s status as a parent was indeed terminated in a legal proceeding.
In light of the termination of defendant’s parental rights, the exclusion of defendant as a “natural parent” for purposes of MCL 750.350(2) best “give[s] effect to the Legislature’s intent.” Flick, 487 Mich at 10. The Legislature has authorized the courts to terminate a person’s parental rights in limited situations where the child’s health or safety is at risk. See MCL 712A.19b(3). Once a court terminates parental rights, all efforts to reunite the child with the former parent are discontinued. MCL 712A.19b(5). It would be anomalous for the Legislature to authorize a court to terminate a person’s parental rights but to protect that same person if he or she attempted to take the child away from a person with legal rights to the child.
Other statutes underline the significance of a termination of parental rights. MCL 333.10102(t), dealing with anatomical gifts, explicitly defines the term “parent” as “a parent whose parental rights have not been terminated.” In the context of intestate succession, MCL 700.2114(3) states that “[t]he permanent termination of parental rights of a minor child by an order of a court of competent jurisdiction . . . ends kinship between the parent whose rights are so terminated and the child for purposes of intestate succession by that parent from or through that child.” While it is true that the Legislature could have added an explicit provision to MCL 750.350(2) explaining that the phrase “natural parent” does not encompass a person whose parental rights have been terminated, we nonetheless conclude, in light of the special legal definition of “parent” and in light of the general import of a termination of parental rights, that the exemption in MCL 750.350(2) should be read to exclude a person such as defendant.
Cases from other jurisdictions support this conclusion. In People v Brown, 264 AD2d 12, 13-14; 702 NYS2d 739 (2000), the New York Supreme Court, Appellate Division, concluded that a biological mother whose child had been adopted was not a parent of that child for purposes of a potential defense to a kidnapping charge because a domestic-relations statute stated that adopted children should be treated as the child of the adoptive parents. The court stated that “[t]he statute [providing relatives of the person abducted with a defense to a kidnapping charge] is stretched beyond the limits of its intent if we accept the view that a biological parent, with no legal rights or responsibilities with respect to the child, is entitled to the benefit of the affirmative defense.” Id. at 14. Similarly, in State v Wilhite, 160 Ariz 228, 229-231; 772 P2d 582 (Ariz App, 1989), the Arizona Court of Appeals held that the defendant, the biological father of a kidnapped child, was not a “parent” (and thus subject to lesser penalties) within the meaning of a custodial-interference statute because his parental rights had been terminated and the child had been adopted by the defendant’s brother.
Defendant cites People v Fields, 101 Mich App 287; 300 NW2d 548 (1980), in support of his argument on appeal. Fields, however, is largely inapposite because it dealt with a prior version of MCL 750.350 and with a parent whose parental rights had not been terminated. The case does provide some tangential guidance in the present situation, but this guidance does not weigh in defendant’s favor. The statute at issue in Fields read:
Any person who shall maliciously, forcibly or fraudulently lead, take or carry away, or decoy or entice away, any child under the age of 14 years, with intent to detain or conceal such child from its parent or guardian, or from the person or persons who have lawfully adopted said child or from any other person having the lawful charge of said child, shall be guilty of a felony, punishable by imprisonment in the state prison for life or any term of years. In case such child shall have been adopted by a person or persons other than its parents, in accordance with the statute providing for such adoption, then this section shall apply as well to such taking, carrying, decoying, or enticing away of such child, by its father or mother, as by any other person. [See MCL 750.350 before its amendment by 1983 PA 138.]
The children at issue in Fields had been made temporary-court wards, and the biological parents took the children from a social worker as she was returning them to their temporary placements. Fields, 101 Mich App at 289-290. The prosecution argued that the defendant, the biological mother, could be prosecuted under the statute in question, but the Court of Appeals concluded that she could not, in light of “the specific reference to the conduct of natural parents in the context of adopted children....” Id. at 290-291 (emphasis added). Significantly, the Court then added the following commentary:
If the statute’s application should be expanded to cover the taking of children by natural parents in other than the adoption setting, such expansion should reasonably include only those cases where parental rights have been similarly severed.
... There is a crucial difference between a parent who has temporarily lost custody of a child and one who has permanently lost parental rights. A parent whose rights remain undecided at the time of the taking may not have any right to custody, but we are of the opinion that temporary loss of physical possession of the child is not the proper basis for decision. If application of the statute is to extend beyond parental taking of an adopted child, such taking following permanent loss of parental rights or custody is most closely akin to the conduct actually prohibited by the language. [Id. at 292.]
Given the outdated statute at issue, Fields provides no binding law for use in the present case, but the Court’s commentary nonetheless does mesh with the principles we espouse today, in that the Court recognized the special significance of a permanent loss of parental rights.
We conclude that defendant did not fit within the definition of “natural parent” in MCL 750.350(2). Thus, his conviction was proper and the trial court did not erroneously deprive him of presenting a defense.
Affirmed.
Fitzgerald, J., concurred with Meter, EJ.
Defendant had also been charged with four counts of first-degree criminal sexual conduct, MCL 750.520b(l)(a) (victim under 13 years old), five counts of second-degree criminal sexual conduct, MCL 750.520c(l)(a) (victim under 13 years old), engaging a child in sexually abusive activity, MCL 750.145c(2), and custodial interference, MCL 750.350a. The prosecution dropped the criminal-sexual-conduct and sexually-abusive-activity charges. The trial court dismissed the custodial-interference charge.
Defendant’s rights, as well as the mother’s rights, were terminated after an incident during which the young child ingested cocaine.
In connection with the incident, LaQuanda pleaded guilty to a charge of attempted unlawful taking of a child, and it does not appear that she has appealed her conviction.
Instead of being charged under MCL 750.350, adoptive or natural parents may be charged under the parental-kidnapping statute, MCL 750.350a.
However, we acknowledge the point touched on in the concurring opinion — the phrase “natural parent” is not always defined under the law as referring to a parent who biologically produced a child, because of specific rules relating to children born during wedlock. See, generally, Pecoraro v Rostagno-Wallat, 291 Mich App 303, 312-314; 805 NW2d 226 (2011).
MCL 750.350a allows for a conviction if an adoptive or natural parent takes a child with the intent to keep the child from any other parent or guardian exercising custody or parenting-time rights. However, the potential punishment under MCL 750.350a is much less than under MCL 750.350.
The Court concluded that the “more general” prohibition of the first sentence of the statute did not apply to the defendant because of her parental status and that any possible prosecution would be under the more specific second sentence. Id. The Court then found that prosecution was not possible under the second sentence in light of the temporary nature of the wardship. Id. at 292.
Defendant contends that whether the phrase “natural parent” applied to him should have been a jury question. This contention is meritless. Indeed, the issue in the present case was one of law for the court to decide. See, generally, People v Gayheart, 285 Mich App 202, 211; 776 NW2d 330 (2009). Finally, we note that nothing in this opinion should be read as impacting the Michigan Supreme Court’s decision in In re Beck, 488 Mich 6, 8,16; 793 NW2d 562 (2010), that parental rights and parental obligations are separate and that a child-support obligation may remain in effect even after parental rights are terminated. | [
-3,
-17,
-73,
7,
-10,
7,
-37,
6,
-22,
9,
-2,
-14,
-11,
34,
28,
-23,
1,
17,
-18,
-4,
37,
46,
6,
39,
24,
-44,
74,
5,
25,
-13,
-34,
-26,
32,
-55,
40,
-14,
65,
-25,
69,
22,
-7,
-15,
36,
28,
-48,
-28,
-13,
56,
-11,
-23,
42,
-6,
-9,
-8,
16,
31,
60,
-27,
1,
57,
-47,
23,
12,
1,
16,
-28,
-41,
20,
-38,
-37,
35,
0,
-48,
25,
16,
17,
0,
-12,
54,
66,
-8,
25,
23,
-53,
47,
0,
0,
-3,
-46,
2,
3,
35,
-56,
-67,
-11,
33,
10,
-36,
5,
-53,
1,
-1,
17,
23,
-8,
47,
-8,
4,
0,
27,
-1,
-16,
-27,
-17,
9,
-15,
14,
18,
-5,
8,
29,
14,
20,
62,
49,
-47,
18,
-38,
22,
-11,
-41,
12,
30,
-37,
13,
42,
-7,
4,
29,
5,
-28,
-17,
45,
-15,
0,
1,
-6,
-1,
26,
-11,
-29,
11,
-10,
38,
31,
45,
6,
-17,
-18,
10,
-5,
24,
-14,
-12,
-15,
-73,
-9,
37,
0,
-18,
21,
-32,
7,
28,
5,
-25,
-45,
14,
-18,
-17,
-10,
21,
29,
-4,
-1,
-11,
39,
-25,
-62,
-41,
-24,
30,
5,
39,
4,
54,
32,
11,
-32,
-7,
-52,
-12,
23,
39,
-27,
-79,
-15,
-33,
12,
-52,
-11,
64,
10,
-43,
-11,
-30,
0,
14,
-23,
43,
-23,
-56,
33,
-5,
-14,
-13,
-6,
28,
-38,
-5,
40,
23,
16,
-28,
-36,
38,
-34,
-10,
41,
24,
25,
7,
12,
-24,
16,
53,
26,
-7,
3,
30,
12,
-8,
4,
2,
-30,
-14,
-1,
-34,
-4,
9,
-22,
0,
-30,
13,
2,
49,
10,
35,
-49,
-78,
41,
-33,
4,
18,
-59,
-39,
-33,
37,
7,
7,
-5,
19,
12,
28,
-10,
-11,
-28,
23,
84,
19,
-6,
16,
0,
-24,
32,
-16,
16,
-26,
-47,
22,
12,
16,
-13,
7,
-15,
-29,
37,
35,
-27,
7,
36,
7,
-48,
35,
18,
-45,
-2,
-19,
27,
-7,
-17,
-6,
-8,
3,
-37,
-40,
65,
-1,
3,
-1,
6,
31,
-7,
6,
-27,
40,
36,
-11,
12,
-5,
-15,
12,
34,
29,
21,
-38,
7,
16,
6,
-4,
-24,
-10,
71,
-28,
-43,
-4,
-50,
-81,
-16,
19,
30,
-33,
-18,
-9,
19,
-9,
24,
5,
9,
7,
-9,
-73,
-11,
26,
4,
12,
-5,
7,
-2,
14,
-10,
-64,
-6,
24,
20,
-21,
-36,
-1,
27,
17,
-28,
-15,
3,
-33,
15,
-71,
35,
12,
51,
-51,
19,
11,
33,
51,
1,
-9,
-15,
60,
13,
-42,
-27,
56,
54,
19,
-51,
-6,
16,
-33,
10,
-10,
7,
35,
24,
-57,
-6,
1,
8,
-11,
13,
-60,
50,
34,
10,
-31,
30,
35,
10,
2,
16,
-30,
-15,
-16,
-11,
6,
33,
-19,
-60,
-46,
-31,
-17,
1,
48,
4,
-56,
-16,
20,
-16,
29,
-21,
-44,
0,
-24,
-2,
10,
-6,
-56,
-28,
-6,
32,
19,
2,
-6,
-33,
-7,
13,
42,
13,
32,
-10,
5,
-18,
-48,
-8,
-14,
21,
-2,
-29,
-30,
27,
11,
24,
-2,
11,
89,
-1,
-23,
-11,
7,
11,
0,
-8,
2,
33,
60,
49,
-48,
24,
-14,
-8,
-9,
25,
50,
-29,
-37,
-57,
-22,
19,
13,
20,
10,
18,
-9,
13,
-6,
-12,
1,
-27,
-55,
-92,
29,
39,
-55,
-5,
-16,
23,
6,
-22,
9,
-15,
19,
0,
11,
-34,
14,
-5,
-7,
15,
-18,
11,
-47,
-11,
-8,
-6,
2,
29,
12,
-16,
-2,
-13,
-39,
-22,
8,
41,
-18,
-22,
-18,
-21,
-32,
21,
13,
17,
52,
6,
8,
0,
65,
66,
-13,
-23,
8,
43,
46,
0,
-6,
-26,
-6,
-14,
-22,
26,
-21,
-29,
-40,
-1,
-22,
27,
9,
-21,
-43,
-9,
20,
0,
36,
-3,
17,
31,
-51,
-39,
-16,
-12,
-31,
23,
10,
-35,
-15,
-14,
-7,
0,
-10,
-43,
67,
-18,
-30,
-17,
24,
-36,
-49,
-30,
-45,
16,
9,
-16,
29,
12,
28,
7,
-27,
-8,
28,
0,
-48,
31,
57,
-50,
4,
23,
14,
24,
-7,
10,
6,
-31,
12,
2,
-5,
-14,
12,
-16,
-10,
31,
21,
11,
18,
-15,
-10,
29,
-4,
18,
24,
25,
20,
-43,
30,
-44,
14,
-30,
6,
-18,
25,
28,
9,
-45,
-45,
3,
-33,
4,
15,
-46,
3,
-3,
46,
-3,
11,
52,
-7,
-11,
-37,
13,
49,
18,
15,
-19,
17,
27,
-11,
-26,
6,
29,
-11,
15,
-8,
4,
60,
27,
-3,
-39,
14,
-42,
-28,
-26,
-14,
-54,
1,
21,
8,
63,
14,
-4,
-19,
31,
-17,
18,
-17,
47,
23,
-7,
-4,
-9,
-3,
7,
35,
-20,
20,
-31,
-60,
2,
-14,
45,
-23,
25,
1,
54,
-21,
25,
66,
-43,
12,
50,
-8,
-70,
-12,
0,
8,
47,
12,
9,
-7,
-59,
-34,
62,
-39,
-48,
-33,
25,
38,
-38,
23,
-44,
20,
-11,
-53,
-1,
46,
-5,
-3,
-10,
4,
-12,
-1,
20,
5,
29,
17,
-49,
43,
75,
45,
-26,
-28,
52,
-18,
30,
-44,
-16,
-22,
-34,
3,
-9,
12,
-11,
0,
23,
49,
-38,
2,
-1,
-15,
-6,
-12,
-4,
-32,
80,
19,
-31,
-50,
-44,
19,
25,
1,
9,
-28,
-7,
42,
45,
16,
-39,
-20,
7,
5,
41,
-19,
-17,
-74,
-6,
-33,
49,
53,
8,
-47,
33,
-37,
25,
-62,
-80,
26,
39,
-4,
-33,
48,
24,
7,
-16,
41,
-15,
1,
24,
28,
10,
-44,
-33,
0,
-45,
-99,
-29,
49,
-2,
4,
-1,
-4,
-44,
13,
57,
-14,
45,
-17,
7,
-34,
-42,
-71,
-20,
-13,
-8,
41,
4,
16,
-36,
9,
4,
8,
-18,
-58,
41,
-11,
-51,
3,
-13,
-48,
-8,
-9,
-44,
-21,
0,
-25,
1,
34,
5,
-22,
-66,
-12,
23,
-58,
-2,
26,
27,
-12,
6,
-26,
-29,
40,
-39,
7,
0,
10,
-62,
-53,
23,
-22,
43,
-26,
72,
13,
-56,
9,
-40,
11,
-21,
65,
-18,
6,
-44,
0,
14,
-36,
7,
26,
6,
55,
14,
-1,
-42,
39,
17,
40,
-4,
64,
1,
9,
11,
-16,
26,
4,
-10,
-38,
-3,
-14,
-24,
-30,
16,
-24,
-38,
-27,
-37,
16,
-23,
13,
31,
0,
15,
13,
-74,
-42,
22,
-54,
55,
-27,
39,
17,
-1,
-20,
11,
-2,
11,
54,
-20,
13,
-8,
14,
-1,
-18,
-16,
-3,
43,
19,
-16,
27,
2,
-21,
-16,
88,
-4,
66,
-7,
-2,
-1,
33
] |
ON REMAND
Before: Jansen, P.J., and Hood and Wilder, JJ.
Wilder, J.
In this products liability case, we previously reversed a jury verdict of no cause of action and remanded for a new trial. In lieu of granting leave to appeal, the Supreme Court vacated footnote 2 of our previous opinion and remanded to us so that we could consider “defendant’s argument that the judgment in its favor should be affirmed because it was entitled to a directed verdict.” Cacevic v Simpl[i]matic Engineering Co, 463 Mich 997 (2001). After considering this issue, we again reverse and remand for a new trial.
I. FACTS AND PROCEEDINGS
As stated in our previous opinion:
Plaintiff Lena Cacevic worked as a pailetizer operator at Johnson Controls’ Novi plant. While working the night shift on September 3, 1993, Lena sustained serious injuries to her right hand and arm when she reached inside the pailetizer[ ] machine to free a pallet that became stuck in the elevator component of the machine. Lena tried to clear the jam by inserting her right hand and arm under a mesh guard into the pallet infeed opening to reach for the empty pallet and remove it from the machine. As Lena did this, the elevator raised the pallet, striking her hand and arm.
Plaintiffs filed the instant action against defendant Simplimatic Engineering Company, the manufacturer of the palletizer machine, alleging that defendant negligently designed and manufactured the palletizer by failing to include adequate and proper safeguards, provide adequate and proper instructions, devices, or methods to operate the machine, and provide adequate and proper warning of both the inherently dangerous areas of the machine and the dangers in operating the machine. [Cacevic v Simplimatic Engineering Co, 241 Mich App 717, 718-719; 617 NW2d 386 (2000).]
While not mentioned in our previous opinion, we note that during plaintiffs’ case in chief, Evido Edwards was called to testify. He testified that on the evening of Lena’s injury, he was temporarily operating the palletizer for Lena while she was taking a break. During this time, the machine jammed. Edwards also testified that he observed Lena returning from her break and asked her to help him fix the problem. According to Edwards, he asked Lena to walk around to the back of the machine and push the empty pallet further into the elevator shaft so the elevator would take the pallet up and he could continue putting bottles on it. Edwards then testified that as soon as Lena reached inside the machine she dropped to her knees, at which time he ran over and observed a gash across the top of Lena’s right arm and called management to the scene. Thereafter, Lena was transported to the hospital.
Lena testified that she had been trained on the palletizer within her first few days of employment and that even though she felt it was the most difficult job in the plant, by the time her ninety-day probationary period had ended, she was able to successfully operate the machine. She also testified that she had not been given any instructions or training on lockout procedures for the machine, nor had she been given an operator or maintenance manual to review. According to Lena, the only way she knew to turn off the machine was by pressing the green stop button, but that every time she used that button to shut off the machine, the line leader would yell at her and instruct her not to turn off the machine. In addition, Lena admitted that during the course of her training she had been advised to turn off the machine before entering the elevator shaft, but also testified that, despite this advice, the management at Johnson Controls discouraged turning off equipment to clear jams because this would back up the production line. She also testified that she had observed her supervisor and other employees reach inside the palletizer to clear jams and that, as far as she was aware, this was the only method of remedying a jam. Further, Lena testified that that there was no warning label instructing her not to enter the elevator shaft.
Plaintiffs also called Linda Long, Dr. Robert Cunitz, and Paul Glasgow to testify regarding the design and safety features of the palletizer.
Long, a safety officer with the Department of Consumer and Industry Services testified that she conducted an investigation of the accident and, as a result of this investigation, she opined that the protective device, placed in front of the elevator opening, was inadequate to guard the area in which Lena placed her arm. In fact, according to Long, she believed that because of the size of the guard, instead of serving as protection, it actually created a hazardous condition. Long also testified that her investigation revealed that there was a workable, usable lockout device on the palletizer at the time of Lena’s injury but that only the maintenance people, and not the machine operators, were instructed on how to use the lockout. Long further testified that because it was common for conveying systems to finish the last stroke of production by the machine’s residual pressure, simply pressing the emergency stop button on the palletizer would not remove all the hazards associated with the machine. Finally, Long testified that the warning labels placed on the palletizer merely warned of potential hazards without removing any dangers and thus did not protect operators of the machine.
In addition, Dr. Cunitz, a human factor psychologist, testified that after reviewing all the relevant testimony, documents, and exhibits in this case, he believed the palletizer machine, as designed by defendant, was unreasonably dangerous and defective and that such dangers and defects were a substantial cause of Lena’s injuries. Specifically, Dr. Cunitz testified that the palletizer could not clear its own jams or pick up fallen bottles and that the human operator had to perform these tasks, a fact reasonably foreseeable to the manufacturer at the time the machine was designed. Because the human operator had to clear jams and remove fallen bottles, it was necessary for the operator to be exposed to a “pinch-point hazard” during the normal use of the machine. Dr. Cunitz described this pinch-point hazard as the approximate six-inch opening above the wooden pallet that “closes rapidly as the hoist raises the pallet up.” Dr. Cunitz testified that it was reasonably foreseeable that because the pinch point was essentially unguarded and easily reachable by somebody trying to clear a jam or retrieve a fallen bottle, the machine was unreasonably dangerous. He also testified that the warning label on the machine was inadequate and that, because of the potential for permanent injury or death associated with the machine, there should have been a “danger” sign.
Dr. Cunitz also opined that Lena’s conduct in assisting Edwards on the night in question was reasonable and that her actions of reaching inside the machine to clear a pallet jam was foreseeable to the manufacturer at the time the machine was designed and manufactured. Specifically, Dr. Cunitz testified that the existence of the small mesh guard placed in front of the pinch point established that defendant was cognizant of the danger associated with the pinch point. With respect to this guard, Dr. Cunitz testified that because of its size it was inadequate protection, noting that an employee could easily reach around the guard. Instead, Dr. Cunitz testified that the Plexiglass guard that had been placed on the machine after Lena’s injury was in a much better position to protect the operators and would have, in his opinion, prevented Lena’s injuries.
Glasgow, a safety and design engineer, as well as president and chief operating officer of Glasgow Products, Inc., also corroborated the testimony of Long and Dr. Cunitz. He testified that the mesh guard provided by defendant was “totally inadequate” because it did not conform to the safe distance aspect of guarding, meaning that the guard was not positioned in such a way that it would prevent a person from placing a hand through the opening into the hazardous area of the palletizer. On the basis of his examination of the equipment, Glasgow testified that because there was no adequate, protective guarding in place when Lena’s accident occurred, the palletizer did not conform to the American National Standards Institute Committee (ansi) standards for guarding that existed at the time the palletizer was designed and that defendant did not use reasonable and diligent care to eliminate a reasonably foreseeable risk of harm (i.e., injuring a hand while trying to clear a jam). He also noted during his testimony that at the time of his investigation, the original mesh guard had been replaced with a Plexiglass guard with an interlock switch, so that, if the guard was opened, the palletizer would automatically stop operating. According to Glasgow, the interlock switch was a standard design procedure used in most machinery to prevent injuries from foreseeable dangerous conditions and that this procedure had been known and used long before the palletizer was designed and manufactured by defendant. Hence, he concluded that the palletizer was negligently designed and manufactured.
Plaintiffs also called Paul Smith, defendant’s manager of machinery engineering. He testified that he had observed the Plexiglass guard installed after Lena’s injury and admitted that it was both economically and technically feasible to install this guard on the palletizer at the time of design and manufacture. Specifically, he indicated that the Plexiglass guard could have been installed on the machine for a cost of less than $1,000 and that the palletizer sold for $64,000.
At the close of plaintiffs’ case, defendant moved for a directed verdict, arguing that plaintiffs had not shown that the design of the machine was the proximate cause of Lena’s injuries and therefore plaintiffs failed to establish a prima facie case of design defect liability. Alternatively, defendant argued that the open and obvious danger rule proscribes plaintiffs from recovering in the instant case. In denying defendant’s motion based on these two issues, the trial court stated:
I’m going to find that looking at the evidence in a light most favorable to the Plaintiff having to do with the lack of proximate cause issue that — and the evidence in the light favorable to the Plaintiff, I’ll deny that portion of your motion.
On the open and obvious argument, also for the same reason, I’ll deny that.
Defendant also sought a directed verdict on the basis of plaintiffs’ inability to establish an unreasonable risk associated with the palletizer. Again, the trial court denied the motion on this ground because it found that, viewing the evidence in the light most favorable to the plaintiffs, there was evidence presented sufficient to allow a jury to find that the risk associated with the palletizer was unreasonable.
h. STANDARD OP REVIEW
This Court reviews de novo the grant or denial of a directed verdict. Meagher v Wayne State Univ, 222 Mich App 700, 708; 565 NW2d 401 (1997). In reviewing the trial court’s decision, we view the evidence presented up to the time of the motion in the light most favorable to the nonmoving party, granting that party every reasonable inference, and resolving any conflict in the evidence in that party’s favor to decide whether a question of fact existed. Thomas v McGinnis, 239 Mich App 636, 643-644; 609 NW2d 222 (2000). A directed verdict is appropriately granted only when no factual questions exist on which reasonable jurors could differ. Meagher, supra at 708. If reasonable jurors could reach conclusions different than this Court, then this Court’s judgment should not be substituted for the judgment of the jury. Wickens v Oakwood Healthcare System, 242 Mich App 385, 389; 619 NW2d 7 (2000).
ni. ANALYSIS
“A manufacturer has a duty to ‘ehminate any unreasonable risk of foreseeable injury.’ ” Bazinau v Mackinac Island Carriage Tours, 233 Mich App 743, 757; 593 NW2d 219 (1999), quoting Prentis v Yale Mfg Co, 421 Mich 670, 693; 365 NW2d 176 (1984). See also Mallard v Hoffinger Industries, Inc (On Remand), 222 Mich App 137, 141; 564 NW2d 74 (1997), and Ghrist v Chrysler Corp, 451 Mich 242, 248; 547 NW2d 272 (1996). In addition,
“[a] prima facie case of a design defect premised upon the omission of a safety device requires first a showing of the magnitude of foreseeable risks, including the likelihood of occurrence of the type of accident precipitating the need for the safety device and the severity of injuries sustainable from such an accident. It secondly requires a showing of alternative safety devices and whether those devices would have been effective as a reasonable means of minimizing the foreseeable risk of danger. This latter showing may entail an evaluation of the alternative design in terms of its additional utility as a safety measure and its trade-offs against the costs and effective use of the product.” [Bazinau, supra at 757-758, quoting Reeves v Cincinnati, Inc, 176 Mich App 181, 187-188; 439 NW2d 326 (1989) (emphasis added in Bazinau).]
See also Prentis, supra at 687, n 24; Owens v Allis-Chalmers Corp, 414 Mich 413, 418; 326 NW2d 372 (1982).
In the instant case, we note that Dr. Cunitz testified that the palletizer, as designed, was unable to clear its own jams or pick up fallen bottles and that therefore it was the responsibility of the operator to complete these tasks. He also testified that because an operator would have to place hands in the machine in order to clear a jam — coming into contact with the “pinch-point” hazard — it was reasonably foreseeable that somebody trying to clear a jam or retrieve a fallen bottle could potentially suffer a permanent injury or death. Further, Dr. Cunitz testified that because defendant had placed a mesh guard on the machine, albeit an ineffective one, defendant was cognizant of the magnitude of this risk. Glascow’s testimony corroborated that of Dr. Cunitz, because Glasgow testified, among other things, that the mesh guard was “totally inadequate,” that the palletizer violated ANSI standards, and that defendant did not use reasonable and diligent care to eliminate a reasonably foreseeable risk of harm» Similarly, Long testified with regard to the inadequacy of the guard designed by defendant. Viewing this testimony in the light most favorable to the plaintiffs, Thomas, supra, it is apparent that reasonable jurors could have determined that defendant was aware of the magnitude of foreseeable risks associated with the palletizer. Wickens, supra; Bazinau, supra.
Additionally, Dr. Cunitz testified that an alternative Plexiglass guard had been installed on the palletizer after Lena’s injuiy and that this guard would have prevented Lena’s injuries. This, coupled with Glasgow’s testimony that an interlock switch had been added to the palletizer, indicated that there were alternative safety devices available to defendant at the time of manufacture that would have effectively prevented Lena’s injury. Further, Smith testified that the Plexiglass guard was both economically and technically feasible at the time of design. This evidence established that an economical, reasonable, alternative safety device was available to defendant at the time it designed and manufactured the palletizer. Therefore, when viewed in the light most favorable to plaintiffs, this evidence was sufficient for a jury to determine that alternative safety devices were available to defendant that would have effectively minimized the risk of injuiy to Lena. Thomas, supra; Bazinau, supra.
Because plaintiffs established the magnitude of foreseeable risks and that the alternative safety device was economically feasible and effective in minimizing the risk of injury, plaintiffs established a prima facie case of design defect. Thus, the trial court correctly denied defendant’s motion for a directed verdict.
IV. CONCLUSION
In sum, we conclude that the trial court correctly denied defendant’s motion for a directed verdict. Because we find that defendant was not entitled to a directed verdict, the jury’s judgment in its favor was not harmless. Therefore, we again find it necessary to reverse the judgment in favor of defendant and remand for a new trial.
Reversed and remanded for further proceedings consistent with this opinion and our previous opinion, Cacevic, supra, 241 Mich App 717. We do not retain jurisdiction.
Cacevic v Simplimatic Engineering Co, 241 Mich App 717, 730-731; 617 NW2d 386 (2000).
In our original opinion, we relied on Beaudrie v Anchor Packing Co, 231 Mich App 242, 254, n 6; 586 NW2d 96 (1998), and Barnell v Taubman Co, Inc, 203 Mich App 110, 123; 512 NW2d 13 (1993), to hold that defendant had not properly preserved for appellate review the trial court’s denial of its motion for a directed verdict; therefore, we declined to consider the claim. However, the Supreme Court indicated that pursuant to Middlebrooks v Wayne Co, 446 Mich 151, 166, n 41; 521 NW2d 774 (1994), defendant was “not required to file a cross-appeal to advance arguments in support of a judgment on appeal that were rejected by the lower court.” Cacevic, supra, 463 Mich 997.
Our previous opinion described the pailetizer mechanism and operation as follows:
The product at issue in this case is a Simplimatic Model 40 palletizer, a large, two-story machine that stacks eight layers of empty, plastic, soft drink bottles on wooden pallets that are wrapped for delivery to major soft drink companies. The pailetizer was originally built by defendant in 1984 and subsequently sold to Hoover Universal in Taylor, Michigan. In 1989, Johnson Controls bought Hoover’s bottling operations and the pailetizer was relocated to Johnson Controls’ Novi Plant.
The pailetizer consists of two levels and four major components: (1) an intake pailetizer dispenser and conveyor, (2) a hoist or elevator, (3) an accumulator bed, and (4) an exit conveyor that releases the ftill pallets. The palletizing process begins with a wooden pallet being automatically placed on an intake conveyor and carried to the elevator shaft where it stops and waits for clearance to enter the elevator. Clearance is determined by photo cells that sense when full pallets exit the elevator and when empty pallets may enter. The empty pallet automatically moves forward into the elevator and is carried up about fifteen feet by hoist chains to the upper level where an accumulator bed gathers the bottles and then sweeps them onto the pallet. As each empty pallet is loaded with bottles into the elevator, another empty pallet enters the intake dispenser and is conveyed to the elevator where photo cells signal the machine to wait for the full pallet to leave the elevator before allowing the empty pallet to enter.
During normal use, the palletizer’s operator stands on a platform at the upper level near the moving accumulator bed where bottles coming down the assembly line are released. When a certain number of bottles have been collected, the operator presses a button to load them all onto an empty pallet that has been carried to the top of the machine by the elevator. As each layer of bottles is loaded, the elevator moves down just enough so that the tops of the bottles are even with the accumulator bed. The operator then places a “tier sheet” on top of the bottles to form a “floor” on which the next layer is placed. The operator repeats this process until there are eight layers of bottles on the pallet. When the pallet is fully loaded, the operator presses another button, lowering the elevator to ground level where the full pallet rests on a set of conveyor chains which slowly move the pallet out the discharge side of the elevator shaft. Once the full pallet is discharged, it is automatically transported to a wrapping area.
Most of the operation of the palletizer is automatic, but there are certain functions that an operator is required to perform to keep the machine running. Generally, an operator is only required at the upper level of the machine; however, on occasion, when a pellet gets jammed in the elevator, the operator or another employee must run down to the lower level to clear the jam before resuming normal operations. The palletizer is equipped with normal “on/off” controls, as well as three emergency stop buttons and a master electrical control panel with a lockable disconnect that completely isolates the machine from the electrical mains. [Cacevic, supra, 241 Mich App 719-721.]
His primary assignment was as a sideall machine operator. A sideall machine forms twenty ounce plastic bottles out of test-tube-shaped mate rial and then sends the bottles through the labeler and up to the palletizer. There is no dispute that Edwards knew how to operate the palletizer.
A human factor psychologist is a specialty area within the field of psychology, concerning itself with human interactions with products. Dr. Cunitz focused his work on safety-related issues in the workplace, i.e., reviewing injuries and deaths associated with the use of various products and assessing how such injuries could be prevented.
The warning label read:
Caution. This machine starts automatically. Must turn off main electrical switch and air supply before performing any work.
Dr. Cunitz also testified that the Plexiglass guard was equipped with an interlock switch.
Smith also testified that the entire system would have sold for about $152,000.
With regard to defendant’s open and obvious danger argument in the trial court, our previous opinion stated that because “we find no legal authority to support defendant’s position that the open and obvious danger doctrine should be extended to cases alleging design defects involving nonsimple products, the doctrine is inapplicable in this case.” Cacevic, supra, 241 Mich App 729. See also id. at 725, 729, n 1. This holding was not disturbed by the Supreme Court’s remand order. Cacevic, supra, 463 Mich 997. Accordingly, we find our previous opinion to be controlling and conclude that because the open and obvious danger doctrine does not apply in design defect cases, Cacevic, supra, 241 Mich App 725, the trial court correctly denied defendant’s directed verdict motion based on the open and obvious danger doctrine. | [
-19,
12,
-10,
13,
36,
-44,
-16,
-52,
-33,
41,
-27,
-15,
2,
-20,
22,
-35,
18,
-2,
-33,
14,
-29,
-3,
5,
-27,
-32,
-56,
-29,
-44,
58,
29,
14,
-1,
31,
-8,
-29,
15,
25,
36,
-24,
-15,
-10,
16,
34,
-46,
-11,
-4,
49,
34,
38,
-14,
42,
29,
5,
-22,
-44,
-14,
23,
46,
-31,
33,
14,
40,
8,
16,
17,
0,
-2,
-16,
-88,
23,
-33,
17,
-25,
-11,
3,
-30,
-58,
34,
-19,
-22,
15,
-1,
-6,
16,
-41,
41,
8,
-11,
-39,
28,
-25,
26,
-85,
-17,
-6,
32,
30,
-32,
-9,
-6,
-1,
15,
36,
16,
-23,
-2,
12,
-23,
-35,
58,
22,
32,
-29,
13,
7,
-9,
45,
-25,
-40,
46,
22,
58,
3,
-42,
4,
-7,
25,
-28,
27,
8,
-26,
46,
-1,
-11,
11,
15,
35,
26,
-26,
-6,
-24,
14,
13,
3,
-12,
12,
-33,
31,
-40,
2,
-2,
41,
-29,
25,
19,
-18,
12,
3,
7,
40,
4,
13,
0,
16,
29,
-18,
25,
-24,
10,
-46,
-5,
-6,
13,
-3,
74,
0,
24,
-28,
-41,
11,
-11,
-7,
-12,
19,
-54,
-14,
26,
9,
4,
31,
-1,
8,
-60,
27,
-34,
-6,
-23,
51,
59,
-11,
42,
-6,
-32,
-85,
20,
29,
-9,
-53,
24,
-59,
-21,
49,
-67,
-64,
-41,
-42,
6,
-20,
28,
29,
0,
-15,
25,
-1,
-55,
2,
5,
-16,
58,
-45,
7,
2,
6,
-10,
48,
-10,
56,
-54,
83,
-31,
84,
11,
-2,
-24,
-15,
-3,
-32,
-37,
-14,
-10,
37,
-23,
-20,
-41,
-3,
-41,
-25,
5,
-15,
-6,
17,
14,
-45,
-1,
38,
60,
0,
28,
-78,
-24,
-25,
-21,
35,
-18,
-77,
-36,
-17,
53,
33,
7,
-34,
2,
-10,
-33,
-15,
-25,
-13,
23,
-9,
-16,
28,
-7,
-9,
2,
16,
13,
43,
-35,
-95,
37,
-66,
-31,
-23,
-42,
35,
56,
-34,
17,
-22,
-35,
-23,
-11,
37,
-9,
0,
-28,
7,
31,
56,
3,
-47,
42,
16,
-39,
-16,
-12,
2,
-33,
37,
35,
0,
18,
2,
20,
0,
4,
23,
63,
5,
28,
-14,
37,
-11,
-56,
-55,
-1,
69,
-13,
36,
-47,
55,
-28,
23,
-28,
11,
0,
-25,
-12,
-14,
52,
35,
-39,
15,
-30,
-12,
-13,
10,
16,
-57,
68,
-57,
-26,
0,
-16,
-2,
8,
-21,
20,
54,
24,
14,
-35,
-23,
-74,
-21,
-11,
-15,
15,
-36,
57,
10,
-51,
16,
5,
-38,
15,
-37,
-30,
7,
-15,
-7,
4,
12,
34,
0,
-19,
-7,
-14,
5,
-12,
33,
25,
7,
48,
-20,
-39,
17,
-18,
-9,
-10,
19,
-60,
-26,
50,
15,
-19,
10,
11,
67,
-26,
-20,
-2,
14,
-57,
14,
35,
-27,
-13,
23,
31,
-95,
-38,
-79,
-37,
24,
-4,
33,
-1,
72,
-7,
0,
24,
28,
-12,
6,
9,
-6,
-3,
-2,
-7,
-32,
-30,
-10,
-13,
19,
-56,
28,
-24,
40,
-43,
30,
-14,
40,
32,
-8,
8,
-6,
54,
-17,
4,
8,
7,
30,
-56,
27,
14,
32,
-19,
51,
-9,
1,
45,
31,
15,
11,
21,
-38,
17,
-32,
-1,
-66,
-70,
2,
-26,
36,
-44,
28,
-23,
-5,
60,
-43,
25,
19,
11,
-12,
-14,
0,
54,
-2,
20,
-34,
-31,
31,
49,
-27,
-21,
-10,
-31,
-8,
12,
38,
-2,
33,
-19,
28,
46,
-19,
-64,
-32,
-15,
-31,
28,
5,
-26,
-30,
-25,
-38,
-1,
0,
54,
29,
46,
11,
59,
0,
-20,
-33,
49,
24,
-14,
22,
26,
21,
50,
35,
5,
-24,
-40,
64,
-3,
0,
0,
10,
74,
2,
27,
0,
50,
-42,
-7,
-30,
47,
29,
-37,
4,
-70,
24,
10,
25,
-20,
-82,
-6,
43,
-10,
21,
13,
-4,
-41,
28,
-23,
-23,
44,
-22,
-18,
-4,
-6,
0,
-21,
-21,
-16,
5,
-18,
4,
-3,
-21,
-10,
-6,
16,
16,
6,
-32,
-1,
-55,
64,
-41,
4,
18,
-30,
-17,
-41,
-35,
38,
-51,
-1,
-36,
31,
30,
-11,
-5,
-40,
-45,
11,
46,
-35,
-57,
-42,
16,
9,
-14,
22,
0,
2,
35,
34,
-10,
6,
18,
13,
14,
-36,
-19,
2,
8,
-14,
-33,
17,
-38,
-39,
-10,
-47,
49,
49,
50,
18,
-26,
-34,
19,
-34,
-53,
23,
-33,
-46,
28,
4,
-3,
43,
18,
45,
5,
-46,
-93,
46,
-3,
41,
-5,
24,
54,
2,
-2,
-46,
-28,
27,
26,
18,
0,
-14,
0,
5,
78,
-29,
-15,
54,
8,
-46,
-1,
28,
-7,
-92,
-7,
-55,
31,
-36,
22,
30,
-7,
36,
-17,
56,
3,
13,
-17,
-32,
-5,
27,
-8,
54,
-2,
4,
-4,
-22,
14,
14,
30,
14,
-31,
28,
-6,
13,
18,
-48,
6,
15,
-21,
-20,
-42,
-6,
47,
-44,
-63,
16,
1,
-34,
-20,
-33,
-26,
28,
31,
-79,
3,
6,
-82,
29,
15,
-14,
0,
35,
30,
-62,
27,
21,
-41,
-51,
41,
-25,
38,
-24,
53,
-20,
-7,
4,
34,
-26,
-14,
6,
15,
-29,
-9,
37,
25,
-12,
11,
-20,
-9,
-31,
9,
-23,
27,
4,
57,
-49,
67,
-11,
6,
30,
29,
41,
-21,
0,
-3,
24,
12,
53,
-29,
-30,
15,
-3,
25,
-45,
15,
30,
20,
-14,
-26,
31,
-29,
15,
52,
-3,
18,
5,
-17,
33,
18,
67,
39,
-37,
-4,
40,
-6,
36,
5,
-9,
11,
33,
14,
-10,
-26,
27,
-19,
32,
3,
-4,
-29,
20,
-15,
-19,
-56,
3,
-19,
37,
31,
9,
46,
26,
-45,
35,
-102,
-45,
36,
28,
4,
-4,
3,
22,
15,
-21,
-21,
-25,
-40,
-25,
9,
52,
51,
14,
-31,
-11,
31,
2,
0,
-61,
27,
49,
4,
16,
32,
-19,
-28,
-9,
-35,
-2,
-19,
-9,
31,
-24,
10,
6,
-10,
48,
-9,
-1,
-53,
-2,
43,
-6,
12,
56,
-2,
-27,
12,
43,
28,
-18,
79,
-2,
11,
-24,
-23,
-55,
-60,
-38,
-13,
16,
-2,
12,
-43,
-73,
29,
12,
-8,
23,
-10,
-44,
3,
-10,
15,
-16,
35,
5,
-11,
19,
0,
3,
25,
60,
-8,
-8,
-28,
-23,
-30,
-30,
12,
-30,
33,
-28,
-16,
25,
12,
-11,
2,
48,
-15,
-48,
14,
-23,
-8,
-71,
-27,
-16,
-26,
-16,
-25,
0,
28,
37,
-63,
-1,
-61,
-14,
28,
17,
59,
14,
32,
11,
17,
56,
15,
4,
-35,
84,
23,
24,
15,
5,
30,
-4,
-27,
-57,
-37,
0,
18,
45,
40,
-45
] |
ON REMAND
Before: Saad, P.J., and Jansen and Talbot, JJ.
Per Curiam.
Our Supreme Court has reversed in part our prior judgment in this matter and remanded this case to our Court with instructions to determine whether MCL 600.2169(1) applies under the facts and, if so, to consider the effect of our Supreme Court’s decision in McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999). 465 Mich 885 (2001). The facts and issues are set out in our previous decision, Greathouse v Rhodes, 242 Mich App 221; 618 NW2d 106 (2000).
In its order remanding this case, our Supreme Court reversed our holding that the trial court properly denied plaintiff’s motion to strike Dr. Charles Rhodes’ standard of care witnesses under MCL 600.2169(l)(a) because plaintiff failed to file her motion within a reasonable time after learning the identities of the experts. Greathouse, supra at 231. Because plaintiff did not forfeit her right to challenge Dr. Rhodes’ witnesses on the basis of the time of her challenge, we now consider the trial court’s ruling regarding the application of MCL 600.2169(l)(a).
We hold that this case implicates § 2169 because plaintiff challenges the qualifications of Dr. Rhodes’ “standard of care” witnesses because they are not board certified in the same specialty. Though the trial court initially granted plaintiff’s motion on the basis of § 2169, it ultimately denied plaintiff’s motion to strike because “it was compelled to adhere to the McDougall [v Eliuk, 218 Mich App 501; 554 NW2d 56 (1996)] holding that § 2169 was unconstitutional . . . .” Greathouse, supra at 226. As we observed in our prior opinion, “our Supreme Court reversed McDougall and concluded that § 2169 is ‘an enactment of substantive law’ and ‘[a]s such does not impermissibly infringe this Court’s constitutional rule-making authority.’ ” Greathouse, supra at 228, quoting McDougall v Schanz, supra, at 37. Therefore, we ruled that the basis for the trial court’s decision was erroneous. Greathouse, supra at 228.
Accordingly, we reverse the trial court’s order denying on the basis of the alleged unconstitutionality of § 2169 plaintiff’s motion to strike, and we remand for consideration of plaintiff’s motion under the statute. Specifically, the trial court should determine the merits of plaintiff’s motion in which she argued that Dr. Rhodes’ “standard of care” witnesses do not comply with § 2169 because Dr. Rhodes is a board-certified general surgeon and the proposed witnesses are not; one witness is an internal medicine specialist, and the other two are board-certified family practitioners. Further, the trial court should consider Dr. Rhodes’ argument that § 2169 does not preclude his witnesses because he does not practice general surgery regularly and did not practice general surgery on the decedent, Robert Greathouse.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. | [
26,
-42,
-16,
-17,
-23,
-18,
-8,
8,
-43,
56,
-11,
2,
58,
9,
47,
-6,
0,
45,
28,
-24,
-6,
13,
-71,
59,
2,
-18,
12,
-27,
37,
23,
-30,
18,
60,
-34,
-40,
-49,
16,
27,
10,
1,
37,
8,
8,
-28,
-41,
-14,
-12,
20,
6,
-8,
8,
45,
-48,
60,
12,
48,
-48,
-12,
-38,
39,
-3,
9,
35,
6,
12,
-14,
18,
10,
-49,
-21,
-11,
12,
24,
-4,
3,
16,
-17,
-21,
0,
20,
11,
-35,
10,
16,
17,
42,
11,
-11,
21,
10,
9,
-16,
-53,
-84,
-22,
35,
25,
-38,
83,
33,
-13,
9,
-20,
-23,
-46,
-5,
-17,
-14,
27,
0,
32,
6,
-41,
-60,
32,
-10,
45,
67,
-23,
13,
26,
51,
21,
-9,
2,
24,
36,
22,
20,
-10,
25,
17,
-9,
-4,
25,
-3,
10,
-12,
0,
-9,
-34,
36,
-10,
7,
-19,
-17,
-12,
-18,
-37,
-52,
-24,
15,
-21,
14,
24,
3,
30,
-3,
-14,
3,
6,
36,
11,
36,
-2,
22,
38,
-10,
4,
-13,
32,
-28,
22,
-3,
22,
-28,
24,
-2,
-30,
4,
-35,
22,
14,
-33,
-19,
-8,
-28,
-19,
-32,
14,
-42,
1,
30,
25,
31,
5,
-40,
12,
-30,
7,
-3,
41,
-3,
27,
8,
38,
49,
-83,
-8,
-14,
-36,
11,
-48,
-39,
0,
-26,
-3,
-14,
-61,
-16,
-33,
0,
41,
18,
-28,
-30,
20,
-11,
25,
-63,
-44,
38,
-20,
3,
3,
17,
-26,
19,
64,
18,
-10,
-16,
12,
-29,
26,
1,
-12,
-5,
37,
-20,
36,
-13,
43,
-30,
-17,
-3,
-19,
68,
-48,
-18,
11,
23,
-55,
9,
0,
59,
-15,
13,
63,
5,
-3,
-27,
21,
-4,
-22,
-43,
-29,
-3,
36,
7,
-28,
55,
-32,
19,
-5,
-8,
1,
19,
20,
22,
24,
-4,
-47,
8,
40,
-30,
15,
-33,
-43,
27,
17,
13,
-6,
5,
-3,
-10,
-18,
10,
4,
-16,
35,
4,
2,
-14,
2,
-11,
-42,
30,
16,
-50,
-72,
3,
-2,
-24,
-5,
0,
28,
-85,
18,
-8,
19,
5,
12,
-3,
27,
17,
36,
21,
14,
15,
-10,
-16,
-23,
-44,
-6,
19,
-1,
-11,
-1,
-16,
17,
9,
15,
16,
-12,
-2,
-41,
-54,
-21,
15,
-14,
-9,
-24,
18,
-23,
-30,
43,
10,
-7,
51,
28,
-47,
28,
-8,
-35,
15,
-13,
-18,
-5,
34,
-23,
-1,
-7,
-14,
17,
-28,
-80,
-7,
55,
-8,
-5,
-61,
4,
23,
-46,
49,
-30,
-11,
45,
13,
-25,
3,
9,
16,
0,
-7,
4,
-74,
-9,
39,
-2,
44,
-17,
44,
6,
-20,
-4,
-35,
-35,
-58,
-15,
-45,
-22,
-7,
-4,
-36,
-74,
-28,
-24,
-70,
-44,
-13,
9,
6,
1,
0,
-17,
11,
22,
25,
-74,
-47,
-49,
-1,
20,
27,
12,
-26,
-21,
-33,
-7,
18,
34,
-11,
-84,
-3,
-25,
3,
2,
-6,
-14,
-18,
-2,
21,
5,
10,
-26,
8,
34,
-29,
51,
-14,
41,
34,
-3,
3,
-30,
61,
-55,
-14,
-6,
16,
-9,
-37,
-21,
5,
-32,
-9,
20,
-40,
5,
10,
-24,
62,
-33,
0,
-35,
-21,
-21,
-2,
24,
-24,
-19,
-4,
43,
-66,
11,
-11,
12,
42,
13,
-21,
18,
53,
-21,
-57,
18,
-11,
0,
-5,
15,
-16,
15,
-19,
-19,
25,
-44,
-4,
-11,
21,
25,
12,
12,
70,
-6,
-19,
13,
17,
35,
-24,
-19,
14,
-21,
-10,
39,
-63,
-28,
-9,
-9,
-33,
0,
-24,
-14,
7,
16,
-44,
20,
74,
-35,
-1,
-8,
41,
26,
45,
24,
-2,
-23,
-26,
46,
-8,
45,
37,
-24,
41,
-14,
-6,
28,
55,
-63,
2,
0,
46,
24,
0,
-58,
-43,
30,
-55,
-14,
-9,
-53,
-7,
11,
-7,
-25,
0,
37,
-36,
21,
35,
5,
-17,
-2,
15,
-28,
-11,
46,
-11,
46,
-37,
7,
28,
-60,
-2,
-38,
6,
-22,
36,
-22,
75,
-62,
44,
-9,
-1,
-8,
14,
-41,
16,
32,
-8,
26,
5,
-32,
-24,
-37,
15,
-50,
2,
3,
-30,
-24,
39,
31,
-23,
-14,
-47,
56,
-6,
-37,
22,
0,
98,
-4,
32,
-36,
15,
39,
-5,
23,
2,
27,
-1,
-29,
-30,
-5,
20,
7,
18,
21,
17,
55,
66,
45,
29,
76,
-49,
18,
12,
18,
13,
-46,
-3,
-1,
-5,
21,
33,
-15,
7,
11,
-23,
-4,
51,
-1,
-37,
12,
-31,
8,
53,
10,
3,
6,
59,
-28,
4,
-43,
-16,
-27,
-8,
50,
-46,
-1,
15,
-31,
-39,
28,
52,
-31,
-27,
33,
-17,
48,
41,
-16,
52,
-2,
1,
-2,
22,
0,
-55,
-16,
-5,
27,
7,
-18,
4,
24,
29,
-63,
8,
4,
38,
18,
3,
-10,
-11,
-29,
-9,
-26,
18,
8,
22,
-49,
-26,
-37,
66,
1,
-52,
9,
8,
-20,
19,
-34,
-14,
-22,
12,
3,
-12,
-70,
18,
13,
-32,
21,
-10,
-27,
10,
10,
-40,
-23,
-4,
-25,
-29,
-7,
14,
-44,
-51,
4,
15,
-53,
9,
23,
-26,
-12,
-10,
63,
26,
28,
-11,
13,
-26,
22,
24,
17,
-30,
-17,
33,
-9,
6,
22,
0,
4,
-1,
14,
22,
-27,
7,
-32,
-19,
2,
-19,
16,
58,
-18,
-6,
45,
10,
24,
-42,
-5,
-10,
0,
19,
-46,
6,
-3,
-16,
-10,
30,
30,
-5,
-24,
-16,
-11,
71,
46,
42,
27,
26,
9,
-37,
37,
18,
15,
22,
30,
-42,
-59,
-42,
20,
47,
23,
38,
-22,
-6,
33,
41,
-9,
-37,
35,
26,
20,
-23,
33,
-6,
-43,
8,
16,
0,
3,
53,
15,
-9,
-20,
4,
9,
-25,
-19,
-24,
1,
-15,
61,
19,
20,
37,
-32,
2,
29,
37,
26,
11,
-66,
7,
28,
-20,
48,
-2,
21,
58,
-25,
32,
-3,
37,
4,
4,
-2,
3,
-1,
9,
-30,
-34,
27,
62,
-10,
-4,
-19,
-6,
7,
-10,
-19,
11,
15,
-9,
-5,
-5,
23,
-45,
2,
-4,
-64,
5,
-14,
-25,
-8,
63,
-9,
-17,
-66,
6,
15,
4,
-72,
-60,
24,
-3,
-64,
53,
-27,
-9,
-12,
-1,
-28,
-3,
-8,
58,
-16,
-31,
-32,
-33,
17,
-15,
27,
0,
-3,
-84,
-25,
-12,
-20,
-26,
-18,
2,
4,
-32,
-24,
37,
-24,
-20,
-23,
-7,
-21,
0,
51,
-46,
-27,
-5,
20,
44,
-10,
-3,
43,
58,
46,
8,
27,
34,
3,
-6,
41,
-28,
-33,
17,
28,
-26,
52,
9,
8,
-16,
0,
13,
-27,
-8,
-31,
33,
-34,
13
] |
Whitbeck, P.J.
Apparently relying on an “order” entered by a family court referee, medical personnel at Children’s Hospital of Michigan withdrew life-sustaining medical treatment that AMB, an infant, was receiving. She died soon thereafter. William Ladd, the attorney appointed to represent her in the protective proceeding that originally brought her situation before the family court, appeals on her behalf. We reverse.
I. introduction
This case is, at its core, a human tragedy. AMB, whom we call baby Allison, is the central figure. She was bom severely ill, with a poor prognosis for long-term survival, and required extensive medical care. This care included immediate ventilator support and intravenous drug therapy in the neonatal intensive care unit at Children’s Hospital of Michigan, in Detroit. Baby Allison died at Children’s Hospital just ten days later.
Baby Allison’s short life, while heartbreaking in itself, does not hint at the truly appalling circumstances relating to her conception and death. At age seventeen, baby Allison’s mother, KB, became pregnant. Baby Allison’s putative father, JB, was also KB’s father. When this situation came to light, local authorities pressed criminal charges against JB and instituted a protective proceeding against JB and his wife to terminate their parental rights to KB and KB’s younger brother. To complicate this situation further, the record includes explicit, though unproven, allegations that KB is mentally retarded or has some form of developmental delay. The resolutions of the criminal case against JB and the separate child protective proceeding against JB and his wife are not evident from the available record. However, it is possible to infer that JB raped his mentally disabled daughter, KB, leading to baby Allison’s incestuous conception.
If the facts surrounding baby Allison’s conception are tragic, the circumstances leading to her death are doubly so. Through unredeemably flawed family court proceedings, the Family Independence Agency (fia) acquired what appeared to be an order that authorized Children’s Hospital staff “to take the child off life support equipment and medication provided that ‘Comfort Care’ is provided.” Despite an explicit warning that the order did not take effect for seven days, the very next day Children’s Hospital staff contacted a chaplain who baptized baby Allison while her mother and her three aunts were present. According to the chaplain’s notes, at approximately 7:30 P.M. “[a]fter the baptism the aunts decided to have the child removed from life support. Both I [the chaplain] and Michelle the charge muse took pictures. I again prayed for the baby and the family. The infant was pronounced dead at 9:25 P.M.” Thus, Children’s Hospital staff removed baby Allison from life support without any legal authority, even under the terms of an order that we ultimately conclude had no legal basis whatsoever. Nonetheless, baby Allison’s life ended, the final act of this tragedy of almost mythical proportions.
The series of individual legal errors and missteps that led to baby Allison’s death are our only focus in this appeal. The hasty family court proceedings were so unseemly precisely because those involved in this decision knew that a life hung in the balance. The unforeseen consequence of this rush to make a decision is that the record consists mostly of allegations, unsworn statements, and hearsay. More often than not, this has forced us to assume that the record is both adequate and accurate simply to reach the legal issues. We emphasize, however, that there is no way to determine the truth about this case with any assurance. Further, these proceedings occurred less than one month before significant changes to the Juvenile Code went into effect on March 1, 1999. Perhaps, had baby Allison been bom just a few weeks later, these proceedings would have been conducted differently.
E. ALLEGED FACTS AND PROCEDURAL HISTORY
A BABY ALLISON’S BIRTH
KB gave birth to baby Allison five weeks prematurely, on February 9, 1999, at Oakwood Hospital. Physicians then discovered that baby Allison’s heart was missing a septum, two of her heart valves were deformed, her aorta was very small, and the size of her heart had forced her left lung to collapse partially. Baby Allison had hydrocephaly and other brain abnormalities suggesting corpus callosum agenesis, as well as malformed hip joints and a possible problem with her intestines. Physicians used the drug prostaglandin to open baby Allison’s ductus arteriosis to help circulate oxygenated blood through her body and placed her on a ventilator. Within hours of her birth, Oak-wood Hospital staff transferred baby Allison to the neonatal intensive care unit at the Children’s Hospital of Michigan in Detroit.
B. THE FIRST HEARING
On February 11, 1999, fia caseworker Judith Mat-lock filed an original petition alleging that baby Allison came within the family court’s jurisdiction pursuant to MCL 712A.2(b)(l) or (2). The factual allegations in the petition focused on three circumstances: the sexual abuse in the home JB and his wife shared and the pending petition to terminate their parental rights, KB’s alleged mental limitations and her alleged inability to make decisions for critically ill baby Allison, and KB’s informal living arrangements with her uncle and aunt. The petition asked the family court to take temporary custody of baby Allison, noting that KB had not made any plans to care for her baby because KB neither knew how to care for an infant nor had any money.
Richard Smart, a referee in the family court, held a preliminary hearing regarding the petition that same day. Neither KB nor JB attended this first hearing, and neither was represented by counsel. No one, including Matlock, testified under oath. However, Matlock informed referee Smart that she told KB, but not JB, about the hearing. Referee Smart went off the record briefly before finding “that reasonable efforts have been made to notify the respondent, all parties.” The attorney for the fia asked referee Smart to authorize the petition and a placement order and to “authorize all necessary medical treatment for this child, who is hydrocephalic and has heart defects.” Without hearing any additional argument, referee Smart found probable cause to authorize the petition.
After a second discussion off the record, baby Allison’s attorney, Ladd, objected to an order authorizing anything other than routine medical care, stating, “[T]he statute [does not allow] anything more than routine medical care and anything that’s not along those lines .... I believe the mother is also subject to a petition in this court. [B]ut she is eighteen. If she’s capable of . . . consenting, she can consent . . . .” Referee Smart then suggested that KB was incapable of consenting to medical treatment for baby Allison, to which Ladd replied, “Well, then I think that the agency, if there’s any . . . nonroutine medical care, they’re going to have to ask for consent of the Court.” Ladd gave several examples of what he considered nonroutine care, including brain surgery or a heart transplant. The assistant attorney general representing the HA interjected that he believed that it was within the family court’s authority to authorize all necessary care without specification. Referee Smart stated that his decision would be to “enter an order allowing for the child to have all necessary medical treatment.” Ladd responded, “The [fia] worker tells me that there’s a serious question about the nature or extent of efforts . . . the hospital will use to maintain this child alive. And I don’t think that you should enter a blanket order [for medical care] under those circumstances.” When referee Smart said that he was not sure what Ladd was saying, Ladd replied:
Well, if you enter a blanket order, you’re essentially giving the fia and/or the hospital the discretion to determine what’s necessary medical care. And while they may do things that are unusual and ... that would normally require some consent, that order could also authorize them to interpret that as meaning that they could not give that care. And I think that’s not proper.
# * *
I think that a fully informed decision about medical care, specific medical care for this child is necessary.
Referee Smart signed and dated a form order authorizing the petition, indicating on the face of the order that he was a hearing referee. The order stated that “[njotice of hearing was given as required by law,” denied JB visitation rights, and directed the fia to place baby Allison in foster care or with a suitable relative. The order also noted, “The Court orders the child to receive all necessary medical treatment. Any and all necessary medical treatment is to be given to this child to sustain her life.”
C. THE SECOND HEARING
Matlock filed an amended petition on the following Monday, February 15, 1999. The amended petition was largely identical to the original petition, but also alleged:
7. On or about 2/11/99 the MA petitioner conferred with Dr. Virginia Delaney-Black and social worker Marie WilmetDully about the condition of this newborn. Dr. Delaney-Black advised that the baby is intubated, on a ventilator because her heart is so enlarged it has collapsed her right [sic] lung, that the heart has measurable and serious defects, including an anomaly of the arch of the aorta, a lack of a partition between the right and left chambers ascites [accumulation of fluid in the peritoneal cavity, causing abdominal sweeling [sic] due to advanced heart failure. The infant is also hydrocephalic. She is being kept alive on life support systems and is experiencing [unreadable] physical distress with no hope of surviving independent of the life support.
8. On or about 2/11/99 Dr. Delaney-Black advised that it was her opinion that it is not in this infant’s best interest to [be] maintained on life support.
9. The mother is not capable of comprehending the implications of the medical facts related to the baby and, therefore, cannot make an informed decision.
10. Because [baby Allison] is a pending ward of the court and because she is not under the jurisdiction or pending jurisdiction of another court, fia petitioner requests that the court render a decision about what is in the best interest of this infant.
Referee Peter Schummer conducted a hearing regarding the amended petition on Wednesday, February 17, 1999. Neither KB nor JB appeared at this second hearing, and neither was represented by counsel. Ladd did not appear at the second hearing because he had not been notified that it was scheduled. In his stead, “emergency house counsel” Paula Mahinske appeared to represent baby Allison. Mahinske did not indicate on the record what, if any, steps she had taken to prepare to represent baby Allison. Referee Schummer did not ask whether KB or JB received notice of the second hearing. Neither of the two attor neys present indicated whether KB or JB were aware that the second hearing was scheduled. Referee Schummer did not inquire whether baby Allison or KB had a guardian or a guardian ad litem.
At the second hearing, baby Allison’s neonatologist, Dr. Delaney-Black, testified under oath by telephone concerning the circumstances surrounding baby Allison’s birth. Dr. Delaney-Black explained that physicians were administering prostaglandin to baby Allison to
keep the ductus arteriosis open, which gives oxygenated blood to the baby. In the event of withdrawing this, it is likely that the baby would not oxygenate well and might not be able to sustain life without this medication. In addition, the baby’s left lung is also been found to be relatively collapsed because of the exceedingly large cardiac silhouette, which is preventing the lung from expanding, and that’s another reason for the baby needing to be on the ventilator.
Dr. Delaney-Black said that baby Allison’s right lung was “relatively normal,” but “for long-term survival, we do not feel that the [heart] lesions that this baby has are compatible with long-term survival. It is possible that taken off the ventilator and taken off the prostaglandins that the baby could live for hours, to days, to months.” Dr. Delaney-Black also noted that blood reflux on the right side of baby Allison’s heart would ultimately lead to heart failure. When asked whether baby Allison’s chances for survival were better if she remained on the ventilator, Dr. Delaney-Black said:
No. No. The . . . heart problem is really incompatible with life in a long-term survival situation. Now, as I said, I can’t tell you how long she could survive, but long-term survival
is . . . not likely at all ... . [E]ven if she had no other problems, there is no easy solution to any of her heart problems.
* !f. :!■.
My recommendation is that we stop the prostaglandins and we remove her from the ventilator and provide comfort care. There are other abnormalities as well, which I have not described, but it’s really the heart, which is the life threatening abnormality at this point. There is also the potential for [a] life threatening abnormality of the bowel, because the bowel may not be normally developed. . . .
According to Dr. Delaney-Black, medical staff had not been able to determine the extent of baby Allison’s intestinal problem because she was on a ventilator, but knew that her “very severe” brain “abnormalities” were not life threatening. Dr. Delaney-Black stated that if baby Allison lived long enough and developed the capacity to walk, she would require extensive orthopedic surgery to correct her hip problems.
Dr. Delaney-Black recommended that baby Allison be given “fluids, heat, warmth, monitoring of her heart rate and vital signs,” possibly a feeding tube, and anything else that might be necessary to keep her comfortable. If baby Allison lived for weeks to months after being removed from the ventilator, Dr. Delaney-Black believed that the doctors would have to assess whether she would need gastrointestinal surgery. Though Dr. Delaney-Black had not spoken with KB, she believed that another physician had spoken with her and determined that she had an “extremely limited understanding of what was going on, although she did understand that the baby had significant heart problems.”
During the brief cross-examination by Mahinske, Dr. Delaney-Black again emphasized that she did not know how long baby Allison could live, irrespective of whether she remained on a ventilator. Dr. Delaney-Black added that baby Allison could only receive prostaglandin intravenously. According to Dr. Delaney-Black, even if the physicians could maintain an intravenous line, it would expose baby Allison to potentially fatal blood infections and pneumonia and, all the while, her heart would continue to fail. Dr. Delaney-Black believed that baby Allison, who was conscious and not sedated, would suffer less if the life support measures ended and
[bjecause we have no medical treatment to offer this . . . child in the long rim and I think what [sic: that] care is futile [and] to ask an infant to suffer on a ventilator with a tube in their throat, unable to be fed with l.v.s and not being to easily be held or provided with the kinds of life that one would want, that it is not a humane decision.
In all, it was Dr. Delaney-Black’s opinion that sustaining baby Allison with medical technology would intensify her suffering while failing to offer any solution for her dire health problems.
When Matlock testified, this time under oath but by telephone, she explained that she had not had direct contact with KB, despite her representation at the first hearing that she “had the opportunity to inform the mother” of the proceedings. Rather, according to Matlock, she had been speaking with KB’s paternal aunt. Matlock explained that she had filed the amended petition, which she called a “medical authorization petition,” because she had learned that KB was a “trainable mentally impaired student” and unable to make complex decisions. Matlock said that KB’s teacher, who neither testified nor furnished any documentary evidence concerning KB, had estimated KB’s IQ at forty-five to fifty points. From Matlock’s perspective, “[i]t would be virtually impossible for her [KB] to make an informed judgement [sic] about her daughter because she’s not able to comprehend the medical information given to her by the physicians who are treating her daughter.” Further,
even though [KB] appeared, to all parties involved, to understand that she was to have a baby and did in fact have a baby, she had no ability to prepare for the baby, to anticipate the needs of a baby in terms of equipment, of clothing, of having a home, that kind of thing. [KB] will probably remain in the education system until she’s twenty-six years old to maximize her opportunities for training. She will be — but she will probably always need a competent care giver.
Matlock wanted the family court to enter an order permitting Children’s Hospital to do what was in baby Allison’s “best interests.” Mahinske did not question Matlock at all.
Following a discussion off the record on an unknown topic, the assistant attorney general representing the fia summarized the testimony at the hearing. He then stated that “we are asking the Court to authorize the medical authorization petition, which would allow the hospital, Children’s Hospital, to make the appropriate decision based on the best interest for [baby Allison] at this point in time.” Mahinske responded:
We’d concur in that recommendation. Clearly it’s been shown through Ms. Matlock’s testimony that this mother lacks any intellectual capacity to make this decision. And so, therefore, the Court must make the decision for her. . . . [B]ased on the medical testimony, I believe it would be in the best interest to let the doctors decide the course of treatment. Unfortunately, this little baby’s heart is just not going to sustain her life and it didn’t seem clear from the— in fact, it seemed contrary from the testimony that to keep her on life support would not necessarily make her death less painful or any easier. In fact, it would draw out that process and make it more painful because complications would arise, such as septicemia. The growth of the heart would not be normal. And there is no treatment for this heart defect. The only treatment is a heart transplant, but [baby Allison] is not a candidate. So I would ask the Court to enter the order allowing the hospital to make the necessary decisions.
Referee Schummer then commented:
I will authorize Children’s Hospital to remove the child from life support as well as from medication, provided that the child is provided with comfort care as outlined by the doctor. It is clear that the child does not have an opportunity to live and prolonging the child’s life would only prolong the child’s suffering and the mother is certainly not capable of making any informed decisions as to the procedure and the father is unavailable due to his incarceration. Uh, the fact that he is the father of the mother, as well as the father of the child would lead the Court to believe that he is not qualified to make that kind of decision anyway. So I will authorize the medical . . . procedures as requested and the Court does not retain jurisdiction. That’s my decision. Anybody dissatisfied with that has a right to appeal it to a judge of this court within seven days, Court of Appeals within twenty-one days after the order is final.
Referee Schummer’s report summarized the evidence and concluded that “[t]he court will authorized [sic] the hospital to take the child off life support equipment and medication provided that ‘Comfort Care’ is provided.” The front page of the report had a stamp of a family court judge’s signature and a stamped date indicating that the recommendations and findings had been “[e]xamined and approved” on February 18, 1999.
A “dispositional order” on a preprinted form was entered in the record the same day. The “order” declared, “note: this order is effective 7 days after THE HEARING DATE UNLESS A PETITION FOR REVIEW IS FILED in accordance with mcr 5.991.” The family court judge’s stamped signature appeared on the form order along with a February 18, 1999, date stamp. Substantively, the “order” only stated, “Children’s Hospital is authorized to remove the child from life support equipment and medication provided that ‘Comfort Care’ is provided.”
D. BABY ALLISON’S DEATH AND THE IMMEDIATE AFTERMATH
For reasons that are unclear from the record, Children’s Hospital staff did not wait the seven days for the “order” to become effective or for a party to request judicial review. Rather, on February 19, 1999, Children’s Hospital staff removed the life support and baby Allison died.
On February 25, 1999, six days after baby Allison’s death, Ladd filed a petition for judicial review of referee Schummer’s findings and recommendation. In pertinent part, the petition stated that review was critical because Mahinske had represented baby Allison at the second hearing and “[c]ounsel was not given an opportunity to observe the child, consult with caretakers and expert witnesses. The appointed attorney was not apprised of the early hearing date, nor was any attorney from lada [the Legal Aid and Defender Association] asked to be present. Neither parent was notified or served.” The family court held a review hearing on March 18, 1999. The family court, ruling in part from the bench, approved referee Schummer’s findings and recommendation. Nevertheless, at the conclusion of the review hearing, the family court indicated that court personnel would review the procedures in place in order to determine whether there was a better way to handle similar cases in the future. The family court later issued an order that recapitulated its findings and dismissed the review petition as moot.
E. APPEAL
Attorney Kathleen Gonzales filed a claim of appeal on behalf of baby Allison in April 1999, after which Ladd also filed an appearance. The fia contested their authority to claim an appeal. The Chief Judge of this Court, in an unpublished order dated October 1, 1999, dismissed the case on an administrative motion docket on the grounds that Gonzales lacked authority to file the appeal on behalf of baby Allison. In response to a motion for rehearing, on November 24, 1999, a panel of three judges dismissed the appeal for the same reason. On January 18, 2000, the same panel vacated the November 24, 1999, order, but again dismissed the appeal “as there is no indication that either attorney is authorized to act on behalf of the child’s estate.”
Having failed to obtain substantive review in this Court, Ladd then applied for leave to appeal to the Michigan Supreme Court. In lieu of granting leave, the Supreme Court reversed this Court’s October 1, 1999, order dismissing the appeal and remanded the case to this Court
for consideration on the merits of the issues raised in appellant’s issues IV through IX and XI. Attorney William Ladd is to be entitled to proceed as lawyer guardian ad litem to represent the interests of the deceased minor. The issues in this case are of substantial importance, have been fully briefed, and are capable of arising again in future situations, but evading appellate review.[ ]
The Supreme Court also allowed Gonzales to withdraw from the appeal. Thus, this case was assigned to this panel for a full hearing and decision with Ladd acting as the attorney representing baby Allison’s interests.
m. OVERVIEW
We commence with the obvious: baby Allison’s life has ended, and we can do nothing to change that. Fundamentally, then, our task is to provide guidance to the courts that will deal with similar questions in the future. To that end, the attorneys representing the fia and baby Allison have cooperated with our efforts to clarify the record and examine the issues. Additionally, the American Civil Liberties Union and Legal Services of Southern Michigan, the Children’s Section of the State Bar of Michigan, the Michigan Protection and Advocacy Service, Inc., and a group of scholars in medical ethics have each provided us with a thoughtful amicus curiae brief.
Unfortunately, there is a mismatch between the way issues are numbered in this Court and the Supreme Court. There is also a mismatch between the way Ladd has presented issues for appeal to both courts and his substantive arguments concerning each issue. Consequently, it is difficult to determine from the Supreme Court remand order which legal questions this Court has an absolute duty to address. In any event, the Supreme Court’s remand order does not prevent this Court from considering questions and issues not specified. Thus, we have addressed the widest range of issues necessary to assure that we have satisfied the Supreme Court’s remand order and to create a framework for making decisions in similar end of life cases. Appendix B to this opinion, post at 243, identifies the issues presented in the application for leave to appeal to the Supreme Court and specifically locates where we address the respective issues in this opinion.
In order to organize the widely varying legal questions in this case, we first consider the issues that involve the broadest legal principles: the family court’s jurisdiction; whether any of the three state statutes or the three federal statutes that Ladd cites prohibited the family court from entering an order permitting baby Allison’s life support to be withdrawn; and the legal and evidentiary standards that apply to a decision to withdraw life support from an individual who is the subject of a protective proceeding and who was never competent to make a decision concerning medical care. We next examine the many interrelated questions concerning Mahinske’s repre sentation, including a child's right to effective assistance of counsel in a protective proceeding and the procedural requirements affecting substitution of counsel in that context. In the final sections of the opinion we consider narrower questions, including whether the family court was operating under an improper local court rule and whether any errors in this case were harmless. After the conclusion, we summarize our individual legal holdings in Appendix A, post at 238-242, which might serve as a useful reference in the future.
IV. STANDARD OP REVIEW
Virtually all the issues raised in this appeal present legal questions, subject to review de novo. Only the question whether withdrawing life support was in baby Allison’s best interests requires a factual determination, therefore meriting review for clear error.
V. SUBJECT-MATTER JURISDICTION
A. AUTHORITY TO HEAR A CASE
The allegations of neglect in the original petition gave the family court subject-matter jurisdiction over baby Allison under MCL 712A.2(b)(l) or (2). Ladd, nevertheless, contends that the family court was divested of its existing subject-matter jurisdiction when the fia filed the amended petition seeking to withdraw life support, which changed the focus of the proceedings from protecting baby Allison to ending her life. Ladd argues that the family court lacks the broad authority given to the circuit courts under Const 1963, art 6, § 13. Rather, according to Ladd, the family court’s authority is limited to the acts enumerated in the Juvenile Code.
“Jurisdiction is the power of a court to act and the authority of a court to hear and determine a case.” As its name implies, subject-matter jurisdiction describes the types of cases and claims that a court has authority to address. In other words:
“ ‘Jurisdiction over the subject matter is the right of the court to exercise judicial power over that class of cases; not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending; and not whether the particular case is one that presents a cause of action, or under the particular facts is triable before the court in which it is pending, because of some inherent facts which exist and may be developed during the trial.’ ”[ ]
“Jurisdiction of the subject matter of a judicial proceeding is an absolute requirement. It cannot be conferred by consent, by conduct or by waiver” or “by estoppel.” Subject-matter jurisdiction is so critical to a court’s authority that a court has an independent obligation to take notice when it lacks such jurisdiction, even when the parties do not raise the issue.
Const 1963, art 6, § 15 grants probate courts “original jurisdiction in all cases of juvenile delinquents and dependents, except as otherwise provided by law.” The family division of each circuit court has replaced the probate court in proceedings concerning custody of juveniles. The Juvenile Code, MCL 712A.2(b), specifically grants the family courts in this state subject-matter jurisdiction of cases concerning children under eighteen years of age if, among other factors, the child’s parents or guardians are neglectful as defined in subsection 1 or have failed to provide a fit home as defined in subsection 2. This and other statutes comprising the Juvenile Code are intended to give the family courts extensive authority to protect children. Family courts thus have subject-matter jurisdiction in a large sphere of cases involving children.
In In re Hatcher, the Michigan Supreme Court interpreted a family court’s subject-matter jurisdiction, holding that it “is established when the action is of a class that the court is authorized to adjudicate, and the claim stated in the complaint is not clearly frivolous.” Accordingly, a family court has subject-matter jurisdiction when the allegations in the petition provide probable cause to believe that it has statutory authority to act because the child’s parent or guardian neglected the child, failed to provide a fit home, or committed any of the other conduct described in the statute. Whether the allegations are later proved true is irrelevant to whether the family court has subject-matter jurisdiction.
B. EXERCISING AUTHORITY
As Ladd concedes, the allegations in the original petition unambiguously gave the family court subject-matter jurisdiction. At the first hearing, referee Smart had probable cause to believe that baby Allison’s mother, KB, was incapable of providing baby Allison with “proper custody” or a fit home because she lacked the mental capacity and financial resources to care for her daughter. These allegations were serious, not frivolous. The requisite probable cause to believe that this case fit within the class of cases that a family court may hear under MCL 712A.2(b) clearly existed, thereby justifying the decision to authorize the original petition.
The amended petition did not allege new or different grounds for the family court’s subject-matter jurisdiction. Rather, the amended petition alleged the same factual foundation for the family court’s continuing subject-matter jurisdiction and asked the family court to exercise its jurisdiction by “rendering] a decision about what is in the best interest of this infant.” Whether the family court erroneously determined the scope of its authority to act, erred in deciding what was in baby Allison’s best interests, or failed to follow proper procedures in this case is irrelevant to whether it had subject-matter jurisdiction. As this Court explained in Altman v Nelson:
Once jurisdiction of the subject matter and the parties is established, any error in the determination of questions of law or fact upon which the court’s jurisdiction in the particular case depends is error in the exercise of jurisdiction. Jurisdiction to make a determination is not dependent upon, the correctness of the determination made.
Stated another way, “If the court has jurisdiction of the parties and of the subject matter, it also has jurisdiction to make an error.”
Ladd, however, presses the relationship between the general purpose of the proceeding over which a court originally has subject-matter jurisdiction and how it is asked to exercise its authority. Essentially, he contends that a family court may be asked to take some actions that are so far removed from the allegations supporting its original jurisdiction over the case that the court would lack basic authority to act on such a request. Altman does make a fine-line distinction between acquiring subject-matter jurisdiction and the potentially erroneous exercise of that jurisdiction. However, Altman describes the sort of erroneous exercise of authority that deprives the court of subject-matter jurisdiction as the “determination of questions of law or fact upon which the court’s jurisdiction in the particular case depends.” Theoretically, then, some cases may develop in a direction so unrelated to the grounds for assuming subject-matter jurisdiction under MCL 712A.2(b) that a family court may not proceed.
Nevertheless, this case does not present such a dramatic change in direction. In the original petition, the fia asked the family court to take temporary custody of baby Allison because someone needed to care for her, which included making medical decisions for her. KB, baby Allison’s mother, would naturally make this sort of decision. However, KB was, at least allegedly, unable to fulfill this role and no one else had legal authority to make decisions for baby Allison. In the amended petition, the fia requested the family court to make an explicit decision regarding baby Allison’s interests because, again allegedly, KB could not do so and no one else had legal authority to make that decision. The amended petition raised questions of fact and law that depended entirely on the statutory bases for subject-matter jurisdiction in this case. While baby Allison’s health status may have been changing, her underlying need to have someone make decisions for her and to care for her remained the same throughout the proceedings. Thus, this request for a best interests ruling still was within the “class” of cases or issues concerning which the family court may make a decision.
Though Ladd attempts to distinguish between the family court’s responsibility to protect children and the effect of removing life support, the request for relief in the amended petition, at least arguably, did not ask the family court to abandon its duty to protect baby Allison. Rather, the amended petition asked for a ruling on what course of conduct would be in baby Allison’s best interests. In In re Rosebush, this Court held that courts can permit the parents or other surrogates for an incompetent patient to make serious medical decisions, including whether to withdraw life support, as long as the decision conforms to the substituted judgment or best interest criteria, as relevant. The Rosebush Court determined that judicial intervention in the decision to withdraw life support is warranted if “the parties directly concerned disagree about treatment, or other appropriate reasons” exist.
Baby Allison’s father was never legally determined. Her putative father’s legal situation called into question his ability to make decisions on her behalf. Baby Allison’s mother was, allegedly, incompetent. The possible absence of an appropriate surrogate to make decisions for baby Allison did not lessen the urgency of her situation. The staff of Children’s Hospital needed immediate direction concerning baby Allison’s care, regardless of whether it was a decision to continue all medical measures or to withdraw the life-sustaining medical technology in place. These, we conclude, were “other appropriate reasons” for the family court to become involved with the decision concerning baby Allison’s care.
C. TREATMENT AS PROTECTION
Ladd cites an unpublished Virginia case, In re Infant C, for the proposition that withdrawing life support is outside the scope of a family court’s subject-matter jurisdiction because it is not medical “treatment.” He argues that only therapeutic medical treatment is a protective measure within the family court’s subject-matter jurisdiction.
Yet, the FIA never contended that withdrawing life support was equivalent to medical treatment in the sense that it had therapeutic or curative value. Dr. Delaney-Black did not propose removing baby Allison from the ventilator and stopping the prostaglandin as a way to cure or improve her ailments, or prolong her life. From Dr. Delaney-Black’s perspective, no medical intervention would cure baby Allison’s many health problems or prolong her life. Rather, Dr. Delaney-Black asserted that her purpose in recommending these actions was to allow baby Allison to live in as little pain as possible because her death was unavoidably imminent. In this respect, it is at least arguable that Dr. Delaney-Black was acknowledging baby Allison’s common-law right to refuse medical care, a corollary to her right to give informed consent. Dr. Delaney-Black also might have been acknowledging her own interest as a physician in making her patient as comfortable as possible. Thus, we conclude that it is unnecessary to use the fiction — and a fiction it surely is — of categorizing withdrawing life support as medical “treatment” to demonstrate the family court’s subject-matter jurisdiction in this case.
VI. PERSONAL JURISDICTION
Ladd claims that the family court lacked the legal authority to enter an order to withdraw baby Allison’s life support because it lacked personal jurisdiction over baby Allison’s mother, KB, and her putative father, JB. At issue here is whether KB and JB received notice of the protective proceeding. Aside from the constitutional right to notice inherent in due process, respondents in child protective proceedings have a statutory right to notice. The absence of this notice to a respondent in a protective proceeding constitutes a jurisdictional defect. Therefore, failure to give adequate notice to a respondent in a protective proceeding makes “all proceedings in the [family] court void,” at least with respect to the respondent denied notice.
Determining exactly who was a respondent in a protective proceeding, and therefore entitled to notice, is often a mundane question answered simply by looking at the caption in a case or other pleadings. In this case, rather than using a caption listing the respondents, Matlock drafted the original and amended petitions so that only baby Allison’s name appeared in the caption. Matlock named KB as baby Allison’s “mother” and JB as baby Allison’s “father,” listing the addresses of their respective residences in the same section of each petition. It would be wholly illogical to conclude that, even though the eta as petitioner knew where KB and JB each were living and denominated them as baby Allison’s parents, there were no respondents in this proceeding. In fact, no one challenges the notion that KB, as baby Allison’s mother, was a respondent.
Nevertheless, a putative father ordinarily has no rights regarding his biological child, including the right to notice of child protective proceedings, until he legally establishes that he is the child’s father. JB never took this step. Still, in this unusual case, because Matlock identified JB and KB in exactly the same way in the petitions, it appears that JB was a respondent, despite his status as a putative father. Thus, though referee Smart may have had authority to conduct the preliminary hearing and place baby Allison before JB and KB received notice of the proceeding, both were entitled to notice of other hearings held in the case.
There is no way to determine from the record that KB actually received notice of the second hearing in this case because Matlock gave contradictory statements on the record regarding her contact with KB. Even assuming that Matlock told KB’s aunt about the hearings, there is no evidence that Matlock asked the aunt to inform KB of any of the hearings. Nor is there any evidence that KB’s aunt told KB about the second hearing. Further, to our knowledge, KB’s aunt was not her legal guardian. Thus, there is no legitimate argument that notice to the aunt, alone, would be sufficient. It was error to allow this action to proceed without ever ensuring that KB, regardless of her alleged intellectual limitations, received notice.
The situation surrounding JB is even more complicated. As referee Schummer put it, JB was unavailable to make decisions because he was incarcerated and “the fact that he is the father of the mother, as well as the father of the child would lead the Court to believe that he is not qualified to make that kind of decision anyway.” Though apparently also a respondent, the record does not give us a basis to conclude that JB received notice of the second hearing or that there were legitimate reasons to deny him notice. Even if accurate, moral judgments cannot take the place of mandated procedures. As a result, though we also have serious doubts about JB’s fitness to make any decision for baby Allison, because the circumstances of this case suggest that he was a respondent, the failure to notify him of the proceedings was also error.
Nevertheless, it is well settled that the right to notice is personal and cannot be challenged by anyone other than the person entitled to notice. Even if KB and JB would have been able to challenge any of the orders in this case successfully on the basis of their lack of notice, Ladd, representing baby Allison’s interests, cannot now raise those issues.
VH. JUVENILE CODE
Ladd argues that the family court exceeded its statutory authority to order emergency medical care under the Juvenile Code, MCL 712A.1 et seq. He questions the family court’s authority to withdraw life support pursuant to MCL 712A.18L In practice, MCL 712A.18f(4) describes the process by which a family court can enter a dispositional order that provides a child with appropriate care after the family court has determined that the child comes within its jurisdiction. In this context, jurisdiction has a very specific meaning. In order for a child to come within a family court’s jurisdiction, the family court must hold an adjudication, which is a trial on the merits of the allegations in the petition. Following the adjudicative hearing, the family court must find that a pre ponderarme of legally admissible evidence demonstrates that there is factual support for one of the grounds permitting judicial involvement under MCL 712A.2(b). Once the family court determines that the child comes within its jurisdiction, it can enter dispositional orders that govern all matters of care for the child.
The form used for the “order” allowing the staff of Children’s Hospital to withdraw baby Allison’s life support states that it is a “dispositional order.” This “order” did resemble a dispositional order because it directed others in how to care for baby Allison. However, it was not actually a dispositional order because it was entered before, not after, a dispositional hearing. A dispositional hearing can occur only after the family court holds an adjudication. The formal proceedings in this case never progressed past the preliminary hearing at which referee Smart authorized the petition. Thus, even if MCL 712A.18f(4) would allow a family court to order withdrawal of life support for an incompetent minor child already within its jurisdiction, the family court had not yet acquired jurisdiction over baby Allison. We conclude that the family court lacked authority to act under MCL 712A.18Í.
VOL MCL 722.124a(1)
A. MEDICAL AND SURGICAL TREATMENT
Ladd also contends that MCL 722.124a(l) did not allow the family court to withdraw baby Allison’s life support. MCL 722.124a(l) provides:
A probate court, a child placing agency, or the department may consent to routine, nonsurgical medical care, or emergency medical and surgical treatment of a minor child placed in out-of-home care pursuant to [MCL 400.1 to MCL 400.121, MCL 710.21 to MCL 712A.28], or this act. If the minor child is placed in a child care organization, then the probate court, the child placing agency, or the department making the placement shall execute a written instrument investing that organization with authority to consent to emergency medical and surgical treatment of the child. The department may also execute a written instrument investing a child care organization with authority to consent to routine, nonsurgical medical care of the child. If the minor child is placed in a child care institution, the probate court, the child placing agency, or the department making the placement shall in addition execute a written instrument investing that institution with authority to consent to the routine, nonsurgical medical care of the child.[ ]
By its language, this statute applies to children “placed in out-of-home care” pursuant to a variety of statutes concerning child welfare, adoption, and protection, including protective proceedings under the Juvenile Code, MCL 712A.1 et seq. Unlike MCL 712A.18f, which is tied to the dispositional phase of a child protective proceeding, MCL 722.124a(l) is not specifically related to any particular phase in any of the varied child welfare proceedings to which it applies. Ordering treatment under MCL 722.124a(l) primarily depends on whether the child has been “placed in out-of-home care.” As a result, once a family court places a child in foster care or other “out-of-home” living arrangement, it has statutory authority to order medical or surgical treatment in an emergency, or routine, nonsurgical treatment even when there is no emergency.
Notably, other than distinguishing between routine and emergency treatment, the statute does not spell out what treatment the family court may or may not order. Nor does the statute attempt to differentiate between the authority to order medical personnel to give treatment and the family court’s authority to order them to withdraw treatment. More critically, the language in MCL 722.124a(l) makes no attempt to authorize any emergency activity other than “medical or surgical treatment.” The key word here is “treatment,” which as a norm means “the application of medicines, surgery, therapy, etc., in treating a disease or disorder.” In turn, the verb “treat” means “to act or behave toward in some specified way.” However, it is also defined as “to deal with (a disease, patient, etc.) in order to relieve or cure.” Whether the medical technologies and techniques at issue fall outside the definition of treatment depends on the particular circumstances of each case. However, once interventions, whether medical or surgical, cease to be “treatment,” the question is what legal authority would permit those measures to continue, not what authority would permit the family court to stop them.
B. APPLICATION OF MCR 722.124a(1)
Whether the family court ever “placed” baby Allison in “out-of-home care” is difficult to determine on the basis of the record before us. The order entered following the first hearing ordered the FIA to place baby Allison in foster care or suitable relative care. Yet, baby Allison never lived with a foster family. Nor does the record reflect that the fia ever arranged for a foster family to be involved with baby Allison’s care while she was in Children’s Hospital. Our impression from the medical record and Matlock’s comments is that members of baby Allison’s extended family, especially her mother’s aunts, were involved with baby Allison’s care and medical decisions during her short life. However, we know so little about the kind and extent of their involvement with baby Allison that we cannot say that she was actually “placed” in their care, triggering the family court’s authority under MCL 722.124a(l). For the most part, the record suggests that the staff at Children’s Hospital cared for baby Allison. However, a hospital is excluded from the definition of a “child caring institution” in which the family court may place a child for “out-of-home care.” Thus, even this informal, though medically necessary, arrangement for baby Allison’s care certainly does not clearly fall within the parameters for authorizing emergency medical or surgical treatment under MCL 722.124a(l).
Nevertheless, we must resolve this issue even without a satisfactory record. Generally, the statute makes it possible for a family court or one of the other designated agencies to make health care decisions for a child when forma! custody arrangements make it impossible for a parent to make a medical decision. In this case, KB was not in a position to make a medical decision for baby Allison, at least in part because the family court had temporarily removed baby Allison from her custody. Because JB had not been legally established as baby Allison’s father and the order entered following the preliminary hearing prevented him from having contact with her, JB was not in a position to make medical decisions for her. Thus, we conclude that the family court had authority to order medical or surgical treatment for baby Allison pursuant to MCL 722.124a(1) because the order following the first hearing “placed” baby Allison in “out-of-home care” and because she had a medical emergency.
This, we think, is the only sensible interpretation and application of MCL 722.124a(1). In our view, to deprive a family court of the ability to make medical or surgical treatment decisions for a vulnerable and critically ill child who lacks a parent or guardian to make those decisions for her contravenes the Legislature’s intent to protect children by granting the family court jurisdiction in protective proceedings. Consequently, the confusing custody arrangements in this case did not eliminate the family court’s authority to act under MCL 722.124a(l) once referee Smart ordered the fta to place baby Allison in foster care or with a relative.
As we have suggested, whether MCL 722.124a(l) gave the family court authority to order treatment also included the authority to withdraw life support depends on the circumstances of each case. Dr. Delaney-Black directly testified that the ventilator and prostaglandin had ceased to be “medical treatment” for baby Allison and that these measures posed serious risks to her health. We have significant reservations about the adequacy of this testimony and the family court procedures surrounding it. However, in the abstract, this testimony provided the family court with statutory grounds to authorize the Children’s Hospital medical staff to remove baby Allison’s life support.
C. LIMITATIONS
Though MCL 722.124a(l) enabled the family court to act in this case even before holding an adjudication, we must stress that parties and family courts involved in protective proceedings must make every possible effort to hold an adjudication before authorizing withdrawal of life support. We emphasize that making this decision without first conducting an adjudication creates the very real risk that a family court will intervene in a private family decision when no grounds under MCL 712A.2(b) actually exist to give the family court jurisdiction to act. In many cases, the allegations in a petition do not always fully represent the situation. The adjudication is the time to test those allegations so a family court can decide whether it has cause to become involved in a case. Just as importantly, MCL 722.124a(l) does not exist in a legal vacuum. As we will explain in greater detail, there are other procedural and substantive requirements that a family court must fulfill before it can order withdrawal of life support for an incompetent patient.
rx. CAPTA
Ladd argues that even if state law allowed the family court to order the staff of Children’s Hospital to withdraw the life-sustaining medical care baby Allison was receiving, the federal Child Abuse Prevention and Treatment and Adoption Reform Act (CAPTA) prevented the ElA from seeking such an order. Thus, he in essence contends that the family court lacked the authority to act on the fia’s illegal request.
In order to be eligible to receive capta funds to prevent child abuse and neglect, Congress requires, among other conditions,
an assurance that the State has in place procedures for responding to the reporting of medical neglect (including instances of withholding of medically indicated treatment from disabled infants with life-threatening conditions), procedures or programs, or both (within the State child protective services system), to provide for—
* * *
(iii) authority, under State law, for the State child protective services system to pursue any legal remedies, including the authority to initiate legal proceedings in a court of competent jurisdiction, as may be necessary to prevent the withholding of medically indicated treatment from disabled infants with life threatening conditions.[ ]
In Michigan, the fia functions as the chief agency in the state child protective services system. Consequently, if capta applies, the fia has a duty to prevent neglect, which includes “withholding . . . medically indicated treatment from disabled infants with life threatening conditions.” At a theoretical level, this duty to prevent neglect might be viewed as contrary to a petition seeking to withdraw life support. However, 42 USC 5106g(6) specifically defines when withholding treatment constitutes medical neglect:
[T]he term “withholding of medically indicated treatment” means the failure to respond to the infant’s life-threatening conditions by providing treatment (including appropriate nutrition, hydration, and medication) which, in the treating physician’s or physicians’ reasonable medical judgment, will be most likely to be effective in ameliorating or correcting all such conditions, except that the term does not include the failure to provide treatment (other than appropriate nutrition, hydration, or medication) to an infant when, in the treating physician’s or physicians’ reasonable medical judgment—
(A) the infant is chronically and irreversibly comatose;
(B) the provision of such treatment would—
(i) merely prolong dying;
(ii) not be effective in ameliorating or correcting all of the infant’s life-threatening conditions; or
(iii) otherwise be futile in terms of the survival of the infant; or
(C) the provision of such treatment would be virtually futile in terms of the survival of the infant and the treatment itself under such circumstances would be inhumane.[ ]
We can assume for the sake of analysis that Michigan is subject to capta and that baby Allison was a “disabled infant” within the meaning of the act. Nevertheless, 42 USC 5106g(6) indicates that Congress did not prohibit withdrawing life support in all circumstances. Rather, if one of the individual circumstances enumerated in 42 USC 5106g(6) exists, withdrawing life support from a critically ill infant does not constitute medical neglect.
According to Dr. Delaney-Black’s testimony, baby Allison was conscious, not sedated. This suggested that baby Allison was not “chronically and irreversibly comatose.” As a result, the exception in 42 USC 5106g(6)(A) did not allow the fta to ask the family court to permit the staff of Children’s Hospital to withdraw life support from baby Allison.
However, Dr. Delaney-Black’s testimony provided evidence that each of the conditions for exclusion under 42 USC 5106g(6)(B) and (C) applied in this case. In Dr. Delaney-Black’s medical opinion, no available treatment would cure or alleviate baby Allison’s life-threatening heart (and possibly intestinal) problems, while maintaining her on a ventilator and providing her with prostaglandin would do nothing more than temporarily delay her imminent death. In Dr. Delaney-Black’s own words, continuing these “futile” treatments was “not a humane decision.” Thus, even if capta does require the fta to prevent medical neglect, the FIA did not violate that duty by asking the family court to determine what would be in baby Allison’s best interests, because that request was not medical neglect as Congress defined that term.
X. EMTALA
A. STABILIZATION
Ladd contends that the order to withdraw baby Allison’s life support violated her right to have her emergency medical condition stabilized under the Emergency Medical Treatment and Active Labor Act (emtala). Because baby Allison’s life depended on a ventilator and prostaglandin, Ladd claims that emtala required the medical staff at Children’s Hospital to provide these medical interventions indefinitely in order to stabilize her condition. Essentially, Ladd argues that a family court may not enter an order that violates a patient’s emtala rights.
Emtala requires hospitals with emergency departments that receive Medicare funds to screen patients for emergency conditions within the medical capabilities of the facility. If the patient has an emergency medical condition, the hospital must provide “[n]ecessary stabilizing treatment.” If the hospital is unable to treat the patient’s emergency medical condition, it may transfer the patient to a facility that can render the necessary care after providing the care that is within the transferring hospital’s capabilities. Otherwise, the hospital must stabilize the patient’s emergency medical condition before transferring the patient to another facility.
B. BABY K AND BRYAN
There is very little case law interpreting EMTALA in the context of withdrawing life support, and none from Michigan. The most relevant and well-known cases both come from the Fourth Circuit of the United States Court of Appeals.
Ladd relies entirely on In re Baby K, the first of these Fourth Circuit cases. When Baby K was bom, doctors determined that she was anencephalic, meaning that she had “a congenital malformation in which a major portion of the brain, skull, and scalp are missing.” Baby K did have a brain stem, which allowed her autonomic system to continue to function even though she was permanently unconscious. Physicians placed Baby K on a ventilator because she began experiencing difficulty breathing. Because anencephalic babies typically die soon after birth, the physicians believed that any treatment would be futile. The physicians asked the mother to approve a medical order not to resuscitate Baby K in the future, but the mother refused.
When the mother and hospital staff could not agree on Baby K’s care, the hospital contacted other local hospitals to determine if any of them would be willing to provide Baby K with the care her mother wanted. No other hospitals with pediatric intensive care units were willing to undertake this care, but Baby K’s mother was able to transfer her to a nursing home during a period when she did not need a ventilator to aid her breathing. While at the nursing home, Baby K had to be readmitted to the hospital three times because of respiratory distress.
After Baby K’s second emergency hospital admission, the hospital brought a declaratory action in the federal district court seeking judicial approval to abstain from providing any aggressive treatment for Baby K in the future. Baby K’s guardian ad litem and her biological father joined with the hospital in opposing the mother’s efforts to use any medical intervention available to keep Baby K alive. The district court, however, denied the requested relief.
On appeal, the court found the hospital’s arguments unpersuasive, especially in light of the hospital’s concession that ventilator support or other aggressive treatment would be necessary to stabilize Baby K in the emergency room if she were in respiratory distress. The court rejected the proposition that anencephaly, not respiratory distress, was the emergency medical condition Baby K exhibited and for which she needed treatment in the hospital’s emergency room. The court found no statutory language or Congressional intent to excuse the hospital from providing stabilizing medical care for emergency conditions even if treatment would be futile in the long term and therefore above the standard of care. Finally, the court concluded that there was no statutory support for the argument that stabilization is necessary only if the hospital is transferring the patient to another facility. As the court noted, hospitals would be able to evade their duty to treat emergency medical conditions simply by refusing to transfer a patient if this interpretation of emtala were correct. Thus, the court held that “emtala gives rise to a duty on the part of the Hospital to provide respiratory support to Baby K when she is presented at the Hospital in respiratory distress and treatment is requested for her.”
The second relevant emtala case from the Fourth Circuit, which Ladd does not cite, is Bryan v Rectors & Visitors of Univ of Virginia. According to the complaint in Bryan, the decedent, Shirley Robertson, was transferred to the University of Virginia Medical Center (uvmc) when she suffered respiratory distress. Robertson’s family asked uvmc staff to make all efforts to keep her alive. Against their wishes, twelve days after Robertson was admitted to uvmc, the hospital’s staff gave a “do not resuscitate” order for her. Eight days later, uvmc staff allegedly failed to stabilize Robertson, and she died.
Cindy Bryan sued on behalf of Robertson’s estate, alleging that uvmc’s failure to stabilize Robertson violated emtala and caused her death. The federal district court dismissed the suit after it concluded that state tort law, not emtala, governed how a hospital must treat a patient once the patient leaves the emergency room and is admitted to the hospital. On appeal, the court reviewed the legislative history of emtala, observing that “Congress’s sole purpose in enacting emtala was to deal with the problem of patients being turned away from emergency rooms for non-medical reasons.”
Once emtala has met that purpose of ensuring that a hospital undertakes stabilizing treatment for a patient who arrives with an emergency condition, the patient’s care becomes the legal responsibility of the hospital and the treating physicians. And, the legal adequacy of that care is then governed not by emtala but by the state malpractice law that everyone agrees EMTALA was not intended to preempt. . . . Such reprehensible disregard for one’s patient as Bryan hypothesizes would not constitute the “dumping” at which EMTALA aims but the well established tort of abandonment, which the states may expand or constrict as they deem just but which Congress evidenced no desire to federalize. Presumptively aware of this feature of state tort law, Congress did not address a hypothetical problem that was not before it but addressed a national scandal that was: emergency rooms’ turning away patients at the door for inability to pay or other similar reasons.
. . . [T]he stabilization requirement [in emtala] was intended to regulate the hospital’s care of the patient only in the immediate aftermath of the act of admitting her for emergency treatment and while it considered whether it would undertake longer-term full treatment or instead transfer the patient to a hospital that could and would undertake that treatment. It cannot plausibly be interpreted to regulate medical and ethical decisions outside that narrow context.[ ]
The court also rejected Bryan’s argument that Baby K extended emtala’s protections beyond the emergency room, stating, “The holding in Baby K . . . turned entirely on the substantive nature of the stabilizing treatment that emtala required for a particular emergency medical condition. The case did not present the issue of the temporal duration of that obligation, and certainly did not hold that it was of indefinite duration.”[ ] Thus, the court affirmed the district court’s order dismissing the case because Bryan could not show that uvmc staff failed to stabilize Robertson when she arrived in the emergency room, even if the hospital’s subsequent conduct may have violated other legal duties.
C. EMTALA APPLIED
We assume for the sake of analysis that Children’s Hospital does receive Medicare funds and has an emergency room. However, there is no evidence of an EMTALA violation in this case. Unlike in Baby K, there is no evidence that baby Allison, who was bom in Oakwood Hospital, was ever sent to Children’s Hospital’s emergency room for treatment. Also unlike the situation in Baby K, in this case Children’s Hospital did not attempt to create a policy that would have its emergency room staff treat babies with baby Allison’s conditions differently than other patients who required prostaglandin and ventilator support.
This case is much closer to Bryan because baby Allison had been admitted to Children’s Hospital for more than a week when the staff made the decision to discontinue the medical interventions. Children’s Hospital staff might be liable for withdrawing baby Allison’s life support, especially because they did not wait for the seven-day judicial-review-request period to end. However, applying Bryan's holding to this case, the actions of the Children’s Hospital staff were not an EMTALA violation because baby Allison had been admitted as a patient at the time the staff withdrew life support. The only hospital conduct in this case involving emtala was Oakwood Hospital’s decision to transfer baby Allison to Children’s Hospital. However, Oakwood Hospital staff fulfilled emtala’s mandate by stabilizing baby Allison before transferring her to a hospital with the facilities necessary to care for her.
Even if Bryan did not fit this case as well as it does, the language Congress used in EMTALA would still require this result. The standards emtala puts in place affecting treatment specifically control hospital conduct, not patient autonomy or decisions by appropriate surrogates. There simply is no evidence that emtala abrogates the common-law right to informed consent and the corollary right to refuse treatment, much less any other applicable statutory rights. In sum, putting aside the other serious questions this case poses, the “order” permitting Children’s Hospital staff to withdraw baby Allison’s life support outside the context of emergency room treatment did not implicate EMTALA, much less violate it.
XI. ADA AND PWDCRA
Ladd contends that the family court and the fia violated the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., by presuming that baby Allison’s mother was incompetent to make decisions for her. Ladd argues that baby Allison’s mother and baby Allison were denied their mutual rights to have baby Allison or a “legally designated surrogate” make medical decisions for baby Allison, that both their rights to have access to the courts were violated, and that they were denied their substantive rights to a familial relationship. Ladd claims that because of the way the fia and the family court perceived baby Allison’s disabilities, the fia and the family court acted prematurely in seeking and approving discontinuation of her life support. Ladd also asserts that these same actions violated KB’s rights and baby Allison’s rights under the Persons with Disabilities Civil Rights Act (pwdcra), MCL 37.1101 et seq. Thus, Ladd argues that the “order” permitting Children’s Hospital staff to withdraw baby Allison’s life support was legally invalid because it was a product of proceedings that violated these antidiscrimination laws.
These are serious allegations. Not only is discrimination by the courts and state agencies typically contrary to these statutes, discrimination is incompatible with the evenhanded treatment we expect state agencies and courts to give to individuals. Nevertheless, three considerations convince us not to address the merits of these arguments.
First, the briefing on these issues is inadequate to allow this Court to decide whether the fia or the family court violated the ada or the pwdcra. Second, this Court has implicitly held that a party must raise ada claims in the family court before they can be asserted as a defense on appeal. This requirement is consonant with our ordinary issue preservation standard. As a result, we conclude that a party must also raise pwdcra claims in the family court before being allowed to make arguments concerning the pwdcra on appeal. Yet, neither Ladd nor Mahinske raised the ADA or pwdcra issues in the family court. Third, addressing Ladd’s arguments regarding the ADA and the pwdcra as grounds for reversal in this case would be imprudent because it would require making original factual findings without the benefit of an adequate record, which is especially problematic because appellate courts do not sit as triers of fact.
Even if these considerations did not dissuade us from addressing the substance of Ladd’s arguments, Green v North Arundel Hosp Ass’n, Inc, persuades us that parties cannot use the ADA or the pwdcra to challenge the result of proceedings in a case that did not originally allege an ADA or pwdcra violation. Green was a medical malpractice action parents brought on behalf of their minor child against the physicians who treated the child for hydrocephaly. The defendants moved to bar the child from the courtroom during the liability phase of trial. After observing the child’s disabilities in a videotape, the judge granted the motion.
The plaintiffs in Green did not succeed in the malpractice suit. On appeal, they claimed that excluding the child from the trial violated the ADA. After examining the text of the ADA, the Maryland appellate court, however, concluded:
[T]he ada allows for action only against the public entity for prospective injunctive relief — there is nothing in the ADA that provides a basis for reversing the judgment of a lower court in a civil dispute between private parties. Therefore, assuming, arguendo, that [the trial judge’s] ruling constituted a violation of the ada, this would only give [the child plaintiff] a separate cause of action for injunctive relief against the trial judge in his official capacity as a judicial officer of the State — it would not constitute reversible error in the case sub judice. Thus, whether [the trial judge’s] exclusion of [the child plaintiff] from trial violates the ada is irrelevant to the outcome of this case.[ ]
Green’s reasoning, that the ADA cannot be used as a procedural challenge to the outcome of a case when the ADA is not a claim tried in that case, applies here. Further, like the appellate court in Maryland, we find no support in the pwdcra’s language for allowing a discrimination claim to alter the outcome of a proceeding involving unrelated grounds. In short, even if the ADA and the pwdcra would permit baby Allison and her mother to sue for the way they were treated by the fia and in the family court, whether we affirm or reverse depends solely on the independent legal validity of the decisions and procedures used in this protective proceeding. Discriminatory conduct in judicial proceedings may give rise to a due process or equal protection claim, which are legally cognizable means to invalidate the outcome or a particular aspect of a judicial proceeding. However, the PWDCRA and the ADA do not provide the same relief in cases not originally involving those antidiscrimination acts.
Xn. LEGAL AND EVIDENTIARY STANDARDS FOR WITHDRAWING UFE SUPPORT
A. LADD’S ARGUMENT
Ladd contends that a family court must comply with the following requirements before it can enter an order permitting medical professionals to withdraw life-sustaining medical care. First, he asserts that the family court must determine whether the patient is competent to make decisions regarding medical treatment. A patient who is competent must be allowed to make the medical decision. Second, he argues that if the patient is incompetent, the family court must designate a surrogate to become involved in the decision. Third, he claims that a physician other than the physician treating the patient must confirm the patient’s diagnosis and prognosis. Fourth, he argues that in order to justify withdrawing life support, the court making the decision must have evidence that meets the clear and convincing standard. Fifth, he avers that any hearing on the matter must comply with due process, which excludes ex parte hearings. Finally, he contends that a judge, not a hearing referee, must make the ultimate decision regarding whether to withdraw life support.
The proceedings in this case, Ladd insists, failed to comply with these standards other than with respect to the issue whether baby Allison was incompetent to make decisions for herself, which was undisputed. Thus, he claims, the “order” purporting to allow the staff of Children’s Hospital to remove life support from baby Allison is subject to reversal on each of the other grounds. As the following analysis indicates, we not only agree, we find an additional flaw in the proceedings in this case involving allegations that the incompetent patient’s parent or other surrogate is also incompetent.
B. PATIENT COMPETENCY AND THE DECISIONAL STANDARDS
Competent patients have the right to make medical decisions, including the decision to cease any medical intervention, under the doctrine of informed consent. According to Rosebush, “The right to refuse lifesaving medical treatment is not lost because of the incompetence or the youth of the patient.” Though legally still minors and considered otherwise incompetent, some young patients may be sufficiently “mature” to exercise this right on their own. Thus, the mere fact that the medical decision involves a child subject to a protective proceeding does not conclusively resolve whether the patient is competent to make the necessary decision. In short, because a competent patient’s right to make any medical decision is absolute, if the facts of a case do not reveal conclusively whether a patient is competent to make a decision, the family court should make a direct inquiry concerning competency by means of an evidentiary hearing.
When the patient is incompetent, a court considering whether to continue life support must determine whether the “substituted judgment” or the “best interests” legal standard applies. The substituted judgment standard seeks to fulfill the expressed wishes of a previously competent patient, including a “minor of mature judgment.” The “limited-objective” substituted judgment standard used in Michigan requires “ ‘some trustworthy evidence that the patient would have refused the treatment, and the decision-maker is satisfied that it is clear that the burdens outweigh the benefits of that life for’ ” the patient.
The best interests standard applies when the patient has never been competent or has not expressed her wishes concerning medical treatment. The best interests standard includes, but is not limited to, examining:
“[E]vidence about the patient’s present level of physical, sensory, emotional, and cognitive functioning; the degree of physical pain resulting from the medical condition, treatment, and termination of the treatment, respectively; the degree of humiliation, dependence, and loss of dignity probably resulting from the condition and treatment; the life expectancy and prognosis for recovery with and without treatment; the various treatment options; and the risks, side effects, and benefits of each of those options.”[ ]
There are a number of theoretical problems with applying the best interests standard when presuming that the common-law right to refuse medical treatment provides the authority to withdraw life support. However, the Michigan Supreme Court has not wholly rejected the best interests standard. Consequently, as the law exists today, there is no absolute bar to applying the best interests standard to a decision to withdraw life support in a protective proceeding.
In this case, there is no question that baby Allison was incompetent to make any decision concerning her own medical care, which directly points to the best interests standard as the relevant decisional standard in this case. Further, the fia and Ladd agree that the best interests standard was appropriate. Referee Schummer, therefore, did not err in deciding to apply the best interests standard to his factual findings and recommendation.
C. SURROGATE DECISIONMAKERS
Ladd claims that once a family court determines that a patient is incompetent, it must appoint a guardian ad litem to protect the patient. As support for this proposition, he points to Rosebush, which states, “[W]here the parents of a minor child for some reason are themselves incompetent to act as surrogate decision makers, and other family members are unavailable or unwilling to act as surrogates, a guardian should be appointed to exercise the minor’s rights on behalf of the minor.” The Rosebush Court never had to address whether a family court should appoint a guardian ad litem because both parents of the minor patient in that case were (presumably) competent and involved in the decision to withdraw the child’s life support. Rosebush, by approving the reasoning in In re Guardianship of Barry, also rejected the proposition that parents must qualify as guardians before being allowed to decide to withdraw their minor child’s life support, which suggests that appointing a guardian ad litem is not always necessary. Further, In re Shaffer holds that a family court need not routinely appoint different individuals to serve as guardian ad litem and attorney for a child in a protective proceeding. Of course, Shaffer was decided before the lawyer-guardian ad litem provisions in MCL 712A.17d were effective. Shaffer thus applies in this case and suggests that appointing only an attorney for baby Allison was legally adequate.
Nevertheless, other case law indicates that appointing a guardian ad litem for a legally incompetent patient who does not have a natural guardian, such as a parent, or a legal guardian to make a serious medical decision is often a prudent step to take. As a practical matter, protective proceedings in which end-of-life medical care becomes an issue may require a guardian ad litem and an attorney for the child so that they may work with each other to respond to the urgency of the situation. We do not hold that a family court must appoint a guardian ad litem in every protective proceeding concerning important medical decisions, especially if it decides to appoint a guardian or is acting while the new lawyer-guardian ad litem provisions are effective. However, generally, the need to appoint a guardian ad litem tends to increase as the seriousness of the medical decision increases and as the time in which to make a decision decreases.
Here, the medical decision was the gravest possible. No one individual seemed a likely candidate to act on baby Allison’s behalf, at least from the perspective of the information available. Referee Smart presided at the first hearing, referee Schummer at the second. Other than Matlock, not one person who was at the first hearing participated in the second hearing. Even if Ladd was expected to function as both an attorney representing baby Allison and her guardian ad litem, he was excluded from the second hearing. This made his appointment wholly ineffective as a measure to protect or represent baby Allison. The scope and nature of Mahinske’s duties to baby Allison are unclear. In any event, she was a latecomer to the proceedings. This threw into question whether she could actually function as a guardian ad litem or attorney for baby Allison. This lack of continuity made it difficult, if not impossible, to ensure that baby Allison’s interests were adequately and consistently represented. Taken together, these factors persuade us that the hearing referees erred in failing to appoint a guardian ad litem for baby Allison, whether that guardian ad litem was a relative or another person. Though MCL 712A.17d may make a separate guardian ad litem unnecessary in the future, under the circumstances of this case, a guardian ad litem was necessary to ensure baby Allison’s welfare.
D. SURROGATE INCOMPETENCE
Ladd’s guardian ad litem argument raises one of the central issues in this case: the proper procedure that a court must follow when there is an allegation that the parent or surrogate who would otherwise make a medical decision for the incompetent patient is also incompetent. This issue presents a truly thorny dilemma. On the one hand, to ignore allegations that the parent or other surrogate is incompetent might allow a person fundamentally unsuited to the task to make a critical life and death decision. On the other hand, to accept at face value the allegations that the parent or other surrogate is incompetent risks depriving the correct decisionmaker of the opportunity to make a decision.
Case law provides no direct guidance on the issue of surrogate incompetency. However, after examining competency issues in other contexts, we conclude that determining the competence of a parent or surrogate by engaging in a formal process, such as when a criminal court must determine whether a defendant is competent to stand trial, makes little sense in practice. Instead, this issue must be resolved as any other factual dispute is resolved: with evidence appropriate to the circumstances. This evidence must demonstrate on the record that the person who would otherwise act as the surrogate decisionmaker for the incompetent patient is also incompetent to make the critical medical decision at issue. Further, the evidence must be clear and convincing. Any lower evidentiary standard brings with it a potential for abuse leading to irreparable harm because there typically is no adequate remedy for an erroneous order withdrawing life support. This clear and convincing evidence standard comports with the fundamental liberty interest, protected by the Fourteenth Amendment, that parents have in caring for their children. While doing nothing to lessen the quality or quantity of evidence necessary to justify judicial intervention in a private decision, the clear and convincing evidence standard is sufficiently flexible to address a wide variety of situations.
Further, making a decision to withdraw life support is so serious that it is unlike any other decision a family court has to make. This decision goes far beyond severing the legal relationship between a parent and child, as family courts must do in some protective proceedings. When a family court terminates parental rights, a child may still choose to seek out biological family members after reaching adulthood. Even if the family never reunites, a parent has the reassurance that the child will have an opportunity to live to be an adult. By contrast, traditional happy endings are impossible when removing life support.
We think it important to draw a distinction between cases in which the parent cannot make a decision for the child because of incompetency or another legitimate reason and cases in which the factors bringing the case to the family court’s attention are unrelated to the parent’s competency or other factors that would disqualify the parent as a decisionmaker. Simply put, jurisdiction over the child alone is not reason enough for a court to make a decision to withdraw life support. Rather, the record must provide clear and convincing evidence to support the court’s determination that it, not a parent or other surrogate, must make the decision to withdraw life support. Thus, when the allegation is that the parent or other surrogate is incapable of making a decision concerning the patient’s care because of incompetency, there must be clear and convincing evidence that this incompetency actually exists.
It almost goes without saying that no such clear and convincing evidence of KB’s alleged incompetence existed on the record in this case. Not a single person who participated at a hearing in this case or who had any role in the legal decision to withdraw baby Allison’s life support had ever personally met KB. KB did not appear at any of the hearings. Even without a presumption of competency, there is absolutely no reliable evidence that KB was incompetent to make decisions for baby Allison.
The fia attempts to minimize the lack of evidence that KB was incompetent by submitting affidavits from Matlock and KB’s aunt in which both refer to KB’s alleged mental limitations. However, this Court may not consider these affidavits, which were prepared sixteen months after baby Allison died, because they are not part of the lower court record. We have no reason to believe that Matlock, KB’s aunt, or anyone else misrepresented what they perceived to be KB’s limitations. Indeed, we suspect that these allegations may be true. However, a mere suspicion is not enough. Without any direct, or even legally admissible, evidence of KB’s incompetence, there is no way to exclude the possibility that she was competent to make a decision that Rosebush determined was ordinarily a parent’s right to make. Even if there were no other grounds for reversal, our resolution of this issue would warrant that outcome.
E. INDEPENDENT PHYSICIAN CONFIRMATION
Ladd argues that a family court may not depend on a single treating physician’s assessment of an incompetent patient’s health and prognosis when deciding to remove life support. He relies on Rosebush and the authority cited in the Rosebush opinion to support this argument. Although Rosebush approved of the procedures outlined in Barry and In re LHR, both of which had two physicians to confirm the medical diagnosis, Rosebush does not explicitly require independent physician confirmation. Indeed, while an ethics panel reviewed Joelle Rosebush’s case, the Rosebush opinion does not suggest that an independent physician confirmed her diagnosis or prognosis. Moreover, the passages from Barry and LHR cited in Rosebush do not indicate that at least one physician who had not been involved in treating a patient render an opinion before a family court can decide to withdraw life support.
There are a number of competing interests for and against having an independent physician confirm a patient’s diagnosis and prognosis. However, we conclude that it is incumbent on the petitioner to provide a second opinion from an independent physician or establish why this second opinion is not necessary. This fits in the context of the best interests analysis articulated in Rosebush, which already directs courts to consider a variety of factors relevant to the patient’s prognosis and treatment options, and thus does not require a separate analysis. The family court may weigh the presence or absence of medical consensus, the factors that contributed to medical disagreement or agreement, and the factors that make any independent physician opinion more or less relevant to the ultimate decision to withdraw life support. Plainly, the family court did not engage in any such weighing here.
F. PROCEDURAL DUE PROCESS
Ladd contends that due process requires that parents be given notice and an opportunity to be heard at any hearing related to a request to withdraw life support from their child. This Court has observed:
The federal and Michigan constitutions guarantee that the state cannot deny people “life, liberty, or property without due process of law.” Due process, which is similarly defined under both constitutions, specifically enforces the rights enumerated in the Bill of Rights, and it also provides for substantive and procedural due process. Procedural due process limits actions by the government and requires it to institute safeguards in proceedings that affect those rights protected by due process, such as life, liberty, or property.[ ]
At issue here is the right to procedural due process. A procedural due process analysis requires a court to consider “(1) whether a liberty or property interest exists which the state has interfered with, and (2) whether the procedures attendant upon the deprivation were constitutionally sufficient.”
There is no question that parents have a due process liberty interest in caring for their children and that child protective proceedings affect that liberty interest. As a result, a court considering withdrawing life support from a child who is the subject of a protective proceeding must determine whether its procedures are “constitutionally sufficient.” Whether procedures are adequate depends on the factors enunciated in Mathews v Eldridge:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
The fundamental principle underlying these factors, which constitute a balancing test, is that due process “ ‘is flexible and calls for such procedural protections as the particular situation demands.’ ”
In light of the private interests that can be affected with an order permitting life support to be withdrawn and the risk of erroneous deprivation of that right in an ex parte hearing, we agree that ex parte hearings are undesirable when making this sort of decision. However, to the extent that Ladd asks us to create an absolute bar to ex parte hearings, we decline the invitation. There may be a case in which the state’s interest in providing care for children might outweigh a respondent’s right to notice and an opportunity to be heard when the state provides additional safeguards. Such a case certainly would be an exception, not the rule, but nevertheless might be constitutionally sound under due process principles. We are confident that the law is sufficiently well developed to guide courts addressing many different situations, including this end-of-life issue.
Due process protected baby Allison’s parents’ liberty interest in raising their child. Baby Allison’s parents also had a virtually exclusive interest in making a decision to withdraw life support, rendering judicial involvement in the decision not only rare, but of significant consequence for their rights as parents. Though this case presents some of the most disturbing facts imaginable, it was not constitutionally acceptable to deny baby Allison’s mother due process because of her alleged incompetence or to deny her putative father due process because of the crimes he may have committed. The right to due process protects individuals who are allegedly incompetent and criminals ultimately convicted of the most heinous crimes. As a result, we conclude that baby Allison’s mother, KB, and her putative father, JB, were entitled to procedural safeguards in this child protective proceeding.
As the discussion of the personal jurisdiction issue indicates, we have strong suspicions that neither parent had actual notice of the two hearings. This also suggests that they were deprived of their due process right to notice and an opportunity to be heard. Assuming that KB and JB were denied notice and an opportunity to be heard, the risk of erroneous deprivation of their due process rights was different at the two hearings. The order entered following the first hearing instructed the medical staff to do all that was necessary to sustain baby Allison’s life. This order addressed the crisis immediately at hand but still allowed KB and JB to have notice and an opportunity to be heard at a subsequent hearing, which referee Smart actually scheduled. Because baby Allison’s precarious medical condition constituted an emergency and the state had a legitimate interest in doing what it could to protect her life, holding an initial hearing and then providing for notice and an opportunity to be heard later was not just permissible under the court rules, it was also constitutionally sound.
The second hearing presents a vastly different picture. The record again strongly suggests that neither KB nor JB had notice of or an opportunity to be heard at the second hearing. The “order” permitting the Children’s Hospital staff to remove baby Allison’s life support was not intended to be effective for seven days, which would have allowed KB or JB to petition for rehearing. The state did nothing to violate this seven-day period; Children’s Hospital staff, apparently in consultation with some members of baby Allison’s family, took the action that directly caused baby Allison’s death. Yet, baby Allison’s death was the predictable result of the “order” entered following the second hearing. This foreseeable risk of erroneously depriving her parents’ interests was undeniably quite high.
Critically, the ha has never placed any substantial evidence on the record that would justify withdrawing life support without parental notice and participation in this case. While giving parents notice and an opportunity to be heard may cause some burden for the state, the burden is not only minimal, the state shoulders it regularly. In fact, the petitions included JB’s and KB’s names and addresses. Given the irreversible nature of an order permitting a hospital to withdraw life support, we conclude that KB and JB were entitled to notice of the second hearing and an opportunity to participate in it as the most “rudimentary” of due process protections. The denial of this notice and opportunity to be heard was a constitutional violation.
G. CLEAR AND CONVINCING EVIDENCE
Ladd argues that “clear and convincing” is the proper evidentiary standard to apply to a decision to withdraw life support. We agree. According to In re Martin, when courts apply the substituted-judgment decisional standard, the proper evidentiary standard is clear and convincing. In other words, “the proofs in sum must meet the exacting standard of clear and convincing evidence” by demonstrating that “the patient’s prior statements clearly illustrate a serious, well thought out, consistent decision to refuse treatment under these exact circumstances, or circumstances highly similar to the current situation . . . .”
Because of its limited focus on a formerly competent patient, Martin does not resolve the evidentiary standard for a best interests determination, which applies to a patient who was never competent or had never expressed her wishes concerning medical care. However, the reasoning in Martin supporting the clear and convincing standard is overwhelmingly persuasive. The Martin Court noted that the clear and convincing standard is the highest level of proof required in civil proceedings and determined that it is appropriate because it places the risk of error on the party petitioning to withdraw life support. By favoring the status quo, this relatively high evidentiary standard provides an opportunity for meaningful appeal because the patient may still be alive. Therefore, we adopt the clear and convincing evidentiary standard for best interests determinations concerning withdrawing life support.
Ladd, however, claims that referee Schummer was unaware that the clear and convincing evidentiary standard applied to this best interests determination and, therefore, recommended withdrawing baby Allison’s life support on the basis of inadequate evidence. Referee Schummer’s comments at the second hearing and his written findings and recommendations closely match each other. In the space of one page, those written findings and recommendations briefly summarized the evidence before considering a number of factors that the Rosebush Court indicated were appropriate. On the whole, it appears that referee Schummer recommended withdrawing baby Allison’s life support because, in his view, the risks associated with continuing this type of medical care significantly outweighed the benefits, implicitly concluding that it was in baby Allison’s best interests to withdraw her life support.
However, it is apparent to us that referee Schummer simply did not seek out sufficient information to recommend the decision to withdraw baby Allison’s life support. For example, Dr. Delaney-Black’s testimony suggested that there was at least one other physician treating baby Allison and that she and this other physician (or physicians) agreed that baby Allison was going to die regardless of whether she remained on the ventilator and received prostaglandin. Yet, when none of the lawyers presented referee Schummer with a second medical opinion, he did not ask if one was available or why one was unnecessary. Referee Schummer did not even have a copy of baby Allison’s medical record, which was submitted to the family court only in response to the motion for the review hearing in March 1999, after baby Allison died.
Referee Schummer clearly considered Dr. Delaney-Black’s opinion incontrovertible. In reality, Dr. Delaney-Black’s opinion may have been uncontroverted simply because no other physician was called to testify. Though every other physician may have agreed completely with Dr. Delaney-Black, referee Schummer apparently did not even consider the possibility that baby Allison’s diagnosis and prognosis might be debatable. Nor did he ask to hear testimony from any one else who had seen baby Allison or was concerned about her.
Certainly, the evidence on the record was clear. Dr. Delaney-Black’s testimony directly supported referee Schummer’s findings and recommendation and the ultimate “order.” However, this evidence was not convincing. If baby Allison were still alive, we would remand this case to the family court for an evidentiary hearing so the family court could develop a minimally acceptable record describing baby Allison’s diagnosis and prognosis as viewed by others. If that were impossible or unnecessary, the family court would have an opportunity to explain its conclusion. On the basis of this inadequate record, we simply cannot find convincing evidence to support a decision to authorize Children’s Hospital to withdraw baby Allison’s life support. Therefore, we conclude that this decision was clear error.
H. JUDICIAL DECISIONMAKER
Ladd maintains that a judge, not a hearing referee, must make the decision to withdraw life support in every case. Again, we agree. MCL 712A.10 defines the scope of a hearing referee’s authority, providing in relevant part:
(1) Except as otherwise provided in subsection (2), the judge of probate may designate a probation officer or county agent to act as referee in taking the testimony of witnesses and hearing the statements of parties upon the hearing of petitions alleging that a child is within the provisions of this chapter, if there is no objection by parties in interest. The probation officer or county agent designated to act as referee shall do all of the following:
(a) Take and subscribe the oath of office provided by the constitution.
(b) Administer oaths and examine witnesses.
(c) If a case requires a hearing and the taking of testimony, make a written signed report to the judge of probate containing a summary of the testimony taken and a recommendation for the court’s findings and disposition.
Neither the court rules nor any statute permits a hearing referee to enter an order for any purpose. In fact, that a hearing referee must make and sign a report summarizing testimony and recommending action for a judge reveals that the Legislature specifically denied referees the authority to enter orders, no matter their substance.
To paraphrase the Michigan Supreme Court in Campbell v Evans, we do not doubt that hearing referees play an extremely valuable role in the operation of the family courts, especially when attempting to handle emergency cases. However, a hearing referee’s recommendations and proposed order cannot be accepted without judicial examination. “They are a helpful time-saving crutch and no more. The responsibility for the ultimate decision and the exercise of judicial discretion in reaching it still rests squarely upon the trial judge” and may not be delegated. Consequently, when it is apparent that someone other than a judge made the substantive legal decision in a case, the only appropriate appellate response is to re verse. This holds true regardless of whether the case concerns end-of-life issues.
There is no way to demonstrate, solely on the basis of the record, that referee Schummer actually stamped the name of the family court judge on this “order” permitting Children’s Hospital to withdraw life support. However, it is reasonable to assume that he did so. Referee Schummer’s statements at the close of the second hearing are redolent with an assumed judicial authority. Referee Schummer not only referred to himself as the “Court,” he spoke on the record of his “decision” to “authorize the medical procedures ... as requested,” and the right to “appeal” that decision to a family court judge and this Court. The signature on the order is plainly from a rubber stamp, not handwritten. The signature stamp was likely affixed on the same day as the date stamp, which indicates that the order had been examined by a judge on February 18, 1999. Although the family court stated at the review hearing that it had reviewed the record, it did not state that it had reviewed referee Schummer’s findings and recommendations on February 18, 1999. In fact, read closely, the family court’s approval of those findings and recommendations permits us to infer that it had not reviewed referee Schummer’s findings and recommendations until it was preparing to address the petition for review. This was after the “order” was “entered” in the sense that it was placed in the lower court record, representing that it was legally binding. On the whole, the scant evidence in the record supports Ladd’s argu ment that referee Schummer acted outside his authority by “entering” the “order” permitting withdrawal of baby Allison’s life support.
The fia attempts to place the blame for baby Allison’s premature death on the shoulders of the staff of Children’s Hospital who withdrew her life support before the seven-day period specified in the “order” elapsed. Had the medical staff not acted so precipitously, the fia contends, baby Allison would have been able to obtain judicial review of that “order.” However, if anything, this is an additional error in this case, not an excuse for other errors. The point is not just that baby Allison was deprived of a full judicial review hearing or a rehearing before her death rendered those proceedings meaningless. Rather, she was also deprived of her right to have a family court judge make the most serious decision in this case — a decision that ended her life — in the first instance.
Nor did the review hearing make the “order” withdrawing baby Allison’s life support legally valid. A review hearing under MCR 5.991 presupposes that an order has not been entered dealing with the subject of the hearing over which a referee presided. Rather, as MCR 5.991(A) and (E) suggest, the review hearing is intended to allow a judge to determine whether to “affirm, modify, or deny the recommendation of the referee in whole or in part” in a resulting order. Even if MCR 5.991 effectively permitted the family court to hold review hearings to make an order valid by approving it retroactively, the family court did not attempt to do so in this case. The family court did not endorse the “order” at the review hearing in the sense that it made any representation that it had reviewed referee Schummer’s findings and recommendations, that it had personally signed and entered the “order,” or that it was somehow taking responsibility for the “order” one month after its supposed entry. In reality, the review hearing in this case was more like a rehearing under MCR 5.992, in which a “judge may affirm, modify, or vacate the decision previously made in whole or in part. . . .” However, there was no valid decision to re hear.
The court rules and statutes prescribing procedures for protective proceedings are not just technical obstacles that may be discarded in the name of expediency or even in the understandable rush to protect a child. Rather, taken together, the statutes and court rules reflect standards that are essential to the administration of justice. The statutes and court rules make the proper procedures in a protective proceeding clear. It should be equally clear that they must be followed. Thus, we conclude, the way the “order” was entered following the second hearing constituted independent error requiring reversal because of this significant deviation from MCL 712A.10.
XIII. COUNSEL
A. LADD’S ARGUMENT
Ladd raises several arguments concerning baby Allison’s right to counsel. First, he maintains that baby Allison’s right to counsel imposed substantive obligations on her attorneys. Second, he claims that his participation in the first hearing constituted a formal appearance as baby Allison’s attorney under the court rules. Third, he contends that his failure to file a written appearance did not excuse the fia and the family court from giving him notice of the second hearing. Fourth, he argues that substituting Mahinske was improper without a determination on the record that there was good cause to substitute counsel. Fifth, he asserts that Mahinske failed to act effectively on behalf of AMB as she was required to do.
Some of Ladd’s individual counsel issues do not relate directly to whether Mahinske rendered effective assistance of counsel, his centerpiece argument. Nevertheless, examining the procedures that apply to counsel for a minor child in a protective proceeding illustrates the nature of an attorney’s obligation to a minor child. Viewed broadly, the question we must consider is what, or how much, a minor child can expect of the attorney appointed to represent the child in a protective proceeding. Narrowly, the question we must address is whether baby Allison was afforded the representation to which she was entitled.
B. EIGHT TO EFFECTIVE COUNSEL
The Sixth Amendment right to counsel and the analogous state right to counsel articulated in Const 1963, art 1, § 20 do not apply directly to child protective proceedings because these proceedings are civil, not criminal, in nature. Although certain elements of a criminal defendant’s rights to an effective attorney apply in child protective proceedings, the right to counsel in a protective proceeding is statutory, not constitutional.
Published case law pays little attention to a child’s right to counsel in a protective proceeding. However, this Court has held that a child’s right to counsel is the right to “zealous advocacy” under MCL 712A.17c(7), as well as the analogous court rule, MCR 5.915(B)(2). In fact, both MCL 712A.17c(7) and MCR 5.915(B)(2) provide basic information about the obligations an attorney has to a minor child who is her client.
In February 1999, MCL 712A.17c(7) stated, in pertinent part:
The appointed attorney shall observe and, dependent upon the child’s age and capability, interview the child. If the child is placed in foster care, the attorney shall, before representing the child in each subsequent proceeding or hearing, review the agency case file and consult with the foster parents and the caseworker. The child’s attorney shall be present at all hearings concerning the child and shall not substitute counsel unless the court approves.
The plain language of this provision imposed duties on an attorney to investigate and consult. Even performing these duties in a minimal manner would have allowed an attorney to learn (1) the circumstances that led to the protective proceeding, (2) what a child who was capable of communicating viewed as her needs, (3) what the adults involved in the case viewed as the child’s needs, and (4) what services were being provided for the child to address those needs. Implicit in this legislative directive was a requirement that an attorney act on this information so that the family court orders the care a child needs. Had the Legislature not intended to impose on attorneys the obligation to act on behalf of a minor client, the Legislature would not have required the attorney to appear at the hearings. MCR 5.915(B)(2) also reflects a child’s right to a competent attorney and is substantively similar to MCL 712A.17c, as it appeared in February 1999.
The Child Protection Law, MCL 722.621 et seq., which requires legal representation for children who are involved in court proceedings because of abuse or neglect, is also instructive. When this case was pending in February 1999, MCL 722.630 enumerated more specific duties for an attorney appointed under the Child Protection Law. At that time MCL 722.630 stated:
The court, in every case filed under this act in which judicial proceedings are necessary, shall appoint legal counsel to represent the child. The legal counsel, in general, shall be charged with the representation of the child’s best interests. To that end, the attorney shall make further investigation as he deems necessary to ascertain the facts, interview witnesses, examine witnesses in both the adjudicatory and dis-positional hearings, make recommendations to the court, and participate in the proceedings to competently represent the child.
MCL 722.630 went beyond MCL 712A.17c(7) and the analogous court rule by prescribing the standard that must guide the attorney’s representation and the need to investigate, use professional judgment, and participate in proceedings in both an active and competent manner. Yet, this version of MCL 722.630 clearly referred to the protective proceeding that can be instituted following a report under the Child Protection Law. Plainly, then, the duties of a lawyer in a case stemming from a report of child abuse or neglect are the duties of all lawyers representing children in protective proceedings. In fact, the Child Protection Law, MCL 722.622(a), defines an “attorney” by referring to the obligations of an attorney as described in the Juvenile Code, MCL 712A.13a. Thus, though MCL 712A.17c(7) as in effect in February 1999 did not describe an attorney’s duties in great detail, MCL 722.630 illustrated those duties.
In both the Child Protection Law and the Juvenile Code, the Legislature made clear that a child’s attorney has the same duties that any other client’s attorney would fulfill when necessary. Those duties, such as the duty to investigate, examine witnesses, and appear at hearings on behalf of the client, are inherent in each attorney’s ethical obligations. For instance, MRPC 1.1 mandates that “[a] lawyer shall provide competent representation to a client.” Subsection b of that rule prohibits a lawyer from “handl[ing] a legal matter without preparation adequate in the circumstances.” As the comment following MRPC 1.1 relates:
Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lesser consequence.
Even in high stakes cases with a great deal of urgency, attorneys have specific ethical obligations. The comments following MRPC 1.1 further explain:
In an emergency, a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s interest,[ ]
Thus, lawyers have duties to their clients that may transcend the minimum standards of conduct that the Legislature imposes in a statute. Clients, whether children or adults, have the right to expect their attorney will perform these duties. Indeed, the right to an attorney would be meaningless if a minor child who is the subject of a proceeding that can change — or end — her life could not expect that the attorney representing her will do so effectively.
Case law does not prescribe standards to determine whether a child was denied the effective assistance of counsel. There is a conceptual misfit between the defective performance and prejudice test for ineffective assistance of counsel claims in criminal cases and the question of effective assistance to a child in a protective proceeding. Unlike the defendant and prosecutor in a criminal proceeding, a child and the petitioner in a protective proceeding do not always have adverse interests. When a child’s attorney performs inadequately, the petitioner may still protect the child’s interests, eliminating any prejudice to the child.
In our view, the best analysis of a child’s right to effective assistance under the system of representation in place before March 1, 1999, requires determining whether the attorney’s conduct complied with the applicable statutes, court rules, rules of professional conduct, and any logically relevant case law. To merit relief, there must be evidence that the defective representation led to an outcome that was not clearly in the child’s best interests. This adaptation of the traditional test for ineffective assistance of counsel is fitted to the special purpose of a protective proceeding: acting in the child’s best interests.
If there is proof that a child was denied her right to effective assistance of counsel, the critical issue then becomes determining the appropriate remedy. In Shaffer, having determined that the children were denied the effective assistance of counsel, this Court remanded the case for further proceedings, essentially reinstituting the protective proceeding despite the probate court’s decision to return the children to their mother. Though we have no relief to offer baby Allison, Shaffer implies that the full panoply of necessary remedies are available to a child denied the effective assistance of counsel in a protective proceeding.
C. APPEARANCE AND NOTICE
Ladd’s contention that his appearance in the family court at the first hearing constituted a formal appearance is part of an indirect challenge to the way referee Schummer ensured — or failed to ensure — that baby Allison was represented by competent counsel at the second hearing. Ladd apparently contends that failing to give him notice of the hearing, to which he was entitled under MCR 5.921(B)(1)(c), functionally deprived baby Allison of adequate representation. This claim that he formally appeared is calculated to contradict the fla’s argument that he was not baby Allison’s lawyer at the second hearing.
MCR 5.915(C) states that “[t]he appearance of an attorney is governed by MCR 2.117(B).” MCR 2.117(B), in turn, prescribes in relevant part:
(1) In General. An attorney may appear by an act indicating that the attorney represents a party in the action. An appearance by an attorney for a party is deemed an appearance by the party. Unless a particular rule indicates otherwise, any act required to be performed by a party may be performed by the attorney representing the party.
(2) Notice of Appearance.
(a) If an appearance is made in a manner not involving the filing of a paper with the court, the attorney must promptly file a written appearance and serve it on the parties entitled to service. The attorney’s address and telephone number must be included in the appearance.
(b) If an attorney files an appearance, but takes no other action toward prosecution or defense of the action, the appearance entitles the attorney to service of pleadings and papers as provided by MCE 2.107(A).
According to MCR 5.915(E), an attorney who is appointed by the court to represent a party remains the client’s attorney “until discharged by the court.” Having not been “discharged” by the family court at any time in these proceedings, Ladd was baby Allison’s attorney at all times in this case. This entitled Ladd to notice of other proceedings.
Ladd does not contend that he actually filed a written appearance before the second hearing, which occurred on February 17, 1999. Yet, it is not clear whether this was a failure to comply with the filing requirement in MCR 2.117(B)(2)(a). Though MCR 2.117(B)(2)(a) required Ladd to file a written appearance with the family court “promptly,” the court rule neither defines promptness nor penalizes a failure to file a written appearance “promptly.”
The fia attempts to justify its failure to give notice to Ladd by noting that referee Schummer had not presided at the first hearing and did not know that Ladd represented baby Allison. However, when referee Schummer commenced the second hearing, Mahinske stated that she was appearing for baby Allison as “emergency house counsel.” This was sufficient to inform referee Schummer that Mahinske was not the attorney originally appointed to represent baby Allison and to prompt him to inquire into Ladd’s whereabouts. If that information did not appear in the record or if Mahinske did not know that Ladd was baby Allison’s attorney, Matlock, who was at the first hearing, could have revealed that Ladd had already appeared. If Matlock did not know Ladd’s name, the assistant attorney general representing the fia at the second hearing should have had that information. In short, there were ways to determine who was representing baby Allison in this case, but no one involved in the second hearing attempted to do so. Consequently, referee Schummer did not “ensure” that Ladd, who was entitled to notice, actually received notice of the hearing or that there were any circumstances that would have excused notice to him. This was error.
D. MAHINSKE’S SUBSTITUTION
We know of no absolute requirement that the same attorney represent a child throughout a protective proceeding. In fact, there may be good reasons not to require that an attorney appointed on the spot to represent a child at a preliminary hearing continue to represent the child in the rest of the protective proceeding. However, when read together, MCR 5.915(B)(2)(a), the attorney appearance rule, and MCR 5.915(E), the attorney discharge rule, demonstrate a policy that favors consistent legal representation when possible, thereby disfavoring attorney substitutions. Not surprisingly, then, MCR 5.915(B)(2)(d) provides:
The court may permit another attorney to temporarily substitute for the child’s attorney at a hearing, if that would prevent the hearing from being adjourned, or for other good cause. An attorney who temporarily substitutes for the child’s attorney must be familiarized with the case and, for hearings other than a preliminary hearing or emergency removal hearing, must review the agency case file and consult'with the foster parents and caseworker prior to the hearing unless the child’s attorney has done so and communicated that information to the substitute attorney. The court shall inquire on the record whether the attorneys have complied with the requirements of this subrule.
The word “shall” makes the court’s inquiry into the temporary substitute’s readiness mandatory. There is no basis to presume that the Supreme Court intended for this to be an empty inquiry. If the substitute attorney is not prepared to proceed, there would be good cause for an adjournment under MCR 5.923(G)(2).
Referee Schummer knew, or should have known, that Mahinske was not baby Allison’s appointed counsel but he did not ask Mahinske on the record about her preparation. He did not even ask a pro forma, “Ready?” of the attorneys. Referee Schummer plainly failed to comply with MCR 5.915(B)(2)(d). Whether Mahinske was prepared to represent baby Allison or whether she failed to bring to referee Schummer’s attention the fact that she was not prepared does not, under the language of this court rule, excuse referee Schummer’s failure to make this inquiry. This inquiry is designed to ensure that the court, in this case referee Schummer, is aware of whether the attorney representing the child is prepared to proceed. As protection for the child, MCR 5.915(B)(2)(d) acknowledges that many children do not attend protective proceedings, nor do they have the capacity, maturity, experience, or schooling to understand when an attorney is failing to represent their interests adequately. It is therefore incumbent on the court to make this inquiry.
While a failure to conduct this inquiry would be rendered harmless if the child nevertheless received effective representation, our analysis indicates that Mahinske did not act effectively under the circumstances. Thus, under the specific facts of this case, referee Schummer’s failure to conduct this inquiry constituted error requiring reversal.
E. MAfflNSKE’S PREPARATION AND PERFORMANCE
The criminal case law concerning effective assistance of counsel indicates that, absent an evidentiary hearing, only errors that plainly exist on the record can demonstrate ineffectiveness that violates the right to counsel. Although we might remand this case for an evidentiary hearing to clarify a number of issues related to Mahinske’s representation, remand would only waste scarce judicial resources because there is no remedy for baby Allison. Thus, we examine the record to determine whether Mahinske performed defectively and whether any such ineffectiveness prejudiced baby Allison by leading to a result that was not in her best interests.
Ladd recites a litany of acts that he claims demonstrates Mahinske’s performance was ineffective. In fact, an attorney can be ineffective for failing to investigate a case, prepare for a proceeding, call and examine witnesses, present a legal argument, object to improper testimony, or myriad other actions if they are sufficiently prejudicial. In this case, we agree that Mahinske’s failure to ask for a continuance or otherwise demonstrate on the record that she was prepared to represent baby Allison was deficient performance. The record does not reveal whether Mahinske was “familiarized with the case,” had “reviewed] the agency case file and consulted] with the . . . caseworker prior to the hearing,” determined that “the child’s attorney ha[d already] done so,” or whether Ladd conveyed that information to her. We can assume that Ladd had not communicated any necessary information to Mahinske in time for the second hearing, because he did not learn about that hearing until after it had occurred. Though courts traditionally presume an attorney acted effectively absent compelling evidence to the contrary, the tone of Mahinske’s capitulation to the fia’s request for authorization to withdraw baby Allison’s life support and her failure to question Matlock suggest that whatever preparation she undertook was not adequate. Minimally, Mahinske should have asked for a continuance to prepare.
Even, however, if Mahinske technically complied with MCR 5.915(B)(2)(d) by doing some preparation for the second hearing, she had no meaningful knowledge of what her obligations to baby Allison meant in practice. For instance, Mahinske did not have an absolute duty to arrange for Dr. Delaney-Black to testify in person. However, Mahinske had an obligation to investigate whether she could rely on Dr. Delaney-Black’s testimony as wholly authoritative. In other words, even if Mahinske did not or could not secure a second opinion from an independent physician, she should have developed the record so that it reflected why the family court could trust Dr. Delaney-Black’s testimony completely.
The fia claims that Ladd is not entitled to raise this effective assistance of counsel issue because he was also ineffective during the family court proceedings. This is nonsense. In essence, the fia argues that two incompetent attorneys somehow negate each other’s allegedly harmful effects on their client. The fia has not provided any authority to support this argument, and, not surprisingly, we have found none. Baby Allison was entitled to an attorney who would represent her competently. In light of her inadequate preparation and her acquiescence in the decision to withdraw life support without convincing evidence, we conclude that Mahinske’s representation was ineffective.
XIV. LOCAL COURT RULE
Ladd claims that the order permitting the staff of Children’s Hospital to end baby Allison’s life support was invalid because referee Schummer relied on an unapproved local court rule permitting “medical authorization” petitions. As Ladd points out, in Schlender v Schlender, this Court reversed a trial court’s order denying a motion for a change in child custody after concluding that the trial court had improperly denied the movant an evidentiary hearing pursuant to a local court rule that the Supreme Court had not approved.
The problem with applying Schlender to this case is there is absolutely no evidence of a local court rule or administrative policy guiding the proceedings. Though the record includes a number of references to a petition for “medical authorization,” Ladd has not provided the Court with a copy of any local court rule or policy in effect in February 1999, much less one that purports to allow or control petitions seeking permission for medical treatment. Though the fia has submitted a copy of the Third Judicial Circuit’s case management rule C.9 dated June 13, 2000, entitled “Protective Proceedings: Hospitalizations and Medical Authorizations,” there is no evidence that the procedures outlined in it were in effect in February 1999. In fact, the family court’s comments at the end of the review hearing that “a review of the procedure will take place and an administrative order will be issued by this Court for future cases” suggests that there were no specific procedures in place for dealing with this sort of case. Accordingly, we cannot conclude that a local court rule guided the proceedings in this case, irrespective of whether the Supreme Court approved it.
XV. “HARMLESS” ERROR
There can be little question that the string of errors in this case affected baby Allison’s substantial rights and cast doubt on the fundamental fairness of the proceedings. In another case, some of the procedural errors, such as referee Schummer’s failure to inquire whether Mahinske was prepared to represent baby Allison, might not require reversal. However, given that each of these errors contributed to the decision to withdraw baby Allison’s life support without convincing evidence that doing so was in her best interests, the accumulation of errors in this case cannot, by definition, be considered harmless.
XVI. CONCLUSION
General Charles de Gaulle’s daughter, Anne, was bom retarded. She was unable to feed or clothe herself, or speak well. De Gaulle was a notoriously aristocratic and aloof man, but for all his daughter’s life he spent hours “playing simple games with her and at night he would hold her hand until she fell asleep.” In 1948, Anne died after she contracted a lung ailment. At his daughter’s funeral, de Gaulle turned to his wife and said, “Now at last our child is just like all children.”
It almost certainly did not occur to Charles de Gaulle that his daughter should be put to death for her disabilities. We again observe that we can fashion no remedy that will unmake the decisions that led to baby Allison’s death; now she is, in the true meaning of de Gaulle’s heartbreaking phrase, just like all children. Moreover, we do not hold that life support can never be withheld or removed from a desperately ill and suffering child, although we acknowledge that linking the removal of life support to the child’s best interests is, on the surface, enormously jarring.
We emphasize, instead, that the judicial branch is almost entirely reactive. Courts respond only to matters that are brought before them, taking cases as they exist: troubling facts, imperfect records, and all. This is but one of many reasons why the decision to withdraw life-sustaining medical care from a desperately ill child is one that should rarely involve the courts. As Rosebush, still a seminal case in Michigan jurisprudence concerning the subject of end-of-life decisions, aptly put it: “[T]he decision-making process should generally occur in the clinical setting without resort to the courts, but . . . courts should be available to assist in decision making when an impasse is reached.”
Here, the family court did not become involved because an impasse existed. Rather, in the final analysis, the family court became involved because the state, through the fia, apparently took it upon itself to assume the mantle of responsibility to act as baby Allison’s surrogate. While asking the family court simply to decide what was in baby Allison’s best interests, the fia directly pressed for an order authorizing Children’s Hospital to remove her life support. This ran exactly contrary to the warning in Rosebush that judicial involvement in such a decision is unwarranted other than as a last resort. Notably, this warning extends not merely to the courts that must, in the most extreme cases, assist in resolving impasses, but also to those, like the fia, who bring these cases to the courts’ attention.
Moreover, in the accelerating rush to judgment that occurred here, the series of legal errors and missteps following the preliminary hearing compounded what was already an excruciatingly difficult and complex situation. The record strongly suggests that no one involved in the protective proceeding had ever communicated directly with baby Allison’s parents and that only Dr. Delaney-Black had ever seen baby Allison. Thus, a statutory process designed to protect individual rights, to allow the intelligent exercise of these rights, and to assure balanced and considered decision making became, instead, the opposite. This indicates such a relentless disregard for basic princi pies that in this opinion we have attempted to assure that this tragedy — and a tragedy it was, in every sense of the word — is never repeated in our state.
Reversed.
Collins, J., concurred.
McDonald, J., did not participate.
APPENDIX a
SUMMARY OF HOLDINGS
In a protective proceeding, a family court’s subject-matter jurisdiction depends solely on whether the petition alleges facts that fit within MCL 712A.2(b) and are not merely frivolous. A family court does not lose subject-matter jurisdiction in a protective proceeding solely because a serious medical decision must be made, including whether to withdraw life support. Neither capta nor emtala specifically prohibits a family court from considering whether to withdraw life support. Though discrimination in judicial proceedings may give rise to a due process or equal protection argument that may be asserted on appeal, the ADA and the pwdcra may not be used to challenge a family court decision when neither act was at issue in the family court.
The family court must comply with the notice requirements in MCR 5.920 and MCR 5.921 to establish personal jurisdiction over respondents. As critical as personal jurisdiction is, the right to notice is personal and cannot be challenged on appeal by anyone other than the person deprived of notice. Aside from the statutory right to notice, ordinary procedural due process principles determine whether the family court can hold a hearing without offering notice and an opportunity to be heard to individuals whose interests are affected.
MCL 712A.18f(4) does not permit the family court to enter a dispositional order of any sort before it properly finds that the child comes within its jurisdiction pursuant to MCL 712A.2(b). However, if the family court places the child in out-of-home care, MCL 722.124a(l) permits a family court to order routine, nonsurgical medical care or emergency medical or surgical treatment even before holding an adjudication on the petition. This statute grants a family court the authority to enter an order allowing medical personnel to withdraw life support from a minor child if the medical or surgical care ceases to be treatment. However, the family court must make every possible effort to respect the policy disfavoring judicial intervention in a life support decision by holding an adjudication before making that decision.
When considering whether to withdraw life support, the family court must first determine whether the minor child is of an age and maturity to make her own decision concerning her treatment. If the child is old enough and mature enough, even though still a minor, she has the right to refuse treatment as the corollary to the right to give informed consent. If the child is not competent to make such a decision for herself, the court must consider whether the child was once competent to make this decision. If the child was once competent and there is clear and convincing evidence that she had expressed an intent to refuse the treatment at issue under the circumstances, then the family court must enforce her choice under the substituted-judgment decisional standard. If the child was never competent or had not expressed any wishes concerning treatment under the circumstances, the family court must examine what is in the child’s best interests. The family court must have clear and convincing evidence under either the substituted-judgment or best interests standard in order to withdraw life support.
As the family court is considering the child’s competence, it should also determine whether to appoint a guardian ad litem for the child unless the current statutory scheme provides otherwise. Though a lawyer appointed to represent the child in proceedings before March 1, 1999, may have also served as a guardian ad litem, the family court should have considered whether the circumstances warranted appointing a different individual as the guardian ad litem.
In cases before and after March 1, 1999, if a parent or other surrogate who would ordinarily make a medical decision for the child is allegedly incompetent, the family court must have clear and convincing evidence of that person’s incompetence before depriving that person of the opportunity to make the life support decision. There is no presumption of incompetency in this context. Other good reasons may also exist to justify depriving a parent or other surrogate of the opportunity to make the life support decision.
If a case calls for a best interests determination, the family court must consider all relevant factors as outlined in Rosebush. Additionally, the family court may weigh the presence or absence of medical consensus, the factors that contributed to medical disagreement or agreement, and the factors that make any independent physician opinion more or less relevant to the ultimate decision to withdraw life support.
No matter the value of informal practice in the family courts, strict adherence to the statute and court rales is the only acceptable choice in cases involving withdrawal of life support. MCL 712A.10 permits a referee to conduct a hearing relevant to a request to withdraw life support. However, the referee must make written findings and recommendations to submit to a judge. MCR 5.991 then grants the parties seven days in which to request full judicial review. If the circumstances in a case require immediate action, then the parties and the family court may agree to have a judge hear the case immediately, stipulate the facts, or take other steps to expedite the proceedings. After the review process, or even if there is no request for judicial review, a judge must make the decision, in fact and not merely in form, and must then personally sign any order.
Throughout a proceeding under the Juvenile Code, a child has the right to an attorney who is her zealous advocate. MCR 5.915 and MCL 712A.17c(7), as well as MCL 712A.17d and MCL 712A.13a(l)(b) for cases after March 1, 1999, impose substantive obligations on the child’s attorney. MCL 722.630, relevant case law, and the rules of professional conduct are also helpful in defining an attorney’s obligations. The court rules disfavor substituting attorneys for a child when at all possible. However, when it is necessary to provide a temporary substitute for the child’s attorney, the family court plays an important role in ensuring that this attorney is prepared to render zealous advocacy by engaging in the inquiry prescribed in MCR 5.915(B)(2)(d). Courts test whether a child was denied the effective assistance of counsel in a case under the system in place before March 1, 1999, by examining whether the child’s attorney’s conduct departed from these substantive obligations and whether that deficient performance led to an outcome that was not in the child’s best interests. If the attorney was ineffective, the reviewing court may order appropriate relief, including reinstituting protective proceedings if necessary.
APPENDIX B
Issues in the application for leave to appeal to the Michigan Supreme Court addressed in this opinion Opinion references
Issue iv: Where the child was never adjudicated a temporary ward of the court, she had the standing to raise all the issues before the court, including those which specifically effected [sic] the parent(s). Section VI Ante at 173-176.
Issue v: The family division of the circuit court did not have subject-matter or personal jurisdiction to authorize the withdrawal of life support in a case brought under the Juvenile Code. Section v Ante at 165-173.
Issue vi: Assuming arguendo that the court did have proper jurisdiction over the parties and the subject matter, the court did not have the statutory authority to enter a dispositional order authorizing the withdrawal of life support. Sections vn and vm Ante at 176-183.
Issue vii: Regardless of whether the circuit court’s family division had the authority to act in this case, that authority could not have been exercised solely by a referee of the court. Section xn Ante at 197-220.
Issue viii: Regardless of any jurisdictional infirmities the parties and the court ignored remedies and procedures that were available under statutes and case law. Section xn Ante at 197-220.
Issue ix: The child was denied her statutorily mandated right to counsel where the referee held a hearing without her court-appointed attorney and instead held a hearing on the withdrawal of life support with an “emergency house counsel” who did not fulfill her statutory or legal duties. Section xm Ante at 220-234.
Issue x: The referee violated a number of federal and state statutes directed at the protection of children, seriously ill individuate, and the disabled where he precipitously ordered the withdrawal of life support and medication from the child. Sections ix, x, and XI Ante at 183-197.
Issue xi: Where the primary issues before the Gourt were whether or not to withdraw life-sustaining medical treatment and whether the mother was capable of consenting to medical treatment or its withdrawal, the lack of legally admissible evidence was clear error. Section xn Ante at 197-220.
See 1998 PA 480.
There is a dispute in the record concerning whether baby Allison had DiGeorge’s Syndrome, which would make her particularly suceptible to infection.
Judge Whitbeck was a member of that panel.
462 Mich 882 (2000).
See United States Fidelity & Guarantee Co v Citizens Ins Co, 241 Mich App 83, 85; 613 NW2d 740 (2000).
See MCR 2.613(C).
See MCL 712A.1 et seq.
Grubb Creek Action Comm v Shiawassee Co Drain Comm’r, 218 Mich App 665, 668; 554 NW2d 612 (1996).
See DAIIE v Maurizio, 129 Mich App 166, 172; 341 NW2d 262 (1983); see also Black’s Law Dictionary (6th ed), p 1425 (Subject-matter jurisdiction is a “court’s power to hear and determine cases of the general class or category to which proceedings in question belong; the power to deal with the general subject involved in the action.”).
Joy v Two-Bit Corp, 287 Mich 244, 253-254; 283 NW 45 (1938), quoting Richardson v Ruddy, 15 Idaho 488, 494-495; 98 P 842 (1908), quoting Brown on Jurisdiction, § 1a.
Bandfield v Wood, 104 Mich App 279, 282; 304 NW2d 551 (1981).
See In re Estate of Fraser, 288 Mich 392, 394; 285 NW 1 (1939).
See MCL 600.1021(1)(e); see also MCL 600.1009.
See MCL 712A.1(3) (“This chapter shall be liberally construed so that each juvenile coming within the court’s jurisdiction receives the care, guidance, and control . . . conducive to the juvenile’s welfare . . . .”); In re Brock, 442 Mich 101, 107-108; 499 NW2d 752 (1993) (“The purpose of child protective proceedings is the protection of the child . . . .” and “The juvenile code is intended to protect children from unfit homes . . ..”); see also In re Macomber, 436 Mich 386, 389; 461 NW2d 671 (1990) (“The Legislature has given a broad grant of authority to the probate court to protect children who come within its jurisdiction.”).
In re Hatcher, 443 Mich 426; 505 NW2d 834 (1993).
Id. at 437.
Id. at 433-435.
Id. at 437438.
See MCR 5.965(B)(9).
See Joy, supra.
Altman v Nelson, 197 Mich App 467, 473; 495 NW2d 826 (1992).
Id.; see also Hatcher, supra at 437.
Altman, supra at 473 (emphasis added).
Hatcher, supra at 444.
See In re Rosebush, 195 Mich App 675, 683, 688-690; 491 NW2d 633 (1992); see also In re Martin, 450 Mich 204; 538 NW2d 399 (1995).
Rosebush, supra at 687.
In re Infant C, 1995 WL 1058596 (Va Cir Ct, 1995).
See Rosebush, supra at 680-682; see also In re Martin, supra at 216.
See, generally, Causey v St Francis Medical Center, 719 So 2d 1072, 1074 (La App, 1998) (family claimed that removing life support was unauthorized “treatment” constituting battery).
See In re Juvenile Commitment Costs, 240 Mich App 420, 440; 613 NW2d 348 (2000).
MCL 712A.12; see also MCR 5.920.
See In re Mayfield, 198 Mich App 226, 231; 497 NW2d 578 (1993).
The case law holding that failure to give notice is a jurisdictional defect arises in the context of the hearing to terminate parental rights because of the notice requirement in MCL 712A.12. However, MCR 5.921(B) uses equally clear mandatory language requiring the family court to “ensure” notice to certain individuals in other types of hearings. Thus, there is no obvious rationale for concluding that notice was not necessary in this case because there was no termination hearing.
See In re Atkins, 237 Mich App 249, 251; 602 NW2d 594 (1999).
See In re NEGP, 245 Mich App 126, 134; 626 NW2d 921 (2001).
See MCR 5.965(B)(1), (2).
See MCR 5.921(B)(1)(a).
But see id. (notice to respondent is mandatory).
MCR 5.921(B)(1) (the family “court shall ensure” notice [emphasis added]).
See, e.g., MCR 5.920(E); MCR 5.921(D)(3).
See In re Terry, 240 Mich App 14, 21; 610 NW2d 563 (2000).
See Macomber, supra at 400 (“There is no general statutory authorization for referees or judges to make dispositional orders prior to trial.”).
Alternatively, the respondent may enter a plea of admission or a no contest plea to the allegations in the petition, making a Ml trial unnecessary. See MCR 5.971.
In re Bechard, 211 Mich App 155, 158; 535 NW2d 220 (1995).
See n 41, supra.
See MCR 5.972(C)(1); In re Snyder, 223 Mich App 85, 88-89; 566 NW2d 18 (1997).
See Brock, supra at 108-109.
See MCR 5.973(A).
Id. (“A dispositional hearing is conducted to determine measures to be taken by the court with respect to the child properly within its jurisdiction . . . once the court has determined following trial, plea of admission, or plea of no contest that the child comes within its jurisdiction.”).
See In re Albring, 160 Mich App 750, 756; 408 NW2d 545 (1987); see also Bechard, supra at 157, citing MCR 5.962(B)(3); MCR 5.965.
Emphasis added.
See MCR 5.963, 5.965, 5.973.
Random House Webster’s College Dictionary (2d ed, 1997), p 1371; see also Hoover Comers, Inc v Conklin, 230 Mich App 567, 572; 584 NW2d 385 (1998) (presumptively the Legislature intended to give words in a statute their plain meaning and courts may use dictionary to ascertain that meaning).
Random, House Webster’s College Dictionary, supra at 1370.
Id. (emphasis added).
Note, however, that palliative care, such as pain management, nutrition, and even counseling, may still be effective at “relieving” a patient for whom no cure of an underlying illness is possible. The facts of this case do not require us to consider whether this statute provides any basis for ceasing palliative care.
MCL 722.111(1)(b).
See Macomber, supra at 389.
42 USC 5101 et seq. Although truncated, capta is the common acronym used for this act.
The parties and some of the organizations serving as amici curiae have hotly debated whether the state has any legitimate interest in petitioning the family court to withdraw life support. However, we restrict our analysis to whether capta prevents the fia from seeking a court order that permits withdrawal of life support.
Jeanine B v Thompson, 877 F Supp 1268, 1285-1286 (ED Wis, 1995).
42 USC 5106a(b)(2)(B) (emphasis added).
Emphasis added.
Congress drafted 42 USC 5106g(6) in the disjunctive, indicating that a health condition need not meet every circumstance listed to be excluded from the definition of medical neglect. See, generally, Caldwell v Chapman, 240 Mich App 124, 131; 610 NW2d 264 (2000).
42 USC 1395dd.
42 USC 1395dd(a).
42 USC 1395dd(b).
42 USC 1395dd(b)(1)(B); see also 42 USC 1395dd(c)(2).
42 USC 1395dd(b)(1)(A).
In re Baby K, 16 F3d 590 (CA 4, 1994).
Id. at 592.
Id.
Id.
Id.
Id. at 592-593.
Id. at 593.
Id.
Id.
Id.
Id.
Id.
Id. at 594-595.
Id. at 595-596.
Id. at 596.
Id. at 597.
Id. at 597-598.
Id. at 592; see also id. at 598.
When the Sixth Circuit partially rejected Baby K and interpreted EMTALA to require evidence of “improper motive” in a hospital’s transfer decision, the United States Supreme Court reversed. Roberts v Galen of Virginia, Inc, 525 US 249; 119 S Ct 685; 142 L Ed 2d 648 (1999).
Bryan v Rectors & Visitors of Univ of Virginia, 95 F3d 349, 351 (CA 4, 1996).
Id. at 350.
Id.
Id.
Id.
Id. at 349-350.
Id. at 350.
Id. at 351.
Id. at 351-352 (emphasis added).
Id. at 352.
Id. at 353.
See Terry, supra at 25-26 (the fia is subject to the ADA); see also Soto v City of Newark, 72 F Supp 2d 489, 494-495 (D NJ, 1999) (court violated the ADA by refusing three requests by profoundly deaf plaintiffs to provide a qualified sign language interpreter at their wedding ceremony in a courthouse, which plaintiffs could not understand); Matthews v Jefferson, 29 F Supp 2d 525, 534 (WD Ark, 1998) (county court violated the ADA by scheduling three hearings in a second-floor courtroom that the wheelchair-bound litigant could not access); State v PE, 284 NJ Super 309, 316-317; 664 A2d 1301 (1994) (the ADA and state antidiscrimination law required a court to appoint an attorney to represent a mentally ill defendant in order to ensure the defendant’s court access).
See Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
Terry, supra at 27.
See In re Hildebrandt, 216 Mich App 384, 388; 548 NW2d 715 (1996).
Green v North Arundel Hosp Ass’n, Inc, 126 Md App 394; 730 A2d 221 (1999), cert gtd 356 Md 17 (1999), aff’d 2001 WL 1491567 (Md).
Id. at 398.
Id. at 400.
Id.
Id. at 401.
Id. at 416.
Id. at 416-417.
But see Bd of Trustees of the Univ of Alabama v Garrett, 531 US 356, 375; 121 S Ct 955; 148 L Ed 2d 866 (2001) (eliminating right to money damages in ada title I suits against states, but not the right to sue for injunctive relief).
See Green, supra at 417-423 (considering whether child’s exclusion from the courtroom violated his rights to due process or access to the courts as a member of the public).
See People v Brown, 173 Mich App 202, 213-214; 433 NW2d 404 (1988), rev’d on other grounds sub nom People v Juillet, 439 Mich 34; 475 NW2d 786 (1991) (unavailing due process and equal protection claims for discrimination on the basis of his status as a former state senator).
See, generally, People v Bearss, 463 Mich 623, 630; 625 NW2d 10 (2001) (reversed and remanded because Court of Appeals violated defendant’s right to due process by directing a guilty verdict on a cognate lesser offense); Green, supra at 417-423; People v Collins, 239 Mich App 125, 133-138; 607 NW2d 760 (1999) (defendant entitled to resentencing because the trial court’s restitution order violated his right to equal protection).
Although not addressed in the briefs originally filed in this appeal, we have given Ladd, the fia, and the amici curiae an opportunity to address this issue.
See Werth v Taylor, 190 Mich App 141, 145; 475 NW2d 426 (1991), citing Cruzan v Director, Missouri Dep’t of Health, 497 US 261; 110 S Ct 2841; 111 L Ed 2d 224 (1990), and In re Quinlan, 70 NJ 10; 355 A2d 647 (1976).
See Rosebush, supra at 681-682.
Id. at 682, n 4.
See Werth, supra.
See, generally, Martin, supra at 209-210 (hearing to determine whether to withdraw life support also included evidence establishing that patient could not make his own decision).
See Rosebush, supra at 683.
Id. at 688-689.
Id. at 688, quoting In re Conroy, 98 NJ 321, 365; 486 A2d 1209 (1985).
See Rosebush, supra at 689-690.
Id. at 690, quoting In re Guardianship of Grant, 109 Wash 2d 545, 568; 747 P2d 445 (1987), amended 757 P2d 534 (1988), quoting Conroy, supra at 397. (Handler, J., concurring in part and dissenting in part).
See Martin, supra at 222. Note that this case revolves around MCL 722.124a(1) and does not completely rely on the common-law right to refuse care.
See Martin, supra at 223-225 (only declining to apply the best interests standard because the patient had been competent and had expressed his wishes).
Rosebush, supra at 682.
Cf. In re KI, 735 A2d 448 (US App DC, 1999).
Ladd’s arguments as a whole lead us to believe that in this argument he is referring to a guardian ad litem, not a guardian. In no way do we intend to change the family court’s ability to appoint a guardian for a child in a protective proceeding.
Rosebush, supra at 682, n 5.
Id. at 679.
In re Guardianship of Barry, 445 So 2d 365, 372 (Fla App, 1984).
Rosebush, supra at 685, 687.
In re Shaffer, 213 Mich App 429, 432-433; 540 NW2d 706 (1995).
See Rosebush, supra at 686-687, quoting In re LHR, 253 Ga 439, 446-447; 321 SE2d 716 (1984).
See Shaffer, supra at 434-436.
MCR 5.916(A).
See MCL 330.2020 et seq.
See Trowel v Granville, 530 US 57, 64-65; 120 S Ct 2054; 147 L Ed 2d 49 (2000).
For instance, we doubt that a parent who physically abuses the child who is a patient is capable of weighing the competing considerations involved in determining the best interests of the child in an end-of-life decision. However, we decline to determine conclusively what these other reasons might be.
Ladd does not argue that JB should have been allowed to decide whether to withdraw baby Allison’s life support.
Reeves v Kmart Corp, 229 Mich App 466, 481, n 7; 582 NW2d 841 (1998).
Rosebush, supra at 683, 687.
Barry, supra at 372.
LHR, supra at 446-447.
Rosebush, supra at 679.
Id. at 690:
A physician confirmation rule is inappropriate in cases in which the patient is competent and refuses treatment or cases in which a previously competent patient clearly expressed a treatment preference, no matter the degree of medical consensus. To hold otherwise would eviscerate the patient’s right to give or withhold consent to treatment. See Martin, supra at 221-222.
Kampf v Kampf, 237 Mich App 377, 381-382; 603 NW2d 295 (1999) (citations omitted).
See Bundo v Walled Lake, 395 Mich 679, 696; 238 NW2d 154 (1976).
Jordan v Jarvis, 200 Mich App 445, 448; 505 NW2d 279 (1993), citing Kentucky Dep’t of Corrections v Thompson, 490 US 454, 460; 109 S Ct 1904; 104 L Ed 2d 506 (1989).
See Troxell, supra.
See In re Kirkwood, 187 Mich App 542, 546; 468 NW2d 280 (1991).
Jordan, supra at 448.
Mathews v Eldridge, 424 US 319, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976).
Id. at 334, quoting Morrissey v Brewer, 408 US 471, 481; 92 S Ct 2593; 33 L Ed 2d 484 (1972).
See, generally, Hodgson v Minnesota, 497 US 417, 447, n 32; 110 S Ct 2926; 111 L Ed 2d 344 (1990) (Stevens, J.) (common law permits one parent to act as an agent for the other parent).
See Troxell, supra, Kirkwood, supra.
Rosebush, supra at 687.
See, generally, In re KB, 221 Mich App 414, 418-422; 562 NW2d 208 (1997) (individual subject to civil commitment is entitled to due process, though procedures at issue were adequate).
See, generally, People v Duncan, 462 Mich 47, 55-57; 610 NW2d 551 (2000), quoting and adopting Harmon v Marshall, 69 F3d 963 (CA 9, 1995) (complete failure to define an offense for the jury violated the criminal defendant’s right to due process).
See MCR 5.965(B)(1), (2).
Kampf, supra at 383-384.
See MCR 5.992.
See Bumdo, supra at 696.
Martin, supra at 225-229.
Id. at 229.
Id.
See id. at 225-227.
Id.
See Rosebush, supra at 690.
See MCR 5.923(A).
MCL 712A.10(1)(c).
Campbell v Evans, 358 Mich 128, 131; 99 NW2d 341 (1959).
See id.
Id.; see also Mann v Mann, 190 Mich App '526, 538-539; 476 NW2d 439 (1991) (“The trial court also committed clear legal error in delegating to the Friend of the Court the child support determination.’’).
The Campbell Court also remanded for a new hearing. Campbell, supra at 131. However, when no relief is available, a remand to supplement the record would be purposeless.
Emphasis added.
See Mann, supra at 529-530.
MCR 5.992(D) (emphasis added).
See In re EP, 234 Mich App 582, 597; 595 NW2d 167 (1999), overruled on other grounds by In re Trejo Minors, 462 Mich 341, 353, n 10; 612 NW2d 407 (2000).
EP, supra at 598.
Shaffer, supra at 433; see also id. at 434, 436.
See 1997 PA 169.
See 1975 PA 238, § 10.
That MCL 722.630 and MCL 712A.17c(7) were amended at the same time to incorporate the new lawyer-guardian ad litem standards under MCL 712A.17d and that both amendments became effective March 1, 1999, indicates that the attorneys appointed under either of these statutes had identical, substantive duties. See 1998 PA 480; 1998 PA 483.
Again, MCL 712A.17d changed the relationship between a child and the child’s lawyer for cases after March 1, 1999. However, though this discussion of an attorney’s duties might be of limited benefit in future cases, it is necessary to set a foundation for analyzing Ladd’s claim that Mahinske was ineffective.
Emphasis added.
See People v Pickens, 446 Mich 298, 303; 521 NW2d 797 (1994).
The new statutory standards that apply to a lawyer-guardian ad litem articulate many basic requirements that, though not germane in this case, will be relevant to determining whether an attorney is performing adequately in future cases. 1998 PA 480, MCL 712A.17d.
EP, supra at 598.
We are not, in any way, attempting to define the scope of or test for a respondent’s right to effective assistance of counsel in a protective proceeding.
See Shaffer, supra at 430, 437.
Though an order appointing an attorney for a child may constitute an appearance, no order specifically appointing Ladd to represent baby Allison exists in the record in this case.
MCR 5.915(E).
MCR 5.920(F).
See MCR 5.915(B)(2)(a).
See, generally, People v Fountain, 407 Mich 96, 99; 282 NW2d 168 (1979) (courts presume that attorneys from the same office have the same information).
MCR 5.921(B)(1).
See Scarsella v Pollak, 232 Mich App 61, 64; 591 NW2d 257 (1998), affirmed and adopted 461 Mich 547, 549; 607 NW2d 711 (2000).
See People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996).
See, generally, People v Snider, 239 Mich App 393, 424; 608 NW2d 502 (2000); In re Ayres, 239 Mich App 8, 21-22; 608 NW2d 132 (1999); People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999); People v Truong (After Remand), 218 Mich App 325, 338-339; 553 NW2d 692 (1996); People v Julian, 171 Mich App 153, 158-159; 429 NW2d 615 (1988).
MCR 5.915(B)(2)(d).
See People v Williams, 240 Mich App 316, 331; 614 NW2d 647 (2000).
MCR 5.923(E).
Schlender v Schlender, 235 Mich App 230, 232-234; 596 NW2d 643 (1999); see also MCR 8.112.
Fadiman & Bernard, Bartlett’s Book of Anecdotes (Boston: Little, Brown, & Co, 2000), p 160.
Id.
Id.
Id.
Id.
Rosebush, supra at 683. | [
-12,
-19,
-55,
4,
37,
-50,
6,
-10,
8,
-18,
-21,
-87,
-9,
6,
6,
-13,
44,
-38,
1,
-63,
-4,
43,
-13,
28,
-7,
20,
65,
-31,
0,
-2,
-44,
-34,
34,
6,
19,
79,
37,
-12,
22,
39,
-7,
-33,
37,
-20,
-26,
-35,
71,
46,
27,
17,
-33,
-30,
7,
19,
15,
-28,
108,
-28,
11,
-11,
-8,
-12,
70,
-36,
14,
25,
-76,
15,
-67,
-30,
66,
63,
-49,
-13,
-31,
-14,
-2,
-38,
64,
20,
10,
37,
31,
28,
-2,
-27,
-22,
35,
-63,
51,
11,
23,
-34,
-58,
-15,
15,
-59,
-56,
-32,
-27,
18,
-12,
-12,
0,
-52,
9,
18,
-13,
-19,
18,
-20,
10,
-6,
-18,
0,
-32,
13,
30,
-80,
29,
-16,
53,
52,
-21,
69,
15,
19,
-29,
-3,
-38,
-28,
-10,
6,
16,
0,
-61,
13,
-61,
27,
-28,
-64,
20,
-3,
58,
-44,
33,
32,
-32,
12,
-25,
-5,
15,
12,
60,
21,
6,
-26,
-5,
-59,
19,
8,
8,
21,
23,
-37,
-90,
9,
48,
20,
-4,
18,
0,
-11,
0,
0,
83,
-21,
6,
0,
40,
-11,
16,
-4,
-2,
-24,
-20,
23,
-33,
-15,
15,
-44,
-18,
-54,
5,
31,
20,
-6,
17,
40,
4,
-25,
25,
10,
-18,
6,
1,
-35,
-62,
49,
5,
65,
-10,
5,
6,
-41,
-80,
-29,
-62,
-24,
11,
-30,
-23,
36,
-23,
-23,
-8,
57,
-1,
-84,
-66,
75,
-15,
13,
-5,
44,
-26,
-48,
21,
9,
-3,
21,
29,
29,
25,
33,
8,
15,
-27,
-13,
0,
40,
51,
27,
17,
-44,
5,
0,
21,
13,
-3,
-26,
-17,
-31,
16,
61,
45,
-29,
45,
9,
-51,
5,
-46,
19,
-37,
-24,
-20,
-24,
-2,
42,
5,
11,
5,
30,
-11,
-22,
-33,
-64,
36,
18,
11,
46,
6,
-6,
-113,
49,
-30,
30,
-12,
-70,
-17,
23,
22,
0,
31,
-13,
37,
19,
70,
26,
-42,
10,
10,
-42,
49,
-10,
-37,
-44,
-42,
73,
51,
5,
-7,
-55,
46,
-62,
-20,
37,
-19,
-18,
34,
25,
70,
13,
-28,
-8,
-14,
-18,
-17,
17,
-15,
11,
30,
2,
5,
-34,
-3,
32,
67,
-2,
-26,
-37,
21,
37,
4,
-50,
-20,
-76,
-61,
-3,
-4,
-56,
-80,
-53,
5,
-29,
-40,
46,
17,
-16,
56,
8,
-46,
-20,
25,
10,
4,
12,
8,
48,
54,
-9,
11,
46,
13,
13,
-40,
-30,
-14,
46,
25,
-20,
-23,
17,
4,
-18,
-48,
-72,
27,
34,
-32,
13,
14,
-22,
30,
20,
60,
-15,
18,
28,
-19,
-32,
13,
39,
-4,
-27,
12,
21,
-73,
-36,
-24,
-14,
31,
18,
-48,
-13,
-5,
-23,
20,
71,
-1,
7,
6,
-18,
24,
84,
-11,
-33,
-4,
57,
-15,
-27,
19,
6,
-2,
-15,
2,
1,
-17,
-12,
-27,
40,
9,
19,
-19,
-20,
12,
-34,
20,
-100,
-9,
-47,
-17,
38,
-20,
-3,
34,
-7,
41,
5,
1,
12,
-11,
-9,
-45,
48,
23,
0,
36,
0,
-17,
5,
-53,
-39,
5,
7,
36,
-35,
-50,
9,
19,
-9,
29,
-48,
55,
28,
-6,
21,
28,
-39,
-40,
19,
-3,
0,
10,
72,
-50,
30,
-52,
-64,
-47,
13,
-14,
-12,
17,
-36,
3,
54,
-2,
1,
-18,
37,
56,
-15,
20,
-26,
-47,
-12,
-29,
-54,
-46,
62,
-38,
11,
6,
24,
-10,
-48,
-11,
3,
-10,
43,
-15,
41,
-8,
12,
-64,
30,
54,
-22,
-26,
34,
5,
2,
-2,
-9,
2,
-10,
4,
-8,
-35,
0,
17,
20,
24,
31,
-15,
-19,
-48,
59,
22,
20,
40,
-38,
39,
-29,
25,
45,
55,
-7,
0,
34,
-9,
52,
29,
-56,
13,
33,
-39,
4,
-89,
5,
-24,
-38,
10,
49,
-46,
21,
-65,
19,
-27,
29,
-20,
-9,
5,
40,
15,
-5,
-5,
-51,
-60,
-12,
-18,
-29,
-35,
-69,
-27,
21,
-19,
-7,
19,
-63,
-20,
-27,
22,
22,
-6,
9,
-27,
26,
-44,
-2,
30,
28,
16,
20,
27,
16,
22,
49,
-31,
36,
73,
-13,
15,
-19,
-16,
-2,
-47,
-2,
44,
-39,
-39,
-37,
4,
-50,
-33,
46,
-4,
-15,
32,
19,
32,
0,
9,
-37,
10,
42,
35,
-1,
-5,
-25,
84,
-57,
-5,
-49,
27,
13,
32,
-7,
-3,
-36,
-41,
-22,
0,
-25,
61,
-43,
4,
-3,
-39,
-21,
-39,
53,
-5,
19,
-23,
2,
89,
22,
43,
-11,
-36,
-41,
-3,
-3,
36,
61,
-6,
-55,
-18,
-55,
65,
63,
24,
8,
2,
17,
0,
20,
-12,
-48,
18,
6,
-10,
48,
-35,
32,
34,
-23,
-54,
-36,
-81,
33,
58,
2,
15,
20,
-27,
-53,
41,
-5,
-5,
-5,
-101,
-25,
8,
20,
26,
18,
50,
20,
18,
-6,
-5,
-41,
6,
72,
-21,
0,
17,
-23,
51,
7,
-32,
-16,
-13,
8,
39,
20,
-36,
-13,
17,
-32,
13,
-9,
-1,
-40,
-42,
-20,
-31,
70,
-25,
-5,
38,
-5,
-29,
50,
10,
23,
6,
42,
49,
37,
38,
72,
40,
-25,
-47,
-48,
-36,
53,
-55,
-30,
0,
-19,
0,
-52,
16,
-36,
24,
24,
43,
51,
-24,
-9,
10,
3,
-14,
-48,
24,
72,
8,
33,
-38,
-38,
21,
-28,
11,
67,
-39,
-18,
46,
44,
-21,
-50,
19,
37,
-40,
20,
5,
-39,
54,
43,
-48,
15,
7,
71,
-1,
27,
28,
13,
-88,
-5,
14,
-11,
-43,
-41,
0,
-25,
7,
-48,
2,
5,
-24,
-26,
59,
4,
16,
-51,
27,
-67,
-71,
-10,
15,
-26,
-1,
33,
-56,
-15,
28,
41,
15,
-30,
43,
16,
28,
-31,
-45,
-37,
-22,
-9,
-8,
28,
7,
-53,
37,
-33,
-9,
-12,
-4,
0,
0,
9,
-45,
-23,
-48,
-25,
-39,
5,
4,
0,
-18,
17,
28,
-34,
33,
-2,
16,
-61,
-93,
14,
-52,
65,
30,
11,
-9,
-21,
13,
-33,
24,
14,
-25,
-45,
19,
39,
-14,
21,
-8,
-33,
1,
53,
5,
29,
33,
34,
27,
28,
-57,
-30,
-27,
36,
37,
0,
19,
-15,
0,
33,
43,
-33,
26,
-35,
-16,
-19,
38,
15,
12,
16,
73,
18,
-23,
-16,
3,
-50,
-20,
7,
-58,
45,
0,
31,
-10,
-62,
-44,
-70,
-8,
-34,
-76,
-14,
17,
-36,
41,
25,
1,
-29,
26,
33,
35,
12,
0,
41,
-19,
26,
6,
29,
101,
-11,
-14,
-36,
-57,
-24,
3,
48,
70,
30,
48,
12,
-12,
-42,
17,
23,
33,
-38,
-1,
66,
20
] |
O’Connell, J.
Defendant appeals as of right from his convictions, following a jury trial, of three counts of first-degree criminal sexual conduct (esc i), MCL 750.520b(l)(a) (sexual penetration with victim under thirteen years of age). The trial court subsequently sentenced defendant as an habitual offender, second offense, MCL 769.10, to three consecutive sentences of life imprisonment. We affirm defendant’s convictions, but remand for correction of the judgment of sentence.
Defendant’s convictions arise out of the sexual assaults of seven-year-old D.D. and his five-year-old sister A.D. in the autumn of 1998. Defendant boarded in a home shared by the children, their mother, her ex-husband, and another individual. On appeal, defendant first challenges the trial court’s admission of hearsay evidence under MRE 803(24), commonly referred to as the “residual” or “catchall” exception to the hearsay rule. People v Welch, 226 Mich App 461, 466; 574 NW2d 682 (1997). Specifically, defendant contends that D.D.’s statement to a Family Independence Agency (fía) child protective services investigator on October 27, 1998, was not admissible under MRE 803(24).
Before trial, the prosecutor moved to admit the testimony of Angela Bowman, a child protective services specialist with the fia. During the motion hearing, Bowman testified that she visited D.D. at his elementary school on October 27, 1998, after the FLA received an anonymous phone call alleging that the children’s mother was physically abusing them. After inquiring of D.D. about the allegations of physical abuse and examining him for physical signs of abuse, Bowman determined that there was insufficient evidence to support the anonymous caller’s allegations. However, Bowman testified that during their conversation, when she asked D.D. to name the members of his household, he named defendant as a relative and spontaneously told her that “Uncle Terry” was doing “nasty stuff” to him, and that “Uncle Terry was going to go to jail.” Bowman further testified that after asking D.D. what he meant by nasty stuff, he was initially guarded, but then made the following statement.
[D.D.] stated that Terry would come into his room, which [D.D] shared with his sister [A.D.] and dis — totally disrobed [sic], and take off his clothes, which would be a shirt, an underwear — some underwear or pajamas bottoms, if he were wearing them, and get on top of [D.D.]. And I ask — I asked him to describe now, at the time, because I wasn’t prepared for this interview, I didn’t have any anatomically correct dolls or anything, so I ask him to show — to demonstrate to the best of his ability what he was describing. And he took his hand on top of the table. He says, Uncle Terry got on top of him and was going — doing this. And I said, well, what is that? He said, [defendant] was going up and down .... And he described that. . . Terry would get in his bed and get on top of him and go up and down.
D.D. also pointed to his genital area and told Bowman that “Terry put his mouth on [D.D.’s] ding-ding.” D.D. further put his finger in his mouth and pulled it in and out to mimic the action. D.D. also indicated to Bowman that “Terry would put his mouth on [D.D.’s] tits” and that “Terry puts Terry’s tongue in [D.D.’s] mouth.” During the conversation, D.D. also told Bowman about defendant’s actions involving his younger sister, A.D.
[H]e described that Terry would — what Terry did to him, that he also did to [A.D.], that he witnessed Terry putting his mouth on . . . [A.D.’s] couchie, I believe he called it, and witnessed that Terry’s tongue was in Ter — [A.D.’s] couchie. He stated that he witnessed Terry putting his finger in [A.D.’s] butt and taking his finger out and sucking his finger. He stated that Terry would make him — make [D.D.] put his mouth on Terry’s ding-ding. And again I asked, where is Terry’s ding-ding, and again he pointed to his genital area. He stated that Terry would also take [A.D.’s] clothes off when he would come into the room and get into bed with [A.D.],
D.D. also told Bowman that he witnessed defendant telling A.D. to “suck his dick.” D.D., seven years old at the time of the alleged assaults and the giving of the statement, told Bowman that these incidents occurred “a hundred times” and that he would try to ward off defendant’s advances by kicking him. According to Bowman, D.D.’s statements were clear and consistent. Specifically, she testified that after D.D. disclosed each sexual incident, she asked him to “tell [her] again.” Consequently, during the course of their discussion, D.D. repeated the details of the sexual incidents to Bowman “at least three times.” Finally, Bowman testified that she has extensive experience and training in interviewing children believed to be the victims of sexual abuse and that she avoided asking any leading questions or coaxing D.D. during the interview.
During the hearing on the prosecutor’s motion to admit this evidence, the prosecutor conceded that D.D.’s statement to Bowman was not admissible under the tender years exception to the hearsay rule, MRE 803A because it was not D.D.’s first corroborative statement concerning the abuse. In response, defendant argued that because the statement was inadmissible under MRE 803A that exception “covered the field” and therefore the trial court could not admit the evidence pursuant to MRE 803(24). Rejecting this argument, the trial court concluded as a matter of law that the evidence was admissible under MRE 803(24) even where it did not meet the requirements of the tender years exception. It is this legal determination that defendant initially challenges on appeal.
We review for an abuse of discretion a trial court’s decision regarding the admission of evidence. People v Watson, 245 Mich App 572, 575; 629 NW2d 411 (2001). “An abuse of discretion exists if an unprejudiced person would find no justification for the ruling made.” Id., citing People v Rice (On Remand), 235 Mich App 429, 439; 597 NW2d 843 (1999). However, where a trial court’s evidentiary decision involves preliminary questions of law, we review de novo such questions. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). Further, a trial court’s decision on a close evidentiary decision does not amount to an abuse of discretion. People v Sabin (After Remand), 463 Mich 43, 67; 614 NW2d 888 (2000).
MRE 803 provides in pertinent part:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(24) Other Exceptions. A statement not specifically covered by one of the foregoing[ ] exceptions [to the hearsay rule] but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact, (B) the statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts, and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
The thrust of defendant’s argument on appeal is that a statement that fails to meet the requirements of an established hearsay exception should not be considered for admission under the residual exception. This argument has been characterized by federal courts as the “near-miss” theory, “which maintains that a hearsay statement that is close to, but that does not fit precisely into, a recognized hearsay exception is not admissible under [the residual hearsay exception.]” United States v Deeb, 13 F3d 1532, 1536 (CA 11, 1994). As noted, MRE 803(24) provides that a statement not specifically covered by another hearsay exception may nonetheless be admitted under the residual hearsay exception if it possesses equivalent circumstantial guarantees of trustworthiness. According to defendant, D.D.’s statement to Bowman regarding the sexual abuse is “specifically covered” by MRE 803A and thus inadmissible under the residual exception.
Although this Court has considered the residual hearsay exception in Welch, supra, and more recently in People v Smith, 243 Mich App 657; 625 NW2d 46 (2000), and People v Lee, 243 Mich App 163; 622 NW2d 71 (2000), neither this Court nor our Supreme Court has ruled on the issue whether a hearsay statement is admissible under the residual exception where it does not meet the requirements of an established hearsay exception. However, because the language of MRE 803(24) mirrors that of its federal counterpart, FRE 807, we may properly turn to rele vant federal precedent to guide us in this inquiry. Welch, supra at 466; Lee, supra at 171.
A review of the controlling federal precedent on this issue leads us to conclude that defendant’s narrow interpretation of MRE 803(24) should be rejected. For example, in United States v Laster, 258 F3d 525 (CA 6, 2001), the United States Court of Appeals for the Sixth Circuit recently followed the lead of the majority of federal circuits in holding that where a statement does not satisfy the strictures of an established exception to the rule against hearsay, it may properly be considered for admission under the residual exception.
Although some courts have held that^if proffered evidence fails to meet the requirements of the [Federal Rule of Evidence] 803 hearsay exception, it cannot qualify for admission under the residual exception, the court declines to adopt this narrow interpretation of [FRE 807] as suggested by defendants. Rather, this court interprets [FRE 807], along with the majority of circuits, to mean that “if a statement is admissible under one of the hearsay exceptions, that exception should be relied on instead of the residual exception.” 5 Jack B Weinstein & Margaret A Berger, Weinstein’s Federal Evidence, § 807.03(4) (2d ed. 2000). We endorse the reasoning in United States v Earles, 113 F3d 796 (CA 8, 1997), which held that “the phrase ‘specifically covered’ [by a hearsay exception] means only that if a statement is admissible under one of the [FRE 803] exceptions such [ ] subsection should be relied upon” instead of the residual exception. Id. at 800 (emphasis in original). Therefore, the analysis of a hearsay statement should not end when a statement fails to qualify [under one of the firrnly rooted exceptions to the hearsay rule], but should be evaluated under the residual hearsay exception. [Laster, supra at 530 (emphasis in original).]
Likewise, in Earles, supra, the United States Court of Appeals for the Eighth Circuit adopted the approach taken by the majority of the federal circuit courts with regard to the residual exception’s “specifically covered” language.
The meaning of the catch-all’s “specifically covered” language has caused considerable debate. See, e.g., McKethan v United States, 439 US 936; 99 S Ct 333; 58 L Ed 2d 333 (1978) (Justices Stewart and Marshall dissenting from the Court’s denial of writs of certiorari and contending that the Court should resolve the circuit split on this issue.). However, the majority of circuit courts have held that the phrase “specifically covered” means only that if a statement is admissible under one of the prior exceptions, such prior subsection should be relied upon instead of [the residual hearsay exception]. If, on the other hand, the statement is inadmissible under the other exceptions, these courts allow the testimony to be considered for admission under [the residual hearsay exception]. [Earles, supra at 800 (emphasis in original).]
The Earles court went on to conclude, by way of footnote:
We think that “specifically covered” means exactly what it says: if a statement does not meet the requirements for admission under a [firmly rooted exception to the hearsay rule], then it is not “specifically covered” by the exception and can be considered for admission under the catch-all. [Id., n 3.]
The federal courts have recognized that this approach best serves the core purpose of the residual exception. For instance, in United States v Clarke, 2 F3d 81 (CA 4, 1993), the court recognized that an expansive interpretation of the phrase “specifically covered” is consistent with the purpose underlying the residual hearsay exception.
[The residual hearsay exception] rejects formal categories in favor of a functional inquiry into trustworthiness, thus permitting the admission of statements that fail the strict requirements of [more firmly rooted] exceptions, but are nonetheless shown to be reliable. If we were to adopt appellant’s reading of the rule, we would deprive the jury of probative evidence relevant to the jury’s truth-seeking role. [Id. at 83.]
Accord Deeb, supra at 1536-1537; United States v Ismoila, 100 F3d 380, 393 (CA 5, 1996) (holding that where hearsay statements do not qualify under the business records exception to the hearsay rule, they may properly be admitted under the residual exception); United States v Valdez-Soto, 31 F3d 1467, 1471 (CA 9, 1994) (“[T]he existence of a catchall hearsay exception is a clear indication that Congress did not want courts to admit hearsay only if it fits within one of the enumerated exceptions.”) (emphasis in original); United States v Furst, 886 F2d 558, 573 (CA 3, 1989) (holding that residual hearsay exception is not limited in availability to types of evidence not addressed in the other firmly rooted exceptions); United States v Popenas, 780 F2d 545, 547-548 (CA 6, 1985) (holding that residual hearsay exception is applicable where a statement does not meet requirements of more firmly rooted exception).
A review of these cases reveals that the majority of federal courts have rejected the identical argument raised by defendant on appeal. See 2 McCormick, Evidence (5th ed), § 324, pp 349-350 (“The almost unanimous opinion of courts is that failing to qualify under an enumerated [hearsay] exception does not disqualify admission under the residual exception.”). We find the courts’ reasoning in these cases persuasive and instructive when construing the language of MRE 803(24), and adopt it as our own. Therefore, we hold that where a hearsay statement is inadmissible under one of the established exceptions to the hearsay rule, it is not automatically removed from consideration under MRE 803(24). Rather, where the trial court concludes that the statement possesses the requisite “particularized guarantee[s] of trustworthiness,” Smith, supra at 688, and otherwise meets the requirements of MRE 803(24) it may properly admit the statement into evidence, in spite of its inability to meet the requirements of another firmly rooted exception to the hearsay rule.
Defendant’s remaining challenge to the admission of D.D.’s statement is that it did not meet two of the requirements of MRE 803(24). Specifically, defendant contends that (1) the evidence did not possess “equivalent circumstantial guarantees of trustworthiness” and (2) it is not more probative on the point for which it was offered than any other evidence that the prosecutor could have procured through reasonable efforts. We disagree.
When determining whether a statement possesses the requisite “indicia of reliability” to warrant admission under MRE 803(24), a trial court must consider “the totality of the circumstances surrounding the making of the statement.” Lee, supra at 178, citing Idaho v Wright, 497 US 805, 814; 110 S Ct 3139; 11 L Ed 2d 638 (1990).
Factors to be considered include (1) the spontaneity of the statements; (2) the consistency of the statements; (3) lack of motive to fabricate or lack of bias; (4) the reason the declarant cannot testify; (5) the voluntariness of the statements, i.e., whether they were made in response to leading questions or made under undue influence; (6) personal knowledge of the declarant about the matter on which he spoke; (7) to whom the statements were made, e.g., a police officer who was likely to investigate further; and (8) the time frame within which the statements were made. The court may not consider whether evidence produced at trial corroborates the statement. [Lee, supra at 178 (citations omitted).]
Similarly, in Wright, the United States Supreme Court articulated a nonexclusive list of factors trial courts should consider when evaluating whether a child’s hearsay statement in a sexual abuse case has “particularized guarantees of trustworthiness” to ensure that the Confrontation Clause has not been violated.
The state and federal courts have identified a number of factors that we think properly relate to whether hearsay statements made by a child witness in child sexual abuse cases are reliable. See, e.g., State v Robinson, 153 Ariz 191, 201; 735 P2d 801, 811 (1987) (spontaneity and consistent repetition); Morgan v Foretich, 846 F2d 941, 948 (CA 4, 1988) (mental state of the declarant); State v Sorenson, 143 Wis 2d 226, 246; 421 NW2d 77, 85 (1988) (use of terminology unexpected of a child of similar age); State v Kuone, 243 Kan 218, 221-222; 757 P2d 289, 292-293 (1988) (lack of motive to fabricate). Although these cases . . . involve the application of various hearsay exceptions to statements of child declarants, we think the factors identified also apply to whether such statements bear “particularized guarantees of trustworthiness” under the Confrontation Clause. These factors, are of course, not exclusive, and courts have considerable leeway in their consideration of appropriate factors. We therefore decline to endorse a mechanical test for determining “particularized guarantees of trustworthiness” under the Clause. Rather, the unifying principle is that these factors relate to whether the child declarant was particularly likely to he telling the truth when the statement was made. [Wright, supra at 821-822 (emphasis supplied).]
A trial court is accorded “considerable discretion” in its determination regarding whether the challenged statement has equivalent circumstantial guarantees of trustworthiness. United States v Singleton, 125 F3d 1097, 1106 (CA 7, 1997). In admitting D.D.’s statement to Angela Bowman into evidence, the trial court, relying on the factors set forth by the United States Supreme Court in Wright, supra, found it to possess particularized guarantees of trustworthiness for the following reasons:
[I]n the Court’s opinion there are several indicia of trustworthiness in the statements given by [D.D.] to Miss Bowman. First is the spontaneity of [D.D.’s] first statements to Miss Bowman. Recall — The Court’s [sic] heard the testimony, that Miss Bowman was not there to talk about sexual abuse, she was there to talk about physical abuse. I would also note that as far as this Court’s record is concerned [D.D. and A.D.’s mother] did not know that her child was going to be interviewed on October 27. Accordingly, there doesn’t appear to be anything on the record here which would establish that somehow [D.D.] was prepped by some body to mouth sentences to Miss Bowman that were not true.[ ] Miss Bowman first inquired of [D.D.] about physical abuse. Then, [D.D.,] and in this Court’s opinion this is important, not in response to any questioning by Miss Bowman regarding sexual abuse, spontaneously spoke about abuse — sexual abuse by the defendant. It’s clear that [D.D.] spoke from his personal knowledge. And, as her duty as a protective service worker, Miss Bowman inquired further. Now, Miss Bowman’s qualifications to interview children were obvious from the record. She is aware of how to . . . interview children. She testified that she avoided leading questions and avoided other pitfalls of questioning young ■children. And the Court finds that she was totally aware how to get truthful information from [D.D.]. The Court finds that the record and the dynamics of this exchange between Miss Bowman and [D.D.] provided a form [sic] that an accurate statement would be uttered by [D.D.]. The Court finds no plan of falsification by [D.D.] under the circumstances in the record that I have before me, and no — and I do find a lack of motive to fabricate on the child’s part. The Court also notes that Miss Bowman testified, and I believe her testimony, she had no preconceived notion that anything of a sexual nature occurred when she walked into the room on October 27, [19]97.[ ] Indeed, as I’ve stated before, she was there to talk about physical abuse. . . . Accordingly, the Court finds — from the totality of the circumstances here, I find the required trustworthiness guarantees that [MRE] 803(24) requires.
We agree with the trial court’s thorough and well-reasoned assessment that D.D.’s statement implicating defendant in these crimes contained ample “circumstantial guarantees of trustworthiness” as required by MRE 803(24). As the trial court noted, D.D. volunta rily and spontaneously told Bowman about the sexual abuse. Lee, supra at 179. Notably, Bowman was present at D.D.’s school to question him about alleged physical abuse by his mother, and was only apprised of the sexual abuse when D.D. volunteered the information. Moreover, throughout his conversation with Bowman, D.D.’s recitation of the relevant facts concerning the sexual abuse remained consistent. Id. at 178. D.D. also had personal knowledge of the sexual abuse of both himself and A.D. because he was present when it occurred. Bowman further stated that D.D. freely recounted the circumstances of the abuse without coaxing or leading questions on her part, id., and that he frequently used terminology “unexpected of a child of similar age.” Wright, supra at 821. Likewise, Bowman indicated that she is trained and proficient in interviewing suspected victims of child abuse and used open-ended, nonleading questions to glean information from D.D. United States v NB, 59 F3d 771, 776 (CA 8, 1995). Finally, as the trial court correctly observed, there is absolutely no indication in the record that substantiates defendant’s claim that seven-year-old D.D. had a motive to fabricate defendant’s involvement in these heinous offenses. Lee, supra at 180. Additionally, both D.D. and his sister A.D. testified at trial and were subject to extensive cross-examination by defense counsel. Thus, “the jury could weigh [D.D.’s] statement and accord the statement whatever weight the jury deemed appropriate.” United States v Grooms, 978 F2d 425, 428 (CA 8, 1992).
likewise, we reject defendant’s contention that the trial court erred in concluding that D.D.’s statement to Bowman was more probative than other evidence the prosecutor could have brought forth with reasonable effort. In his brief on appeal, defendant does not argue that D.D.’s and A.D.’s testimony during trial was more probative than the hearsay statement given to Bowman. Rather, defendant specifically contends that D.D.’s mother’s potential testimony on the subject was more probative because D.D. allegedly first told her about the sexual abuse a few days before his interview with Bowman. In our opinion, the trial court correctly concluded that D.D.’s statement to Bowman was the most probative evidence regarding defendant’s involvement in these offenses because of the “detailed nature of the [evidence].”
Although it appears from the record that the children informed their mother of defendant’s sexual abuse a few days before D.D. spoke to Bowman on October 27, 1998, there is no indication in the record that either D.D. or A.D. recounted the circumstances of the assaults with the same detail. Nor is there any indication that their alleged statements to their mother contained particularized guarantees of trust worthiness similar to those regarding the statement given to Bowman. Indeed, when defense counsel inquired of the mother during trial regarding her knowledge of the alleged sexual abuse, she indicated only that A.D. had told the children’s uncle about the abuse, who in turn told the mother, that “Terry Katt takes [D.D. and A.D.] and makes them take off their panties and their underwear.” The children’s mother also testified that when she awoke in the middle of thé night on October 25, 1998, she saw A.D. standing in her bedroom door with her panties in her hand and defendant walking into his bedroom. According to the mother’s testimony, A.D. told her that defendant had put her back in her bed just as the mother got up.
Because there is nothing in the record to indicate that the children’s alleged statements to their mother were as detailed or contained the same indicia of reliability, we agree with the trial court that D.D.’s statement was more probative than the testimony of the children’s mother concerning defendant’s involvement in the sexual abuse. Thus, the trial court did not abuse its discretion in this regard. See United States v Shaw, 824 F2d 601, 610 (CA 8, 1987) (trial court did not abuse its discretion in concluding that child’s hearsay statement in sexual abuse case was more probative than other evidence where it contained more detail than other evidence); see also United States v Balfany, 965 F2d 575, 582 (CA 8, 1992).
We recognize that the residual hearsay exception is to be employed only in “extraordinary circumstances where the court is satisfied that the evidence offers guarantees of trustworthiness and is material, probative and necessary in the interest of justice.” United States v Farley, 992 F2d 1122, 1126 (CA 10, 1993), citing Parsons v Honeywell, Inc, 929 F2d 901, 907 (CA 2, 1991). Under the circumstances, we are satisfied that the evidence possessed “equivalent circumstantial guarantees of trustworthiness,” MRE 803(24) to render it reliable and that the instant case presents an extraordinary circumstance where the interests of justice were best served by the admission of this evidence.
Defendant next contends that the trial court abused its discretion in admitting in rebuttal other acts evidence involving defendant’s alleged sexual abuse of another victim. We disagree. “Admission of rebuttal evidence is within the sound discretion of the trial judge and will not be disturbed on appeal absent a clear abuse of discretion.” People v Figgures, 451 Mich 390, 398; 547 NW2d 673 (1996). Before trial, the prosecutor moved to admit evidence concerning defendant’s alleged sexual assault of a nine-year-old boy, C.D. C.D. testified that defendant babysat him along with his younger sister. According to C.D., he and defendant took a bath together on one occasion when defendant was babysitting and his sister was sleeping. C.D. also indicated that neither he nor defendant had their clothes on, and that defendant “touched [C.D.’s] privates.”
After a hearing on the motion, the trial court denied the prosecutor’s motion in an opinion and order entered June 3, 1999. The trial court rendered its decision before trial began in this matter. Although the trial court determined that the evidence was logically relevant and offered for the proper purpose of establishing defendant’s scheme and plan in sexually abusing young children, the trial court declined to admit the evidence. A review of the trial court’s ruling reveals that it excluded the evidence on the basis of its determination that the probative value of the evidence was minimal given “factual differences” between the alleged assaults of C.D. and those of A.D. and D.D. The trial court also noted that the prosecutor had “failed to offer a satisfactory reply to defendant’s assertion that [C.D.] had recanted his allegations of sexual assault by [defendant].”
At trial, the prosecutor renewed her motion to admit evidence concerning the alleged assault of C.D. following defendant’s direct examination. During the course of his testimony, defendant testified about tension between himself and A.D. and D.D.’s mother in the days before the allegations of sexual abuse surfaced. Specifically, defendant testified that the children’s mother was angry at him because he told her ex-husband that she was having an affair with another member of the household. Defendant also testified that he thought the children’s mother was using her ex-husband, a good friend of defendant’s since 1982, in an attempt to gain ownership of her ex-husband’s home. A review of the record reveals that defendant’s testimony in this regard was part of an overall defense strategy aimed at convincing the jury that the children’s mother ordered them to fabricate the claims of sexual abuse to get back at defendant.
At the conclusion of his direct testimony, defendant expressly denied sexually abusing A.D. or D.D. The following colloquy then occurred.
Q. Would you tell the jury why they should believe that?
A. Because I didn’t—
Q. Tell them please.
A. I did not do this. It’s not — it’s not my nature to go around and have sex with children.
Immediately following this testimony, the prosecutor renewed her motion to introduce the other acts evidence involving the alleged sexual assault of C.D. After hearing argument from both sides, the trial court concluded that “in light of defendant’s testimony on direct examination . . . there is no danger of unfair prejudice.” The trial court went on to observe that the evidence was proper rebuttal, and that it would read a cautionary instruction to the jury concerning the limited use of the evidence.
MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
As this Court has recently observed, MRE 404(b) is a rule of inclusion rather than exclusion. People v Pesquera, 244 Mich App 305, 317; 625 NW2d 407 (2001), citing People v Engleman, 434 Mich 204, 213; 453 NW2d 656 (1990). Moreover, in People v VanderVliet, 444 Mich 52, 65; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994), our Supreme Court recognized that “[Relevant other acts evidence does not violate Rule 404(b) unless it is offered solely to show the criminal propensity of an individual to establish that he acted in conformity therewith.” In Sabin, supra, our Supreme Court recently articulated the requirements the prosecutor must satisfy before evidence may be admitted under MRE 404(b).
First, the prosecutor must offer the other acts evidence under something other than a character to conduct or propensity theory. MRE 404(b). Second, the evidence must be relevant under MRE 402, as enforced through MRE 104(b), to an issue of fact of consequence at trial. Third, under MRE 403, “ ‘a determination must be made whether the danger of undue prejudice [substantially] outweighs the probative value of the evidence in view of the availability of other means of proof and other facts appropriate for making decision^] of this kind under Rule 403.’ ” [Sabin, supra at 55-56, quoting VanderVliet, supra at 75, in turn quoting advisory committee notes to FRE 404(b).]
Further, the trial court, on request, may instruct the jury on the limited use of this evidence. VanderVliet, supra at 75.
In Sabin, supra, our Supreme Court considered the “theory of multiple admissibility on which MRE 404(b) is founded.” Sabin, supra at 56. In other words, evidence of other acts that is admitted for proper relevant purposes need not be excluded under MRE 404(b) where it is not used to show that a person acted in conformity with a particular character trait on a particular occasion. Id. Thus, where “ ‘the proffered evidence truly . . . [is] probative of something other than the defendant’s propensity to commit the crime,’ ” it may be admitted under MRE 404(b). Watson, supra at 576, quoting People v Crawford, 458 Mich 376, 390; 582 NW2d 785 (1998) (emphasis in original).
We agree with the trial court that the prosecutor proffered the evidence for a proper purpose. Specifically, in the trial court and on appeal the prosecutor has maintained that the evidence was properly admitted under a logical theory of relevance to establish a common scheme or plan by defendant in committing the alleged acts. To be admissible under this theory, the charged and uncharged conduct must be “sufficiently similar to support an inference that they are manifestations of a common plan, scheme, or system.” Sabin, supra at 63. In Sabin, our Supreme Court concluded that the common features in that case were sufficient to justify admission of the other acts evidence. These features included (1) that the defendant and the victims shared a father-daughter relationship, (2) the victims were of similar age at the time of the abuse, and (3) the defendant played on the victims’ fear of breaking up the family if they did not keep silent about the abuse. Id. at 66.
More recently, in Pesquera, supra at 319, this Court concluded that the following factors were sufficient to uphold the admission of other acts evidence under the common scheme, plan, or system theory of logical relevance:
(1) th[e] defendant and the alleged victims knew each other, (2) the existence of a friendship between the alleged victims and [the] defendant, (3) the very young ages of the victims at the time of the abuse, (4) that the alleged sexual abuse would occur after [the] defendant invited the chil dren to play with him, and (5) that the improper contact allegedly involved the touching of the children’s sexual organs. [Id.]
In the instant case, we share the trial court’s view that the other acts evidence concerning the alleged sexual assault of C.D. was properly admitted under the common scheme, plan, or system of logical relevance. In other words, we find that there was “such a concurrence of common features” between the charged and uncharged acts to the extent that they are “naturally to be explained as caused by a general plan of which they are the individual manifestations.” Sabin, supra at 64, quoting 2 Wigmore, Evidence (Chadboum rev), § 304, p 249 (emphasis omitted). Similar to the facts in Pesquera, (1) the victims and defendant knew each other, (2) the victims were all of a tender age, (3) the alleged sexual abuse occurred when defendant was alone with the children, and (4) the improper contact allegedly involved the touching of the children’s sexual organs when defendant and the victims were disrobed. Moreover, although reasonable minds could differ with regard to whether the charged and uncharged acts contained sufficiently similar features to infer the existence of a common scheme or plan, a trial court’s decision on a close evidentiary decision such as the one presented in the instant case is not an abuse of discretion. Sabin, supra at 67.
Likewise, we agree with the trial court that the probative value of the evidence was not substantially outweighed by its prejudicial effect. In Sabin, supra, the Court articulated the well-settled principle that the MRE 403 determination is “ ‘best left to [the trial court’s] contemporaneous assessment of the presenta tion, credibility, and effect of testimony.’ ” Id. at 71, quoting VanderVliet, supra at 81. While the danger of unfair prejudice to defendant did exist, the tendency of the evidence to establish a common plan, scheme, or system by defendant to sexually abuse young children was significant, especially in light of defendant’s repeated claims that the children’s mother ordered them to fabricate these allegations for revenge. People v Knapp, 244 Mich App 361, 380; 624 NW2d 227 (2001); see also People v Starr, 457 Mich 490, 501; 577 NW2d 673 (1998). Under the circumstances, the trial court did not abuse its discretion in concluding that the probative value of the proffered evidence outweighed the danger of unfair prejudice.
Further, although we recognize that the trial court initially concluded before trial that the probative value of this evidence was minimal, it is noteworthy that it rendered its decision before defendant brought forth his proofs at trial. In his case in chief, defendant testified on his own behalf about the motivation of the children’s mother to encourage the children to lie about these allegations. Defendant also presented the testimony of Jane Doe. Specifically, Doe testified that she spoke with the children’s mother in the courthouse cafeteria during trial. According to Doe, the children’s mother intimated that Doe should tell her cousin, John Doe, to lie about the timing of his affair with the children’s mother. Thus, Jane Doe’s testimony at trial was part of the overall defense strategy to paint the children’s mother as a vengeful individual who was attempting to frame defendant by persuading D.D. and A.D. to he about the sexual abuse.
In Sabin, supra at 58, our Supreme Court once again urged trial courts to delay determining whether other acts evidence is admissible until the trial court has had the opportunity to view the proofs as they are actually presented at trial.
“By waiting to determine the admissibility of other acts evidence . . . the trial court is able to forestall gamesmanship by the parties and insure the admission of evidence that possesses significant probative value. The ultimate goal is an enlightened basis for the trial court’s conclusion of relevance and the attendant inquiry under MRE 403.” [Sabin, supra at 58-59, quoting VanderVliet, supra at 90-91.]
It is clear that the trial court reached its altered determination that the other acts evidence had significant probative value not substantially outweighed by its prejudicial effect after hearing defendant’s testimony and observing the defense theory at trial. We find no abuse of discretion in this determination. Finally, the trial court properly instructed the jury concerning the limited use of the evidence immediately following C.D.’s testimony and in its final instructions, both of which served to alleviate the danger of unfair prejudice to defendant. Smith, supra at 675 (holding that limiting instruction cautioning the jury not to infer that the defendant had bad character and acted in conformity therewith preserved the defendant’s right to a fair trial); People v Gibson, 219 Mich App 530, 534; 557 NW2d 141 (1996) (other acts evidence not more prejudicial than probative where jury received appropriate limiting instruction); Knapp, supra at 380 (other acts evidence not unduly prejudi cial where trial court gave appropriate limiting instruction). Consequently, we conclude that the probative force of the evidence, together with the trial court’s limiting instruction to the jury, “did not stir the jurors to ‘such passion ... as to [be swept] beyond rational consideration of [defendant’s] guilt or innocence of the crime on trial.’ ” Starr, supra at 503, quoting McCormick, Evidence (2d ed), § 190, p 454.
Defendant also argues that the trial court erred in declining to reinstruct the jury that a defendant is not required to prove his innocence. We disagree.
After the jurors received their final instructions and retired for deliberation, they sent a note to the court indicating the following:
Some are undecided and unwilling to go either way due to lack of evidence on both parts. Should majority rule or what is our next step?
After reading the note on the record, the trial court allowed both sides the opportunity to submit suggestions regarding how to respond. Preserving this issue for appellate review, defense counsel requested that the trial court reinstruct the jury that defendant was not required to prove his innocence. The trial court rejected this request, ruling as follows.
All right. Well, I don’t — I don’t view the note in that way. If the jury wants to ask a — question regarding a burden of proof I’ll certainly be responsive to that request.... I think that [defense counsel] is pointing to a part of the note that is perhaps a little bit ambiguous, but the Court is interpreting it as an unable to reach a verdict note and that’s what I intend — intend to [reinstruct on].
The trial court subsequently read the “deadlocked juiy” instruction, specifically informing the jury that any verdict rendered must be unanimous. See CJI2d 3.12.
A trial court is required to instruct the jury on the law applicable to the case and to present the case to the jury in a clear and understandable manner. People v Henry, 239 Mich App 140, 151; 607 NW2d 767 (1999). We review jury instruptions as a whole to determine if the trial court made an error requiring reversal. People v Cain, 238 Mich App 95, 127; 605 NW2d 28 (1999). “Even if somewhat imperfect, [jury] instructions do not create error if they fairly presented the issues for trial and sufficiently protected the defendant’s rights.” People v Canales, 243 Mich App 571, 574; 624 NW2d 439 (2000).
In People v Darwall, 82 Mich App 652, 663; 267 NW2d 472 (1978), this Court articulated a trial court’s duty when instructing the jury in response to a request for a supplemental instruction.
There is no requirement that when a jury has asked for supplemental instruction on specific areas that the trial judge is obligated to give all the instructions previously given. The trial judge need only give those instructions specifically asked.
In our view, the trial court correctly interpreted the note as a specific request for guidance because the jurors could not reach a unanimous verdict. “It is not an abuse of discretion for a trial court to fail to repeat instructions not covered by a jury’s specific request.” People v Parker, 230 Mich App 677, 681; 584 NW2d 753 (1998). Further, the trial court’s supplemental instruction was responsive to the jury’s request and did not serve to mislead the jury in any manner. People v Parker, 133 Mich App 358, 362; 349 NW2d 514 (1984). In any event, our review of the record reveals that the trial court properly informed the jury during its opening and final instructions that defendant was not required to produce evidence to prove his innocence. Jurors are presumed to follow the instructions given by the trial court. People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998); People v Mette, 243 Mich App 318, 330-331; 621 NW2d 713 (2000). After reviewing the jury instructions as a whole, we are confident that they sufficiently protected defendant’s rights. Thus, we find no error requiring reversal.
As a final matter, defendant observes that the judgment of sentence erroneously reflects that he received four life sentences even though he was con victed of only three counts of CSC I. The prosecutor acknowledges that the trial court must correct this error. Hence, we remand to allow the trial court to amend the judgment of sentence consistent with this opinion. People v Avant, 235 Mich App 499, 521; 597 NW2d 864 (1999).
Defendant’s convictions are affirmed. However, we remand for the ministerial task of correcting the judgment of sentence. We do not retain jurisdiction.
To protect their privacy and for the puiposes of clarity in our analysis of the issues, we will refer to the victims by their respective initials.
At trial it became clear that defendant called the fia to report the allegations of physical abuse.
Although it appears from the record that the children referred to defendant as their uncle, he is not related to them.
According to Bowman’s testimony, she had worked in child protective services for approximately ten years.
MRE 803A provides in pertinent part:
A statement describing an incident that included a sexual act performed with or on the declarant by the defendant or an accomplice is admissible to the extent that it corroborates testimony given by the declarant during the same proceeding, provided:
(1) the declarant was under the age of ten when the statement was made;
(2) the statement is shown to have been spontaneous and without indication of manufacture;
(3) either the declarant made the statement immediately after the incident or any delay is excusable as having been caused by fear or other equally effective circumstance; and
(4) the statement is introduced through the testimony of someone other than the declarant.
If the declarant made more than one corroborative statement about the incident, only the first is admissible under this rule. [Emphasis supplied.]
MRE 803A codified Michigan’s common-law hearsay exception known as the tender years rule. People v Dunham, 220 Mich App 268, 271; 559 NW2d 360 (1996).
The prosecutor expressly reiterates this concession in his brief on appeal.
A review of the evidentiary rules reveals that MRE 803A does not in fact precede MRE 803(24). However, on appeal defendant does not argue that this fact precludes D.D.’s statement from being considered under MRE 803(24). Rather, defendant merely contends that the statement is not admissible under MRE 803(24) because it is already covered by and not admissible under MRE 803A.
In 1997, FRE 803(24) and FRE 804(b)(5) were combined to form what is now FRE 807. FRE 807 provides in pertinent part:
A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rale, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purpose of these rules and the interests of justice will best be served by admission of the statement into evidence.
However, we would be remiss if we did not acknowledge that other courts have not interpreted the language of the residual hearsay exception in the same manner. See, e.g, United States v Turner, 104 F3d 217, 221 (CA 8, 1997) (rejecting the defendant’s unpreserved claim that a treatise that does not satisfy the requirements of FEE 803[18] is admissible under the residual hearsay exception); Schimpf v Gerald, Inc, 52 F Supp 2d 976, 985 (ED Wis, 1999) (declining to admit statement under residual exception where it did not meet the requirements of an established hearsay exception and possess equivalent circumstantial guarantees of trustworthiness).
Defendant does not assert that the admission of D.D.’s statement violated his rights under the Confrontation Clause of the Sixth Amendment.
The defense theory at trial was that D.D. and A.D.’s mother coached them to fabricate the allegations of abuse against defendant as part of a revenge plot.
The trial court misstated the date of Bowman’s meeting with D.D. In fact; Bowman met with D.D. at his school on October 27, 1998.
Both children testified by way of closed circuit television at trial. Six years old at the time of trial, A.D. testified about sexual abuse at defendant’s hands. Specifically, she indicated that “Terry put his dick” in her “coo-coo.” A.D. further testified that defendant would take her and D.D. into his bedroom when it was dark outside, and take off their clothes. A.D. also testified that defendant “put [his] dick in [her] butt.” Using anatomically correct dolls, A.D. also described incidents where defendant would “hunch” over her, moving his body back and forth. Using the dolls, A.D. also indicated that defendant would put his fingers in her vaginal area.
D.D., seven years old at the time of trial, was more reticent during testimony, indicating that he was frightened of defendant. However, he also testified that defendant would wake the children up and take them into his bedroom at night and remove their clothes. D.D. also used anatomically correct dolls while testifying. According to D.D., defendant put his finger in both D.D.’s and A.D.’s bottom, and would put his penis in D.D.’s mouth, and would also put D.D’s penis in his mouth.
However, according to the testimony of the children’s uncle, it was the children’s mother who initially informed him of the children’s allegations of sexual abuse.
Defendant’s primary argument on appeal is that the trial court improperly admitted this evidence under MRE 404(b). However, in his brief on appeal, defendant fleetingly argues that the trial court’s admission of this evidence amounted to improper impeachment by reference to collateral extrinsic matters. However, defendant did not raise this argument as the basis for his objection in the lower court. Rather, defendant confined his objection in the lower court to the admission of this evidence in violation of MRE 404(b). Therefore, this cursory argument is not properly preserved for our review. People v Asevedo, 217 Mich App 393, 398; 551 NW2d 478 (1996) (“An objection based on one ground at trial is insufficient to preserve an appellate attack based on a different ground.”).
C.D. did not specify when the alleged abuse occurred.
For the purposes of protecting the victims’ privacy, we use a pseudonym to identify the relevant individuals.
John Doe shared the home with D.D., A.D., their mother, her ex-husband, and defendant. John Doe testified that he and the children’s mother engaged in an affair.
In support of his argument that this evidence was improperly admitted, defendant points to our Supreme Court’s decision in People v Hernandez, 423 Mich 340; 377 NW2d 729 (1985), a case with similar facts. The defendant in Hernandez was charged with engaging in sexual contact with a person under the age of thirteen. Id. at 342. In Hernandez, the defendant testified at the close of direct examination that “I never touched any child.” Over defense objection, the trial court allowed the prosecutor to present in rebuttal the evidence of K.P., a young girl who testified that defendant had previously kissed her. The prosecutor had initially moved for admission of this evidence before trial, but the trial court declined to allow the evidence after it found that the alleged act of kissing was not sufficiently similar to the acts with which defendant was charged. Id.
The Supreme Court concluded that the admission of KP.’s evidence in rebuttal was erroneous because “[the] evidence wholly fails to satisfy the applicable standards for the admission of [other acts] evidence.” Id. at 349. Specifically, the Court concluded that “[t]he final questions and answer of the defendant’s direct examination had nothing to do with kissing and instead concerned whether the defendant had ever touched any child in a sexual manner.” Id. at 352. In the present case, we have concluded that the challenged evidence was properly admitted under MRE 404(b) because it was admissible under the common scheme, plan, or system theory of logical relevance and its probative value was not substantially outweighed by the danger of unfair prejudice. Because the prosecutor satisfied the requirements of MEE 404(b), the fact that the evidence was admitted in rebuttal does not alter our analysis. See generally Lukity, supra at 499. Consequently, Hernandez is distinguishable. | [
-16,
15,
-15,
4,
-1,
-13,
-58,
-15,
-27,
9,
16,
8,
12,
36,
-14,
-47,
-18,
3,
-34,
-61,
55,
16,
5,
57,
-41,
-26,
45,
50,
0,
-4,
13,
-17,
32,
-53,
9,
-4,
55,
-15,
29,
61,
19,
-9,
20,
-21,
-38,
3,
-5,
44,
-17,
22,
68,
31,
12,
17,
5,
-24,
17,
57,
27,
12,
-21,
46,
-44,
17,
-27,
-18,
-16,
18,
-47,
1,
19,
-13,
-61,
1,
-17,
21,
-48,
30,
44,
42,
23,
8,
67,
76,
32,
-2,
-2,
-48,
-38,
13,
3,
-20,
-26,
-12,
0,
-35,
22,
-33,
52,
-45,
9,
-26,
35,
-9,
3,
65,
-24,
-9,
-2,
17,
-47,
14,
32,
-3,
-4,
-33,
-3,
0,
-29,
1,
-14,
50,
65,
-6,
28,
-23,
17,
-51,
5,
-5,
-51,
17,
38,
-44,
7,
7,
44,
30,
49,
-14,
-1,
39,
39,
-11,
14,
-7,
-68,
-11,
-21,
28,
14,
1,
3,
17,
18,
-38,
-39,
-48,
-50,
-13,
4,
8,
-21,
26,
-36,
-29,
-8,
-1,
12,
43,
41,
32,
-3,
43,
-2,
1,
-16,
0,
-6,
19,
-17,
-2,
41,
38,
17,
0,
-22,
-36,
-79,
-3,
-22,
36,
-14,
-24,
26,
-18,
27,
48,
17,
21,
-11,
-15,
41,
61,
55,
-32,
-25,
5,
-15,
-26,
20,
32,
-23,
-32,
-15,
-53,
8,
7,
-36,
30,
-27,
-35,
43,
-21,
-18,
-26,
-7,
-9,
-10,
6,
49,
37,
-15,
-2,
-42,
2,
-28,
5,
89,
0,
7,
-24,
48,
-49,
17,
44,
-26,
22,
26,
-10,
1,
-9,
0,
0,
-26,
-61,
-25,
3,
-26,
48,
6,
11,
-12,
7,
-19,
12,
-4,
11,
-68,
-36,
24,
-14,
2,
0,
-26,
-1,
-5,
7,
-22,
-19,
40,
29,
15,
27,
-37,
-48,
-38,
31,
-12,
-16,
38,
-2,
6,
-35,
83,
-18,
-17,
-10,
-54,
2,
28,
-40,
-5,
-30,
1,
-11,
36,
0,
9,
21,
16,
8,
39,
17,
-20,
-30,
-24,
-36,
14,
-14,
-53,
-50,
9,
-49,
-14,
-1,
30,
-27,
22,
-16,
-71,
11,
47,
-6,
46,
42,
-35,
-46,
-11,
29,
-33,
-9,
0,
-38,
-3,
29,
-15,
2,
-8,
-10,
2,
-11,
74,
-47,
-20,
-51,
-5,
-6,
24,
15,
32,
-19,
-54,
-3,
17,
41,
50,
-12,
24,
29,
40,
-91,
0,
9,
45,
-53,
6,
-22,
34,
12,
29,
29,
26,
8,
-2,
-30,
-16,
-33,
26,
8,
-31,
32,
1,
-46,
67,
-20,
19,
19,
58,
-47,
-14,
-24,
68,
-4,
-31,
23,
2,
20,
-3,
-15,
-9,
52,
20,
55,
13,
-48,
-13,
-24,
66,
-1,
49,
31,
64,
-24,
43,
-15,
-7,
-19,
9,
-38,
0,
-18,
-42,
11,
28,
-11,
-41,
25,
27,
-13,
-64,
-22,
-10,
10,
39,
-9,
0,
-23,
41,
-70,
-8,
52,
27,
-57,
-22,
5,
10,
26,
-26,
-31,
-2,
-27,
0,
3,
25,
-10,
-43,
-39,
-6,
-20,
8,
-34,
-1,
38,
27,
20,
12,
42,
-2,
0,
31,
29,
-69,
-3,
54,
0,
-8,
-57,
27,
-52,
-18,
-3,
-32,
-5,
-22,
32,
6,
28,
-5,
48,
1,
-42,
32,
31,
43,
-22,
23,
21,
25,
-19,
51,
63,
17,
-12,
-37,
-31,
57,
-19,
11,
1,
21,
-17,
14,
13,
-45,
-15,
-3,
-15,
-69,
1,
87,
10,
30,
-77,
79,
18,
-32,
-41,
-42,
-8,
11,
38,
9,
5,
-18,
-31,
33,
2,
34,
-11,
14,
-5,
31,
-44,
-44,
10,
-5,
6,
-19,
-44,
-14,
-21,
71,
13,
-21,
-24,
-11,
5,
20,
-30,
20,
21,
0,
28,
-26,
37,
16,
30,
-22,
9,
0,
64,
15,
44,
-26,
14,
31,
-39,
5,
-42,
-30,
-7,
-24,
-23,
0,
-74,
-21,
-33,
1,
-26,
19,
-8,
12,
-19,
9,
34,
36,
2,
-54,
-25,
48,
19,
-40,
-41,
0,
36,
22,
-12,
-44,
-8,
-23,
-51,
-20,
-31,
-13,
-53,
-17,
-6,
-11,
-14,
-2,
-38,
-14,
19,
26,
-23,
-22,
24,
-32,
30,
18,
59,
-32,
19,
41,
29,
34,
-5,
0,
-21,
-49,
7,
7,
-17,
-15,
-54,
-52,
18,
24,
23,
31,
-21,
-19,
39,
10,
25,
22,
-7,
6,
-5,
-29,
-5,
-46,
18,
-34,
35,
-14,
-34,
25,
-8,
-15,
-31,
20,
-85,
17,
27,
12,
8,
-12,
-19,
-25,
8,
23,
-19,
11,
-22,
19,
10,
-39,
5,
-38,
25,
-24,
1,
-12,
-24,
52,
-13,
2,
32,
-33,
57,
43,
-7,
-17,
-60,
-30,
-12,
-55,
41,
-26,
-17,
28,
6,
-31,
23,
47,
17,
32,
13,
47,
-25,
-4,
26,
2,
37,
-43,
-14,
31,
79,
-13,
-23,
-31,
-36,
-3,
15,
15,
-28,
20,
14,
25,
1,
-9,
-7,
-67,
40,
68,
-15,
-8,
-78,
-6,
25,
41,
-27,
-32,
-49,
10,
3,
63,
-2,
-14,
-39,
18,
23,
-56,
8,
-5,
43,
17,
-54,
8,
77,
-58,
27,
9,
-21,
-29,
-98,
23,
27,
18,
53,
-30,
33,
33,
51,
-10,
-33,
-29,
-23,
12,
19,
1,
-8,
-31,
-24,
-12,
-28,
-4,
13,
15,
-6,
-6,
6,
-23,
-11,
-11,
-51,
12,
-27,
62,
11,
-26,
-9,
-2,
48,
39,
-24,
40,
-24,
-2,
18,
22,
61,
-30,
-18,
4,
0,
-31,
21,
-24,
30,
-7,
-22,
53,
39,
39,
-21,
36,
18,
62,
-3,
-30,
-7,
11,
-6,
-15,
7,
3,
0,
-28,
43,
-27,
0,
-42,
27,
59,
-34,
47,
-29,
-16,
-17,
0,
14,
-47,
-43,
-26,
-10,
-49,
70,
41,
-36,
3,
14,
37,
-11,
-44,
-34,
36,
-52,
-42,
43,
28,
-46,
-18,
30,
-12,
38,
-11,
-51,
3,
3,
-23,
8,
-11,
-47,
0,
16,
-44,
-9,
-13,
4,
47,
37,
9,
-6,
-54,
0,
-28,
0,
24,
-12,
41,
51,
2,
-34,
-17,
-63,
-32,
22,
-16,
5,
-41,
-55,
27,
1,
29,
-72,
44,
28,
53,
29,
-49,
31,
-17,
6,
-22,
-40,
-15,
-16,
-13,
-32,
-31,
-5,
-18,
20,
9,
24,
-67,
25,
-8,
31,
-33,
64,
0,
-23,
3,
34,
-29,
10,
-3,
-17,
-36,
-23,
-6,
-71,
19,
-3,
-32,
-39,
-29,
36,
-37,
0,
-46,
14,
-71,
25,
-17,
-35,
14,
-15,
24,
30,
30,
-5,
-28,
-6,
42,
-26,
-37,
19,
-1,
11,
-27,
30,
15,
15,
-22,
-15,
46,
13,
18,
24,
8,
-12,
15,
17,
0,
44,
-31,
7,
-3,
17
] |
Moore, J.
The questions involved in this litigation are so clearly stated by the circuit judge in his direction to the jury that we quote:
“Gentlemen of the jury, the plaintiff has brought this case against the defendant to recover for certain extra work and labor which he claims to be performed for the defendant in remodeling and constructing certain buildings in the village of Lake Linden.
“The plaintiff’s claim in substance is, that on or about the 4th day of October, 1915, he entered into a contract in writing with the said defendant for the remodeling and construction of certain buildings, the property of said defendant; that at the time the contract was entered into certain specifications were drawn and agreed to and made a part of the contract; that under the contract the defendant was to furnish the materials used in remodeling and erecting said buildings, and the plaintiff was to furnish all labor and complete the buildings according to the contract and specifications, and was to receive therefor the sum of $2,469. The plaintiff has received the full amount due him under the contract and he makes no claim for any balance due on the original contract, but brings this action to recover for certain additional work and labor which he claims to have performed and furnished, which was extra, outside of and in addition to that agreed upon in the original contract and specifications.
“The original contract, which is in writing provides among other things that any additional work not specified for may, after a written permission by said party of the first part be added to said contract price, which charge will be on an actual labor cost, plus a commission of 21 per cent.
“There is no claim on the part of the plaintiff that there was any written permission given him by the defendant by either one of its agents, Mr. Chester Pearce or Mr. Ransom Pearce, for doing extra work done during the progress of the work on that building. According to that clause in the contract, before the plaintiff could charge for any extra work at all, it was his duty to secure the written permission to do that work from some one in authority representing the Pearce Hardware Company, otherwise he could not recover in law for that extra work. But it is the claim of the plaintiff that during the progress of the work he was called upon to do certain extra work and make certain changes and alterations, and that he called the attention of Mr. Chester Pearce to the fact that there was a clause requiring a permission to do extra work to be given in writing, and that Mr. Pearce said that there was necessity of going back to the contract on that point, that they were not children, they were willing to pay for any work they would order, and that they had had thousands of dollars worth of work done for them and were willing to pay for anything they ordered. It was also admitted in the evidence that Mr. Ransom Pearce said, ‘T want you to send me a bill of the extra work you do, every month,” and that the plaintiff sent bill every six weeks; that there was no objection made to those bills. And the evidence also shows, without any dispute, that the defendant has paid more than the amount of the original contract; has paid $131.00. more than the original contract, and has also given the plaintiff credit for a certain hardware bill amounting to $122 and some cents. The payment made by the defendant of the $131 above the contract price was unquestionably paid on extras and was unquestionably paid for a bill of extras which had previously been rendered by the plaintiff.
“The defendant claims that in the state of the record and in the state of the evidence there is no question for the jury as to the waiver of the clause in the written contract relating to the written authorization necessary before extras could be charged for. That the conversation had between the plaintiff and Chester Pearce or between the plaintiff and Ransom Pearce, as the case may be (if there was more than one conversation) , related to particular pieces of work, and was not a sweeping and general waiver of the clause in the contract requiring written authorization for extras before being charged for them, and it is the claim on the part of the.plaintiff, however, that all of the circumstances taken together indicate that both parties understood that that clause would be waived — that is, that the defendant intended to waive it, and the plaintiff relied upon it being waived, and therefore did not insist upon getting authorization for the extra work he had done. * * *
“I do not believe that the defendant ever intentionally waived that clause in the contract. I recognize perhaps, that there is a certain injustice, that the plaintiff went on and performed this extra work voluntarily» for the benefit of the defendant, and not able to recover for it. But the plaintiff is an intelligent man; he knew the clause was in the contract, and it was talked about before the contract was entered into, and if he did any extra work on his own motion, if he did some extras he must be regarded as a volunteer, and he cannot recover. * * *
“This is not a court of arbitration. If I were sitting as a court of arbitration I should probably allow the whole bill. But this is not a court of arbitration; this is a court of law. The parties must stand on their own rights. It is not a question of give and take; they must be held down to legal rules and to waive a clause in a legal contract it must be the intentional relinquishment of a known right. Now, was there any intentional relinquishment on the part of the defendant of this right to insist on a specific written authority for those extras? I am compelled by a careful review of the evidence to say no, that there is no such intention shown.”
The judge directed a verdict for the defendant. The case is brought here by writ of error.
The questions involved are:
1. Did the defendant, by its officers and agents, Ransom Pearce and Chester Pearce, expressly or impliedly waive the condition in the contract providing for written permission to do extra work?
2. Was the question of waiver a question of fact to be submitted to the jury?
In addition to what was said by the trial judge it may be well to call attention to some details of the testimony. It is not in dispute that Ransom Pearce was manager of the defendant and authorized to make contracts for it. It is difficult to harmonize the testimony of the plaintiff and the two Pearces. On his direct examination Ransom Pearce testified:
“I never had any conversation with Mr. Klas relative to the waiving of the contract providing for extras.”
On his cross-examination the following appears in part:
“l do remember how the first extra work come about. I ordered Mr. Klas to do extra work. I do not remember when I ordered the first extra work done. It was more than three weeks after Mr. Klas started on the job. * * *
“At the time I gave him the check for $200 on the 29th of March, we owed him nothing on the contract. We .had paid the original contract in full. At that time I recognized there was some extra work done by Mr._ Klas. Qn the 10th day of June I paid him an additional hundred dollars, and at that time I recognized that there was some extra work done by Mr. Klas. I agreed to some extra work in paying the checks. I did not agree to certain extra work. I ordered Mr. Klas to go on and do extra work. At the time I ordered this extra work done I understood the contract. I knew it provided that I should give him written permission. I ordered the work done but I did not give him written permission. Because the cases were so very few of extras that were authorized, I did not consider it necessary.”
Chester Pearce was a witness. In his direct examination the following appears:
“I am vice-president of the Pearce Hardware & Furniture Company. Mr. Ransom Pearce is manager. He had authority to contract for the firm. I have no authority to contract. I had a conversation with Mr. Klas in reference to certain changes in which I told him to go ahead with the work. * * * I think I said something like Mr. Dion said here on the stand that we were no kids or something of that sort, and anything we authorized to do as an extra, we would pay for it.”
On the cross-examination he testified in part:
“I had a good deal to say concerning how the building should be erected. I always consulted my brother on the matter. * * * As my brother testified he was quite busy and turned a good, deal of the work over to me, overseeing the job, etc. I ofttimes gave Mr. Klas his orders as to what I wanted done in certain cases. I always consulted my brother about things, and when I considered making a change, or Mr. Klas recommended one, I took it up with him, we talked it over, decided and went ahead. Either my brother or myself would give Mr. Klas instructions. * .* * Whenever a change was made either at the suggestion of Mr. Klas or at my suggestion, I talked it over with my brother and .we agreed to make the change, or not make it as the case may be.”
Counsel for the appellee insist the trial court was right, citing many cases and emphasizing the case of Davis v. Hospital Ass’n, 121 Wis. 579. While apparently there is a lack of harmony in the authorities, the disagreement is more apparent than real, when the facts of each case are understood.
The law has been stated as follows:
“Waiver is a matter of fact to be shown by the evidence. It may be shown by express declarations, or by acts and declarations manifesting an intent and pur-' pose not to claim the supposed advantage; or it may be shown by a course of acts and conduct, and in some cases will be implied therefrom. It may also be shown by so neglecting and failing to act as to induce a belief that there is an intention or purpose to waive. Proof of express words is not necessary, but the waiver may be shown by circumstances or by a course of acts and conduct which amounts to an estoppel.” 40 Cyc. p. 267.
“Waiver is a mixed question of law and fact. It is the duty of the court to charge and define the law applicable to waiver, but it is the province of the jury to say whether the facts of the particular case constitute waiver as defined by the court.” 40 Cyc. p. 270.
“A provision in the contract that all extra work shall be ordered by the architect in writing may be waived by the parties, the question whether there has been such a waiver usually being one of fact, depending on the facts and the circumstances of the particular case. Thus such waiver may be implied where the order and the extra work are known to the owner, and not objected to by him, where the charge for extra work is agreed to by the owner, or where the extra work is orally ordered by the owner or called for by the agent in the plans and specifications; or the owner by his conduct may be estopped from setting up such provision as a defense.” 9 Corpus Juris, p. 846.
See International Fair & Exposition Ass’n v. Walker, 88 Mich. 89; Wenzel v. Kieruj, 184 Mich. 284; Maurer v. School District, 186 Mich. 223.
Applying these authorities, to the instant case, we think it must be said there was a case for the jury.
Judgment is reversed and a new trial ordered, with costs in favor of the plaintiff.
Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred with Moore, J.
Ostrander, C. J.
For reasons stated by the circuit judge and recited in this opinion I am of opinion that the judgment should be affirmed. | [
16,
11,
-49,
-22,
-8,
8,
18,
-41,
44,
8,
64,
2,
16,
-44,
28,
-16,
-20,
-16,
5,
-20,
5,
-27,
-6,
-67,
-9,
2,
-18,
-1,
-24,
13,
-14,
71,
-45,
16,
-33,
39,
52,
22,
-1,
32,
0,
-11,
-5,
-45,
20,
-7,
26,
-7,
55,
-9,
18,
-8,
35,
-17,
8,
-33,
-9,
24,
-30,
0,
-38,
-19,
5,
8,
-8,
-34,
15,
31,
-14,
10,
-45,
-7,
8,
-26,
15,
-43,
-18,
17,
-48,
-4,
15,
29,
27,
-9,
-56,
29,
20,
-42,
42,
14,
-42,
39,
-5,
83,
-17,
20,
-10,
42,
45,
31,
35,
23,
-30,
-8,
-18,
27,
-70,
-35,
-9,
32,
-11,
18,
14,
-4,
-32,
-23,
16,
16,
-9,
-19,
37,
33,
-5,
-30,
-2,
10,
-12,
-32,
-31,
-7,
0,
-21,
-17,
0,
-35,
-11,
41,
3,
0,
-20,
23,
41,
-6,
2,
19,
34,
-58,
34,
-94,
25,
-4,
-57,
51,
29,
9,
-20,
-35,
-42,
20,
-27,
44,
11,
26,
-35,
-14,
-33,
16,
-4,
-1,
6,
-1,
10,
-14,
-47,
40,
-6,
25,
-46,
-35,
-43,
0,
0,
-9,
-2,
15,
-19,
11,
32,
0,
13,
61,
-24,
-73,
-16,
-17,
28,
-20,
-9,
-21,
-3,
9,
-11,
15,
-28,
-16,
10,
-2,
12,
2,
35,
42,
28,
-50,
-8,
-3,
37,
23,
29,
-6,
-6,
-43,
-44,
-27,
4,
-68,
-4,
10,
-29,
42,
-38,
-71,
14,
6,
55,
-2,
-35,
38,
0,
14,
38,
-25,
-1,
-40,
14,
-13,
-38,
-47,
-9,
-15,
-19,
-19,
17,
-20,
17,
-28,
10,
4,
-6,
-21,
-32,
4,
42,
-16,
-6,
32,
-35,
3,
-11,
-17,
80,
-1,
3,
4,
47,
-35,
-6,
-51,
2,
-9,
-24,
27,
-58,
-12,
22,
15,
-24,
30,
14,
-20,
-31,
30,
-10,
26,
-28,
69,
41,
38,
-31,
1,
-28,
-53,
-37,
-7,
-21,
12,
25,
-23,
-13,
-20,
13,
-49,
22,
-1,
-22,
31,
15,
-13,
-20,
6,
-29,
59,
28,
-27,
-26,
-32,
0,
26,
-38,
-45,
26,
32,
11,
-11,
-21,
-62,
0,
13,
-19,
-4,
-4,
55,
52,
16,
-12,
18,
20,
11,
-32,
0,
-24,
24,
-20,
-58,
-4,
13,
32,
-11,
-23,
-3,
32,
53,
28,
15,
-22,
0,
6,
0,
19,
-6,
37,
14,
-8,
-26,
-31,
-3,
4,
-1,
27,
-42,
29,
-25,
2,
-33,
12,
28,
7,
14,
-28,
-6,
15,
-40,
-10,
-3,
20,
-7,
-18,
6,
-10,
-32,
-63,
-2,
4,
-26,
-10,
-43,
2,
-11,
13,
-15,
17,
11,
-24,
-7,
3,
-12,
-29,
-5,
-21,
44,
66,
9,
8,
-28,
-10,
36,
-19,
31,
-25,
-15,
-13,
-46,
0,
16,
-45,
10,
-10,
-38,
-8,
-33,
24,
-53,
56,
-37,
8,
9,
17,
13,
47,
36,
31,
-2,
22,
8,
42,
10,
-23,
8,
-14,
61,
20,
26,
15,
34,
-64,
31,
30,
12,
5,
-35,
49,
-23,
25,
35,
-8,
-2,
16,
23,
-11,
21,
-19,
10,
15,
18,
1,
-42,
-8,
-26,
34,
-2,
-26,
33,
18,
11,
-32,
-15,
21,
-3,
8,
-42,
26,
-32,
18,
11,
-29,
13,
-26,
13,
-3,
15,
25,
-23,
6,
-3,
6,
29,
36,
34,
17,
-27,
-16,
4,
-14,
-8,
-12,
2,
35,
38,
49,
2,
-31,
0,
5,
-14,
6,
0,
-34,
8,
-23,
11,
-7,
-11,
30,
31,
44,
-28,
-9,
-21,
11,
34,
-6,
24,
-24,
-6,
17,
-33,
29,
15,
-12,
10,
7,
-6,
-8,
23,
7,
59,
-6,
-16,
-9,
29,
3,
-48,
11,
-20,
-29,
-55,
11,
-49,
-30,
-3,
-3,
-25,
-43,
-17,
1,
-21,
21,
17,
68,
-16,
44,
-30,
-13,
-15,
-47,
15,
6,
-22,
5,
-1,
9,
6,
4,
-42,
-41,
-54,
-8,
-45,
82,
1,
23,
-9,
-37,
-19,
7,
26,
26,
4,
-26,
13,
29,
54,
11,
-55,
-3,
0,
39,
18,
-16,
-19,
0,
-55,
22,
-65,
19,
27,
-32,
1,
-1,
13,
-4,
-14,
45,
-15,
-44,
-36,
18,
31,
2,
-23,
-7,
-11,
27,
75,
-19,
15,
-26,
11,
-6,
13,
-28,
45,
-69,
-40,
17,
10,
-36,
48,
5,
-36,
-18,
9,
2,
25,
33,
-14,
-53,
-21,
9,
8,
40,
55,
-14,
7,
-3,
35,
-2,
26,
-50,
-33,
7,
-24,
-11,
4,
-28,
49,
9,
-3,
-12,
-13,
-17,
-5,
-35,
37,
44,
-21,
36,
-11,
1,
0,
-13,
23,
1,
-34,
30,
14,
36,
-5,
23,
-43,
-8,
51,
-53,
55,
27,
-7,
36,
14,
50,
-14,
-17,
29,
2,
-46,
-1,
-4,
-8,
4,
-42,
-12,
-10,
12,
0,
0,
-2,
-11,
3,
64,
5,
-72,
37,
-75,
38,
38,
-5,
21,
7,
-11,
1,
-12,
25,
-17,
9,
9,
-20,
0,
-25,
-11,
-57,
-9,
-5,
9,
20,
5,
-30,
34,
9,
26,
-11,
27,
-37,
-8,
26,
-13,
31,
-23,
-22,
46,
-11,
36,
49,
4,
5,
-9,
31,
-22,
-30,
47,
32,
10,
-41,
15,
33,
7,
48,
11,
-47,
15,
40,
34,
-1,
-18,
1,
8,
-42,
-43,
-29,
-31,
16,
13,
42,
-7,
48,
-14,
-55,
32,
-35,
-6,
0,
-28,
-15,
41,
-25,
-47,
16,
31,
26,
-12,
49,
-21,
21,
-1,
-21,
19,
28,
31,
-40,
-42,
36,
-4,
28,
-4,
11,
17,
-2,
-44,
-35,
0,
18,
26,
-21,
13,
3,
-4,
58,
19,
-23,
-28,
-1,
25,
-24,
56,
8,
-15,
-28,
21,
-12,
-17,
-35,
44,
32,
-10,
0,
12,
1,
-21,
-10,
27,
-6,
-19,
50,
-15,
-6,
40,
-7,
28,
-14,
10,
-37,
-3,
-36,
9,
19,
30,
42,
7,
-19,
-12,
1,
21,
2,
14,
-46,
-59,
-44,
-15,
43,
2,
-9,
6,
50,
-8,
-15,
-41,
13,
0,
14,
-6,
-16,
-19,
32,
18,
-53,
39,
40,
54,
14,
-20,
-56,
-73,
-23,
24,
-38,
0,
-9,
-20,
-36,
-15,
-20,
22,
39,
-6,
33,
12,
28,
-13,
0,
-40,
23,
-15,
-26,
13,
17,
36,
-28,
52,
8,
27,
7,
-7,
-62,
30,
-9,
17,
-9,
10,
-16,
41,
7,
31,
54,
17,
-49,
-2,
38,
12,
4,
20,
-20,
-45,
-25,
3,
-34,
1,
2,
-42,
-63,
-30,
-9,
-6,
32,
-38,
21,
20,
45,
8,
-27,
25,
45,
9,
-52,
-28,
28,
24,
-11,
-28,
45,
-44,
-57,
-31,
-55,
17,
-27,
-7,
63
] |
Moore, J.
This is an appeal from an order overruling a demurrer to the bill of complaint and denying a motion to dismiss the bill of complaint. The bill of complaint was filed September 7,1915, for the purpose of decreeing the last will of Lafayette Peters to be void, and that a certain deed dated February 24, 1915, made by Lafayette Peters, be set aside and that all other conveyances and mortgages based on said deed or on proceedings in probate court in relation to the estate of Lafayette Peters be set aside.
The plaintiffs are a nephew and niece and heirs at law of Lafayette Peters. On the 15th day, of April, 1911, Lafayette Peters made the will in controversy, which will was admitted to probate on the 7th day of April, 1914. No appeal was taken from its allowance. About twenty paragraphs of the will make bequests about which there is no controversy.
Paragraph 22 reads:
“I give and bequeath to the Elwell Methodist Episcopal Church of Elwell, county of Gratiot, State of Michigan, incorporated under act number 11 of the Public Acts of 1899 of the State of Michigan, as appears by articles of incorporation dated January 17th, A. D. 1911, recorded in the book of records of incorporations in the county clerk’s office of Gratiot county, State of Michigan, in liber number 4, on page 81, the income of five hundred dollars of my estate. This income it shall receive as long as there shall be Methodist Episcopal services held open for the public, in the now unincorporated village of Elwell, in the township of Seville, county of Gratiot, and State of Michigan, or in such territory as said village may grow to, twelve or more Sundays each year, payable yearly, commencing one year after the said five hundred dollars is set aside by my executors for that purpose, to such officer as the majority of the board of trustees shall in writing designate as long as such corporation exists and to such person as the persons holding such meetings shall designate in writing should such corporation cease to exist, and the receipt of the person heretofore designated shall be a sufficient discharge to my executors or trustees under this will for the same.
“Upon said services not being held twelve Sundays in one entire year, said principal sum and any accrued income I .give and bequeath to the board of foreign missions of the Methodist Episcopal church incorporated by the legislature of the State of New York and the receipt of the treasurer thereof shall be a sufficient discharge to my executors or trustees under this will for same.
“I shall expect my executors as soon as said five hundred dollars is available to place said money in certificates of deposit, drawing interest in a bank and to loan the same on only first mortgage on real estate only as soon as they can and the judgment of my executors or trustees under this will as to the bank the money shall be put into or the real estate the loans shall be made on shall not be questioned.”
Paragraph 28 of the will is the one that plaintiffs claim makes the will void. It reads:
“All the rest and residue of my estate, real, personal and mixed, of which I shall die seized and possessed or to which I shall be entitled at my decease I give, devise and bequeath to the board of foreign missions of the Methodist Episcopal church incorporated by the legislature of the State of New York, and the receipt of the treasurer thereof shall be a sufficient discharge to my executors for the same.
“A. I will and direct that all expenses incurred under the items heretofore numbered 1, and everything necessary under item 9th be paid in full from moneys, personal and mixed property that I have on hand at the time of my decease.
“B. In order to pay the aforesaid legacies and give as much under the 23d as I desire to unless previous to my death I shall dispose of the real estate I now own I desire my executors to hold the following described real estate that I die seized and possessed of for five years after the date of my death, if necessary to obtain seventy-five dollars per acre for said real estate. For it is my will that any of the following described real estate that I shall die seized and possessed of shall not be sold for less than seventy-five dollars per acre, unless it can all be sold so that it will average seventy-five dollars per acre and as much more as my executors can obtain until after five years after the date of my death. After five years after the date of my death my executors are at liberty to divide it and dispose of the same in a manner as in their judgment will bring the best possible price. This shall also apply to any part of the said described property that I may own at the time of my death. * * *
“C. It is my will that my executors have two years after the five years after my death, should the five years be necessary, as heretofore set forth, in which to dispose of said real estate and settle my estate. I desire that item 23d be paid in one sum upon the dos-' ing up of my estate. That all items except the 1st, 9th and 23d be paid or set aside for the purposes heretofore mentioned at the convenience of my executors and that no property shall be sold to pay anything, except as heretofore provided. All other dispositions of any property, real, personal or mixed except as heretofore set forth under this will to pay the different bequeaths and set aside the funds mentioned herein shall be at the convenience and judgment of my executors, both as to disposition and payment.
“D. During the five years that my executors may have to hold said real estate I shall expect them to rent it to the best possible advantage, keeping the premises and buildings on the same at the time of my decease in as good condition and repair as they possibly can. In case a barn or other buildings, except dwelling, should be destroyed they shall have the right to replace the barn at a total expense not to exceed one thousand dollars out of any funds they may have. In case the insurance should be insufficient or it should not be insured, but I desire that my executors should keep them insured in the Farmers’ Mutual of Gratiot and Clinton counties or some other good mutual or stock company.
“I give my executors full power in the premises for the best interest of said estate, but under no circumstances shall they mortgage or encumber said estate, but may take a mortgage on the sale of said estate.
“E. I have herein remembered all my relation that I know about. For many years the foreign missionary work of the Methodist Episcopal church has been of great interest to me. I have no wife nor children and my father and mother have long ago passed to the other world and I have for a long time had in view the leaving of nearly all of my property as set forth in the 23d bequeath.
“I know the financial condition of my brothers and sisters and their children heretofore mentioned and this will is just as I want it.
“F. As I have for. many years lived either entirely alone or with people to whom I am not related it is my will that upon my decease my executors hereinafter named shall have charge of my remains or such persons as they shall designate. It is my desire that my remains be buried in the lot my mother is buried in, in the cemetery known as the Pritchard cemetery in said township of Sumner, in the county of Gratiot, and State of Michigan, and that there shall be erected within one year after my decease by my executors a marker over my grave with a suitable inscription on and on the monument on said lot, if at that time there is a place for the same.”
The will also contains the following:
“And I desire that said executors named should be trustees under the will when the estate is closed. I ask that the courts that they account to shall allow them their cash disbursements and what is lawful and right for their services in the settlement of this estate-as special administrators and executors and as trustees under the will thereafter.”
We quote from the brief of the plaintiffs:
“The theory upon which plaintiffs filed and claim the right to maintain their bill in this case as shown by their bill of complaint is as follows:
“1. That as to the eighty acres of land which is claimed to have been deeded by Lafayette Peters to his brother, Abner Peters, on February 24th, 1914, the board of foreign missions renounced the devise in its favor and therefore if that deed is voidable as claimed by the plaintiffs then that eighty acres descended to the next kin of the deceased and these plaintiffs, taking a part of it by inheritance, have a standing to attack that deed and the subsequent transfers of that property.
“2. That Lafayette Peters was not a mentally competent person and was in fact in a state of coma immediately preceding death at the time that the deed of February 24th, 1914, is alleged to have been executed and that therefore the deed ought to be set aside.
“3. That as to the eighty acres of land which remained undisposed of at the time of the death of Lafayette Peters (and also as to the other eighty acres of land if the board of foreign missions should attempt to claim it now), the will violated the statute against perpetuities and that violation is not saved by the provisions of Act No. 122 of the Public Acts of Michigan of 1907, and amendments thereto.
“4. That as to the will itself it does not purport to vest the title to the lands referred to in said will in any person or persons prior to the time provided for therein as the time of sale and division of the proceeds thereof, and therefore, that the will in question is void as to all of the lands described therein.
“5. That the proceedings in probate court touching the sale and disposal of that remaining eighty acres of land were and are without jurisdiction and void.
“6. That the main or whole purpose of the will in question was to bestow the bulk of the property upon the board of foreign missions and that because of the failure of that purpose the entire will should be set aside and the property pass to the heirs-at-law of the deceased.”
It is the claim of defendants that the demurrer and the motion to dismiss the bill of complaint should have been granted for the following among other reasons:
“1. Because the order and decree admitting the last will and testament were valid * * * and that said order and decree stand unreversed and unappealed from and the subject-matter of this suit is therefore res adjudicata.
“2. Because the gift, grant and bequest of the rest, residue and remainder of the said estate were made for religious, educational, charitable and benevolent purposes which said purposes were authorized by law and made in compliance with such laws. * * *
“6. Because said plaintiffs as heirs at law of said deceased would take no right, title or interest in the land deeded by said deceased during his lifetime to his brother Abner Peters, whether said deed was valid or invalid as the defendant, the board of foreign missions of the Methodist Episcopal Church, the residuary legatee, would take all interest'in and to said land so deeded and the right to attack the validity of said deed.
“7. Because it appears from said bill that the defendants, the executors named in said will, were duly and legally appointed by the probate court of Gratiot county, which had jurisdiction of the estate of said Lafayette Peters, deceased, that they duly qualified and accepted said trust and were entitled to the possession of said estate for purposes of administration.”
In our view of the case it will not be necessary to discuss all of the very interesting legal questions so ably argued by counsel. In Foster v. Stevens, 146 Mich. 131, it was said in substance that the intent of the testator is the cardinal rule in the construction of wills, and if that intent can be clearly perceived, and is not contrary to some positive rule of law, it must prevail, and that such a construction should be adopted as will give effect if possible to every clause and meaning to every word, if it can be done without violating the general design of the instrument or any well-settled rule of law.
In Clark v. Mack, 161 Mich., at p. 549, Justice Stone, speaking for the court, said:
“When a will fairly construed is susceptible of two constructions, one of which would render it inoperative, and the other give effect to it, the duty of the court is to adopt the latter construction. 30 Am. & Eng. Enc. Law (2d Ed.), p. 667, and cases cited in note. In Den v. Crawford, 8 N. J. Law, 97, Ewing, C. J., in giving the opinion of the court, said:
“ ‘It is only when a reasonable construction and the discovery of the intent of the testator are utterly hopeless that all effect should be denied to a will.’ ’’
By consulting the will it will be seen that the bequest made to the Elwell Methodist Episcopal Church by paragraph 22, if certain things are not done by that church, is to go to the board of foreign missions. It will also be noticed that the bequests made to the residuary legatee in paragraph 23 contains no suggestion that it shall go in some other direction if the desires expressed in the lettered subdivision of that paragraph are not carried out. See Scott v. Roethlisberger, 178 Mich. 581.
' But it is urged that the instructions and desires expressed in the lettered subdivisions of paragraph 23 are' in violation of the statute against perpetuities and that Act No. 122 of the Public Acts of 1907, as amended (3 Comp. Laws 1915, § 11099 et seq.), does not save the bequest. At the time this case was decided in the court below Act No. 122 had been considered by this court in the case of Loomis v. Mack, 183 Mich. 674, where the act was held to be constitutional by a divided court. The trial judge did not consider that decision, because it was made by a divided court, as controlling the instant case. Later the act was before this court in Re Brown’s Estate, 198 Mich. 544, where, by the unanimous opinion of the Justices, the act was held to be constitutional. The last-named case is controlling of the instant case. The demurrer should have been sustained and the bill of complaint dismissed.
The decree is reversed and one may be entered in this court dismissing the bill of complaint, with costs to the defendants.
Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
-1,
-12,
-10,
32,
-30,
38,
40,
12,
58,
5,
5,
-23,
45,
38,
-29,
-2,
4,
-9,
-36,
2,
-20,
-2,
-35,
-49,
-29,
-14,
-16,
-32,
-26,
-47,
-24,
-8,
-29,
2,
16,
-16,
14,
-27,
56,
11,
-5,
-5,
1,
20,
-11,
15,
19,
49,
22,
-3,
0,
-23,
-7,
1,
-39,
-1,
-20,
-62,
10,
-23,
-11,
6,
40,
35,
-3,
24,
-17,
55,
-56,
-19,
-1,
29,
13,
-3,
3,
0,
-46,
-63,
-40,
-1,
-5,
-25,
-4,
-44,
-73,
38,
-34,
29,
-4,
23,
-26,
9,
-60,
8,
33,
16,
44,
0,
32,
-16,
14,
15,
14,
12,
16,
-2,
3,
48,
-21,
-51,
-12,
-20,
9,
-20,
22,
0,
-43,
-19,
17,
-40,
20,
27,
30,
0,
8,
48,
26,
-29,
31,
65,
-4,
-22,
-46,
-22,
-22,
24,
16,
-45,
23,
-27,
31,
-5,
-7,
-36,
-39,
28,
-34,
28,
41,
-48,
-25,
63,
34,
39,
19,
-8,
22,
-17,
43,
10,
30,
-8,
-17,
-36,
-44,
2,
13,
10,
-2,
17,
12,
53,
-39,
-19,
-35,
16,
-12,
-35,
-26,
-18,
17,
23,
8,
-52,
-4,
-30,
62,
-14,
-33,
-1,
-3,
-42,
0,
17,
-22,
19,
28,
-19,
-5,
-6,
2,
-32,
7,
16,
9,
-20,
56,
13,
-61,
17,
30,
-15,
-8,
44,
-7,
25,
-6,
-46,
-17,
4,
12,
10,
21,
61,
-13,
-34,
11,
-46,
-46,
-40,
-82,
24,
-20,
12,
6,
-43,
13,
30,
-20,
-15,
-63,
23,
16,
5,
-34,
-20,
11,
-8,
29,
41,
14,
59,
-2,
22,
-13,
3,
-21,
35,
-13,
-10,
15,
4,
-50,
2,
14,
-23,
6,
-24,
15,
-3,
28,
0,
51,
-6,
-5,
-15,
6,
7,
67,
9,
-1,
-43,
11,
0,
26,
-2,
-18,
23,
6,
-11,
-12,
-6,
7,
8,
27,
89,
2,
0,
16,
-18,
-13,
5,
1,
0,
-25,
30,
-2,
-15,
63,
-6,
-48,
-8,
-12,
11,
45,
-33,
-42,
15,
-36,
30,
23,
-5,
-42,
-6,
-32,
65,
36,
17,
14,
56,
-14,
-8,
1,
-79,
2,
16,
39,
-19,
-34,
5,
59,
32,
3,
10,
30,
3,
-27,
-17,
31,
-17,
-40,
34,
-26,
49,
-6,
-4,
18,
-65,
-37,
93,
0,
18,
6,
21,
57,
8,
-23,
1,
-27,
-9,
-9,
26,
-42,
12,
8,
18,
-48,
-13,
-14,
23,
-25,
-8,
-19,
8,
60,
-17,
0,
20,
-14,
38,
-25,
7,
7,
-3,
11,
15,
-3,
-3,
-52,
24,
-42,
43,
-49,
-14,
-8,
36,
2,
53,
-11,
42,
41,
11,
18,
-11,
16,
-11,
12,
-20,
77,
11,
43,
60,
-15,
2,
-20,
-47,
-12,
4,
-20,
-4,
-15,
35,
46,
-16,
28,
-10,
0,
-39,
-27,
-52,
-6,
53,
16,
-1,
-23,
-20,
8,
-14,
-4,
-2,
-17,
16,
9,
-17,
0,
28,
40,
30,
25,
-44,
22,
-3,
-10,
-29,
-14,
70,
19,
37,
35,
6,
-64,
10,
-25,
-67,
-6,
3,
35,
-5,
-2,
17,
14,
21,
-11,
18,
-18,
31,
-32,
13,
-38,
-43,
23,
-13,
25,
0,
28,
17,
-44,
-37,
10,
26,
0,
61,
-26,
18,
-15,
-20,
-12,
21,
-14,
14,
-47,
-64,
26,
8,
-47,
27,
39,
30,
16,
-22,
18,
-10,
-8,
-22,
-21,
50,
63,
14,
42,
-40,
-5,
-1,
-14,
-24,
-41,
-22,
18,
16,
-19,
-6,
-10,
20,
8,
14,
4,
2,
-45,
-3,
50,
-27,
18,
-11,
-48,
-48,
7,
1,
-16,
-11,
19,
16,
29,
-15,
-16,
-38,
22,
-24,
32,
-44,
-24,
23,
-22,
4,
12,
-32,
-35,
13,
31,
-45,
7,
-9,
-15,
-68,
19,
4,
40,
-7,
-22,
51,
-11,
2,
-4,
12,
-39,
-12,
15,
9,
37,
-22,
35,
-1,
-5,
-27,
5,
-18,
-36,
7,
-39,
16,
3,
3,
-6,
11,
-40,
-4,
-28,
69,
-16,
-21,
37,
-3,
-6,
-8,
39,
-40,
22,
-11,
18,
17,
-5,
33,
-3,
18,
-5,
2,
-16,
74,
-31,
22,
6,
-20,
-22,
24,
7,
-26,
-4,
29,
-6,
11,
7,
14,
-26,
2,
-21,
31,
12,
-23,
74,
-42,
23,
-13,
53,
-40,
-7,
50,
-11,
5,
33,
54,
23,
-5,
7,
-8,
15,
-9,
-7,
-10,
-30,
22,
-14,
33,
-20,
-18,
-46,
18,
-24,
-46,
35,
26,
-22,
7,
51,
-47,
4,
38,
-36,
4,
-33,
6,
84,
0,
-9,
-17,
5,
24,
-59,
-5,
-16,
37,
-13,
-43,
-37,
16,
26,
-6,
-1,
28,
59,
-48,
9,
-28,
2,
-9,
6,
36,
10,
32,
25,
-20,
-8,
-17,
-3,
-10,
20,
-32,
31,
-11,
3,
-24,
-16,
-4,
-31,
-41,
-66,
-5,
74,
4,
14,
28,
-21,
11,
-9,
3,
-31,
25,
13,
-18,
-20,
10,
2,
-17,
25,
14,
43,
10,
25,
35,
-19,
38,
2,
13,
41,
39,
-31,
-31,
-19,
-10,
-9,
-9,
5,
4,
15,
-20,
-16,
-10,
38,
-26,
57,
-22,
15,
-5,
-19,
-26,
-1,
-9,
-30,
-3,
-22,
-80,
1,
-42,
7,
-33,
2,
28,
-28,
8,
-19,
50,
-54,
7,
-40,
39,
-26,
-39,
-53,
-12,
-7,
29,
-13,
-14,
-10,
7,
37,
16,
35,
-57,
11,
10,
-29,
-4,
41,
-35,
-6,
-31,
0,
-38,
10,
29,
-31,
-18,
-15,
-35,
11,
38,
-3,
13,
14,
44,
-74,
7,
-20,
0,
9,
26,
-32,
-45,
19,
-37,
-32,
-4,
8,
0,
6,
5,
-6,
18,
5,
-9,
15,
49,
-43,
-26,
-68,
-10,
2,
-36,
28,
2,
15,
5,
-7,
-19,
-9,
-12,
0,
33,
50,
-4,
-13,
-15,
23,
-13,
8,
40,
-7,
39,
-7,
-74,
8,
11,
-25,
-12,
18,
0,
-57,
-50,
36,
5,
40,
8,
-27,
-28,
-52,
-50,
-47,
5,
32,
18,
27,
-32,
37,
-11,
-48,
13,
-34,
6,
30,
-32,
-34,
28,
31,
-3,
-1,
-15,
-54,
-27,
32,
-20,
18,
46,
30,
11,
-14,
-10,
25,
23,
23,
-29,
-19,
6,
-15,
-49,
29,
14,
-26,
55,
-50,
-8,
-45,
4,
-5,
27,
17,
-25,
4,
-36,
-6,
-12,
33,
22,
-30,
-13,
-7,
12,
6,
-39,
15,
-7,
52,
50,
7,
6,
-1,
17,
0,
13,
-9,
10,
-2,
-38,
27,
85,
-56,
-16,
-2,
-29,
-24,
32,
-23,
24,
13,
-20,
8,
35,
25,
-11,
3,
-6,
-17,
-23,
-21,
10,
-3,
39,
-15,
-1,
-11,
-21,
6,
-6,
20,
-61,
-19,
22
] |
Moore, J.
This is a petition filed by the attorney general, ex rel. Horace H. Dickinson, praying for a writ of mandamus to compel the respondents, the city election commission of the city of Detroit and Richard Lindsay, clerk of the city of Detroit, to-strike from the ballot now in preparation for use at the coming, primary election in Detroit, the name of Edward J. Jeffries as a candidate for the office of mayor.
The second paragraph of the petition reads:
“That on the 27th day of July, 1918, a petition was filed with the city clerk of the city of Detroit, by which petition Edward J. Jeffries became a candidate for the office of mayor of the city of Detroit.”
The answer of defendants admits the averments of this paragraph. It is contended it is the duty of thé clerk to strike this name off the ballot because of the provision on page 29 of the recently-adopted- charter of Detroit, which reads:
“No elective officer, or salaried officer appointed by the mayor, shall be a candidate for any public office, except to succeed himself, without first resigning such office as he may hold.”
It is the contention that this language is unambiguous and that no one holding an elective city, county, State or Federal office may be a candidate for mayor of the city of Detroit without first resigning the office he holds.
It is asserted, we quote from one of the briefs, that:
“It is legally possible for the city of Detroit to prescribe such a qualification. Act No. 279, Pub. Acts 1909 (1 Comp. Laws 1915, § 3304 et seq,), commonly known as the home rule bill, provides that cities may provide for the qualifications and for the nomination and election of officers. Section 3, subd. c; section 4, subd. c; Attorney General, ex rel. Selby, v. Macdonald, 164 Mich. 590; Coxe v. Carson, 194 Mich. 304.”
It is claimed the last cited case is controlling.
On the part of the defendants it is urged that the provision of the charter relied upon by the plaintiff is found under title 4, chapter 1, § 2, headed “Executive Department,” and that a reading of the chapter shows that its provisions relate to city officers and that subdivision (e) means the same as though it read, “No elective city officer * * * shall be a candidate, etc.” It is also said that this court has held (Murtha v. Lindsay, 187 Mich. 79; Detroit Civil Service Commission v. Engel, 187 Mich. 83), that the judge of the recorder’s court is a State officer and that it logically follows that the charter provision relied upon by the plaintiff has no application to the candidacy of Judge Jeffries.
In Murtha v. Lindsay, supra, the following language was used:
“The recorder’s court is, when exercising jurisdiction to try persons accused of crimes, under the general laws of the State, a State court; its judges exercising the powers of a circuit judge. People v. Jackson, 8 Mich. 78.”
In Detroit Civil Service Commission v. Engel, supra, it was said:
“The execution of the criminal laws of the State is a matter of State concern and in this respect the court possesses a jurisdiction which the electors of the city cannot confer.”
The jurisdiction of the recorder’s court, however, is not limited to the enforcement of the general laws of the State. In the 1904 charter, at page 203, is found the following:
“Said recorder’s court shall have exclusive cognizance of all prosecutions for offenses arising under this act or any ordinance or regulation of the common council.”
It is evident the jurisdiction of the recorder’s court is of a dual character. We think it logical to say that when it is exercising jurisdiction, given to it exclusively, to enforce ordinances of the city, that it is a city court. We do not think it necessary to say, and we decline to pass upon the question, that no man holding an elective office can be a candidate for mayor without resigning his office, but we do say a judge of the recorder’s court, a large share of whose duties is to take jurisdiction for the enforcement of the ordinances of the city, is disqualified from being a candidate for mayor without first resigning.
It follows that the writ of mandamus as prayed should be issued. As the question is one of public interest no costs will be given to either party.
Ostrander, C. J., and Steere, Brooke, Fellows, and Kuhn, JJ., concurred. Bird and Stone, JJ., did not sit. | [
32,
-5,
30,
-27,
11,
51,
-11,
-10,
-6,
5,
-17,
-39,
-4,
33,
-10,
10,
19,
-12,
-1,
-23,
-9,
-30,
-37,
-38,
-9,
9,
-34,
-20,
-80,
-1,
-39,
-42,
-8,
20,
-6,
-33,
-26,
-8,
59,
31,
-6,
3,
-21,
45,
-1,
0,
9,
31,
-31,
-39,
-61,
41,
3,
55,
-6,
-11,
-5,
13,
13,
-15,
-35,
57,
-10,
19,
-54,
-47,
-4,
83,
19,
-31,
-6,
20,
-8,
-39,
30,
-2,
39,
-64,
3,
53,
-33,
14,
14,
-40,
38,
29,
-6,
24,
9,
-3,
16,
42,
-41,
41,
29,
-7,
9,
-23,
64,
-25,
-12,
16,
-1,
-17,
8,
-41,
9,
-3,
78,
-20,
14,
25,
53,
-4,
-12,
-11,
-4,
42,
18,
-23,
36,
-20,
-19,
20,
19,
0,
-13,
-11,
-22,
-15,
41,
22,
53,
-51,
-21,
45,
0,
26,
52,
42,
35,
48,
44,
-4,
-8,
-14,
17,
31,
18,
-1,
17,
7,
32,
4,
-56,
9,
-14,
-31,
61,
52,
-44,
-10,
-27,
-38,
-9,
30,
-59,
69,
-7,
49,
-25,
-4,
2,
-26,
14,
-30,
-47,
69,
-17,
-47,
7,
36,
-35,
-43,
20,
-15,
11,
-10,
11,
-50,
26,
-47,
16,
-63,
30,
-5,
-9,
59,
-5,
26,
27,
-14,
-36,
20,
-39,
11,
-10,
6,
-14,
54,
-22,
-11,
11,
1,
6,
0,
-44,
-48,
37,
-18,
17,
-34,
0,
32,
24,
34,
-10,
-17,
6,
38,
18,
-26,
18,
-9,
-31,
-52,
17,
26,
0,
29,
-80,
59,
42,
69,
-2,
-12,
-20,
-38,
33,
10,
51,
-25,
-6,
-30,
-71,
-4,
-3,
-22,
35,
14,
-3,
40,
18,
-29,
-47,
-2,
25,
52,
11,
7,
-20,
38,
-2,
2,
-47,
34,
29,
-22,
-11,
-23,
-59,
-14,
-7,
47,
-32,
17,
-30,
-21,
16,
-1,
-17,
-45,
-14,
70,
-2,
-19,
29,
-15,
44,
8,
-16,
65,
39,
1,
22,
-36,
-42,
-60,
46,
4,
47,
-21,
-27,
20,
-16,
17,
50,
6,
-16,
-12,
16,
31,
-21,
-31,
-54,
-43,
46,
-28,
-34,
-47,
80,
-24,
-14,
-41,
-32,
44,
60,
4,
12,
-59,
-3,
-38,
23,
26,
10,
-37,
-8,
0,
-28,
23,
-12,
24,
-25,
15,
1,
-25,
12,
-14,
1,
-22,
-53,
29,
1,
42,
7,
-39,
-45,
26,
50,
17,
35,
-20,
-37,
30,
18,
9,
32,
8,
-28,
42,
-27,
-3,
21,
-1,
4,
8,
48,
-19,
-25,
-62,
-49,
6,
-72,
0,
2,
21,
32,
-9,
18,
35,
21,
29,
-21,
62,
-58,
39,
-63,
22,
10,
34,
20,
56,
24,
-2,
23,
-34,
0,
-15,
16,
28,
-7,
10,
-53,
-12,
37,
3,
-32,
51,
72,
-1,
-13,
-55,
49,
-22,
-16,
-34,
-37,
-68,
-16,
-17,
-5,
-26,
6,
21,
-20,
-21,
-28,
7,
-55,
23,
35,
19,
10,
3,
-17,
-35,
-3,
12,
-16,
-41,
-41,
-23,
-41,
-20,
-60,
77,
-55,
36,
-5,
-10,
-24,
-29,
-1,
-6,
-54,
-29,
-23,
6,
11,
-30,
-26,
21,
2,
-6,
-49,
-23,
-18,
-51,
-33,
-16,
31,
2,
-28,
29,
27,
64,
-4,
-12,
-29,
4,
37,
42,
-4,
27,
-46,
-29,
17,
-29,
-2,
44,
-37,
-7,
0,
81,
37,
22,
-11,
13,
6,
-51,
38,
-6,
-59,
14,
25,
50,
30,
-30,
-2,
31,
23,
13,
18,
-2,
32,
11,
-18,
34,
-10,
-41,
17,
12,
10,
48,
0,
1,
-21,
40,
34,
-27,
25,
23,
-109,
-53,
11,
20,
-15,
29,
0,
38,
-20,
-33,
38,
-17,
2,
-15,
8,
12,
20,
26,
5,
6,
-11,
-10,
0,
-11,
59,
12,
-8,
2,
15,
-15,
-33,
13,
25,
-55,
-42,
-16,
14,
-46,
-9,
-61,
-47,
19,
-18,
38,
1,
68,
39,
-11,
7,
52,
-5,
23,
3,
-14,
-11,
-14,
32,
-74,
-17,
-14,
-40,
-23,
-26,
52,
-59,
-7,
35,
-40,
17,
26,
37,
-15,
20,
-39,
57,
-25,
1,
32,
21,
-3,
-38,
-11,
1,
-16,
-6,
12,
51,
-25,
-25,
-7,
-11,
-30,
58,
48,
-32,
20,
43,
54,
-3,
8,
9,
-33,
-20,
-33,
37,
67,
-8,
-10,
-11,
-32,
-65,
-16,
38,
35,
-2,
7,
5,
-38,
27,
25,
5,
-61,
46,
14,
51,
10,
-21,
13,
-24,
58,
-47,
54,
36,
-58,
7,
-18,
-72,
6,
21,
23,
-3,
-47,
14,
41,
6,
-4,
49,
-13,
-3,
34,
1,
73,
-53,
0,
-3,
-19,
-15,
-42,
0,
-29,
-34,
10,
-7,
-37,
6,
-8,
32,
-20,
0,
6,
-17,
30,
64,
38,
-60,
-22,
-14,
-4,
20,
-45,
19,
-35,
16,
30,
-1,
-16,
-62,
-1,
-13,
1,
0,
2,
-18,
-11,
13,
-1,
-33,
0,
-8,
-36,
43,
53,
6,
34,
-7,
10,
-17,
36,
-8,
-16,
39,
19,
-19,
-21,
-23,
55,
1,
-1,
10,
4,
12,
18,
50,
-13,
-66,
-47,
27,
14,
39,
-2,
4,
-22,
-13,
9,
-2,
20,
-48,
-55,
18,
-28,
-29,
0,
10,
21,
-26,
-62,
30,
-15,
-13,
-45,
3,
-41,
11,
-26,
14,
57,
-5,
6,
-17,
15,
-34,
-32,
-25,
21,
-17,
4,
-40,
-31,
-8,
-34,
14,
-18,
-31,
-13,
21,
49,
-11,
46,
34,
20,
22,
15,
-3,
-26,
-41,
-14,
47,
52,
-17,
-28,
-11,
22,
-30,
16,
-47,
61,
-3,
-2,
-18,
60,
-54,
10,
27,
-21,
47,
-60,
-13,
-45,
41,
33,
3,
-45,
-5,
-14,
-50,
-68,
61,
14,
-22,
-7,
17,
-5,
1,
34,
1,
-16,
-16,
-14,
0,
33,
0,
-17,
5,
74,
-1,
-40,
-7,
67,
32,
-23,
-8,
10,
-8,
33,
26,
3,
-37,
-8,
-28,
-46,
5,
-40,
-76,
9,
13,
33,
-18,
-4,
8,
-19,
11,
-31,
-6,
-16,
-65,
11,
12,
29,
7,
6,
-38,
-27,
-22,
-40,
29,
18,
3,
28,
-8,
-38,
16,
-6,
16,
-25,
60,
-5,
11,
14,
6,
14,
-33,
-18,
-23,
21,
-57,
-21,
-48,
3,
-17,
-33,
66,
38,
6,
26,
-25,
13,
16,
48,
15,
-5,
-2,
15,
-8,
-34,
-13,
-73,
26,
17,
44,
24,
-35,
36,
21,
-8,
-39,
-40,
5,
16,
1,
21,
23,
34,
37,
-25,
9,
-8,
-55,
-25,
12,
23,
3,
-49,
-15,
-3,
-35,
17,
-16,
18,
42,
16,
-43,
20,
-33,
22,
14,
3,
-17,
4,
14,
-29,
8,
40,
-64,
33,
26,
27,
-62,
-47,
1,
35,
-22,
0
] |
Moore, J.
The bill in this case was filed for the purpose of having a deed declared void. From a decree dismissing the bill of complaint the case is brought here by appeal.
John P. Connelly was the son of Martin Connelly and Sarah Connelly. Martin Connelly died prior to December 9, 1903. His will was duly probated. By the terms of the will certain real estate in Detroit came to John P. Connelly. One month after the will was probated John P. Connelly made a deed of the real estate involved in this proceeding to his mother. This deed was acknowledged January 8, 1904, and was placed on record in the office- of the register of deeds January 11,1904. January 12,1904, the plaintiff married John P. Connelly and lived with him until his death in the year 1915. One daughter was bom to them. Sarah Connelly survived John P. Connelly and died a few months thereafter, leaving a will in which she devised the real estate John P. deeded to her to her daughters, the two defendants herein. It is the deed of January, 1904, which it is sought to have set aside by this proceeding commenced June 2, 1916.
The claim is ma^e this suit was begun shortly after plaintiff knew of the existence of the deed.
The case was heard in open court. The chancellor was of the opinion plaintiff had failed to make a case and the result as before stated followed.
We cite from the brief of appellant’s counsel:
“The courts have always guarded and protected the wife’s rights in a case of this kind. The rule was first laid down in this State in Cranson v. Cranson, 4 Mich. 230. The Cranson Case was a bill of equity by the widow to recover dower in a deed of lands conveyed by the deceased husband to his sons in fraud of her marital rights. The conveyance was made secretly on the eve of marriage and not delivered or recorded until after coverture. The deed was held not to debar complainant of dower ‘because (had it been delivered at its date) its execution was fraudulent as to the complainant, being executed secretly for the purpose of cutting off her dower which would be in fraud of law, and in fraud of her rights accrued directly on the marriage. See Swaine v. Perine, 5 Johns. Ch. (N. Y.) 482; Littleton v. Littleton, 1 Dev. & Bat. (18 N. C.) 327; Killinger v. Reidenhauer, 6 Serg. & Raw. (Pa.) 531.’ Opinion, page 235.
“A deed made secretly and without consideration by a man two days before his marriage, of all his property to his children by a former wife, to prevent any dower interest attaching, is held to have operated as a legal fraud upon the woman he was about to marry; and the fact that the deed was given to carry out a previous purpose, which is concealed from the intended wife and from the public, and not brought to light till after the death of the grantor, will not deprive the transaction of its fraudulent character. Brown v. Bronson, 35 Mich. 415. See, also, Greiner v. Klein, 28 Mich. at pages 15 and 16.
“Even before marriage, if a prospective husband transfers his property with the intention to defeat his intended wife of her rights of dower or of any other interest she might have as his wife in his property, such transfers are generally in equity a fraud upon the marital rights of the wife.” 21 Cyc. page 1156. Citing other authorities.
A reference to the authorities cited will show they are easily distinguishable from the instant case.
The important questions are not questions of law so much as questions of fact. It has already appeared the deed was made and placed of record before the marriage of the plaintiff to Mr. Connelly. If the testimony, which is incompetent under the statute because the lips of the other party interested are sealed in death, is eliminated, there is no such evidence as would justify setting aside a deed to real estate. The deed itself does not appear in the record. Unless the mere fact of making the deed without telling the woman who afterwards became his wife, of his purpose to do so establishes an ulterior purpose, it is not established. The record does not disclose that no consideration passed from Mrs. Connelly to her son. It is not shown when Mr. Connelly and the plaintiff became engaged, or that his being the owner of this real estate for about a month influenced the engagement in the least. The least that can be said of the case of the plaintiff is that she has failed to make a case calling for the intervention of a court of equity.
The decree is affirmed.
Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
-50,
25,
6,
-18,
20,
12,
1,
3,
56,
11,
-8,
-17,
34,
18,
-37,
-2,
25,
0,
4,
12,
-47,
25,
-50,
-48,
-7,
31,
34,
-8,
-29,
2,
27,
21,
-22,
55,
62,
-20,
23,
-28,
32,
0,
-9,
52,
-5,
16,
13,
12,
33,
5,
11,
-15,
-29,
-59,
20,
-22,
45,
-56,
-44,
4,
-30,
-21,
17,
-46,
-24,
16,
8,
15,
87,
14,
-26,
-6,
34,
5,
-11,
-63,
-23,
6,
0,
10,
-58,
-45,
6,
-31,
25,
-12,
-41,
-19,
-7,
22,
-22,
6,
-12,
24,
-2,
17,
32,
1,
-21,
42,
-15,
52,
31,
31,
-2,
33,
16,
-23,
-53,
3,
-30,
-10,
16,
-8,
35,
-1,
-4,
-30,
-15,
13,
8,
-25,
6,
-10,
38,
-11,
23,
52,
-13,
-21,
71,
-4,
13,
-8,
-21,
-12,
-40,
-57,
3,
2,
35,
0,
3,
-4,
20,
-49,
-3,
37,
-46,
-9,
-11,
-41,
-8,
11,
3,
24,
62,
-49,
21,
-9,
32,
10,
21,
-20,
38,
-7,
-46,
16,
-3,
-4,
-14,
-7,
-2,
-15,
-10,
-19,
9,
-77,
0,
-47,
-44,
-49,
75,
3,
37,
-15,
-10,
-38,
16,
9,
10,
-45,
17,
-57,
3,
22,
-19,
59,
-22,
-56,
25,
17,
-9,
-74,
-6,
11,
-35,
-12,
25,
20,
-35,
17,
4,
-8,
-21,
-21,
-42,
23,
-2,
-76,
-18,
-6,
30,
-9,
8,
23,
-15,
-41,
14,
-65,
-12,
20,
-10,
-14,
-8,
20,
-25,
6,
-33,
-25,
-14,
15,
-42,
14,
11,
-44,
-21,
-1,
23,
29,
-6,
25,
-27,
6,
-32,
8,
1,
15,
-3,
16,
26,
4,
0,
62,
-29,
-32,
45,
-38,
40,
-27,
-23,
-19,
-13,
-17,
-8,
39,
-6,
-62,
-11,
8,
-33,
0,
-5,
-1,
-12,
10,
33,
4,
-25,
24,
-6,
-15,
-37,
34,
-24,
-6,
-1,
13,
11,
-31,
16,
-1,
-33,
-19,
10,
18,
-28,
-18,
-22,
-1,
32,
-22,
-2,
25,
38,
3,
22,
13,
-27,
-24,
25,
7,
49,
-12,
-51,
23,
-27,
13,
23,
5,
15,
54,
-9,
39,
35,
-10,
25,
21,
3,
43,
-74,
-21,
9,
63,
5,
-22,
16,
8,
27,
2,
-26,
16,
-36,
6,
7,
-9,
11,
2,
51,
-40,
13,
14,
11,
25,
7,
-1,
-6,
2,
-44,
-43,
16,
16,
44,
59,
-77,
63,
8,
35,
10,
-3,
11,
29,
-15,
-29,
-4,
38,
21,
-12,
-5,
-13,
-16,
25,
-58,
10,
0,
12,
14,
-22,
17,
-2,
-53,
3,
13,
2,
-11,
19,
-53,
27,
-12,
50,
-19,
14,
20,
22,
39,
-27,
5,
-19,
-28,
-46,
39,
9,
36,
26,
9,
-67,
-1,
9,
-7,
3,
14,
-20,
-8,
32,
61,
9,
56,
-11,
-14,
15,
15,
0,
-29,
50,
22,
40,
-13,
18,
-26,
-33,
15,
24,
21,
43,
21,
3,
-5,
-10,
46,
-9,
39,
-46,
25,
-26,
0,
-69,
-14,
3,
11,
-5,
-39,
-1,
9,
-33,
22,
-6,
3,
35,
36,
10,
2,
-26,
-23,
20,
-23,
-22,
-13,
-31,
-42,
5,
-7,
-42,
40,
-30,
23,
33,
-26,
-59,
-23,
-41,
-43,
15,
10,
47,
-15,
53,
21,
-6,
-9,
31,
-9,
29,
-5,
-19,
-8,
21,
-8,
12,
46,
4,
66,
-11,
10,
-7,
-22,
6,
-61,
2,
50,
0,
-9,
18,
17,
4,
-41,
-11,
-29,
18,
19,
25,
37,
-12,
-7,
21,
10,
51,
28,
20,
-26,
3,
7,
0,
11,
-58,
-31,
10,
-50,
-16,
2,
-38,
-14,
-28,
-23,
-45,
14,
-34,
15,
-26,
59,
-42,
-22,
1,
-74,
28,
11,
-45,
-4,
-18,
-5,
-38,
-20,
20,
0,
16,
-22,
-37,
8,
-2,
-31,
2,
-8,
20,
-19,
-5,
-18,
16,
11,
-25,
41,
8,
65,
-39,
-16,
-61,
-34,
-5,
-15,
-2,
12,
32,
-4,
-15,
6,
-16,
-2,
-43,
13,
62,
-16,
-2,
18,
42,
-19,
21,
29,
21,
69,
2,
-12,
61,
-22,
58,
-14,
-41,
-28,
-6,
-1,
26,
-15,
1,
26,
-79,
-47,
-11,
-17,
21,
20,
17,
-22,
-14,
-21,
-4,
10,
2,
11,
0,
12,
-24,
9,
-13,
30,
3,
32,
-57,
18,
39,
16,
26,
57,
-3,
0,
-22,
13,
32,
49,
4,
30,
-27,
6,
31,
54,
24,
4,
-26,
8,
36,
12,
-52,
4,
4,
-18,
50,
-13,
-36,
-15,
51,
-62,
-15,
-22,
7,
56,
-2,
22,
0,
8,
19,
-70,
11,
-24,
14,
-55,
-54,
-32,
19,
20,
2,
-31,
51,
23,
-2,
16,
-10,
-25,
-31,
38,
5,
6,
-32,
7,
26,
16,
-12,
35,
-2,
-26,
17,
3,
18,
-2,
-26,
-15,
-29,
-9,
9,
-43,
-21,
23,
-55,
-40,
51,
-3,
17,
-1,
0,
-32,
35,
48,
-7,
-25,
-6,
7,
-25,
1,
37,
10,
-13,
16,
5,
-37,
-35,
14,
-1,
-19,
8,
-25,
-21,
-26,
-2,
18,
-5,
42,
-33,
-33,
-20,
0,
-16,
0,
-7,
63,
-19,
34,
0,
-2,
8,
-36,
19,
-20,
3,
-8,
-44,
-3,
-28,
-29,
-3,
-32,
-59,
27,
-5,
-32,
53,
-32,
25,
52,
0,
-3,
-11,
-81,
-12,
-21,
61,
3,
-17,
50,
17,
-6,
-26,
24,
12,
8,
12,
-47,
12,
35,
-45,
-69,
13,
24,
6,
4,
43,
19,
0,
-13,
-6,
1,
30,
27,
47,
20,
23,
-13,
-21,
-4,
-28,
7,
5,
-49,
-29,
35,
13,
7,
11,
36,
-46,
-51,
3,
24,
7,
13,
-9,
21,
1,
-11,
-11,
-23,
-2,
11,
-19,
23,
9,
28,
70,
16,
5,
-52,
42,
-57,
35,
59,
-31,
-53,
-9,
-4,
-1,
54,
-19,
-23,
17,
0,
-17,
16,
-16,
-76,
-25,
-18,
-47,
-17,
33,
27,
63,
17,
7,
19,
-65,
-46,
-15,
-37,
25,
-16,
-13,
-3,
8,
5,
-21,
-19,
4,
-17,
-44,
49,
21,
-26,
16,
-18,
5,
26,
20,
24,
-45,
48,
-7,
-15,
8,
34,
0,
14,
19,
-34,
-23,
65,
-34,
-51,
53,
-65,
-25,
-1,
55,
-39,
-6,
-31,
-20,
-12,
0,
49,
24,
-1,
13,
8,
-14,
26,
7,
7,
-23,
-12,
-4,
-24,
-25,
-32,
29,
52,
5,
-20,
-23,
16,
-18,
3,
65,
45,
8,
47,
-22,
-33,
-40,
29,
-8,
-40,
21,
-18,
-42,
-48,
13,
-34,
50,
-25,
-21,
12,
30,
33,
-36,
17,
8,
0,
-17,
-25,
-27,
93,
38,
-53,
16,
0,
20,
-9,
-25,
20,
-23,
24,
42
] |
Brooke, J.
Reference is made to 182 Mich. 707, where this case will be found reported upon its first appearance in this court. After the opinion was writ ten the case was reargued on the application of the plaintiff, appellant, and was reaffirmed, however, by a divided court. A second rehearing upon briefs was had and the case was reversed, three of the Justices being of opinion that there was sufficient evidence of consideration in the record to carry the case to the jury and four being of opinion that the paper itself imported consideration, and that the burden of showing want thereof rested upon the defendant estate. Another trial has been had at which considerable testimony was introduced on behalf of both parties. The question was submitted to the jury who returned a verdict in favor of the estate and judgment was entered thereon. The plaintiff again reviews the matter in this court and argues the case under three heads as follows:
(1) Conduct and statements of the court.
(2) Rulings on admission and rejection of evidence.
(3) The charge.
Under this head counsel for appellant under twelve several assignments of error claims that the court by his conduct and utterances plainly intimated to th'e jury a mental attitude adverse to: the position of the plaintiff and favorable to that of the defendant estate. In support of plaintiff’s position in this respect several cases are cited, among them the following: McDuff v. Journal Co., 84 Mich. 1; Raymond v. Woolfenden’s Estate, 99 Mich. 165; Williams v. City of West Bay City, 119 Mich. 395; In re Stockdale’s Estate, 157 Mich. 593. Counsel’s grievance in this respect is based upon isolated utterances of the learned circuit judge, for the most part taken from extended colloquies between the court and counsel for both parties had with reference to the admission or exclusion of testimony. We have read this entire record with great care and conclude without hesitation that when the alleged objectionable remarks are read in connec tion with all that was said by the court in the course of the trial there is no just ground for this claim of counsel which goes to the length of impugning the integrity of the court.
Counsel for plaintiff asked him while on the stand the following question:
“Q. You may state what interest you had — what you owned in the patents excepting the Hinckley and McDevitt patent on the date of this Exhibit A.
“Mr. Cobb: The same objection.
“The Court: I think I will overrule the objection.
“A. I owned a half interest in all patents.
“Q. Now, bearing in mind that the date of Exhibit A is April 12, 1902, you may state what interest you had or owned in any of these patents or inventions during the remainder of the year 1902.”
Objection was made to the question asked above and a very extended argument between the court and counsel followed. The objection was finally sustained, the court saying in part:
“Now, then, while in form you are not asking for what occurred between him and McLaughlin, you are asking him for a piece of evidence which as a matter of fact must have been equally within the knowledge of Dr. McLaughlin. Death has sealed the lips of Dr. McLaughlin, and the law says the other party to the transaction must have his lips sealed, that they must be placed.upon an equality. I am inclined to think you are attempting to get around the statutory rule made for the protection of a man after he has passed on into the other life. I shall sustain the objection to this question.”
The correctness of the ruling is not seriously questioned by counsel for appellant, but it is urged that the remarks of the court tended to discredit him in the eyes of the jury. A reading of the entire colloquy convinces us that neither its purpose nor effect was as claimed by counsel for appellant. The court closed the matter by saying: .
“I am not assuming to state that any disputed matter in this case is true one way or the other, but in response to the question of Mr. Badgley I merely sought to illustrate what the other side might claim and probably would argue to you. I am expressing no opinion about it or the force of any such claim when they are made because you are the sole judges of the facts and I have nothing to do with the facts at all.”
Error is assigned upon the refusal of the court to permit plaintiff while on the stand to give testimony touching the consideration in the instrument sued upon and explaining the receipt introduced by the defendant estate. An extended offer of this evidence was made by counsel for plaintiff. At the end of said offer the following occurred:
“The Court: You offer to make that by Mr. Hinckley?
“Mr. Lawler: I am asking to prove it by Mr. Hinckley, and for this reason, because by the introduction of these documents which are nothing more or less than admissions over the signature of Mr. Hinckley, and I offer to prove it by Mr. Hinckley, he being the only witness who can prove it, and second, because by the introduction of these admissions they have waived the rule.
“The Court: All that you expect to prove must have been known to Dr. McLaughlin.
“Mr. Lawler: That’s all very true, but I submit in this case, in view of their introduction of these documents they have waived the rule.
“The Court: I feel very confident you are not entitled to it. If you can show me by authority that you are, I will yield to the authority, of course.”
We are of opinion that counsel having admitted that the testimony about to be elicited from plaintiff was equally within the knowledge of the deceased, the action of the court was not erroneous.
The. first 18 assignments of error are based upon alleged erroneous instructions to the jury. In order to judge of the propriety of all that was said by the court below in instructing the jury it is necessary to consider the situation presented at the close of the proofs. The instrument upon which plaintiff's claim is predicated, itself, bears intrinsic evidence which at once challenges attention even though it does not arouse suspicion as to its genuineness. It purports to have been made by a man of some considerable property, of business experience and education. At the time of its date the alleged maker was somewhat advanced in years and was partially blind. The paper itself which was typewritten is illy spelled and of doubtful significance. The signature of the alleged maker is placed at a distance (claimed by counsel for appellee to be very unusual) below the printed matter. If, as was held by a majority of this, court, the instrument itself imports consideration, that consideration is the undivided one-half interest in the Automatic Coaster Brake Company and all patents pertaining to coaster brakes, which interest up to that time belonged to the plaintiff. By an instrument introduced in evidence by the defendant it appears that on the 15th day of April, 1902, three days after the date of the instrument in suit, Miar McLaughlin and Frederick P. Hinckley entered into a contract with one Forrest Keaton by the terms of which McLaughlin and Hinckley agreed to operate the factory and produce coaster brakes and Keaton agreed to sell the same. The profits arising from said operation to be equally divided among the three parties. The first recitation in said contract is as follows:
’“Whereas, said McLaughlin and Hinckley are the owners of certain letters patent covering a certain in- . vention, and of a certain invention known as a bicycle coaster and brake, and are the owners of a large amount of machinery and tools purchased by them for use in the manufacture of said coaster and brake, and have on hand at the present time certain parts of said coaster brake and certain material purchased for use in the manufacture of the same.”
Inasmuch as plaintiff claims to have sold his interest to Miar McLaughlin three days before the execution of this instrument it is rather significant that in said instrument he should describe himself as the part owner with McLaughlin of the letters patent and the machinery and tools. By another instrument bearing date August 9, 1902, Miar McLaughlin and plaintiff Hinckley entered into an option contract with said Keaton by the terms of which they agreed to sell:
“All property used by us in connection with the manufacture and sale of coaster brake hubs including hubs in whole or part and stock on hand together with letters patent Serial No. 59,635 granted Feb. 19th, 1902, and all patentable features pertaining to this brake up to date, and with all title and interest (which is to be unincumbered and free from debt) in and to said property with the exception of hubs completed before Sept. 1st, 1902, above mentioned and including the good will of existing business upon payment to us of fifteen thousand ($15,000) dollars at any time on or before the 15th day of September, 1902.”
A further agreement was made between the same parties on the 18th day of August, 1902, which follows:
“This agreement made this 18th day of August, 1902, by and between Miar McLaughlin and Fred P. Hinckley of Jackson, Mich., owners of all interests in the Automatic Coaster Brake Company of same place, as parties of the first part, and F. M. Keaton of Chicago, 111., as party of the second part, do hereby agree as follows:
“Witnesseth, that whereas the said parties of the second part, now holds an option on said property belonging to parties of the first part, to buy said property. Now then parties of the first part do hereby agree that they shall pay to party of the second part one-third (1-3) of all money or value received over and above Twelve Thousands ($12,000) Dollars for said property less $100 to be paid to said Dr. Miar McLaughlin.
“In witness whereof the parties hereto have signed their names and affixed their seals the day and date first above mentioned.
“Miar McLaughlin,
“F. P. Hinckley,
“(True Copy), F. M. Keaton."
On the 15th day of September, 1902, an agreement was entered into between the same parties in which it is recited:
“Whereas parties of the first part own and control a certain invention known as a bicycle coaster and brake, which said invention is protected by United States government letters patent No. 59,635, granted February 19th, 1902, and whereas said McLaughlin and Hinckley are owners either jointly or separately of certain machinery and equipment used in the manufacture and sale of said invention."
All these contracts were entered into after the date of the paper in question and three of them several months thereafter. Approximately four years later, upon April 24, 1906, the plaintiff executed the following receipt:
“Jackson, Mich., April 24, 1906.
“Received of Dr. Miar McLaughlin the sum of Fourteen Hundred and One Dollars and Fifty Cents in full of all demands and dues of every kind and nature to date. F. P. HINCKLEY."
It is also in evidence that on May 26, 1904, at a time when there was $600 interest due upon the paper in question, plaintiff gave a mortgage on his property for $500 with interest at six per cent. The court, as he was bound to do under bur former determination, charged the jury that the instrument on its face imported consideration and that they should first determine whether the Doctor ever made and delivered the so-called note, weighing all the evidence bearing upon the question. With reference to the receipt he charged the jury that it was—
“not conclusive of payment of the note in question, but that it is open to explanation; that is not binding upon the claimant, Hinckley, if you shall find it was executed as a result of a mistake, or was procured by fraud, or if you shall find that it was not intended as a settlement in full of all claims between the claimant, Hinckley, and Miar McLaughlin, deceased, including the note in question, marked Exhibit ‘A.’ ”
He further charged:
“But where any question is disputed, and there is testimony on one side and testimony on the other, it is then the function of the jury to decide that dispute.
“The judgment of the jury must be an independent one, based on the law and evidence in the case and not in any way upon any notion or inference or supposition as to what the opinion of the court might be in reference to the merits of the case, or whether the court has any opinion. I have not intended to say anything which might be in any way construed, interpreted or inferred as any opinion or notion of mine as to the matters here in dispute. * * *
“Now, gentlemen, you should look to all the evidence and all the facts and all the circumstances surrounding the dealings of these parties, one with the other, and their relations one to the other, and the arguments of counsel on both sides of the controversy, and determine from the evidence in the case what the truth is as to the claims of the parties herein.”
Reading the entire charge which was a lengthy one, we are well satisfied that the rights of the plaintiff were fully protected and that the controlling issues were fairly presented to the jury for determination. We find no reversible error.
Judgment affirmed.
Ostrander, C. J., and Bird, Moore, Steere, Fellows, and Stone, JJ., concurred. Kuhn, J., did not sit. | [
-27,
0,
42,
-37,
-23,
-1,
18,
-34,
-13,
25,
-12,
-25,
38,
22,
23,
-27,
-16,
-40,
0,
-50,
15,
0,
-11,
0,
-43,
-15,
-7,
14,
42,
-51,
27,
31,
-13,
-8,
-34,
-29,
30,
-6,
5,
-1,
30,
-12,
64,
-66,
5,
3,
10,
-39,
4,
-21,
54,
2,
-17,
12,
-10,
-17,
-14,
37,
18,
-8,
18,
0,
22,
-20,
10,
-13,
-8,
12,
-34,
-41,
-56,
6,
20,
-10,
-9,
-64,
14,
-6,
-40,
7,
6,
-37,
22,
-9,
-12,
5,
13,
-53,
-24,
-22,
34,
-25,
-17,
1,
21,
22,
38,
1,
-9,
19,
11,
5,
-26,
5,
-24,
-26,
-22,
17,
29,
-10,
35,
60,
-20,
15,
-52,
-12,
23,
0,
-40,
6,
-9,
0,
-28,
22,
-26,
8,
-4,
9,
19,
5,
17,
64,
-33,
6,
18,
-15,
28,
-46,
-15,
17,
15,
11,
19,
-4,
12,
23,
-54,
15,
7,
14,
7,
23,
-24,
7,
2,
-24,
11,
-33,
55,
-13,
19,
47,
-8,
-18,
-46,
32,
-14,
-35,
-7,
3,
-26,
24,
15,
10,
-19,
-2,
-16,
9,
-40,
2,
-9,
-14,
43,
-53,
-30,
-19,
-3,
-29,
-17,
10,
-5,
44,
-23,
11,
-6,
-12,
-8,
32,
5,
-26,
-14,
-10,
0,
27,
-3,
-12,
-2,
-49,
-10,
-14,
3,
76,
-1,
-52,
17,
-26,
-2,
-25,
-23,
-5,
19,
-33,
4,
-3,
-38,
-3,
12,
-23,
-16,
-39,
-7,
43,
-9,
-16,
2,
13,
-1,
-9,
15,
-56,
-12,
-7,
28,
-38,
9,
-9,
16,
30,
-6,
8,
1,
-2,
4,
-15,
26,
-28,
-20,
24,
-30,
-44,
2,
72,
-62,
15,
-8,
-2,
24,
0,
27,
-4,
16,
-18,
5,
38,
-8,
-5,
-17,
-31,
-3,
0,
4,
13,
-18,
21,
-4,
1,
-34,
43,
-7,
30,
36,
11,
-6,
-20,
16,
16,
-12,
26,
-13,
-1,
7,
-3,
-39,
-43,
1,
47,
-47,
1,
-28,
5,
19,
60,
-10,
-18,
3,
72,
-30,
8,
65,
-6,
-21,
40,
-2,
-87,
-11,
-1,
66,
-66,
-12,
-7,
-15,
20,
22,
29,
-27,
-3,
22,
-47,
2,
-11,
1,
-24,
-9,
18,
-6,
-8,
-3,
-9,
0,
13,
6,
30,
-4,
27,
13,
-16,
-5,
-31,
-18,
6,
-16,
-1,
16,
20,
-27,
-22,
-29,
-60,
1,
37,
25,
-10,
0,
9,
-37,
-29,
10,
-3,
17,
25,
-17,
-30,
9,
-8,
1,
0,
-28,
15,
-24,
51,
-11,
19,
13,
27,
-24,
6,
3,
-17,
-30,
25,
36,
26,
-15,
4,
-18,
23,
-2,
1,
-6,
16,
-20,
52,
-14,
-11,
0,
-4,
4,
-1,
22,
-8,
-33,
11,
-3,
30,
-13,
22,
28,
25,
0,
-16,
-14,
0,
42,
-31,
-2,
6,
-19,
25,
33,
31,
7,
0,
-55,
23,
17,
-22,
-15,
40,
39,
-17,
-1,
25,
-24,
-21,
-14,
17,
39,
-56,
14,
1,
32,
-18,
30,
-3,
-24,
-16,
9,
-28,
43,
32,
46,
-6,
26,
-20,
-45,
14,
-31,
9,
14,
15,
21,
0,
35,
32,
-25,
13,
-2,
-7,
18,
-27,
-3,
17,
-37,
0,
-35,
-18,
-6,
-56,
-16,
-9,
19,
35,
21,
-58,
32,
-25,
26,
-18,
-1,
-5,
63,
11,
2,
11,
7,
54,
51,
21,
-54,
-1,
45,
-4,
-25,
-1,
-52,
-20,
-10,
-33,
41,
-24,
41,
19,
-12,
-46,
27,
13,
-27,
-31,
-3,
3,
-43,
13,
48,
-4,
-12,
-2,
-32,
-16,
36,
-18,
-11,
-16,
-2,
67,
-9,
30,
16,
2,
-7,
0,
8,
-6,
10,
-30,
33,
-10,
-18,
-40,
35,
-22,
30,
-25,
15,
-4,
3,
11,
15,
22,
-26,
-26,
-5,
10,
16,
-40,
-24,
-41,
4,
25,
22,
22,
6,
-2,
-18,
-45,
-32,
-36,
9,
-14,
25,
16,
30,
-14,
-3,
-7,
-39,
41,
-35,
8,
55,
-19,
33,
-40,
-20,
-22,
-14,
35,
-33,
-4,
-9,
25,
-28,
20,
-22,
-24,
23,
-47,
-26,
11,
-68,
5,
36,
-55,
-7,
22,
-54,
20,
-1,
-9,
-6,
9,
1,
17,
8,
-12,
27,
-15,
-29,
-6,
-25,
-11,
-18,
47,
31,
-17,
-19,
-24,
45,
4,
14,
-13,
52,
6,
-59,
3,
-19,
0,
-5,
4,
34,
23,
42,
24,
0,
32,
-2,
-22,
48,
0,
38,
20,
17,
-11,
33,
-28,
9,
-3,
17,
-8,
-2,
-4,
-3,
-13,
-13,
-51,
-45,
-9,
26,
-4,
36,
-49,
-14,
-22,
22,
20,
-36,
2,
-4,
2,
0,
9,
43,
0,
-4,
-18,
-35,
31,
13,
0,
-13,
-46,
63,
-37,
45,
-24,
-2,
35,
31,
18,
5,
1,
2,
-2,
30,
-23,
-14,
61,
28,
-34,
-15,
-22,
17,
16,
-24,
-23,
2,
45,
30,
36,
-26,
8,
38,
-5,
37,
-4,
16,
35,
-16,
-3,
-32,
-11,
-1,
-18,
-16,
-45,
-9,
38,
-18,
16,
-15,
-12,
0,
-11,
16,
18,
-43,
31,
13,
18,
-26,
16,
13,
-30,
-34,
9,
18,
-49,
30,
10,
23,
18,
10,
-18,
-13,
12,
-6,
-5,
23,
-28,
8,
21,
18,
-24,
64,
18,
-35,
8,
13,
20,
51,
10,
13,
9,
-23,
-50,
-9,
-43,
-42,
0,
0,
-17,
8,
21,
11,
34,
0,
19,
30,
15,
-2,
-12,
4,
-40,
-31,
57,
25,
6,
34,
-27,
11,
3,
23,
-21,
-53,
51,
16,
45,
-2,
3,
-1,
-20,
-37,
20,
-27,
-11,
7,
-28,
-16,
12,
49,
44,
43,
42,
-29,
-16,
63,
-7,
-16,
-13,
35,
-2,
-15,
27,
-13,
-33,
-23,
-2,
-1,
-26,
-23,
62,
0,
-47,
8,
-1,
-10,
2,
51,
-47,
-19,
-20,
17,
35,
-10,
26,
-3,
-47,
16,
-4,
8,
4,
-26,
-15,
47,
69,
13,
-3,
4,
1,
-16,
14,
35,
-20,
-19,
-3,
-28,
27,
-9,
10,
-14,
22,
29,
30,
-40,
1,
-20,
-11,
50,
-6,
-19,
38,
24,
-31,
-4,
-63,
32,
15,
-6,
-32,
-15,
36,
13,
-58,
-4,
34,
-11,
-30,
-39,
0,
12,
22,
-12,
-26,
-14,
53,
-35,
-8,
6,
-49,
-5,
-11,
-7,
-11,
-28,
19,
-14,
12,
-13,
-7,
-4,
-6,
-9,
-35,
0,
-60,
5,
12,
40,
-31,
-56,
-3,
22,
-20,
-40,
6,
0,
18,
-7,
-11,
-38,
-18,
17,
27,
-1,
-19,
-23,
52,
9,
13,
20,
-18,
-7,
6,
24,
27,
-10,
-48,
-10,
40,
-41,
-11,
0,
0,
30,
41,
15,
25,
-17,
-22,
-42,
-30,
24,
31,
-9,
11
] |
Fellows, J.
November 9, 1914, a piece of steel accidentally entered the right eye of plaintiff, an employee of defendant Weston-Mott Company. February 3, 1917, he filed a claim for compensation. From the time of the accident to the time of the hearing before the arbitrators plaintiff had been constantly employed by the defendant, with the exception of a few days when first injured and about a month at the time his eye was operated on shortly before he made claim for compensation. At the time of the hearing his wages were more than when injured. It appeared, however, that he had practically lost the' use of the eye and had had a serious operation, which, together with all physician’s services, had been paid for by the defendants. The only questions therefore involved relate to compensation under section 10, part 2 of the act (2 Comp. Laws 1915, § 5440), and whether the claim for compensation was seasonably made. Defendants insisted before the arbitrators and the board that such claim, made more than two years after the accident, was barred by section 15, part 2, of the act (2 Comp. Laws 1915, § 5445). The industrial accident board awarded compensation, and this writ was allowed.
The defendant is correct in its contention. This court has fully considered and determined this question, holding as contended by defendant in the following cases: Cooke v. Furnace Co., 200 Mich. 192 (166 N. W. 1013); Kalucki v. Foundry Co., 200 Mich. 604 (166 N. W. 1011); Dane v. Traction Co., 200 Mich. 612 (166 N. W. 1017); Schild v. Railroad Co., 200 Mich. 614 (166 N. W. 1018); Peterson v. Fisher Body Co., 201 Mich. 529 (167 N. W. 987). It is due the board to state that the instant case was decided by it prior to the handing down of the cases cited.
But plaintiff’s counsel insists that the employer had full knowledge of the accident and the resultant injury; that he continued in its employ under its obser-' vation; and that he is required under the act to do no more than he has done. It is undoubtedly true that this record discloses such knowledge of the accident and injury by the employer as to justify, and, in fact, require the board to find that the employer had notice of the injury. But the section above cited requires not only notice of the injury but also claim for com pensation, one to be given within three months and the other to be made within six months after the occurrence of the injury. We have recently held that the claim for compensation must be an unequivocal one. Baase v. Banner Coal Co., ante, 57 (167 N. W. 594). Upon this record there is no evidence that such a claim for compensation was made until February 3, 1917, more than two years after the injury.
The award must be vacated.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. | [
6,
-11,
4,
13,
-28,
-4,
5,
-55,
29,
-2,
-28,
-2,
68,
-25,
29,
29,
13,
-5,
-34,
18,
21,
-1,
-10,
-49,
-40,
-39,
-15,
7,
-19,
39,
-38,
34,
-18,
18,
-55,
19,
28,
15,
-7,
-17,
38,
2,
46,
-48,
13,
19,
30,
-11,
23,
8,
52,
-2,
-9,
5,
48,
-8,
11,
-5,
-2,
22,
-18,
-1,
52,
-8,
12,
22,
11,
10,
3,
12,
-21,
12,
3,
-6,
5,
-64,
-18,
40,
-7,
-28,
-30,
-56,
21,
-34,
-25,
28,
-26,
27,
8,
-20,
4,
-1,
-2,
0,
4,
1,
-11,
25,
0,
51,
-25,
19,
-24,
-22,
18,
-26,
-13,
35,
1,
32,
-26,
7,
14,
11,
-6,
0,
5,
-12,
-21,
6,
39,
-19,
0,
5,
6,
45,
-57,
4,
38,
16,
14,
-41,
-31,
50,
-2,
-1,
-2,
-61,
16,
-2,
-20,
12,
-50,
5,
-20,
48,
-44,
35,
18,
-2,
-22,
27,
55,
-33,
14,
0,
10,
-8,
58,
-28,
50,
23,
10,
21,
5,
26,
0,
-44,
9,
13,
2,
-5,
40,
-26,
44,
33,
47,
-59,
-61,
28,
-48,
-6,
36,
-15,
-9,
-15,
-23,
15,
41,
9,
33,
-24,
-34,
-4,
-21,
3,
0,
-15,
17,
-15,
81,
-28,
-24,
-6,
-10,
24,
18,
9,
2,
42,
-8,
0,
10,
-49,
-35,
18,
-30,
1,
-21,
-68,
0,
-3,
-26,
13,
-60,
-57,
-40,
0,
44,
-22,
-56,
30,
62,
7,
11,
-38,
-9,
-30,
48,
-17,
-18,
-9,
-15,
33,
-23,
-12,
-36,
-30,
-19,
41,
12,
26,
-30,
-17,
-12,
-33,
-27,
27,
2,
-75,
-57,
50,
13,
34,
54,
-40,
-1,
34,
-29,
-32,
-11,
-12,
86,
4,
-69,
-97,
-8,
-6,
33,
1,
-14,
17,
-40,
13,
-44,
5,
-17,
-39,
-46,
-15,
37,
-48,
1,
-5,
41,
55,
-7,
-27,
7,
-17,
-16,
-15,
-18,
9,
19,
41,
-95,
12,
6,
-10,
-69,
-19,
29,
-39,
67,
-20,
-1,
40,
-9,
1,
-20,
66,
-16,
-37,
-31,
-46,
16,
-43,
7,
-25,
-29,
9,
24,
62,
-36,
-17,
28,
8,
58,
-31,
34,
1,
49,
-49,
-38,
12,
41,
-39,
54,
-11,
5,
-8,
16,
2,
5,
71,
14,
-13,
-35,
1,
35,
6,
10,
31,
-5,
-36,
-25,
-31,
-25,
47,
0,
7,
46,
-21,
-9,
14,
4,
-13,
-15,
63,
28,
8,
34,
-86,
-11,
-6,
3,
-5,
-9,
-9,
-33,
-23,
2,
61,
-15,
25,
-22,
-21,
-16,
-34,
18,
-7,
-6,
-4,
19,
-41,
-2,
-8,
-9,
18,
20,
46,
3,
-27,
14,
-48,
34,
5,
0,
-4,
68,
46,
8,
-19,
24,
-5,
0,
6,
-35,
-50,
18,
7,
13,
6,
-25,
-36,
-50,
12,
0,
-16,
-26,
-9,
-47,
30,
18,
54,
-37,
27,
37,
-8,
20,
27,
57,
69,
-22,
22,
-19,
13,
0,
-31,
-12,
-8,
7,
6,
-11,
-37,
7,
12,
47,
30,
2,
-17,
-24,
-24,
20,
-21,
-8,
12,
24,
6,
-13,
-3,
-1,
14,
-34,
-48,
-23,
34,
43,
16,
53,
-13,
-33,
-8,
-37,
13,
-32,
-12,
-74,
-17,
-44,
-40,
2,
-33,
55,
0,
40,
-55,
11,
-14,
-77,
-3,
26,
23,
66,
17,
-34,
18,
-14,
-9,
43,
-31,
-41,
28,
-26,
-27,
-11,
-7,
24,
-41,
10,
-7,
0,
25,
20,
5,
29,
-14,
-53,
-58,
-14,
-13,
58,
36,
-11,
-51,
-52,
50,
32,
12,
-9,
-48,
10,
-29,
23,
-29,
29,
37,
-5,
15,
-42,
10,
-6,
8,
-9,
16,
-7,
0,
5,
-18,
-11,
4,
33,
40,
-40,
10,
-1,
-9,
-25,
0,
11,
9,
-4,
-44,
-37,
-27,
9,
-22,
-8,
0,
-5,
-18,
-11,
32,
53,
3,
14,
36,
31,
49,
7,
-11,
-55,
-29,
-16,
17,
-16,
61,
67,
1,
-24,
9,
-11,
-65,
-7,
-2,
-31,
17,
45,
-16,
44,
32,
-8,
38,
-4,
37,
-10,
-23,
-12,
-41,
-6,
-15,
-70,
-3,
2,
16,
17,
26,
3,
13,
12,
-1,
65,
-15,
-40,
-31,
-27,
40,
-48,
-11,
-16,
6,
15,
-9,
-44,
-9,
-1,
28,
-25,
10,
-3,
-8,
-15,
-28,
34,
12,
6,
-11,
26,
-33,
57,
-4,
77,
8,
28,
-16,
-9,
22,
14,
1,
-10,
0,
27,
38,
4,
20,
1,
-12,
-15,
-57,
-14,
9,
1,
-10,
-44,
39,
58,
-46,
-4,
-42,
-63,
-3,
-23,
16,
6,
4,
8,
-24,
11,
23,
23,
29,
-12,
-1,
-6,
60,
-5,
-11,
-39,
-8,
-18,
-21,
43,
-18,
20,
45,
12,
-3,
-44,
-5,
32,
-27,
-31,
9,
-3,
-9,
-20,
-18,
-30,
-25,
43,
6,
10,
42,
-29,
-18,
17,
4,
7,
34,
-66,
45,
20,
-28,
29,
19,
11,
13,
-37,
-1,
-7,
2,
19,
-27,
-22,
14,
-20,
-19,
-17,
-23,
-34,
18,
-9,
-24,
10,
36,
8,
-20,
-68,
17,
24,
-23,
9,
-27,
-45,
-28,
9,
8,
28,
25,
-31,
1,
24,
-11,
-22,
-45,
17,
-27,
7,
-15,
22,
-12,
3,
14,
-5,
-21,
56,
-44,
41,
-9,
26,
15,
2,
-8,
-39,
-19,
-8,
-32,
2,
-7,
-8,
27,
-26,
-2,
56,
-22,
1,
-11,
-22,
-3,
2,
4,
-57,
43,
70,
8,
-25,
1,
-27,
4,
48,
-19,
-20,
19,
18,
-11,
-1,
40,
-29,
-14,
-23,
-20,
-33,
15,
-25,
-17,
15,
-42,
10,
25,
-9,
-25,
-25,
38,
19,
14,
-54,
-9,
-22,
-62,
-16,
26,
-3,
-57,
-33,
30,
-27,
-52,
42,
57,
-9,
-38,
33,
-28,
9,
33,
21,
-41,
-3,
55,
16,
14,
35,
-7,
-4,
-30,
1,
8,
34,
-19,
28,
37,
49,
74,
32,
3,
3,
-10,
-26,
60,
14,
-8,
-42,
-2,
9,
46,
6,
9,
18,
-6,
-20,
4,
-4,
12,
-16,
21,
50,
32,
10,
36,
-13,
-7,
43,
6,
33,
22,
-18,
-84,
-40,
18,
37,
7,
-37,
20,
-41,
0,
-1,
-12,
-12,
24,
9,
0,
17,
23,
-7,
-33,
-13,
-8,
-26,
36,
13,
43,
2,
38,
14,
13,
23,
-43,
-2,
-58,
51,
2,
2,
-5,
44,
39,
-2,
-31,
5,
-1,
33,
-40,
11,
30,
8,
-34,
20,
-51,
-2,
10,
2,
22,
-49,
33,
17,
-34,
42,
-21,
54,
-6,
32,
-6,
-32,
54,
3,
7,
40,
22,
-4,
-11,
-3,
-6,
38,
-27,
-5,
59,
-57,
-30,
-65,
-59,
46,
16,
-23,
21
] |
Per Curiam.
Following a joint trial, with separate juries, defendants Stone and Byrd were convicted of armed robbery, MCL 750.529; MSA 28.797, and sentenced to IV2 to 15 years in prison. Defendants appeal as of right. We affirm the convictions, but remand for resentencing.
On August 9, 1989, at approximately 8:30 a.m., two young black men entered a branch of the City Bank & Trust Company and announced a holdup. One carried a sawed-off shotgun. They took money from two cashiers’ drawers, locked the three employees in the vault, took the keys, and left. One of the employees saw them running down the street.
About an hour later, Michigan State Police Trooper Gary Lisle arrived with his tracking dog. They tracked a scent to a nearby wooded area where they found the defendants hiding in a ditch. They also found some clothes, the stolen money, a ring of keys, and a sawed-off shotgun nearby.
Several people testified that they saw two teenage men in the area that morning. One witness testified that she saw defendant Byrd and another man in the area of the bank around 8:00 a.m. The bank employees were unable to identify defendants as the perpetrators because the robbers had worn clothing around their faces. Some of the clothing found on or near the defendants did not match the descriptions given by the employees. Stone’s teacher testified that she overheard him deny and then admit that he had participated in the robbery.
Byrd and Stone testified that they played basketball that morning. After buying some pop at a store, they were walking down the street when they began to argue. Byrd chased Stone into the wooded area, where they found two jackets. Stone found a gun and some keys in one jacket. They played with the gun while they smoked some marijuana. When they heard the police, they hid in the ditch.
On appeal, Byrd argues that the court erred in denying his motion for a mistrial after the prosecutor questioned a police officer about a statement by Stone.
The prosecutor asked the police officer if either defendant had made a statement. The police officer replied that Stone had. After some discussion, the court denied the motion and advised both juries that the question had been stricken and should be ignored.
The court did not abuse its discretion in denying the motion for a mistrial. People v Gonzales, 193 Mich App 263, 265; 483 NW2d 458 (1992). Because no statement was actually admitted in the trial, the right to cross-examination was not implicated. Byrd’s jury was instructed to ignore the question and was aware that Stone’s jury had not heard the statement. Byrd was not prejudiced.
Next, Byrd contends that the court erred in admitting the tracking-dog evidence because there was no other direct evidence of his guilt.
Tracking-dog evidence is admissible only after certain foundational requirements are met. In addition, there must be other corroborating evidence presented before identification based on tracking-dog evidence is sufficient to support a guilty verdict. People v Laidlaw, 169 Mich App 84, 93-94; 425 NW2d 738 (1988). Byrd does not dispute the foundational requirements. After review of the record, we conclude that there was sufficient corroborating evidence of Byrd’s identification. He was seen in the area and was apprehended near jackets matching the description of those worn by the perpetrators and the gun used in the crime, as well as the money and keys taken from the bank. The court did not abuse its discretion.
Stone argues that he was denied the right to an impartial jury when Byrd was forced to try on one of the jackets in the presence of Stone’s jury. During the trial, the prosecutor was allowed to have both defendants stand before the juries and try on the jackets. One witness testified that they had the jackets switched. This demonstration did not lead to the positive identification of either defendant by the witnesses. In fact, both defendants testified that they had tried on the jackets when they found them in the woods.
This type of evidence is considered demonstrative and nontestimonial in nature. People v Markley, 99 Mich App 658, 661; 298 NW2d 615 (1980), rev’d on other grounds 413 Mich 852 (1982). Thus, it does not implicate Stone’s right to cross-examination. The jury was free to find it irrelevant for identification purposes. The fact that Byrd also tried on the jackets in the presence of Stone’s jury does not make the demonstration more or less prejudicial because Stone admitted that they were together at the time of the crime. Stone had an opportunity, during the demonstration, through cross-examination of the witness and during his own testimony, to refute the claim that the jackets were worn by either of the defendants. Stone was not denied a fair trial.
Next, Stone argues that he was denied equal protection by the court’s refusal to approve funds to enable him to hire an independent psychologist to testify at the dispositional hearing. At that hearing, the prosecutor presented the testimony of a psychologist appointed by the juvenile court. The psychologist prepared a report for the juvenile court in anticipation of a discretionary waiver hearing with regard to another charge. The psychologist recommended in his report and in his testimony at the dispositional hearing that Stone be sentenced under the adult system.
The question whether an indigent defendant is entitled to access to a psychologist of his own choosing in a posttrial proceeding has never been addressed by Michigan appellate courts. Most jurisdictions that have addressed the issue regarding an indigent’s right of access to psychiatric assistance have done so in the context of preparation of a defense. Some have also addressed the assistance issue in the context of capital punishment.
The United States Supreme Court has held that three factors are relevant when determining whether the participation of a psychiatrist is important enough to the preparation of a defense to require a state to provide an indigent defendant with access to competent psychiatric assistance.
The first is the private interest that will be affected by the action of the State. The second is the governmental interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. [Ake v Oklahoma, 470 US 68, 77; 105 S Ct 1087; 84 L Ed 2d 53 (1985).]
The Court found the private interest extremely high and the governmental interest in the accuracy of the criminal proceeding extremely compelling, while the state’s interest in denying assistance was found to be not substantial. Id., 78-79. It concluded that where the sanity of a defendant is a significant factor at trial, the defendant must have access to a competent psychiatrist. However,
[t]his is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the States the decision on how to implement this right. [Id., 83.]
Several states have held that Ake does not require the appointment of a psychiatrist of the defendant’s own choosing who will reach conclusions that satisfy the defendant. The concern is that the defendant have access to a competent psychiatrist. The appointment, by the court, of an expert employed by the state, independent of the prosecution, has been held to be sufficient. See Palmer v State, 486 NE2d 477 (Ind, 1985); State v Indvik, 382 NW2d 623 (ND, 1986); Dunn v State, 291 Ark 131; 722 SW2d 595 (1987); Beaver v Commonwealth, 232 Va 521; 352 SE2d 342 (1987); Ake v State, 778 P2d 460 (Okla Crim App, 1989). See also State v Williams, 603 SW2d 562 (Mo, 1980), and anno: Right of indigent defendant in state criminal case to assistance of psychiatrist or psychologist, 85 ALR4th 19.
In this case, the private interest is less compelling because Stone’s guilt had already been decided. His liberty was no longer at stake, rather, the concern was where he would spend his confinement. Assuming, arguendo, that Stone was entitled to access to a competent psychologist, he was afforded that right. The fact that the psychologist did not come to the conclusion he desired is not relevant. Stone asserts that because the psychologist was appointed by the juvenile court he cannot be considered unbiased. We disagree. Neither the juvenile court nor the circuit court has an interest in seeing that Stone stay within their system. In fact, this same psychologist recommended that Byrd be punished within the juvenile system. We decline to presume bias. Stone was not denied equal protection.
Both Byrd and Stone contend that the court erred in sentencing them as adults. Defendants. were fifteen at the time they committed the offense.
The prosecutor has the burden of establishing by a preponderance of the evidence that the best interests of the juvenile and the public would be served by imposing a sentence against the juvenile as though the juvenile were an adult offender. MCR 6.931(E)(2). The court must consider several enumerated factors, giving each weight as appropriate to the circumstances. MCR 6;931(E)(3). Defendants contend that the court failed to consider whether they would more likely be rehabilitated by the adult or juvenile facilities.
After review of the record, we conclude that the court made adequate findings regarding the likelihood of rehabilitation under the adult and juvenile systems. As the court noted, both defendants had had previous contact with the juvenile system and had failed to respond to the rehabilitative programs offered to them. Moreover, the only juvenile program left would allow them to eventually be placed in the community on an unsupervised basis. The court did not err.
Last, defendants argue that their 7Vi-year minimum sentences are disproportionate. The guidelines for Byrd recommended a three- to eight-year minimum sentence. The guidelines for Stone recommended a two- to six-year minimum sentence. The court cited the defendants’ prior records and the offense as reasons for the sentences.
Byrd also asserts that he was incorrectly assessed fifteen points for prior record variable 6, indicating a postconviction relationship existed at the time of the offense. Byrd was on juvenile probation at the time of the offense.
The instructions to prv 6 indicate that a "rela tionship to the criminal justice system” applies to relationships determined by juvenile convictions or charges. The guidelines were properly scored.
A sentence must be proportionate to the seriousness of the crime and the defendant’s prior record. A sentencing court abuses its discretion when it violates the principle of proportionality. People v Milbourn, 435 Mich 630, 635-636, 654; 461 NW2d 1 (1990). The sentencing guidelines are intended to assist the court in assessing the appropriate sentence and promote statewide consistency in sentencing. People v Crook, 162 Mich App 106, 109; 412 NW2d 661 (1987). Departures are permitted, but are suspect and subject to careful scrutiny on appeal. Milbourn, 656-657. When a court departs from the guidelines because of the special characteristics of the offense or the offender, it must specifically explain those characteristics. People v Fisher, 166 Mich App 699, 715; 420 NW2d 858 (1988). A deviation from the range may be based on factors already considered in the guidelines calculations, but such a deviation must be made only with caution. Milbourn, 660, n 27. A sentence within the guidelines range conceivably can violate the principle of proportionality. Id., 661.
In Stone’s case, the court did not articulate any special characteristics of the crime that prompted departure. In addition, Stone’s prior record had already been factored in the guidelines. Although armed robbery is always a serious crime, as reflected in the guidelines recommendations, we find nothing in the record before us that makes this particular armed robbery more heinous than others, justifying a departure from the guidelines. Although the victims were scared, none was physically injured, nor did they appear to be harassed.
In Byrd’s case, the court thought it was depart ing from the guidelines, even though the sentence was actually six months less than the maximum minimum sentence. Nevertheless, the court mentioned Stone’s sentence and stated that the defendants should be treated the same.
Both defendants were young and had not been previously treated in the adult system. Rehabilitation was still possible. There were apparently no special circumstances of this crime that made it especially heinous. Under the circumstances, we conclude that the court abused its discretion in sentencing defendants to 7V^-year minimum terms.
Defendants’ convictions are affirmed. We remand for resentencing of both defendants. | [
54,
58,
10,
38,
-26,
28,
-46,
-12,
-24,
15,
49,
21,
15,
37,
17,
-13,
-8,
-1,
69,
-44,
3,
-10,
27,
32,
13,
-46,
9,
37,
-11,
43,
20,
-7,
58,
-67,
2,
24,
63,
20,
-17,
21,
-33,
46,
12,
20,
-60,
4,
4,
2,
-7,
-2,
40,
-22,
-24,
11,
-9,
17,
-20,
-7,
12,
-6,
35,
43,
16,
-83,
33,
-18,
-21,
-1,
-29,
-1,
24,
-9,
-24,
-35,
6,
16,
13,
36,
-36,
-4,
15,
-6,
17,
-24,
-7,
-28,
-3,
-39,
-2,
-65,
5,
30,
-18,
-30,
0,
9,
2,
-29,
17,
-30,
-35,
-20,
-38,
0,
8,
24,
23,
-26,
-11,
7,
21,
20,
48,
26,
3,
-13,
-20,
26,
4,
23,
-27,
24,
-7,
16,
24,
-54,
-49,
-21,
-46,
5,
19,
39,
30,
39,
-60,
2,
-15,
20,
-43,
57,
-37,
2,
11,
-1,
42,
-10,
12,
32,
-3,
34,
-18,
-55,
-61,
22,
-15,
2,
-6,
-30,
-12,
14,
-2,
-11,
-4,
16,
25,
-8,
-32,
-55,
-11,
-10,
5,
12,
37,
18,
39,
-14,
-5,
42,
44,
-26,
13,
19,
17,
6,
9,
-32,
-24,
13,
-21,
13,
-36,
6,
-35,
-17,
38,
-18,
39,
-37,
-4,
-66,
10,
16,
18,
-44,
14,
-1,
63,
29,
38,
4,
-9,
30,
11,
-36,
19,
-26,
4,
-63,
19,
-23,
-24,
6,
-16,
0,
5,
-55,
8,
5,
-18,
35,
38,
-29,
57,
19,
-9,
-15,
26,
-21,
78,
-8,
-5,
-71,
-32,
-23,
66,
35,
-31,
-28,
-4,
3,
21,
0,
0,
41,
-8,
59,
32,
-17,
-3,
26,
2,
36,
-28,
-16,
-9,
30,
-58,
22,
-68,
30,
-5,
-31,
13,
3,
-6,
-44,
-25,
64,
-37,
-21,
44,
28,
-31,
-2,
23,
18,
9,
2,
17,
19,
44,
-4,
-41,
9,
-5,
-34,
7,
-12,
-32,
42,
20,
87,
0,
-33,
-14,
39,
46,
-39,
-23,
7,
61,
0,
-8,
43,
13,
8,
24,
16,
-16,
-22,
-11,
-51,
10,
-23,
55,
-5,
9,
-17,
0,
-59,
-3,
2,
0,
3,
-9,
28,
29,
-12,
46,
27,
-39,
-31,
7,
-44,
27,
38,
-20,
18,
-32,
7,
52,
-39,
23,
-12,
44,
-11,
-31,
0,
25,
-19,
61,
-8,
-2,
52,
-24,
7,
-29,
-34,
-4,
41,
10,
-74,
16,
-34,
-1,
20,
50,
19,
10,
10,
0,
33,
50,
-47,
13,
-24,
29,
-25,
-55,
6,
-15,
-35,
-6,
-43,
-16,
-30,
-2,
-2,
41,
-36,
-47,
-3,
41,
-38,
0,
-46,
-49,
-2,
20,
-23,
-51,
-4,
48,
63,
-21,
14,
22,
-6,
8,
-32,
-18,
-18,
2,
-46,
-36,
-5,
-46,
41,
-119,
-14,
10,
29,
12,
-4,
15,
-7,
-55,
13,
-27,
-19,
-22,
-35,
-17,
32,
-15,
18,
-34,
-15,
53,
12,
4,
-15,
-35,
-46,
-57,
22,
9,
-22,
16,
-35,
38,
-20,
-11,
10,
22,
-30,
-60,
-72,
3,
-47,
52,
2,
-30,
5,
8,
-26,
20,
18,
-25,
12,
24,
9,
14,
-11,
-49,
-34,
-39,
-25,
11,
18,
2,
43,
34,
0,
52,
66,
-26,
-19,
25,
-26,
-37,
-23,
-16,
-14,
19,
24,
-3,
-64,
1,
46,
-41,
32,
-52,
4,
24,
-2,
-69,
18,
-23,
44,
21,
4,
-24,
31,
10,
14,
-17,
-20,
-63,
-6,
-15,
-56,
29,
-11,
57,
18,
-30,
-19,
1,
0,
13,
-11,
43,
68,
-38,
11,
21,
-36,
35,
-6,
0,
-6,
6,
-34,
-9,
-11,
-3,
-10,
3,
-35,
-79,
2,
45,
50,
-30,
-20,
-8,
15,
41,
-13,
-2,
34,
-9,
7,
-8,
46,
28,
38,
-10,
33,
24,
33,
-82,
17,
37,
15,
43,
6,
-9,
-33,
-10,
-16,
21,
-25,
-5,
19,
-38,
-11,
-21,
23,
63,
-6,
-18,
-10,
21,
-83,
23,
-15,
-51,
-1,
62,
0,
-5,
-18,
-20,
2,
-35,
-6,
-20,
-4,
31,
-7,
-33,
-25,
3,
0,
-58,
8,
16,
-38,
-8,
-1,
17,
33,
-3,
-16,
31,
3,
-74,
-11,
-21,
26,
16,
14,
27,
25,
-43,
11,
42,
-15,
-15,
10,
55,
-5,
28,
-34,
-37,
-28,
-5,
-62,
-47,
67,
-47,
19,
-15,
19,
-24,
-49,
23,
15,
0,
-13,
25,
-4,
46,
4,
17,
-34,
6,
-44,
-19,
-11,
-24,
11,
14,
26,
-42,
-25,
-15,
26,
10,
29,
8,
-25,
33,
-7,
36,
18,
-42,
-17,
12,
-10,
9,
-46,
32,
-9,
4,
-32,
-10,
55,
-20,
-27,
-17,
9,
-13,
-47,
-59,
-14,
-22,
25,
-16,
-12,
16,
6,
-8,
24,
29,
-57,
15,
-48,
18,
-3,
26,
23,
27,
49,
-50,
58,
-24,
-41,
-4,
22,
24,
-6,
-36,
-8,
-16,
-66,
34,
-17,
39,
36,
4,
-7,
-12,
23,
29,
12,
-30,
-32,
-3,
59,
17,
-54,
-64,
-41,
-11,
14,
29,
-19,
8,
-71,
-4,
26,
-43,
-10,
-9,
-3,
13,
18,
-8,
43,
-29,
16,
18,
-21,
-18,
-17,
-6,
29,
19,
-44,
-23,
11,
-25,
11,
20,
23,
9,
1,
-30,
47,
61,
-24,
19,
21,
7,
-9,
37,
10,
0,
-43,
-3,
18,
15,
83,
-12,
-27,
-5,
-34,
-14,
-16,
10,
-49,
-34,
76,
9,
-72,
-11,
-9,
-32,
17,
36,
18,
-42,
-29,
6,
-44,
8,
67,
-6,
-10,
-28,
5,
51,
19,
-7,
-28,
10,
12,
5,
-28,
-11,
3,
2,
35,
-26,
38,
47,
-19,
36,
13,
-53,
-42,
-16,
7,
5,
9,
1,
40,
-19,
-2,
11,
62,
-44,
95,
34,
26,
0,
-2,
29,
12,
77,
21,
-10,
-3,
-3,
-37,
-6,
-2,
-18,
11,
-47,
-28,
11,
-15,
-11,
-15,
41,
-32,
54,
-32,
-62,
22,
23,
-35,
44,
19,
5,
-22,
10,
34,
3,
-20,
-26,
27,
-7,
1,
44,
-53,
-26,
63,
63,
5,
13,
-36,
0,
17,
-4,
15,
-47,
33,
11,
-62,
-18,
21,
54,
-43,
27,
9,
-11,
-36,
-44,
-10,
3,
15,
-10,
-18,
-5,
4,
15,
7,
-33,
13,
29,
-5,
-49,
20,
-10,
-11,
-55,
-1,
-8,
-29,
-3,
-8,
22,
-32,
-8,
12,
7,
-56,
13,
-69,
48,
-5,
-18,
22,
0,
-43,
-22,
-20,
16,
2,
46,
31,
14,
62,
0,
31,
-15,
52,
6,
50,
44,
63,
-10,
-44,
-44,
-38,
-2,
11,
63,
1,
-22,
30,
-14,
8,
-1,
26,
-61,
-41,
0,
-52,
-17,
15,
-16,
47,
21,
11,
-37,
43,
-36,
79
] |
Steere, J.
This bill of complaint was filed in the circuit court of Eaton county in chancery to enforce specific performance of an alleged contract for the sale to plaintiff by defendant of 1,000 shares of its stock at the par value of $10 per share and to restrain defendant, or its officers, from distributing cash, stock or other property received by it in consideration of , a sale of its property, assets, etc., to another company, as charged, until plaintiffs rights therein have been determined.
The written evidence offered in relation to the claimed purchase of stock is as follows:
“Charlotte, Michigan, Oct. 27, 1916.
“The First National Bank of Charlotte. No. — Blank. 74-274.
“Pay to the order of Duplex Power Ca,r Co. $100. One hundred and no one-hundredths dollars.
“G. W. Toles.”
• ' “Charlotte, Mich., Oct. 27, 1916.
“Received of G. W. Toles One Hundred Dollars to apply on one thousand shares of Duplex stock. Balance to be paid on or before Tues. 31st, noon.
“$100. Fred Murray,
“Sec’y D. P. Car Co.”
“Charlotte, Mich., Oct. 30, 1916.
“Dr. G. W. Toles,
“City.
“Dear Sir: I am returning your check given me to apply on D. P. stock, .as there was none for sale.
“Very truly yours,
' “Fred Murray, Sec’y.”
Briefly stated, the undisputed facts in this contention are substantially as follows: Plaintiff is a dentist located and practicing at Charlotte, Michigan, having a brother practicing as a physician in the city of Lansing, who was named as a coplaintiff in the original bill filed in this case but does not so appear in the present record.
Defendant is, or was, a corporation located at Charlotte, Mich., and engaged in manufacturing what is known as the Duplex truck, the claimed merits of which relate principally to a patented four-wheel drive. This company has been doing business at Charlotte for several years with a somewhat uncertain and turbulent career owing to litigation (Hill v. Town, 172 Mich. 508; Town v. Duplex-Power Car Co., 172 Mich. 519) and other embarrassments, among which was inadequate capital. It had been successful to a degree in developing a type of powerful truck under the patents held by it which is said to have proved practical and established something of a reputation and demand.
F. P. Town, who was its president and general manager, had been for some time endeavoring in various ways to secure an increase in capital by a sale of stock and «otherwise, with indifferent success until shortly before this transaction, when, assisted by certain- promoters in Lansing, he quietly entered into negotiations with an association of business men which resulted in a profitable sale of the assets and business of defendant to a company formed in the city of Lansing to take the same over and continue the manufacture of said truck.
While this deal was quietly pending and its purposes kept from general knowledge, as was supposed, one of the parties to the promotion informed a friend in confidence of the deal and probability of its being profitably consummated soon in a manner which would result in holders of defendant’s stock getting two for one, and advised him to purchase some of the stock. This friend informed plaintiff’s brother of the situation who informed plaintiff and they determined to purchase some stock if .possible. To that end plaintiff, on October 27, 1916, applied to Mr. Murray, defendant's secretary, in Charlotte, for the purchase of 1,000 shares at $10 a share and gave him to apply on the same a check for $100, taking a receipt therefor. They do not fully agree as to what was said and done in that connection. Plaintiff claims there was an absolute, unconditional purchase and sale of the stock; while Murray contends that it was conditional on his being able to procure the stock, he only agreeing to get it for plaintiff if any was for sale, and he could do so. Shortly thereafter Murray either telephoned to or saw plaintiff advising him that there was no stock for sale and offered back his check, which plaintiff refused to accept and it was later sent to him by registered mail with the letter quoted. In the forenoon of October 31, 1916, plaintiff made a tender of $10,000 to Town as president of defendant and demanded the stock, which was refused on the ground there was none for sale.
That the fugitive information which reached plaintiff through a surreptitious process of confidential communications was well founded is conceded. Town, who dominated the affairs of the Duplex company, had practically consummated a deal to sell it to the Lansing association at that time, and on October 30, 1916, two written contracts were entered into with him obligating the former to organize a new corporation which would buy on stated terms and take over all the property, patents, franchises and other assets of defendant and continue the business of manufacturing the Duplex truck. It provided that two shares of stock in the new corporation were to be given for every one outstanding in the old; Town was to receive $75,000 in cash or stock in the new company and agreed to acquire control of three-fourths of the outstanding stock in the old, with various other provisions for carrying out the project not necessary to detail or construe here. The two contracts are of the same date and as they appear in the record are between Town personally and the members of the Lansing association,' and the president of the new compány testified that by one of these contracts, “between the two companies,” $310,000 was the amount of consideration, and the amount of the second contract “made as a part of the same transaction” was $75,000.
No preliminary or other writ, of injunction was ever granted to plaintiff by the trial court and defendant’s stockholders proceeded at a meeting held November 20, 1916, to pass a resolution authorizing the sale of its business and assets to the new company, followed by the various steps requisite to carry out the provisions of the transaction as provided in the contracts. All defendant’s rights, assets and business were transferred to a new company by the same name which was organized and authorized to receive them, and the old company ceased doing business as a going, or manufacturing concern.
In the opinion of the trial court dismissing plaintiff’s bill it is correctly said:
“Under these circumstances, therefore, the relief now sought is a decree for damages sustained by the plaintiff by reason of the refusal of the defendant company to issue and deliver to him the certificate for 1,000 shares of the capital stock of the defendant company as it is claimed it agreed to do, such damages being measured by the increase in the value of that stock by reason of the sale and transfer to the Lansing concern' as stated.”
Whatever rights plaintiff claims grow out of an alleged contract made with Murray, acting as the authorized representative of defendant. He ran a shoe store in Charlotte and incidentally had been defendant’s secretary since the preceding March. His functions seem to have been somewhat perfunctory, as he says the annual report he swore to was prepared by some one else, he presumed it was Town, and he himself made no investigation to see whether or not it was true. Manifestly Town did not keep him well posted as to what was going on in the affairs of the company for plaintiff, who stated he had not kept track of its financial affairs, was better posted than he. Of the occasion for plaintiff’s application to Murray for stock, plaintiff stated he was in Lansing on Thursday, the day before, and there got his first “tip,” in the Jury-Rowe store; that the same evening, as he remembers, his brother called him up by ’phone after he was in his home in Charlotte and—
“said he heard there was a deal talked of, that if I could get some of the stock he thought it would be a good buy. Said he would like some of it. I got back from Lansing that day on the afternoon train, probably between 2 and 4 o’clock. My brother said he thought it was a good time to buy, that they were paying a premium on the stock. I did not tell Murray anything about that.”
Murray had not received the tip and was agreeable to selling stock for the company, but testified that he could only do so conditionally and subject to the approval of Town, who had full control of the sale of treasury stock and final authority to pass upon applications to purchase; that he informed plaintiff he would get it for him if any was for sale and would take the order and check conditionally; that having communicated with Town by ’phone in the meantime, he within an hour after the application was made informed plaintiff there was no stock for sale and offered him back his cheek. Plaintiff gives a different version of the transaction, stating that Murray sold him the stock unconditionally, accepting the check as a cash payment and giving him time for the balance as stated in the receipt.
The whole issue in this case turns on whether there was, in what passed between the two, a valid contract of sale, which, under the testimony, becomes a mixed question of law and fact with no appealing equities either way.
The stock which plaintiff claims to have bought and expected with reason to have made a profit on was personal property. He states in paragraph 13 of his bill of complaint that—
“said stock so purchased by your orator is now of the value of twenty ($20) dollars per share, hence he says he desires said stock so purchased to be issued and delivered to your orator in accordance with his contract of purchase.”
Defendant admits in paragraph 13 of its answer that this is true. In every case where specific performance of a contract is sought in a court of equity the primary question is whether the exercise of the power of the chancery court is demanded to subserve the ends of justice, and where there is an adequate remedy at law to recover damages for breach of the contract equity will not interfere. Manifestly plaintiff’s anticipated enjoyment of this contract is com fined to the enhanced value of the stock of defendant, resulting from the manipulation of which he received advance information, which money damages adequately compass. While by our statute (3 Comp. Laws 1915, § 11899), a court with equity powers may, if it sees fit, decree specific performance of a contract for delivery of ascertained goods, yet the recognized field for equity interference to enforce specific performance of contracts is limited to matters relating to real estate.
“As a general rule specific performance is not decreed where the subject-matter of the contract is personal property; since the compensation which would be recovered in an action at law is deemed to be an adequate remedy for the breach of the contract.” 36 Cyc. p. 554.
“It is on the ground that the remedy at law is adequate, that the court, subject to exceptions, will refuse to entertain suits in respect to goods, stock, and other things of a merely personal nature.” Waterman on Specific Performance of Contracts, § 16.
The exceptions are in cases where the measure of damages in a court of law will not afford adequate compensation for the breach of contract because the personal property contracted for has to the purchaser a special sentimental value, is something rare or impossible to obtain elsewhere, has no market value or possesses some peculiar characteristic distinguishing its purchase from an ordinary contract of purchase and sale of personal property. It is true that this doctrine has occasionally been applied to the purchase of stocks shown to have no ascertainable market value, which could not be obtained except from the defendant, where the purchase involved a controlling interest in the corporation or some uncommon and appealing equitable consideration which moved the chancery court to assume jurisdiction; but no such conditions are alleged or proved here. The mere fact of a conflict of testimony as to value, or whether a contract was actually made, furnishes no ground for equitable intervention.
Plaintiff has alleged the value of th'is stock in his bill of complaint and defendant has admitted the allegation in its answer. He was not attracted to the/ stock by any desire to become its owner for sentimental reasons. It was with him purely a commercial transaction to which he was moved in a business,! way by inside information which made the stock at-' tractive as a speculation. We see no reason why the measure of damages for this alleged breach of contract is not as readily ascertainable in an action at law as in chancery. Plaintiff has an adequate remedy at law which he is at liberty to pursue as he may be advised.
The trial court rightly held that a case for specific performance was not shown and .its conclusion in that particular is affirmed for the reasons above stated, with costs to defendants, but in view of the provision in section 2, chap. 11, of the judicature act (Act No. 314, Pub. Acts 1915 [3 Comp. Laws 1915, § 12351]), the case is remanded for such further proceedings as may be desired by plaintiff and granted by the trial court, in harmony with the statute and this opinion.
Bird, Moore, Brooke, Fellows, and Stone, JJ., concurred. Ostrander, C. J., and Kuhn, J., did not sit. | [
16,
33,
54,
-1,
3,
30,
62,
11,
-8,
36,
-23,
2,
17,
37,
9,
-4,
23,
21,
7,
-34,
-2,
-55,
4,
-38,
-15,
-31,
-24,
-64,
0,
0,
19,
-46,
-28,
4,
-39,
-5,
-12,
5,
10,
15,
-30,
14,
58,
35,
26,
10,
-12,
-14,
17,
11,
63,
-16,
12,
-17,
-50,
-5,
1,
25,
21,
4,
7,
-53,
92,
-11,
6,
10,
-16,
36,
7,
3,
-40,
30,
33,
0,
17,
-37,
-55,
-27,
-61,
-12,
22,
-56,
52,
-10,
-51,
48,
-32,
8,
11,
-31,
0,
-38,
-38,
8,
69,
-19,
-6,
3,
19,
18,
-35,
24,
-22,
-6,
10,
6,
20,
-30,
12,
-4,
-20,
-17,
21,
12,
13,
-20,
-37,
5,
21,
-42,
17,
16,
-5,
-8,
1,
23,
0,
-31,
-76,
52,
11,
3,
-26,
6,
65,
0,
0,
-26,
-44,
-8,
10,
34,
-16,
0,
-17,
57,
2,
16,
50,
32,
-4,
35,
-15,
32,
-18,
-34,
-12,
0,
40,
-42,
5,
-27,
26,
-19,
-30,
19,
4,
25,
-33,
59,
-4,
39,
-18,
-52,
-33,
41,
22,
-43,
-44,
-2,
-23,
9,
41,
-13,
-24,
-64,
36,
-5,
-13,
19,
31,
18,
-10,
-21,
-70,
-8,
26,
-11,
6,
24,
-14,
-50,
-8,
0,
-16,
-50,
6,
-43,
-32,
21,
1,
35,
12,
6,
-7,
68,
22,
-45,
31,
29,
45,
3,
-14,
78,
3,
-29,
49,
-45,
-25,
7,
-16,
30,
-16,
-3,
-67,
-12,
32,
-44,
41,
13,
-55,
-10,
17,
-10,
-19,
-28,
-33,
-13,
33,
15,
-2,
8,
-62,
14,
-17,
-45,
-33,
-7,
-34,
-7,
38,
18,
-36,
51,
23,
-37,
7,
-12,
19,
-29,
41,
9,
-17,
4,
-10,
-70,
38,
-11,
45,
-35,
8,
-47,
-21,
12,
20,
-18,
-39,
-11,
-22,
-8,
17,
46,
60,
-37,
11,
40,
12,
53,
-25,
-11,
-37,
-29,
-8,
-28,
4,
-4,
-35,
-37,
-3,
36,
-30,
4,
6,
2,
22,
-2,
0,
35,
-1,
-2,
45,
39,
-14,
12,
-12,
-7,
29,
-15,
21,
-16,
38,
-19,
-3,
-43,
-40,
-2,
80,
-43,
59,
-14,
15,
44,
-3,
40,
-4,
1,
3,
-5,
-3,
-19,
-31,
-26,
-14,
36,
-8,
-7,
19,
25,
0,
40,
-2,
5,
-7,
17,
-18,
14,
-44,
-11,
31,
66,
-25,
-41,
-32,
-1,
-3,
-38,
-70,
-32,
-25,
35,
0,
-50,
35,
0,
-1,
14,
17,
-24,
-30,
39,
-40,
60,
3,
24,
17,
-56,
-22,
-13,
-51,
1,
-38,
57,
-22,
31,
-13,
24,
18,
-13,
-18,
12,
-19,
-33,
-2,
2,
-11,
15,
36,
13,
5,
1,
23,
46,
-63,
-22,
32,
-32,
30,
17,
9,
8,
-40,
10,
46,
23,
-7,
-12,
-1,
-38,
18,
-36,
1,
8,
-24,
2,
4,
-4,
16,
-25,
30,
33,
24,
12,
-2,
25,
-8,
22,
61,
-8,
7,
-2,
18,
-49,
-21,
44,
-9,
41,
49,
4,
-2,
39,
-30,
12,
12,
-11,
-12,
-10,
-21,
-21,
5,
-24,
-52,
36,
27,
18,
-40,
-45,
-3,
-22,
6,
11,
34,
36,
-20,
-8,
3,
-20,
-31,
-13,
30,
24,
-32,
7,
34,
-11,
12,
7,
-4,
-15,
11,
63,
-11,
10,
23,
5,
-9,
69,
-3,
52,
-12,
13,
30,
56,
-66,
18,
-25,
-3,
49,
-4,
16,
-19,
-6,
2,
33,
-23,
16,
20,
-18,
-25,
-34,
-32,
-41,
8,
-24,
-2,
19,
0,
-39,
14,
33,
-36,
-32,
6,
66,
0,
15,
37,
26,
-10,
-35,
43,
-43,
25,
21,
-27,
37,
10,
72,
-28,
-16,
4,
-35,
9,
22,
39,
8,
-9,
-20,
9,
-42,
-28,
10,
-18,
31,
-42,
-15,
-6,
18,
-30,
-48,
22,
-1,
-36,
-13,
-9,
15,
-7,
60,
18,
11,
26,
-38,
-25,
-15,
21,
-42,
-34,
-57,
54,
26,
-17,
15,
-31,
14,
-6,
44,
-3,
6,
-3,
-14,
-27,
0,
2,
13,
-2,
-1,
-30,
18,
-24,
-31,
20,
13,
-7,
-6,
5,
-12,
55,
-24,
49,
-37,
-27,
-21,
-10,
31,
-31,
19,
-33,
-23,
51,
-2,
10,
-27,
18,
57,
20,
-22,
17,
42,
11,
-11,
-37,
8,
-48,
-15,
3,
-16,
-48,
0,
-10,
14,
21,
32,
-19,
-7,
-19,
44,
30,
-2,
28,
13,
36,
7,
20,
0,
-13,
-9,
-33,
50,
37,
13,
-32,
-18,
-6,
-68,
-21,
-26,
-10,
-33,
6,
28,
-13,
-4,
18,
2,
36,
17,
7,
-24,
4,
14,
24,
28,
-52,
13,
-31,
7,
16,
24,
1,
-13,
-77,
-27,
-35,
33,
-28,
-29,
14,
15,
-51,
-43,
31,
21,
29,
28,
3,
-7,
30,
-25,
-46,
-36,
6,
29,
-11,
-5,
31,
-21,
-23,
-22,
60,
-17,
23,
37,
16,
8,
16,
58,
14,
-35,
31,
-12,
-26,
-11,
-22,
52,
-38,
-17,
44,
-24,
-17,
-48,
-23,
-14,
16,
-34,
-14,
27,
-22,
-10,
-17,
21,
-14,
30,
-28,
-13,
-4,
14,
-28,
29,
13,
52,
15,
20,
-43,
9,
-14,
16,
2,
32,
-15,
-6,
-53,
-43,
-14,
11,
37,
14,
-8,
26,
-3,
-25,
1,
-8,
-1,
-37,
-62,
16,
12,
-43,
-7,
-40,
-32,
7,
13,
-20,
16,
-23,
8,
-45,
26,
-35,
48,
5,
-42,
16,
5,
-19,
-9,
42,
-39,
38,
1,
21,
-5,
-41,
46,
-16,
15,
-40,
15,
-7,
-21,
-17,
19,
-27,
-15,
0,
-13,
27,
30,
-2,
27,
-6,
30,
-48,
5,
22,
-29,
-27,
19,
-1,
-2,
-16,
5,
-46,
-8,
-25,
-17,
40,
5,
0,
15,
-23,
-11,
-5,
-8,
5,
21,
61,
-1,
-1,
17,
-39,
-44,
-62,
-61,
42,
-52,
13,
-37,
-9,
12,
-51,
24,
-17,
10,
-12,
-10,
-11,
9,
-44,
30,
27,
-4,
4,
24,
-71,
28,
16,
18,
9,
-33,
68,
19,
-31,
23,
8,
26,
24,
29,
-12,
43,
-2,
-16,
-15,
9,
6,
-45,
15,
-55,
23,
30,
17,
-34,
22,
-11,
-16,
-61,
3,
3,
-25,
12,
-33,
0,
3,
44,
5,
12,
-34,
-11,
-18,
-15,
-7,
-37,
13,
-13,
-27,
-7,
-32,
18,
-8,
-21,
23,
9,
6,
-52,
-13,
16,
-9,
-6,
21,
55,
41,
45,
-16,
50,
28,
21,
-49,
0,
-19,
69,
14,
49,
7,
7,
-52,
-40,
43,
14,
15,
-16,
19,
-46,
8,
9,
-2,
-14,
18,
-8,
-7,
-15,
-36,
24,
2,
73,
9,
48,
5,
-52,
-8,
-32,
-22,
-2,
20,
14
] |
Bird, J.
Plaintiff brought suit against defendants to recover on a promissory nóte of $100. The note appears to have been one of several notes given by defendants to plaintiff in compliance with the following written, agreement executed by them:
“This agreement, made and entered into this 17th day of May, A. D. 1915, by and between William J. Hanley of Sault Ste. Marie, Michigan, party of the first part, and Louis Packalona and William Gowan, of the same place, parties of the second part;
“Witnesseth: The party of the first part being the owner of a lease of the premises in said city known as the Sherman House, a hotel, and for and in consideration of the sum of $4,000 hereby agrees to sell, and does hereby sell, assign, transfer and set over to the parties of the second part all his right, title and interest therein under said lease, and such personal property and furnishings therein belonging to said first party and used in the conduct of said hotel building, excepting as hereinafter stated.
“First: For such interest in such hotel as aforementioned the parties of the second part agree to pay the party of the first part as follows: $2,000.00 upon .the execution of this agreement; $1,000.00 in thirty days from date, secured by good bankable paper, the balance in payments of $100.00 each on the 30th of each and every month from and after May 30, 1915, according to the terms of good and sufficient promissory notes in like installments.
“Second-: The party of the first part, being the owner of the retail liquor license and bar in said hotel and the wines, liquors, beers and cigars therein, hereby agrees to hire said second parties to run and manage for him said bar and conduct the same for and in his behalf, and to allow said second parties to retain and keep such portion of the profits thereof as they may hereafter agree upon, settlement to be made on or before May 1, 1916.
“Third: The parties of the second part shall pay from the receipts of the bar all bills for merchandise purchased from and after this date, but all liquors, wines, beers and cigars and other goods and necessaries for said bar shall be purchased by said second parties for said first party and in his name.
“Fourth: The party of the first part shall not interfere with the management of said bar or retail liquor business by said second parties so long as said second parties shall run the same according to law and m accordance with the terms of this agreement.
“Fifth: The parties of.the second part shall pay the rental called for by the lease of said premises between the said William J. Hanley, lessee, and J. Fennessy, lessor, to the said party of the first part, and shall also perform the terms and conditions of said lease relative to the care of the personal property now in said hotel belonging to J. Fennessy, it being understood and agreed that the terms and conditions of the Hanley lease as to payment of rent and care of property shall be binding upon the parties to this agreement.
“Sixth: This agreement shall cease and be of no further effect from and after May 1, 1916.
“W. J. Hanley,
“Louis Packalona,
“W. E. Gowan.”
Defendants pleaded the general issue and gave notice that the consideration of said note failed because they were not permitted to continue as managers of the saloon after November 8, 1915. On the trial defendants made the further claim that the contract was illegal because it undertook to transfer the liquor license from plaintiff to defendants in violation of the statute. This is the sole ground of complaint in this court. The trial court submitted the case to the jury, leaving to them the one question, whether it was the intention of the parties to include in the contract a sale of the liquor license. The jury found for the defendants. Subsequently, upon motion, the trial court set aside the verdict of the jury and rendered a judgment for plaintiff for the amount of the note, on the ground that neither the contract upon its face nor the proofs showed the contract to be an illegal one.
We think the court was right in holding that the contract on its face was not an illegal contract and we find nothing in the testimony which establishes its illegality. The contract does not attempt to convey the license and no one connected with the matter testifies that it was intended to be included. Both defendants were sworn but neither one so testified. Defendant Packalona’s testimony tends to refute this claim. The part referred to is as follows:
“Q. You and Mr. Gowan were partners in this transaction, were you not?
“A. No, sir; we were just managers for Mr. Hanley.
“Q. I am not talking about the relation between Mr. Hanley and yourself, I am talking about the relation between you and Mr. Gowan. You and Mr. Gowan went into the deal to share and share alike in the profits, if there were any?
“A. As managers for Mr. Hanley, yes, sir.
“Q. So, as between you, you were partners?
“A. No, sir.
“Q. What were you?
“A. We were just managers for Mr. Hanley.”
While counsel are inclined to concede the contract is a lawful one upon its face, they argue that the value of the lease and personal property is so out of proportion to the consideration named that the license must necessarily have been included. In this contention counsel may be right but if they are they have not established the fact. The terms of the contract do not show it.. The testimony fails to show it, and defendant Packalona, who should know what the fact is, says, that he and Mr. Gowan were just managers of the saloon for plaintiff. To hold, in the face of this showing, that a sale was made of the license would be doing violence not only to the language of the contract but to the testimony of defendant Packalona, and in addition we would be obliged to assume that defendants were guilty of a misdemeanor in conducting a place on their own account where intoxicating liquors were sold without a license. This should not be done on the showing made.
Another reason appears why the judgment should be affirmed. Objection was made by plaintiff’s counsel to defendants’ attempt to show the illegality of the contract for the reason that no notice was given of its illegality under the general issue. Notice was given of a failure of consideration because plaintiff breached the contract, but no hint was given in the notice that a claim of illegality would be made upon the trial. This defense could not be made without notice. Circuit Court Rule No. 7, subds. b and c. (Present Rule No. 23.) Walbridge v. Tuller, 125 Mich. 218; Bryant v. Kenyon, 123 Mich. 151; Crowley Bros. v. Railway Co., 185 Mich. 482; Board of Sup’rs of Chippewa Co. v. Bennett, 185 Mich. 544.
If it can be said that the testimony tended to show a sale of the license and therefore an illegal agreement it was not admissible for this purpose as the pleadings then stood.
We think the case was rightly disposed of by the trial court and the judgment will be affirmed, with costs to the plaintiff.
Ostrander, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
-1,
17,
1,
34,
-12,
-40,
23,
-1,
30,
22,
-29,
1,
11,
8,
30,
4,
27,
-30,
4,
-31,
-50,
-45,
-44,
-42,
32,
18,
33,
6,
11,
-8,
1,
41,
-21,
-4,
-24,
-11,
36,
-12,
-2,
-3,
32,
-16,
60,
-29,
-23,
-22,
3,
-37,
27,
-27,
20,
-62,
34,
-15,
-71,
-2,
-46,
-3,
7,
26,
-37,
-12,
32,
-22,
-27,
-62,
33,
4,
-10,
-32,
12,
21,
-18,
35,
-38,
-41,
-4,
-8,
-30,
-9,
16,
17,
7,
32,
-73,
9,
33,
-35,
28,
4,
-9,
32,
-3,
27,
5,
-10,
-67,
53,
23,
-7,
-35,
-47,
-6,
-1,
16,
9,
-9,
-29,
-19,
-3,
-16,
3,
41,
-21,
0,
-19,
9,
-28,
-48,
-6,
15,
-5,
34,
-56,
-13,
-14,
-8,
-15,
-12,
44,
46,
-15,
-61,
35,
-7,
9,
0,
-10,
16,
2,
42,
-6,
0,
31,
-21,
-1,
-47,
-21,
-17,
10,
-29,
9,
-15,
51,
-15,
26,
-11,
-11,
-16,
-2,
-12,
-45,
42,
-24,
-1,
-11,
-26,
43,
0,
-7,
1,
12,
25,
-37,
24,
28,
11,
-40,
-54,
-3,
12,
34,
0,
-40,
33,
-56,
-35,
-16,
1,
-15,
29,
-60,
-77,
37,
19,
6,
-20,
-23,
19,
30,
-1,
-66,
20,
-2,
5,
-41,
77,
-8,
-36,
7,
4,
2,
-20,
-14,
-7,
13,
48,
-36,
18,
-15,
-58,
-45,
-40,
24,
-48,
-26,
36,
-28,
28,
-7,
-57,
-12,
32,
33,
-17,
9,
-6,
2,
28,
36,
-4,
-1,
-94,
-32,
18,
5,
-57,
13,
-33,
3,
27,
46,
-54,
28,
-6,
-13,
2,
-16,
-45,
-4,
-55,
16,
-43,
17,
3,
-4,
3,
-5,
-11,
61,
25,
-28,
12,
57,
-12,
-41,
-5,
-2,
-20,
-9,
35,
-11,
-27,
6,
41,
-22,
-10,
10,
-38,
-4,
11,
51,
-6,
-28,
59,
-5,
-44,
18,
-12,
33,
-42,
-33,
4,
-8,
-34,
-29,
9,
-8,
-42,
-61,
-4,
51,
-29,
-16,
39,
2,
-28,
48,
20,
0,
37,
-1,
-25,
20,
8,
-13,
35,
3,
17,
-22,
15,
22,
9,
-15,
-49,
24,
46,
10,
0,
-5,
44,
4,
25,
33,
-32,
18,
-6,
-27,
-60,
-8,
-26,
-42,
-53,
0,
14,
7,
9,
24,
-12,
81,
9,
1,
0,
-22,
28,
-4,
-19,
19,
-14,
37,
3,
41,
-16,
-28,
-59,
5,
-12,
-16,
-80,
68,
46,
-48,
26,
-15,
29,
-19,
-42,
-68,
-34,
-8,
-44,
-5,
38,
34,
72,
-31,
-25,
-17,
-31,
-63,
13,
33,
23,
17,
-37,
1,
29,
-12,
12,
44,
-16,
-13,
5,
-12,
-14,
-17,
-14,
4,
-3,
-13,
68,
-16,
-38,
-7,
59,
-43,
35,
19,
-29,
22,
-22,
27,
19,
-11,
36,
20,
-5,
13,
13,
-27,
28,
22,
-27,
7,
37,
37,
-1,
-16,
18,
24,
-7,
18,
-38,
48,
-34,
40,
38,
19,
13,
-4,
46,
-3,
17,
13,
0,
-14,
24,
-13,
-45,
37,
-37,
9,
15,
20,
-60,
0,
44,
-7,
-24,
31,
-11,
66,
54,
7,
-24,
-26,
-6,
-54,
-14,
-31,
13,
-9,
-8,
53,
-4,
11,
-37,
-3,
-22,
20,
-22,
15,
-5,
5,
4,
8,
-22,
-39,
15,
46,
-48,
-24,
14,
2,
13,
8,
53,
-24,
-14,
10,
2,
59,
-44,
46,
-45,
3,
60,
-10,
21,
-3,
-33,
17,
4,
7,
6,
-22,
20,
66,
5,
-24,
-22,
-13,
53,
20,
19,
40,
-21,
5,
11,
23,
-13,
-9,
30,
9,
-53,
57,
26,
14,
23,
11,
8,
22,
18,
-7,
36,
6,
14,
33,
15,
14,
-61,
-5,
36,
4,
-28,
-1,
-38,
15,
-14,
14,
15,
-7,
32,
-6,
-15,
25,
11,
25,
-38,
38,
15,
28,
-10,
-9,
42,
15,
40,
-18,
0,
45,
27,
-79,
-11,
-32,
-34,
-20,
-33,
49,
44,
16,
12,
3,
-29,
25,
-1,
-35,
11,
-34,
29,
52,
32,
-9,
17,
37,
74,
24,
8,
-42,
6,
6,
6,
-69,
6,
-5,
-11,
31,
8,
66,
-6,
-25,
-26,
-3,
11,
12,
-17,
10,
-32,
33,
5,
-16,
-15,
0,
62,
45,
-9,
-31,
-28,
27,
7,
-31,
-42,
4,
-31,
59,
-6,
-30,
70,
-47,
18,
14,
61,
-5,
-2,
33,
18,
-17,
-59,
35,
44,
4,
7,
5,
22,
5,
6,
10,
13,
-37,
-4,
13,
-47,
-6,
-30,
-17,
19,
52,
-2,
8,
-20,
-7,
-13,
-34,
33,
15,
4,
15,
-21,
-38,
2,
-10,
55,
-16,
-9,
-13,
13,
33,
-16,
66,
-40,
7,
-32,
-23,
78,
-34,
7,
-16,
-2,
-4,
-5,
-16,
2,
-24,
-19,
-23,
34,
47,
-2,
-44,
-13,
1,
-10,
-42,
-9,
-27,
-29,
-18,
0,
14,
0,
29,
-1,
11,
-16,
45,
56,
10,
-54,
-29,
-39,
-3,
-35,
-1,
-27,
-21,
-12,
-6,
2,
1,
19,
-44,
-39,
7,
-5,
-10,
6,
1,
40,
-4,
7,
-14,
43,
-29,
11,
18,
18,
13,
-10,
16,
24,
56,
-43,
-18,
10,
-22,
-51,
-5,
53,
25,
6,
-39,
-29,
-24,
-10,
41,
23,
-10,
27,
9,
6,
6,
-43,
13,
1,
-26,
-9,
49,
-35,
-32,
1,
27,
-43,
11,
-13,
36,
8,
15,
-51,
-19,
-50,
-18,
24,
-67,
-35,
2,
9,
18,
0,
-15,
-40,
9,
17,
-25,
-36,
35,
-10,
-22,
-1,
76,
-6,
-84,
9,
5,
-9,
-19,
-37,
29,
13,
-25,
0,
-28,
-1,
-62,
-52,
5,
14,
8,
-36,
-5,
14,
-9,
24,
0,
-52,
41,
31,
11,
44,
-24,
14,
-17,
-18,
-21,
-23,
18,
-22,
47,
40,
-13,
-29,
12,
10,
-14,
-13,
-10,
25,
-16,
-1,
-22,
39,
36,
-6,
-18,
22,
-4,
-26,
-10,
26,
-29,
5,
69,
24,
-8,
8,
5,
-19,
38,
-46,
28,
-6,
0,
27,
20,
-43,
0,
19,
18,
36,
28,
-2,
54,
9,
-6,
46,
7,
-36,
42,
13,
-62,
17,
34,
-37,
-5,
18,
-14,
-14,
13,
26,
-55,
27,
45,
-56,
50,
9,
92,
-7,
-2,
10,
8,
-9,
-10,
-10,
17,
-5,
-11,
-16,
-10,
-6,
6,
33,
-14,
-30,
-16,
-42,
-3,
-58,
17,
52,
12,
-5,
-10,
0,
-75,
-25,
8,
9,
58,
16,
6,
-39,
-14,
15,
-37,
-41,
11,
24,
-32,
21,
2,
0,
-25,
-38,
-11,
-23,
14,
13,
-36,
39,
26,
-29,
5,
-27,
-31,
71,
63,
14,
52,
-5,
-26,
-26,
25,
-29,
-22,
21,
51
] |
Stone, J.
The plaintiff herein, claiming a remainder under the will of the late Arthur B. Cracknell, brought this suit for the construction of the will. From a decree dismissing the bill, the plaintiff has appealed.
The will in question was a holographic will, and as it appears in the record (with its peculiar punctuation and use of capital letters) .is as follows:
“Sault Ste. Marie, Mich.,
“January 25th, 1890.
“I Arthur, B. Cracknell of Sault Ste Marie Michigan being of Sound mind And memory do make this my last will and testiment first I give devise and bequeath All of my real estate and personal Property of whatever name or value And wherever Situated of which I may own at the time of my death to my wife Sarah. Jane. Cracknell to have use and control during her natural life time And at her death One thousand Dollars to go to my Adopted Daughter Maybell Leslie Cracknell and the balance of my Estate at my wife’s death. If she does not make A will to go to my adopted Daughter above named I hereby constitute and appoint Sarah Jane Crackness and Frank V. Flower executrix and executor to this my last will and testiment. In witness whereof I hereunto Set my hand and Seal this Twenty-fifth Day of January A. D. 1890.
“Arthur. B. Cracknell.
“B. P. Fuller
“Witnesses Frank V. Flower.”
Mr. Cracknell died April 13, 1899, and the will was admitted to probate, May 15, 1899, and the defendant, his widow, qualified as executrix and proceeded to administer the estate. Mr. and Mrs. Cracknell had no issue, but the plaintiff is their adopted daughter. The estate consisted mostly of real estate at Sault Ste. Marie, Michigan, and was appraised at about $20,000, with some encumbrance thereon.
The plaintiff was about 14 years old at the time of testator’s death. On May 12, 1899, the defendant, upon her own petition, was appointed general guardian of the plaintiff and her estate.
On the 14th day of July, 1902, the defendant, as executrix, filed her final account, and on August 11, 1902, such account was allowed by the probate court and an order entered allowing her final account and assigning the estate to defendant, from which order there was no appeal. The order relating thereto, after reciting the filing of due proof of publication, proceeds as follows:
“It is therefore ordered that said account be, and hereby is, allowed and approved as the final account of the said Sarah J. Cracknell, executrix of said estate, and ordered to be placed on file and recorded.
“And. it is further ordered and decreed that all of the real estate and personal property of the said estate be and the same is hereby assigned absolutely to the said Sarah J. Cracknell under the will, except the sum of one thousand dollars, which is assigned to the said Sarah J. Cracknell, to have the use and control thereof during her life, and at her decease to go absolutely to Maybell Leslie Cracknell if she be then living; and, upon the said Sarah J. Cracknell’s placing the said one thousand dollars under the control of this court, or giving satisfactory bond therefor, said estate, both real and personal, shall be relieved from and free from any charge on account of said one thousand dollars.”
Subsequently a petition was filed to relieve the estate from the $1,000 legacy, and an order relieving the estate from said legacy was duly entered on the 12th day of May, 1903, in and by which it was ordered that that sum of money be placed on interest at the Soo Mutual Building & Loan Association, and that the interest thereon be paid to Sarah Jane Cracknell, during her life, and that after her death the same should be paid over to Maybell Leslie Cracknell, and that thereupon the said estate be released and freed from any and all charge on account of said legacy. Said order was complied with, and the bond of the executrix was released and canceled and the estate settled and closed.
When the order assigning the estate was made the plaintiff was not represented at the hearing by any guardian ad, litem, or in any other manner.
It is the claim of the plaintiff that by the. terms of the will the defendant was given a life estate only in all of the réal property and was entitled to the possession thereof, but that at her death the plaintiff is to have $1,000 and the balance of the estate. In other words, it is the claim of the plaintiff that the defendant’s interest in the property was that of a life estatp only. The bill alleged that the defendant had allowed the buildings on, the lands of the estate to become dilapidated and out of repair, thus destroying the corpus of the property. And the defendant, claiming to be the owner in fee of the lands, denied the plaintiff’s interest as remainderman, and denied that she owed plaintiff any duty as to the real estate.
The trial court held that the order of the probate court assigning the residue of the estate was res adjudicatei and binding on the plaintiff; and, as we have said, dismissed plaintiff’s bill, and a decree was entered accordingly.
There is little or no dispute about the facts in the case. In argument the claims of the plaintiff are as ■ follows:
(1) That the defendant took only a life estate under the will.
(2) That the probate court did not construe the will as to plaintiff’s remainder.
(3) If the order of the probate court assigning the residue is held to assign the fee title, is it binding on the plaintiff?
(4) Is a decree of distribution where minors are not represented void, or voidable?
(5) If the order assigning the residue assigns a fee title to defendant, and if that order is binding on the plaintiff, then the defendant should be held to hold the remainder in trust for the plaintiff.
The learned circuit judge filed a written opinion in the case which so clearly presents our view that we insert the same here:
“It may be laid down, as a fundamental proposition that the vesting of estates by will is, without constitutional limitations, if any, peculiarly within the control of the legislature. The legislature has prescribed the procedure in the settlement of estates, and the courts are bound by the statutory provisions. In most proceedings no personal notice is. required, but a notice by publication is sufficient to apprise all parties interested or to bind them by the order of the court. Under the statute upon allowance of the final account, the probate court is required to distribute the estate by an order, naming the persons taking and the portions which they take. 4 How. Stat. (2d Ed.) §§ 11154, 11155 (3 Comp. Laws 1915, §§ 13915, 13916).
“The distribution does not transfer property, but is merely declaratory. In partition, one having an undivided interest in the - whole of the real estate is invested by the partition proceedings with the whole title of part thereof. Distribution differs from partition in that the former transfers no title, but merely declares the persons upon whom the law casts the succession, and the extent of their respective interests. Parkinson v. Parkinson, 139 Mich. 535. In order to properly declare the succession, the court is obviously called upon to construe a will where the deceased died testate. Under the statute cited, the probate court is invested with that power, and at the time of the distribution of the estate, has jurisdiction to construe the will and make distribution accordingly. Glover v. Reid, 80 Mich. 228, 232; Byrne v. Hume, 84 Mich. 185, 86 Mich. 546; Dudley v. Gates, 124 Mich. 440.
“The judgments of the probate court stand upon the same basis as the judgments of other courts, and are conclusive. The propositions passed upon become res adjudicata. Burgess v. Stribling, 134 Mich. 33, 38; Lawrence v. Hathaway, 128 Mich. 119, 123. This is true of an order or judgment of distribution of an estate, and the judgment, after a construction of a will, becomes res adjudicata of such construction. Byrne v. Hume, supra; 18 Cyc. p. 663; 40 Cyc. p. 1859. As bearing upon the question and sustaining the doctrine, see, also, In re Doyle’s Estate, 147 Mich. 544, 548; Farlin v. Sanborn, 161 Mich. 615.
“Counsel for plaintiff admits the force of the order of distribution, but denies its applicability in the case at bar, for two reasons: First, that a special petition for the construction of a will is necessary; and, second, that at the time of the settlement of the estate and the order of distribution, the plaintiff was an infant, and a guardian ad litem should have been appointed for her. The first reason is answered by the decision cited above, and by the fact that the statute does not contemplate a necessity for a special petition. As concerns the second reason, the infancy of the plaintiff, I have been able to find no requirement in the statute for the appointment of a guardian ad litem as a prerequisite to the distribution of an estate. The authorities are to the effect that such appointment is not necessary where the statute does not require it. 10 Enc. Pl. and Prac. p. 625. In some cases, as in partition, such appointment is expressly required by law.
“Probate proceedings are not personal in their nature, but belong to a class of action in rem, or quasi in rem. Stevens v. Hope, 52 Mich. 65. (In re Brown’s Estate, 198 Mich. 544, 563.) When the final account has been approved and all demands against the estate are satisfied, the distribution is a matter of course which it is the duty of the court to make. Dickison v. Reynolds, 48 Mich. 160.
“The court having jurisdiction to distribute the estate and to construe the will for the purpose, the failure to appoint a guardian ad litem for a minor could be no, more than an irregularity of procedure. It is fundamental that an irregularity, not, jurisdictional, even though sufficient to require the vacation of a judgment on direct attack, does not affect its force when questioned in another proceeding. If the appointment were necessary, the judgment would be, not void, but merely voidable. 10 Enc. Pl. and Prac. p. 627, and following. Under the authorities, it appears to me that so long as the judgment of the probate court construing the will remains in force, it is res adjudicóla upon that proposition, and bars any other or further proceeding for the construction of the will.
“A decree dismissing the bill will be entered, with costs to the defendant.”
In most ox the cases cited in the opinion of the circuit judge relating to the power of the probate court to construe a will in making distribution of estates, the estates consisted of personal property only; but that the same rule should apply to real estate we think clearly appears by reference to other sections of the statute.
Section 13918, 3 Comp. Laws 1915, clearly contemplates the assignment of real estate to devisees, and then provides for the partition thereof. This is fully recognized by this court in Parkinson v. Parkinson, supra, at p. 536.
The right to a partition is confined to such real estate as has been assigned by the probate court after the payment of debts. Campau v. Campau, 19 Mich. 116, 122. In that case Justice Christiancy, speaking for this court, said:
“The settlement of the estate and delivery of the property to the heirs by order of the probate court, would undoubtedly constitute necessary prerequisites to a partition in, that court, where, under the statutes, partition is to be regarded as an incident of, and part of the proceedings for, the settlement of the estate. The right to a partition is there confined to such real estate as had been assigned by that court to the heirs or devisees, after the payment of debts.” Citing the statute.
See, also, Haddon v. Hemingway, 39 Mich. 615.
We therefore agree with the court below that in order to properly declare the succession, the probate court is obviously called upon to construe a will dealing with real, as well as personal estate. Under the statute cited, the probate court is invested with power, and, at the time of the disposition of the estate, has jurisdiction to construe a will and make disposition accordingly; and we are of the opinion that the case was properly disposed of upon the ground that judgments of the probate court stand upon the same basis as judgments of other courts of record, are conclusive, and become res adjudicata.
The questions urged by appellant, we think, are fully covered by the opinion above quoted, and need not be farther discussed. The decree below is affirmed, with costs to the defendant.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred. | [
-4,
28,
17,
-26,
-1,
-4,
54,
8,
58,
-23,
-2,
-14,
22,
52,
-2,
3,
-7,
-21,
-10,
-16,
-37,
9,
8,
-58,
8,
-18,
-41,
35,
17,
-69,
0,
-17,
-18,
16,
-28,
20,
63,
-19,
-1,
10,
21,
-6,
47,
36,
-28,
-15,
49,
-6,
-11,
-7,
-19,
-6,
-25,
-13,
1,
-6,
-7,
-31,
-28,
-16,
20,
-36,
34,
23,
7,
43,
-3,
46,
-44,
-16,
-5,
-22,
34,
-5,
6,
-22,
5,
-13,
-44,
-5,
-11,
-4,
-21,
-51,
-52,
-25,
-46,
19,
-25,
-39,
-57,
27,
-28,
50,
-10,
18,
-4,
5,
21,
27,
-4,
47,
13,
67,
18,
-26,
-19,
-31,
-5,
-37,
28,
-5,
43,
36,
-15,
-19,
-19,
10,
-15,
-39,
-28,
-17,
-14,
-41,
30,
23,
12,
-11,
72,
5,
52,
-31,
-2,
30,
-15,
-19,
-19,
-24,
-5,
-2,
39,
-30,
16,
1,
23,
-9,
-15,
7,
-14,
-48,
2,
-13,
-23,
55,
57,
13,
-4,
-26,
4,
-42,
18,
-10,
55,
-13,
-33,
-35,
43,
1,
-1,
50,
33,
7,
-11,
-26,
0,
37,
21,
26,
-20,
-14,
57,
45,
60,
-59,
-6,
-42,
17,
-12,
27,
18,
2,
-18,
-26,
31,
-21,
44,
-6,
-11,
5,
-51,
8,
-38,
29,
-20,
10,
-62,
30,
-22,
-35,
37,
-27,
35,
6,
-4,
-21,
19,
-13,
-49,
0,
-9,
52,
-13,
41,
40,
-65,
-16,
-21,
-11,
-5,
-10,
-12,
-52,
4,
43,
-32,
23,
-20,
15,
4,
5,
-45,
-13,
-6,
15,
52,
0,
-19,
18,
-40,
21,
-19,
33,
27,
-2,
0,
-45,
30,
-16,
6,
38,
-10,
2,
-48,
9,
60,
-22,
31,
-5,
17,
15,
11,
-24,
48,
10,
22,
-61,
-11,
-24,
-12,
-14,
1,
-19,
-75,
19,
17,
29,
20,
-11,
3,
51,
36,
2,
13,
-4,
-4,
42,
-27,
-14,
-31,
12,
-26,
14,
27,
36,
16,
-14,
-2,
-15,
-2,
-19,
-10,
-43,
40,
-23,
10,
5,
-23,
-8,
12,
-23,
54,
60,
-15,
66,
-42,
30,
0,
-9,
-23,
43,
-18,
45,
-1,
2,
-7,
-17,
4,
-33,
3,
-57,
30,
3,
19,
39,
-7,
29,
35,
-15,
5,
-33,
-28,
-29,
35,
42,
-30,
15,
12,
-32,
38,
60,
63,
-18,
38,
38,
-19,
-3,
-32,
-23,
6,
16,
12,
24,
-14,
15,
52,
-33,
-31,
-21,
16,
53,
-5,
21,
3,
80,
34,
-10,
-20,
-38,
-26,
-4,
-22,
-13,
-3,
-26,
-50,
14,
0,
-7,
-20,
-11,
16,
57,
24,
-6,
-33,
31,
-28,
31,
11,
35,
47,
31,
45,
-49,
36,
-1,
33,
-5,
43,
48,
-36,
44,
-2,
20,
-2,
-33,
-15,
-6,
-36,
-30,
-6,
97,
62,
15,
62,
-31,
-20,
3,
-8,
38,
1,
21,
40,
21,
-18,
-1,
-42,
-13,
61,
10,
-11,
-2,
-23,
21,
13,
-2,
8,
38,
-5,
-14,
11,
-2,
-3,
-51,
-6,
0,
13,
-8,
18,
-2,
-16,
17,
-72,
-15,
22,
12,
26,
15,
-2,
-28,
11,
0,
-25,
6,
10,
5,
24,
-25,
-36,
-42,
40,
-34,
27,
0,
7,
-27,
-68,
-22,
-27,
-23,
-23,
-6,
8,
-20,
-30,
5,
-7,
-10,
-20,
53,
-20,
-44,
-9,
17,
5,
1,
46,
-18,
28,
45,
2,
9,
-20,
34,
18,
3,
53,
19,
7,
-31,
2,
-32,
-37,
-7,
-19,
-1,
9,
-2,
0,
-11,
-2,
-5,
54,
6,
-65,
44,
-32,
-6,
-20,
-3,
-30,
-30,
-40,
25,
-37,
-18,
15,
-6,
6,
4,
18,
-27,
-10,
-5,
34,
-33,
11,
-37,
-13,
15,
-9,
5,
27,
-8,
6,
34,
21,
17,
-60,
-32,
3,
1,
-18,
-37,
-3,
15,
0,
-8,
-6,
55,
8,
-12,
-16,
-24,
-31,
-23,
-15,
6,
13,
-21,
-27,
-6,
-27,
-15,
-74,
-20,
-36,
-10,
66,
-27,
15,
-24,
-29,
-10,
-1,
24,
-4,
-70,
31,
-6,
26,
-30,
7,
-29,
73,
-33,
14,
3,
-28,
18,
-52,
-19,
-21,
35,
9,
26,
-16,
-7,
7,
-67,
-24,
-39,
1,
21,
-14,
7,
6,
-20,
5,
42,
6,
-2,
43,
48,
-9,
-33,
59,
-32,
-16,
3,
22,
-12,
-45,
20,
-27,
49,
20,
44,
14,
-3,
32,
-4,
28,
-26,
-11,
-65,
-3,
23,
23,
42,
3,
34,
2,
40,
12,
4,
-35,
20,
-25,
-15,
-1,
-21,
-19,
-35,
-28,
-6,
-2,
18,
48,
-12,
-6,
-5,
36,
40,
-19,
0,
4,
31,
-38,
5,
-1,
3,
35,
-32,
-11,
20,
15,
-21,
37,
-39,
-23,
-36,
-21,
32,
-38,
3,
-21,
-25,
-3,
-53,
48,
-19,
5,
-34,
-2,
10,
-9,
-37,
13,
-20,
-34,
-12,
-31,
10,
-29,
-7,
35,
32,
-29,
1,
-6,
20,
34,
48,
-4,
-45,
-31,
19,
12,
-47,
0,
26,
-1,
-31,
19,
-3,
-12,
0,
-37,
-21,
4,
19,
-61,
-3,
-40,
-15,
0,
43,
32,
-3,
20,
-30,
-28,
18,
23,
-12,
41,
3,
51,
42,
-13,
-45,
12,
-22,
-19,
-17,
19,
-33,
37,
-11,
-7,
-7,
65,
32,
15,
28,
-23,
8,
-17,
7,
-8,
-23,
13,
-44,
-49,
-2,
-39,
26,
-4,
17,
-4,
8,
19,
44,
-35,
2,
7,
-2,
-35,
15,
41,
-8,
36,
19,
-17,
4,
-17,
-13,
-5,
20,
-33,
1,
-62,
39,
37,
19,
49,
-5,
-12,
-45,
-4,
-54,
-15,
20,
-33,
-32,
-31,
-32,
-37,
-18,
18,
-24,
-67,
-24,
36,
-69,
-16,
-40,
6,
9,
-9,
-16,
-58,
-6,
29,
-11,
63,
-36,
-8,
26,
-13,
49,
15,
-6,
-58,
24,
86,
-23,
20,
29,
4,
8,
0,
20,
-17,
-8,
-39,
-64,
16,
5,
-31,
-45,
-4,
14,
-55,
-27,
17,
21,
76,
0,
1,
-49,
-28,
-34,
-3,
14,
-1,
-26,
-34,
-1,
3,
-1,
-23,
-20,
7,
26,
40,
11,
-1,
36,
8,
-13,
-3,
-33,
34,
15,
10,
-25,
1,
35,
41,
-11,
-17,
-23,
14,
3,
10,
-18,
-23,
17,
10,
-43,
41,
79,
-17,
30,
-26,
-33,
-26,
17,
5,
13,
6,
-16,
24,
-69,
-24,
-2,
43,
-8,
-34,
-45,
18,
-51,
23,
-19,
53,
15,
18,
-47,
-27,
-2,
-43,
46,
5,
-27,
7,
7,
-17,
-34,
40,
43,
-65,
27,
36,
37,
0,
42,
-10,
-11,
-44,
-41,
25,
56,
-11,
-22,
24,
92,
-69,
-10,
-79,
3,
-9,
45,
-10,
24,
-12,
13,
38,
-9,
41,
11,
44,
24
] |
Bird, J.
In 1915 plaintiff was a hay buyer in Ottawa, Canada. Defendant resided in Montreal and bought raw furs in and around Sault Ste. Marie. Having had a previous acquaintance of several years the parties met in Ottawa in 1915 and made the following written agreement:
“The party of the first part agrees to pay to the party of the second part the sum of fifty (50) cents per ton on all hay bought by the party of the first part in Chippewa county, Michigan, through the party of the second part. The party of'the fiyst part also agrees to pay to the party of the second part one ($1.00) dollar per ton on all hay bought at seventeen ($17) dollars per ton F. O. B. Montreal, according to the party of the first part’s inspection.”
After its execution both parties came to the Soo to investigate the condition of the hay market. Plaintiff remained a few days and then returned to Ottawa, and defendant, assisted by one Crawford, began buying hay for plaintiff under the agreement. Plaintiff furnished defendant with a formal contract, naming himself as purchaser, to be used in making contracts with the farmers. These were soon abandoned as the farmers objected to making written contracts, and thereafter defendant purchased the hay in his own name. From the commencement of operations to May 5, 1916, plaintiff advanced defendant $25,557 on account of hay. Up to this date defendant claims he had furnished plaintiff hay to the amount, including storage and commission charges, of $26,474, leaving a balance due him of nearly $1,000. About this time some friction arose between them with reference to the claimed balance. Defendant claims that he urged plaintiff to pay the advancements made by him and also to pay the balance due the farmers for hay purchased but not paid for. Plaintiff denied the correctness of these balances. He therefore came to the “Soo” and undertook to ship out 175 tons which were in storage and defendant declined to permit him. This suit in replevin followed and the hay was taken under the writ. Defendant then claimed in his pleadings and in his testimony that the hay, or some part of it, belonged to him. Upon the proofs being closed, plaintiff requested a directed verdict. This request was granted, the court directing a verdict for the hay seized under the writ and six cents damages.
Counsel insists that this action upon the part of the trial court was error because the question whether defendant owned the hay was a question for the jury. Some claim also appears to be made that the question whether defendant had a lien on the hay was one for the jury.
The trial court refused to submit the question of defendant’s ownership of the hay because the testimony showed conclusively that defendant purchased the hay in question the same as he did all the other hay. It was the view of the trial court that defendant was the agent of plaintiff, authorized to purchase hay* and that by reason of that relation he could not pur-< chase and get title to hay which he was under obliga-i tion to purchase for his principal. Citing 2 C. J. p. 705; Pikes Peak Co. v. Pfuntner, 158 Mich. 416.
It was further the view of the court that if defend-, ant were the owner of certain of the hay by reason, of being purchased in his own name and with his own money, there was no basis for the jury to determine what particular hay belonged to him because from his own testimony it appeared that'it had been so intermingled with plaintiff’s hay that it could not be identified. These reasons appear to answer conclusively defendant’s assignment of error in regard to the ownership of the hay.
We are unable to find anything in the record showing the defendant claimed a lien on the hay for money advancements. He gave notice under the general issue that he would claim that he was the owner of the hay and he made this claim upon the trial. It is quite likely that if his version were true he might have claimed a lien for advancements, but this claim is inconsistent with his other claim of ownership. Another difficulty which presents itself is that if the facts were such that he could have claimed a lien he could have done so on no other hay than the particular hay which he advanced the money to purchase. Much of this had already been delivered to plaintiff by the defendant himself and as to this part the lien would have been waived. DeWitt v. Prescott, 51 Mich. 304. Had the court instructed the jury that defendant was entitled to a lien on hay which he advanced money to pay for they would have been without data to determine what hay he was entitled to the possession of because defendant himself was unable to point to any particular bale of hay and say he purchased that bale with his own money. Some discussion was had in the briefs as to the state of the accounts between the parties. We think that is a matter to be disposed of in some other appropriate proceeding. The trial court was right in holding there was no question of fact for the jury.
The judgment is affirmed.
Ostrander, C. J., and Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. Kuhn, J., did not sit. | [
1,
20,
3,
5,
9,
-28,
68,
0,
37,
43,
-28,
9,
14,
23,
-20,
-11,
8,
-25,
14,
-7,
8,
-42,
-73,
-26,
30,
-20,
-14,
-54,
-34,
20,
-17,
63,
-34,
-33,
-24,
-19,
-18,
1,
13,
-25,
13,
-32,
8,
-47,
34,
-30,
2,
-22,
69,
-9,
53,
-36,
7,
-7,
-50,
-4,
-30,
24,
-26,
44,
36,
-45,
25,
4,
42,
-49,
-20,
40,
-8,
-1,
-35,
12,
-44,
-22,
21,
-46,
-12,
-49,
-42,
-4,
46,
18,
33,
1,
-12,
-5,
-14,
-46,
32,
12,
-30,
-35,
-10,
34,
-7,
6,
-1,
76,
-10,
-12,
4,
0,
35,
-8,
-3,
0,
-63,
-12,
7,
3,
3,
18,
32,
-44,
37,
-14,
-24,
-6,
-15,
-22,
-34,
-13,
-6,
-33,
-16,
-39,
-19,
-2,
-9,
26,
27,
-76,
-53,
30,
-17,
26,
-8,
1,
-12,
-10,
37,
30,
-39,
4,
0,
26,
-13,
-47,
-9,
-1,
-50,
1,
19,
0,
-6,
-7,
20,
-8,
11,
-33,
31,
18,
11,
-24,
-29,
16,
-31,
5,
-23,
-4,
-8,
1,
-1,
-9,
42,
31,
27,
0,
2,
31,
2,
1,
-28,
-26,
13,
4,
-39,
5,
22,
-9,
41,
-68,
-12,
2,
-15,
8,
-20,
-27,
29,
31,
39,
1,
-19,
-15,
-14,
-5,
56,
-29,
-40,
-9,
-19,
-39,
-33,
-54,
-6,
10,
-26,
2,
24,
-74,
-8,
14,
-23,
38,
-22,
-60,
52,
24,
85,
-4,
-41,
6,
12,
2,
26,
-37,
35,
16,
12,
39,
-1,
-24,
-80,
-23,
42,
25,
-58,
-1,
20,
34,
-19,
-1,
-19,
33,
-32,
-24,
7,
5,
-42,
-26,
-24,
20,
30,
26,
32,
-35,
-47,
25,
4,
23,
-12,
-21,
35,
-9,
-43,
-56,
-5,
8,
53,
-11,
54,
-30,
-59,
-9,
13,
4,
2,
27,
-62,
5,
47,
16,
-4,
-63,
59,
30,
-21,
-19,
20,
15,
-63,
13,
-29,
-7,
19,
-17,
-16,
-20,
-11,
-12,
-39,
-42,
-25,
-2,
-39,
-36,
48,
13,
34,
-15,
-19,
-19,
24,
54,
-38,
15,
10,
-39,
13,
-9,
6,
-40,
-10,
-4,
-30,
-37,
-12,
34,
15,
-24,
51,
36,
3,
1,
26,
55,
-7,
5,
3,
-11,
25,
-8,
-11,
22,
17,
-1,
-12,
49,
-1,
0,
60,
5,
25,
8,
32,
34,
-30,
-19,
-14,
58,
-29,
46,
46,
-21,
-26,
-25,
-32,
-37,
-60,
27,
46,
-28,
6,
19,
30,
-27,
-48,
3,
-44,
8,
-17,
-22,
8,
70,
82,
-1,
14,
-22,
-29,
-63,
34,
56,
49,
-22,
1,
-15,
16,
-26,
-8,
-8,
2,
3,
-26,
-24,
3,
-25,
17,
3,
-2,
24,
67,
15,
28,
-3,
76,
-10,
53,
-33,
-19,
47,
-8,
3,
1,
13,
5,
-29,
-1,
-5,
8,
2,
20,
0,
-12,
-16,
31,
-14,
-6,
-3,
23,
0,
15,
6,
-23,
19,
7,
58,
15,
-14,
4,
-27,
-35,
9,
34,
-22,
37,
-30,
44,
-2,
26,
60,
-5,
23,
62,
21,
-30,
-46,
35,
-9,
-56,
39,
0,
19,
7,
-26,
-25,
-74,
-10,
5,
-19,
94,
-5,
-24,
-24,
32,
-29,
29,
16,
-2,
56,
-13,
-23,
-44,
15,
-26,
40,
31,
0,
-71,
13,
17,
-5,
-38,
1,
-16,
-3,
50,
32,
26,
-12,
45,
-19,
35,
-7,
15,
62,
-13,
69,
-27,
25,
17,
-14,
-13,
-34,
-43,
22,
-40,
27,
22,
9,
-38,
-22,
-17,
54,
-71,
-17,
-5,
3,
-13,
-16,
-4,
36,
0,
44,
-20,
-21,
35,
-19,
1,
4,
14,
3,
24,
-7,
-2,
28,
-36,
31,
12,
54,
67,
-25,
-4,
25,
56,
17,
-6,
-70,
7,
16,
62,
-9,
-27,
-4,
-6,
6,
33,
14,
-4,
3,
9,
31,
11,
-8,
-24,
-27,
-1,
33,
4,
15,
27,
15,
-14,
-70,
-18,
-39,
10,
-71,
31,
17,
9,
-12,
43,
-4,
-8,
8,
-16,
19,
-46,
34,
0,
-5,
-74,
7,
-13,
-26,
-43,
-3,
-9,
-36,
23,
-32,
-55,
7,
22,
-6,
24,
29,
26,
-34,
-13,
-1,
-56,
-4,
-32,
-16,
-4,
-28,
8,
-23,
-12,
-25,
39,
27,
19,
-11,
-25,
30,
32,
-19,
18,
24,
-6,
-30,
0,
-17,
-3,
-7,
6,
-14,
36,
52,
-49,
17,
-19,
29,
-37,
27,
11,
21,
39,
-1,
45,
23,
0,
9,
17,
-6,
-11,
-1,
7,
-52,
-15,
10,
16,
20,
-21,
-16,
-15,
-33,
-15,
-2,
12,
11,
3,
44,
6,
-10,
-18,
4,
15,
58,
-53,
41,
53,
9,
21,
-3,
41,
-24,
-51,
0,
-17,
75,
-32,
6,
-23,
-35,
-16,
-21,
52,
12,
65,
21,
-46,
40,
51,
3,
17,
-3,
-36,
-1,
-38,
22,
6,
-45,
-3,
13,
-10,
-17,
-13,
-6,
-14,
37,
35,
-13,
-61,
-42,
6,
-76,
-45,
11,
5,
4,
-28,
-28,
10,
42,
-55,
18,
-15,
-21,
9,
-33,
-26,
1,
24,
-4,
16,
29,
-16,
22,
-21,
38,
3,
-20,
-26,
3,
-18,
1,
20,
15,
-57,
33,
-14,
-48,
-26,
32,
-9,
8,
-33,
-45,
-13,
-47,
51,
20,
-4,
27,
8,
4,
9,
-35,
9,
1,
-40,
11,
37,
-14,
-14,
26,
71,
-43,
25,
-5,
-30,
-2,
0,
-7,
4,
-23,
-23,
32,
-19,
-36,
43,
6,
11,
15,
-65,
-49,
21,
9,
-7,
-21,
31,
45,
12,
-11,
91,
-22,
-63,
-13,
-17,
0,
27,
-15,
9,
-37,
-11,
24,
57,
13,
-63,
-46,
-7,
3,
-19,
-8,
17,
0,
-9,
41,
11,
-28,
17,
33,
-1,
-8,
6,
38,
-53,
-27,
-27,
-15,
30,
-9,
66,
14,
-26,
16,
31,
9,
-62,
-65,
-20,
30,
-34,
3,
-14,
-10,
31,
11,
9,
50,
0,
-19,
-7,
-43,
-31,
26,
51,
5,
-44,
-30,
18,
-32,
8,
2,
42,
-5,
-1,
26,
3,
-58,
38,
2,
23,
-8,
42,
-4,
40,
-30,
3,
47,
3,
-9,
42,
-29,
-70,
10,
4,
-8,
24,
2,
-26,
6,
-30,
-8,
-22,
27,
30,
-10,
8,
26,
70,
-14,
-4,
-30,
20,
17,
6,
23,
4,
7,
-33,
34,
22,
-18,
38,
11,
-12,
15,
-26,
-9,
0,
27,
-16,
36,
39,
20,
-24,
58,
-65,
-49,
9,
17,
17,
-37,
12,
-57,
-23,
-15,
39,
0,
17,
33,
-27,
6,
2,
-2,
-37,
-47,
-39,
-23,
35,
1,
-1,
63,
13,
-51,
-23,
-47,
-10,
15,
41,
-1,
42,
33,
-7,
-27,
-12,
1,
4,
37,
29
] |
MacKenzie, P.J.
This is an appeal from an order allowing petitioners, the parents of Joelle Rosebush, to authorize the removal of life-support systems for their minor daughter. Although the issues raised in this appeal were rendered technically moot upon Joelle’s death, appellate review is nevertheless appropriate because the issues involve questions of public significance that may recur and yet evade review. Highland Recreation Defense Foundation v Natural Resources Comm, 180 Mich App 324, 327; 446 NW2d 895 (1989). See also In re LHR, 253 Ga 439; 321 SE2d 716 (1984); In re Lawrance, 579 NE2d 32, 37 (Ind, 1991); In re Guardianship of Hamlin, 102 Wash 2d 810; 689 P2d 1372 (1984).
i
Joelle Rosebush was born on May 20, 1976. On January 12, 1987, she was involved in a traffic accident. Her spinal cord was severed at the C-l level, just below the skull, and she went into cardiac arrest. The spinal cord injury left Joelle completely and irreversibly paralyzed from the neck down and unable to breathe without a respirator. The lack of oxygen during cardiac arrest destroyed most, if not all, of Joelle’s cerebral functions, and left her in a persistent vegetative state. It was uncontroverted that Joelle would never regain consciousness and would never be able to breathe on her own. Joelle’s brain stem was not destroyed, however, and her injuries did not leave her "brain dead” as defined under Michigan law. See MCL 333.1021 et seq.; MSA 14.15(1021) et seq.
Joelle was hospitalized at William Beaumont Hospital of Royal Oak until June, 1987. In spite of the prognosis of no recovery and Joelle’s steadily deteriorating condition, petitioners, hopeful of future improvement in Joelle’s condition, rejected the option of discontinuing life-support at that time. Joelle was then moved to the Neurorehabilitation Center at the Georgian Bloomfield Nursing Home. By March 1988, it became clear to petitioners that Joelle’s condition had not improved and that she would never progress from her vegetative condition. Petitioners then decided to authorize the removal of life-support systems. This decision was made after consultation with Joelle’s treating physicians, the staff of the Neurorehabilitation Center, the family’s Catholic priest, and the family’s attorney.
In March 1988, Joelle’s medical case manager sought the assistance of doctors at Children’s Hospital of Michigan—Detroit in effectuating petitioners’ decision to discontinue life-support. The bioethics committee at Children’s Hospital subsequently authorized Joelle’s transfer to that facility for further evaluation. The transfer was blocked, however, after staff members at the Neurorehabilitation Center contacted respondent, who obtained an ex parte temporary restraining order, and later a preliminary injunction, prohibiting Joelle’s transfer or the removal of life-support systems.
Following seven days of trial, the court dissolved the preliminary injunction and authorized peti tioners "to make any and all decisions regarding the medical treatment received by their daughter, including but not limited to, the authority to order the removal of the ventilator that sustains Joelle’s respiratory functions.” Joelle died on August 13, 1988, shortly after her respirator was deactivated.
ii
A
Courts variously have found a right to forego life-sustaining medical treatment on the basis of three sources: (1) the common-law right to freedom from unwanted interference with bodily integrity, (2) the constitutional right to privacy or liberty, or (3) statute. See generally, Meisel, The Right to Die (New York: Wiley Law Publications, 1989), pp 49-54. We hold that, in Michigan, there is a right to withhold or withdraw life-sustaining medical treatment as an aspect of the common-law doctrine of informed consent. The trial court did not err in determining that petitioners had the legal authority to order the removal of life-support systems.
B
Michigan recognizes and adheres to the common-law right to be free from nonconsensual physical invasions and the corollary doctrine of informed consent. Accordingly, if a physician treats or operates on a patient without consent, the physician has committed a battery and may be required to respond in damages. Zoski v Gaines, 271 Mich 1, 9-10; 260 NW 99 (1935); Young v Oakland Gen Hosp, 175 Mich App 132, 139; 437 NW2d 321 (1989); Banks v Wittenberg, 82 Mich App 274, 279-280; 266 NW2d 788 (1978).
The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, the right to refuse medical treatment and procedures. Werth v Taylor, 190 Mich App 141, 145; 475 NW2d 426 (1991). Thus, a competent adult patient has the right to decline any and all forms of medical intervention, including lifesaving or life-prolonging treatment. Id., citing Cruzan v Director, Missouri Health Dep't, 497 US —; 110 S Ct 2841; 111 L Ed 2d 224 (1990), and In re Quinlan, 70 NJ 10; 355 A2d 647 (1976).
The right to refuse lifesaving medical treatment is not lost because of the incompetence or the youth of the patient. In re LHR, supra, p 446. However, because minors and other incompetent patients lack the legal capacity to make decisions concerning their medical treatment, someone acting as a surrogate must exercise the right to refuse treatment on their behalf. See generally, Meisel, supra, chs 8 and 13; Guidelines for State Court Decision Making in Authorizing or Withholding Life-Sustaining Medical Treatment (Williamsburg, Va: National Center for State Courts, 1991); Younger, ed, Hospital Law Manual, Attorney’s Volume, Volume II, Dying, Death, and Dead Bodies, pp 28-35 (Rockville, Md: Aspen Publishers, Inc, 1992); anno: Judicial power to order discontinuance of life-sustaining treatment, 48 ALR4th 67.
It is well established that parents speak for their minor children in matters of medical treatment. See Parham v JR, 442 US 584; 99 S Ct 2493; 61 L Ed 2d 101 (1979); Zoski, supra; Bakker v Welsh, 144 Mich 632; 108 NW 94 (1906). Because medical treatment includes the decision to decline lifesaving intervention, Werth, supra, it follows that parents are empowered to make decisions regarding withdrawal or withholding of lifesaving or life-prolonging measures on behalf of their children.
c
Having determined that minors have the same. right to decline life-sustaining treatment as their competent adult counterparts, and that parents may act as surrogate decision makers to exercise that right, we next consider what restrictions, if any, should be placed on the parents’ decision-making authority and what role, if any, the courts should play in the decision-making process. We hold that the decision-making process should generally occur in the clinical setting without resort to the courts, but that courts should be available to assist in decision making when an impasse is reached. We further hold that, in making decisions for minors or other incompetent, patients, surrogate decision makers should make the best approximation of the patient’s preference on the basis of available evidence; if such preference was never expressed or is otherwise unknown, the surrogate should make a decision based on the best interests of the patient._
D
Our research has found two cases involving the discontinuation of life-sustaining treatment for minor children who were in a persistent vegetative state. In In re Guardianship of Barry, 445 So 2d 365 (Fla App, 1984), the parents petitioned to terminate life-support systems for their ten-month-old son, who was permanently comatose. The circuit court granted the petition, and the Florida Court of Appeals affirmed. In so doing, the court stated:
Where, as here, the parents’ informed decision is backed by uncontroverted medical evidence that their young child is terminally ill and that his condition is incurable and irreversible, their decision, we think, overrides any interest of the state in prolonging their child’s life through extraordinary measures. We can conceive of no state interest great enough to compel the parents to continue to submit their child to a life support system in this instance. To do so would merely prolong the death of a child terminally ill, wholly lacking in cognitive brain functioning, completely unaware of his surroundings, and with no hope of development of any awareness. The means now being employed are measures which even the physicians testified they would not now initiate given their present knowledge of the situation. It is, we think, the right and the obligation of the parents in such an instance to exercise their responsibility and prerogative, as did Mr. and Mrs. Barry, of making an informed determination as to whether these extraordinary measures should be continued. See In re Quinlan. [445 So 2d 371.]
The Barry court rejected the state’s request that judicial review be required before life-support methods may be withheld from a minor who is not brain dead:
[W]here, as here, the question concerns a young child, we do not think the parents must always qualify as legal guardians and seek judicial sanctions to discontinue these extraordinary measures. A decision by parents supported by competent medical advice . . . should ordinarily be sufficient without court approval. Of course, diagnosis should always be confirmed by at least two physicians. We must remember that the conscience of society in these matters is not something relegated to the exclusive jurisdiction of the court.
Although judicial intervention need not be solicited as a matter of course, still the courts must always be open to hear these matters on request of the family, guardian, affected medical personnel, or the state. In cases where doubt exists, or there is a lack of concurrence among family, physicians, and the hospital, or if an affected party simply desires a judicial order, then the court must be available to consider the matter. Medical personnel and hospitals may well consider the suggestion made by Dr. Solomon in his testimony that an advisory committee should be available to assist families and physicians in these matters. [445 So 2d 372.]
In In re LHR, supra, the parents of an infant in an irreversible chronic vegetative state sought to remove life-support systems from the child, and the hospital treating the child sought a declaratory judgment regarding whether life-support activity could be terminated. The Supreme Court of Georgia concluded that it could, stating:
We conclude that the right to refuse treatment or indeed to terminate treatment may be exercised by the parents or legal guardian of the infant after diagnosis that the infant is terminally ill with no hope of recovery and that the infant exists in a chronic vegetative state with no reasonable possibility of attaining cognitive function. The above diagnosis and prognosis must be made by the attending physician. Two physicians with no interest in the outcome of the case must concur in the diagnosis and prognosis. Although prior judicial approval is not required, the courts remain available in the event of disagreement between the parties, any case of suspected abuse,' or other appropriate instances.
In the narrow case before us no hospital ethics committee need be consulted. This in no way forecloses use of such a committee if this is the choice of the hospital, physician or family. Once the diagnosis is made that the infant is terminally ill with no hope of recovery and in a chronic vegetative state with no possibility of attaining cognitive function, the state has no compelling interest in maintaining life. The decision to forego or terminate life-support measures is, at this point, simply a decision that the dying process will not be artificially extended. While the state has an interest in the prolongation of life, the state has no interest in the prolongation of dying, and although there is a moral and ethical decision to be made to end the process, that decision can be made only by the surrogate of the infant. Since the parents are the natural guardians of the infant, where there are parénts no legal guardian and no guardian ad litem need be appointed.
We conclude that the decision whether to end the dying process is a personal decision for family members or those who bear a legal responsibility for the patient. We do not consider this conclusion an abdication of responsibility of the judiciary. While the courts are always available to protect the rights of the individual, the condition of this individual is such that the decision is one to be made by the family and the medical community. As previously noted, the courts remain open to assist if there is disagreement between decision makers or question of abuse. [253 Ga 446-447.]
See also Meisel, supra, chs 6 and 8; Guidelines for State Court Decision Making, supra, pp 101-122. But see Superintendent of Belchertown State School v Saikewicz, 373 Mass 728; 370 NE2d 417 (1977).
We agree with the principles set forth in Barry and In re LHR. After the trial court’s decision in this case, our Legislature enacted MCL 700.496; MSA 27.5496, which allows competent adults to appoint a patient advocate to make medical-treatment decisions, including the withdrawal of life-sustaining treatment, on their behalf. While the statute provides for judicial intervention under certain limited circumstances, we believe that this legislation demonstrates that the overriding public policy of this state is to respect the roles played by the patient, family, physicians, and spiritual advisors in the making of decisions regarding medical treatment, as well as the policy that courts need not delve into that decision-making process unless necessary to protect the patient’s interests. Although the legislation applies only to competent adults, we are satisfied that the public policy of judicial nonintervention also extends to decisions concerning the medical treatment of incompetent persons and minors. In re LHR, supra. We therefore hold that, in general, judicial involvement in the decision to withhold or withdraw life-sustaining treatment on behalf of a minor or other incompetent patient need occur only when the parties directly concerned disagree about treatment, or other appropriate reasons are established for the court’s involvement. See Guidelines for State Court Decision Making, supra, pp 101-122.
E
While the decision of a competent adult patient regarding the cessation of life-sustaining measures will generally control that patient’s care, a different standard must necessarily guide the surrogate of an incompetent patient, including the parent of an immature minor child, where the incompetent or the minor has never expressed his wishes. Two basic standards have evolved for surrogates to decide whether to withdraw or withhold consent to life-sustaining treatment: the "substituted judgment” standard and the "best interests” standard. See generally, Guidelines for State Court Decision Making, supra, pp 72-78; Meisel, supra, ch 9.
Under the substituted judgment standard, the surrogate exercising an incompetent patient’s rights must make the decision whether to forego life-sustaining treatment on the basis of what the patient would have decided had the patient been able to do so. Meisel, supra, p 278. The parameters of the standard were concisely set forth in In re Conroy, 98 NJ 321, 365; 486 A2d 1209 (1985):
Under the limited-objective test, life-sustaining treatment may be withheld or withdrawn from a patient in Claire Conroy’s situation when there is some trustworthy evidence that the patient would have refused the treatment, and the decision-maker is satisfied that it is clear that the burdens outweigh the benefits of that life for him. By this we mean that the patient is suffering, and will continue to suffer throughout the expected dura tion of his life, unavoidable pain, and that the net burdens of his prolonged life (the pain and suffering of his life with the treatment less the amount and duration of pain that the patient would likely experience if the treatment were withdrawn) markedly outweigh any physical pleasure, emotional enjoyment, or intellectual satisfaction that the patient may still be able to derive from life. This limited-objective standard permits the termination of treatment for a patient who had not unequivocally expressed his desires before becoming incompetent, when it is clear that the treatment in question would merely prolong the patient’s suffering.
Under the proper circumstances—where a patient was formerly competent or is a minor of mature judgment—the substituted judgment standard is an appropriate test. See Guidelines for State Court Decision Making, supra, pp 72-83. However, as applied to immature minors and other never-competent patients, the substituted judgment standard is inappropriate because it cannot be ascertained what choice the patient would have made if competent. Meisel, supra, p 275. See also In re Guardianship of Barry, supra, pp 370-371; In re LHR, supra, p 444; Rasmussen v Fleming, 154 Ariz 207; 741 P2d 674 (1987). We therefore conclude that, where the patient has never been competent, the decision-making test that better guides the surrogate is the best interests standard.
The best interests standard was summarized in In re Guardianship of Grant, supra, as follows:
There will be many situations where it cannot be ascertained what choice the patient would make if competent. In such cases, the guardian must make a good-faith determination of whether the withholding of life sustaining treatment would serve the incompetent patient’s best interests. The following is a nonexclusive list of the factors which should be considered in making this determination:
[E]vidence about the patient’s present level of physical, sensory, emotional, and cognitive functioning; the degree of physical pain resulting from the medical condition, treatment, and termination of the treatment, respectively; the degree of humiliation, dependence, and loss of dignity probably resulting from the condition and treatment; the life expectancy and prognosis for recovery with and without treatment; the various treatment options; and the risks, side effects, and benefits of each of those options.
Conroy, 98 NJ at 397, 486 A2d 1209 (Handler, J. concurring in part and dissenting in part). [109 Wash 2d 567-568.]
The trial court in this case properly recognized the best interests standard as an appropriate standard to use in deciding whether to remove life-support systems for Joelle.
hi
Respondent has suggested that the determination of death act, MCL 333.1021 et seq.; MSA 14.15(1021) et seq., precludes the removal of a patient’s life-support apparatus until after the patient has been determined to be brain dead. We agree with the trial court’s conclusion, that "the statute only addresses one question: is the patient dead, so that life-support may be disconnected without fear of liability?”
The determination of death act provides:
A person will be considered dead if in the announced opinion of a physician, based on ordinary standards of medical practice in the community, there is the irreversible cessation of spontaneous respiratory and circulatory functions. If artificial means of support preclude a determination that these functions have ceased, a person will be considered dead if in the announced opinion of a physician, based on ordinary standards of medical practice in the community, there is the irreversible cessation of spontaneous brain functions. Death will have occurred at the time when the relevant functions ceased. [MCL 333.1021; MSA 14.15(1021).]
Death is to be pronounced before artificial means of supporting respiratory and circulatory functions are terminated. [MCL 333.1022; MSA 14.15(1022).]
The means of determining death in section 1 shall be used for all purposes in this state, including the trials of civil and criminal cases. [MCL ,333.1023; MSA 14.15(1023).]
Courts may look to the legislative history of an act, as well as the time during which the act was passed, to ascertain the reason for the act and the meaning of its provisions. People v Hall, 391 Mich 175, 191; 215 NW2d 166 (1974). In the case of the determination of death act, the legislation was a response to the problem that, with the advances in life-sustaining medical technology, the traditional indicia of death—lack of pulse or breathing—were no longer meaningful when artificial life-support means were used. "[T]he concern of the drafters, as evinced by the legislative history cited to the court, was to provide a clear benchmark, a bright line test to be used by physicians for determining the time of death of persons who are maintained on life-support apparatus.” Crobons v Wisconsin National Life Ins Co, 594 F Supp 379, 384 (ED Mich, 1984), aff'd 790 F2d 475 (CA 6, 1986).
We hold that the determination of death act was intended only to determine when a person receiving life-sustaining treatment has died. It was not intended to prevent the removal of life-support apparatus until a patient has been declared brain dead.
iv
Respondent has also suggested that the termination of life-support treatment for Joelle should subject petitioners and Joelle’s doctors to criminal liability for homicide.
No court has reached the conclusion that the withholding or withdrawal of life-sustaining measures should be a ground for imposition of criminal liability. Meisel, supra, pp 57-58; anno: Homicide: Physician’s withdrawal of life supports from comatose patient, 47 ALR4th 18. See also Uniform Rights of the Terminally 111 Act, § 10(a), 9B ULA 609, 620. The trial court in this case declined to impose criminal liability, and we agree.
The corpus delicti of a felonious homicide consists of a death and the existence of criminal agency as its cause. People v Mondich, 234 Mich 590, 593-594; 208 NW 675 (1926). The decision to withdraw or withhold consent to life-sustaining treatment and the implementation of such a decision does not amount to criminal agency because the decision and its implementation are authorized under the common law. Moreover, the implementation of a decision to terminate life-support treatment is not the cause of the patient’s subsequent death. Instead, the discontinuance of life-support measures merely allows the patient’s injury or illness to take its natural and inevitable course. See In re Guardianship of Grant, supra, p 564. As stated in In re Welfare of Colyer, 99 Wash 2d 114, 123; 660 P2d 738 (1983), "[a] death which occurs after the removal of life sustaining systems is from natural causes, neither set in motion nor intended by the patient” or the patient’s surrogate. The trial court did not err in refusing to impose criminal liability for the removal of Joelle’s life-support systems.
Affirmed.
Jansen, J., concurred.
This disposition makes it unnecessary to decide the validity of the constitutional or statutory bases in Michigan.
It is generally recognized, however, that the right to refuse life-sustaining treatment may, in rare cases, be outweighed by countervailing state interests. Four such state interests have been identified: (1) the preservation of life, (2) the protection of innocent third parties, (3) the prevention of suicide, and (4) the maintenance of the ethical integrity of the medical profession. See In re Guardianship of Grant, 109 Wash 2d 545; 747 P2d 445 (1987), modified 757 P2d 534 (1988); Meisel, supra, pp 96-100; anno: Judicial power to order discontinuance of life-sustaining treatment, 48 ALR4th 67. Nevertheless, when dealing with incompetent patients for whom there is no medical probability of substantial recovery, as in this case, courts have found that countervailing state interests do not preclude recognition of the right to have life-sustaining treatment discontinued. "Therefore, the state’s interest in the preservation of life has been held to be insufficient to outweigh the individual right where the life which would be preserved would be one in a merely vegetative state or one enduring only a prolonged process of dying . . . and the state interest in the prevention of suicide has been seen as inapplicable or insignificant where there was" no intent to die and where death would be the result of natural processes. . . . Similarly, the state interest in the protection of third parties has been held to be inapplicable or insignificant where no third parties were dependent upon the patient in question or where affected third parties themselves supported termination of treatment. . . . Finally, the state’s interest in maintaining the ethical integrity of the medical profession has been held not to preclude recognition of an individual’s right to discontinuance of life-sustaining treatment where prevailing standards of medical ethics do not condemn the contemplated course of action.” 48 ALR4th, p 73.
See also In re Guardianship of Grant, supra; Gray v Romeo, 697 F Supp 580 (D RI, 1988); Rasmussen v Fleming, 154 Ariz 207; 741 P2d 674 (1987); Foody v Manchester Memorial Hosp, 40 Conn Super 127; 482 A2d 713 (1984); In re AC, 573 A2d 1235, 1247 (DC App, 1990); In re Guardianship of Browning, 568 So 2d 4 (Fla, 1990); John F Kennedy Memorial Hosp v Bludworth, 452 So 2d 921 (Fla, 1984); Corbett v D’Alessandro, 487 So 2d 368 (Fla App, 1986), review den 492 So 2d 1331 (Fla, 1986); Brophy v New England Sinai Hosp, Inc, 398 Mass 417; 497 NE2d 626 (1986); In re Spring, 380 Mass 629; 405 NE2d 115 (1980); In re Jobes, 108 NJ 394; 529 A2d 434 (1987); In re Peter, 108 NJ 365; 529 A2d 419 (1987); In re Visbeck, 210 NJ Super 527; 510 A2d 125 (Ch Div, 1986); In re Colyer, 99 Wash 2d 114; 660 P2d 738 (1983); Barber v Superior Court, 147 Cal App 3d 1006; 195 Cal Rptr 484 (1983); Severns v Wilmington Medical Center, Inc, 421 A2d 1334 (Del, 1980); In re Guardianship of Barry, 445 So 2d 365 (Fla App, 1984); In re PVW, 424 So 2d 1015 (La, 1982); Custody of a Minor, 385 Mass 697; 434 NE2d 601 (1982); In re Hier, 18 Mass App 200; 464 NE2d 959 (1984), review den 392 Mass 1102; 465 NE2d 261 (1984); In re Conservatorship of Torres, 357 NW2d 332 (Minn, 1984); In re Clark, 210 NJ Super 548; 510 A2d 136 (Ch Div, 1986); Leach v Akron Gen Medical Center, 68 Ohio Misc 1; 426 NE2d 809 (1980); In re Guardianship of Ingram, 102 Wash 2d 827; 689 P2d 1363 (1984); In re Guardianship of Hamlin, supra; In re Lawrance, supra.
The advance directive of a mature minor, stating the desire that life-sustaining treatment be refused, should be taken into consideration or enforced when deciding whether to terminate the minor’s life-support treatment or refuse medical treatment. See In re Swan, 569 A2d 1202 (Me, 1990); In re EG, 133 Ill 2d 98; 139 Ill Dec 810; 549 NE2d 322 (1989). Cf. Bakker v Welsh, 144 Mich 632; 108 NW 94 (1906).
See generally, Meisel, supra, ch 13. Of course, where the parents of a minor child for some reason are themselves incompetent to act as surrogate decision makers, and other family members are unavailable or unwilling to act as surrogates, a guardian should be appointed to exercise the minor’s rights on behalf of the minor. See Meisel, supra, p 417.
A third case, In re PVW, 424 So 2d 1015 (La, 1982), also concerned the removal of a permanently comatose minor from life-support systems. That case is inapposite to this case, however, because it primarily involved the construction of a Louisiana statute allowing the discontinuation of life-support treatment under certain circumstances.
Respondent suggests a third standard, based on the presence of clear and convincing evidence that the incompetent patient made a firm and informed decision, while competent, to forego life-sustaining treatment under similar circumstances. We summarily reject this standard, because its adoption would always preclude the termination of life-support efforts for minors and other persons who have never been legally competent, in direct contradiction of the right to refuse medical treatment. Compare In re Guardianship of Hamlin, supra. | [
-8,
-15,
-54,
18,
13,
-7,
13,
18,
-20,
-9,
-72,
-34,
-8,
33,
-24,
-9,
3,
-9,
-80,
8,
2,
43,
-13,
38,
-23,
-49,
53,
-2,
-23,
39,
39,
-36,
29,
-15,
-12,
-25,
-17,
10,
32,
5,
-3,
-9,
12,
26,
-16,
-13,
57,
59,
35,
38,
-3,
18,
18,
8,
3,
23,
104,
45,
-64,
15,
24,
9,
34,
5,
72,
39,
-18,
2,
-57,
11,
-24,
56,
-107,
-31,
28,
-14,
15,
0,
21,
0,
24,
47,
29,
-28,
-13,
-9,
-43,
5,
1,
8,
-2,
-44,
-69,
0,
-29,
47,
-43,
-66,
45,
-35,
25,
-8,
10,
23,
-34,
5,
5,
40,
37,
16,
-38,
39,
-25,
31,
-11,
3,
-28,
20,
-57,
44,
-44,
14,
22,
-65,
93,
-28,
35,
-22,
-3,
19,
-19,
11,
19,
-14,
-6,
-3,
-1,
-61,
-13,
-38,
-74,
29,
69,
41,
3,
37,
-10,
-38,
33,
-31,
51,
46,
-20,
38,
30,
-2,
6,
3,
-19,
22,
43,
26,
8,
27,
-38,
-54,
25,
46,
-30,
24,
34,
15,
15,
-18,
-9,
-11,
13,
43,
-56,
52,
-21,
-15,
4,
29,
-79,
-61,
12,
-19,
-11,
-12,
-40,
-45,
-30,
-34,
9,
31,
42,
19,
-11,
33,
-29,
16,
43,
13,
-2,
-24,
-27,
-18,
22,
-8,
32,
-6,
-6,
11,
-18,
-34,
-37,
-40,
0,
25,
51,
16,
31,
-2,
-24,
-25,
-2,
-8,
-17,
-102,
24,
10,
-36,
5,
13,
27,
13,
77,
50,
-27,
17,
-13,
31,
19,
-6,
-29,
5,
-81,
26,
-33,
22,
4,
8,
27,
-44,
-6,
-26,
-2,
-35,
-9,
15,
30,
0,
13,
20,
50,
-61,
45,
8,
-49,
41,
-19,
-15,
-72,
-22,
-28,
-3,
-1,
56,
-18,
35,
6,
19,
-2,
-21,
-57,
-60,
1,
4,
38,
43,
-9,
-5,
-75,
60,
-47,
-2,
0,
-49,
21,
24,
19,
7,
27,
12,
28,
2,
40,
47,
7,
-25,
-30,
-21,
41,
25,
-39,
-43,
-48,
32,
17,
-39,
-19,
-3,
29,
3,
4,
11,
-40,
11,
28,
-30,
59,
-6,
18,
6,
26,
25,
-8,
-22,
34,
-28,
11,
-22,
-5,
-8,
-4,
25,
-6,
-34,
-24,
1,
71,
59,
-38,
-22,
-38,
32,
-47,
-6,
74,
-67,
-68,
2,
19,
-31,
-35,
66,
2,
-25,
26,
50,
3,
0,
-2,
36,
-3,
48,
19,
9,
-10,
-16,
4,
37,
-19,
-6,
-45,
-9,
35,
23,
-19,
11,
-80,
-20,
-23,
-39,
38,
4,
38,
11,
-42,
48,
19,
13,
70,
35,
38,
-38,
-2,
10,
51,
-47,
60,
65,
-3,
9,
14,
-6,
-39,
-29,
-47,
-36,
10,
-4,
21,
-49,
-57,
-52,
3,
-5,
18,
-31,
29,
-32,
-32,
33,
-57,
-35,
-7,
6,
1,
-53,
-29,
78,
-10,
-34,
34,
46,
-15,
-13,
-49,
-25,
19,
4,
10,
-2,
5,
-6,
9,
-53,
-37,
-62,
-11,
-1,
3,
33,
16,
0,
19,
56,
-86,
-16,
18,
-25,
57,
41,
-33,
18,
49,
-55,
0,
29,
-38,
28,
6,
4,
47,
18,
21,
-2,
26,
-7,
-4,
0,
11,
-43,
31,
2,
-30,
-21,
-51,
33,
-12,
15,
12,
33,
-73,
-15,
-40,
-27,
-19,
47,
-56,
-40,
65,
-73,
-19,
21,
-25,
48,
17,
-13,
12,
-8,
16,
-10,
-25,
-30,
-13,
-6,
-11,
-8,
-34,
15,
-9,
8,
-57,
-26,
1,
-56,
-36,
-18,
24,
-49,
-15,
3,
-57,
16,
12,
5,
13,
1,
-7,
-58,
48,
62,
-67,
-29,
-29,
-12,
-12,
-45,
13,
-1,
38,
-5,
-24,
15,
-14,
40,
15,
6,
52,
-9,
-22,
-67,
11,
49,
60,
-14,
15,
11,
0,
0,
19,
-44,
-68,
-14,
-15,
35,
-31,
-39,
-43,
9,
7,
-45,
3,
-16,
-68,
-11,
-16,
-29,
12,
32,
-5,
16,
6,
-8,
-24,
41,
-62,
4,
-38,
-47,
-32,
-42,
-20,
7,
19,
7,
-44,
-22,
10,
-5,
-1,
-58,
-39,
-24,
8,
7,
25,
9,
23,
14,
-29,
7,
44,
-19,
19,
17,
0,
-15,
18,
6,
-7,
11,
-1,
54,
6,
-26,
10,
-17,
4,
-74,
33,
-7,
46,
2,
-9,
-10,
24,
14,
15,
-22,
-3,
-26,
17,
-29,
45,
-30,
-2,
-36,
97,
-9,
-24,
-2,
-33,
64,
-10,
4,
27,
-33,
-26,
-17,
-29,
-18,
-6,
-60,
13,
20,
31,
14,
11,
13,
7,
-14,
-26,
-25,
57,
4,
1,
8,
-7,
-31,
35,
-23,
3,
5,
-30,
-55,
-25,
-48,
65,
-10,
7,
1,
8,
-23,
-32,
27,
-34,
15,
-2,
6,
9,
29,
23,
53,
47,
8,
-28,
-53,
-40,
10,
-6,
8,
-40,
5,
-34,
17,
5,
14,
32,
-23,
-5,
23,
8,
-5,
-3,
9,
-8,
-1,
1,
2,
35,
-31,
-23,
53,
21,
16,
1,
11,
-40,
-76,
31,
8,
25,
35,
-9,
2,
12,
-11,
47,
-34,
38,
-10,
-21,
-26,
27,
40,
-1,
-19,
-22,
1,
27,
-17,
-20,
-15,
-46,
-2,
-27,
-3,
0,
7,
73,
83,
16,
7,
8,
18,
-19,
40,
8,
-1,
14,
12,
15,
-53,
-1,
-16,
29,
63,
31,
-13,
5,
-25,
20,
-2,
-10,
-37,
1,
63,
-15,
0,
-41,
40,
-13,
-13,
34,
54,
-9,
-65,
-14,
31,
-14,
1,
-30,
22,
0,
16,
-7,
-44,
35,
10,
-27,
19,
-14,
48,
-24,
1,
59,
-26,
-30,
16,
64,
45,
2,
-89,
-22,
-23,
28,
19,
41,
2,
9,
1,
95,
2,
18,
50,
74,
-17,
-8,
-12,
47,
-47,
26,
11,
-14,
-57,
-8,
43,
-30,
-26,
59,
53,
62,
64,
8,
-20,
-56,
18,
19,
-20,
-8,
-41,
35,
17,
25,
-38,
3,
4,
-38,
-33,
-13,
-9,
-14,
-39,
-8,
16,
-36,
-41,
-10,
22,
8,
0,
23,
-13,
12,
-21,
-48,
6,
9,
34,
-26,
28,
-2,
33,
-15,
-57,
46,
16,
-10,
-12,
-6,
11,
-19,
24,
24,
-33,
-16,
18,
-42,
-4,
25,
-17,
19,
44,
-43,
-30,
-24,
3,
-27,
-38,
12,
-33,
31,
17,
44,
-48,
24,
-38,
10,
9,
2,
26,
-18,
-20,
-64,
-11,
21,
-7,
23,
-39,
-6,
-8,
-45,
9,
-32,
8,
35,
1,
-62,
-35,
-46,
-44,
37,
-19,
42,
-66,
-34,
39,
-30,
7,
-9,
28,
34,
23,
31,
15,
-6,
-48,
-11,
0,
71,
14,
38,
-29,
-38,
-19,
21,
32,
32,
4,
20,
18,
-5,
-12,
0,
20,
2,
18,
-25,
73,
-28
] |
ON REMAND
Before: Holbrook, Jr., P.J., and Griffin and Marilyn Kelly, JJ.
Marilyn Kelly, J.
This matter is before us on remand from the Supreme Court for consideration as on leave granted. 436 Mich 866 (1990). Plaintiff appeals and defendant cross appeals from an order of the St. Clair Circuit Court which affirmed in part and reversed in part the judgment of the district court.
Plaintiff argues that the circuit court erred by denying no-fault automobile insurance work-loss benefits to her after she voluntarily quit her job. In its cross appeal, defendant argues that the court erred in allowing plaintiff work-loss benefits after she resumed employment. We reverse that portion of the circuit court order denying plaintiff all work-loss benefits after she became voluntarily unemployed and affirm the remainder of the order.
On November 16, 1985, plaintiff was injured in an automobile accident which disabled her from her employment. When she was medically released to return to work on March 6, 1986, a permanent replacement had filled her position with her original employer. Plaintiff received no-fault work-loss benefits until she began work for a new employer on September 1, 1986. Her wages in the new position were, on average, $233.60 lower per week than those paid by her former employer. Within two months, plaintiff became dissatisfied with her new job and voluntarily resigned.
Plaintiff argued below that defendant, the no-fault insurance carrier, was liable for eighty-five percent of her wage differential. The differential is the spread between her earnings at her former employment and those at her new employment the two months she worked there and while she was voluntarily unemployed. See MCL 500.3107(b); MSA 24.13107(b). The district court ruled that defendant was responsible for no work-loss benefits after plaintiff commenced her second job. The circuit court reversed and held defendant responsible for eighty-five percent of the wage differential after plaintiff returned to work. We affirm that ruling. However, the circuit court went on to refuse to make defendant responsible for any work-loss benefits after plaintiff became voluntarily unemployed. With that holding, we disagree.
The question here is not whether plaintiff should have the same work-loss benefits after she voluntarily quit her new job as she received before she began it. She should not. At issue is whether plaintiff should have the same benefits after she quit as she was entitled to while working the second job. Those benefits are based solely on the difference between what plaintiff was paid before the accident and what she was paid in her new job.
The no-fault insurance act defines "work loss” personal protection insurance as:
Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he had not been injured .... [MCL 500.3107(b); MSA 24.13107(b).]
"Work loss” includes actual loss of income. It does not include loss of earning capacity. Ouellette v Kenealy, 424 Mich 83; 378 NW2d 470 (1985). Here, the circuit court ruled that after plaintiff chose to become voluntarily unemployed, her "work-loss” claim was for loss of earning capacity rather than for loss of actual earnings. We disagree. Quellette quite clearly distinguishes the earning capacity loss involved there with a wage loss, which is what plaintiff suffered in the case before us.
Work-loss benefits are payable only for loss of actual income caused by automobile accident injuries. We recognize that subsequent events which are independent and intervening may break the necessary chain of causation. See Smith v League General Ins Co, 143 Mich App 112; 371 NW2d 491 (1985), rev’d 424 Mich 893 (1986); MacDonald v State Farm Mutual Ins Co, 419 Mich 146; 350 NW2d 233 (1984); Luberda v Farm Bureau General Ins Co, 163 Mich App 457; 415 NW2d 245 (1987); Coates v Michigan Mutual Ins Co, 105 Mich App 290; 306 NW2d 484 (1981).
In this case, unlike MacDonald, Smith and Luberda, no independent and intervening event broke the chain of causation. By contrast, in MacDonald, the plaintiff had a heart attack which was unrelated to the accident-related injuries. In Smith and Luberda, it was the plaintiffs’ subsequent incarcerations that prevented them from working. In each of these cases, the plaintiffs would have earned no wages after the intervening events, even had the automobile accidents and resultant injuries never occurred. See Ouellette, supra.
Although Coates involved a claim for work-loss benefits, it too is distinguishable from this case. Coates, 297-298. Coates held that work-loss benefits are for loss of income an injured person would have received but for the "injury” and not, as the plaintiff argued, but for the "accident.” Id., 298. The plaintiff in Coates suffered loss of income because of damage to his truck caused by the accident, not because of injuries sustained.
Our decision in this case, to continue benefits based on the pay differential, does not reward plaintiff for quitting; it also does not reward defendant for the happenstance that plaintiff’s new job did not work out. Furthermore, it implicitly recognizes that plaintiff was forced to take the new job because of accident-related injuries. The benefits which plaintiff is eligible for are those which resulted from wage loss due to her injuries and which continued regardless of whether she kept the new job.
We find no basis to deny plaintiff no-fault work-loss benefits for pay loss suffered because of her accident-related injuries, reduced by the wages she would have earned. Moreover, based on our analysis of this claim, we find no merit to defendant’s cross appeal.
Affirmed in part, reversed in part.
Holbrook, Jr., P.J., concurred. | [
-9,
16,
-34,
28,
12,
-27,
0,
-45,
-40,
4,
0,
-9,
37,
-19,
14,
-26,
-31,
19,
-30,
-11,
-36,
25,
9,
7,
-5,
27,
34,
-23,
-5,
-7,
-35,
-1,
-3,
-54,
-34,
-8,
-17,
-6,
-30,
12,
-4,
-12,
22,
-24,
-26,
-11,
6,
12,
19,
-39,
3,
36,
-37,
-12,
25,
11,
-22,
21,
30,
30,
-31,
41,
42,
22,
28,
-15,
3,
17,
-8,
-8,
-22,
-15,
-12,
-10,
-21,
-21,
5,
6,
13,
-22,
47,
-40,
-6,
-43,
-35,
58,
31,
9,
38,
10,
-30,
22,
-49,
-18,
-13,
23,
-15,
-46,
27,
48,
-17,
-16,
3,
43,
7,
-1,
14,
-50,
-50,
22,
21,
40,
43,
25,
18,
5,
29,
-59,
28,
47,
24,
11,
-17,
22,
42,
5,
-24,
28,
-27,
46,
15,
18,
14,
-19,
0,
-8,
-22,
20,
-52,
1,
0,
11,
0,
14,
-5,
23,
-3,
-45,
11,
-11,
-1,
50,
18,
0,
3,
-23,
44,
-6,
24,
-1,
-6,
-5,
5,
60,
-20,
-5,
20,
24,
46,
-44,
37,
-40,
31,
8,
31,
6,
66,
-25,
-29,
57,
-53,
-18,
-40,
11,
5,
-53,
0,
-9,
35,
3,
13,
3,
11,
53,
0,
29,
28,
23,
7,
14,
2,
-43,
-1,
25,
14,
16,
49,
-11,
-10,
-17,
-9,
3,
-1,
-85,
-11,
31,
22,
11,
-1,
-35,
17,
-5,
52,
6,
-51,
-2,
-37,
-21,
101,
4,
-8,
-45,
6,
17,
-38,
-2,
11,
-9,
44,
0,
24,
-8,
31,
-32,
-34,
-47,
-41,
-9,
-8,
48,
28,
-4,
1,
8,
-20,
-27,
3,
47,
-39,
43,
-15,
68,
-44,
3,
7,
-10,
-31,
45,
12,
-45,
1,
1,
44,
-40,
-3,
-10,
8,
43,
47,
2,
-42,
45,
-32,
-12,
3,
-4,
5,
-50,
1,
34,
37,
-27,
-8,
48,
-32,
-11,
5,
68,
-60,
62,
0,
-20,
-41,
-7,
-19,
33,
-41,
-27,
10,
41,
-7,
-32,
44,
-27,
25,
9,
-33,
-25,
10,
-16,
-5,
57,
31,
32,
29,
-13,
-12,
-40,
-14,
-47,
-43,
-20,
-15,
49,
25,
-26,
-2,
56,
5,
35,
-39,
-18,
69,
-31,
-25,
-2,
52,
26,
80,
22,
11,
36,
16,
3,
23,
-9,
54,
-47,
-48,
9,
4,
-12,
1,
-29,
-6,
-11,
7,
-11,
6,
36,
39,
-12,
-8,
-39,
-74,
-14,
-5,
8,
20,
10,
-11,
-32,
-2,
-11,
-28,
-8,
-1,
-3,
-12,
-15,
-9,
-66,
28,
22,
-28,
87,
-10,
3,
-24,
39,
-13,
32,
14,
5,
5,
-8,
12,
-33,
-22,
40,
-9,
-27,
1,
32,
-26,
-15,
7,
-47,
0,
-1,
59,
12,
-32,
-10,
-8,
6,
24,
0,
-25,
19,
-27,
-9,
0,
-52,
-19,
24,
-62,
-55,
-15,
-16,
-38,
5,
-54,
-7,
-2,
39,
-44,
-24,
44,
-3,
3,
48,
43,
19,
-46,
-40,
15,
-3,
-30,
-54,
-6,
-22,
43,
36,
47,
-44,
-26,
39,
32,
-3,
1,
3,
31,
5,
1,
-1,
-8,
-31,
2,
39,
17,
-41,
7,
-6,
4,
-16,
-15,
-42,
34,
-23,
25,
-28,
-43,
21,
40,
-11,
-51,
-31,
-23,
-4,
-49,
-40,
9,
-54,
59,
-35,
13,
-78,
-2,
-37,
-33,
13,
23,
66,
27,
-16,
-39,
14,
58,
4,
-15,
9,
0,
0,
-22,
2,
-79,
-16,
-4,
-2,
35,
6,
18,
-40,
-2,
14,
3,
-7,
-58,
-27,
-8,
60,
-31,
-2,
7,
0,
12,
46,
46,
0,
-10,
-27,
19,
21,
-34,
22,
16,
10,
70,
-6,
-18,
3,
10,
63,
-1,
3,
-40,
-32,
47,
42,
-15,
-3,
8,
-2,
20,
37,
-5,
-17,
-44,
-20,
11,
-2,
24,
-60,
-37,
-55,
47,
10,
0,
2,
-34,
-24,
2,
13,
12,
-17,
19,
-46,
-11,
24,
34,
-8,
-34,
-6,
-17,
49,
16,
31,
49,
-7,
10,
0,
-31,
-46,
13,
-50,
2,
54,
14,
20,
-16,
39,
3,
-11,
-31,
-14,
17,
19,
0,
-21,
73,
-18,
25,
-24,
-29,
-21,
12,
10,
-23,
0,
-23,
36,
56,
36,
-61,
-55,
37,
-6,
-59,
-69,
-35,
67,
-5,
29,
-13,
-25,
23,
-8,
-14,
-34,
-8,
5,
-2,
-6,
-2,
10,
-47,
-53,
0,
0,
9,
-5,
63,
28,
82,
13,
-11,
14,
-23,
24,
-22,
-22,
-8,
31,
-48,
26,
-28,
-16,
23,
-33,
-13,
78,
-66,
17,
-35,
-4,
26,
-22,
0,
0,
-42,
-8,
23,
-14,
-16,
37,
25,
-25,
43,
41,
-27,
11,
24,
-20,
16,
51,
-18,
-49,
-20,
-30,
4,
-41,
-7,
33,
-18,
34,
-13,
-22,
-19,
-15,
-5,
8,
-6,
22,
-28,
-11,
9,
39,
-40,
40,
68,
18,
34,
-1,
-26,
36,
18,
25,
7,
-12,
-56,
-28,
-6,
8,
-13,
39,
26,
-54,
-52,
0,
-14,
-30,
-4,
57,
7,
34,
19,
8,
15,
-32,
-69,
25,
-1,
-11,
24,
18,
16,
23,
-59,
-28,
-18,
-31,
28,
-11,
-17,
-60,
-15,
-42,
-25,
-31,
-85,
-18,
-4,
-32,
14,
25,
4,
-40,
-8,
32,
-34,
36,
-29,
-14,
28,
12,
-33,
2,
29,
3,
29,
-35,
21,
61,
-2,
-7,
-6,
30,
-15,
1,
-10,
54,
-24,
-21,
72,
-17,
-10,
-40,
16,
3,
-71,
15,
-27,
39,
-11,
29,
39,
9,
37,
-9,
20,
3,
-17,
-8,
-19,
24,
11,
32,
12,
18,
-53,
-49,
7,
81,
-1,
18,
-39,
-23,
-32,
-25,
-25,
-14,
-35,
31,
41,
11,
-13,
-31,
61,
0,
-7,
5,
-37,
-9,
-52,
53,
-5,
24,
18,
2,
22,
-4,
44,
-5,
11,
-3,
-5,
2,
-47,
22,
26,
52,
15,
-47,
-22,
-41,
-2,
41,
4,
-69,
48,
10,
15,
7,
36,
0,
-70,
-28,
5,
16,
-28,
40,
-11,
20,
20,
25,
-15,
0,
-2,
14,
3,
-12,
6,
-35,
9,
7,
28,
11,
-41,
21,
-5,
-12,
-24,
21,
54,
4,
33,
-20,
-5,
-29,
-12,
-48,
-24,
-5,
-74,
-28,
16,
-22,
31,
32,
-8,
3,
9,
40,
-9,
-56,
-2,
20,
0,
17,
-55,
20,
9,
13,
49,
-36,
-7,
-37,
-41,
2,
-11,
-46,
2,
-35,
-23,
-3,
17,
-18,
-24,
-25,
-12,
-1,
-23,
43,
7,
-7,
-4,
-13,
-53,
-26,
18,
22,
71,
41,
0,
-44,
-19,
-12,
31,
14,
-10,
27,
4,
-1,
-22,
-4,
-5,
15,
7,
35,
45,
52,
3,
-2,
-26,
46,
-17,
4,
-55,
-24,
37,
42,
12,
-11
] |
Brennan, J. L.p.o.m.
Group appeals as of right from a May 2, 1990, order denying its motion to intervene. We reverse.
In 1987, l.p.o.m. hired Midwest Development Company, Inc., as general contractor to construct two quick oil change facilities. Midwest hired Meram Construction, Inc., as a subcontractor to work on the project. Precision Pipe & Supply, Inc., supplied materials, to Meram for this project. L.p.o.m. refused to pay Meram’s outstanding invoice of approximately $23,000, claiming that it incurred an additional expense of approximately $27,000 to correct Meram’s defective work. In order to obtain a waiver of lien, which was required to close on the sale of the two projects, l.p.o.m. entered into an "escrow and hold harmless agreement” with Midwest and American Title Insurance Company. Pursuant to the agreement, l.p.o.m. established an escrow fund for $23,247 to satisfy any judgment Meram might obtain against Midwest arising from labor and materials provided by Meram for the two projects. The escrow agreement required that Midwest assign to l.p.o.m. all defenses and claims it had against Meram in connection with the two projects.
On July 7, 1989, Precision filed the underlying action against Meram for payment for the materi als it supplied. Meram then cross-claimed against Midwest for payment for materials and services provided on several projects, including the two projects of l.p.o.m. Midwest answered Meram’s cross-claim, but asserted no defenses. Meram and Midwest then entered into a partial consent judgment in favor of Meram against Midwest. Meanwhile, Precision obtained a judgment against Meram and obtained an order directing American Title to pay Precision out of the escrow fund. On January 9, 1990, l.p.o.m. first learned that Meram had filed a claim against Midwest. American Title stopped payment on the check to Precision for $24,485.57 because l.p.o.m. had threatened to sue. On January 22, 1990, l.p.o.m. moved to intervene both as a cross-defendant and a garnishee defendant. The court denied the motion, finding that intervention would delay and complicate the proceedings, which had continued for nearly a year with considerable expense to the parties. Further, the court reasoned that l.p.o.m. created the escrow agreement upon which Precision, Meram, Midwest, and American Title had relied in this litigation so that l.p.o.m. was estopped to deny, by intervening in this action, the availability of the escrow funds to satisfy a judgment of Meram against Midwest.
On appeal, l.p.o.m. argues that the court abused its discretion and deprived l.p.o.m. of its right to due process of law by denying its motion to intervene. L.p.o.m. moved for intervention pursuant to MCR 2.209(A)(3), which provides:
(A) Intervention of Right. On timely application a person has a right to intervene in an action:
(3) when the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
The decision whether to grant a motion to intervene is within the court’s discretion. Sumpter v Kosinski, 165 Mich App 784, 802; 419 NW2d 463 (1988). However, the rule should be liberally construed to allow intervention when the applicant’s interest otherwise may be inadequately represented. Id.
In the present case, l.p.o.m.’s application for intervention was timely where it filed a motion to intervene thirteen days after learning of the action. The record reveals that l.p.o.m.’s interests were not adequately protected. Midwest, which had assigned its claims and defenses against Meram to L.P.O.M., failed to notify l.p.o.m. of Meram’s cross-claim against Midwest and raised no affirmative defenses in its answer to Meram. Furthermore, Midwest entered into a partial consent judgment with Meram to the detriment of l.p.o.m.’s interest in the escrowed funds. American Title did not inform l.p.o.m. of the existence of Meram’s cross-claim against Midwest or the existence of garnishment proceedings until January 9, 1990. Finally, it appears that l.p.o.m.’s ability to protect the escrowed funds and the claims and defenses against Meram that Midwest assigned to l.p.o.m. will be impaired where l.p.o.m. seeks to upset the amount of the consent judgment, not merely redistribute or reapportion the amount. Compare Oliver v Dep’t of State Police, 160 Mich App 107, 116; 408 NW2d 436 (1987). It is only through the pending action that l.p.o.m. can assert its defenses against Meram. If l.p.o.m. not allowed to intervene, it will be barred forever from litigat ing its claims against Meram and protecting its escrow fund.
With regard to the trial court’s finding that intervention by l.p.o.m. would delay and complicate the proceedings, we agree that intervention may not be proper where it will have the effect of delaying the action or producing a multifariousness of parties and causes of action. Ferndale School Dist v Royal Oak Twp School Dist No 8, 293 Mich 1; 291 NW 199 (1940). However, we believe that intervention might never be granted if this were strictly construed. Moreover, we note that l.p.o.m.’s intervention should not overcomplicate the proceedings. More importantly, we note that any delay in the case is not the fault of l.p.o.m., but rather Midwest for failing to notify l.p.o.m. of the proceedings. L.p.o.m. responded immediately after being notified of the action and should not suffer as a result of Midwest’s inaction. With respect to the trial court’s finding of estoppel, we note that l.p.o.m. is not denying the existence of the escrow agreement. Instead, l.p.o.m. is merely attempting to assert claims and defenses against Meram that Midwest assigned to l.p.o.m. in the escrow agreement. Accordingly, we find that the trial court abused its discretion in denying l.p.o.m.’s motion to intervene. As a result of our disposition of this issue, it is unnecessary to address l.p.o.m.’s remaining arguments.
Reversed. | [
9,
13,
-42,
25,
1,
47,
-6,
19,
14,
-24,
-13,
29,
-26,
6,
-52,
37,
14,
35,
46,
6,
-16,
-29,
13,
45,
-5,
11,
34,
-42,
19,
28,
-22,
31,
2,
15,
-84,
-58,
28,
31,
0,
-19,
20,
21,
7,
-55,
-16,
-6,
38,
-11,
22,
-22,
-4,
8,
18,
16,
-24,
9,
46,
-18,
-45,
3,
-3,
-10,
12,
40,
-4,
-5,
12,
35,
16,
3,
-18,
-23,
5,
-14,
11,
5,
-10,
5,
-14,
-54,
23,
30,
35,
-48,
-1,
36,
-23,
-3,
-3,
27,
-67,
34,
-43,
-9,
-32,
53,
30,
33,
23,
3,
-36,
28,
-1,
20,
-52,
50,
25,
-32,
-67,
-3,
-50,
-2,
-36,
8,
0,
-16,
-22,
4,
13,
-16,
-3,
-3,
48,
33,
51,
9,
-5,
-27,
-90,
27,
-49,
-17,
-2,
56,
0,
-20,
63,
-32,
61,
36,
34,
24,
-64,
-34,
-54,
-7,
23,
-40,
7,
-6,
-58,
1,
35,
13,
34,
-5,
-2,
-23,
39,
-22,
41,
30,
14,
-4,
-43,
-49,
-27,
-25,
13,
9,
26,
-13,
-17,
-32,
-4,
32,
8,
-3,
-4,
-28,
-13,
21,
-5,
54,
-18,
12,
33,
30,
47,
19,
31,
-16,
-22,
89,
-14,
0,
-9,
-7,
6,
-14,
29,
-74,
-3,
-22,
12,
-17,
-36,
-12,
-22,
-9,
37,
46,
-36,
1,
-58,
17,
26,
16,
-18,
3,
-48,
28,
-41,
-20,
-36,
-42,
14,
-18,
3,
-19,
-49,
-4,
-6,
23,
51,
14,
6,
58,
28,
26,
52,
10,
-38,
-20,
1,
7,
13,
-47,
11,
13,
-43,
23,
17,
35,
-3,
13,
-1,
38,
-38,
5,
52,
17,
-28,
3,
11,
-16,
-56,
-8,
-22,
2,
-28,
-21,
50,
-47,
0,
-11,
-12,
-9,
20,
-26,
-1,
-54,
-26,
1,
-12,
-3,
88,
-10,
-5,
19,
-33,
-4,
-6,
-22,
21,
38,
24,
-65,
-21,
-9,
-35,
-50,
25,
-23,
37,
53,
61,
8,
-2,
30,
0,
-29,
9,
6,
-13,
-66,
-24,
-24,
36,
22,
69,
-25,
1,
65,
18,
-18,
54,
27,
11,
27,
-6,
9,
-22,
-10,
-38,
-36,
43,
8,
-30,
43,
36,
67,
11,
-32,
19,
36,
41,
-7,
6,
31,
5,
14,
-62,
52,
-2,
19,
50,
0,
-65,
84,
-8,
7,
-41,
-27,
39,
29,
4,
46,
-22,
42,
-29,
15,
-26,
-51,
0,
-5,
-34,
-26,
9,
9,
4,
6,
24,
-32,
46,
-54,
-61,
-13,
-43,
38,
-55,
-17,
26,
15,
16,
-51,
-18,
6,
-18,
-16,
21,
-24,
7,
-30,
2,
-21,
23,
8,
-51,
-21,
0,
-72,
-66,
17,
-61,
-4,
24,
-48,
70,
49,
37,
31,
-30,
-29,
72,
-16,
35,
-4,
-18,
-3,
-44,
48,
2,
-88,
26,
20,
-32,
-13,
-90,
-15,
15,
31,
16,
-35,
44,
-29,
45,
-53,
-7,
31,
51,
13,
59,
30,
-37,
10,
-16,
3,
18,
-57,
4,
-32,
37,
-30,
29,
5,
41,
1,
5,
46,
-8,
20,
-6,
-3,
-20,
-3,
15,
0,
7,
-7,
-41,
-2,
20,
-23,
11,
-9,
-40,
18,
-50,
28,
-8,
9,
63,
-36,
-24,
-33,
4,
8,
16,
44,
-12,
-52,
26,
82,
0,
-20,
5,
-22,
-51,
-7,
-13,
-58,
31,
53,
1,
0,
0,
35,
6,
62,
-27,
19,
-11,
-1,
29,
24,
-26,
31,
16,
-27,
16,
-28,
-12,
-30,
-29,
-18,
14,
-9,
-79,
10,
21,
18,
-23,
10,
9,
-17,
19,
10,
6,
-43,
-29,
-63,
24,
38,
-6,
-13,
-9,
15,
-31,
-20,
-48,
37,
33,
22,
54,
-6,
-25,
-45,
0,
-18,
-88,
87,
-8,
27,
-24,
15,
-26,
-9,
-3,
22,
-62,
-20,
-5,
-22,
-32,
14,
34,
59,
36,
-28,
-12,
-22,
-5,
-1,
17,
39,
-50,
3,
6,
21,
-9,
-27,
-37,
-22,
-46,
-23,
-10,
69,
-10,
-24,
-10,
-27,
6,
-13,
-47,
-17,
23,
35,
24,
-2,
-16,
16,
15,
21,
-24,
17,
41,
-9,
-6,
21,
0,
-36,
-21,
57,
63,
-6,
-39,
14,
-16,
11,
16,
-27,
-57,
-48,
-51,
26,
-15,
-39,
53,
43,
-28,
17,
16,
30,
8,
43,
9,
-3,
0,
22,
43,
3,
3,
40,
-29,
-19,
41,
28,
14,
-34,
-17,
15,
43,
-37,
3,
28,
-3,
29,
-47,
28,
-45,
3,
34,
-30,
15,
-43,
50,
-5,
-4,
-11,
-33,
21,
-21,
-29,
12,
5,
-12,
-18,
-11,
-69,
21,
1,
13,
62,
-76,
2,
-8,
-18,
2,
29,
24,
-26,
-1,
53,
50,
31,
28,
7,
-48,
-40,
22,
-12,
16,
53,
19,
46,
10,
20,
-49,
-56,
-36,
37,
-9,
18,
-3,
10,
13,
21,
-89,
-21,
-15,
-54,
-11,
-15,
-8,
2,
-10,
14,
-3,
0,
-18,
-12,
17,
0,
-15,
-56,
-11,
-22,
-7,
-6,
8,
-26,
24,
-35,
61,
-23,
-10,
-49,
33,
-39,
36,
1,
-11,
-32,
-16,
-21,
-10,
6,
55,
14,
-23,
32,
0,
22,
38,
-46,
35,
-15,
1,
-29,
39,
5,
14,
-7,
-26,
20,
8,
46,
0,
-29,
8,
-2,
13,
-19,
-31,
-43,
-39,
-16,
29,
-48,
-24,
-33,
-16,
3,
5,
53,
-3,
30,
-45,
0,
-64,
31,
-53,
-2,
-12,
-7,
-13,
11,
-24,
-2,
18,
-16,
-60,
-14,
-6,
-29,
-23,
37,
-34,
4,
17,
-78,
8,
-18,
21,
-22,
-92,
35,
-9,
-22,
-13,
-56,
24,
42,
21,
50,
-58,
-16,
-28,
-12,
60,
-19,
-47,
59,
-2,
-29,
1,
43,
-8,
-46,
38,
5,
-2,
55,
89,
-28,
0,
6,
47,
3,
4,
5,
3,
44,
-11,
-4,
36,
49,
-3,
30,
-70,
17,
-5,
-31,
1,
-25,
61,
-66,
-8,
5,
-13,
29,
14,
5,
15,
10,
-28,
0,
-29,
21,
31,
0,
25,
-35,
-21,
18,
53,
3,
-29,
42,
-11,
8,
-60,
-7,
12,
12,
-17,
14,
53,
36,
46,
9,
95,
42,
-36,
-12,
-23,
-1,
-106,
40,
33,
9,
-22,
0,
-38,
-13,
59,
-20,
-20,
80,
0,
-20,
-34,
5,
-22,
32,
-10,
2,
-27,
-15,
72,
34,
-24,
-30,
-2,
-9,
17,
0,
-23,
-21,
38,
-24,
-16,
-3,
-26,
13,
22,
-26,
11,
-11,
18,
-8,
32,
-11,
-3,
2,
-17,
34,
-10,
8,
33,
-31,
-21,
22,
15,
6,
-26,
29,
43,
-33,
20,
-5,
71,
-16,
-9,
20,
7,
-7,
-3,
-2,
15,
-45,
32,
-15,
6,
6,
0,
-66,
-16,
34,
-12,
-103,
-62,
91
] |
Doctoroff, C.J.
Plaintiff appeals as of right a circuit court order granting summary disposition to defendant pursuant to MCR 2.116(0(10). Plaintiff contends that the trial court erred in dismissing his claims of false arrest, malicious prosecution, and assault and battery. We affirm in part and reverse in part.
This case arises from an incident that occurred on May 29, 1985, at Tiger Stadium. Plaintiff and his wife attended a baseball game with two friends, Bill Mitchell and Bill McGraw. Two men who sat directly behind the Biases were loud, boisterous, and obnoxious. The men allegedly threw small bits of paper that landed on Rosemary Blase’s sweater and one of the men then removed the paper in an offensive manner.
Plaintiff sought the assistance of an usher. Defendant, who sat next to the two men, told the usher that nothing was going on and the usher left. The two men left sometime before the end of the game.
At the end of the game, Mitchell asked defendant what he thought of the two men. Defendant indicated that he did not think the men had been obnoxious and that he thought Rosemary Blase had been obnoxious and provoked the men. When Rosemary Blase took issue with defendant’s opinion, plaintiff stepped between them. According to defendant, plaintiff stepped on his foot and pushed him into a seat. Plaintiff denies doing this and claims that defendant turned him around, placed him in a chokehold, and announced that he was a police officer. Defendant received assistance from stadium security and plaintiff was taken to the stadium’s police holding room. Plaintiff was charged with disorderly conduct, a misdemeanor.
Plaintiff subsequently appeared before 36th District Court Judge Leon Jenkins. Plaintiff initially pleaded not guilty and requested a jury trial. Judge Jenkins called the prosecutor and defense counsel into his chambers. Judge Jenkins stated his belief that the prosecutor would win, suggested that the parties enter into a plea bargain, and set forth the terms of the plea bargain. Judge Jenkins informed defense counsel that if her client demanded a jury trial and was found guilty, he would receive the maximum jail sentence.
After discussing the plea bargain with defense counsel, plaintiff pleaded guilty of disorderly conduct. Judge Jenkins took the plea under advise ment, ruling that, if plaintiff avoided any felony or misdemeanor convictions for six months, the case would be automatically dismissed. The charges against plaintiff were ultimately dismissed.
Thereafter, plaintiff filed this action against defendant, alleging false arrest, malicious prosecution, assault and battery, and violation of his constitutional rights under 42 USC 1983. The § 1983 claim was later voluntarily dismissed. The trial court granted defendant’s motion for summary disposition of all three claims and dismissed plaintiff’s complaint.
A motion for summary disposition pursuant to MCR 2.116(0(10) may be granted when, except for the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to judgment as a matter of law. A motion for summary disposition under MCR 2.116(0(10) tests the factual support for a claim. The party opposing the motion must, by documentary evidence, set forth specific facts showing that there is a genuine issue for trial. Ewers v Stroh Brewery Co, 178 Mich App 371, 374; 443 NW2d 504 (1989), MCR 2.116(G)(4). The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. McCluskey v Womack, 188 Mich App 465, 469; 470 NW2d 443 (1991). Giving the benefit of reasonable doubt to the opponent, the court must determine whether a record might be developed that would leave open an issue upon which reasonable minds might differ. Amorello v Monsanto Corp, 186 Mich App 324, 330; 463 NW2d 487 (1990).
To prevail on a claim of false arrest, the plaintiff must show that the arrest was not legal, i.e., that it was made without probable cause. Tope v Howe, 179 Mich App 91, 105; 445 NW2d 452 (1989). One element that the plaintiff must prove to succeed on an action for malicious prosecution is the absence of probable cause for the proceedings. Young v Barker, 158 Mich App 709, 721; 405 NW2d 395 (1987).
In granting the motion for summary disposition, the trial court accepted defendant’s position that plaintiffs claims of false arrest and malicious prosecution were invalid as a matter of law because plaintiff’s guilty plea was conclusive proof of probable cause.
It is well established that a conviction, unless procured by fraud or unfair means, is conclusive evidence of probable cause. Moore v Michigan Nat'l Bank, 368 Mich 71, 73; 117 NW2d 105 (1962); Piechowiak v Bissell, 305 Mich 486, 497; 9 NW2d 685 (1943), quoting 1 Cooley on Torts (4th ed), p 397, § 118. The general rule applies to a conviction that results from a guilty plea. Killian v Fuller, 162 Mich App 210, 215; 412 NW2d 698 (1987).
The significant fact about this case is that the proceedings in the 36th District Court did not result in a conviction. The transcript of the guilty plea proceedings clearly indicates that Judge Jenkins did not accept plaintiff’s guilty plea. A guilty plea that is taken under advisement and never accepted does not result in a conviction. Therefore, the trial court erred in granting summary disposition of plaintiff’s claims of false arrest and malicious prosecution on the basis that his guilty plea was conclusive proof of probable cause.
In addition, if the testimony of plaintiff’s defense counsel is believed, plaintiffs guilty plea was procured by unfair means. A guilty plea that is procured by unfair means is not conclusive evidence of probable cause. Moore, supra; Piechowiak, supra. In People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982), the Supreme Court held that a trial judge should not initiate or participate in discussions aimed at reaching a plea agreement and may not engage in negotiation of the bargain itself. The voluntariness of a criminal defendant’s guilty plea is questionable where a trial court exerts or even seems to exert the authority of its position to induce the defendant to plead guilty. Id., p 202. In this case, Judge Jenkins not only initiated the discussion but also set forth the terms of the plea bargain. In rejecting plaintiffs claim that his guilty plea was coerced, the trial court made determinations regarding the credibility of plaintiff and plaintiff’s defense counsel. The trial court may not weigh credibility when deciding a motion for summary disposition. Arbelius v Poletti, 188 Mich App 14, 19; 469 NW2d 436 (1991). The trial court therefore erred in rejecting plaintiff’s claim that his guilty plea was coerced.
We decline to address plaintiffs argument that the arrest was unlawful because he did not exhibit disorderly conduct. Plaintiff did not raise this issue in the trial court, and therefore it cannot be reviewed. Jones v Continental Casualty Co, 186 Mich App 656, 659; 465 NW2d 45 (1991).
Plaintiff also argues that dismissal of his claims of malicious prosecution was improper because there is a question of fact concerning whether the criminal proceedings terminated in his favor. In ruling on the motion for summary disposition, the trial court did not address defendant’s alternative argument that summary disposition of the claim of malicious prosecution was appropriate because the criminal proceeding did not terminate in plaintiffs favor. Defendant argued that the proceedings did not terminate in plaintiffs favor because the case was dismissed pursuant to an agreement of compromise with the plaintiff. Plaintiff argued that, because his guilty plea was coerced, the rule that an action for malicious prosecution is barred where the criminal proceedings were terminated by a compromise that is not indicative of the plaintiffs innocence did not apply.
Although no published opinion in Michigan has addressed this issue, other jurisdictions have held that a settlement or compromise brought about by duress or coercion will not bar an action for malicious prosecution. White v Int’l Text-Book Co, 156 Iowa 210; 136 NW 121 (1912); Schwartz v Schwartz, 206 Wis 420; 240 NW 177 (1932); Robertson v Bell, 57 Wash 2d 505; 358 P2d 149 (1961); Gowin v Heider, 237 Or 266; 386 P2d 1 (1963). We agree with the view adopted in these cases and hold that, if the trier of fact determines that plaintiffs guilty plea was coerced, defendant may not rely on the rule that an action for malicious prosecution is barred where the prior proceeding was terminated by compromise or settlement.
Finally, plaintiff argues that the trial court erred in dismissing his claim of assault and battery. In moving for summary disposition, defendant contended that the arrest was lawful. In his supplemental brief in support of the motion for summary disposition, defendant asserted that the assault and battery claim should be dismissed because he used only that force necessary to effect the arrest. Plaintiff did not offer any response to defendant’s argument in his brief in response or at oral argument. Therefore, summary disposition of plaintiff’s assault and battery claim was appropriate.
The summary disposition of plaintiff’s claims of false arrest and malicious prosecution is reversed. The summary disposition of plaintiff’s claim of assault and battery is affirmed.
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.
We note that the record of the proceedings in the 36th District Court contains the following rubber-stamped entry: "Defendant withdraws former plea of not guilty and enters plea of guilty. Plea accepted.” However, immediately below that is another rubber-stamped entry: "Taken under advisement for 6 months to 2/17/86 if no further contact with law enforcement, case to be dismissed.” Given the trial court’s clear statements on the record at the guilty plea proceeding, we reject any assertion that the first rubber-stamped entry establishes that plaintiffs plea was accepted. | [
8,
-30,
-18,
50,
39,
-55,
-43,
11,
-69,
19,
-16,
-22,
7,
22,
-20,
-10,
-17,
-37,
29,
-34,
-12,
-14,
6,
26,
-15,
11,
33,
52,
-13,
-35,
51,
-44,
-12,
-33,
40,
6,
32,
24,
-21,
54,
20,
-19,
22,
-38,
-34,
-4,
0,
22,
40,
-41,
32,
-13,
-30,
39,
-60,
-37,
3,
-17,
18,
-35,
-20,
8,
-3,
-17,
-11,
-39,
5,
8,
-29,
-20,
32,
-39,
-7,
-2,
-43,
33,
-36,
18,
10,
29,
-1,
26,
44,
37,
13,
-16,
82,
-36,
-4,
18,
-4,
-41,
-8,
-63,
30,
-30,
35,
-20,
14,
6,
-31,
30,
-34,
25,
-4,
46,
52,
-25,
-48,
-33,
-18,
27,
82,
0,
-4,
-27,
33,
-18,
-29,
7,
50,
4,
74,
11,
-1,
38,
23,
-28,
5,
-18,
37,
22,
-8,
0,
1,
1,
31,
4,
50,
0,
21,
13,
-6,
-1,
49,
-10,
9,
55,
1,
18,
-74,
-11,
-21,
56,
2,
4,
3,
-28,
-19,
5,
-30,
-12,
-36,
2,
14,
-15,
7,
-15,
-2,
23,
17,
-21,
18,
44,
-36,
-1,
-15,
9,
-31,
33,
-2,
38,
-19,
7,
-30,
-17,
10,
-10,
-88,
68,
54,
12,
-13,
11,
32,
24,
-7,
13,
13,
-54,
34,
-52,
-35,
-29,
33,
-33,
17,
-7,
-30,
3,
-10,
15,
-11,
-32,
35,
-45,
60,
-13,
-7,
7,
-7,
-63,
5,
27,
-18,
-41,
7,
12,
2,
-14,
53,
58,
-3,
41,
-7,
-75,
31,
-12,
74,
15,
-17,
17,
4,
-13,
-75,
28,
-5,
38,
-30,
18,
11,
23,
3,
9,
-33,
-25,
-4,
13,
-12,
58,
8,
10,
-22,
-21,
-15,
23,
-73,
12,
-8,
-20,
-3,
-20,
20,
12,
22,
-6,
-59,
26,
28,
14,
-6,
36,
60,
10,
-2,
14,
-28,
32,
-21,
1,
8,
-10,
-60,
-64,
62,
7,
16,
20,
-43,
-17,
-11,
39,
51,
-22,
-51,
-18,
6,
-1,
-33,
1,
-17,
-13,
48,
-32,
-4,
-19,
-31,
7,
22,
-54,
-27,
-59,
-11,
-13,
0,
-23,
32,
22,
-22,
-10,
29,
21,
-51,
-46,
0,
34,
-3,
-3,
38,
39,
-42,
32,
-53,
-11,
7,
35,
-21,
20,
-5,
-22,
-42,
-64,
15,
-9,
-27,
-29,
-93,
-48,
-27,
-42,
24,
12,
-31,
-27,
-10,
28,
-9,
15,
4,
42,
3,
30,
-10,
-11,
-27,
11,
17,
-7,
11,
35,
0,
-14,
33,
-18,
64,
-43,
-46,
-15,
12,
17,
-34,
0,
27,
-6,
29,
66,
-9,
-7,
28,
36,
41,
-40,
29,
23,
-42,
-4,
36,
-20,
-7,
-28,
24,
22,
46,
32,
6,
-9,
-2,
57,
0,
17,
33,
0,
38,
16,
65,
-16,
-17,
-48,
53,
-8,
-20,
-8,
5,
-19,
-2,
20,
-42,
29,
-17,
-2,
-14,
-55,
23,
1,
14,
-1,
16,
-25,
-13,
25,
40,
60,
-12,
43,
-26,
-1,
19,
9,
-27,
-3,
28,
-24,
-33,
6,
52,
-21,
-23,
15,
-41,
14,
20,
-2,
47,
15,
-37,
55,
1,
10,
-8,
18,
34,
6,
54,
-21,
-10,
-10,
-1,
40,
29,
-28,
-10,
18,
4,
-6,
22,
34,
-27,
27,
-65,
5,
-6,
-8,
-54,
36,
69,
-17,
-12,
10,
8,
0,
-18,
18,
-39,
-16,
-17,
-18,
-13,
10,
-19,
34,
10,
-17,
6,
-13,
-28,
-17,
-18,
-31,
-12,
20,
37,
-35,
8,
-69,
61,
-1,
-50,
-51,
20,
-6,
-19,
-4,
-2,
39,
11,
-18,
5,
-29,
66,
-1,
12,
33,
18,
-29,
-50,
-3,
-68,
-35,
49,
-18,
-19,
5,
11,
45,
14,
-4,
31,
-8,
73,
0,
28,
40,
-8,
-27,
-5,
-1,
-4,
29,
-15,
57,
4,
-5,
34,
22,
9,
1,
65,
1,
0,
-11,
-41,
13,
8,
-63,
33,
24,
-21,
-29,
-1,
50,
63,
-14,
-58,
-2,
42,
9,
-8,
-11,
-30,
14,
8,
15,
-56,
13,
14,
22,
-8,
-24,
-34,
1,
-16,
-9,
1,
-22,
-1,
-5,
-35,
-10,
-44,
-84,
-1,
-35,
24,
24,
22,
4,
-49,
47,
-39,
16,
2,
77,
-52,
-14,
43,
42,
-13,
21,
25,
-24,
-3,
26,
-17,
32,
0,
-74,
-71,
19,
-39,
-25,
3,
-4,
-50,
-88,
-41,
-5,
68,
-33,
21,
-42,
34,
44,
12,
25,
-18,
9,
7,
52,
-27,
-9,
23,
-25,
26,
-62,
-5,
21,
1,
25,
-27,
0,
2,
-1,
57,
-6,
63,
-21,
-9,
-64,
-11,
0,
-33,
-2,
8,
-6,
-8,
-10,
16,
-35,
-26,
-63,
-60,
47,
-28,
-36,
16,
9,
5,
-56,
-22,
15,
26,
-16,
21,
-11,
-20,
19,
-1,
-18,
52,
-29,
13,
36,
0,
34,
-12,
77,
-52,
-43,
-62,
25,
-18,
-45,
-21,
-1,
-10,
-51,
-13,
-25,
60,
23,
40,
9,
8,
45,
1,
31,
18,
-32,
-70,
-9,
-2,
18,
-21,
-58,
-2,
41,
3,
-7,
40,
8,
-51,
-50,
39,
-8,
-69,
-33,
-27,
-28,
20,
-30,
-17,
36,
-7,
23,
-11,
10,
37,
-32,
13,
-31,
-19,
-22,
-58,
-51,
-3,
-30,
-27,
9,
52,
-27,
23,
-44,
19,
-12,
-21,
-45,
15,
-28,
29,
-25,
8,
42,
0,
-23,
-16,
22,
0,
-15,
-17,
6,
14,
-15,
-47,
32,
-18,
-57,
0,
-60,
1,
-28,
15,
8,
38,
71,
-54,
-26,
24,
-31,
-14,
39,
1,
24,
-7,
51,
81,
7,
2,
-11,
-6,
-11,
62,
4,
13,
28,
-24,
-8,
1,
-7,
20,
-23,
28,
37,
-8,
-33,
-8,
-11,
-1,
-25,
59,
-3,
6,
-27,
49,
25,
-11,
-23,
-5,
-55,
-31,
-15,
-39,
6,
8,
-47,
4,
2,
-53,
-25,
-50,
-12,
0,
23,
2,
-4,
-25,
4,
9,
6,
51,
-15,
-11,
3,
46,
4,
24,
1,
-13,
6,
-35,
15,
-4,
-58,
77,
29,
-7,
11,
-10,
31,
57,
-40,
28,
73,
15,
-16,
-11,
3,
26,
-66,
-10,
28,
-37,
12,
0,
-30,
-7,
18,
54,
0,
-8,
-23,
8,
-5,
-1,
24,
-24,
30,
-31,
-31,
25,
54,
-69,
29,
-16,
-9,
-22,
-6,
-18,
33,
-13,
33,
9,
13,
-19,
25,
38,
48,
4,
35,
-1,
-2,
-7,
-6,
12,
-21,
-7,
-29,
4,
-18,
-1,
29,
-9,
9,
-16,
-12,
-33,
-23,
-43,
-4,
-7,
36,
-40,
22,
16,
-8,
2,
2,
-33,
-32,
-34,
40,
7,
-6,
61,
14,
3,
29,
76,
60,
2,
9,
34,
43,
-5,
-15,
-33,
1,
-3,
1,
-33,
21,
-18,
-7,
-44,
30
] |
Mackenzie, P.J.
Plaintiff’s ward was injured in a 1985 automobile accident. On June 27, 1986, plaintiff filed suit in the Court of Claims against defendant. Following a bench trial, a judgment in plaintiff’s favor was entered in the amount of $887,154, plus postjudgment interest. The court subsequently entered an order assessing prejudgment interest from the date of the filing of the complaint. Defendant appealed the assessment of prejudgment interest. This Court affirmed. Niggeling v Dep’t of Transportation, 183 Mich App 770; 455 NW2d 415 (1990).
Defendant paid plaintiff the judgment amount of $887,154, on November 19, 1988. On November 23, 1988, defendant paid plaintiff $32,666.71 in post-judgment interest, representing twelve percent simple interest on the judgment amount from the date of entry through the date of payment of the principal amount. On July 18, 1990, after this Court affirmed the award of prejudgment interest, defendant paid plaintiff $234,472.79. Plaintiff claimed additional interest of $63,087.22, plus $20.74 per day, and filed a motion to compel payment of interest. The trial court agreed and entered an order assessing interest based on the following computations submitted by plaintiff:
1) 6/27/86 to 6/27/87: Principal ($887,154.00) and interest at 12% ($106,458.48) equals $993,612.48.
2) 6/27/87 to 6/27/88: Principal ($993,612.48) and interest at 12% ($119,233.49) equals $1,112,845.90.
3) 6/27/88 to 11/19/88: Principal ($1,112,845.90) and interest for 145 days at 12% ($53,050.73) equals $1,165,896.60. Subtract payment on 11/19/ 88 of $887,154.00 to equal outstanding amount of $278,742.60. ($887,154.00 paid on 11/19/88).
4) 11/19/88 to 11/23/88: Principal ($278,742.60) and interest for 4 days at 12% ($366.56) equals $279,109.16. Subtract payment of post-judgment interest of $32,666.71 to equal outstanding amount of $246,442.45. ($32,666.71 paid on 11/23/88).
5) 11/23/88 to 6/27/89: Principal ($246,442.45) and interest for 216 days at 12% ($17,500.32) equals $263,943.23.
6) 6/27/89 to 6/27/90: Principal ($263,943.23) and interest at 12% ($31,673.18) equals $295,616.41.
7) 6/27/90 to 7/18/90: Interest accumulated at a daily rate of $97.18.
8) 6/27/90 to 7/18/90: Principal ($295,616.41) and interest for 20 days at 12% ($1,943.60) equals $297,560.01. Subtract payment of $234,472.79 to equal outstanding amount of $63,087.22.
9) 7/18/90 to present: Interest accumulates at a daily rate of $20.74 until payment in full.
Defendant now appeals as of right. We affirm.
In Niggeling, supra, this Court held that prejudgment interest should be awarded under MCL 600.6455(5); MSA 27A.6455(5), which provides:
Except as otherwise provided in subsection (3), if a bona fide, reasonable written offer of settlement in a civil action based on tort is not made by the party against whom the judgment is subsequently rendered, or is made and that offer is not filed with the court, the court shall order that interest be calculated from the date of filing the complaint to the date of satisfaction of the judgment.
There is no dispute concerning the rate of interest, twelve percent per annum, or that it is to be compounded annually. See MCL 600.6455(1); MSA 27A.6455(1); Niggeling, supra. The calculations adopted by the trial court assume that, because of compounding, a balance was due after the two payments made by defendant in November 1988, and that the balance continued to accrue interest at the statutory rate of twelve percent compounded annually. Defendant claims that this method of calculation was improper. We disagree.
Compound interest means interest on interest, in that accrued interest is added periodically to the principal, and interest is computed upon the new principal thus formed. Ruloff v Hazen, 124 Mich 570, 572-573; 83 NW 370 (1900); 45 Am Jur 2d, Interest & Usury, § 76, p 69. The difference between simple and compound interest is that simple interest does not merge with the principal and thus does not become part of the base on which future interest is calculated. Gage v Ford Motor Co, 423 Mich 250, 259; 377 NW2d 709 (1985); Stewart v Isbell, 155 Mich App 65, 79; 399 NW2d 440 (1986).
Partial payment stops the accrual of interest only with respect to the portion paid, not to the entire amount determined to be due. Cates v Moyses, 57 Mich App 405, 412; 226 NW2d 106 (1975), modified on other grounds 394 Mich 762 (1975). Tender of only that portion for which a party believes itself to be liable does not toll the accrual of interest on the entire liability later determined to be due. Id.
Michigan follows the Massachusetts or United States rule in computing interest: a partial payment is applied first to interest then due; if the payment exceeds the interest, the surplus goes toward discharging the principal, and the subsequent interest is to be computed on the balance of the principal remaining due. Wallace v Glaser, 82 Mich 190, 191; 46 NW 227 (1890); Krisfalusi v Krisfalusi, 178 Mich App 458, 463; 444 NW2d 196 (1989), rev’d on other grounds 434 Mich 916 (1990).
Applying these principles to this case, we conclude that the Court of Claims properly adopted plaintiffs computation of interest. Plaintiffs calculation adds the interest to the judgment amount annually on June 27, 1987, and June 27, 1988. It continues to add simple interest at a per diem rate until the date of defendant’s first partial payment, November 19, 1988, and deducts that payment from the total then due. The calculation continues in this fashion, adding interest to the principal annually, and setting off the remaining payment.
Defendant characterizes the payment made on November 19, 1988, as payment of the principal. The amount paid corresponds to the amount of the damage award; by the time that payment was made, however, the "principal” included the interest added annually. Further, by the time that payment was made, simple interest had accumulated from June 27, 1988, to November 19, 1988, the date of the payment. Simple interest does not become part of the judgment. Gage, supra, p 259; Schwartz v Piper Aircraft Corp, 90 Mich App 324, 327; 282 NW2d 306 (1979). Compound interest, however, merges with the principal; there is no distinction between the original principal and added interest.
Defendant argues that it is unfair for plaintiff to have had use of the funds, and for her to collect interest on the funds from defendant as well. Plaintiff has not computed interest on the portion of the judgment paid by defendant. The calculations adopted by the lower court credit the payments made by defendant and continue to calculate interest on the remaining balance. There is no accrual of interest on funds previously paid.
Defendant cites authority suggesting that it could have stopped the interest from accumulating further by depositing the disputed sum with the clerk of the court. MCR 2.620(2). Coughlin v Dean, 174 Mich App 346, 354; 435 NW2d 792 (1989). Defendant chose not to do that. Instead, it tendered payment only of the undisputed sums. Those payments stopped the accrual of interest only with respect to the amount paid, not with respect to the entire amount later found to be due. Cates, supra.
Finally, we reject defendant’s suggestion that no interest accrues between anniversary dates. Defendant’s expert assumed accrual of interest at the annual rate of twelve percent simple interest, figured on a per diem basis, at several points in defendant’s proposed calculations. Moreover, the statute requires that interest under subsection 5 "be calculated from the date of filing the complaint to the date of satisfaction of the judgment.” MCL 600.6455(5); MSA 27A.6455(5). This suggests that interest accrues to the satisfaction date, not to the last previous anniversary of the filing of the complaint.
It appears that defendant’s entire argument hinges on the mistaken assumption that only the amount of damages awarded by the court constituted the judgment principal. The Legislature specified compound interest; that interest became an integral part of the principal upon being added at annual intervals. Defendant’s payments constituted partial payment, applied first to accrued interest and then to reduction of principal. Having chosen not to deposit the disputed sum with the clerk of the court, defendant remains liable for the interest that has accrued since its last payment.
Affirmed. | [
-50,
58,
-1,
-23,
-9,
-17,
53,
-37,
-17,
44,
42,
-33,
44,
26,
19,
-21,
-6,
-76,
-12,
-44,
-35,
-31,
-26,
38,
6,
67,
46,
-57,
28,
7,
5,
-30,
-38,
16,
-66,
-36,
-21,
-2,
34,
20,
68,
-38,
10,
-9,
-44,
-30,
-17,
-48,
32,
-28,
1,
2,
19,
-6,
-22,
49,
38,
-18,
-41,
49,
-13,
-6,
24,
-14,
12,
16,
-20,
8,
-8,
61,
-89,
2,
-14,
-10,
-48,
-16,
-36,
17,
-35,
-22,
-14,
-1,
-1,
75,
5,
-24,
-26,
-28,
52,
-33,
-21,
50,
-11,
17,
3,
-7,
-37,
18,
29,
52,
26,
-24,
-14,
27,
-22,
54,
-45,
-81,
-25,
-9,
26,
31,
47,
-17,
-16,
2,
-35,
32,
31,
-12,
38,
-32,
-8,
3,
1,
18,
-9,
20,
-47,
33,
13,
16,
-30,
25,
-27,
-30,
6,
-28,
-42,
2,
36,
-50,
-35,
-18,
0,
36,
6,
-65,
-17,
18,
-31,
20,
5,
52,
14,
-20,
-30,
0,
25,
-69,
38,
-30,
35,
17,
2,
-25,
-4,
18,
44,
-77,
21,
-3,
17,
-47,
33,
65,
23,
-24,
8,
-13,
-49,
-6,
-6,
-25,
-17,
-17,
-3,
-4,
-14,
-30,
-7,
-18,
3,
27,
-4,
-22,
22,
8,
-10,
23,
25,
-91,
50,
2,
-26,
0,
0,
-25,
29,
13,
-13,
-21,
-1,
-37,
-12,
7,
49,
-10,
-5,
-10,
22,
26,
8,
-28,
-12,
-45,
-27,
-16,
-2,
10,
-22,
-21,
18,
49,
4,
-7,
14,
20,
23,
-6,
-18,
4,
-16,
-34,
-37,
29,
-37,
-44,
1,
16,
7,
30,
-54,
27,
0,
-6,
21,
16,
4,
10,
-8,
36,
2,
13,
-46,
-10,
20,
21,
-20,
-12,
33,
-23,
-15,
0,
-24,
-71,
-39,
-22,
4,
11,
9,
13,
-18,
-30,
-11,
23,
-6,
8,
-12,
3,
28,
-30,
43,
-31,
31,
23,
54,
-3,
0,
-3,
-23,
-37,
30,
65,
7,
-12,
5,
35,
-52,
-5,
-16,
-52,
0,
-45,
59,
-29,
-15,
19,
47,
-24,
-17,
36,
-35,
8,
46,
25,
47,
-48,
-43,
0,
-60,
16,
-15,
41,
40,
-50,
1,
35,
19,
12,
78,
45,
14,
16,
18,
38,
-7,
-21,
-12,
27,
-21,
-24,
0,
11,
-29,
-4,
27,
-9,
-7,
40,
58,
-13,
35,
-43,
29,
-11,
2,
-25,
-43,
36,
-24,
31,
-4,
-22,
-16,
-41,
12,
-5,
-39,
90,
17,
-15,
-16,
9,
46,
-16,
-66,
-35,
-23,
-44,
-17,
15,
-12,
2,
-15,
5,
-13,
-24,
-23,
-10,
7,
20,
34,
-10,
5,
-53,
39,
-27,
-6,
8,
-11,
-40,
-5,
-15,
-23,
35,
43,
9,
-26,
-34,
42,
30,
-6,
-32,
52,
-8,
53,
-6,
-24,
-5,
-12,
21,
6,
-24,
54,
-17,
-43,
-25,
-58,
10,
42,
9,
-23,
-19,
34,
-51,
-18,
-16,
44,
19,
55,
-49,
24,
-11,
-16,
4,
49,
-34,
-53,
-33,
3,
-8,
-14,
43,
19,
-17,
10,
30,
21,
-27,
-3,
-14,
8,
25,
23,
8,
-24,
-14,
1,
7,
-20,
-58,
-77,
-49,
11,
-2,
-5,
-7,
-61,
11,
10,
-4,
-34,
2,
-14,
-14,
-47,
29,
0,
-5,
-36,
-17,
24,
1,
30,
-33,
-14,
-51,
0,
-14,
-26,
15,
35,
18,
-11,
5,
29,
-2,
37,
73,
21,
26,
-17,
19,
-30,
49,
23,
-7,
-33,
-7,
17,
-39,
18,
28,
-29,
7,
-16,
-14,
11,
-6,
13,
29,
47,
22,
15,
1,
-13,
1,
17,
13,
-27,
-56,
62,
18,
-35,
2,
81,
-1,
26,
-56,
-2,
87,
0,
22,
35,
-2,
21,
-9,
-13,
-55,
-29,
14,
7,
0,
-43,
12,
-12,
-33,
-59,
-30,
-22,
51,
21,
-12,
-7,
0,
91,
7,
10,
50,
20,
-13,
-19,
51,
48,
-10,
14,
8,
31,
1,
26,
19,
-49,
18,
-16,
-60,
-23,
22,
0,
-18,
63,
35,
33,
22,
20,
-29,
-10,
-21,
32,
1,
-22,
-27,
13,
6,
-44,
2,
-6,
-32,
-45,
14,
18,
-35,
-39,
19,
-22,
20,
1,
40,
-25,
-26,
-12,
-10,
38,
4,
-33,
-8,
-16,
-17,
-25,
-46,
-9,
53,
9,
4,
14,
2,
8,
-12,
-17,
-32,
-7,
37,
-14,
-5,
-44,
-28,
-6,
-58,
13,
10,
19,
-51,
5,
-34,
53,
51,
-11,
48,
37,
13,
-59,
-10,
45,
24,
-49,
-9,
-37,
30,
58,
-24,
-23,
-15,
-65,
-30,
-1,
-20,
15,
41,
-12,
-19,
-1,
-5,
-27,
-24,
-15,
13,
40,
63,
15,
27,
15,
25,
-16,
-15,
-30,
-4,
51,
0,
-53,
-29,
-8,
2,
-5,
-29,
10,
-12,
23,
0,
-9,
21,
39,
37,
-11,
8,
-14,
17,
2,
-17,
-35,
5,
28,
-4,
-6,
-36,
-11,
0,
-1,
49,
1,
27,
-32,
17,
50,
5,
-28,
-7,
10,
-8,
33,
9,
-31,
-6,
14,
52,
-19,
-1,
28,
-8,
5,
-13,
-28,
-11,
31,
-5,
-13,
31,
19,
-6,
-7,
-6,
2,
10,
31,
14,
-17,
-39,
6,
-18,
-30,
62,
-18,
-26,
11,
-27,
1,
-5,
48,
14,
69,
-38,
-1,
42,
11,
-6,
-2,
43,
3,
0,
-23,
21,
-22,
-42,
-12,
0,
49,
60,
7,
-1,
-44,
-11,
6,
78,
-35,
16,
10,
31,
13,
-48,
3,
42,
-31,
-3,
5,
-29,
-96,
37,
33,
11,
-21,
11,
21,
-30,
-77,
15,
0,
47,
16,
33,
6,
-38,
-25,
-31,
-28,
0,
-14,
-22,
-30,
30,
-59,
43,
-5,
-20,
-8,
40,
56,
21,
-24,
5,
-9,
-9,
14,
39,
-72,
33,
5,
45,
14,
-20,
41,
-11,
-9,
22,
-23,
20,
-38,
18,
-22,
42,
-42,
39,
-1,
10,
14,
-55,
6,
-61,
-81,
2,
19,
-33,
16,
22,
-14,
-14,
-2,
42,
-5,
13,
-36,
25,
15,
2,
25,
11,
-2,
19,
34,
-6,
2,
54,
6,
-15,
-14,
-43,
-7,
9,
56,
10,
-20,
16,
-46,
6,
4,
19,
2,
3,
-20,
-34,
16,
-2,
3,
-3,
-10,
72,
-13,
-31,
10,
45,
26,
37,
17,
-8,
0,
54,
33,
-54,
6,
-17,
10,
-12,
11,
34,
35,
-10,
64,
-34,
-11,
-18,
-40,
8,
-37,
-11,
-50,
-74,
13,
-35,
29,
-10,
-41,
-48,
42,
-27,
5,
0,
-8,
16,
-24,
18,
-7,
40,
22,
-23,
-15,
16,
8,
-27,
58,
-16,
8,
-30,
-30,
-16,
37,
10,
-6,
-62,
23,
41,
-11,
14,
5,
52,
-8,
-24,
19,
70,
1,
-21,
-21,
15,
33,
-10,
7,
14
] |
Brennan, J.
Plaintiff appeals as of right from an August 1, 1989, order of dismissal and a June 20, 1990, order denying plaintiff’s motion to set aside the order of dismissal. We affirm.
Plaintiff’s suit against defendant was dismissed after her counsel failed to appear for a pretrial confer ence. Instead of taking any action with regard to the order of dismissal, plaintiffs counsel filed a second lawsuit. Plaintiff’s counsel again failed to appear at the scheduled pretrial conference, and an order of dismissal was entered. Rather than dealing with that order of dismissal, plaintiffs counsel filed a third lawsuit, which was dismissed with prejudice by the trial court upon defendant’s motion. Plaintiffs counsel then moved to have the original order of dismissal set aside. The motion was denied. It is from the order denying plaintiff’s motion to set aside the order of dismissal that plaintiff appeals.
On appeal, plaintiff contends that the trial court abused its discretion in denying her motion to set aside the order of dismissal. However, even if we were to find an abuse of discretion, plaintiffs claim would still be barred by res judicata by plaintiffs third complaint, which was dismissed with prejudice upon defendant’s motion. The doctrine of res judicata bars relitigation of a claim where the same parties have fully litigated the claim and a final judgment has resulted. Ward v Detroit Automobile Inter-Ins Exchange, 115 Mich App 30, 37; 320 NW2d 280 (1982). In order for the doctrine to apply, the former action must have been decided on the merits, the same matter contested in the second action must have been decided in the first, and the actions must be between the same two parties or their privies. Id.
It is clear that the actions in the present case involved the same matters and the same parties. The only question is whether the actions were adjudicated on the merits. We find that plaintiffs third complaint was adjudicated on the merits. In Carter v Southeastern Michigan Transportation Authority, 135 Mich App 261, 264-265; 351 NW2d 920 (1984), a federal court dismissed plaintiff James Carter’s case because of his failure to obey the orders of the court to attend the final pretrial conference and for lack of progress. James Carter and his wife then brought an action based on the same matter in the circuit court against the same party. The circuit court granted accelerated judgment for the defendant, finding that the plaintiffs’ claim was barred by res judicata by the federal action. This Court affirmed, stating:
[T]n Michigan practice, an involuntary dismissal due to plaintiff’s failure to comply with the court rules or any order of the court will operate as an adjudication on the merits unless the order of dismissal provides otherwise. GCR1963,504.2. While a ministerial "no-progress” dismissal might not constitute an adjudication on the merits, a dismissal on motion of the defendant and by order of the court, after judicial consideration, would most likely be considered an adjudication on the merits. [Id. at 265.]
See also Wilson v Knight-Ridder Newspapers, Inc, 190 Mich App 277, 279; 475 NW2d 388 (1991). In the present case, the third time plaintiff’s case was dismissed was upon defendant’s motion and after consideration by the court. Accordingly, we find that plaintiff’s case was barred by res judicata.
Affirmed.
In a supplemental brief plaintiff has cited an unpublished opinion of this Court released April 5,1991. Plaintiff claims we are bound by that opinion under Administrative Order 1990-6. Plaintiff is clearly wrong. Only published opinions are contemplated.
The plaintiff was appearing in propria persona.
3 Now MCR2.504(BX3), which provides:
Unless the court otherwise specifies in its order for dismissal, a dismissal under this subrule or a dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for failure to join a party under MCR 2.205, operates as an adjudication on the merits. | [
-43,
-5,
5,
33,
48,
6,
-44,
0,
-31,
23,
-52,
-2,
-12,
-27,
29,
-34,
-4,
8,
9,
-22,
-5,
12,
-14,
-24,
28,
4,
5,
-41,
8,
5,
5,
-41,
10,
26,
8,
-54,
10,
16,
-8,
24,
35,
13,
7,
-11,
-31,
-35,
24,
29,
44,
-44,
26,
9,
-61,
6,
-32,
-24,
-2,
-15,
19,
14,
-8,
53,
-11,
-1,
11,
50,
14,
-7,
-39,
26,
-34,
5,
21,
27,
-6,
-45,
-17,
-51,
50,
18,
28,
4,
13,
22,
50,
56,
4,
13,
-32,
18,
-12,
39,
-64,
-35,
6,
12,
0,
-27,
45,
20,
9,
45,
-27,
-8,
1,
-8,
48,
-20,
-39,
-5,
82,
43,
1,
-33,
42,
-51,
-18,
-23,
12,
31,
17,
-16,
32,
85,
5,
24,
-18,
2,
8,
52,
-28,
41,
9,
-16,
34,
10,
-14,
10,
-9,
-28,
-23,
2,
-8,
-5,
-9,
0,
-6,
13,
-4,
-8,
21,
75,
-41,
35,
-35,
-32,
43,
-30,
20,
39,
18,
37,
-17,
-11,
-3,
5,
0,
-35,
66,
-18,
48,
-19,
-5,
-6,
1,
28,
-56,
-23,
-24,
-10,
6,
17,
25,
-25,
4,
-52,
2,
-23,
-6,
10,
3,
-31,
12,
63,
47,
27,
35,
-7,
22,
-6,
18,
-48,
-9,
-23,
-24,
-5,
41,
-99,
24,
-15,
-34,
-7,
-33,
-55,
-30,
-35,
85,
-49,
-3,
12,
6,
-9,
34,
-12,
-18,
-18,
-3,
23,
-7,
27,
43,
46,
-2,
29,
-2,
-47,
-19,
48,
62,
-23,
34,
30,
36,
-33,
9,
56,
1,
11,
11,
-9,
43,
-10,
23,
18,
6,
-72,
-46,
-20,
-26,
-17,
-2,
52,
-34,
-22,
-35,
38,
6,
47,
19,
12,
-5,
-2,
76,
33,
-9,
-35,
-20,
-9,
30,
34,
-68,
-6,
-44,
-33,
-46,
19,
23,
-20,
11,
11,
-54,
-31,
-18,
43,
-21,
37,
4,
-6,
-34,
-15,
-38,
-22,
-10,
19,
-12,
0,
-24,
-20,
2,
-4,
28,
46,
41,
0,
51,
-11,
-83,
9,
30,
-47,
8,
-33,
3,
6,
-20,
-28,
-20,
21,
-22,
-2,
15,
17,
0,
-3,
31,
-20,
11,
10,
-21,
72,
-1,
10,
-7,
-4,
-10,
-22,
28,
-52,
39,
12,
29,
0,
11,
-4,
46,
-48,
27,
-37,
-41,
24,
10,
2,
13,
-31,
62,
40,
0,
24,
-22,
52,
-46,
10,
-4,
-43,
-61,
-27,
-36,
26,
0,
65,
-30,
-82,
42,
21,
17,
12,
-55,
39,
-33,
33,
-1,
-25,
57,
2,
16,
30,
0,
25,
-13,
82,
30,
27,
14,
33,
-51,
-9,
0,
-30,
8,
49,
5,
-29,
3,
46,
-5,
-25,
28,
22,
32,
0,
33,
-7,
0,
13,
-9,
29,
24,
-36,
18,
22,
-16,
5,
0,
-36,
37,
93,
-4,
-31,
-25,
-14,
20,
-17,
-9,
-18,
-1,
-11,
-9,
-32,
-8,
36,
8,
8,
-16,
-28,
0,
-35,
-10,
-3,
-1,
-28,
65,
-45,
-25,
28,
-16,
-10,
-24,
37,
17,
24,
28,
8,
-18,
33,
-43,
26,
23,
5,
-2,
12,
10,
49,
16,
-34,
-18,
30,
35,
-52,
19,
-51,
-10,
-15,
11,
-15,
-45,
-7,
9,
0,
-37,
-24,
14,
0,
-25,
40,
26,
-45,
25,
-66,
-40,
14,
6,
-34,
62,
-5,
-15,
6,
34,
7,
8,
38,
-7,
-31,
-6,
-18,
-57,
-27,
-47,
-20,
40,
-39,
88,
41,
79,
-54,
-15,
86,
-43,
1,
-22,
13,
-10,
40,
9,
19,
-5,
-17,
-10,
2,
69,
-14,
66,
-26,
-5,
-18,
-7,
20,
-36,
-33,
-15,
-49,
28,
-29,
30,
45,
-12,
0,
-17,
-30,
37,
32,
-4,
28,
40,
5,
0,
38,
43,
23,
-40,
-23,
-61,
21,
-55,
-38,
13,
-49,
67,
21,
11,
-10,
-24,
-39,
17,
-12,
37,
-6,
-10,
-31,
56,
-12,
77,
12,
-70,
-7,
-44,
-41,
23,
44,
6,
0,
50,
0,
-88,
-34,
-23,
-18,
-8,
37,
34,
49,
-15,
-13,
-10,
-20,
31,
-41,
57,
6,
24,
9,
25,
-30,
-6,
-12,
-22,
14,
-51,
-16,
13,
-9,
-10,
64,
11,
-41,
7,
-26,
-24,
-22,
-11,
-8,
-32,
65,
3,
-35,
0,
-40,
12,
-4,
12,
-38,
-27,
-24,
0,
-2,
-17,
-2,
5,
22,
-13,
9,
26,
7,
52,
22,
-9,
4,
2,
31,
-65,
54,
-33,
-18,
-40,
-27,
-30,
29,
0,
65,
24,
7,
12,
40,
-14,
-9,
-18,
-32,
15,
-21,
-27,
-58,
2,
-22,
65,
19,
-11,
-29,
-14,
3,
32,
-27,
-37,
30,
16,
-29,
47,
24,
-10,
-2,
-11,
-5,
26,
39,
30,
45,
-14,
67,
-14,
4,
27,
-98,
-29,
3,
32,
13,
-79,
21,
12,
-20,
-32,
16,
0,
-14,
27,
-65,
-33,
50,
32,
8,
20,
-6,
25,
-43,
18,
30,
-27,
20,
31,
-46,
-25,
2,
23,
-10,
-33,
0,
11,
-6,
60,
1,
5,
21,
-32,
-53,
33,
-20,
-51,
10,
0,
-15,
25,
-15,
-48,
-18,
15,
40,
-8,
-35,
36,
-14,
-81,
18,
27,
-43,
-29,
-16,
35,
-13,
33,
-51,
-44,
-34,
3,
4,
42,
16,
-28,
18,
-43,
38,
-20,
-39,
21,
-16,
-23,
-31,
-10,
-18,
1,
-26,
-31,
-58,
-27,
34,
-31,
8,
-4,
-44,
10,
-57,
30,
15,
33,
-56,
9,
0,
-43,
9,
44,
40,
-19,
-9,
-45,
-17,
-13,
42,
72,
31,
-11,
11,
18,
0,
-11,
8,
-22,
34,
-29,
-25,
-50,
-24,
20,
-24,
3,
39,
-6,
-47,
0,
20,
-49,
-12,
62,
22,
42,
7,
23,
4,
6,
-8,
15,
-30,
3,
-7,
13,
-49,
-11,
-3,
-33,
-12,
20,
-31,
-42,
11,
42,
33,
32,
-9,
-25,
26,
-13,
-4,
57,
3,
-16,
-15,
50,
-31,
46,
-38,
-44,
14,
-40,
-4,
1,
11,
47,
-15,
20,
-11,
-25,
-13,
53,
16,
-11,
51,
-24,
-56,
-25,
-10,
12,
0,
-2,
12,
23,
-32,
-29,
-21,
0,
-5,
-16,
-29,
-51,
-7,
-37,
-55,
-35,
-24,
-4,
-66,
-42,
-20,
-4,
42,
-56,
-77,
-13,
-18,
-13,
-33,
27,
-28,
0,
-21,
5,
-6,
-10,
18,
27,
-6,
16,
-2,
-4,
17,
-3,
-8,
4,
-19,
-24,
-3,
0,
-18,
-53,
49,
-2,
-9,
40,
-23,
55,
9,
11,
17,
-18,
-48,
0,
20,
-16,
-12,
5,
51,
-15,
-30,
21,
28,
-9,
58,
37,
-1,
13,
-14,
49,
4,
-13,
45,
0,
-17,
22,
39,
-8,
22,
-52,
-33,
-17,
-64,
0,
53,
16,
-1
] |
Murphy, P.J.
Defendant appeals by leave granted from an order of the circuit court requiring him to pay child support for plaintiffs brother’s children who resided with plaintiff and defendant before the parties’ divorce proceedings. We vacate the order of the circuit court.
Defendant and plaintiff were married on July 20, 1973. The parties have one child, whose support is not at issue in this appeal.
In early 1983, plaintiff and her family determined that the two minor children of plaintiffs brother, Mitchell Sproessig, and his wife, Michelle Sproessig, who were living in Texas, were being neglected. Plaintiff and defendant agreed to care for the two Sproessig children with the understanding that plaintiff and defendant would keep the children until the Sproessigs were willing and able to care for them. Plaintiff and defendant did not adopt the Sproessig children, although defendant offered to do so. The Sproessigs’ parental rights were not terminated, and there was no court proceeding regarding the legal guardianship of the children.
The Sproessigs, however, signed a document entitled "Guardian Designation” that provided, in pertinent part:
Mitchell Dean Sproessig and Michelle D. Sproes sig, each individually and together, herby designate Sharon Ann Tilley and David Miles Tilley as the guardians of the above-referenced children. The purpose of the guardianship designation is so that the children can live with Sharon and David Tilley at their residence in Michigan and so that the Tilleys can properly care for and provide for the children. It is the belief of Mitchell Sproessig and Michelle Sproessig that this affidavit is executed in the best interests of the children.
The Sproessigs also signed a "Medical and Dental Consent and Authorization” document, which authorized plaintiff and defendant to consent to medical treatment for the children. An attorney for the plaintiff and defendant drafted the documents, which were then executed by the Sproessigs in Texas. The documents were essentially affidavits and were not authorized by any court. Plaintiff and defendant did not sign the documents.
Defendant provided the total financial support for the family, while plaintiff quit her job to care for the parties’ child as well as the two Sproessig children. Mitchell Sproessig maintained contact with his children, although Michelle Sproessig did not.
The children continued to live with plaintiff and defendant until 1987, when plaintiff and defendant separated. The children remained with plaintiff, while defendant continued to support the family. On April 14, 1989, plaintiff filed for divorce, requesting, in part, that defendant be ordered to pay child support for the Sproessig children.
At the conclusion of an evidentiary hearing, the circuit court found that plaintiff and defendant had acted "in loco parentis” and, as a result, defendant was obligated to provide financial support for the Sproessig children. The circuit court entered an order requiring defendant to pay child support for the Sproessig children until they were eighteen years old. This Court granted defendant’s application for leave to appeal from the support order.
Defendant first contends that he is not obligated to provide support for the Sproessig children because the circuit court did not have jurisdiction to enter the order. The circuit court’s jurisdiction in a divorce action is strictly statutory. Stamadianos v Stamadianos, 425 Mich 1, 5; 385 NW2d 604 (1986); Fowler v Fowler, 191 Mich App 318, 319; 477 NW2d 112 (1991). MCL 552.16; MSA 25.96 provides that upon annulling a marriage or entering a judgment of divorce, the circuit court may enter orders that it considers just and proper regarding the care, custody, and support of the minor children of the parties. Because the Sproessig children were not children of the parties, the circuit court was not statutorily authorized to enter an order regarding the care, custody, and support of the Sproessig children.
In Nygard v Nygard, 156 Mich App 94, 100, n 3; 401 NW2d 323 (1986), however, this Court concluded that MCL 552.16; MSA 25.96 does not preclude a circuit court from entering an order requiring a nonbiological "parent” to support a minor child where the parent knowingly stands in loco parentis to a child of the marital household. In Nygard, the plaintiff mother discovered that she was pregnant and planned to give the child up for adoption. The defendant, who was not the father of the child, persuaded the plaintiff to keep the child by offering to marry the plaintiff and support the child. The parties married before the child was born, and the defendant placed his name on the birth certificate.
The plaintiff later filed for divorce, and the circuit court ordered the defendant to pay child support. This Court affirmed the support order, holding that, under certain circumstances, a person other than a biological parent may be obligated to provide child support. Nygard, supra, 99. This Court further held that in that case the defendant had essentially contracted to support the child and was equitably or promissorily es-topped from raising the statute of frauds as a defense to such a contract. Id. See also Johnson v Johnson, 93 Mich App 415; 286 NW2d 886 (1979).
This case is distinct from Nygard. In this case, the Sproessig children are not the biological children of either plaintiff or defendant, nor has defendant purported to be the biological father of the Sproessig children. Rather, the Sproessig children are the children of Mitchell and Michelle Sproessig, who have not had their parental rights terminated, and who are not parties to this divorce action. Under these circumstances, the circuit court had no jurisdiction to resolve the issue of the support of the Sproessig children in this action, because such a determination would necessarily involve the rights and duties of Mitchell and Michelle Sproessig.
We also hold that defendant is not obligated to support the children. The biological parents of a child are obligated to support and maintain that child. MCL 722.3; MSA 25.244(3); Nygard, supra, 97. Absent adoption, the obligation to support a child remains with the natural parents. Wilson v General Motors Corp, 102 Mich App 476, 480; 301 NW2d 901 (1980). Generally, where there is no biological relationship between the child and the adult, the adult has no legal obligation to support the child. Nygard, supra, 97. A legally appointed guardian is not obligated to support a child that is the guardian’s ward. MCL 700.431; MSA 27.5431.
Unlike Nygard, there is no indication that defendant in this case contracted with plaintiff or any other person to care for the Sproessig children indefinitely, nor has plaintiff relied upon a promise of defendant to her detriment. While defendant may have encouraged plaintiff to quit her job, there is no indication that defendant thereby induced plaintiff to take custody of the Sproessig children. Rather, plaintiff was at least equally willing to take the children into the parties’ family and agreed to quit her job to care for the children. Because the equitable considerations present in Nygard are not present in this case, defendant has no duty to support the Sproessig children.
Moreover, as a matter of public policy, defendant should not be held to be legally obligated to support the Sproessig children simply because he voluntarily did so for several years. Many people who voluntarily provide the children of family and friends with financial support may be discouraged from doing so if they risk becoming legally obligated to support those children until they reach majority.
The order of the circuit court is vacated.
This Court has held that in certain circumstances a person who is not the biological father of a child is obligated to support the child. These cases have generally been in the context of a support dispute after the entry of a judgment of divorce. The grounds for these determinations have been res judicata, as well as the public policy concern that parents should not be able to challenge paternity after a judgment of divorce as a means to resolve a custody or support dispute. Hackley v Hackley, 426 Mich 582, 584-585; 395 NW2d 906 (1986); Rucinski v Rucinski, 172 Mich App 20, 22-23; 431 NW2d 241 (1988) ; Johns v Johns, 178 Mich App 101, 106-107; 443 NW2d 446 (1989) . This case does not involve these issues, nor does it involve the exceptional situation found in Nygard or Johnson, supra, where the husband married the mother before the birth of the child and thereafter held himself out as the father of the child.
We also note that defendant represents on appeal that the Monroe Circuit Court, in a separate proceeding, has ordered Mitchell Sproessig to pay child support to plaintiff for the support of the Sproessig children. | [
-36,
43,
-45,
45,
2,
-24,
-22,
25,
-34,
-35,
-64,
-35,
-31,
32,
-14,
-22,
17,
-24,
-3,
-75,
-21,
7,
39,
69,
56,
60,
28,
-28,
-28,
0,
-22,
-38,
-15,
-59,
-32,
5,
43,
-4,
75,
39,
37,
-7,
23,
17,
-43,
-55,
22,
27,
8,
21,
15,
21,
50,
1,
21,
40,
28,
-4,
14,
-21,
-51,
29,
2,
0,
21,
-4,
18,
37,
14,
0,
10,
-14,
-29,
7,
-10,
-21,
18,
7,
77,
19,
5,
27,
5,
-20,
37,
-2,
16,
52,
-3,
66,
-16,
88,
-29,
-33,
-29,
53,
6,
-24,
38,
18,
3,
-39,
41,
59,
-38,
69,
39,
-16,
-19,
32,
-1,
-5,
3,
-20,
-40,
-8,
-27,
-22,
-21,
22,
-40,
17,
41,
58,
38,
-29,
6,
-18,
-2,
38,
-2,
0,
25,
-27,
-39,
-11,
20,
-45,
50,
-48,
8,
38,
13,
-21,
0,
7,
18,
-41,
-6,
-59,
4,
-44,
6,
27,
33,
13,
-7,
-28,
-1,
-67,
-2,
12,
28,
13,
-1,
-40,
-26,
14,
-14,
-13,
35,
-22,
-19,
-2,
-10,
1,
8,
40,
15,
-25,
-17,
54,
-29,
-36,
16,
36,
-25,
-9,
-48,
-28,
-44,
-16,
29,
29,
11,
35,
-12,
-5,
46,
-3,
-34,
-12,
63,
21,
33,
-12,
-12,
-2,
-2,
-77,
-5,
16,
13,
-53,
-93,
-33,
-30,
12,
-94,
18,
-8,
-23,
21,
-78,
-96,
-6,
10,
-20,
-29,
-48,
31,
-42,
10,
30,
-24,
-49,
-26,
-26,
26,
17,
-7,
-42,
23,
-41,
22,
54,
-22,
10,
3,
31,
18,
26,
-11,
22,
8,
-27,
6,
7,
-10,
26,
-10,
21,
3,
24,
20,
2,
16,
12,
18,
-10,
10,
-30,
72,
-23,
13,
-39,
-34,
51,
-26,
0,
-36,
64,
40,
6,
0,
-14,
18,
-6,
27,
54,
-3,
-23,
11,
-14,
36,
-36,
-33,
-16,
-15,
-1,
5,
-43,
-18,
36,
-36,
-22,
-19,
1,
25,
28,
32,
39,
-34,
-31,
21,
-2,
-70,
-32,
0,
-24,
36,
-18,
-12,
29,
-7,
-2,
28,
21,
4,
39,
-17,
9,
-9,
-13,
18,
9,
-16,
11,
-34,
-12,
-19,
41,
-17,
22,
-16,
7,
52,
8,
11,
0,
-24,
-21,
9,
-3,
-49,
33,
15,
-75,
-15,
3,
-22,
-26,
-17,
-8,
-27,
45,
90,
60,
41,
-5,
27,
-22,
-31,
2,
-26,
-15,
-61,
19,
32,
55,
-36,
-58,
-8,
-18,
30,
-48,
-49,
24,
35,
-33,
15,
-22,
27,
-10,
11,
-49,
-2,
37,
5,
38,
-17,
-15,
-3,
33,
-44,
26,
-6,
-13,
-6,
6,
12,
7,
-1,
66,
-9,
-19,
31,
-59,
-7,
29,
-5,
3,
-39,
-65,
28,
39,
2,
-15,
24,
-8,
-18,
-7,
-56,
1,
53,
-17,
-7,
-8,
-40,
38,
-59,
28,
38,
1,
-16,
-28,
-24,
-29,
17,
-41,
-15,
7,
49,
60,
-4,
-66,
17,
13,
-77,
-13,
-2,
9,
57,
1,
-34,
1,
-24,
41,
-33,
36,
-15,
7,
8,
35,
-9,
40,
-45,
0,
-25,
2,
-11,
-11,
-48,
-36,
13,
39,
-26,
-44,
2,
3,
-13,
31,
37,
57,
29,
-70,
-55,
13,
-30,
-30,
18,
-14,
48,
20,
61,
-59,
7,
-10,
-37,
-25,
-26,
-12,
13,
18,
1,
25,
46,
0,
13,
2,
23,
14,
4,
0,
12,
-20,
16,
29,
-38,
13,
22,
47,
19,
4,
-20,
24,
-50,
-13,
-34,
11,
21,
0,
-32,
29,
2,
0,
32,
-16,
-5,
-44,
10,
-26,
43,
-6,
-7,
34,
-23,
56,
-9,
-70,
11,
1,
13,
-34,
32,
-33,
4,
-6,
3,
-2,
16,
-13,
-1,
18,
-4,
19,
-16,
10,
-45,
-4,
-36,
25,
18,
4,
-37,
27,
40,
39,
23,
-23,
-31,
-41,
21,
2,
49,
-40,
-4,
-55,
61,
21,
-46,
5,
4,
-42,
-20,
18,
19,
45,
-36,
-61,
27,
-9,
-8,
-50,
-16,
10,
4,
-19,
-35,
44,
-29,
-7,
7,
-32,
9,
13,
24,
7,
4,
20,
21,
-20,
-13,
-16,
54,
-20,
-7,
42,
9,
20,
11,
62,
-21,
41,
6,
-20,
28,
-31,
60,
5,
-11,
49,
-12,
8,
-30,
14,
7,
-15,
-43,
-15,
-9,
-15,
-11,
42,
42,
15,
11,
70,
20,
27,
-31,
-14,
20,
58,
-14,
26,
-27,
47,
-5,
5,
-3,
-38,
17,
-16,
-52,
64,
43,
-37,
-27,
-24,
4,
-36,
39,
5,
-65,
-34,
-36,
70,
7,
-21,
10,
13,
-24,
-4,
-30,
16,
-23,
7,
-26,
-10,
12,
32,
14,
17,
14,
-1,
9,
-6,
-20,
15,
-41,
48,
-57,
-33,
40,
20,
-1,
-9,
19,
-66,
-10,
11,
-6,
27,
-16,
44,
26,
-14,
-80,
51,
30,
20,
-14,
-17,
-9,
8,
-4,
-16,
8,
18,
16,
-32,
-18,
14,
0,
36,
40,
-11,
-14,
34,
-36,
-7,
-15,
0,
5,
-41,
-56,
0,
12,
-82,
-50,
25,
6,
-9,
-21,
-22,
61,
6,
-18,
-38,
-26,
37,
4,
28,
0,
-16,
71,
-48,
0,
23,
-10,
-44,
8,
0,
55,
27,
-25,
51,
40,
-59,
37,
45,
18,
14,
-42,
29,
-46,
-4,
42,
-4,
19,
10,
15,
-7,
-18,
-22,
-5,
33,
-13,
11,
17,
-22,
-5,
-27,
-12,
14,
27,
74,
-26,
-28,
24,
0,
0,
32,
-35,
-13,
5,
4,
-6,
12,
-11,
-57,
-4,
-24,
56,
37,
55,
72,
57,
-32,
32,
-45,
-6,
53,
-5,
-59,
-60,
29,
-5,
15,
-37,
23,
6,
-12,
-5,
-22,
15,
-5,
6,
4,
-25,
-28,
-47,
14,
34,
-31,
22,
-13,
-36,
27,
29,
-3,
-74,
4,
24,
0,
-13,
26,
-26,
-25,
-24,
-4,
41,
-27,
-36,
11,
-23,
-15,
-13,
-14,
7,
-21,
-1,
-41,
0,
-42,
6,
14,
19,
-49,
-4,
5,
30,
-1,
37,
4,
-14,
22,
0,
8,
0,
-31,
-31,
-47,
-3,
-42,
4,
0,
-3,
20,
53,
4,
-35,
-40,
93,
-6,
23,
-23,
-19,
-36,
1,
19,
-46,
40,
-21,
17,
38,
-27,
-51,
20,
-14,
-6,
-30,
25,
7,
-20,
-30,
8,
-70,
65,
-2,
87,
-12,
68,
-13,
-74,
49,
18,
-10,
-62,
31,
21,
-36,
-45,
-28,
-77,
-3,
30,
12,
-25,
-2,
-9,
-15,
42,
-62,
-7,
6,
-25,
-37,
29,
20,
-10,
32,
-17,
57,
0,
15,
8,
1,
-8,
-36,
21,
-43,
24,
-30,
-16,
-27,
59,
-1,
-33,
38,
-19,
48,
2,
-43,
-14,
-45,
9,
-22,
7,
52,
-25,
20,
20
] |
Kavanagh, J.
This dispute arises out of nonpayment of benefits alleged to be due under insurance policies issued to the plaintiff by the defendant. The defendant appealed from a jury verdict rendered on March 29, 1976, in Genesee Circuit Court. The Court of Appeals affirmed in part and reversed in part. 79 Mich App 639; 263 NW2d 258 (1977). This Court granted leave to appeal and cross appeal limited to the following issues:
"(1) What causes of action and damage remedies are available to an insured who alleges that he has suffered mental anguish as a result of his insurance company’s bad-faith refusal to honor a valid claim; [and]
"(2) What causes of action and elements of damage were properly pled by the plaintiff?”
On September 15, 1972, the defendant, Massachusetts Mutual Life Insurance Company, issued two policies of insurance to the plaintiff, Harland Kewin. One policy provided for disability income protection insurance and the other for life insurance. It is the alleged breach of the former policy that is of concern in this appeal. Under the terms of the policy, the plaintiff was entitled to benefits of $500 per month, after a 30-day waiting period, if he became disabled from performing substantially all of the duties of his usual occupation.
On December 2, 1972, the plaintiff suffered a severe injury to his right knee when he was involved in a motorcycle accident in Florida. After the plaintiff filed a claim for benefits based on this injury, the defendant informed him of the need for a monthly doctor’s report substantiating the disability. To facilitate the procedure and to minimize the inconvenience to the plaintiff, it was suggested by Mr. Pemberton, a claims representative employed by the defendant, that the plaintiff visit a local doctor at the defendant’s expense. Thereafter, the plaintiff visited Dr. Harris, who forwarded a monthly report to the defendant beginning in March of 1973.
Prior to this conversation between Mr. Pemberton and the plaintiff, the defendant engaged Retail Credit Corporation on January 3, 1973, to do an investigation and report concerning the leg injury claim. That report was received by the defendant on January 15, 1973, and was followed by others which detailed the employment and other activities engaged in by the plaintiff. The report indicated that the plaintiff walked on crutches but was anticipating full-time employment at a Flint realty company as soon as he was able.
The defendant began payment of the monthly benefits due the plaintiff on February 9, 1973, which payment was for the month of January. Late payments for the months of February and March followed. On May 2, 1973, the plaintiff talked on the telephone with Mr. Pemberton and one other representative of the defendant concerning a possible settlement of the plaintiff’s claim.
It was agreed during this conversation that the plaintiff would accept $500 for the April benefit payment already due him, plus an advance payment of $1,000, the equivalent of two months’ benefits. In exchange the plaintiff agreed to waive any rights to further benefits until October 1, 1973, and further, waive his rights under the policy to forego payment of premiums during that period. Pursuant to this conversation, the defendant prepared two checks, one for $500 and the other for $1,000, and sent them to the plaintiff along with a letter detailing the agreement. The plaintiff negotiated each check.
The plaintiff, in November of 1973, requested and was sent additional claim forms, but never returned them to the defendant. No further correspondence was had between the parties until the plaintiff filed suit in August of 1974.
A jury trial was held, and a verdict in favor of the plaintiff was returned. The jury awarded $16,-500 in benefits under the disability insurance con tract; $798.40 as agreed cash value of the related life insurance policy; $75,000 for mental or emotional distress; and $50,000 for exemplary damages. The defendant’s motions for a new trial, remittitur, and judgment notwithstanding the verdict were denied, and a claim of appeal was filed in the Court of Appeals.
On November 21, 1977, the Court of Appeals held that a disability insurance contract is a contract involving matters of mental concern and solicitude and that, upon proper pleading and proof, mental distress damages are recoverable for breach of the contract. The Court also held that the mental distress damages and exemplary damages awarded by the jury in this case were for the same mental anguish, and accordingly reversed the award of $75,000 for mental or emotional distress. Finally, the Court held that the plaintiff’s complaint was insufficiently specific to support either a claim in tort for intentional infliction of emotional distress or a claim in contract for mental anguish damages, but that it did support a recovery of exemplary damages.
The parties do not dispute that a cause of action in contract arises upon a bad-faith breach of a disability insurance contract. Their positions differ sharply, however, on the question of whether and under what circumstances mental distress and exemplary damages are recoverable as a consequence of such a breach.
Under the rule of Hadley v Baxendale, 9 Exch 341; 156 Eng Rep 145 (1854), the damages recoverable for breach of contract are those that arise naturally from the breach or those that were in the contemplation of the parties at the time the contract was made. 5 Corbin, Contracts, § 1007. Application of this principle in the commercial contract situation generally results in a limitation of damages to the monetary value of the contract had the breaching party fully performed under it. Thus, it is generally held that damages for mental distress cannot be recovered in an action for breach of a contract.
There are exceptions to the general rule limiting the recovery for breach of contract. We are asked to apply an exception recognized in Stewart v Rudner, 349 Mich 459; 84 NW2d 816 (1957), to this case involving disability insurance. The plaintiff in Stewart brought suit on a breach of contract theory against the defendant doctor. The defendant had promised to deliver plaintiffs child by Caesarean section, but did not do so. It was as serted that as a result of the breach of the agreement, the plaintiffs child was stillborn.
In writing for four members of this Court, Justice Talbot Smith wrote to allow recovery for mental distress:
"When we have a contract concerned not with trade and commerce but with life and death, not with profit but with elements of personality, not with pecuniary aggrandizement but with matters of mental concern and solicitude, then a breach of duty with respect to such contracts will inevitably and necessarily result in mental anguish, pain and suffering. In such cases the parties may reasonably be said to have contracted with reference to the payment of damages therefor in event of breach. Far from being outside the contemplation of the parties they are an integral and inseparable part of it.”
The nature and object of the agreement justified the treatment accorded it in Stewart. A contract to perform a Caesarean section is not a commercial contract in which pecuniary interests are most important. Rather, such a contract involves "rights we cherish, dignities we respect, emotions recognized by all as both sacred and personal”. Stewart, 469. Where such interests are invaded by breach of a contract meant to secure their protection, mental distress is a particularly likely result. Flowing naturally from the breach, these injuries to the emotions are foreseeable and must be compensated despite the difficulty of monetary estimation.
Insurance contracts for disability income protection do not come within the reach of Stewart. Such contracts are commercial in nature; they are agreements to pay a sum of money upon the occurrence of a specified event, Secor v Pioneer Foundry Co, 20 Mich App 30, 35; 173 NW2d 780 (1969); 14 Michigan Law & Practice, Insurance, § 71, p 50. The damage suffered upon the breach of the agreement is capable of adequate compensation by reference to the terms of the contract. We recognize that breach of the insurance contract, as with almost any agreement, results in some annoyance and vexation. But recovery for those consequences is generally not allowed, absent evidence that they were within the contemplation of the parties at the time the contract was made. 22 Am Jur 2d, Damages, § 64, p 97. See, also, Scottish Union & National Ins Co v Bejcy, 201 F2d 163, 166 (CA 6, 1953).
The plaintiff argues that apart from Stewart, supra, Miholevich v Mid-West Mutual Automobile Ins Co, 261 Mich 495; 246 NW 202 (1933), permits recovery for mental distress damages in breach of insurance contract cases. Miholevich involved an automobile collision liability insurance policy issued to the plaintiff by the defendant. Under the contract, the defendant promised to satisfy any judgment rendered against the plaintiff. Such a judgment was in fact obtained by a third party, but the defendant wilfully neglected to satisfy it until after the plaintiff had been placed in jail for failure to pay the judgment. .
In affirming the award the Court said:
"The damages claimed by plaintiff are for a breach of defendant’s contract to pay the judgment. In Frederick v Hillebrand, 199 Mich 333, 341 [165 NW 810 (1917)], in which damages were claimed for a breach of contract, it was said:
" 'The damage which a party ought to receive in respect to such breach of contract may be said to be such as may fairly and reasonably be considered either as arising naturally — that is, according to the usual course of things — from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of a breach of it.’
"The rule thus stated is in accord with that laid down in the English case of Hadley v Baxendale, 9 Exch 341 (156 Eng Rep 145; 23 LJ Exch 179; 18 Jur 358; 5 Eng Rui Cas 502), and has been followed quite generally by all the courts in this country. (See citations in footnote in 8 RCL, pp 455 et seq.) Let us apply it to the facts in this case. The plaintiff was a man without means. He owned an automobile, and was aware of the fact that a judgment might at some time be recovered against him for his negligence in driving it. It must be presumed that he knew that, if he did not pay such judgment, a body execution might issue against him. To protect himself from this liability he sought and secured the policy in question. The defendant must also be presumed to have known that, in case of plaintiff’s default in payment, his arrest might follow. Must it not then be reasonably supposed that the liability to arrest to which plaintiff was exposed was in the contemplation of these parties at the time the contract was entered into? While there are many cases in which this rule of law has been so applied, we find none involving the question here presented.
"The wilful neglect of the defendant to pay the judgment was not due to an oversight on its part. It resulted in the imprisonment of plaintiff, with the shame and mortification as well as loss of time incident thereto. A reasonable interpretation of the contract and the application of the law thereto justified the award of damages by the trial court. No claim is made that it is excessive.”
In this case the insurance company owed the plaintiff no duty as his agent to negotiate with or pay a third party for the insured’s liability. This is an indemnity contract and the insured and insurer were dealing directly. No reason appears to conclude that either party contemplated any special damages, and certainly none can be said to flow naturally from the breach. Scottish Union, supra, 166.
For the above reasons, we hold that a disability income protection insurance policy contract is a commercial contract, the mere breach of which does not give rise to a right to recover damages for mental distress. The damages recoverable are those damages that arise naturally from the breach, or which can reasonably be said to have been in contemplation of the parties at the time the contract was made. Absent proof of such contemplation, the damages recoverable do not include compensation for mental anguish.
In Michigan, exemplary damages are recoverable as compensation to the plaintiff, not as punishment of the defendant. Ten Hopen v Walker, 96 Mich 236, 240; 55 NW 657 (1893); McChesney v Wilson, 132 Mich 252, 258; 93 NW 627 (1903). Our review of the precedent indicates that those cases which permit recovery of exemplary damages as an element of damages involve tortious conduct on the part of the defendant. See, e.g., McFadden v Tate, 350 Mich 84; 85 NW2d 181 (1957) (assault and battery); Scripps v Reilly, 38 Mich 10 (1878) (libel); Welch v Ware, 32 Mich 77 (1875) (assault and battery). An award of exemplary damages is considered proper if it compensates a plaintiff for the "humiliation, sense of outrage, and indignity” resulting from injuries "maliciously, wilfully and wantonly” inflicted by the defendant. McFadden, supra, 89. The theory of these cases is that the reprehensibility of the defendant’s conduct both intensifies the injury and justifies the award of exemplary damages as compensation for the harm done the plaintiff’s feelings.
In cases involving only a breach of contract, however, the general rule is that exemplary dam ages are not recoverable. 9 Michigan Law & Practice, Damages, § 91, p 88; 22 Am Jur 2d, Damages, §245, p 337. Just as with that denying damages for mental distress, the theory underlying the denial of exemplary damages in breach of contract cases is that the plaintiff is adequately compensated when damages are awarded by reference only to the terms of the contract. One exception to the rule was discussed by Professor Corbin in the following terms:
"The damages that are called punitive in breach of promise cases can generally be properly regarded as compensatory. They are given as compensation for kinds of harm that cannot easily be estimated in terms of money. In this respect, the injury caused by breach of promise of marriage has much in common with those injuries that are caused in cases of tort. It is equally obvious that the injuries suffered in breach of promise cases include much that is not in common with those that are inflicted by the breach of a commercial bargain. Therefore, the courts have not applied the same measure of recovery; and there is no reason for a supposed rule that would require them to do so.” 5 Corbin, supra, § 1077, p 442 (emphasis added).
In the commercial contract situation, unlike the tort and marriage contract actions, the injury which arises upon a breach is a financial one, susceptible of accurate pecuniary estimation. The wrong suffered by the plaintiff is the same, whether the breaching party acts with a completely innocent motive or in bad faith. Durfee v Newkirk, 83 Mich 522, 527; 47 NW 351 (1890); Caradonna v Thorious, 17 Mich App 41; 169 NW2d 179 (1969).
We hold that, absent allegation and proof of tortious conduct existing independent of the breach, see, e.g., Harbaugh v Citizens Telephone Co, 190 Mich 421; 157 NW 32 (1916), exemplary damages may not be awarded in common-law actions brought for breach of a commercial contract.
GCR 1963, 111.1, states in part that a complaint, to be sufficient, shall contain
"a statement of the facts without repetition upon which the pleader relies in stating his cause of action with such specific averments as are necessary reasonably to inform the adverse party of the nature of the cause he is called upon to defend.”
The cause of action well pleaded and proved by the plaintiff here was that for breach of this commercial contract alone.
We express no opinion on the accuracy of the Court of Appeals observation that Michigan recognizes a tort action for the intentional infliction of mental distress. Suffice it to say we agree with the Court of Appeals that such a cause of action was neither pleaded nor proved by this plaintiff.
The plaintiff asserts that, aside from the tort of intentional infliction of mental distress, his complaint pleaded both a cause of action for breach of contract and a cause of action sounding in tort for either fraud and undue influence or invasion of privacy. As support for this argument, he states:
"Plaintiff submits that all of these torts were involved in this case, but that he was not required to label each in the complaint, the presentation of proofs, or the instructions to the jury and verdict thereupon. It is, instead, sufficient that his complaint placed the defendant on notice that his case sounded partially in tort, and that there is sufficient evidence introduced to support the jury verdict in each instance.”
We need not address plaintiffs statement of the law for it cannot fairly be said that his complaint placed defendant on notice that allegations of fraud, undue influence or invasion of privacy were to be defended.
The complaint does contain conclusory language to the effect that the defendant engaged in misrepresentation and deceit in handling the claim, but the facts alleged in the pleadings and established at trial would not support a finding of tortious conduct and merely demonstrate that the nature of the cause of action was for breach of contract, albeit a bad-faith breach.
Plaintiff implies and amicus curiae policyholders argue that he has pleaded and this Court should recognize an independent tort based on bad-faith breach of an insurance contract. Plaintiff cites Harbaugh, wherein this Court recognized that the same state of facts establishing a breach of contract might also establish a cause of action in tort. Harbaugh, supra, 426-427. Amicus curiae policyholders direct our attention to Gruenberg v Aetna Ins Co, 9 Cal 3d 566; 108 Cal Rptr 480; 510 P2d 1032 (1973), where the California court recognized a cause of action in tort for the insurer’s breach of an implied duty of good faith fair dealing and allowed recovery of emotional distress damages.
Harbaugh involved a breach of a duty imposed by statute upon the defendant. The duty existed independent of and apart from the contractual undertaking. The instant case, in contrast, parallels more closely the situation in Hart v Ludwig, 347 Mich 559; 79 NW2d 895 (1956):
"We have simply the violation of a promise to per form the agreement. The only duty, other than that voluntarily assumed in the contract to which the defendant was subject, was his duty to perform his promise in a careful and skillful manner without risk of harm to others, the violation of which is not alleged. What we are left with is defendant’s failure to complete his contracted-for performance. This is not a duty imposed by the law upon all, the violation of which gives rise to a tort action, but a duty arising out of the intentions of the parties themselves and owed only to those specific individuals to whom the promise runs. A tort action will not lie.”
The plaintiff in this case alleged and proved no more than the failure of the defendant to discharge its obligations under the disability insurance contract.
We decline to follow' the California court and to declare the mere bad-faith breach of an insurance indemnity contract an independent and separately actionable tort and to thereby open the door to recovery for mental pain and suffering caused by breach of a commercial contract.
Accordingly we affirm the decision of the Court of Appeals reversing the award for mental or emotional distress; we reverse the decision affirming the award of exemplary damages and set such award aside; and we affirm the decision of the Court of Appeals affirming the awards of $16,500 for breach of the disability insurance contract and $798.40 for breach of the companion life insurance policy.
No costs, neither party having prevailed in full.
Coleman, C.J., and Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Kavanagh, J.
Williams, J.
(affirming in part and reversing in part). We are called upon to consider whether an award of emotional distress damages is valid in the breach of a disability insurance contract under the Stewart v Rudner complement to Hadley v Baxendale.
The Stewart-Hadley rule requires us to determine whether a disability insurance contract is primarily personal, involving "matters of mental concern and solicitude”, Stewart v Rudner, 349 Mich 459, 471; 84 NW2d 816 (1957), rather than commercial in nature, and whether emotional distress damage resulting from breach will either arise naturally therefrom or will have been in the parties’ contemplation at the time the contract was entered. Hadley v Baxendale, 9 Exch 341, 354; 156 Eng Rep 145 (1854).
Both as a matter of logic and persuasive case law, we find a disability insurance contract primarily personal rather than commercial in nature. Furthermore, it is common knowledge that disability insurance is obtained to promote peace of mind and avoid the insecurity and anguish of being disabled and without a paycheck to meet the normal demands of life. Consequently, that failure to provide such contracted-for peace of mind promotes emotional distress requires no argument.
In sum, we hold that suits alleging a contract action for breach of a disability insurance contract properly come within the Stewart-Hadley rule allowing the award of resulting emotional distress damages.
Indeed, as former Justice Talbot Smith recognized in Stewart:
"[A] breach of duty with respect to such contracts will inevitably and necessarily result in mental anguish, pain and suffering. In such cases the parties may reasonably be said to have contracted with reference to the payment of damages therefor in event of breach. Far from being outside the contemplation of the parties they are an integral and inseparable part of it.” (Emphasis supplied.)
Furthermore, since a disabled insured’s emotional distress may be occasioned by a simple, negligent or bad faith breach of the policy, the nature of the breach is as irrelevant to this inquiry as it was in Stewart except to the extent that it may contribute to the degree of damage.
Consistent with this ruling, we affirm the Court of Appeals decision that disability insurance contracts are personal agreements involving matters of mental concern and solicitude thereby sanctioning recovery of emotional distress contract damages for simple breach, but reverse the Court of Appeals holding that plaintiff-insured had not sufficiently alleged a contract cause of action for emotional distress damages. We likewise reverse the Court of Appeals decision to uphold the jury’s award of exemplary damages inasmuch as they impermissibly overlap with plaintiff’s emotional distress recovery in this instance. In all other respects, the Court of Appeals is affirmed.
I. Facts
This dispute arose from defendant-insurer’s failure to pay benefits pursuant to a disability income policy purchased by plaintiff from defendant on September 15, 1972. On December 2, 1972, plaintiff severely injured his right leg in a motorcycle accident. Plaintiff filed a claim for benefits. Defendant paid benefits for the first two months only after requiring that plaintiff provide extensive documentation as well as the filing of a separate claim for each month’s benefits. Simultaneously, defendant allegedly conducted overt and covert investigations to determine the validity of plaintiff’s claim. The first two months’ benefits were not paid until some time after they were due. When the third month’s payment was also late, plaintiff contacted defendant. In a May 2, 1973, phone conversation, an agreement was made whereby defendant would immediately pay three months’ benefits in return for plaintiff’s agreement to waive benefits for a six-month period, i.e., until October 1, 1973.
In November of 1973, plaintiff again requested claim forms for additional benefits, but never submitted a claim. Policy benefits remained unpaid through November of 1974 when plaintiff filed suit in the Genesee Circuit Court requesting the following relief in his complaint:
"Wherefore, this plaintiff claims damages, such as he may be entitled to under the law of this state, for violation of the various rights of the plaintiff by way of breach of contract, express or implied, misrepresentation and deceit, breach of a fiduciary duty, both express in amount as provided for in the policy and punitive in nature and in such amount to be determined by a jury, demand for which is hereby made by the plaintiff, in such amount in excess of ten thousand and no/100 ($10,000.00) dollars as may be assessed.”
After the trial court ruled that plaintiffs complaint was sufficient without the necessity of amendment to permit the introduction of testimony regarding plaintiffs emotional distress damages claim, the following testimony was elicited from plaintiff on re-direct examination:
”Q. Mr. Kewin, I just have a couple more questions and then I’m through. Can you recall whether there was any one conversation which was particularly distressful?
"A. I don’t remember the exact date, but there was one particular conversation that lasted 20 or 30 minutes where, at the end of that conversation, after I hung up the phone, I broke down to tears. I actually cried. And I haven’t done that since I was a kid. I don’t remember the last time I done that.
”Q. How did you feel after that conversation? What was the effect of that on your emotional system?
"A. Well, I was extremely upset, nervous, I didn’t know where to go, what to do. They had all my answers, and I had absolutely nothing. I just—
”Q. All right. Now, Mr. Kewin, one final question. In the entire proceeding, from the time you got hurt and filed your first claim after that accident of December 2nd, all the way up through the time they finally terminated you, and through the time you signed that May 2nd agreement, can you tell the jury, in your own words, what effect, if any, did all of this conduct that you claim the defendant engaged in, what effect did that have on you personally, * * *?
'A. I was extremely depressed, nervous, irritable, disillusioned, just — I was just a wreck.”
After a lengthy trial, the jury was instructed as follows with respect to plaintiffs emotional distress claim:
"If you do make an award under the policy and if you find the plaintiff did suffer emotional distress as a result of the defendant’s knowing, reckless, bad-faith conduct, then you must award a sum adequate to compensate the plaintiff for mental and emotional loss or injury, as you believe he was subjected to the effects caused by the defendant’s conduct.”
The court also instructed the jury that exemplary damages "are intended only as compensation for the supposed aggravation of an injury to the feelings of another by wanton or reckless acts of a defendant”.
On March 29, 1976, the jury returned a verdict for plaintiff awarding: (1) $16,500 in benefits under the disability insurance contract; (2) $75,000 for "mental or emotional distress”; (3) $50,000 for "exemplary” damages; and (4) $798.40 as the agreed cash value of a related life insurance policy. Defendant’s motions for judgment notwithstanding the verdict, new trial and remittitur were subsequently denied.
On November 21, 1977, the Court of Appeals ruled that emotional distress contract damages could be recovered for the breach of a disability insurance contract since such contracts are concerned with matters of mental concern and solicitude. Because plaintiff had not sufficiently pled such a claim, however, the award of emotional distress damages was reversed. The panel also held that although the emotional distress and exemplary damage awards compensated the same injury to feelings or mental anguish, the exemplary damages were permitted to stand "since there will be no direct recovery for mental anguish damag es”, Kewin v Massachusetts Mutual Life Ins Co, 79 Mich App 639, 657; 263 NW2d 258 (1977). The awards for breach of both the disability insurance contract and companion life insurance policy were affirmed.
On May 8, 1978, we granted leave to appeal limited to the following issues:
"(1) What causes of action and damage remedies are available to an insured who alleges that he has suffered mental anguish as a result of his insurance company’s bad faith refusal to honor a valid claim;
"(2) What causes of action and elements of damage were properly pled by the plaintiff?”
II. The Rule of Hadley v Baxendale
A. The General Principle of Hadley
In Hadley, the owner of a mill, which had been shut down because of a broken shaft, contracted with a carrier to transport a shaft to another city where it was to be used as a model in making a replacement. The miller notified the carrier that haste in delivery was essential; the miller did not, however, indicate that operation of the mill was dependent on such prompt delivery.
In a contract action for negligent delay in delivery, the miller claimed damages for lost profits arising from the nonoperation of the mill. On appeal from a verdict for the miller, Baron Alder-son held that recovery for those lost profits was impermissible. The carrier could not be expected to anticipate that the mill operations would be suspended by the delay in delivery since no notice of this special circumstance had been given the carrier. The Court enunciated the following rule to be applied in assessing contract damages:
"Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus made known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of the injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For, had the special circumstances been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case; and of this advantage it would be unjust to deprive them.” Id. 354-355. (Emphasis supplied.)
This rule, which has come to be known as the rule of Hadley v Baxendale, has been almost universally accepted as a correct statement of the principle by which the extent of special damage recovery is to be determined in an action for breach of contract. See Frederick v Hillebrand, 199 Mich 333, 341; 165 NW 810 (1917); 1 Restatement Contracts, § 330, p 509.
B. Imputed Foreseeability or Contemplation
Simply stated, the first principle of Hadley is one of imputed foreseeability or contemplation— that which any reasonable person should have foreseen at the time the contract was forged. The second principle is one of actual foreseeability or contemplation — what the reasonable person with particular knowledge should have foreseen at the time the contract was forged.
Fulfillment of the first principle of the Hadley rule is to be assessed by an objective standard. 5 Corbin, Contracts, § 1010, pp 78-79. Thus, the extent of recovery is to be measured, not by what the defendant actually foresaw when the contract was formed, but by what a hypothetical reasonable person in the position of the defendant, with the defendant’s knowledge of the circumstances surrounding the transaction, could reasonably have been expected to foresee or should have foreseen, had such defendant considered the matter. The second principle of actual foreseeability or contemplation is not a concern of this case.
III. The Hadley Rule and the Award of Emotional Distress Contract Damages
Traditionally, emotional distress has not been considered a proper element of damage in a contract action because of its perceived vagueness and difficulty of proof. Depending on the nature of the contract, however, contemporary courts have departed from this tradition. Thus, where the contract in dispute has been found primarily personal in nature, involving "matters of mental concern and solicitude”, Stewart, supra, 471, the award of emotional distress damage has been upheld in accord with the Hadley rule. Where, however, the contract has been found primarily commercial in nature, involving matters of "pecuniary aggrandizement”, Stewart, supra, 471, such an award has been considered violative of Hadley’s principles. It must be emphasized that mere assignment of the appellative "primarily personal” or "primarily commercial” is no talisman in resolving this inquiry. Rather, whether emotional distress damages may be awarded for breach of contract must be resolved by assessing the nature of the contract in light of the Hadley Court’s dictates.
A. Commercial Contracts Preclude the Award of Emotional Distress Contract Damages
In ordinary commercial transactions which primarily involve matters of "pecuniary aggrandizement”, emotion and sentiment are generally deemed to have little place in arms-length bargaining since the dominant contractual purpose is one of promoting a pecuniary interest. As a consequence, recovery of emotional distress damages has been almost uniformly denied in redressing the promisee’s loss of the bargain since such damages are generally neither within the parties’ contemplation nor do they naturally flow from the breach. See, e.g; Jankowski v Mazzotta, 7 Mich App 483, 486-487; 152 NW2d 49 (1967) (breach of contract to build a house due to substandard handiwork); Isagholian v Carnegie Institute of Detroit, Inc, 51 Mich App 220; 214 NW2d 864 (1974) (breach of employment contract). In accordance with the limitation of Hadley v Baxendale, this Court has stated with respect to such instances:
"In such cases breach of contract may cause worry and anxiety varying in degree and kind from contract to contract, depending on the urgencies thereof, the state of mind of the contracting parties, and other elements, but it has long been settled that recovery therefor was not contemplated by the parties as the 'natural and probable’ result of the breach. Hadley v Baxendale, 9 Exch 341; 156 Eng Rep 145; Clark v Moore, 3 Mich 55 [1853]; Miholevich v Mid-West Mutual Auto Ins Co, 261 Mich 495; 246 NW 202; 86 ALR 633 [1933]; Frederick v Hillebrand, 199 Mich 333; 165 NW 810.” Stewart, supra, 469. (Emphasis added.)
In essence, an award of emotional distress damages for breach of commercial contract has been judicially considered to far exceed the injured promisee’s expectation interest; consequently, such an award would impermissibly afford that party more than the benefit of the bargain. But see F Becker Asphaltum Roofing Co v Murphy, 224 Ala 655; 141 So 630 (1932) (breach of warranty of roofing materials which leaked); Westesen v Olathe State Bank, 78 Colo 217; 240 P 689 (1925) (breach of contract by bank to honor draft drawn by plaintiff traveling away from home).
B. Primarily Personal Contracts Allow the Award of Emotional Distress Contract Damages
Where the central interest infringed by the breach is primarily personal rather than pecuniary in nature, however, jurists and scholars have been more hesitant to find emotional distress damages to be violative of the Hadley rule. In such instances, it should have been evident to the defaulting promisor at the time of contract formation that breach would likely occasion mental distress for reasons that do not stem from the pecuniary loss alone. This principle was succinctly stated by Talbot Smith, J., in Stewart, supra, 471-472, quoting Lamm v Shingleton, 231 NC 10, 14-15; 55 SE2d 810, 813 (1949):
" 'Where the contract is personal in nature and the contractual duty or obligation is so coupled with matters of mental concern or solicitude, or with the sensibilities of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering, and it should be known to the parties from the nature of the contract that such suffering will result from its breach, compensatory damages therefor may be recovered. 15 Am Jur, Damages, § 182, p 600; McCormick on Damages, p 592; Warner v Benham, 126 Wash 393; 218 P 260; 34 ALR 1358 [1923]. In such case the party sought to be charged is presumed to have contracted with reference to the payment of damages of that character in the event such damages should accrue on account of his breach of the contract. Renihan v Wright, 125 Ind 536; 25 NE 822; 9 LRA 514 [1890]; McCormick on Damages, p 595.’ ”
Illustrative of such "personal” contracts are contracts to marry, contracts between carriers and passengers, contracts of innkeepers and guests, contracts for the disposition of dead bodies, contracts for the delivery of death messages, contracts for public entertainment or amusement, and contracts to provide care, room and board. As stated by Arthur Linton Corbin, an element common to all of these contract damages actions is that they involve situations in which "personal feelings are most deeply involved and in which mental suffering is likely to be most poignant”, despite their literal commercial nature.
C. Hadley’s Complement: Stewart v Rudner
The propriety of an award of emotional distress damages in certain contract actions was given this Court’s imprimatur in the seminal case of Stewart v Rudner, 349 Mich 459; 84 NW2d 816 (1957) (Justice Talbot Smith writing for three others concurring; the four remaining Justices concurred in result alone but without separate opinion). In upholding a jury award of emotional distress contract damages for a doctor’s breach in failing to perform a Caesarean section, Justice Smith surveyed the historical application of Hadley in both commercial and personal contractual transactions, and concluded:
"[N]ot all contracts are purely commercial in their nature. Some involve rights we cherish, dignities we respect, emotions recognized by all as both sacred and personal. In such cases the award of damages for mental distress and suffering is a commonplace, even in actions ex contractu.’’ Stewart, supra, 469.
" 'While it is true that if the breach causes no actual injury beyond vexation and annoyance, as all breaches of contract do more or less, they are not subjects of compensation, unless to the extent that the contract was made specially to procure exemption from them. To that extent, that is, where a contract is made to secure relief from a particular inconvenience or annoyance, or to confer a particular enjoyment, the breach, so far as it disappoints in respect of that purpose, may give a right to damages appropriate to the objects of the contract.’
* *- *
"The cases to which reference was just made [contracts to marry, of passage, of innkeeper and guest, and for burial] involve a clear exception to the 'rule’ (if there now is any such) that damages for mental suffering are not recoverable in contract actions. They are. When we have a contract concerned not with trade and commerce but with life and death, not with profit but with elements of personality, not with pecuniary aggrandizement but with matters of mental concern and solicitude, then a breach of duty with respect to such contracts will inevitably and necessarily result in mental anguish, pain and suffering. In such cases the parties may reasonably be said to have contracted with reference to the payment of damages therefor in event of breach. Far from being outside the contemplation of the parties they are an integral and inseparable part of it.” Stewart, supra, 470-471, quoting 1 Sutherland on Damages (1882 ed), pp 157-158. (Emphasis supplied.)
D. The Stewart-Hadley Doctrine
In accordance with the Stewart complement to Hadley, three elements must be proven to establish a basis for the award of emotional distress damages in a contract cause of action:
"The clear consensus of the pure contract cases is that a plaintiff must establish three things: (1) that the contract involves matters of mental concern and solicitude [i.e., that emotional distress in the event of breach was foreseeable]; (2) that the contract has been breached; and (3) that the breach has caused mental anguish.” Kewin v Massachusetts Mutual Life Ins Co, 79 Mich App 639, 650; 263 NW2d 258 (1977).
The first element of the Stewart-Hadley doctrine is perhaps the most difficult to articulate. The problem is, whether given the obvious interdependence of the nature of the contract and the foreseeability of damages in the event of its breach, the criterion to be used should be the nature of the contract or the foreseeability of the damages, or possibly both. As previously indicated in this section, for years the judiciary has developed a shorthand approach to the award of Hadley-type damages by looking to the nature of the contract and labelling it either primarily "personal” or "commercial”. If the former, emotional distress recovery was generally permitted; if the latter, such recovery was normally precluded.
Although this labelling device may have historically proven both useful and helpful, it may nevertheless have obfuscated the judiciary’s fundamental problem of analysis. For instance, it may have provided the courts with an opportunity to merely label a contract as primarily "personal” in order to allow emotional distress damages or "commercial” in order to deny such damages. Such a shorthand analysis could work very well in the obvious cases but might lead to arbitrary decision in such cases as this, whether a disability insurance contract was commercial or personal, since it obviously has characteristics of both. Yet, once Hadley’s fundamental analysis of foreseeability is applied, it becomes clear whether special damages should or should not be awarded in the case of such contracts.
Rather than indulging in the telescoped mode of labelling analysis, we are of the opinion that the critical and preferable inquiry is whether the claimed damage is foreseeable. We would recognize, of course, that once this fundamental analysis has been made in a class of cases, the shorthand criterion could well be used in similar cases, leaving the fundamental analysis for those cases where new ground must be broken.
We conclude that the essential inquiry to be made, therefore, is (i) whether the asserted emotional distress damages naturally arose from the breach, or (ii) whether at the time of contract formation a hypothetical reasonable person in the position of the defaulting disability insurer, with the insurer’s knowledge of the circumstances surrounding the disability insurance transaction, could reasonably have been expected to foresee or should have foreseen the disabled insured’s emotional distress necessarily or reasonably resulting from the insurer’s breach, had such insurer considered the matter. If either inquiry is resolved in the affirmative, the Court must conclude that the parties had contracted to compensate the insured for such "usual” emotional distress damages since they were within the defaulting insurer’s contemplation at the time of contract formation or naturally arose from the breach. The denomination of a contract as involving "matters of mental concern and solicitude” or matters of "pecuniary aggrandizement” does not impart talismanic value; rather, such conclusion must result from considered application of Hadley’s principles.
Second, having determined that the insured’s emotional distress claim does not transgress the Hadley limitation, it need only be shown that the contract has been breached. It is significant that the nature of the breach is not a factor in the Stewart analysis. As in all contract actions, the disappointed promisee need only prove that a breach has occurred, whether simple, innocent, aggravated, outrageous, or otherwise.
Third, if it has been proven that the contract is primarily personal in nature, again as framed by the Hadley analysis, and that a breach occurred, the insured need only prove that the breach has in fact caused the alleged emotional distress which may be proven with reasonable certainty. While the degree of breach may, under the facts, exacerbate the degree of distress alleged, no more than a simple breach is required to establish a prima facie action for distress damages.
If each of these three elements has been proven, an award of emotional distress damages may bé permitted to fulfill the insured’s disappointed expectation interest without simultaneously imposing an undue burden on the defaulting insurer. Hadley’s aim of risk allocation will have been effectuated and the promisee will have been afforded the benefit of the bargain.
IV. Disability Insurance Contracts are Personal Contracts Involving Matters op Mental Concern and Solicitude
A. Case Law
There can be no cavil with our conclusion that disability insurance contracts are primarily personal contracts involving matters of mental concern and solicitude. Given the very nature of such contracts, the likelihood of emotional distress resulting from a breach must have been either within the contemplation of the promisor at the time of contract formation or the natural result of breach. Stewart seemingly anticipated this conclusion with respect to disability insurance contracts when it enunciated the following:
" 'While it is true that if the breach causes no actual injury beyond vexation and annoyance, as all breaches of contract do more or less, they are not subjects of compensation, unless to the extent that the contract was specially made to procure exemption from them. To that extent, that is, where a contract is made to secure relief from a particular inconvenience or annoyance, or to confer a particular enjoyment, the breach, so far as it disappoints in respect of that purpose, may give a right to damages appropriate to the objects of the contract.’ ” Stewart, supra, 470-471, quoting 1 Sutherland on Damages (1882 ed), pp 157-158. (Emphasis supplied.)
Our finding is likewise supported by analogous authority from this and other jurisdictions in which the propriety of awarding emotional distress under an insurance contract has been sanctioned.
In Crisci v Security Ins Co of New Haven, Connecticut, 66 Cal 2d 425, 434; 58 Cal Rptr 13; 426 P2d 173 (1967), the California Supreme Court unanimously upheld an award of emotional distress damages for breach of a liability insurance contract sounding in both contract and tort:
"[P]laintiif did not seek by the contract involved here to obtain a commercial advantage but to protect herself against the risks of accidental losses, including the mental distress which might follow from the losses. Among the considerations in purchasing liability insurance, as insurers are well aware, is the peace of mind and security it will provide in the event of an accidental loss, and recovery of damages for mental suffering has been permitted for breach of contracts which directly concern the comfort, happiness or personal esteem of one of the parties. (Chelini v Nieri, 32 Cal 2d 480, 482; 196 P2d 915 [1948].)” (Emphasis supplied.)
Likewise, in Fletcher v Western National Life Ins Co, 10 Cal App 3d 376, 404; 89 Cal Rptr 78 (1970), the above statement from Crisci was quoted with approval in the context of a disability insurance contract. The Fletcher court elaborated:
"These considerations [the insured’s peace of mind and security] are particularly cogent in disability insurance. The very risks insured against presuppose that if and when a claim is made, the insured will be disabled and in strait financial circumstances and, therefore, particularly vulnerable to oppressive tactics on the part of an economically powerful entity.” (Emphasis supplied.)
The Federal Seventh Circuit in Eckenrode v Life of America Ins Co, 470 F2d 1, 5 (CA 7, 1972), extended this line of reasoning in the context of an insurer’s refusal to tender life insurance proceeds:
"[I]t is common knowledge that one of the most frequent considerations in procuring life insurance is to ensure the continued economic and mental welfare of the benefíciaries upon the death of the insured. See Crisci, 66 Cal 2d 425, [434.] The very risks insured against presuppose that upon the death of the insured the beneficiary might be in difficult circumstances and thus particularly susceptible and vulnerable to high pressure tactics by an economically powerful entity. Fletcher, [10 Cal App 3d 376, 404.] In the case before us Insurer’s alleged high pressure methods (economic coercion) were aimed at the very thing insured against, and we think that the insurance company was on notice that plaintiff would be particularly vulnerable to mental distress by reason of her financial plight. ” (Emphasis supplied.)
Although this Court has not until today passed on the question whether a disability insurance agreement is primarily personal or commercial in nature, our decision in Miholevich v Mid-West Mutual Auto Ins Co, 261 Mich 495; 246 NW 202 (1933), recommends our conclusion that such contracts may properly be characterized as involving matters of mental concern and solicitude. In Miholevich, an insurer breached its automobile collision insurance policy by failing to satisfy a judgment rendered against the plaintiff-insured. Plaintiff instituted a contract cause of action claiming damages for the insured’s resulting arrest and incarceration. In upholding a judgment for the insured’s injuries to feelings, i.e., "shame and mortification”, this Court unanimously stated:
"The damages claimed by plaintiff are for a breach of defendant’s contract to pay the judgment. In Frederick v Hillebrand, 199 Mich 333, 341, in which damages were claimed for a breach of contract, it was said:
" 'The damage which a party ought to receive in respect to such breach of contract may be said to be such as may fairly and reasonably be considered either as arising naturally — that is, according to the usual course of things — from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of a breach of it.’
"The rule thus stated is in accord with that laid down in the English case of Hadley v Baxendale, 9 Exch 341; 156 Eng Rep 145; 23 LJ Exch 179; 18 Jur 358; 5 Eng Rul Cas 502, and has been followed quite generally by all the courts in this country. (See citations in footnote in 8 RCL, pp 455 et seq.) Let us apply it to the facts in this case. The plaintiff was a man without means. He owned an automobile, and was aware of the fact that a judgment might at some time be recovered against him for his negligence in driving it. It must be presumed that he knew that, if he did not pay such judgment, a body execution might issue against him. To protect himself from this liability he sought and secured the policy in question. The defendant must also be presumed to have known that, in case of plaintiffs default in payment, his arrest might follow. Must it not then be reasonably supposed that the liability to arrest to which plaintiff was exposed was in the contemplation of these parties at the time the contract was entered into? While there are many cases in which this rule of law has been so applied, we find none involving the question here presented.
"The wilful neglect of the defendant to pay the judgment was not due to an oversight on its part. It resulted in the imprisonment of plaintiff, with the shame and mortification as well as loss of time incident thereto. A reasonable interpretation of the contract and the application of the law thereto justified the award of damages by the trial court. No claim is made that it is excessive.” 261 Mich 498-499.
Furthermore, various panels of our Court of Appeals have concluded that insurance contracts involve "matters of mental concern and solicitude”.
In McCune v Grimaldi Buick-Opel, Inc, 45 Mich App 472; 206 NW2d 742 (1973), plaintiff brought a contract action against his employer for failure to make timely premium payments on plaintiff’s health insurance. As a result of this breach, plaintiffs coverage was terminated while his wife was hospitalized. The parties stipulated that plaintiff incurred damages for harassment and humiliation in the amount of $29,333.33. Reversing the trial court’s ruling of no cause of action for defendant, Levin, P.J., with V. J. Brennan and Van Valkenburg, JJ., upheld plaintiffs claim of damages for "mental anguish, humiliation, embarrassment, and harassment by medical creditors which occurred as a result of defendant’s breach of contract” to pay health insurance premiums. Beyond the parties’ stipulation to such damages, the panel squarely rested its holding, on the "mental concern and solicitude” principle enunciated in Stewart, stating:
"We hold that this case is the type of contract case in which damages for mental anguish may be recovered. It does not deal with trade and commerce, but with hospital and medical insurance, the provision of which is certainly a matter of 'mental concern and solicitude’ on the part of most family heads.” McCune, supra, 478.
In Palmer v Pacific Indemnity Co, 74 Mich App 259; 254 NW2d 52 (1977), it had been determined at trial that defendant-professional malpractice insurer had breached the contract’s duty-to-defend clause by failing to appeal a malpractice judgment against the plaintiff-insured which exceeded the policy’s limits. The trial court refused to allow the jury to consider the insured’s claim for emotional distress damages arising from defendant’s contract breach. The Court of Appeals ruled that emotional distress damages may be recovered in a contract action for breach of a malpractice insurance contract. In reversing the lower court’s ruling and remanding the issue of emotional distress damages for the jury’s consideration, the panel, again relying on Stewart, stated:
"The mental anguish associated with the case at bar is not as extreme as that in Miholevich v Mid-West Mutual Auto Ins Co, 261 Mich 495; 246 NW 202 (1933), but is similar. In Frishett v State Farm Mutual Auto mobile Ins Co, 3 Mich App 688; 143 NW2d 612 (1966), this Court held that the insurance company was liable for damages associated due to mental anguish for among other things, unjustly withholding benefits. Damages for mental suffering were allowed in McCune v Grimaldi Buick-Opel, Inc, 45 Mich App 472; 206 NW2d 742 (1973), where an employee sued his employer for the employer’s failure to maintain a health and medical insurance policy. Such insurance was characterized as a 'matter of "mental concern and solicitude” ’. Id., p 478. In the case at bar, the mental distress of failing to appeal a severe malpractice judgment considerably in excess of the policy limits would be considered foreseeable and would be a proper matter for the jury to consider.” 74 Mich App 266. (Emphasis supplied.)
Although Judge Campbell did not directly characterize the professional malpractice policy as one involving matters of mental concern and solicitude, it is clear from that panel’s reliance on Stewart and McCune that such denomination was implicit.
Likewise, in Seaton v State Farm Life Ins Co, 75 Mich App 252; 254 NW2d 858 (1977), the panel ruled that the lower court should have instructed the jury on mental anguish damages in an action occasioned by a life insurer’s refusal to pay benefits on the death of plaintiff’s husband:
"We believe such an instruction proper where the suit involves a personal life insurance contract which entails matters of mental concern and solicitude. Palmer v Pacific Indemnity Co, 74 Mich App 259; 254 NW2d 52 (1977); McCune v Grimaldi Buick-Opel, Inc, 45 Mich App 472, 478; 206 NW2d 742 (1973).” 75 Mich App 260.
The thrust and import of the above Michigan cases were accurately summarized by the Court of Appeals panel below as follows:
"The majority of the cases have dealt with awarding damages for mental anguish in breach of contract actions based on insurance policies. These cases all trace their roots to Justice Smith’s opinion in Stewart v Rudner, supra, where he stated that such damages were awardable for a breach of contract where the contract involved 'matters of mental concern and solicitude’. The contract involved in Stewart was unique. At that time, it is doubtful that any type of insurance contract would have qualified for the exception discussed by Justice Smith. One of the remarkable things about the recent decisions of this Court has been the ease with which a variety of insurance policies have been accepted as contracts involving mental concern and solicitude. That phrase now encompasses health insurance (McCune v Grimaldi Buick, supra), fire and casualty insurance (Krajenke v Preferred Mutual Ins Co, [68 Mich App 211; 242 NW2d 70 (1976)], professional malpractice insurance (Palmer v Pacific Indemnity Ins Co, supra), and life insurance (Seaton v State Farm Life Ins Co, supra). No Michigan court has considered whether disability insurance should be placed in the same classification. * * * Given the clear consensus of this Court established by those four decisions, we must * * * hold that disability insurance contracts are also concerned with matters of mental concern and solicitude.” Kewin, supra, 648-649.
B. Analysis
1. Plaintiff’s Disability Insurance Contract Involved Matters of Mental Concern and Solicitude: Emotional Distress Damage Was Within the Parties’ Contemplation at the Time of Contract Formation
We, too, find that disability insurance contracts are primarily personal in nature and that simple breach of such contracts will give rise to a contract cause of action for emotional distress damages. Our decision, it should be emphasized, does not hinge on a mere assignment of the term "primarily commercial” or "primarily personal” contract. To so proceed would obviously exalt form over substance. Rather, our characterization of plaintiffs disability contract as primarily personal merely provides a shorthand means to express our finding that disability insurance contracts are of such a nature that emotional distress may naturally arise from their breach or may have been within the contemplation of a reasonable disability insurer at the time such contract was forged.
Admittedly, disability contracts, much like other insurance contracts, involve a pecuniary element inasmuch as they are agreements to pay a sum of money upon the occurrence of a specified event. It is also true, however, that such contracts have as their central purpose certain highly personal ends, including: the elimination or minimization of financial hardship when a disability occurs, the protection of material security from the harsh consequences of disability, and the provision of emotional security through the insured’s anticipation that he or she will be insulated from such financial disaster as well as the peace of mind the policy will provide when paid in the event of disability. Also, as in most insurance situations, it is elemental that an insured is basically contracting for both financial and emotional security in the event of loss. The primacy of emotional secu rity is especially striking in the case of disability insurance contracts since the "very risks insured against presuppose that if and when a claim is made, the insured will be disabled and in strait financial circumstances and, therefore, particularly vulnerable * * Fletcher, supra, 404. "[P]laintiff did not seek by the contract involved here to obtain a commercial advantage but to protect herself against the risks of accidental losses, including the mental distress which might follow from the losses. Among the considerations in purchasing liability insurance, as insurers are well aware, is the peace of mind and security it will provide in the event of an accidental loss * * Crisci, supra, 434. Indeed, as implicitly recognized by the Stewart Court, a disability insurance contract is one "made to secure relief from a particular inconvenience or annoyance, or to confer a particular enjoyment” the breach of which, "so far as it disappoints in respect of that purpose, may give a right to damages appropriate to the objects of the contract” including those to remedy the insured’s resultant emotional distress. Stewart, supra, 470-471. To paraphrase Stewart, a disability insurance contract is not primarily concerned with trade and commerce but with the peace of mind and security it will provide in the event of disability, not with profit but with the protection of policyholders against strait financial circumstances, not with pecuniary aggrandizement but with exemption from the inconvenience and annoyance of curtailed income.
The allowance of emotional distress damage will work no hardship on the insurer since, by the very nature of the risks insured against, a disability insurer must be presumed to have contemplated that emotional distress would accrue as a conse quence of breach. Stated in terms of Hadley’s objective standard, at the time of contract formation a hypothetical reasonable person in the position of the defaulting disability insurer, with the insurer’s knowledge of the circumstances surrounding the disability insurance transaction, could reasonably have been expected to foresee or should have foreseen the disabled insured’s emotional distress necessarily or reasonably resulting from the insurer’s breach, had the insurer directed its attention to consideration of the matter. Again quoting Stewart, supra, 471:
"In such cases the parties may reasonably be said to have contracted with reference to the payment of damages therefor in [the] event of breach. Far from being outside the contemplation of the parties they are an integral and inseparable part of it.”
In arriving at our conclusion that the payment of such damages must have been contemplated by the insurer, we are reminded of the following passage from Corbin:
"It is not required that the defendant should have so expressed himself, either in making an offer or in accepting the plaintiff’s offer, as to lead the plaintiff reasonably to believe that he was contracting to make such recompense or to assume the risk of some particular kind or amount of injury in case of breach. * * * It is not necessary that the parties should have given the matter a moment’s thought or should have expressed themselves on the subject. If there are special circumstances, it is not even necessary that the defendant should have known them; it is enough that a reasonable man in his position would have known them. * * * His risk is one that is determined by the courts; and it is not dependent upon an expression of his assent regarding it.” 5 Corbin, Contracts, § 1010, p 79.
We conclude from our assessment of the risks insured against by disability contracts that the insurer contemplated liability for emotional distress damage in the event of non-payment. This holding is merely a logical consequence of this Court’s ruling in Miholevich, supra, and Stewart as well as the Court of Appeals rulings in McCune, supra, Palmer, supra, and Seaton, supra.
2. Plaintiff’s Disability Contract Had Been Breached by the Insured’s Failure to Pay Disability Benefíts
There is no dispute that the insurer breached its contract by failing to tender disability benefits. Consistent with the lower court’s instruction, moreover, the jury must have found that plaintiff had suffered such distress "as a result of the defendant’s knowing, reckless, bad-faith conduct”. The trial court’s instruction was more stringent than necessary since we are of the opinion that proof of any nature of breach will be sufficient to support a claim of emotional distress damage.
It is hornbook law "that when a promisor fails in any respect to carry out an existing duty calling for a present, immediate performance under a contract, he is guilty of a breach of contract which furnishes a basis for a cause of action of some sort”. Murray on Contracts (2d rev ed, Indianapolis: Bobbs-Merrill, 1974), § 206, p 417. There is no necessity for requiring more culpable conduct in insurance contract breaches than that required for breach of other contracts. Stewart recognized this principle sub silentio in requiring only a simple, innocent breach to support an emotional distress award. See McCune, supra (simple failure to remit premium payments); Palmer, supra (simple failure to defend); beatón, supra (simple failure to remit life insurance proceeds). While some jurisdictions have required a showing of bad faith to support an award of distress damages for breach of contract, we do not feel compelled to adopt such a qualification since we rest our decision entirely on contract principles. Emotional distress may be legitimately occasioned whether the breach is simple, negligent, aggravated, or otherwise. To deny recovery for contemplated emotional distress due to breach of a primarily personal contract because the defaulting promisor did not act in bad faith would directly contravene time-honored notions of contract law and frustrate the very goal of Stewart and its progeny. Even a simple refusal to pay is a denial of an insured’s basis of the bargain, re., the insured’s peace of mind that provision has been made for the unsettling exigencies of disability. What injures the policyholder is not the insurer’s intention to harm but, rather, the insurer’s failure to tender benefits determined to be due and the resulting emotional distress.
3. Breach of the Disability Insurance Contract Caused Plaintiffs Emotional Distress
In considering the court’s instruction regarding whether plaintiffs emotional distress was the result of defendant’s "knowing, reckless, bad faith conduct”, the jury had the following evidence of misconduct. The insurer was accused of continuing its surreptitious investigation of Mr. Kewin after medical reports had firmly established the serious nature of Mr. Kewin’s injury. The insurer also allegedly concealed a significant medical report from Mr. Kewin while negotiating a settlement of Mr. Kewin’s claim on May 2, 1973. Further, the insurer reportedly disputed Mr. Kewin’s claim on the untenable ground that he was unemployed at the time of the accident, although a company attorney had advised that such allegation was without foundation. Finally, the insurer repeatedly failed to make timely payment of Mr. Kewin’s benefits despite the fact that it should have been well aware of his disability and the emotional and financial difficulties which this entailed. The following testimony by Mr. Kewin as to his emotional distress was quoted in the facts, supra, ending:
"Q. * * * [W]hat effect, if any, did all of this conduct that you claim the defendant engaged in, what effect did that have on you personally, * * *?
"A. I was extremely depressed, nervous, irritable, disillusioned, just — I was just a wreck.”
We are not here as triers of fact to second-guess the jury’s award of damages or its appraisal of adequate compensation. As a general rule, such appraisal is solely left for the jury’s determination. McDuffie v Root, 300 Mich 286, 299-300; 1 NW2d 544 (1942). The fact that the jury was asked to assess "emotional distress” rather than another, perhaps more tangible, damage is of no import since this jurisdiction has increasingly recognized the propriety of such assessment in tort actions. See, e.g., Daley v LaCroix, 384 Mich 4; 179 NW2d 390 (1970); Toms v McConnell, 45 Mich App 647; 207 NW2d 140 (1973); Frishett v State Farm Mutual Automobile Ins Co, 3 Mich App 688; 143 NW2d 612 (1966); Prosser, Law of Torts (4th ed), § 54, pp 327-328.
4. The Jury’s Award of Emotional Distress Damages Must Be Upheld
Based on our finding that disability insurance contracts involve matters of mental concern and solicitude, the breach of which will support an award of emotional distress damages if adequately proven, we hold that the jury’s award in this matter must be upheld. This ruling is consistent with both the Stewart and Hadley doctrines. It also furthers the aim of risk allocation in the instance of disability insurance contracts by fulfilling the promisee’s disappointed expectation interest without imposing an undue financial burden on the defaulting promisor.
V. Plaintiff’s Pleadings Were Sufficient to Allege a Claim of Emotional Distress Arising From Defendant’s Breach of Contract
Having ruled that emotional distress damages may be recovered for breach of a disability insurance contract, the question remains whether plaintiff has sufficiently pled such a claim. There is no dispute that plaintiff sufficiently pled a contract cause of action; rather, the dispute involves whether plaintiff sufficiently pled a claim for emotional distress damages resulting from that breach. Contrary to the Court of Appeals determination, we hold that plaintiff made sufficient allegation to support a recovery of mental distress damages arising from breach of contract.
"[T]he function of the pleadings is to act as a guide rope, not as a snare or a hangman’s noose.” Olson v Dahlen, 3 Mich App 63, 72; 141 NW2d 702 (1966). The General Court Rules of 1963 were drafted to substitute notice or fact pleading for rigid forms of action. See GCR 1963, 111, Committee Note (2) ("This requirement is liberalized to the extent that no pleading shall be deemed insufficient if it reasonably informs the adverse party of the nature of the cause he is called upon to defend”), 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 191. Thus, Rule 111.1 provides that complaints must contain the following:
"(1) a statement of the facts without repetition upon which the pleader relies in stating his cause of action with such specific averments as are necessary reasonably to inform the adverse party of the nature of the cause he is called upon to defend; * * *.”
In those instances where special damages are claimed, GCR 1963, 112.8 provides that "they shall be specifically stated”. The Committee Notes indicate that this subrule on special damages was drafted in accordance with the following statement from McDuffie v Root, 300 Mich 286, 293-294; 1 NW2d 544 (1942):
"In some jurisdictions it is held that an injury must be specifically alleged, or must be the natural and necessary result of injury complained of in the pleadings, to justify the admission of evidence of such injury. Such is not the Michigan law. In this State, it is merely required that the injury sought to be proved must be the natural result of the injury complained of in the pleadings. If such injury can be traced to the act complained of, and is such as would naturally follow from the alleged injury, it need not be specifically averred. Groat v Detroit United Railway, 153 Mich 165 [116 NW 1081 (1908)].” (Emphasis changed.)
Thus, while both the subrule on complaints and the subrule on special damages literally require "specific” averments, it is apparent that the pleading need only reasonably inform the adverse party of the alleged injury from which the cause of action naturally flows.
Plaintiffs complaint set forth the nature of the disability policy and the circumstances under which his claim for policy benefits arose. The complaint alleged in part: that defendant had exhibited a "negative, skeptical, and defensive attitude toward his claim”; that defendant’s investigative measures "violated the spirit and intent of the policy and the spirit and intent of the representations” made to plaintiff by defendant’s agent; that plaintiff sought to avoid "further 'hassle’, which was distasteful to him” while plaintiff "was disabled, was without income, was under the care of physicians, was suffering the effects of his injury”; that "defendant has, by its course of conduct, evidenced a breach of this [fiduciary trust] relationship amounting to utter lack of good faith and bordering on the deceitful”. These allegations were amplified in plaintiffs reply to affirmative defenses with the additional allegation that plaintiff is "entitled to an award of punitive damages because of the conduct of the defendant, which was coercive bad-faith conduct inducing duress, conduct involving misrepresentation, concealment of material facts, deceitful and amounting in law to malicious conduct”. Concluding, plaintiff requested damages "by way of breach of contract, express or implied, misrepresentation and deceit, breach of a fiduciary duty, both express in amount as provided for in the policy and punitive in nature”.
On the fifth day of trial, plaintiff sought to amend the complaint for the purpose of introducing evidence of emotional distress. After recognizing that complaints serve a notice function with flexibility, the court ruled that amendment was unnecessary since "there is a general claim that there is emotional distress and difficulties that may have arisen, * * * within the context of the original complaint”; "I will allow that testimony * * * within the framework of emotional distress arising out of the failure or alleged failure of a defendant company to meet its obligations under an insurance contract”.
We agree with the trial court that plaintiff’s factual statements and averments were sufficient to put defendant on notice that plaintiff was seeking emotional distress damages for breach of contract. As we earlier outlined, and as the McDuffie Court imparted, since emotional distress "can be traced to the act complained of, and is such as would naturally flow from the alleged injury, it need not be specifically averred”. McDuffie, supra, 293-294. Furthermore, plaintiff’s claim for "punitive” damages was akin to a specific averment of emotional distress since such damages have traditionally encompassed compensation for injured feelings, Detroit Daily Post Co v McArthur, 16 Mich 447, 453-454 (1868), Ray v Detroit, 67 Mich App 702, 704; 242 NW2d 494 (1976), and earlier cases have evidenced a lenient attitude toward the requirement that the mental anguish basis for exemplaries be specially pleaded. See Wise v Daniel, 221 Mich 229, 234; 190 NW 746 (1922); Smith v Jones, 382 Mich 176, 206-207; 169 NW2d 308 (1969) (Adams, J., concurring). Finally, GCR 1963, 118.3 provides for great liberality in the amendment of pleadings; even substantial omissions from a complaint should be overlooked if the complaint is nonetheless sufficient to provide the defendant with notice of the claims against which defendant must defend. City of Auburn v Brown, 60 Mich App 258; 230 NW2d 385 (1975). Even though the trial court found amendment unnecessary, the sense of the above authorities indicates that plaintiff should have been permitted to pursue the emotional distress claim in any event.
The novel nature of plaintiffs claim in contract, premised on the dearth of Michigan cases issued prior to this 1976 trial allowing emotional distress damages against insurers, should not add to plaintiffs burden of pleading. If we were to so rule today, we would likely deter future filings of untested, imaginative and persuasive claims. Indeed, defendant cannot argue that it has been unfairly surprised if plaintiffs novel claim unexpectedly succeeds, so long as defendant had been reasonably notified from the pleadings that such a claim would be made.
In substance, then, we find that defendant had been reasonably informed of the nature of the claim that defendant was called upon to defend pursuant to Rule 111.1(1) and that the claim for emotional distress was sufficiently alleged as required by the rule of McDuffie and memorialized in Rule 112.8. No abuse of discretion having been shown in the trial court’s ruling that plaintiffs emotional distress claim was adequately framed in its complaint, the Court of Appeals determination that the complaint was insufficient is reversed.
VI. Where an Insurance Contract Has Been Determined to Be Personal in Nature,
Plaintiff May Not Recover Both Emotional Distress and Exemplary Damages
After recognizing that a contract cause of action for emotional distress damages may lie for breach of a disability contract, the Court of Appeals reversed the jury’s award of such damages on the ground that they were not sufficiently pled. Turning its attention to plaintiffs request for punitive or exemplary damages, the panel concluded:
"The exemplary damage question is the most difficult one for us. In the first section of this opinion, we held that exemplary damages could not be recovered in this type of case because it was possible to recover damages for mental anguish and exemplary damages were intended to compensate for the same injuries. But, defects in the pleadings have prevented recovery of mental anguish damages. The plaintiff did not specifically request exemplary damages. But he did request punitive damages. Historically, punitive damages have overlapped exemplary damages. And exemplary damages in turn have overlapped damages for mental anguish which we have held are recoverable in this type of breach of contract action. This multiple overlap factor weighs in favor of allowing some recovery.” Kewin, supra, 656-657.
"It is a close question, but we believe that the allegations were sufficient to support an exemplary damage recovery in this case since there will be no direct recovery for mental anguish damages. ” Id., 657. (Footnote omitted, emphasis supplied.)
We agree with both the Court of Appeals and our Brother Kavanagh’s assessment that exem plary damages, much like emotional distress damages, are intended to compensate for injured feelings. See Detroit Daily Post Co v McArthur, 16 Mich 447, 453-454 (1868); McFadden v Tate, 350 Mich 84, 89; 85 NW2d 181 (1957); Ray v Detroit, 67 Mich App 702, 704; 242 NW2d 494 (1976). The focus of the trial court’s instruction on both exemplary and emotional distress damages was likewise directed to the alleged injury to plaintiff’s feelings occasioned by defendant’s conduct.
Since both damage claims are intended to compensate for the same injury and since the trial court’s instruction on both claims focused on the same injury resulting from the same conduct, the conclusion is inescapable that the jury’s award of both exemplary and emotional distress damages constituted double recovery for an identical wrong. Where damages are intended to compensate, as in the case of exemplary damages, rather than to punish, this Court will not indulge a double recovery. Unlike the Court of Appeals, our finding that plaintiff sufficiently alleged a claim for emotional distress resulting from breach of contract requires us to uphold the jury’s award of $75,000 for such damages. Since the jury’s award of $50,000 for exemplary damages compensated for the same injury resulting from the same conduct, we must vacate that award as constituting an impermissible double recovery in this instance.
VII. Conclusion
We hold that emotional distress may foreseeably result from breach of a disability insurance contract and that such contracts are primarily personal, involving matters of mental concern and solicitude rather than primarily commercial, involving matters of pecuniary aggrandizement. Suits alleging emotional distress damages for breach of disability insurance contracts properly come within the Stewart-Hadley rule allowing the award of such damages. In this instance, plaintiff has sufficiently pled such a claim. The jury’s award of both emotional distress and exemplary damages as compensation for the same injury resulting from the same conduct, however, constituted impermissible double recovery.
We, therefore, reverse the Court of Appeals determination that plaintiffs emotional distress claim was insufficiently pled and reinstate the jury’s award of emotional distress damages. We likewise reverse the Court of Appeals decision to uphold the jury’s award of exemplary damages and vacate that award. In all other respects, the Court of Appeals is affirmed.
No costs, neither party having prevailed in full.
See 5 Corbin, Contracts, § 1076, p 427; 1 Restatement Contracts, § 341, p 559. The American Law Institute has proposed the following rule with respect to recovery for mental or emotional disturbance in a breach of contract case, Restatement Contracts, 2d (Tentative Draft No 14, 1979), § 367, pp 100-101:
"Recovery for emotional disturbance will be excluded unless the breach also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result.”
The comment to this section explains the application of it:
"Damages for emotional disturbance are not ordinarily allowed. Even if they are foreseeable, they are often particularly difficult to establish and to measure. There are, however, two exceptional situations where such damages are recoverable. In the first, the disturbance accompanies a bodily injury. In such cases the action may nearly always be regarded as one in tort, although most jurisdictions do not require the plaintiff to specify the nature of the wrong on which his action is based and award damages without classifying the wrong. See Restatement, Second, Torts §§ 436, 905. In the second exceptional situation, the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result. Common examples are contracts of carriers and innkeepers with passengers and guests, contracts for the carriage or proper disposition of dead bodies, and contracts for the delivery of messages concerning death. Breach of such a contract is particularly likely to cause serious emotional disturbance. Breach of other types of contracts, resulting for example in sudden impoverishment or bankruptcy, may by chance cause even more severe emotional disturbance, but, if the contract is not one where this was a particularly likely risk, there is no recovery for such disturbance. (Emphasis added.)
We do not address a question not raised: Whether compensation for attorney’s fees or other items of pecuniary loss caused by a breach of the insurer’s contractual obligation to process claims in good faith might be recoverable if properly pleaded.
349 Mich 459, 471; 84 NW2d 816 (1957) (Justice Talbot Smith writing for three others concurring; the four remaining Justices concurred in result alone but without separate opinion).
9 Exch 341; 156 Eng Rep 145 (1854).
Stewart, supra, 471.
In so ruling, we reject defendant’s assertion that the Uniform Trade Practices Act, MCL 500.2001 et seq.; MSA 24.12001 et seq. provides adequate remedy for an insured who has been denied benefits through the act’s assessment of 12% interest on late payments. MCL 500.2006(4); MSA 24.12006(4). The payment of interest is intended to compensate for lost use of money rather than mental anguish. Additionally, this Court has deemed interest to be sufficient compensation but has never held it to constitute an exclusive remedy. See Miholevich v Mid-West Mutual Auto Ins Co, 261 Mich 495, 497; 246 NW 202 (1933).
A more recent English case, Victoria Laundry (Windsor), Ltd v Newman Industries, Ltd, 2 KB 528, 539; 1 All ER 997 (1949), has succinctly summarized the two principles promulgated in Hadley as follows:
"Everyone, as a reasonable person, is taken to know the 'ordinary course oí things’ and consequently what loss is liable to result from a breach of contract in that ordinary course. This is the subject matter of the 'first rule’ in Hadley v Baxendale. But to this knowledge, which a contract-breaker is assumed to possess whether he actually possesses it or not, there may have to be added in a particular case knowledge which he actually possesses, of special circumstances outside the 'ordinary course of things,’ of such a kind that a breach in those special circumstances would be liable to cause more loss. Such a case attracts the operation of the 'second rule’ so as to make additional loss also recoverable.”
See, generally, Note, Damages Assessed Against Insurer for Wrongful Failure to Pay, 10 Wm & Mary L Rev 466, 467 (1968); Note, Damages for Mental Suffering Caused by Insurers: Recent Developments in the Law of Tort and Contract, 48 Notre Dame Lawyer 1303 (1973); Note, The New Tort of Bad Faith Breach of Contract: Chris tian v American Home Assurance Corp [577 P2d 899 (Okla, 1977)], 13 Tulsa L J 605 (1978); Note, The Widening Scope of Insurer’s Liability, 63 Ky L J 145 (1975). See 1 Restatement Contracts, § 341, p 559, which provides:
"In actions for breach of contract, damages will not be given as compensation for mental suffering, except where the breach was wanton or reckless and caused bodily harm and where it was the wanton or reckless breach of a contract to render a performance of such a character that the defendant had reason to know when the contract was made that the breach would cause mental suffering for reasons other than mere pecuniary loss.”
For an elaboration of this section, Mr. Justice Musmanno’s concurrence in Gefter v Rosenthal, 384 Pa 123; 119 A2d 250 (1956), is insightful. See also Jankowski v Mazzotta, 7 Mich App 483; 152 NW2d 49 (1967).
The Restatement’s position on the award of emotional distress damages has been tentatively revised to provide as follows:
"Recovery for emotional disturbance shall be excluded unless the breach has also caused bodily harm or the contract or breach is of such a kind that serious emotional disturbance was a particularly likely result.” Restatement Contracts, 2d (Tentative Draft No 14, 1979), § 367, pp 100-101.
The comment to this section indicates a trend away from the original Restatement’s focus on the nature of the breach and toward an emphasis on Hadley’s teachings:
"In the second exceptional situation, the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result. Common examples are contracts of carriers and innkeepers with passengers and guests, contracts for the carriage or proper disposition of dead bodies, and contracts for the delivery of messages concerning death. Breach of such a contract is particularly likely to cause serious emotional disturbance. Breach of other types of contracts, resulting for example in sudden impoverishment or bankruptcy, may by chance cause even more severe emotional disturbance, but, if the contract is not one where this was a particularly likely risk, there is no recovery for such disturbance.’’ (Emphasis supplied.)
Vanderpool v Richardson, 52 Mich 336; 17 NW 936 (1883).
Humphrey v Michigan United R Co, 166 Mich 645; 132 NW 447 (1911).
Frewen v Page, 238 Mass 499; 131 NE 475; 17 ALR 134 (1921).
Fitzsimmons v Olinger Mortuary Ass’n, 91 Colo 544; 17 P2d 535 (1932).
Wadsworth v Western Union Telegraph Co, 86 Tenn 695; 8 SW 574 (1888).
Aaron v Ward, 203 NY 351; 96 NE 736 (1911).
Avery v Arnold Home, Inc, 17 Mich App 240; 169 NW2d 135 (1969).
5 Corbin, Contracts, § 1076, p 429.
Even in Hadley, the Court implied that, had the ’miller informed the carrier of the special circumstances under which the contract was made, special damages would likely have been awarded.
See Westervelt v McCullough, 68 Cal App 198; 228 P 734 (1924). In Westervelt, the defaulting promisor breached its contract to provide a home and personal care for the aging promisee. The California court held that damages for emotional distress may be recovered for contract breach on the ground that certain "special” contracts contemplate that emotional distress damages will naturally arise from the breach. Here, the “comfort, happiness, or personal welfare” of the disappointed promisee was within the promisor’s initial contemplation. The court continued: "Whenever the terms of a contract relate to matters which concern directly the comfort, happiness, or personal welfare of one of the parties, or the subject matter of which is such as directly to affect or move the affection, self-esteem or tender feelings of that party, he may recover damages for physical suffering or illness proximately caused by its breach.” Id., 208-209.
In reversing the district court’s dismissal of plaintiffs claim for emotional distress damages, the Federal Seventh Circuit indicated that "an action of the type involved here sounds both in contract and in tort”. Eckenrode, supra, 5, fn 4. Foreseeability of emotional distress gauged by contract principles was apparently not seen as problematic since the court felt that, by the very nature of the risks insured against, a reasonable insurer should have contemplated that an injured beneficiary would be susceptible to such distress.
The fact that the Miholevich Court permitted the award of such damages for breach of a liability rather than an indemnity insurance contract is a distinction without a difference. In both instances, such damages may be awarded only where it has been found that emotional distress arises naturally from or reasonably can be said to have been in the contemplation of the parties at the time the contract was formed.
The Court of Appeals below correctly recognized that, strictly speaking, the Palmer panel’s citation to Frishett was not exact since Frishett was a tort case addressing the propriety of an emotional distress award arising from the intentional infliction of emotional distress, while Miholevich, McCune, Stewart, and Palmer were each concerned with the award of such damages arising from breach of contract. Kewin, supra, 656. See also Krajenke v Preferred Mutual Ins Co, 68 Mich App 211; 242 NW2d 70 (1976) (exemplary damages awarded for breach of "personal” insurance contract). We mention this subtle distinction not to criticize the Palmer panel but to emphasize that we are today recognizing an action ex contractu for emotional distress damage. In fact, we can appreciate the Palmer panel’s reference to Frishett inasmuch as this jurisdiction has increasingly blurred the division between tort and contract in products liability actions and has expanded the breadth of emotional distress recovery in other suits. Indeed, this parallel development in the emotional distress area of concern persuades us of the correctness of our holding herein without the necessity of relying on tort cases for precedent.
But see, Riggs v Fremont Mutual Ins Co, 85 Mich App 203; 270 NW2d 654 (1978) (exemplary damages not recoverable for breach of fire insurance policy); Fletcher v Aetna Casualty & Surety Co, 80 Mich App 439; 264 NW2d 19 (1978) (exemplary damages not recoverable for breach of uninsured motorist coverage). In Bolden v John Hancock Mutual Life Ins Co, 422 F Supp 28 (ED Mich, 1976), it was held that disability insurance contracts do not qualify for the Stewart complement to Hadley. Beyond the fact that we are not bound to follow this state’s lower Federal courts in their interpretation of our decisions, it is significant that Bolden was decided without the benefit of Palmer, supra (1977), or Seaton, supra (1977).
Equally inapposite is our Brother Kavanagh’s citation to the 1953 Sixth Circuit case of Scottish Union & National Ins Co v Bejcy, 201 F2d 163, 166 (CA 6, 1953), for the general proposition urged by Corbin that emotional distress damages may not be awarded for breach of an insurance contract because it would seem "far-fetched to say that the insurer has promised to pay the loss and has also promised to pay the loss caused by his failure to pay the loss”, 5 Corbin, Contracts, § 1010, pp 80-81. Not only was this Federal opinion rendered without the benefit of McCune, supra, Palmer, supra, or Seaton, supra, but it was also issued four years prior to Justice Smith’s pronouncement in Stewart. Indeed, had the Sixth Circuit ruled differently in 1953, it is likely that its decision would have violated the doctrine of Erie R Co v Tompkins, 304 US 64; 58 S Ct 817; 82 L Ed 1188 (1938).
We must respectfully disagree with our Brother Kavanagh’s citation to Secor v Pioneer Foundry Co, 20 Mich App 30, 35; 173 NW2d 780 (1969), for the proposition that "Such [insurance contracts for disability income protection] are commercial in nature; they are agreements to pay a sum of money upon the occurrence of a specified event, Secor * * The issue presented in Secor was whether an employer maintains an insurable interest in an employee’s key-man life insurance policy after the employee has terminated employment. Not only was Secor restricted to a consideration of life, not disability, insurance matters, but, additionally, no claim was made for and the Court of Appeals did not address the issue of emotional distress recovery for breach of such life insurance contract. The plaintiff’s reference to personal as well as financial loss suffered by family members on the insured’s death was presumably only offered to persuade the panel, on policy grounds, that key-man life insurance policies should be treated differently from other life insurance policies where the issue of insurable interest is in dispute. No claim for emotional distress damages having been made, this case is inapposite to the question before this Court.
See generally fn 6, supra.
A collateral reason for holding an insurer liable for such damages in the event of simple breach stems in part from the special relationship thrust on the insurer and the insured. It is clear that the insurance industry both has an expansive and a very intimate impact on our society. Vance, Handbook of the Law of Insurance (2d ed), § 13, fn 53. An insured has virtually no bargaining power concerning the terms of a policy and consequently no method of guaranteeing that the insurer will adequately protect the insured. Christian v American Home Assurance Co, 577 P2d 899, 902 (Okla, 1977). Indeed, as early as 1914, the United States Supreme Court recognized the monopolistic nature of the insurance industry and the strikingly unequal bargaining power between an insurer and an insured. German Alliance Ins Co v Lewis, 233 US 389; 34 S Ct 612; 58 L Ed 1011 (1914).
This potential for overreaching is aggravated when the contingency for which the policy was purchased occurs. The California Court of Appeal in Fletcher, supra, has aptly stated in this regard:
"These considerations are particularly cogent in disability insurance. The very risks insured against presuppose that if and when a claim is made, the insured will be disabled and in strait financial circumstances and, therefore, particularly vulnerable to oppressive tactics on the part of an economically powerful entity.” Fletcher, supra, 404.
Furthermore, in the event that the insured submits a claim, the insurer will be well aware of the insured’s highly susceptible condition and the opportunity to exploit it. Great power must entail great responsibility. Such responsibility must be akin to a fiduciary duty.
As to exemplary damages, the court instructed that such damages "are intended only as compensation for the supposed aggravation of an injury to the feelings of another by wanton or reckless acts of a defendant" (emphasis supplied). With respect to emotional distress damage, the jury was instructed that "if you find the plaintiff did suffer emotional distress as a result of the defendant’s knowing, reckless, bad-faith conduct, then you must award a sum adequate to compensate for mental and emotional loss or injury, as you believe he was subjected to the effects caused by the defendant’s conduct” (emphasis supplied). It is clear that both instructions had as their purpose the compensation of injured feelings arising from defendant’s wanton, reckless, knowing, bad-faith conduct. The congruency of these instructions and the paradox that they consequently created for the jury is arguably evidenced by the jury’s request that the court reiterate its instruction on exemplary damages.
By vacating the jury’s award of exemplary damages in this particular instance, we do not intend to signal that future parties may not postulate alternative claims for emotional distress as well as exemplary damages arising from the breach of an insurance contract. What we hold in this regard is that both claims of damage may not be recovered as compensation for the same injury and resulting from the same conduct as in this instance. | [
-62,
-23,
11,
28,
7,
22,
40,
-37,
-21,
6,
-4,
-7,
64,
-9,
-23,
-6,
-27,
-20,
0,
28,
-39,
-30,
31,
33,
18,
-89,
13,
-24,
-3,
14,
22,
28,
-8,
31,
-67,
11,
7,
-36,
-33,
33,
-11,
-14,
-23,
6,
-5,
-22,
0,
15,
37,
14,
36,
26,
-10,
-35,
-8,
-8,
42,
24,
-9,
-43,
-52,
3,
61,
10,
39,
-4,
2,
21,
-1,
7,
-10,
33,
44,
11,
-9,
14,
12,
13,
2,
-8,
34,
-39,
-8,
-8,
-51,
50,
12,
21,
30,
16,
-32,
6,
-40,
-18,
-18,
18,
4,
26,
4,
48,
-15,
40,
-7,
22,
3,
36,
42,
-12,
-70,
-4,
-45,
-17,
18,
5,
-22,
-25,
19,
-1,
39,
19,
-8,
-20,
52,
-11,
27,
69,
47,
-19,
-29,
9,
38,
30,
13,
-16,
-43,
-20,
-16,
-42,
23,
12,
16,
1,
-21,
-5,
-10,
70,
-4,
-70,
9,
-1,
19,
-8,
-2,
22,
-26,
-1,
-36,
-10,
23,
-50,
36,
8,
-2,
8,
-20,
-38,
-7,
56,
59,
11,
33,
-21,
6,
-64,
-45,
8,
61,
-17,
-15,
26,
-2,
-19,
19,
27,
8,
-15,
18,
-28,
16,
21,
34,
-15,
-70,
49,
1,
-10,
38,
11,
20,
-37,
1,
-68,
-2,
2,
-16,
-16,
-12,
23,
-4,
14,
19,
-11,
12,
-79,
3,
11,
40,
2,
-32,
-47,
-27,
44,
-21,
-4,
-51,
-16,
-36,
-17,
-34,
-45,
-40,
-11,
8,
52,
-23,
55,
17,
-33,
30,
16,
-9,
39,
9,
-33,
-5,
-16,
-29,
-29,
2,
-6,
17,
-1,
-21,
-26,
-43,
-4,
31,
16,
10,
0,
-49,
45,
-37,
60,
49,
-19,
20,
30,
44,
0,
-10,
-16,
18,
-70,
-3,
-52,
-9,
23,
41,
-15,
-10,
18,
11,
-4,
-54,
1,
29,
-1,
-17,
0,
2,
-45,
-7,
16,
39,
-35,
30,
-27,
-36,
-15,
-45,
-13,
31,
16,
-11,
-14,
-7,
-58,
23,
-6,
-10,
-31,
38,
-61,
22,
-20,
-21,
0,
-18,
-56,
12,
53,
-2,
43,
5,
-10,
1,
-24,
-41,
-4,
-42,
4,
11,
23,
9,
-67,
-1,
-4,
9,
-21,
-4,
50,
10,
-12,
-50,
24,
30,
-46,
55,
23,
-24,
-10,
18,
-10,
-15,
93,
63,
-52,
-66,
42,
0,
-9,
-11,
-21,
22,
41,
-10,
-12,
-64,
51,
-24,
-4,
5,
-39,
-42,
-33,
-18,
22,
-10,
-6,
23,
-29,
30,
-15,
-12,
21,
-72,
5,
2,
14,
-70,
-9,
60,
49,
-47,
24,
-72,
-20,
-20,
47,
-1,
-5,
-2,
34,
-45,
17,
30,
-27,
-7,
-3,
-28,
8,
-20,
19,
23,
-15,
55,
-34,
-18,
-40,
68,
28,
13,
-56,
-28,
-8,
54,
41,
8,
-37,
-2,
-17,
-8,
-44,
45,
8,
-41,
-47,
-11,
0,
-30,
13,
7,
-5,
20,
46,
-26,
-7,
50,
-7,
19,
-4,
-2,
34,
-52,
-6,
2,
-22,
-25,
-39,
-22,
-47,
-43,
-10,
79,
5,
-30,
16,
39,
-31,
64,
-8,
-28,
0,
-37,
0,
-38,
-13,
-5,
-19,
-18,
2,
-28,
8,
18,
-33,
22,
0,
-50,
9,
17,
-27,
-25,
0,
10,
-16,
-68,
7,
-33,
-50,
-16,
9,
25,
16,
36,
-84,
-39,
-55,
25,
1,
-24,
26,
-13,
37,
24,
7,
-5,
-14,
15,
-21,
-33,
-21,
-27,
-23,
0,
-48,
-19,
4,
15,
-30,
21,
1,
55,
-8,
15,
18,
0,
-5,
-40,
2,
9,
75,
13,
-2,
34,
-63,
39,
35,
75,
24,
4,
-55,
48,
-5,
30,
-9,
23,
-11,
66,
-1,
23,
-13,
22,
25,
-10,
0,
-2,
-16,
4,
-16,
-35,
4,
26,
14,
-27,
18,
-12,
-28,
-38,
31,
-17,
-29,
0,
-22,
-48,
-31,
13,
9,
13,
-55,
-26,
-30,
-29,
9,
33,
-7,
15,
-19,
18,
5,
19,
-19,
-46,
-12,
8,
9,
26,
18,
16,
-2,
-11,
31,
20,
-48,
-9,
-35,
-5,
57,
23,
33,
0,
31,
16,
31,
-18,
51,
14,
0,
0,
27,
48,
-42,
14,
-60,
20,
4,
0,
55,
-33,
11,
-24,
25,
59,
28,
-76,
13,
-3,
-64,
-68,
-28,
-51,
63,
-35,
-2,
-44,
37,
28,
75,
-13,
0,
-11,
-14,
-16,
14,
-7,
9,
28,
10,
8,
28,
-15,
39,
29,
20,
-3,
-16,
18,
-30,
7,
5,
-35,
-67,
59,
55,
-1,
-2,
-1,
-14,
39,
-22,
-22,
19,
-26,
9,
12,
18,
-15,
12,
3,
-15,
-43,
15,
-48,
11,
18,
31,
7,
-26,
9,
15,
5,
0,
-16,
13,
54,
20,
15,
-36,
-15,
18,
-27,
-49,
30,
-17,
26,
43,
52,
30,
39,
-12,
-22,
25,
-33,
29,
-38,
2,
41,
5,
-25,
6,
63,
19,
53,
23,
15,
-2,
-12,
14,
45,
27,
-34,
-25,
-25,
4,
15,
-14,
3,
5,
19,
-18,
-7,
-23,
26,
5,
-56,
-21,
18,
-14,
45,
-2,
-25,
37,
-19,
-59,
-37,
28,
67,
-32,
-49,
-30,
3,
-17,
5,
-15,
-29,
-41,
-9,
-8,
45,
-37,
3,
-38,
-19,
-4,
18,
-2,
20,
-19,
-8,
-12,
35,
46,
-25,
-28,
-11,
-5,
54,
4,
63,
-7,
-40,
-39,
28,
25,
-33,
-3,
-30,
45,
-4,
-7,
18,
42,
-32,
-12,
13,
-2,
-8,
21,
44,
-21,
-65,
-23,
-26,
-2,
48,
49,
26,
-18,
-45,
-42,
40,
-4,
10,
19,
34,
-5,
1,
-5,
-53,
20,
-16,
-98,
-11,
16,
9,
-61,
0,
-49,
0,
1,
2,
-3,
-28,
11,
6,
-5,
-9,
13,
-15,
-9,
8,
24,
-25,
-14,
-35,
64,
36,
-39,
21,
-33,
-22,
-36,
-26,
18,
1,
-36,
30,
11,
-92,
50,
33,
16,
-12,
-25,
-52,
-13,
-16,
39,
21,
-3,
13,
-9,
-20,
25,
-49,
-3,
21,
36,
-29,
17,
-11,
-17,
-9,
-37,
27,
14,
54,
15,
-14,
34,
-12,
-43,
-24,
-40,
-8,
13,
28,
22,
-12,
38,
37,
-39,
-24,
97,
52,
-32,
33,
-30,
-45,
-11,
74,
50,
0,
-15,
-45,
-37,
11,
-6,
21,
55,
21,
-18,
-37,
12,
-13,
-9,
36,
2,
27,
48,
29,
5,
-42,
-15,
51,
49,
56,
-4,
-40,
-7,
45,
-40,
-18,
-54,
-27,
9,
14,
3,
35,
0,
22,
-49,
-51,
9,
-34,
25,
-9,
0,
-16,
-3,
6,
42,
7,
32,
17,
9,
36,
18,
-11,
-8,
4,
13,
18,
20,
-7,
8,
10,
9,
60,
0,
41,
36,
38,
-57,
-21,
35,
-28,
-39,
-25,
-15,
29,
9,
25,
3
] |
Sharpe, J.
The defense to this action, brought to recover on defendant’s promissory note, is based upon the claim that the defendant, at the solicitation of plaintiff, “agreed as a stockholder to vote in favor of a loan from the Stott Realty Company to the David Stott Flour Mills in the sum of $150,000,” in which corporations both plaintiff and defendant were stockholders, in consideration of “plaintiff’s promise to cancel and deliver” to defendant the promissory note in question; that he did so vote, and that plaintiff, although requested to do so, has failed to deliver the note to him.
The stockholders of a corporation have a community of interest in the property owned by it. They can perform valid acts only when lawfully assembled in their representative capacity. When so acting, every stockholder has the right to assume that every other stockholder is exercising an independent and honest judgment on the questions presented, and that none of them has been influenced by a consideration paid to him for voting in a particular manner. As was said in West v. Camden, 135 U. S. 507, 521 (10 Sup. Ct. 838), it was the right of the other stockholders “to have the defendant’s judgment, as an officer of the company, exercised with a sole regard to the interests of the company. ’ ’ A number of stockholders, before a meeting, may agree to combine together to favor any particular policy or lawful action to be considered thereat, and, if they own a majority of the stock, the minority may not, ordinarily, question their right to do so.
But the question here presented is whether one stockholder, in order to obtain a vote of the majority of the stock, may, by the payment of a cash consideration to another, secure the vote of his stock in the manner desired by him. If the defendant believed that the action sought by the plaintiff was in the interest of the corporation, he should have assented to it. He - apparently did not so consider it. His vote, cast as plaintiff desired, must be treated as influenced solely by the consideration he claims he was to receive therefor. In my opinion, if the contract, as claimed by him, was entered into, it was against public policy, and void.
In 2 Thompson on Corporations (3d Ed.), § 995, the right of stockholders to combine in a voting trust is considered at length. The following from Smith v. Railway Co., 115 Cal. 584 (47 Pac. 582, 35 L. R. A. 309, 56 Am. St. Rep. 119), is quoted with approval:
“The stockholder cannot separate the voting power from his stock by selling his right to vote for a consideration personal to himself alone, any more than he could agree for the same consideration to cast the vote himself, and an agreement with others to appoint a proxy upon the same considerations would be equally invalid.”
“A corporation holds its property in trust for its stockholders. The stockholders have a joint interest in the same property and in the same title. Community of interest in a common property or title imposes a community of duty and a mutual obligation to do nothing to impair either. It creates such a fiducial relation as makes it inequitable for any of those who thus share in the common property to do anything to or with it for their own profit, to the detriment of others who have the same rights.” Wheeler v. Abilene Nat’l Bank Bldg. Co., 89 C. C. A. 477, 479 (159 Fed. 391, 393, 16 L. R. A. [N. S.] 892, 14 Ann. Cas. 917).
The following decisions of this court, while not directly in point, are indicative of the rule which should be applied in this case:
“An agreement by two of the three stockholders of a corporation, who are also directors, that, in consideration of the purchase of stock, the vendee shall be employed as business manager for two years, and if at the end of that time he wishes to retire from the corporation they will repurchase his stock at a stated price, is void as against public policy, unless assented to by the other stockholder.” Wilbur v. Stoepel (syllabus), 82 Mich. 344 (21 Am. St. Rep. 568).
“The execution of a contract between four of the directors and stockholders of several corporations, 'holding a majority of the stock in each, without the consent of other stockholders, for purposes of personal gain, containing provisions for the continued employment of one of the contracting parties as manager at a fixed salary, and determining the business policy of the several corporations, is contrary of public policy, and may not be enforced specifically.” Scripps v. Sweeney (syllabus), 160 Mich. 148.
The judgment is affirmed.
Clark, C. J., and McDonald, North, Fead, [Wiest, and Butzel, JJ., concurred with Sharpe, J. | [
58,
10,
-3,
18,
-5,
27,
22,
10,
28,
63,
7,
48,
45,
48,
-12,
4,
45,
-7,
8,
-7,
-24,
-94,
-32,
12,
-2,
-35,
-32,
10,
7,
26,
-8,
20,
-37,
-32,
-62,
3,
-13,
24,
7,
-7,
9,
21,
18,
-10,
-35,
-11,
-46,
-59,
-16,
-35,
72,
10,
28,
-29,
36,
-1,
7,
8,
-20,
-3,
-32,
-49,
60,
-31,
4,
6,
11,
35,
-22,
-1,
-53,
-42,
-17,
-4,
53,
-34,
13,
-4,
-11,
-44,
0,
-61,
10,
-15,
-24,
8,
18,
13,
-42,
33,
16,
-1,
-30,
-58,
10,
35,
42,
1,
35,
22,
10,
-50,
-11,
-12,
-14,
12,
-4,
-38,
17,
-16,
-44,
13,
-8,
1,
-37,
3,
-15,
-5,
-34,
-34,
43,
24,
0,
16,
7,
-7,
8,
-12,
-28,
26,
36,
-5,
-19,
41,
-5,
12,
-22,
-63,
47,
27,
-24,
41,
31,
-27,
2,
15,
-5,
-5,
-34,
-12,
-12,
6,
-45,
10,
-8,
-31,
-10,
-42,
63,
-25,
16,
41,
9,
12,
-28,
48,
-51,
-1,
-54,
22,
5,
20,
-50,
-44,
-22,
-8,
-22,
-35,
-31,
-45,
14,
76,
-22,
59,
13,
7,
-34,
8,
32,
17,
9,
14,
13,
37,
9,
2,
-14,
58,
31,
25,
-3,
-16,
-12,
9,
-40,
-61,
24,
-14,
-27,
69,
-37,
34,
-8,
-44,
-17,
-2,
32,
-77,
31,
-18,
1,
-1,
-39,
3,
-28,
-31,
22,
-31,
-38,
-3,
-2,
17,
0,
36,
2,
-6,
10,
-41,
28,
13,
-4,
0,
5,
5,
-30,
-37,
9,
6,
2,
43,
13,
-29,
-31,
44,
23,
-17,
-56,
-14,
-2,
-24,
7,
48,
-79,
1,
-19,
-56,
39,
13,
-24,
36,
17,
5,
-9,
20,
-43,
-18,
-13,
-14,
-35,
-86,
2,
2,
3,
30,
-33,
14,
6,
27,
-27,
-3,
40,
13,
51,
24,
36,
4,
-3,
16,
48,
-32,
2,
11,
0,
11,
23,
0,
-55,
-16,
-44,
-50,
39,
18,
-52,
-8,
9,
-18,
2,
22,
14,
-25,
33,
8,
16,
-41,
-15,
-30,
62,
-49,
11,
-13,
13,
11,
-1,
19,
10,
-9,
60,
-6,
-23,
-26,
38,
0,
46,
-24,
24,
-22,
-27,
-28,
-76,
-6,
-52,
7,
-14,
24,
3,
0,
6,
-1,
-38,
0,
13,
-18,
0,
5,
33,
-1,
5,
-43,
19,
62,
4,
15,
-29,
-21,
-38,
-17,
-45,
15,
-56,
52,
-32,
-12,
72,
-42,
48,
-22,
-52,
23,
-46,
-4,
-41,
4,
-29,
44,
-21,
-51,
-6,
-45,
-25,
-28,
-14,
35,
-14,
-36,
-66,
-7,
-14,
-29,
11,
42,
-9,
15,
7,
-38,
-39,
-38,
22,
12,
40,
19,
32,
-71,
-23,
-23,
6,
-16,
-5,
32,
-76,
-4,
-59,
20,
5,
-35,
11,
-12,
-8,
7,
29,
-11,
10,
-37,
-40,
7,
25,
-7,
-24,
-2,
13,
26,
-10,
-2,
20,
0,
26,
20,
67,
-43,
34,
-19,
12,
-46,
-15,
36,
8,
12,
0,
-36,
1,
16,
-13,
-12,
20,
43,
-12,
19,
-59,
19,
-19,
22,
-12,
63,
13,
-40,
-64,
-18,
-8,
-37,
18,
-35,
41,
31,
44,
-6,
7,
34,
3,
8,
-18,
34,
68,
36,
-24,
1,
-1,
22,
5,
-86,
-2,
44,
21,
-34,
33,
38,
23,
7,
-33,
-1,
-7,
86,
26,
-33,
-71,
-7,
-56,
-14,
16,
18,
-7,
-31,
-7,
6,
13,
0,
52,
1,
-1,
-1,
-1,
-34,
-60,
48,
-15,
30,
1,
-8,
-1,
-14,
-1,
-1,
-54,
-4,
62,
26,
40,
11,
26,
8,
-9,
-8,
-47,
32,
38,
-8,
3,
0,
16,
27,
0,
-38,
1,
-49,
-7,
53,
24,
-23,
28,
28,
-9,
-30,
45,
16,
-8,
-25,
-36,
-15,
-15,
-28,
9,
-1,
12,
-31,
17,
-23,
-7,
-25,
57,
-16,
-19,
60,
-27,
17,
-49,
-55,
10,
-36,
-4,
17,
22,
-9,
-10,
7,
30,
24,
8,
-34,
6,
-16,
-4,
3,
3,
27,
22,
-22,
44,
-38,
4,
-3,
-2,
15,
9,
-43,
-6,
36,
-35,
19,
-37,
42,
-8,
-65,
22,
1,
54,
-15,
70,
-31,
-20,
23,
78,
-17,
-26,
34,
34,
-23,
35,
-38,
10,
28,
5,
-24,
34,
39,
5,
14,
4,
-4,
34,
3,
20,
21,
36,
7,
55,
6,
49,
37,
22,
-6,
-39,
26,
-66,
-36,
-14,
-1,
10,
-75,
13,
-34,
14,
-9,
-2,
-37,
-21,
-2,
-25,
-9,
15,
-17,
31,
-5,
18,
-25,
10,
10,
-10,
-13,
-59,
39,
13,
35,
45,
-23,
-32,
-10,
-17,
-13,
-45,
4,
-15,
-23,
-12,
-22,
50,
-30,
20,
48,
7,
-51,
8,
-29,
0,
-17,
-21,
58,
11,
38,
73,
-47,
-11,
-57,
12,
26,
3,
21,
-29,
42,
-29,
40,
33,
45,
63,
-10,
39,
34,
-14,
51,
-78,
0,
-33,
-24,
-14,
13,
-23,
3,
47,
17,
-57,
-8,
-36,
-67,
9,
-2,
6,
16,
-35,
2,
35,
-19,
16,
35,
8,
19,
30,
-15,
-34,
-57,
23,
9,
-10,
82,
27,
-1,
0,
-12,
3,
3,
36,
25,
38,
-26,
-15,
-20,
2,
1,
-1,
4,
39,
-4,
20,
-9,
-13,
0,
-44,
15,
35,
12,
-39,
31,
-24,
-23,
-3,
3,
10,
-4,
-48,
66,
-37,
16,
-32,
44,
40,
-22,
-2,
40,
-32,
4,
24,
16,
10,
-5,
-7,
-60,
-24,
11,
44,
6,
-19,
16,
4,
-40,
19,
22,
-31,
-22,
-8,
16,
0,
-17,
34,
66,
-14,
51,
-16,
15,
56,
-71,
-28,
2,
-4,
34,
-13,
41,
-4,
46,
-22,
50,
-4,
-12,
-24,
8,
-74,
71,
-5,
20,
2,
20,
38,
-30,
-6,
24,
-9,
2,
-4,
-9,
53,
-17,
25,
-41,
13,
22,
-6,
8,
-31,
11,
2,
-1,
37,
26,
-22,
27,
50,
-21,
51,
-8,
-40,
36,
20,
16,
-18,
52,
22,
23,
1,
-45,
-24,
-5,
22,
25,
52,
-14,
-3,
-4,
-3,
-2,
-19,
4,
18,
-59,
7,
53,
33,
-56,
-56,
-34,
-33,
-53,
-30,
-22,
-18,
-26,
-40,
6,
-3,
5,
16,
-56,
-29,
1,
2,
14,
-8,
50,
-20,
10,
0,
4,
27,
-32,
-47,
-47,
37,
-15,
-14,
-35,
-54,
-3,
6,
-55,
-32,
31,
-5,
5,
-17,
29,
-10,
16,
1,
-15,
-16,
-9,
47,
49,
20,
12,
-49,
-16,
8,
-19,
24,
-16,
27,
3,
-7,
-5,
-14,
-35,
48,
61,
-5,
6,
7,
-25,
46,
72,
0,
8,
-27,
30,
-23,
16,
13,
23,
11,
13
] |
Clark, C. J.
These cases were submitted together and are so decided.
First ease — Colonial Theatrical Enterprises v. Cohen.
Our decree in Colonial Theatrical Enterprises v. Sage, 255 Mich. 160, remanded to the trial court the question of ownership and right to use certain personalty in the Colonial Theater building there involved. The matter remanded was heard and decree entered. Plaintiff has appealed, complaining of finding in respect to but few of the many chattels listed in decree as property of defendants Cohen. The only feature of this appeal meriting discussion arises on a provision of the lease requiring lessees to keep furniture and fixtures leased in as good condition as when taken, either by repair or by replacement. When lessees took under the lease in 1918, a part of the equipment was a projector machine for silent pictures valued at $339. Progress in the art required installing of machines to produce so-called talking pictures costing nearly $14,000, which lessees provided. We agree with the trial court that such change was not in contemplation of the parties and that the latter equipment may not be claimed by lessor or his assigns as replacement of the former. The decree is in all things affirmed, with costs.
Second case — Phil v. Colonial Theatrical Enterprises.
By our said decree for specific performance, defendants were—
“to transfer, convey, assign and release to the plaintiff herein all their rights, title and interest in and to the premises aforesaid, including the fixtures, paraphernalia, furniture and accoutrements used in connection therewith as are embraced within said, lease; and upon their failure to do so the recording of this decree shall act and operate as such conveyance, assignment, release and transfer.”
The lease mentioned is that of 1918, which covers along list of “fixtures, paraphernalia, furniture and accoutrements.” The trial judge in the decree in the first case discussed put a like provision in decree therein entered. To neither of these cases was plaintiff Phil a party. He comes as chattel mortgagee of the Cohens and seeks to have on replevin all or practically all of the furniture, equipment, etc., in the theater building. He had judgment, from which defendants, Colonial Theatrical Enterprises, Henry Behrendt, sheriff, and Jacob Schreiber, have appealed.
Phil’s mortgage purports to have been given in May, 1931, when the cause first mentioned and in which the decree was entered was pending in this court. This mortgage, on the state of the record, stands as against the personalty found by decree in the first case above, to be the property of the Cohens, mortgagors. With respect to the other property, “fixtures, paraphernalia, furniture, and accoutrements,” ordered by our decree transferred to Colonial Theatrical Enterprises, we hold that the Cohens had in such furniture, etc., no title or property legal or equitable, and that, therefore, Phil took nothing by his mortgage in that regard. One of the Cohens testified of owning such property, but, on the record as a whole, we are fully justified in wholly rejecting such testimony. This property belonged to Farrington and/or Sage admittedly from 1918 to 1930, and they, as lessors of that property to the Cohens, were very careful in elaborate terms to preserve and to protect it. Farrington and/or Sage owned it in January, 1930, when they gave option to Schreiber, assignor of Colonial Theatrical Enterprises. By what means did the Cohens acquire such property, valued at several thousands of dollars? We find no answer. They point to the lease to them of April, 1930, by Farrington and/or Sage, made in the face of Schreiber’s option and in an effort to defeat it, and which was held for nanght by this court, which lease, while it recognizes that “fixtures, etc.,” shall belong to the lessors, also states that “equipment * * * belongs to lessees * * * at expiration of this lease. ’ ’ Construing the language of this lease in the light of all. the facts, it is held that it gave no title, legal or equitable, to the Cohens in the furniture, etc., in question, and, hence, that the mortgage to Phil accomplishes neither defeat of Schreiber and his assignee nor frustration of decree of this court.
That the record does not establish the taking of the chattel mortgage in good faith is passed as unnecessary to decision.
No other question need be discussed.
Reversed, with costs, and remanded for judgment in favor of appellants.
McDonald, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
1,
-37,
44,
11,
-23,
-36,
-32,
-28,
-5,
-20,
-20,
4,
0,
7,
20,
20,
-22,
28,
-22,
29,
-13,
-2,
-69,
-2,
39,
50,
-4,
2,
3,
19,
47,
0,
18,
44,
-35,
66,
-13,
-5,
14,
-75,
0,
-4,
-4,
-4,
0,
42,
50,
-73,
74,
-22,
-64,
-17,
14,
-4,
2,
-26,
-11,
6,
-16,
26,
-1,
-4,
-24,
17,
-18,
-11,
46,
-10,
-2,
9,
31,
-12,
-1,
-21,
19,
-64,
-39,
13,
38,
17,
2,
-26,
12,
-16,
-33,
-6,
33,
-71,
17,
2,
-12,
-24,
-19,
31,
-41,
73,
27,
-26,
29,
27,
-67,
-26,
-83,
24,
26,
-9,
-7,
-14,
-40,
-15,
-48,
18,
23,
9,
7,
-8,
-4,
4,
-11,
7,
27,
27,
-16,
-53,
67,
18,
-3,
-28,
-59,
18,
42,
19,
-24,
-25,
30,
16,
3,
47,
0,
-7,
0,
23,
15,
4,
26,
40,
-21,
4,
-26,
-14,
32,
-11,
-22,
44,
20,
-10,
10,
-7,
52,
40,
-13,
-61,
-5,
-75,
24,
0,
26,
-45,
28,
9,
7,
29,
-14,
5,
37,
-11,
7,
10,
-43,
-94,
-26,
41,
0,
-74,
8,
-46,
-4,
7,
10,
26,
32,
-49,
-16,
12,
-18,
11,
-1,
-10,
-13,
-24,
-32,
14,
-61,
-56,
24,
5,
12,
11,
-41,
25,
-24,
20,
-31,
-67,
12,
4,
-9,
-13,
11,
51,
26,
23,
-90,
-9,
-58,
-11,
21,
4,
63,
-1,
-45,
-4,
-16,
27,
22,
-33,
-11,
-4,
-33,
0,
-34,
2,
-37,
-10,
-58,
23,
-36,
-19,
11,
-8,
5,
58,
-6,
25,
29,
11,
-27,
33,
24,
-17,
23,
44,
-13,
4,
15,
-23,
12,
-3,
-33,
69,
-10,
8,
-6,
83,
-13,
-47,
-45,
27,
46,
34,
-8,
-68,
-1,
31,
57,
-6,
17,
16,
-53,
-22,
-2,
44,
-20,
30,
68,
-64,
-28,
11,
16,
-4,
-77,
30,
30,
41,
-4,
34,
-19,
-17,
24,
-7,
-63,
14,
-28,
30,
55,
20,
8,
-7,
19,
-28,
44,
2,
-18,
39,
4,
-43,
83,
-25,
33,
38,
14,
-52,
-9,
-51,
-56,
38,
1,
-10,
-14,
49,
18,
15,
0,
-48,
-13,
35,
-19,
-26,
48,
-23,
17,
-5,
-30,
33,
4,
16,
9,
30,
-43,
58,
65,
35,
51,
-12,
3,
-51,
-11,
-43,
46,
23,
31,
9,
-21,
-23,
24,
60,
-29,
15,
-44,
61,
-5,
-7,
-29,
3,
18,
-5,
-10,
-22,
-23,
-63,
-19,
-26,
-2,
12,
31,
-22,
36,
5,
-39,
-55,
28,
19,
-26,
-19,
19,
-11,
28,
17,
22,
-6,
1,
4,
9,
-23,
-28,
67,
-73,
-23,
17,
17,
3,
4,
6,
23,
20,
-16,
-8,
36,
-39,
51,
-92,
28,
-17,
-45,
-5,
19,
-27,
12,
-7,
46,
24,
-2,
-44,
46,
38,
-6,
4,
1,
30,
11,
-39,
46,
-24,
80,
8,
-8,
2,
-38,
38,
30,
64,
20,
21,
-8,
15,
-54,
17,
-7,
-32,
13,
-58,
20,
-11,
6,
-82,
-14,
-51,
-41,
18,
30,
28,
3,
18,
16,
-55,
6,
-52,
-7,
-18,
30,
10,
30,
42,
-42,
-34,
-48,
-52,
33,
-2,
-14,
-43,
-30,
47,
-42,
56,
13,
-34,
-15,
11,
13,
0,
-49,
43,
35,
15,
31,
48,
-41,
4,
25,
-24,
27,
11,
57,
-1,
7,
34,
35,
19,
-8,
21,
-7,
-39,
3,
-1,
-18,
8,
-6,
4,
8,
-21,
33,
-24,
31,
11,
16,
0,
-28,
24,
33,
-14,
-17,
7,
22,
-7,
6,
-4,
8,
6,
30,
-44,
-27,
-27,
-18,
-2,
-27,
-33,
-52,
28,
32,
-33,
5,
23,
-6,
-42,
-5,
-29,
7,
49,
-44,
15,
-69,
46,
16,
7,
10,
-2,
36,
-32,
27,
-8,
-11,
-24,
-30,
-17,
24,
-29,
20,
-5,
17,
-30,
22,
23,
-66,
-33,
27,
-19,
30,
31,
-18,
35,
-52,
-16,
-23,
-19,
23,
-11,
17,
51,
-7,
5,
-11,
-38,
36,
-25,
-24,
-37,
1,
-31,
55,
-45,
13,
6,
15,
-39,
38,
39,
-26,
-8,
21,
-23,
13,
-18,
0,
-34,
13,
-6,
-18,
13,
13,
2,
13,
24,
31,
-33,
-18,
-17,
-46,
22,
-18,
22,
-15,
-36,
25,
47,
-50,
20,
13,
9,
-13,
0,
57,
35,
65,
-6,
-15,
-64,
-21,
-10,
-23,
-8,
35,
-28,
23,
43,
32,
-8,
-24,
-25,
-11,
-12,
25,
-22,
-45,
-5,
47,
14,
6,
7,
25,
-15,
-14,
0,
53,
-18,
6,
0,
21,
-45,
-17,
7,
-23,
23,
-7,
1,
22,
-7,
-19,
18,
9,
39,
-10,
43,
-72,
-17,
56,
-11,
21,
7,
-5,
6,
-5,
-36,
-32,
-5,
36,
-40,
1,
3,
-54,
-8,
-7,
-14,
18,
-67,
15,
-25,
60,
-28,
47,
-28,
35,
8,
-3,
-13,
-20,
9,
-14,
19,
8,
3,
16,
-46,
53,
-1,
37,
18,
-41,
-25,
-32,
-17,
-33,
-32,
-19,
-36,
-26,
1,
41,
49,
-12,
-41,
16,
-21,
27,
10,
-28,
25,
0,
47,
17,
-33,
-24,
-14,
-10,
-24,
-3,
-12,
6,
7,
-17,
1,
61,
-35,
23,
0,
21,
-59,
28,
0,
-22,
-50,
-22,
-6,
-57,
12,
-17,
10,
17,
-43,
-28,
-46,
9,
10,
52,
41,
-27,
2,
21,
-47,
2,
60,
-30,
-47,
41,
-1,
-2,
43,
38,
7,
33,
-19,
-52,
-9,
55,
16,
-47,
-43,
0,
-24,
-7,
-1,
-25,
-30,
16,
-47,
9,
-3,
10,
54,
26,
21,
31,
51,
23,
-11,
-67,
-11,
-20,
16,
21,
39,
4,
31,
-46,
-54,
4,
0,
16,
-15,
-16,
1,
24,
-23,
11,
30,
9,
-25,
4,
-31,
23,
34,
-43,
29,
32,
2,
-18,
58,
-48,
32,
-39,
-40,
12,
-4,
22,
1,
22,
5,
9,
14,
-35,
44,
7,
-21,
-12,
18,
24,
40,
16,
55,
-7,
42,
-6,
-49,
-19,
-16,
-39,
0,
-42,
26,
63,
8,
33,
27,
-20,
-40,
10,
10,
4,
-12,
-35,
17,
-47,
38,
17,
-12,
20,
7,
-22,
-1,
8,
-74,
17,
-5,
6,
-31,
8,
-46,
-12,
-50,
-62,
-20,
39,
24,
-32,
-12,
-35,
-22,
4,
14,
-16,
-33,
-49,
71,
-49,
-8,
-28,
-3,
-4,
-13,
-10,
58,
-32,
-2,
18,
14,
-7,
30,
0,
25,
-29,
59,
-7,
-31,
0,
-48,
-24,
22,
3,
18,
0,
16,
0,
46,
16,
-5,
2,
46,
-22,
-29,
-13,
-55,
42,
-24,
82,
-12,
2,
-9,
8,
-31,
-19,
46,
40,
0,
8
] |
McDonald, J.
This action was brought to recover damages which the plaintiff claims he sustained because of the negligence of the defendant in main taining a bridge in an unsafe and dangerous condition for travel on Chisholm street in the city of Alpena, Michigan.
The bridge spans Thunder Bay river at the outskirts of the city. It is of wooden construction and was built to replace a concrete bridge which had been washed out by flood some years before. The two ends of the concrete bridge were left, and the floor of the new bridge connected with these abutments. It was made of timber and planks covered with tarvia and was 100 feet long. The approach at the northwest end over which the plaintiff drove the night of the accident is 20 feet long and begins with a width of about 25 feet but narrows to a width of 12 feet as it reaches the wooden flooring of the new bridge. The plaintiff claims there is a bump or sharp rise in the approach at the point where it connects with the floor of the bridge. He testified that he approached the bridge at about 11:30 o’clock in the evening of September 11, 1930; that, on account of the atmospheric conditions due to fog and dust, the visibility was such that he could see only 25 feet ahead; that his lights were on and his brakes in good condition; that when he reached the approach to the bridge he was driving at a speed of 25 or 30 miles an hour and could stop within a distance of 50 feet; that he saw the bridge when he was 15 or 20 feet away; that he continued up the approach at a speed of about 25 miles an hour; that when his automobile hit the bump or sharp rise in the grade he was thrown from his seat and lost control of his car; that it ran along and over some timbers on the side of the floor of the bridge for a considerable distance, then crashed through the railing and into the river.
The defendant claims that the bridge was in a reasonably proper and safe condition for travel; that the approach was level and uniform with no sharp rise or bump; and that the plaintiff’s injuries were caused by his own negligence in driving at such an improper speed that he could not stop within the distance that he could see objects ahead of him, and, being unable to stop when the bridge appeared in sight 15 or 20 feet away, he ran into the railing, which gave way and allowed him to drop into the river.
The trial court held that the defendant was negligent in not having the bridge posted as required by 1 Comp. Laws 1929, § 4541, but directed a verdict against the plaintiff on the ground that the proximate cause, of the injury was his negligence in driving at such a speed that he was unable to stop his car within the assured clear distance ahead.
The only question in the case is whether the court erred in directing a verdict.
In'disposing of this question we must accept the plaintiff’s version of the accident and his testimony as to the condition of the bridge. We are not concerned with the defendant’s testimony where it conflicts with that of the plaintiff on a material point in the case. We think it was a failure to give full effect to the plaintiff’s proof that led the court to a wrong conclusion in directing a verdict for the defendant. He applied the rule that the driver of an automobile must drive at such a speed that he can stop within the distance that objects can be seen ahead of him. But that rule had no application to the theory of the plaintiff’s testimony. It applied to the defendant’s theory, but not to the plaintiff’s. According to the plaintiff’s testimony, the proximate cause of the accident was a bump or sharp rise in the road where the approach meets the floor of the bridge; that driving over this bump caused him to be thrown from his seat, lose control of his car and crash through the railing into the river. Under that theory, the fact that he was driving so fast that he could not stop within the assured clear distance ahead had nothing to do with the accident. It was not the proximate cause. And it was not claimed by the defendant that speed had anything to do with. throwing plaintiff from his seat and causing him to lose control of his car. On the contrary, defendant offered proof to show that a man driving at a speed of 25 miles an hour could not be thrown from his seat by passing over that bump. The plaintiff had a right to have the case go to the jury on his theory if there was evidence to support it, and there was. He produced as a witness Samuel Tokoly, an engineer who had examined the bridge and was familiar with its structure. He testified:
“The main timbers of the present wooden structure were laid on top of the old bridge floor, which would make the floor of the wooden structure the thickness of that timber higher than the old concrete floor.
“The Court: So that do I .understand then that right where the end of the wooden bridge rests on the old cement bridge the wooden bridge is a foot and a half higher than the floor of the old cement bridge ?
“A. That is right.”
John Nelson also testified in behalf of the plaintiff. He had been road commissioner of Alpena county and claimed experience in building roads and bridges. Of this bridge he'said:
“Well, the bridge is built with a bump at both ends. * * *
“Q. Do you know the rise of that bump?
“A. Oh, I should judge three or four feet.”
The witness reduced the size of the bump as he continued his testimony, but he left it-large enough for the purpose of the plaintiff’s case.
Now, a violation of the rule that a driver must drive his car at such a speed that he can stop within the assured clear distance ahead does not preclude his recovery for injuries in a case where they are caused by running into a hole or bump on the road. The assured clear distance rule is applied when there is collision with trucks or other objects not a part of the road. In this case the plaintiff testified that he had never been over the bridge before and was not familiar with the way it was constructed. In the circumstances he was not charged with the duty of anticipating a bump in the approach to the bridge. He had a right to assume that it was reasonably fit and safe for travel. His testimony showed negligence on the part of the defendant and freedom from negligence on his part. To “believe it or not” was for the jury and not for the court. The court erred in directing a verdict for the defendant.
As the case must be retried, it may be helpful to say that on this record the only negligence shown on the part of the defendant that could proximately cause the injury was the maintaining of the bridge with a dangerous rise or bump in the approach. It was not required to light the bridge, and negligence in failure to post it as required by the statute had no causal relation to the accident.
The judgment is reversed, and a new trial granted, with costs to the plaintiff.
Clark, C. J., and Potter, Sharpe, North, Pead, WiEST,'and Butzel, JJ., concurred. | [
-43,
67,
10,
6,
5,
-22,
23,
9,
-7,
22,
-37,
-14,
16,
-19,
34,
1,
-59,
-20,
-26,
10,
-38,
-71,
0,
-32,
-44,
-5,
43,
-66,
-48,
42,
-22,
33,
-52,
40,
-19,
24,
7,
-9,
47,
23,
54,
-16,
-1,
-37,
35,
-10,
45,
-9,
6,
33,
-17,
6,
13,
-27,
-5,
5,
-13,
37,
-25,
39,
0,
-23,
20,
1,
-22,
-49,
13,
47,
5,
31,
-18,
37,
15,
5,
-54,
24,
-28,
0,
7,
22,
-55,
-15,
41,
7,
6,
23,
-46,
-5,
-26,
24,
-38,
-50,
-13,
-15,
-12,
-11,
-57,
-35,
-6,
-1,
31,
2,
44,
23,
-2,
28,
-52,
-2,
-22,
-9,
-8,
62,
0,
7,
12,
-59,
26,
30,
41,
2,
3,
46,
5,
-12,
-62,
-5,
27,
-12,
31,
54,
-4,
-5,
-16,
80,
-28,
46,
-47,
26,
39,
57,
-22,
46,
11,
-3,
-52,
36,
19,
-47,
9,
-8,
-26,
20,
9,
-18,
-7,
-15,
-21,
13,
56,
-10,
22,
4,
68,
4,
-23,
-32,
-10,
30,
15,
9,
32,
-32,
38,
-54,
42,
36,
-16,
-9,
-29,
-20,
-7,
28,
80,
5,
-24,
-71,
-24,
5,
39,
-6,
43,
-37,
-62,
1,
-30,
50,
-27,
-3,
17,
28,
23,
-57,
2,
-15,
-32,
-7,
-39,
-20,
9,
13,
37,
-9,
-7,
-16,
8,
27,
17,
-34,
26,
-98,
-58,
-6,
76,
-39,
-3,
-37,
-57,
-3,
22,
-25,
10,
10,
10,
-31,
-3,
-4,
0,
-37,
5,
-38,
12,
34,
-23,
-6,
10,
-12,
-35,
-48,
1,
17,
27,
-28,
-64,
-47,
0,
46,
22,
8,
-19,
-8,
10,
48,
-5,
-16,
12,
-4,
-14,
7,
-41,
-47,
7,
34,
49,
-35,
-79,
-61,
12,
31,
17,
30,
32,
-47,
-64,
6,
-19,
25,
-44,
-13,
-18,
-5,
2,
-37,
26,
-8,
-17,
-26,
5,
-63,
-47,
6,
36,
-14,
-18,
20,
13,
0,
-23,
-6,
2,
33,
-10,
-43,
-23,
31,
51,
12,
49,
7,
23,
-7,
40,
64,
-24,
8,
14,
37,
7,
23,
-66,
37,
5,
51,
-4,
33,
41,
-69,
26,
6,
-16,
11,
0,
21,
30,
-18,
-36,
12,
54,
2,
33,
-30,
-45,
-51,
-6,
-28,
-10,
-13,
41,
1,
-24,
4,
47,
-3,
6,
42,
34,
-31,
-12,
22,
-56,
48,
-3,
-26,
14,
27,
0,
-43,
3,
20,
-80,
70,
43,
8,
41,
-27,
15,
-38,
0,
-104,
-84,
-4,
-74,
-14,
15,
24,
55,
-9,
-48,
24,
-26,
-49,
-10,
41,
42,
30,
-46,
-3,
46,
33,
1,
-28,
-7,
-6,
26,
7,
3,
1,
79,
11,
-77,
-45,
5,
40,
45,
-67,
41,
-15,
58,
-3,
-8,
14,
35,
57,
22,
-12,
33,
9,
-29,
-6,
7,
-46,
-52,
-9,
-2,
-1,
-3,
-17,
4,
6,
-29,
-47,
13,
41,
29,
34,
-41,
0,
19,
4,
-5,
-19,
-25,
-62,
7,
-5,
-13,
-20,
1,
-27,
62,
6,
30,
11,
-29,
-7,
3,
-10,
31,
16,
-16,
-39,
-36,
-9,
-7,
0,
-21,
-53,
3,
37,
-4,
-20,
59,
14,
-31,
39,
-40,
37,
-23,
57,
-35,
-31,
0,
-2,
-46,
23,
37,
-52,
37,
3,
4,
22,
-66,
-58,
29,
16,
12,
20,
-5,
13,
32,
-31,
-6,
27,
-5,
6,
-34,
16,
-44,
-17,
-12,
-19,
47,
-17,
-5,
8,
-50,
-10,
-16,
-6,
-15,
20,
37,
-12,
6,
-61,
3,
-10,
-20,
43,
35,
33,
53,
-13,
25,
-9,
-8,
-8,
-19,
-38,
-21,
2,
-11,
-5,
36,
-11,
24,
36,
-11,
7,
48,
-88,
-30,
71,
32,
-14,
-84,
5,
-9,
19,
-78,
68,
12,
-11,
-59,
9,
-84,
22,
70,
22,
-46,
11,
1,
33,
3,
-6,
35,
68,
8,
12,
-12,
-16,
70,
-59,
-31,
68,
40,
14,
-3,
-29,
70,
22,
25,
14,
-31,
0,
-16,
-30,
-15,
-28,
25,
21,
42,
-22,
9,
14,
-81,
-6,
0,
16,
-27,
-28,
-59,
26,
-86,
-19,
-2,
-21,
2,
57,
-5,
21,
-13,
22,
42,
1,
-21,
-26,
-9,
38,
-102,
0,
-46,
8,
8,
8,
14,
36,
15,
67,
-28,
0,
33,
-6,
-17,
-58,
-44,
35,
-43,
25,
-18,
6,
3,
-22,
-4,
6,
5,
-16,
-23,
34,
18,
-4,
82,
-17,
63,
-43,
49,
-45,
-34,
-8,
8,
-7,
-47,
11,
0,
19,
-24,
55,
-6,
11,
0,
-10,
-13,
-18,
5,
20,
-56,
3,
4,
-27,
9,
43,
-19,
87,
21,
35,
-7,
40,
15,
-27,
-62,
10,
23,
-56,
-2,
-29,
-31,
-23,
25,
0,
-13,
32,
0,
21,
14,
-26,
-14,
-17,
11,
7,
3,
5,
-16,
-31,
-4,
-39,
-35,
-47,
51,
28,
-1,
-52,
-28,
3,
51,
-7,
4,
-67,
7,
47,
-33,
-16,
30,
-31,
24,
9,
-29,
-23,
28,
7,
-2,
-35,
-65,
15,
13,
-43,
-36,
26,
-17,
-8,
56,
-28,
-29,
-1,
17,
15,
-24,
0,
-16,
0,
51,
-8,
-7,
57,
25,
40,
-20,
-23,
23,
-23,
5,
21,
0,
25,
7,
17,
-45,
1,
8,
31,
29,
5,
8,
-15,
-19,
-13,
6,
-15,
-5,
6,
-34,
22,
49,
37,
-60,
-39,
58,
-30,
3,
-26,
40,
-32,
33,
0,
-34,
-14,
16,
36,
35,
-2,
-18,
-54,
-2,
-6,
-24,
-8,
31,
-13,
5,
23,
0,
34,
-19,
-5,
-25,
-39,
-8,
33,
-19,
-1,
20,
0,
3,
-56,
-55,
3,
-15,
12,
27,
14,
-52,
-17,
10,
36,
-19,
10,
-8,
27,
-12,
-61,
58,
14,
34,
-61,
2,
-7,
-31,
-19,
8,
4,
14,
83,
0,
41,
48,
-38,
-69,
-3,
-63,
60,
55,
-8,
-8,
20,
-9,
15,
32,
-32,
48,
-5,
-11,
47,
-27,
-32,
15,
9,
2,
15,
-71,
17,
8,
57,
7,
-3,
-23,
12,
-51,
54,
-49,
28,
-3,
37,
-56,
-20,
-11,
-6,
-21,
4,
14,
-93,
-8,
20,
42,
-3,
-27,
49,
-5,
-17,
36,
-5,
-66,
22,
73,
-41,
-12,
101,
2,
15,
-14,
-3,
12,
-14,
40,
-9,
23,
0,
5,
-7,
22,
-55,
-1,
24,
-18,
39,
-46,
-4,
-2,
15,
23,
-33,
-2,
-93,
30,
-1,
-7,
1,
21,
-77,
23,
-35,
-17,
13,
-53,
2,
-41,
10,
-10,
3,
27,
36,
12,
-12,
-10,
-1,
2,
13,
42,
19,
6,
10,
-3,
18,
-3,
54,
-3,
24,
61,
85,
-7,
8,
12,
5,
44,
11,
-14,
21
] |
North, J.
Plaintiff, while a pedestrian on a public highway, was injured by an automobile driven by the defendant. In his suit for injuries sustained, plaintiff had verdict and judgment for $3,500. Defendant has appealed.
The first two reasons set up in support of the appeal are: (1) That the court should have held plaintiff guilty of contributory negligence as a matter of law, and (2) that there was no testimony tending to establish any specific negligence on the part of defendant, and hence there was no issue of fact on this phase of the case. The accident happened about 9:30 p. m., June 20, 1930. Plaintiff was walking in a northerly direction about two miles north of Watervliet on the highway known as U. S. 31, which was much used by motor vehicles. The macadamized roadway was 16 feet wide, having edges that were rough and somewhat irregular. The adjacent shoulders varied in width from three to five feet. The improved portion of the highway was elevated, leaving a ditch on either side three or four feet deep. The surface of the macadamized roadway was wavy or irregular, and there were tall arching trees on each side of the road. There was an electric light 830 feet south of the point of accident. Also some considerable distance south there was a curve in the highway; and a little less than 400 feet north the highway again curves. Plaintiff, a man 53 years of age, was familiar with the highway and the nature of the traffic thereon. On the night in question he was walking to his home, some four miles north of the point of accident. He was proceeding along the shoulder on his right-hand side of the road, and noticed by the reflection of the lights in a road sign 50 to 75 feet ahead of him that one or more automobiles were approaching him from the rear. He had first observed these lights on the roadbed as the cars came around the curve behind him. An automobile immediately preceding that driven by defendant passed plaintiff, and, he testified, it did not “have to swing out” for him. An instant later he was struck by defendant’s car and injured in manner hereinafter detailed.
Plaintiff alleges defendant was guilty of negligence in that he failed to keep his car under control, drove it at an unlawful rate of speed having regard to the conditions of the highway and traffic, that he did not keep a proper lookout for pedestrians, that he did not drive his automobile at such a rate of speed that he could stop the same within the range of vision, and that defendant carelessly and negligently drove his car onto and against plaintiff.
No testimony was offered in behalf of defendant. It is undisputed that defendant’s automobile did strike and injure plaintiff, who was in a position where he had a right to be on a public highway, aud, as found by the jury, plaintiff was free from negligence which contributed as a cause of the accident. There is undisputed testimony that, shortly follow ing the accident, defendant admitted he did not see plaintiff “until he loomed right in front of him (defendant) all at once,” that “he was right on him before he saw him,” and that defendant was driving about 50 miles per hour. In view of this and other testimony in the record, it cannot be said as a matter of law that plaintiff was guilty of contributory negligence, and clearly it was a question of fact for determination by the jury as to whether defendant was guilty of the alleged negligence in striking plaintiff.
While the trial was in progress, plaintiff was examined by Dr. A. E. Van Vleek, an osteopath. Later the doctor was sworn as a witness for plaintiff and testified to injuries to plaintiff’s spine. Complaint is made by appellant that the declaration contained no specific allegation of this type of injury, and that he was taken by surprise by the testimony offered. The declaration alleged numerous specific injuries such as concussion of the brain, injuries to the chest, the fracture and injury of ribs, injuries and bruises to the head, the left eye and teeth of defendant, also to his legs; and that “his whole body was rendered sore, sick, lame and disordered and various places about it were caused to be bruised, swollen and contused.” When defendant’s counsel objected to this testimony and moved to strike it out on the ground that it was a surprise, the court granted plaintiff’s motion to amend his declaration, and, at the request of defendant’s counsel, took a recess to enable him to consult with another physician. The court said:
“Now, Mr. Stratton, if this amendment is a surprise to you I will give you every opportunity to meet it. I will give you a recess now so you may talk with Dr. Yeomans, and I will give you — how many minutes do you want?”
Without receiving a definite reply as to the time desired, the court took a recess. Following this, the testimony of other witnesses was taken, and later in the session Dr. Van Vleck was cross-examined by defendant’s counsel without further protest, claim of surprise, or application for continuance. From the outset of his testimony, plaintiff, without objection, had repeatedly stated that his back was badly injured. The testimony given by Dr. Van Vleck was merely that of an expert on the same phase of plaintiff’s case. No error was committed.
Appellant further claims that the verdict and judgment was excessive, and that there was error on the part of the trial court in submitting to the jury plaintiff’s right to recover damages for permanent injuries; it being asserted by appellant that there was no testimony tending to show plaintiff’s injuries were permanent.
As bearing on appellant’s claim that the damages awarded are excessive, the undisputed record is that plaintiff was unconscious for four days following the accident, he was confined to his bed for a considerable time, incurred a doctor’s bill of $170, he was not able to return to his employment until some time in September or October following, and was not then able to do the work at which he had formerly been employed and at which he had earned $28 to $35 per week. At the time of the trial, more than 12 months after the accident, plaintiff was still having dizzy spells, one of his legs was still weak and troubled him, and he was continuing to suffer from the injuries to his back. Many other details of plaintiff’s injuries are covered by testimony which we think it unnecessary to review. Except for the reason hereinafter noted, it cannot be said the damages awarded are excessive. The circuit judge so held in disposing of defendant’s motion for a new trial.
The remaining question is whether the court erred in submitting to the jury plaintiff’s right to recover on the ground of having sustained permanent injuries. While there is ample testimony of plaintiff’s having been seriously injured, and that at the time of the trial he had not fully recovered, we can find no testimony from which the jury could justly conclude plaintiff’s injuries were of a permanent character. But this issue was submitted to the jury in this manner:
“If you find that the plaintiff is permanently injured, or will suffer pain and loss of earnings in the future, then you should inquire how much that is worth. ’ ’
There is testimony to sustain future damages; but we find no testimony tending to prove that plaintiff’s injuries or suffering will be permanent. However, considering the amount found by the jury in the light of plaintiff’s testimony as to the injuries he actually received, we are impressed that little, if anything, could have been allowed by the jury as compensation for permanent injuries. We are convinced that a remittitur of a comparatively small amount of the damages awarded will fully rectify any possible error in this respect. The judgment entered in the circuit court will therefore be affirmed provided plaintiff remits the damages in excess of $3,000 within 30 days from the filing of this opinion, otherwise the judgment entered will be reversed, and a new trial granted. Appellant will have costs of this court in either event.
McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. Clark, C. J., did not sit. | [
-12,
50,
-1,
-27,
-29,
-36,
11,
9,
24,
53,
-36,
-6,
22,
23,
-6,
-9,
-3,
-24,
12,
17,
-38,
-38,
0,
-11,
-3,
-36,
18,
-19,
-42,
63,
76,
-18,
-11,
8,
-18,
43,
23,
25,
29,
51,
65,
-31,
-11,
-15,
18,
-18,
2,
-45,
-11,
21,
0,
26,
18,
-58,
9,
-7,
23,
61,
-23,
23,
29,
24,
28,
-14,
-42,
10,
-23,
27,
-12,
28,
-81,
0,
8,
-33,
18,
-4,
-19,
25,
26,
-6,
-44,
-27,
43,
26,
14,
28,
-66,
-21,
-25,
-6,
-4,
-19,
4,
-21,
-2,
39,
-1,
-24,
16,
-7,
-15,
-16,
6,
3,
17,
33,
-58,
-66,
0,
0,
-19,
54,
22,
25,
-12,
-41,
10,
-9,
50,
4,
9,
-21,
14,
13,
-13,
26,
-33,
16,
-41,
-1,
37,
6,
23,
21,
6,
0,
-53,
-22,
35,
38,
-6,
24,
-7,
27,
-27,
51,
-47,
7,
-25,
14,
3,
9,
4,
-45,
13,
-30,
17,
-43,
57,
-7,
-17,
0,
33,
8,
-3,
-6,
-46,
24,
-30,
13,
7,
1,
47,
-59,
37,
4,
-10,
-20,
-56,
-8,
16,
32,
41,
30,
-46,
-74,
-36,
6,
-35,
11,
30,
-13,
-22,
-70,
6,
21,
-3,
-46,
43,
-24,
0,
-43,
6,
-48,
-43,
19,
-15,
-12,
16,
20,
29,
-33,
24,
-47,
19,
27,
9,
-53,
-9,
-34,
-13,
15,
28,
-59,
-26,
-29,
-72,
-40,
-31,
-16,
1,
-23,
-88,
19,
-24,
1,
18,
-45,
11,
1,
20,
36,
7,
-37,
30,
52,
4,
-8,
-16,
12,
52,
11,
-34,
-33,
-7,
0,
47,
20,
-4,
0,
6,
52,
15,
33,
10,
8,
33,
31,
-15,
-1,
-57,
10,
11,
-1,
-54,
-77,
3,
11,
29,
49,
7,
-29,
-12,
-5,
-3,
6,
-38,
3,
21,
-9,
50,
-44,
-2,
45,
-46,
30,
42,
25,
-79,
4,
39,
-40,
7,
12,
22,
-8,
-14,
6,
13,
22,
-15,
-25,
-13,
-9,
56,
55,
-4,
-11,
39,
-5,
-8,
22,
-16,
-1,
20,
27,
25,
-16,
-33,
-9,
-3,
34,
18,
9,
22,
-40,
-13,
28,
0,
7,
-10,
27,
-20,
0,
-19,
26,
29,
30,
24,
0,
-62,
-25,
26,
-62,
-21,
-13,
29,
-29,
-11,
29,
41,
-29,
14,
-21,
32,
-27,
41,
-21,
-38,
54,
9,
-17,
5,
-34,
-27,
-71,
-12,
60,
-13,
48,
-4,
-49,
4,
-14,
-9,
-5,
-51,
-48,
-34,
-4,
-29,
3,
15,
14,
3,
36,
0,
1,
6,
-24,
-4,
-1,
16,
-19,
-27,
-14,
43,
2,
-7,
-4,
-38,
22,
57,
23,
21,
12,
45,
1,
-27,
-50,
45,
70,
56,
-21,
66,
-14,
2,
20,
-5,
-16,
15,
-12,
13,
-25,
27,
-21,
1,
-50,
34,
-35,
-56,
0,
30,
31,
16,
-5,
-42,
-37,
24,
-17,
49,
18,
63,
35,
-42,
-31,
31,
3,
46,
-36,
-9,
1,
-35,
-23,
18,
-20,
-40,
6,
20,
-13,
17,
15,
-31,
11,
16,
3,
-1,
-8,
0,
-11,
-66,
-42,
-1,
-3,
17,
-34,
19,
38,
-7,
11,
42,
13,
-21,
-13,
20,
-30,
-21,
22,
-52,
-11,
-5,
6,
-60,
7,
32,
-47,
5,
0,
37,
-26,
-25,
12,
34,
-4,
9,
-9,
-11,
6,
25,
-15,
27,
-3,
8,
-8,
-19,
2,
-7,
-39,
-38,
-34,
47,
-2,
-17,
17,
21,
-15,
-7,
13,
12,
-7,
-3,
46,
9,
-42,
24,
-22,
27,
65,
27,
-2,
57,
23,
2,
-33,
-15,
-44,
27,
-46,
-14,
19,
16,
18,
19,
24,
22,
35,
37,
-18,
30,
-51,
-65,
13,
24,
-17,
-90,
40,
-29,
27,
-47,
0,
23,
9,
-47,
-24,
-60,
20,
36,
10,
-12,
14,
-12,
36,
34,
1,
63,
-4,
-10,
28,
3,
-42,
9,
8,
-40,
42,
10,
15,
-33,
-4,
53,
-28,
22,
-12,
-22,
33,
-17,
-22,
-27,
11,
40,
-24,
6,
-33,
-10,
40,
4,
-4,
-20,
73,
-69,
-21,
-6,
-3,
-34,
-17,
-24,
-6,
-5,
37,
-43,
43,
-17,
-1,
32,
-15,
-50,
20,
-3,
37,
-60,
-32,
-12,
53,
0,
4,
-8,
32,
7,
12,
-87,
29,
2,
-28,
-39,
-41,
-24,
-1,
3,
1,
-12,
17,
-4,
-29,
11,
18,
14,
-8,
-32,
61,
11,
14,
17,
-41,
18,
12,
14,
4,
-30,
16,
67,
-14,
-25,
26,
-5,
-11,
-38,
44,
43,
0,
-22,
23,
-23,
-15,
-20,
13,
-9,
-2,
26,
-18,
-8,
7,
-5,
20,
3,
-23,
9,
61,
30,
-6,
-35,
41,
43,
-25,
-10,
-14,
19,
10,
29,
-8,
19,
2,
12,
24,
-23,
2,
-31,
-26,
53,
-38,
5,
-79,
-10,
5,
13,
16,
-1,
-25,
-2,
0,
7,
0,
-31,
50,
28,
-14,
12,
-42,
23,
-40,
-38,
-47,
24,
-10,
14,
9,
-28,
-18,
0,
-7,
-17,
2,
-77,
-20,
16,
-80,
-37,
-6,
21,
0,
14,
4,
-29,
-26,
15,
1,
1,
31,
-53,
-14,
35,
11,
24,
8,
16,
19,
-17,
-9,
-7,
-4,
41,
13,
-7,
10,
13,
26,
31,
-22,
17,
44,
50,
14,
40,
-45,
17,
-27,
-13,
11,
43,
-23,
-17,
-28,
37,
22,
-32,
-1,
58,
16,
14,
-34,
34,
-21,
34,
-51,
-39,
43,
-24,
40,
24,
3,
-23,
-20,
24,
46,
-52,
32,
55,
-15,
14,
16,
8,
6,
-33,
18,
-29,
-39,
-11,
-17,
-8,
8,
-26,
28,
-15,
-73,
-50,
-25,
30,
-6,
-12,
0,
-26,
-24,
-2,
60,
-1,
4,
3,
33,
19,
-56,
39,
7,
-32,
-37,
28,
104,
-27,
-46,
-41,
-6,
-22,
36,
6,
3,
16,
-29,
-75,
1,
-55,
76,
38,
-42,
-20,
8,
-19,
-5,
-13,
-13,
27,
23,
-44,
0,
-13,
-15,
31,
2,
-1,
34,
-36,
41,
0,
32,
-30,
24,
-2,
40,
-20,
11,
-38,
7,
39,
44,
-34,
-56,
17,
-12,
32,
5,
-10,
-69,
-27,
-12,
54,
24,
-45,
54,
-42,
-56,
-10,
6,
-54,
11,
16,
-11,
-56,
46,
6,
-48,
-32,
-15,
33,
-12,
-28,
14,
45,
10,
11,
10,
65,
-25,
-28,
26,
0,
-18,
-35,
-44,
31,
-19,
-17,
-18,
-50,
-1,
20,
-13,
21,
8,
6,
1,
16,
24,
-45,
10,
-24,
12,
-15,
37,
22,
-1,
-17,
4,
16,
-29,
-33,
-30,
28,
2,
18,
12,
50,
54,
14,
3,
-45,
-7,
4,
34,
47,
55,
-20,
-9,
-17,
-27,
2,
-19,
31,
6
] |
Potter, J.
The Peoples National Bank of Ypsilanti sued Harry Ives and Edward Dicks on a prom issory note. Subsequently, for reasons not here important, C. E. Deake and others were substituted as plaintiffs in place of the Peoples National Bank, and the cause was discontinued for want of service as to defendant Ives. There was judgment for plaintiffs and defendant appeals.
The note sued upon was presented to the court. It was signed on the face by Ives and Dicks. Opposite the signatures and directly opposite Dicks’ name was the word “indorsed” stamped thereon. There was above the .signatures of the parties no guaranty of payment, no waiver of demand or notice of nonpayment or protest, and no waiver of extension. Such waiver was on the face of another part of the note. The question is the liability of Dicks.
It is conceded that there was no presentment of the note for payment to Ives, no demand of payment made of him, no dishonor by Ives, no notice of dishonor to Dicks, no protest of the note. If Dicks is a joint maker of the note he is liable. If Dicks guaranteed the payment of the note he is liable. If Dicks is an indorser and is bound by the printed waiver on the note he is liable. If he is a mere indorser, not bound by the waiver printed on the note or by the guaranty he is not liable. Section 19 of the negotiable instruments law, 2 Comp. Laws 1929, § 9266, relates to the construction of ambiguous instruments, and provides:
“Where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an indorser. ’ ’
2 Comp. Laws 1929, § 9312, provides:
“A person placing his signature upon an instrument, otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity. ’ ’
2 Comp. Laws 1929, § 9358, provides:
“Notice of dishonor may be waived, either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or implied.”
No question of implied waiver is here involved. The language of negotiable instruments should be clear. Technical construction of the negotiable instruments law should not be favored. Forced and unnatural construction of a negotiable instrument should be avoided.
Negotiable instruments should not be adapted, by construction, to trap the unwary. They should not be held to bind one who did not intend to be bound, and who relies upon the fact he is not bound. They should not' be readily adaptable instruments of fraud. Whitney v. Chadsey, 216 Mich. 604, holds that 2 Comp. Laws 1929, § 9312, was incorporated in the negotiable instruments law to clear up the question whether an indorser before delivery was a joint maker or not. Krenerick v. Horton, 254 Mich. 12, says:
“Mooers v. Stalker, 194 Iowa, 1354 (191 N. W. 175), holds the negotiable instruments law was obviously intended to change the previous rule that a waiver written or printed on the back of a note at the time of its execution had the same force and effect as though embodied in the instrument. ”
In Mooers v. Stalker, supra, it is said:
“The negotiable instruments law evidently was intended to change the rule that had been recognized before its adoption, with respect to provisions not embodied in the instrument. ’ It makes a distinction between a waiver embodied in the instrument itself and a waiver upon the back thereof, above the signature of an indorser. It was obviously intended by.this statute to get away from the rule that had previously been recognized, that a waiver written or printed upon the back of a note at the time of its execution had the same force and effect as though embodied in the instrument. It is therefore apparent, under the statute as it now stands, that an indorser is bound by a waiver that is, embodied in the body of the instrument. It is also obvious that he is not bound in all events by a waiver that is not so embodied in the body of the instrument, but placed on the back thereof.”
The construction of the negotiable instruments law adopted in Mooers v. Stalker, supra, was amplified and approved in Stuhldreher v. Dannemiller, 26 Ohio App. 388 (158 N. E. 556), where it is said:
“And before the adoption of the uniform negotiable instruments law it was quite generally, though not universally, held that where the waiver was on the back of the instrument and was placed there before the note was signed and delivered, it should be given the same effect as if it appeared on the face of the note, and be held to bind all indorsers.
“Likewise, the general rule was that if the waiver was placed on the back by an indorser, after the note was signed and delivered, it bound him and all subsequent indorsers; but some cases held that it bound only the indorser who placed it thereon.
“By the uniform negotiable instruments law, it was attempted to adopt a definite, universal rule in reference to these matters, which in this State is section 8215, General Code, as follows:
“ ‘When the waiver is embodied in the instrument itself it is binding upon all parties; but when it is written above the signature of an indorser, it binds him only.’
“It seems to us that 'embodied in the instrument’ means ‘ embodied in the original contract, ’ and that detached words on the back of the instrument at the time it is issued are not embodied in the contract expressed on the face of the instrument.
. “A waiver may be contained in the body of the instrument, or in an indorsement thereon; ordinarily, the contract evidenced by a promissory note is expressed upon its face at the time it is issued, and a waiver printed on the back of the note when it is issued is of no force and effect until there is an indorsement placed on the back of the note, in such a manner as to adopt such waiver; usually, when an indorsement is placed on the back of the note, new parties become interested and new contract relations are created; this statute recognizes and provides for these two classes of waivers— those appearing on the face of the note, and those appearing on the back of the note.
“If those on the back are embodied in the instrument so as to be the same as those on the face, then there is but one class and there is no class to which the second clause of said section may be applied.
“We are of the opinion, that, under this section, waivers which appear on the face of the instrument are the only ones which can be considered as embodied in the instrument, and that waivers on the back, placed thereon before the instrument was issued, and not referred to on the face of the instrument, should no longer be given the same effect as waivers on the face of the instrument, but should be considered in the class referred to in the second clause of section 8215, General Code. Mooers v. Stalker, 194 Iowa, 1354 (191 N. W. 175).”
It seems clear defendant was an indorser; he is not bound by the printed guaranty of payment, or the waiver on the note; the form of this guaranty and waiver and its location on the instrument is adapted, if construed as appellee contends, to' fraud ulent use; nothing indicates defendant signed, accepted, or approved of this printing upon the instrument; no presentment, demand, or notice of dishonor was given defendant. He is therefore not bound. Judgment reversed, with costs, and judgment directed to be entered for defendant.
Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. Clark, C. J., and McDonald, J., did not sit. | [
-23,
-28,
6,
-27,
-18,
-15,
32,
-56,
3,
17,
-8,
16,
8,
-8,
-46,
20,
-2,
-16,
4,
-43,
-32,
-20,
-28,
-32,
24,
20,
1,
46,
12,
-13,
-1,
85,
-45,
53,
-44,
-14,
-8,
-18,
1,
-12,
6,
-41,
-19,
13,
0,
-27,
-22,
-27,
12,
-13,
15,
7,
51,
-1,
-45,
39,
37,
-15,
-29,
1,
-32,
-68,
26,
-54,
-44,
-67,
-2,
-6,
27,
-21,
12,
0,
49,
-9,
-22,
-30,
13,
42,
0,
-22,
38,
-25,
-60,
-54,
-11,
0,
31,
-21,
22,
-14,
10,
25,
-27,
-16,
-20,
-11,
22,
46,
0,
24,
7,
-48,
-30,
0,
48,
21,
-22,
-17,
-33,
42,
12,
28,
16,
-2,
-9,
-6,
-31,
17,
8,
40,
7,
17,
31,
21,
-24,
39,
-42,
-8,
0,
9,
77,
29,
-11,
7,
17,
50,
18,
-44,
12,
-30,
-30,
-8,
5,
21,
6,
-19,
-1,
28,
-9,
-43,
-27,
26,
-16,
-19,
-20,
-8,
29,
-68,
32,
-35,
50,
10,
-1,
-13,
-13,
5,
-1,
59,
15,
-13,
62,
-18,
-29,
42,
17,
31,
32,
-39,
24,
-16,
29,
54,
-8,
-7,
15,
21,
-60,
8,
17,
36,
21,
-26,
12,
15,
28,
19,
-29,
-1,
13,
-5,
67,
-20,
4,
-16,
-35,
-8,
52,
36,
-31,
72,
-10,
13,
-36,
-9,
-51,
6,
20,
0,
-17,
38,
-26,
25,
-11,
-46,
-21,
-28,
48,
-4,
-3,
19,
-68,
0,
-21,
65,
-18,
17,
34,
-10,
4,
27,
-12,
-47,
-40,
-29,
53,
-45,
-18,
23,
-11,
-26,
-22,
32,
20,
27,
-32,
-7,
-3,
-36,
-21,
-32,
-42,
24,
0,
-15,
-7,
-6,
4,
14,
-45,
25,
-30,
-43,
25,
45,
4,
-36,
-8,
-15,
-36,
-41,
43,
8,
-38,
39,
-12,
-4,
-7,
47,
-10,
4,
89,
13,
32,
-30,
18,
73,
-44,
1,
16,
-3,
12,
-43,
32,
-13,
-14,
8,
25,
-9,
-63,
-34,
-23,
-11,
-65,
-79,
26,
-14,
-36,
28,
-15,
-19,
15,
18,
19,
-67,
16,
16,
11,
-8,
37,
-14,
-5,
25,
-15,
-22,
-48,
23,
102,
-52,
-21,
-44,
-15,
16,
4,
3,
-53,
42,
-5,
13,
-25,
5,
-16,
-23,
-36,
-3,
6,
96,
-49,
7,
-22,
22,
-3,
6,
-24,
-21,
25,
14,
-34,
29,
20,
31,
22,
-5,
-1,
-96,
-16,
11,
0,
18,
-35,
-12,
-56,
15,
5,
-36,
-44,
38,
-51,
-33,
-95,
-13,
-123,
-23,
2,
-12,
-19,
5,
18,
-41,
-43,
-25,
-12,
37,
17,
-31,
10,
2,
-12,
-50,
-1,
12,
-20,
-4,
-27,
12,
5,
-18,
69,
-12,
4,
40,
-4,
-24,
-29,
-30,
17,
-71,
-2,
39,
-11,
4,
9,
2,
23,
-11,
35,
-18,
-9,
41,
-7,
-17,
67,
-11,
-54,
-15,
13,
15,
-2,
39,
-2,
-35,
70,
-11,
7,
19,
14,
38,
15,
22,
-17,
-56,
-11,
23,
44,
26,
62,
-1,
29,
-32,
7,
0,
-27,
-10,
0,
12,
-59,
-4,
-3,
-4,
-17,
26,
-17,
49,
31,
-26,
15,
16,
-23,
-71,
2,
-26,
37,
4,
23,
-6,
17,
6,
-59,
-38,
-3,
84,
-11,
23,
-32,
-11,
25,
26,
-37,
-35,
2,
14,
-12,
-27,
52,
33,
39,
72,
-20,
-6,
-8,
35,
41,
13,
-60,
-23,
-9,
20,
-24,
6,
30,
21,
5,
22,
-4,
-40,
-15,
27,
35,
-13,
-29,
10,
-59,
15,
45,
48,
15,
-37,
10,
20,
-23,
7,
-62,
11,
63,
33,
-22,
60,
36,
29,
28,
-22,
-1,
63,
22,
-21,
-15,
-2,
19,
32,
5,
-46,
-40,
-17,
-19,
9,
9,
16,
-19,
-12,
1,
-35,
1,
-6,
28,
-95,
-41,
-21,
2,
22,
14,
-21,
60,
7,
-41,
-24,
-5,
10,
-18,
1,
-12,
75,
24,
24,
2,
-35,
26,
-17,
-26,
50,
1,
-53,
16,
50,
3,
31,
-9,
-81,
-7,
-33,
22,
-6,
57,
58,
12,
-6,
3,
34,
21,
-8,
-13,
13,
22,
-41,
-7,
24,
3,
16,
0,
17,
5,
51,
-25,
17,
-51,
7,
15,
-8,
-10,
48,
73,
-40,
26,
39,
60,
-10,
3,
-17,
-13,
-9,
5,
16,
-65,
-60,
-54,
48,
-28,
43,
8,
23,
30,
-19,
43,
-25,
47,
11,
4,
42,
-41,
31,
5,
-2,
-2,
-7,
26,
18,
-5,
-49,
33,
-14,
-35,
18,
0,
19,
-23,
-109,
34,
14,
10,
-7,
-27,
29,
-1,
31,
12,
25,
-2,
-23,
-53,
-13,
29,
42,
31,
-5,
-24,
-38,
33,
46,
0,
83,
-41,
-18,
-26,
4,
44,
-21,
4,
30,
37,
16,
-28,
26,
-5,
-11,
-23,
-9,
49,
6,
40,
-49,
22,
24,
-18,
0,
24,
61,
-78,
-14,
20,
30,
-2,
-41,
14,
-10,
-29,
19,
31,
-11,
-48,
4,
-26,
-6,
-11,
24,
-13,
-37,
-23,
35,
-39,
-42,
73,
-17,
36,
-35,
-13,
4,
19,
15,
-14,
-64,
31,
-5,
7,
-31,
23,
14,
29,
-4,
10,
30,
-11,
37,
0,
24,
-11,
-38,
-34,
7,
6,
0,
-12,
7,
4,
-54,
-25,
37,
12,
-47,
36,
-7,
39,
-19,
-22,
-2,
-15,
-27,
18,
59,
-3,
-28,
-18,
20,
-17,
49,
11,
-2,
23,
-2,
-45,
-8,
-59,
-39,
22,
-27,
8,
25,
11,
19,
26,
-10,
21,
-28,
4,
-62,
-26,
-18,
49,
8,
77,
-13,
21,
-13,
24,
32,
-15,
-7,
-26,
-2,
2,
7,
12,
-4,
-3,
-55,
-38,
2,
50,
-18,
-57,
-22,
28,
-17,
18,
5,
0,
-19,
15,
77,
43,
-95,
-8,
-32,
-41,
22,
-27,
-62,
-27,
-41,
41,
-24,
-41,
25,
2,
9,
-9,
54,
1,
-44,
-12,
-43,
21,
40,
-12,
21,
-2,
2,
-20,
17,
-3,
40,
-25,
37,
52,
-21,
9,
-29,
-15,
18,
40,
56,
38,
30,
26,
-32,
-21,
-37,
0,
10,
47,
48,
-15,
47,
15,
38,
-9,
14,
23,
-17,
1,
-20,
-64,
14,
30,
4,
2,
-1,
-24,
22,
-27,
-22,
-30,
-1,
-76,
30,
-30,
40,
-27,
0,
-36,
12,
0,
17,
6,
41,
-16,
-33,
0,
8,
81,
-12,
40,
-48,
0,
17,
-10,
-32,
-26,
40,
35,
-47,
-22,
14,
2,
-22,
-57,
18,
-16,
0,
14,
5,
-21,
-33,
39,
20,
-64,
14,
29,
-27,
38,
-4,
-32,
-30,
5,
5,
10,
-10,
-38,
-14,
28,
-8,
-14,
-1,
-24,
-39,
51,
-2,
49,
13,
-13,
3,
36,
3,
-39,
9,
-16,
19
] |
Clark, C. J.
These two actions in malicious prosecution were consolidated and tried without a jury. Plaintiffs had judgments. Defendants have appealed. There must be reversal, as probable cause for making the complaint is established.
Anderson bought an automobile from Low Dollar Car Market. ' The paper arising upon the sale was discounted with defendant Central Discount Company, a corporation. Anderson reported to police department of the city of Lansing that the car had been stolen. Later the following* letter was written and received:
“City of Lansing Police Department
“Alfred Seymour, Chief.
“Lansing, Michigan, March 2, 1927.
“Low Dollar Car Market,
“2773 Cass Ave.,
“Detroit, Michigan.
“Gentlemen:
“On January 4, 1927, David Anderson, formerly of 311% N. Washington avenue, Lansing, reported to us his Maxwell coupe was stolen. License No. 290-029 (1926), motor No. 473621, serial No. 440347. We have since learned who took the car and that they have left Michigan with it. In order to apprehend them we tried to get in touch with Mr. Anderson and have him sign complaint for warrant, but were unable to locate him.
“We are informed you have an interest in this car and writing you to see if you care to send someone to Lansing to obtain warrant for these parties.
“Please let us hear from you at once about this.
“Sincerely yours,
“Alfred Seymour,
“Chief of Police.”
The letter was forwarded to' Central Discount Company, which did not at once become active. It was protected by insurance. Then the Lansing police department called Central Discount Company by telephone, of which:
“A. They said that it was the Lansing police department calling, and asked if we realized it was necessary for a representative of the company to be in Lansing, to sign some papers in connection with the Anderson car theft.
“Q. Go ahead.
“A. And I said I did not know it was obligatory, bnt we would have someone down there as soon as possible.
“Q. Did you go?
“A. No.
“Q. Why not?
“A. I was busy with details.
“Q. Did you communicate that? What did you communicate to Mr. Winters in relation to those circumstances ?
“A. Just what was said.
“Q. Just what was said?
“A. Yes.
“Q. Did Mr. Winters go to Lansing?
“A. Yes.”
Winters was president of the Central Discount Company. He went accordingly to the office of the chief of said police and talked'with secretary of the chief and other police officers, who said they knew where the car was and who had stolen it, and told him to make complaint, and
“A. I believed it, because they were officers of the State, and I thought that they knew what they were doing, that they knew their business, and they requested me to sign it, and prepared it, and that is all there was to it.
“Q. That is the whole thing in a nutshell, isn’t it?
“A. That is all.”
A police officer conducted Winters to the office of the assistant prosecuting attorney of the county, to whom the officer stated in outline the facts, and the attorney O. K.’cl the complaint. Winters said little or nothing. The plaintiffs were arrested and later released.
As to what is probable cause, we quote syllabi of Wilson v. Bowen, 64 Mich. 133:
“To constitute probable cause, there must be such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious man in the belief that the person arrested is guilty of the offense charged.
“A person may have ‘probable cause’ for making a criminal complaint from information received from others, which he honestly believes to be true, and of such a character, and obtained from such sources, that business men generally, of ordinary care, prudence, and discretion, would act upon it under such circumstances, believing it to be reliable. ’ ’
We think an ordinarily cautious man, under the circumstances above set forth, being requested, if not directed, by officers of the law to make complaint, knowing they had had the matter under investigation and being told by them that the car had been stolen, and that they knew where it was and who had stolen it, would sign complaint. We think defendants had probable cause.
Whether Anderson was credible or otherwise is not important, as it appears defendants relied on the police officers. Birdsall v. Smith, 158 Mich. 390; Rogers v. Olds, 117 Mich. 368.
Reversed, without new trial, and with costs.
McDonald, Potter, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred. | [
-6,
14,
-14,
27,
-15,
-44,
-1,
-23,
-28,
24,
16,
21,
-38,
-10,
-26,
-1,
59,
16,
57,
-27,
33,
-75,
-34,
-19,
-20,
-37,
38,
-65,
-63,
5,
-11,
11,
51,
-42,
-1,
82,
37,
0,
1,
43,
-65,
-32,
46,
-11,
-24,
7,
-13,
-16,
-3,
-77,
19,
21,
6,
3,
39,
-1,
43,
43,
-23,
16,
-12,
-4,
56,
-19,
-5,
2,
-5,
12,
-8,
-5,
0,
10,
-5,
41,
26,
-18,
5,
-17,
7,
13,
-8,
19,
65,
22,
42,
28,
-5,
-43,
-48,
-13,
-15,
8,
-1,
-7,
66,
-25,
15,
-3,
5,
16,
4,
-37,
-17,
18,
10,
45,
-13,
-41,
-15,
58,
-40,
4,
61,
-12,
18,
-24,
-7,
-36,
50,
28,
25,
-12,
-5,
12,
22,
8,
-19,
6,
-19,
16,
15,
26,
10,
37,
12,
-36,
2,
-17,
-42,
5,
-9,
70,
-20,
-7,
31,
0,
19,
57,
-8,
70,
-73,
-39,
-8,
-1,
-34,
-12,
-42,
6,
50,
-19,
-12,
-5,
-2,
-35,
21,
-10,
-61,
3,
20,
23,
-42,
14,
-30,
-9,
21,
-12,
-61,
7,
-9,
-27,
-18,
0,
17,
-27,
-32,
-55,
33,
13,
3,
2,
58,
23,
-16,
32,
-37,
29,
18,
-8,
38,
3,
41,
-21,
-62,
-36,
-36,
-39,
58,
13,
35,
44,
14,
-3,
3,
-24,
37,
13,
-3,
-33,
45,
-39,
0,
-15,
-39,
40,
-5,
-9,
8,
-31,
-12,
9,
59,
48,
5,
16,
-20,
-49,
-3,
5,
54,
25,
50,
11,
-2,
-40,
20,
16,
-46,
-19,
-9,
-17,
2,
-4,
-34,
-8,
-57,
-20,
27,
-17,
30,
32,
45,
14,
-26,
38,
-3,
-21,
44,
11,
-62,
-40,
-16,
-23,
-45,
-10,
-55,
-18,
-14,
40,
42,
23,
9,
-41,
8,
-44,
53,
-28,
-6,
15,
-13,
-61,
-1,
42,
38,
-34,
14,
17,
35,
-19,
-54,
21,
-54,
40,
-49,
-31,
6,
-69,
-44,
-6,
-13,
16,
-4,
-13,
-26,
-24,
11,
18,
17,
-16,
24,
-11,
17,
38,
-55,
10,
40,
24,
47,
-15,
27,
-73,
60,
-24,
-18,
-70,
-11,
7,
6,
-15,
48,
33,
-14,
-12,
-27,
-30,
-8,
18,
41,
11,
-36,
-22,
17,
-52,
-24,
-18,
31,
18,
-6,
24,
-1,
-39,
52,
31,
-3,
27,
-9,
27,
-12,
-34,
-11,
84,
0,
-74,
-62,
17,
-34,
-3,
-8,
-2,
-33,
10,
34,
-43,
-14,
0,
4,
-18,
-42,
-26,
-47,
49,
-34,
59,
3,
-19,
-9,
-45,
3,
-5,
-5,
-7,
-36,
68,
13,
-6,
-7,
2,
43,
69,
1,
-21,
-46,
-21,
91,
26,
1,
7,
-18,
-18,
-32,
-24,
3,
52,
-4,
-54,
44,
17,
42,
39,
-27,
44,
38,
29,
53,
-9,
9,
20,
-23,
-43,
12,
-21,
10,
-10,
-20,
44,
44,
-10,
-22,
5,
4,
4,
32,
39,
12,
9,
-28,
43,
67,
0,
-21,
-16,
-5,
-48,
-20,
9,
-38,
-28,
9,
-21,
-5,
29,
28,
34,
-9,
-8,
-56,
-37,
13,
-24,
8,
25,
-101,
-23,
17,
-8,
-73,
-35,
-38,
-57,
24,
65,
21,
26,
-28,
68,
38,
31,
-4,
-26,
21,
-17,
-1,
-30,
-50,
5,
30,
10,
30,
-17,
6,
-7,
13,
7,
-9,
-21,
0,
0,
-11,
31,
12,
41,
25,
15,
-23,
25,
-15,
0,
57,
-45,
-42,
-4,
11,
-22,
-25,
-40,
42,
-63,
1,
5,
20,
15,
20,
-6,
-11,
14,
-41,
-48,
20,
-42,
33,
-40,
-6,
8,
20,
-26,
4,
11,
38,
-3,
-32,
15,
-25,
21,
50,
31,
30,
28,
-1,
46,
55,
-34,
-21,
25,
43,
-10,
-24,
24,
14,
-21,
-24,
19,
0,
33,
-40,
19,
-40,
9,
-3,
31,
14,
-28,
-38,
31,
-6,
-28,
12,
26,
-17,
-22,
6,
18,
15,
-9,
4,
23,
28,
-14,
-50,
60,
-39,
-62,
5,
12,
55,
-4,
-2,
21,
-50,
-30,
-38,
-32,
43,
-37,
44,
17,
-8,
-52,
9,
-8,
-39,
6,
-15,
-20,
0,
33,
-35,
3,
53,
37,
-80,
-20,
-24,
-1,
-9,
2,
5,
21,
-17,
-23,
2,
-20,
-36,
22,
15,
12,
19,
-9,
-19,
2,
0,
-43,
-7,
21,
-64,
-37,
-28,
-24,
8,
-1,
46,
2,
24,
-20,
-24,
-31,
-45,
18,
3,
18,
-6,
-6,
18,
5,
6,
-25,
-8,
49,
-38,
7,
3,
1,
-35,
8,
-16,
-38,
-27,
-9,
67,
-32,
8,
-11,
-17,
-16,
41,
-19,
-29,
6,
-19,
-1,
-2,
26,
-13,
-5,
-20,
-36,
-21,
18,
25,
36,
-40,
-26,
-32,
-64,
19,
-48,
23,
-21,
-30,
-27,
-17,
30,
46,
-26,
56,
-22,
-13,
44,
-6,
-25,
-25,
-10,
3,
41,
64,
-11,
2,
-36,
-20,
14,
21,
-8,
41,
27,
68,
59,
-20,
-15,
9,
42,
-50,
-25,
-1,
31,
20,
-45,
-35,
41,
-26,
9,
14,
-41,
-18,
-41,
7,
-31,
1,
-13,
15,
-33,
17,
-19,
-71,
18,
-14,
48,
5,
23,
-19,
11,
47,
6,
50,
-4,
-20,
-13,
-67,
10,
27,
-5,
21,
-8,
-21,
23,
3,
-17,
-22,
-14,
17,
57,
2,
-5,
-42,
24,
-38,
-44,
26,
47,
0,
3,
-42,
18,
-2,
-8,
0,
19,
-49,
35,
-20,
-43,
-18,
29,
12,
12,
16,
44,
-26,
30,
18,
-18,
24,
38,
14,
-16,
15,
49,
14,
11,
8,
29,
15,
-34,
-2,
-52,
-1,
1,
-15,
23,
-12,
-25,
38,
-6,
-27,
-11,
-32,
-21,
26,
-28,
-9,
-20,
-22,
24,
28,
29,
1,
35,
7,
27,
38,
-23,
-4,
-14,
25,
1,
-19,
11,
-15,
0,
-12,
-52,
-13,
21,
-45,
-9,
-48,
-22,
-22,
-56,
-3,
37,
41,
-5,
0,
-36,
-57,
-30,
30,
17,
-26,
3,
-32,
15,
24,
8,
1,
-9,
-25,
14,
-19,
14,
29,
-22,
15,
-16,
-33,
11,
40,
-15,
1,
6,
-13,
51,
-3,
31,
2,
16,
50,
-21,
27,
-22,
3,
53,
13,
-24,
9,
-9,
-9,
-3,
23,
-12,
-23,
49,
21,
6,
-9,
28,
7,
4,
-19,
-50,
23,
-16,
-28,
-19,
75,
-36,
31,
29,
8,
-1,
11,
11,
42,
-7,
-6,
-9,
17,
-17,
-5,
8,
-17,
-16,
20,
13,
-11,
67,
81,
-9,
-5,
11,
-60,
54,
0,
-9,
21,
-14,
-28,
0,
14,
-2,
24,
-26,
39,
-25,
22,
-12,
-21,
-16,
-3,
-35,
30,
56,
-37,
-22,
-39,
-12,
15,
11,
-4,
-5,
16,
-30,
-54,
17,
0,
23
] |
Potter, J.
(dissenting). This is an appeal by defendant from summary judgment in favor of plaintiff, subject to a permanent stay of execution against defendant. Garnishment is an anomalous and harsh statutory remedy. One pursuing it must bring himself within the statute and follow its mandates. W. H. Warner Coal Co. v. Nelson, 204 Mich. 317; Weber v. Wayne Circuit Judge, 217 Mich. 561; People’s Wayne County Bank v. Stott, 246 Mich. 540 (64 A. L. R. 427). In garnishment proceedings the affidavit for the writ of garnishment stands as a declaration. The disclosure of the garnishee defendant amounts to a plea. 3 Comp. Laws 1929, § 14867. Garnishment proceedings are ancillary to the main suit.
‘ ‘ One cannot be held as garnishee where the liability is joint; and the converse of this is equally true, that two or more cannot be held as garnishees unless the liability to the principal debtor is joint. ” Ball v. Young, 52 Mich. 476.
The garnishee defendants herein are charged jointly. For this reason the judgment should be reversed. Cause should be remanded.
McDonald, J., concurred with Potter, J.
Sharpe, J. The sufficiency of the allegations in an affidavit for a writ of garnishment is here in question. In it the affiant averred that he—
“has good reason to believe, and does believe, that Peoples Wayne County Bank, a Michigan banking corporation; First National Bank, a national banking corporation; and National Bank of Commerce, a national banking corporation, have property, money, goods, chattels, credits and effects in their hands, and under their custody and control, belonging to the said Detroit Pipe & Supply Company, a Michigan corporation, by itself and doing business as Peninsular Plumbing and Heating Supply Company, the above-named defendant and that the said Peoples Wayne County Bank, a Michigan banking corporation; First National Bank, a national banking corporation; and National Bank of Commerce, a national banking corporation, are indebted to the said Detroit Pipe & Supply Company, a Michigan corporation, by itself and doing business as Peninsular Plumbing and Heating Supply Company, the above named defendant whether such indebtedness is now due or not. ’ ’
A writ of garnishment issued pursuant thereto, and was served on each of the banks named therein. Appellant’s counsel insists that the affidavit is fatally defective in that it did not allege a “several” liability on the part of the three banks. Each of them filed a disclosure.
The statute (3 Comp. Laws 1929, § 14889) provides :
“Two or more persons, severally liable, may be garnisheed in the same action, and their'disclosures and all other proceedings shall be several and judgment shall be rendered for such sum as the court shall order, for or against each severally, and execution may issue accordingly.”
In my opinion, the objection made to the form of the affidavit is too technical to have controlling effect. Any person reading the affidavit, particularly in view of its punctuation, would be informed thereby that the plaintiff sought to obtain disclosures from each of these banks as to its liability to the defendant. There is no intimation of a claim of joint liability, nor do I think it must be inferred from the omission of the word “several” therein.
While garnishment is regarded as a harsh statutory remedy, and the affidavit therefor must fulfil the statutory requirements (Weber v. Wayne Circuit Judge, 217 Mich. 561), the statute above quoted provides that two or more persons may be garnisheed in the same action if severally liable. In State Savings Bank of Detroit v. Wayne Circuit Judge, 95 Mich. 100, this court, in construing this statute, said:
“It is the evident intent of this statute to enable the plaintiff in the action to summon in any and all persons indebted to the principal defendant, or those who have property in their custody and control belonging to the principal defendant, and require a disclosure from each. Upon such disclosure being made, the parties defendant in the garnishee writ must then be proceeded against severally. Each garnishee answers for himself, and it is upon his answer that the court directs an issue to be framed, and this separates him from the other garnishees. * * * This case is distinguishable from Ball v. Young, 52 Mich. 476. In that case the garnishees were sought to be charged jointly.”
The judgment is affirmed.
Clark, C. J., and North, Fead, Wiest, and Butzel, JJ., concurred with Sharpe, J. | [
-6,
-13,
-3,
-1,
7,
36,
54,
-8,
-10,
15,
10,
-44,
17,
5,
5,
-28,
13,
-21,
-3,
-1,
10,
0,
28,
6,
6,
20,
-14,
1,
22,
-41,
-41,
0,
-29,
28,
-7,
-64,
-26,
-11,
-1,
-33,
-24,
43,
-6,
19,
-13,
-13,
-18,
-12,
20,
-49,
33,
-8,
-42,
11,
-9,
4,
-27,
38,
-4,
-9,
-14,
0,
33,
5,
-12,
-15,
8,
38,
-2,
30,
-30,
18,
46,
19,
-7,
-6,
-20,
10,
-36,
11,
-7,
0,
-23,
-46,
-24,
-14,
-17,
29,
-22,
2,
11,
-8,
-41,
17,
19,
3,
9,
-8,
36,
47,
-25,
55,
33,
15,
-1,
-21,
11,
-53,
-12,
57,
4,
-26,
33,
-77,
-57,
-25,
7,
-48,
-5,
-34,
9,
-22,
34,
2,
49,
22,
6,
-79,
4,
22,
23,
48,
-10,
9,
14,
28,
19,
13,
8,
27,
26,
-4,
9,
-5,
-29,
32,
77,
-19,
3,
17,
-19,
21,
3,
-1,
0,
12,
19,
-39,
25,
18,
29,
38,
-13,
28,
-67,
-35,
-7,
40,
-18,
-6,
12,
-6,
-10,
-17,
-10,
15,
-34,
-45,
-21,
29,
3,
31,
1,
-21,
42,
-26,
-51,
-69,
-9,
-7,
-14,
42,
-17,
38,
-9,
28,
50,
13,
8,
-36,
30,
-13,
-10,
30,
20,
-26,
33,
-23,
-2,
17,
-36,
27,
1,
-25,
5,
-23,
43,
-45,
13,
13,
-8,
9,
-14,
18,
3,
8,
-30,
-32,
-7,
2,
-25,
-24,
-1,
3,
-32,
-16,
-11,
36,
37,
18,
-41,
-22,
9,
-19,
10,
-1,
-31,
0,
-12,
28,
3,
6,
15,
13,
-27,
-13,
-43,
-11,
-22,
-14,
21,
58,
-63,
-13,
-37,
-14,
-24,
24,
-48,
-2,
-26,
-21,
56,
11,
40,
-13,
-13,
50,
0,
-7,
-57,
5,
-14,
7,
-11,
19,
-35,
-13,
4,
4,
46,
7,
-12,
29,
32,
11,
-20,
-70,
25,
11,
7,
-27,
36,
-12,
7,
1,
-11,
-1,
-41,
-30,
35,
27,
-14,
59,
23,
12,
-20,
49,
43,
2,
17,
31,
-30,
-89,
14,
-14,
21,
-45,
-13,
5,
-23,
-14,
-16,
22,
34,
19,
42,
-30,
-2,
-19,
8,
-10,
-2,
0,
-6,
5,
43,
-12,
-28,
10,
-25,
-18,
26,
36,
9,
-31,
-16,
28,
-47,
32,
9,
29,
-9,
-56,
15,
51,
-41,
-22,
21,
66,
9,
-42,
1,
16,
-42,
-42,
-39,
-45,
-42,
33,
-20,
-61,
36,
-14,
31,
-10,
0,
12,
-4,
-15,
-49,
-20,
28,
16,
-40,
-18,
2,
-50,
-28,
1,
-25,
14,
20,
2,
-46,
-12,
-17,
-34,
10,
6,
-33,
11,
-54,
48,
-14,
-57,
54,
38,
43,
-41,
13,
-24,
25,
-35,
27,
-35,
46,
17,
21,
-15,
9,
17,
21,
-31,
11,
56,
-28,
-29,
-7,
5,
16,
25,
5,
-19,
7,
-33,
3,
-12,
33,
11,
13,
-3,
1,
-35,
38,
-7,
-16,
11,
36,
-14,
5,
-28,
15,
12,
-27,
-22,
17,
-21,
19,
31,
0,
12,
-16,
16,
0,
3,
24,
27,
-4,
37,
23,
28,
19,
6,
-16,
-16,
-34,
-39,
-2,
-35,
2,
-28,
0,
18,
22,
-18,
-11,
0,
13,
13,
15,
12,
7,
-45,
25,
53,
-37,
-35,
6,
29,
-33,
-2,
62,
31,
0,
0,
1,
-19,
15,
32,
-8,
-3,
-27,
9,
-28,
52,
-40,
15,
51,
36,
-16,
-25,
50,
6,
5,
7,
5,
-3,
-9,
-9,
-17,
72,
7,
3,
-2,
23,
-72,
15,
-1,
-4,
-43,
-46,
18,
51,
10,
32,
8,
-3,
66,
-32,
-26,
-19,
43,
-11,
42,
-54,
19,
-2,
-20,
-49,
-8,
-39,
-24,
25,
-4,
7,
16,
-1,
10,
-33,
-12,
3,
-10,
-67,
20,
20,
-22,
-25,
16,
-19,
6,
-6,
16,
-11,
-69,
-55,
-63,
-1,
15,
67,
36,
10,
-30,
-38,
-8,
-30,
21,
-31,
-19,
8,
34,
6,
-30,
-13,
35,
-28,
-17,
-36,
-27,
66,
27,
-8,
3,
-14,
6,
-38,
-20,
-29,
-54,
-9,
-9,
41,
-17,
17,
-26,
26,
-4,
5,
-39,
29,
-33,
39,
0,
-3,
38,
-65,
-23,
30,
23,
1,
-5,
41,
-3,
1,
55,
-8,
55,
41,
20,
-70,
-6,
24,
0,
22,
16,
25,
12,
49,
34,
31,
15,
-28,
0,
40,
-4,
-14,
-9,
-7,
6,
-8,
-35,
-8,
-8,
-3,
-39,
-52,
30,
33,
-5,
-52,
8,
37,
-55,
25,
6,
-15,
17,
49,
22,
-36,
-1,
-58,
-13,
23,
-38,
-44,
20,
-28,
60,
12,
-7,
-1,
23,
53,
13,
39,
-53,
-7,
-41,
-18,
-58,
-35,
3,
24,
36,
-63,
39,
-10,
-52,
16,
16,
-23,
18,
54,
0,
34,
0,
-31,
-46,
7,
45,
13,
12,
-7,
-26,
9,
18,
35,
41,
-42,
34,
55,
-17,
37,
41,
52,
39,
-87,
-50,
13,
-27,
-12,
38,
18,
21,
14,
11,
6,
-38,
-54,
-50,
21,
1,
18,
13,
37,
-5,
-2,
53,
-44,
59,
-37,
5,
18,
-13,
-59,
-5,
-12,
-19,
51,
-3,
-29,
-17,
-63,
44,
49,
61,
29,
8,
0,
54,
-13,
12,
9,
21,
7,
17,
-3,
19,
1,
18,
-22,
32,
28,
3,
28,
-47,
24,
-37,
-30,
-21,
37,
-26,
-19,
-16,
0,
-30,
-13,
-29,
18,
-14,
-27,
-7,
47,
-18,
-13,
64,
2,
35,
-50,
-20,
-83,
-34,
-2,
-17,
62,
-7,
36,
-21,
14,
8,
-15,
-10,
10,
39,
31,
-21,
2,
-2,
33,
42,
40,
-13,
25,
36,
0,
-64,
22,
-34,
-51,
33,
39,
-66,
4,
27,
-2,
60,
0,
26,
-8,
22,
-25,
18,
-11,
19,
24,
14,
-46,
-72,
38,
17,
-10,
25,
15,
25,
-1,
5,
-70,
7,
-15,
-31,
-64,
-50,
3,
2,
-1,
4,
0,
20,
78,
-17,
54,
-35,
21,
36,
8,
39,
-67,
6,
7,
53,
3,
-24,
-8,
-5,
-5,
1,
-2,
-13,
-11,
-2,
-16,
-67,
33,
21,
-53,
10,
-41,
20,
3,
-58,
-6,
-2,
-14,
-21,
-1,
6,
31,
-30,
-15,
-54,
1,
27,
26,
-3,
-26,
13,
-3,
-32,
9,
-14,
52,
-59,
-21,
0,
-10,
-13,
7,
5,
-16,
-11,
-39,
-25,
-50,
-31,
-18,
75,
-21,
0,
-23,
50,
-45,
-70,
41,
-12,
-35,
-22,
-65,
-22,
-16,
35,
-13,
46,
1,
23,
5,
-27,
-18,
-2,
30,
-8,
42,
67,
-22,
56,
15,
-12,
26,
0,
-30,
-3,
0,
47,
9,
-34,
-11,
-32,
15,
4,
12,
53,
-16,
-7,
30
] |
Fead, J.
In this action on a promissory note, as the testimony shows that the indorser, Jerome, was given notice of dishonor, as required by statute (2 Comp. Laws 1929, § 9338), judgment for plaintiff is affirmed, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
-49,
-12,
10,
43,
-36,
25,
35,
-45,
19,
28,
6,
30,
66,
14,
-65,
13,
39,
-33,
-4,
-34,
-55,
-36,
-38,
27,
15,
2,
44,
33,
-3,
40,
-5,
25,
-16,
-16,
-58,
-28,
4,
-17,
41,
-50,
32,
-9,
-2,
-22,
-21,
-44,
-45,
-52,
18,
-46,
-5,
7,
36,
-47,
35,
-34,
-31,
-30,
3,
-5,
3,
-56,
-16,
-22,
-63,
-53,
1,
5,
9,
18,
0,
24,
-2,
-10,
1,
-61,
6,
28,
-16,
-28,
54,
-63,
-57,
20,
-21,
-16,
-17,
-21,
-15,
0,
-18,
62,
-34,
-9,
-53,
-21,
7,
43,
11,
19,
12,
-62,
-35,
24,
52,
7,
-55,
-42,
-24,
-10,
-5,
9,
47,
-48,
-33,
-19,
-69,
15,
15,
-27,
52,
14,
-1,
-39,
-9,
49,
14,
-32,
-3,
51,
56,
-36,
-74,
29,
0,
3,
0,
-22,
3,
-18,
-6,
-16,
8,
13,
25,
35,
-7,
34,
-11,
9,
-38,
52,
-2,
17,
37,
0,
-5,
-52,
7,
-6,
26,
5,
-16,
-30,
-15,
17,
-30,
0,
15,
-6,
17,
52,
-40,
-26,
-5,
3,
20,
-8,
-26,
-10,
-12,
57,
-14,
-46,
13,
26,
-72,
17,
-17,
30,
-26,
-9,
9,
13,
-33,
-15,
8,
-5,
24,
-34,
-21,
-1,
14,
-12,
-25,
-26,
100,
-28,
-59,
20,
-5,
3,
-16,
-41,
-10,
3,
55,
-19,
-16,
28,
-23,
51,
-39,
-30,
-25,
-45,
-21,
40,
-7,
-14,
-24,
14,
5,
-4,
12,
12,
12,
-3,
15,
34,
-10,
13,
-9,
-10,
27,
33,
22,
43,
-16,
-24,
17,
24,
-27,
35,
-33,
-8,
-15,
48,
-18,
20,
-22,
62,
-23,
21,
9,
-16,
37,
15,
-13,
15,
29,
-41,
-7,
16,
0,
0,
-24,
5,
-80,
-1,
-2,
-5,
-67,
24,
8,
-21,
4,
69,
13,
-17,
31,
-19,
27,
10,
28,
32,
-32,
-35,
-5,
-26,
-10,
-46,
-29,
10,
-19,
-78,
12,
-33,
-49,
-21,
8,
20,
-61,
-40,
3,
23,
-39,
11,
35,
-32,
1,
85,
-5,
-49,
2,
6,
75,
-12,
15,
49,
-16,
-36,
17,
-1,
27,
55,
27,
0,
-45,
-18,
43,
30,
18,
5,
-30,
-5,
19,
24,
-2,
15,
-27,
-33,
-8,
33,
-40,
0,
-2,
27,
13,
33,
52,
-11,
-22,
-26,
7,
49,
-1,
-11,
-16,
26,
25,
28,
-36,
0,
-59,
19,
8,
-44,
-17,
36,
-34,
-47,
-39,
38,
28,
-32,
-43,
7,
-72,
13,
-30,
-12,
-2,
31,
3,
-29,
0,
-21,
-59,
-26,
-36,
34,
20,
-23,
-35,
37,
25,
-26,
32,
38,
5,
19,
-43,
-3,
11,
-12,
31,
2,
43,
-52,
50,
-7,
7,
28,
32,
-4,
24,
12,
-17,
-12,
7,
14,
-3,
-9,
49,
19,
-52,
22,
35,
45,
42,
-2,
-29,
3,
39,
-18,
-33,
-28,
18,
-50,
25,
-4,
36,
57,
30,
35,
24,
-15,
4,
-39,
20,
0,
-23,
-27,
-13,
-3,
41,
-28,
-11,
-7,
-21,
-17,
15,
49,
-35,
-29,
-31,
3,
-1,
44,
-16,
35,
0,
-21,
-19,
5,
-18,
-56,
0,
-41,
-22,
-11,
19,
25,
17,
-1,
-4,
0,
-40,
18,
15,
-2,
5,
-2,
12,
8,
-16,
16,
-12,
37,
-16,
-9,
17,
-24,
1,
22,
-11,
-30,
-2,
38,
70,
-1,
-59,
16,
-42,
13,
13,
2,
-21,
27,
15,
76,
14,
-27,
19,
27,
26,
-10,
33,
-39,
0,
26,
15,
21,
42,
13,
5,
21,
-8,
44,
-24,
15,
61,
27,
-20,
25,
88,
19,
-6,
-8,
-43,
13,
15,
-8,
-23,
0,
34,
39,
-19,
0,
-29,
-20,
27,
41,
-1,
25,
-71,
5,
22,
-49,
15,
45,
-44,
-27,
-20,
46,
2,
-8,
-7,
-2,
-22,
38,
-4,
7,
-63,
-41,
-20,
-13,
34,
22,
11,
-1,
-24,
-3,
1,
-33,
-11,
-1,
-4,
-37,
0,
69,
17,
9,
62,
-19,
-26,
-46,
9,
37,
-21,
-35,
16,
11,
33,
-26,
-18,
-66,
-31,
14,
1,
11,
-26,
-10,
-29,
24,
-24,
-1,
0,
-35,
18,
19,
2,
8,
45,
-25,
-32,
14,
39,
-9,
15,
7,
15,
9,
-16,
0,
6,
-14,
17,
-12,
4,
11,
-42,
21,
27,
-4,
50,
38,
47,
6,
22,
5,
35,
14,
27,
5,
-22,
27,
22,
-19,
-26,
-13,
4,
65,
-1,
-44,
-12,
-1,
-8,
-5,
-47,
24,
-64,
-10,
-2,
22,
30,
8,
-11,
48,
6,
-51,
24,
23,
31,
-29,
4,
46,
-1,
20,
17,
-35,
-34,
34,
-3,
30,
-5,
39,
-72,
-24,
4,
-7,
45,
-73,
11,
-8,
15,
21,
0,
20,
30,
13,
7,
19,
11,
7,
-8,
-68,
-16,
-10,
27,
-13,
-22,
-35,
-8,
12,
4,
24,
7,
25,
37,
-21,
35,
26,
14,
11,
-11,
-35,
-3,
27,
-26,
17,
-32,
-24,
11,
10,
-53,
-9,
9,
-48,
0,
2,
29,
-12,
5,
-30,
23,
-1,
32,
-18,
-8,
18,
3,
29,
8,
-34,
-9,
-48,
26,
62,
42,
-27,
-14,
-9,
-6,
21,
-11,
11,
-26,
-11,
-7,
-1,
-19,
11,
-29,
17,
23,
37,
6,
-27,
12,
-10,
-41,
-21,
2,
29,
6,
2,
-29,
-8,
23,
12,
63,
28,
10,
18,
-35,
-33,
-46,
-19,
22,
-88,
-6,
45,
-17,
19,
14,
-4,
-32,
5,
-9,
-26,
22,
-20,
16,
-24,
2,
24,
53,
-80,
41,
5,
-27,
-27,
-38,
35,
-12,
-10,
-19,
7,
-31,
-11,
-34,
-45,
56,
-25,
-37,
10,
6,
-14,
50,
34,
-4,
-10,
-31,
-15,
59,
-34,
16,
26,
10,
43,
-78,
2,
-25,
1,
-12,
-41,
-36,
6,
24,
-47,
-14,
-22,
10,
5,
22,
-40,
20,
28,
-22,
-49,
4,
0,
8,
27,
24,
39,
-15,
35,
39,
6,
6,
-2,
-21,
26,
27,
14,
-35,
22,
20,
14,
-44,
-1,
-9,
-19,
35,
31,
-13,
-9,
-2,
-9,
8,
25,
36,
-7,
-3,
-36,
43,
16,
29,
-40,
31,
28,
14,
1,
-38,
-16,
0,
36,
-20,
30,
-62,
31,
-57,
-9,
19,
-12,
-34,
-34,
-22,
8,
-24,
-26,
-16,
-35,
0,
5,
4,
4,
3,
-48,
-45,
1,
-24,
-25,
18,
9,
-41,
8,
23,
-15,
-36,
24,
-16,
-9,
62,
-10,
7,
-40,
45,
-38,
0,
-18,
0,
-30,
26,
-23,
-11,
-14,
-34,
-7,
12,
-9,
13,
7,
25,
34,
-17,
-12,
-32,
3,
48,
53,
27,
10,
-14,
0,
59,
83,
-10,
41,
36,
62
] |
P. R. Joslyn, J.
In Docket No. 90689, plaintiff appeals from a circuit court order granting summary disposition to defendant Acacia Park Cemetery Association. In Docket No. 90851, Acacia Park appeals from the circuit court’s order granting summary disposition of Acacia Park’s third-party claim for idemnification or contribution against plaintiff’s collective bargaining agent, the United Steelworkers of America. We affirm the circuit court decision to grant summary disposition to Acacia Park in Docket No. 90689. Because our holding affirms a judgment absolving Acacia Park from liability, we do not address the merits of the idemnification and contribution claims asserted in Docket No. 90851, which is also affirmed.
This case arose from Acacia Park’s decision to terminate plaintiff’s employment as a ground-keeper. On April 9, 1980, plaintiff sustained a back injury in the course of his duties as a volunteer fireman. He was hospitalized, and a laminectomy was performed. This injury disabled plaintiff from his employment with Acacia Park, although plaintiff alleged in his complaint that he was fit to return to work as of September 1, 1981. Acacia Park notified plaintiff on July 13, 1981, that plaintiff’s name had been eliminated from company employment records and that plaintiff could not return to his job unless he reapplied and submitted documentation of his medical fitness.
Plaintiff filed a grievance with the union. Subsequent negotiations between Acacia Park and the union resulted in an arrangement that initially required plaintiff to obtain a medical opinion that he was fit to perform his job duties. If plaintiff were able to do so, plaintiff would then submit to a medical examination by a physician selected by Acacia Park. In the évent of a conflict between the two opinions, a third physician would be selected by agreement of Acacia Park and the union for the purpose of giving a neutral medical opinion. The contemplated conflict between the opinions of the first two physicians did occur, and a third physician opined that plaintiff should not return to his job.
The union proceeded with arbitration of plaintiff’s grievance. The arbitrator decided that the arrangement worked out between the union and Acacia Park to resolve the dispute based on the medical opinions of three physicians constituted a valid settlement agreement of the grievance. Therefore, the grievance was dismissed.
Thereafter, plaintiff filed a complaint against Acacia Park in circuit court, alleging two theories of recovery: (1) violation of the Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq.; and (2) retaliatory discharge from employment for anticipated future workers’ compensation claims. The circuit court granted summary disposition without specifying which ground of MCR 2.116(C) it relied upon, stating that the voluntary agreement of the parties to submit the grievance to a third, neutral physician was conclusive of the questions raised by plaintiff’s suit.
count i: handicappers’ civil rights act
We conclude that the circuit court’s decision to dismiss Count i on the basis of the parties’ settlement agreement and the subsequent arbitration decision was erroneous. In Alexander v Gardner-Denver Co, 415 US 36; 94 S Ct 1011; 39 L Ed 2d 147 (1974), an exception to the general rule according finality to the decision of an arbitrator was recognized for claims brought under Title VII of the Civil Rights Act of 1964 for unlawful racial discrimination in the workplace. The Court justified this exception because Congress indicated the importance of the policy to vindicate civil rights by statutorily creating a private cause of action in favor of the victims of discrimination. Also significant was the Court’s recognition that the private cause of action was directed toward the enforcement of statutory rights, not contractual rights arising from the collective bargaining agreement. These considerations are applicable with equal force to cases arising under the hcra. See MCL 37.1606; MSA 3.550(606). We hold that the Gardner-Denver exception applies by analogy to a claim brought under the hcra. See Civil Rights Comm v Chrysler Corp, 64 Mich App 393, 405-407; 235 NW2d 791 (1975). Cf. Moss v Dep’t of Mental Health, 159 Mich App 257; 406 NW2d 203 (1987).
Nevertheless, we will not grant appellate relief if the lower court reached the right result, albeit for the wrong reason. Smith v Motorland Ins Co, 135 Mich App 33, 39; 352 NW2d 335 (1984), lv den 422 Mich 854 (1985). We conclude that Count i of plaintiff’s complaint fails to state a claim on which relief can be granted. MCR 2.116(C)(8). Therefore, the circuit court decision does not require reversal.
A motion pursuant to MCR 2.116(C)(8) is well taken if it is clear from the pleadings alone that the claim does not state a legal basis for recovery. All well-pled facts are assumed to be true. The motion should not be granted unless the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Crancer v Bd of Regents of the University of Michigan, 156 Mich App 790, 792; 402 NW2d 90 (1986), lv den 428 Mich 892 (1987).
In the instant case, it is undisputed that plaintiff was in fact physically incapable of fulfilling his job duties at the time of his discharge. What is disputed is whether plaintiff was able to perform his duties after August 31, 1981.
The hcra prohibits an employer from discharging or otherwise discriminating against an employee "because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position.” MCL 37.1202(l)(b); MSA 3.550(202)(l)(b). A handicap is defined to include a determinable physical characteristic or history of such characteristic that is "unrelated to the individual’s ability to perform the duties of a particular job or position, or is unrelated to the individual’s qualifications for employment or promotion.” MCL 37.1103(b)(i); MSA 3.550(103)(b)(i). We infer from these provisions’ specifying in duplicative fashion that a handicap must be "unrelated” to employment that the Legislature intended this in no uncertain terms.
In Carr v General Motors Corp, 425 Mich 313, 321-322; 389 NW2d 686 (1986), the Court stated that "the only handicaps covered by the act, for purposes of employment, are those unrelated to ability to perform the duties of the position.” Since the plaintiff in Carr conceded that his back injury prevented him from meeting the lifting requirement of the position for which he was denied a transfer, the Court affirmed the circuit court’s summary judgment on the ground that the plaintiff failed to state a cause of action under the HCRA.
Similarly, it is clear from the complaint in the instant case that plaintiff’s disability prevented him from fulfilling the requirements of his job at the time of his discharge. Hence, it cannot be said that the handicap was unrelated to employment. Plaintiffs alleged subsequent recovery from his medical disability and regained ability to perform the job does not alter this conclusion. Even if this allegation is true, defendant’s reliance on plaintiffs medical condition to justify the discharge shows a sufficient relationship to employment. Whether a particular medical condition is related to employment should not depend on the correctness of the employer’s evaluation of the prospects of the employee’s eventual recovery. Because plaintiff failed to plead this threshold requirement, it is unnecessary for us to consider plaintiffs contention that defendant had a duty to accommodate his handicap in accordance with MCL 37.1102(2); MSA 3.550(102)(2).
COUNT Ii: RETALIATORY DISCHARGE
Plaintiff also pled a count alleging that Acacia Park terminated his employment in anticipation of future claims by plaintiff for workers’ compensation benefits if plaintiff were to be injured on the job. Since plaintiff does not allege any right arising from his employment contract prohibiting discharge except for just cause, plaintiffs discharge must be analyzed pursuant to those principles applicable to a contract that is terminable at will. As a general rule, a person employed pursuant to this type of contract may be discharged for any reason at all. See Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980); Valentine v General American Credit, Inc, 420 Mich 256, 258-259; 362 NW2d 628 (1984). An exception to this rule has been recognized for instances where the termination of employment contravenes a policy that is "so contrary to public policy as to be actionable.” Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 695; 316 NW2d 710 (1982). Public policy is ordinarily manifested in legislative enactments. Id.
The statutory provision prohibiting retaliatory discharge in MCL 418.301(11); MSA 17.237(301)(11) does not help plaintiff because it prohibits discharge or discrimination only in retaliation for prior claims for workers’ compensation benefits. Here plaintiff premises his right of recovery on defendant’s anticipation of future claims. Prior to the enactment of 1981 PA 200, MCL 418.301; MSA 17.237(301) did not explicitly prohibit retaliatory discharge of a workers’ compensation claimant. However, this Court in cases arising prior to that time applied the public policy exception noted above to hold that retaliatory discharge was actionable for claims filed prior to discharge. Sventko v The Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976); Hrab v Hayes-Albion Corp, 103 Mich App 90; 302 NW2d 606 (1981); Goins v Ford Motor Co, 131 Mich App 185, 192-194; 347 NW2d 184 (1983), lv den 424 Mich 879 (1986).
In Sventko, supra, 649-650, n 2, Judge Allen, one of the two members of the panel comprising the majority, stated in a concurring opinion that if the plaintiff’s termination was caused by the employer’s apprehension of a future claim arising from reinjury to the employee, then the plaintiff has no cause of action. This formulation of the public policy exception suggests that Count n in the instant case fails to state a claim.
In Hrab, supra, this Court held that an allegation that the plaintiff’s discharge was either in retaliation for his filing of a workers’ compensation claim or to forestall such a filing did state a claim upon which relief can be granted. This holding is at odds with Judge Allen’s concurrence in Sventko.
We hold that retaliatory discharge premised upon the employer’s anticipation of a future claim does not state a legally cognizable cause of action. MCR 2.116(C)(8). We note that the judicial recognition of the public policy exception for retaliatory discharge preceded the Legislature’s embodiment of that principle in statute. Since the Legislature has not chosen to articulate a public policy against discharge for future claims on the same footing as discharge for past claims, we hesitate to accomplish the same end by judicial fiat. Unlike the Court in Hrab, we are unable to discern any unequivocal policy supporting plaintiffs claim. Further, we note that workers’ compensation law is particularly within the province of the Legislature, which has' chosen to occupy this field by its enactment of a comprehensive statutory scheme. See Rancour v The Detroit Edison Co, 150 Mich App 276, 285-286; 388 NW2d 336 (1986), lv den 428 Mich 860 (1987). Thus, it is appropriate to defer to the Legislature’s prerogative to resolve such problems. In the absence of a legislative statement, we decline to recognize Count ii as stating a claim on which relief can be granted. To the extent that Hrab, supra, is inconsistent with our decision, we believe that Hrab was wrongly decided.
Accordingly, the orders of the circuit court granting summary disposition of the claims stated in plaintiffs complaint against Acacia Park and the claims stated in the third-party complaint are affirmed.
Affirmed. | [
10,
-10,
-63,
56,
43,
20,
6,
-25,
5,
10,
-18,
20,
37,
6,
-6,
-6,
16,
25,
-8,
-5,
5,
-10,
10,
55,
-30,
-3,
-56,
-20,
13,
15,
-15,
5,
12,
-28,
-18,
35,
63,
26,
-6,
18,
-27,
36,
-64,
-27,
-52,
16,
7,
39,
20,
-46,
-7,
19,
18,
-8,
-5,
-23,
24,
6,
-43,
3,
-28,
55,
55,
33,
40,
24,
13,
7,
-9,
-11,
-41,
26,
-20,
-16,
9,
3,
-31,
10,
38,
-45,
28,
33,
8,
-11,
15,
63,
25,
14,
18,
-22,
1,
-30,
7,
3,
-21,
31,
8,
11,
25,
3,
7,
-6,
0,
42,
-3,
-29,
-40,
-68,
24,
29,
-3,
23,
15,
16,
40,
6,
60,
5,
10,
42,
24,
-30,
17,
6,
-7,
9,
15,
1,
-25,
38,
27,
1,
-3,
-84,
35,
-26,
34,
-12,
5,
32,
3,
39,
14,
-19,
10,
41,
-6,
28,
-59,
-46,
1,
3,
30,
-24,
-17,
-11,
30,
-10,
16,
59,
-35,
24,
8,
-9,
-8,
-17,
8,
19,
22,
-7,
13,
7,
48,
-32,
-20,
-11,
47,
42,
-33,
0,
-35,
-60,
-21,
4,
-27,
-21,
-26,
-26,
32,
3,
-1,
-41,
13,
-7,
12,
23,
-18,
14,
-54,
0,
14,
-40,
-25,
2,
-34,
19,
16,
17,
70,
9,
9,
0,
-1,
-41,
19,
13,
34,
5,
-38,
-10,
-48,
-19,
12,
-11,
-21,
9,
33,
3,
24,
-54,
25,
16,
33,
33,
18,
-24,
24,
20,
72,
5,
21,
9,
-3,
6,
-77,
-11,
-18,
-9,
-10,
0,
-8,
-27,
-14,
-8,
-64,
-28,
2,
27,
-26,
11,
11,
21,
25,
50,
-6,
0,
-14,
-5,
18,
27,
-80,
37,
30,
-9,
-17,
-19,
-7,
28,
45,
48,
-27,
23,
18,
-45,
-60,
-6,
-9,
4,
-13,
33,
34,
-29,
-39,
18,
48,
-40,
-5,
20,
-26,
-11,
-1,
10,
13,
-21,
7,
45,
-25,
-11,
12,
-10,
4,
6,
37,
-59,
-29,
4,
-19,
-22,
23,
-43,
-51,
76,
-10,
9,
20,
-45,
-11,
-4,
14,
-48,
50,
21,
-19,
5,
-39,
18,
-22,
6,
-7,
-23,
9,
25,
6,
-6,
-2,
3,
-16,
32,
21,
-37,
12,
-4,
-20,
-29,
2,
18,
54,
-74,
-27,
56,
16,
4,
-11,
-10,
-32,
-28,
13,
41,
43,
-16,
1,
-10,
-7,
9,
-9,
-31,
14,
-36,
30,
44,
9,
25,
44,
-21,
13,
-12,
-44,
14,
-9,
-19,
-55,
-35,
2,
34,
-32,
46,
20,
-17,
19,
17,
-10,
9,
-48,
31,
5,
-7,
14,
-79,
-41,
-4,
18,
-7,
-43,
6,
16,
-24,
28,
-36,
-20,
-19,
60,
-9,
-13,
-14,
-41,
-15,
-2,
15,
-28,
12,
-25,
-16,
-14,
-48,
14,
0,
-57,
-59,
-34,
-14,
-39,
-25,
6,
-33,
-59,
-14,
-23,
70,
53,
18,
-7,
15,
3,
25,
-16,
6,
-21,
-8,
19,
5,
13,
-31,
0,
-8,
51,
-8,
0,
41,
19,
-16,
-25,
-9,
29,
-14,
20,
-34,
-20,
-48,
-16,
-19,
13,
15,
39,
-4,
-59,
20,
-29,
-28,
5,
7,
-7,
-47,
2,
-31,
8,
0,
-20,
-17,
-50,
-29,
9,
20,
-24,
-19,
14,
-12,
-9,
-78,
-6,
9,
-68,
-3,
-40,
33,
19,
14,
10,
-9,
-26,
16,
14,
-1,
-14,
-16,
33,
-2,
-17,
2,
21,
-19,
33,
5,
43,
5,
45,
-10,
-21,
7,
-8,
-44,
2,
16,
-6,
4,
-6,
-35,
10,
5,
51,
10,
3,
-12,
-11,
-7,
27,
17,
-21,
-10,
37,
6,
19,
-19,
21,
18,
39,
55,
9,
17,
65,
6,
-33,
42,
16,
13,
35,
28,
8,
45,
-9,
-3,
-65,
-37,
-10,
7,
4,
-15,
54,
13,
-14,
-35,
-5,
-55,
9,
8,
42,
3,
2,
1,
7,
2,
19,
-17,
-54,
-2,
6,
9,
15,
-46,
23,
-50,
-18,
19,
-57,
-22,
-50,
3,
2,
11,
10,
14,
-27,
52,
-1,
8,
-22,
-1,
36,
-10,
-15,
-16,
21,
2,
0,
-37,
42,
22,
-19,
25,
-16,
1,
64,
17,
12,
31,
7,
-15,
19,
-10,
-8,
-7,
-8,
72,
0,
22,
12,
-28,
-4,
31,
-26,
-36,
-7,
6,
16,
-9,
3,
20,
11,
-32,
-4,
-44,
68,
59,
67,
17,
36,
-16,
-11,
42,
-42,
9,
-16,
-46,
-11,
31,
-19,
23,
12,
10,
13,
-35,
21,
19,
22,
-59,
13,
-15,
38,
-6,
5,
12,
-39,
18,
25,
28,
13,
8,
7,
-5,
15,
-64,
9,
-2,
3,
-19,
5,
33,
13,
-52,
-28,
-49,
26,
-3,
-52,
-15,
52,
88,
8,
2,
31,
-94,
-19,
7,
-21,
3,
-31,
-33,
27,
4,
-30,
35,
62,
34,
6,
24,
21,
-2,
4,
-32,
-49,
49,
-28,
-23,
-32,
-37,
20,
-33,
29,
-7,
-29,
58,
-12,
-48,
-11,
35,
15,
-36,
13,
13,
-17,
17,
0,
44,
22,
-7,
-41,
0,
-39,
-26,
-82,
20,
0,
-26,
42,
9,
-43,
-65,
-30,
-9,
-10,
-9,
-41,
-67,
-14,
-59,
57,
7,
-8,
-30,
-27,
-38,
-2,
20,
-2,
34,
-4,
-5,
0,
25,
11,
-25,
-39,
-24,
5,
-51,
-8,
-13,
-26,
-15,
-12,
-10,
-12,
44,
-36,
-21,
25,
7,
13,
-55,
42,
-10,
-2,
-51,
-22,
26,
-27,
45,
-4,
-14,
-46,
13,
35,
-35,
-40,
28,
54,
7,
-43,
60,
-46,
-34,
-1,
-54,
28,
43,
9,
-50,
21,
-53,
-12,
-19,
54,
17,
-11,
-21,
5,
53,
-16,
-6,
56,
-61,
2,
18,
-39,
-23,
-28,
-9,
-18,
-52,
29,
-8,
-1,
-46,
-17,
13,
13,
-36,
29,
45,
-8,
-2,
39,
9,
-4,
15,
-62,
18,
8,
45,
-1,
-20,
39,
34,
24,
25,
-25,
-17,
-24,
-16,
0,
11,
-57,
-9,
-16,
8,
-28,
21,
21,
25,
2,
39,
-49,
9,
13,
-15,
25,
-15,
55,
56,
-22,
45,
16,
25,
45,
-12,
66,
61,
16,
-18,
-45,
-26,
-1,
35,
0,
32,
-29,
-60,
-12,
-10,
-23,
-4,
-11,
-1,
30,
8,
-38,
-17,
0,
0,
-27,
-18,
10,
2,
-36,
37,
12,
22,
7,
-22,
-21,
-32,
36,
-37,
4,
-10,
19,
-37,
-13,
-10,
-24,
33,
-9,
8,
-45,
13,
-15,
-47,
16,
-12,
-65,
-9,
-3,
-22,
27,
23,
29,
14,
-18,
40,
77,
-17,
-12,
24,
16,
-6,
0,
25,
28,
52,
38,
-10,
39,
11,
6,
-20,
-14,
21,
-65,
-59,
-43,
32,
43,
-8,
-5,
-17
] |
D. R. Carnovale, J.
Defendant sought leave to appeal from an order in which the circuit judge reversed the district judge’s ruling quashing a search warrant and dismissing the charges against defendant. The circuit judge had reinstated the charges and remanded the case to the district court for defendant’s preliminary examination. This Court denied defendant’s interlocutory appeal. However, the Supreme Court ordered this Court to consider the case as on leave granted. 425 Mich 872 (1986). On appeal, we consider the validity of the search warrant.
In August, 1978, police received a search warrant to search defendant’s home at 3097 Massena, Commerce Township, Oakland County, for drugs. After finding drugs, police arrested defendant. He was charged with three counts of delivery of a controlled substance, MCL 335.341; MSA 18.1070(41), to wit, phencyclidine, cocaine, and phenobarbital.
Defendant has been challenging the validity of his arrest since 1978. His case has been up and down from the district court to the circuit court on three different occasions. It is necessary to briefly set forth this procedural history in order to frame the issues on appeal.
After his arrest, defendant brought a motion in the district court to quash the search warrant on the ground that the reliability of two persons referred to in the affidavit in support of the warrant, Jake and Bobby, was not established. The district court judge agreed and entered an order dated December 27, 1982, quashing the search warrant and dismissing the charges. On appeal, the circuit judge reversed. This Court and the Supreme Court denied defendant’s applications for leave to appeal.
Next, defendant brought a motion in the district court to quash the search warrant on the ground that the affidavit contained six omissions of material facts. The district court agreed and granted the motion on December 17, 1984. The circuit judge reversed. Although this Court denied defendant’s application for leave to appeal, the Supreme Court remanded the case to this Court for consideration as on leave granted. It is this order that brings the case before us.
Finally, while defendant’s appeal to this Court and to the Supreme Court were pending, defendant brought a motion in the district court to quash the search warrant on the ground that the affidavit contained material and intentional or reckless misstatements of fact. The district court agreed and on October 22, 1985, entered an order granting defendant’s motion. That issue is now on appeal to the circuit court. In order to expedite this case, we will consider all issues considered by the lower courts regarding the validity of the search warrant.
The affidavit consisted of five paragraphs, which are paraphrased as follows:
On August 2, 1978, SOI 926 [an informant who it was later learned was an undercover police officer] who has supplied the affiant with information in the past on at least ten occasions, all of which have proved reliable and have resulted in successful prosecutions, informed the affiant that he was in a position to purchase phencyclidine (pcp) from subjects known to him as Jake and Bobby.
He stated that he had previously purchased pcp from Jake and Bobby and that he had arranged another purchase. He informed the affiant that he was to meet Jake and Bobby at 14832 Dolphin in the City of Detroit.
He met Jake and Bobby and later informed the affiant that Jake and Bobby stated that the price of pcp would be $800 and that they would have to go to Oakland County to obtain pcp from their source, who they referred to as Dave. They instructed SOI 926 to return to 14832 Dolphin Street later in the day. SOI 926 agreed. He was asked for and gave Bobby $800 for the purchase of the pcp.
After Jake and Bobby departed, SOI 926 immediately met with the affiant. The affiant and other members of the Metropolitan Narcotic Squad then followed the subjects directly to 3097 Massena, Commerce Township, Oakland County, Michigan. Jake was observed by the affiant to enter and later leave the location. Upon leaving, the subjects were observed to drive directly to 15121 Graydale, Detroit, Michigan, where they entered the premises and stayed for approximately five minutes. They then drove directly to 14832 Dolphin Street and met with SOI 926.
SOI 926 later informed the affiant that Bobby had given him approximately one ounce of pcp and had informed him that he and Jake had purchased the pcp from Dave in Oakland County and that Dave had just purchased ten pounds of pcp. He said that Dave had approximately seven pounds left at his house. Bobby further stated that he, Jake, and Dave could supply SOI 926 with all the pcp he needed.
SOI 926 then left 14832 Dolphin, immediately met with the affiant, informed him of the above facts, and turned over the purchased pcp. The substance tested positive for pcp.
First, we address the issue that brought the case before us: whether the affidavit contained material omissions such that the search warrant should be quashed and the evidence seized suppressed. The district court ruled that the affidavit contained a number of material omissions. The circuit court reversed, finding that defendant’s allegations were not accompanied by sufficient proof that the affiant’s omissions were intentionally made with reckless disregard for the truth.
The test for determining whether false state ments made in an affidavit in support of an application for a search warrant require suppression of the evidence obtained was stated in Franks v Delaware, 438 US 154, 155-156; 98 S Ct 2674; 57 L Ed 2d 667 (1978). In Franks, the Supreme Court remanded with directions for the trial court to hear and decide the defendant’s challenge to the veracity of the information in the search warrant in accordance with the following test: Where a defendant can show by a preponderance of the evidence that the affiant had knowingly and intentionally or with reckless disregard for the truth inserted false material into the affidavit and that the false material is necessary to a finding of probable cause, the search warrant must be quashed and the fruits of the search excluded at trial. 438 US. 170-171. See People v Mackey, 121 Mich App 748; 329 NW2d 476 (1982); People v Williams, 134 Mich App 639; 351 NW2d 878 (1984).
In the instant case, we find that the district court erred in quashing the search warrant without having first conducted a hearing to decide whether the affiant’s omissions were intentional and whether the omissions were necessary to a finding of probable cause. Despite the error, we decline to remand because we believe that probable cause existed even considering the affiant’s omissions.
The primary fact relied on by the district court in quashing the search warrant was the affiant’s omission that Jake dropped Bobby off at a restaurant before proceeding alone to defendant’s home and that Jake then returned to the restaurant and picked up Bobby before stopping briefly at a home on Graydale Street and returning to Dolphin Street to meet SOI 926. The district court felt that it was just as likely that Bobby purchased the pcp at the restaurant or at Graydale Street as it was that Jake purchased the pcp from defendant.
We disagree. According to the affidavit, when Jake and Bobby returned to Dolphin Street and met with SOI 926, Bobby informed SOI 926 that he and Jake had purchased the pcp from Dave in Oakland County. Our review of the lower court record suggests that the restaurant where Bobby was dropped off was in Wayne County, not Oakland County. Similarly, the home on Graydale Street in Detroit was also in Wayne County, not Oakland County. Because Jake and Bobby’s only stop in Oakland County was at defendant’s home, the affiant’s omissions regarding Jake and Bobby’s stops in Wayne County were not necessary to the magistrate’s finding of probable cause to issue the search warrant.
Our finding that the affiant’s omission that Bobby was dropped off at the restaurant did not affect the magistrate’s finding of probable cause is based on the suggestion in the record that the restaurant was in Wayne County, not Oakland County. If defendant now wishes to contest this point, he should file a motion for an evidentiary hearing with the circuit court. If it is established that the restaurant was in Oakland County, the circuit court should conduct a hearing to decide whether the affiant’s omissions were intentional and whether the omitted fact was necessary to a finding of probable cause. Franks v Delaware, supra. The testimony of the officers who observed Bobby at the restaurant should be considered if an evidentiary hearing is necessary.
The district court also found that two other material omissions had occurred. It found that the affiant had omitted whether Jake and Bobby had pcp on them when they initially left SOI 926 and drove to defendant’s home. While it is possible that Jake and Bobby had the pcp with them all the time and that the drive to defendant’s home was an elaborate ruse to frame defendant, the facts suggest otherwise. There is no evidence that Jake and Bobby knew SOI 926 was a police informant. Further, if they were intent on framing defendant, they would have informed SOI 926 that defendant was their source of supply and they would have driven directly to defendant’s home rather than stopping at the restaurant in Wayne County on the way there and at the Graydale address on the way back to Dolphin Street. Finally, it bears noting that the police were not required to eliminate all sources of the pcp. They were only required to establish probable cause to believe that there was pcp at defendant’s home.
Next, the district court found that the affiant omitted facts establishing the prior truthfulness of Jake and Bobby. The affiant was not required to set forth facts establishing the prior truthfulness or reliability of Jake and Bobby. Reliability can be established by means other than past instances of truthfulness. People v Wares, 129 Mich App 136; 341 NW2d 256 (1983).
We agree with the circuit judge’s conclusion that the facts surrounding SOI 926’s drug purchase from Jake and Bobby established that Jake and Bobby’s statements were reliable. Jake and Bobby stated that they were going to Oakland County to purchase pcp from Dave and stated that they would return to Dolphin Street later in the day with the pcp. Police surveillance established that Jake and Bobby did just that. SOI 926 stated that he gave $800 to Bobby before Jake and Bobby left for Oakland County and that when they returned, he received pcp from Bobby. We note that the affiant’s credibility and reliability is uncontested.
We affirm the order of the circuit judge revers ing the district judge’s ruling quashing the search warrant on the basis of the affiant’s omissions.
Next we consider two other rulings of the district court judge. First, we consider the district court judge’s most recent order quashing the search warrant on the ground that the affidavit contained material misstatements.
The same rule applies with respect to material misstatements as to omissions. The question is whether the affiant’s statements were knowingly and intentionally made with a reckless disregard for the truth and whether the misstatements were necessary to the magistrate’s finding of probable cause. Mackey, supra, and Williams, supra. We conclude that the district court erred in ruling that the affiant’s alleged misstatements invalidated the search warrant.
All but one of the alleged misstatements merely involve Jake’s claim in his affidavit that he did not make certain statements that were attributed to him by the affiant in the affidavit. However, since the affiant was a police officer and since it is uncontested that SOI 926 was both credible and reliable, the search warrant affidavit was entitled to the same consideration as Jake’s affidavit. Consequently, the district court erred in quashing the search warrant without first holding a hearing to determine whether the affidavit contained misstatements, whether the misstatements were knowingly and intentionally made with reckless disregard for the truth, and whether the misstatements were necessary for the magistrate’s finding of probable cause.
Despite the district court’s error, we decline to remand because even assuming there were misstatements, they were not necessary to a magistrate’s finding of probable cause. The only misstatement of any importance was the affiant’s statement that the affiant had followed Jake and Bobby directly to defendant’s home. As noted, Jake actually dropped Bobby off at a restaurant before proceeding on to defendant’s home. We conclude that even assuming the misstatement was intentional, it was not necessary for a finding of probable cause for the reasons discussed when considering the issue as an omission. Nor were the other alleged misstatements necessary for the magistrate’s finding of probable cause for issuing the search warrant.
Last, we consider the district court’s ruling that the hearsay statements of Jake and Bobby could not be considered by the magistrate in determining whether probable cause existed for the search warrant since neither Jake nor Bobby were shown to be reliable or credible.
A reviewing court will sustain the magistrate’s determination of probable cause so long as there is a substantial basis to conclude that the narcotics are probably present. People v Gleason, 122 Mich App 482; 333 NW2d 85 (1983).
An affidavit in support of a search warrant may be based upon reliable information supplied to the complainant from a credible person, named or unnamed, so long as the affidavit contains affirmative allegations that the person spoke with personal knowledge of the matters contained therein. MCL 780.653; MSA 28.1259(3). In People v Sherbine, 421 Mich 502, 509-510; 364 NW2d 658 (1984), our Supreme Court concluded that MCL 780.653; MSA 28.1259(3) set forth three requirements for the use of informant-supplied information:
1. The affidavit must contain affirmative allegations that the informant spoke with personal knowledge.
2. The affidavit must set forth facts from which one may conclude that the informant is credible.
3. The information supplied by the informant must be shown to be reliable.
In the present case, the affidavit contained two levels of hearsay: first, from Jake and Bobby to SOI 926, second, from SOI 926 to the affiant. The use of double hearsay is permissible provided each level of hearsay meets the Sherbine requirements. People v Kalchik, 160 Mich App 40; 407 NW2d 627 (1987); People v Brooks, 101 Mich App 416; 300 NW2d 582 (1980); People v Chartrand, 73 Mich App 645; 252 NW2d 569 (1977).
We agree with the circuit court’s conclusion that the circumstances surrounding Jake and Bobby’s delivery of pcp to SOI 926 combined with the police surveillance of Jake and Bobby established the reliability of Jake and Bobby’s statements. The magistrate properly relied on Jake and Bobby’s statements when reviewing the affidavit for probable cause.
The orders of the district court judge quashing the search warrant and dismissing the charges against defendant are reversed. The orders of the circuit court judge overturning the rulings of the district court judge and reinstating the charges against defendant are affirmed. The case is remanded to the circuit court where defendant shall be given twenty-one days from the date this opinion is released to request an evidentiary hearing relative to whether the restaurant was in Oakland County. If defendant does not request an evidentiary hearing or a hearing occurs and the circuit court finds that the omission was not relevant to the magistrate’s finding of probable cause, the case should then be remanded to the district court for defendant’s preliminary examination. We do not retain jurisdiction.
Sullivan, J., concurred. | [
4,
-6,
39,
34,
-7,
56,
-49,
-12,
-30,
51,
34,
-37,
-27,
12,
18,
22,
4,
33,
40,
15,
-42,
-5,
65,
21,
-22,
-33,
-6,
-4,
-24,
17,
0,
-47,
54,
-34,
17,
-33,
33,
-37,
35,
-1,
-40,
-2,
-21,
18,
-74,
-57,
-23,
35,
4,
-3,
-15,
10,
-38,
20,
0,
8,
-16,
-51,
26,
30,
-52,
30,
3,
13,
-23,
33,
-31,
21,
-26,
-30,
0,
14,
-30,
15,
0,
10,
-3,
16,
-27,
56,
4,
56,
18,
0,
20,
-31,
0,
-25,
-8,
0,
0,
-41,
-56,
-30,
-26,
18,
13,
-24,
65,
9,
-7,
47,
-7,
16,
-13,
-4,
3,
47,
-62,
-16,
27,
-26,
8,
-51,
-6,
-14,
-33,
11,
32,
-34,
22,
-13,
58,
44,
22,
-44,
4,
-15,
-7,
15,
-21,
37,
50,
9,
25,
34,
13,
0,
-31,
23,
10,
46,
37,
-41,
48,
-28,
52,
6,
9,
26,
4,
21,
-13,
61,
4,
22,
32,
-6,
-28,
34,
-36,
27,
-24,
11,
19,
-34,
-33,
-1,
25,
-4,
-8,
56,
12,
30,
-8,
35,
-11,
40,
-5,
-14,
-33,
-8,
22,
-45,
-25,
-56,
5,
-25,
-29,
-31,
-48,
-9,
-6,
-18,
41,
-14,
-1,
8,
-4,
-32,
-38,
-7,
-2,
0,
-19,
-38,
5,
0,
34,
35,
-52,
-14,
-9,
-33,
0,
-23,
3,
49,
34,
36,
-1,
9,
-9,
-4,
-24,
33,
-11,
51,
11,
-7,
36,
51,
33,
-8,
-26,
5,
31,
25,
52,
24,
0,
-3,
-18,
-58,
56,
10,
6,
-35,
-15,
22,
0,
1,
-13,
-29,
-34,
-57,
1,
-58,
15,
35,
13,
26,
22,
-5,
-12,
14,
44,
52,
-34,
46,
-45,
23,
11,
-46,
-12,
38,
-34,
34,
20,
35,
0,
-3,
-31,
-23,
-27,
37,
3,
6,
29,
41,
-31,
-4,
-84,
24,
15,
-32,
25,
-51,
-21,
8,
33,
31,
-57,
-57,
-29,
-14,
20,
-3,
21,
-15,
86,
20,
18,
55,
-35,
8,
22,
-27,
15,
-32,
-74,
9,
-3,
-3,
-30,
14,
28,
-7,
4,
-27,
13,
5,
-9,
16,
-13,
22,
-11,
33,
-20,
12,
-23,
22,
-7,
-12,
-19,
-20,
8,
12,
-5,
8,
46,
26,
4,
2,
-10,
-1,
-25,
-50,
-23,
3,
15,
12,
-41,
3,
16,
24,
-12,
-5,
-35,
1,
-22,
-36,
21,
22,
-1,
2,
-4,
-71,
5,
5,
-16,
-39,
22,
11,
0,
-19,
0,
27,
39,
25,
-28,
0,
40,
-27,
-17,
1,
74,
31,
29,
5,
-25,
13,
51,
25,
-16,
-43,
13,
23,
23,
17,
-2,
31,
-4,
48,
15,
-21,
-19,
-13,
5,
-2,
-7,
-13,
-33,
-33,
3,
35,
-17,
59,
89,
23,
-2,
-16,
16,
-60,
-50,
28,
-24,
-84,
-13,
8,
-74,
-65,
-1,
-11,
9,
-35,
-42,
-5,
-25,
-42,
22,
6,
33,
-20,
-36,
10,
0,
6,
0,
-14,
22,
-58,
-37,
-16,
-37,
3,
-75,
19,
15,
-21,
22,
39,
-12,
-33,
-60,
10,
0,
19,
2,
-31,
29,
7,
-12,
0,
27,
22,
-15,
-42,
-3,
9,
-12,
-10,
-8,
51,
27,
-10,
-9,
-27,
27,
34,
28,
-14,
-2,
7,
78,
4,
9,
-5,
61,
16,
4,
26,
-50,
9,
-19,
-32,
11,
-6,
3,
4,
33,
1,
14,
16,
-31,
39,
6,
-28,
-32,
-4,
-2,
-5,
25,
-24,
-3,
12,
-34,
34,
-20,
40,
7,
24,
19,
16,
-14,
-14,
-20,
-11,
4,
34,
-1,
1,
-20,
-23,
-29,
-2,
23,
44,
5,
-30,
-28,
-37,
80,
20,
8,
6,
-20,
24,
49,
27,
6,
4,
-7,
4,
34,
75,
15,
11,
-49,
16,
8,
28,
-5,
-16,
46,
-26,
-3,
-29,
16,
-70,
-22,
-42,
24,
-36,
-25,
-33,
-44,
-13,
-5,
24,
53,
39,
-16,
48,
15,
1,
29,
16,
-40,
-35,
25,
8,
4,
-17,
-34,
11,
-49,
6,
-27,
31,
-45,
-13,
-37,
-2,
-53,
-4,
-13,
-4,
7,
-25,
11,
-1,
32,
-10,
8,
3,
7,
22,
-66,
-42,
13,
13,
14,
-8,
-8,
-15,
-3,
-72,
-37,
-5,
-26,
48,
-25,
13,
29,
18,
8,
-29,
41,
-9,
-7,
9,
-47,
16,
9,
-26,
-69,
-25,
66,
10,
-29,
-3,
-13,
15,
-5,
-71,
14,
-23,
18,
-31,
-16,
8,
2,
1,
4,
25,
-7,
48,
0,
-1,
0,
27,
-4,
-6,
-3,
1,
-44,
42,
0,
-48,
16,
44,
-20,
-37,
-29,
12,
15,
1,
-1,
42,
-58,
36,
-20,
38,
1,
-15,
13,
-13,
-8,
-37,
-5,
-50,
-14,
18,
-21,
-15,
-14,
-31,
3,
-50,
35,
-50,
58,
-38,
-5,
9,
9,
31,
-31,
3,
-10,
-7,
-4,
-23,
32,
20,
31,
15,
-26,
-3,
39,
-32,
35,
50,
0,
46,
43,
-14,
-14,
-8,
-14,
-1,
19,
-34,
-9,
-5,
14,
30,
18,
59,
6,
-30,
6,
-30,
-18,
-4,
-25,
3,
-1,
-37,
-29,
-9,
-29,
-4,
6,
-18,
-46,
0,
-39,
-12,
19,
-72,
-58,
-67,
58,
3,
56,
-26,
29,
26,
30,
24,
44,
7,
13,
49,
-45,
12,
-2,
-32,
18,
23,
2,
-32,
18,
-14,
-23,
16,
-7,
-11,
57,
-7,
-36,
-11,
-13,
26,
41,
13,
17,
40,
-29,
12,
62,
5,
-17,
-44,
1,
-32,
50,
12,
-26,
-3,
17,
-45,
-10,
24,
16,
31,
1,
21,
-44,
7,
-55,
-6,
18,
30,
14,
7,
31,
3,
42,
26,
-22,
-34,
-10,
-5,
20,
-29,
27,
27,
13,
-47,
-10,
46,
-1,
19,
-2,
-17,
-11,
-18,
7,
-63,
33,
14,
26,
-45,
-46,
-24,
-8,
-9,
-24,
-6,
5,
-15,
1,
46,
41,
-29,
-39,
-2,
21,
-14,
0,
-10,
44,
-1,
17,
3,
-44,
0,
-56,
38,
-2,
-49,
13,
14,
-61,
19,
23,
-31,
-14,
1,
41,
18,
-6,
-58,
-20,
-12,
-15,
29,
21,
-17,
-21,
-30,
-16,
-15,
17,
-21,
47,
-6,
-35,
-13,
-36,
7,
6,
46,
-2,
0,
21,
3,
-22,
-59,
0,
30,
-1,
-4,
29,
2,
-35,
-26,
-27,
15,
26,
38,
0,
12,
6,
9,
-19,
24,
-3,
-6,
-12,
3,
-23,
-5,
-16,
6,
19,
-3,
-14,
-52,
-44,
-43,
23,
18,
11,
18,
-59,
-8,
37,
-47,
46,
8,
-38,
51,
-40,
-38,
-38,
58,
41,
48,
29,
-28,
61,
7,
8,
-2,
-52,
59,
5,
-36,
21,
16,
16,
-9,
-22,
-26,
-48,
44,
-3,
18,
40,
3
] |
M. J. Kelly, J.
This case involves an allegation of a violation of the Civil Rights Act, specifically MCL 37.2202; MSA 3.548(202). Plaintiffs are former employees of a Seven-Eleven convenience store located in the City of Detroit. Defendant, Southland Corporation, operates a chain of convenience stores which includes the outlet where plaintiffs were formerly employed.
At the time that they were hired all plaintiffs signed a policy statement of the employer to the effect that repeated cash or inventory variations could result in termination of employment. Following a series of inventory audits that revealed inventory shortages from $14,000 to $17,000 in a one-month period, the employment of all of the outlet’s nine employees, including plaintiffs, was terminated. All of the employees were black. The auditors, the district manager, and the zone manager employed by defendant were white.
By the time of trial, plaintiffs’ claim (which had included allegations of breach of contract and criminal code violations prohibiting certain forms of discrimination), was limited to whether their civil rights had been violated pursuant to the Civil Rights Act.
At the conclusion of plaintiffs’ proofs, the trial court held that plaintiffs had failed to make out a prima facie case and granted defendant’s motion for a directed verdict. The trial court reasoned that since race was not mentioned as a factor in firing plaintiffs and since defendant hired black employees to replace plaintiffs and the other terminated employees, plaintiffs had failed to show that they were treated differently than those who were not members of a protected class. Plaintiffs appeal this decision as of right. We affirm.
In considering a motion for a directed verdict the trial court must view the evidence and all legitimate inferences it raises in a light most favorable to the plaintiff; however, a defendant is entitled to a directed verdict if the plaintiff has failed to establish a prima facie case. Perry v McLouth Steel Corp, 154 Mich App 284, 296; 397 NW2d 284 (1986).
MCL 37.2202; MSA 3.548(202) provides in part:
(1) An employer shall not:
(a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
There are two alternative theories for establishing a prima facie case of disparate treatment under § 202 of the Civil Rights Act. See Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785; 369 NW2d 223 (1985); Brewster v Martin Marietta Aluminum Sales, Inc, 145 Mich App 641; 378 NW2d 558 (1985).
Under the first alternative, plaintiffs must show that they are members of the class entitled to protection under the act and that they were treated differently, for the same or similar conduct, from others not members of the protected class. See Brewster, supra at 654; Heath v Alma Plastics Co, 121 Mich App 137; 328 NW2d 598 (1982), and Civil Rights Comm v Chrysler Corp, 80 Mich App 368; 263 NW2d 376 (1977) (applying the disparate treatment theory under the former act, the fair employment practices act).
The first part of this test is met since plaintiffs are members of the protected class. However, plaintiffs failed to present evidence during the presentation of their proofs that they were treated differently from others who were not members of a protected class where there had been significant inventory shortages. In fact the evidence presented by one of plaintiffs’ witnesses, on cross-examination, was that on two other occasions the entire staff of an outlet had been discharged for inventory variations. At one of these outlets the entire staff was white, while at the other outlet the staff was mixed, both white and black. In both these cases the inventory variations were less than those in this case.
Under the second alternative for establishing a prima facie case under a disparate treatment theory, plaintiffs had to prove that they were discharged and that the individual discharging them was predisposed to discriminate against blacks. See Civil Rights, supra at 374, n 3; Jenkins, supra; and Brewster, supra. Here, at the time of the discharges, race was not mentioned as a factor in the firings. Furthermore, with the exception of one sales clerk and one security guard, plaintiffs and the six other discharged employees were replaced by black employees.
Since plaintiffs failed to make a prima facie case on their Civil Rights Act claim, the trial court did not err in granting defendant’s motion for a directed verdict.
Affirmed. | [
-59,
-4,
-25,
39,
35,
1,
17,
-12,
-25,
58,
2,
9,
0,
38,
-35,
-26,
16,
25,
36,
-79,
32,
10,
-16,
-46,
-9,
6,
-21,
-22,
13,
-8,
-58,
-19,
5,
-83,
-13,
-38,
44,
53,
-19,
-21,
-20,
-24,
46,
3,
-11,
9,
12,
-17,
97,
4,
14,
7,
-30,
0,
34,
-2,
-12,
-28,
21,
33,
-25,
37,
72,
-36,
5,
-15,
-4,
15,
-44,
-54,
8,
7,
1,
-70,
-23,
-68,
-33,
-19,
-9,
-55,
28,
-49,
26,
18,
-32,
55,
-12,
21,
-23,
0,
-24,
23,
-46,
-17,
19,
63,
17,
-4,
-20,
-26,
-17,
35,
-64,
28,
6,
2,
-21,
-19,
-16,
-7,
8,
-2,
29,
28,
-29,
6,
65,
37,
29,
-33,
62,
34,
0,
-7,
13,
15,
20,
-3,
-40,
87,
51,
2,
15,
27,
4,
6,
20,
47,
0,
19,
-12,
59,
-18,
6,
-20,
60,
-69,
-10,
-4,
-19,
13,
1,
4,
23,
0,
-33,
47,
15,
12,
-4,
-20,
-17,
42,
-24,
-26,
-4,
-53,
-12,
-4,
-32,
12,
-19,
19,
-33,
11,
33,
-20,
-47,
-24,
-47,
4,
-11,
-32,
-8,
24,
-32,
32,
-14,
-15,
16,
4,
-41,
45,
33,
-12,
-2,
-7,
-12,
-15,
-6,
-31,
-31,
-22,
-38,
-13,
12,
4,
-40,
-52,
-6,
-19,
4,
12,
-43,
20,
-27,
33,
-11,
-10,
-32,
-23,
-58,
-1,
20,
-14,
-39,
-1,
11,
27,
-1,
-15,
17,
47,
6,
-9,
15,
34,
-17,
63,
26,
22,
-18,
-40,
3,
-48,
-5,
-4,
-33,
33,
53,
44,
16,
18,
12,
-47,
-15,
-92,
36,
-1,
31,
-31,
14,
-10,
-39,
-6,
20,
-22,
56,
-13,
16,
-45,
-5,
55,
-15,
11,
-32,
-10,
6,
9,
16,
-29,
25,
-26,
-60,
-5,
7,
29,
-44,
-19,
3,
-10,
28,
-40,
17,
7,
-29,
9,
39,
-52,
-28,
16,
-33,
9,
-21,
-67,
12,
-44,
17,
-19,
-28,
-26,
4,
14,
5,
70,
-55,
-2,
11,
29,
0,
6,
26,
15,
8,
41,
-49,
16,
-44,
11,
-59,
29,
30,
28,
22,
-4,
25,
68,
27,
16,
9,
12,
7,
-10,
-29,
-16,
4,
8,
17,
3,
-57,
42,
-10,
20,
17,
48,
13,
14,
-25,
-27,
67,
0,
-50,
3,
16,
3,
12,
-36,
-23,
0,
16,
7,
17,
-1,
5,
5,
-4,
20,
-25,
15,
24,
-23,
-56,
57,
-19,
20,
-65,
23,
-42,
5,
3,
-35,
-34,
1,
23,
-40,
-1,
-34,
19,
15,
2,
-28,
9,
-34,
-59,
-46,
22,
9,
-26,
14,
31,
-5,
4,
-1,
-5,
-65,
-36,
35,
3,
52,
5,
26,
0,
40,
-59,
0,
-29,
-13,
18,
-20,
-12,
-68,
-36,
2,
-34,
-1,
63,
-12,
-56,
-23,
-19,
-31,
4,
-59,
-6,
23,
9,
-52,
3,
19,
40,
1,
16,
25,
-7,
10,
9,
31,
-4,
24,
-4,
9,
-13,
4,
19,
0,
37,
0,
12,
-2,
2,
-25,
23,
0,
-5,
-15,
21,
18,
0,
55,
7,
21,
41,
55,
-45,
-66,
7,
25,
-51,
-17,
41,
32,
16,
-29,
27,
7,
-19,
23,
35,
-39,
21,
-29,
-42,
31,
-1,
5,
-34,
-25,
-42,
-8,
25,
-38,
19,
6,
15,
12,
25,
-58,
71,
7,
22,
39,
13,
-36,
17,
-38,
24,
-77,
4,
9,
1,
39,
75,
63,
0,
-3,
33,
21,
-33,
43,
-8,
25,
3,
-1,
25,
29,
-24,
10,
-7,
24,
9,
55,
-10,
23,
-38,
-13,
35,
-28,
26,
30,
4,
-68,
-5,
1,
56,
18,
-5,
-6,
-7,
61,
32,
-39,
24,
7,
41,
10,
32,
52,
0,
-40,
0,
-2,
19,
0,
-34,
15,
-7,
66,
4,
-19,
-17,
-3,
-81,
-43,
-49,
48,
49,
9,
-7,
9,
-17,
55,
-29,
-53,
-33,
-54,
-11,
-40,
-21,
20,
-56,
-11,
19,
3,
-63,
15,
-51,
12,
6,
10,
96,
2,
35,
-21,
-14,
9,
16,
57,
0,
24,
-46,
57,
13,
21,
-37,
-29,
17,
3,
29,
-27,
-59,
-9,
-14,
29,
42,
3,
-26,
-25,
19,
8,
-19,
-40,
41,
67,
33,
1,
-27,
1,
33,
-15,
-63,
-11,
10,
0,
12,
61,
-16,
-6,
-17,
35,
-39,
-10,
38,
-30,
25,
20,
18,
-11,
-29,
-27,
30,
-53,
4,
4,
33,
26,
-5,
31,
-36,
-26,
-86,
-13,
55,
-1,
-47,
27,
-7,
-9,
11,
37,
2,
-51,
-12,
30,
26,
57,
16,
-23,
-13,
16,
35,
3,
-7,
26,
18,
-3,
26,
-43,
12,
1,
-6,
12,
-16,
18,
-17,
19,
19,
0,
18,
-14,
-6,
-30,
68,
15,
7,
-19,
22,
-33,
-3,
-72,
-15,
26,
0,
15,
-22,
14,
-9,
-8,
-16,
-3,
5,
-19,
-18,
-21,
17,
9,
0,
24,
-26,
-30,
13,
-39,
-13,
34,
-10,
33,
-19,
-20,
2,
19,
-24,
-1,
-27,
-4,
1,
-7,
19,
18,
8,
-15,
-32,
-18,
23,
37,
18,
-37,
-20,
-8,
24,
-14,
0,
-22,
-28,
-19,
-24,
22,
23,
7,
7,
-78,
-30,
28,
5,
3,
14,
-1,
22,
-31,
-44,
34,
-37,
-7,
-47,
-37,
4,
5,
20,
-47,
-5,
-30,
-13,
7,
20,
4,
-29,
0,
-4,
-49,
-20,
-5,
-4,
1,
25,
19,
65,
-16,
-2,
11,
-30,
29,
-28,
5,
-8,
5,
8,
6,
22,
-70,
23,
8,
-15,
3,
19,
14,
14,
20,
17,
-3,
-31,
26,
-16,
27,
12,
-81,
-2,
-30,
59,
-73,
-36,
33,
2,
-4,
-5,
-16,
24,
-15,
19,
-15,
13,
38,
-7,
12,
-13,
67,
31,
47,
-59,
21,
3,
-11,
-3,
31,
-10,
0,
13,
4,
-12,
41,
-30,
19,
-52,
-14,
-26,
-32,
23,
39,
1,
28,
-9,
-45,
15,
-3,
6,
40,
26,
-16,
55,
-47,
-1,
33,
-10,
17,
23,
34,
3,
52,
-13,
24,
45,
31,
21,
-17,
27,
45,
2,
-24,
-2,
20,
-64,
11,
26,
-36,
-8,
-3,
-12,
-16,
-66,
-49,
20,
-47,
-6,
-37,
-8,
-9,
-7,
8,
-1,
-57,
-13,
-66,
34,
-57,
14,
-15,
22,
54,
62,
12,
-21,
-8,
-18,
13,
-34,
33,
-75,
4,
-2,
-2,
-12,
-5,
62,
-11,
-11,
13,
14,
44,
-78,
-12,
-20,
-17,
-14,
33,
35,
34,
-5,
-10,
-44,
-38,
49,
25,
7,
7,
34,
10,
-21,
6,
29,
21,
-18,
-24,
29,
21,
12,
13,
13,
10,
6,
-34,
-3,
-49,
40,
-8,
-4,
-9,
23
] |
Weaver, J.
Plaintiffs appeal as of right from summary disposition entered by the Kent Circuit Court in favor of defendant on the basis of governmental immunity. MCR 2.116(C)(7).
Plaintiffs Mitzi and Jimmy Lloyd Gibson sued the City of Grand Rapids for damages resulting from Mr. Gibson’s back injuries, sustained when the wooden chair upon which he was seated in the Branch West Side Library collapsed. Mr. Gibson alleged that the city was liable for negligently failing to exercise due care in the operation of the library, in that the city knew or should have known the chair to be in a potentially hazardous condition but failed to warn the public or to inspect the chair for structural integrity. Mrs. Gibson brought an additional claim for loss of consortium.
The city moved for summary disposition on the basis of governmental immunity under MCR 2.116(C)(7). Plaintiffs then sought to amend their complaint so that they could allege the "dangerous or defective” public building exception to governmental immunity under MCL 691.1406; MSA 3.996(106). Determining that the public building exception did not apply, on November 26, 1985, the court entered an order denying plaintiffs’ amendment and granting summary disposition in favor of the defendant city. Plaintiffs appeal as of right.
Plaintiffs argue that the circuit court erred when applying the immunity exception only to injuries resulting from a defect in the building’s actual structure or one of its fixtures. The city responds that the court’s determination is based on a correct reading of the statute, which should not be judicially expanded to include nonstationary items in a public building. We agree with the city and affirm the circuit court’s order.
Governmental agencies engaged in the exercise or discharge of a governmental function enjoy broad immunity from tort liability. MCL 691.1401 et seq.; MSA 3.996(101) et seq. Under the public building exception to governmental immunity, however, liability may still accrue to a governmental agency for the
defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. [MCL 691.1406; MSA 3.996(106).]
"Immunity granted by law” is an affirmative defense which must be raised in the governmental agency’s responsive pleading. MCR 2.116(C)(7), 2.116(D)(2), and 2.111(F)(3)(a). However, plaintiffs must also plead facts in the complaint which would justify applying an exception to governmental immunity. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 621, n 34; 363 NW2d 641 (1984). See also Hyde v University of Michigan Bd of Regents, 426 Mich 223, 261; 393 NW2d 847 (1986). When reviewing a motion under MCR 2.116(C)(7), the court must consider the pleadings, depositions, admissions, and other documentary evidence filed in the action or submitted by the parties. MCR 2.116(G)(5). If the pleadings show a party is entitled to judgment as a matter of law, or if the affidavits or other proofs reveal no genuine issue of material fact, the court must render judgment without delay. MCR 2.116(I)(1).
In this case, plaintiffs sought to amend their complaint in order to plead the immunity exception. Leave to amend should be freely given where justice so requires. MCR 2.118(A)(2). The city was already on notice as to the facts alleged in the complaint and would not have been prejudiced by the amendment. See Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656-657; 213 NW2d 134 (1973). Therefore, denial of leave to amend was proper only if plaintiffs’ amendment would have been futile because the public building exception could not apply. Id. Here, denial of leave to amend was not improper. Plaintiffs’ amendment would have been futile, since the city was immune from suit.
The statute itself only excepts "bodily injury and property damage resulting from a dangerous or defective condition of a public building . . . MCL 691.1406; MSA 3.996(106). This exception has been interpreted to include items permanently affixed to a public building. See Pichette v Manistique Public Schools, 403 Mich 268; 269 NW2d 143 (1978). See also Tilford v Wayne Co General Hospital, 403 Mich 293; 269 NW2d 153 (1978); Velmer v Baraga Area Schools, 157 Mich App 489; 403 NW2d 171 (1987). The exception does not include a stationary item located in a municipal park and not immediately adjacent to or a part of any public building. See Jolly v City of St Clair, 428 Mich 860 (1987), reversing 153 Mich App 824; 396 NW2d 552 (1986). Further, when injury is caused by an intervening act or omission, the exception does not apply and immunity may be asserted. Vargo v Svitchan, 100 Mich App 809; 301 NW2d 1 (1980), app dis 411 Mich 1035 (1982). See also Belmont v Forest Hills Public Schools, 114 Mich App 692; 319 NW2d 386 (1982), lv den 422 Mich 891 (1985); Landry v Detroit, 143 Mich App 16, 21-22; 371 NW2d 466 (1985), lv gtd 424 Mich 876 (1986); Zawadzki v Taylor, 70 Mich App 545; 246 NW2d 161 (1976), lv den 399 Mich 875 (1977). Immunity may also be asserted when the injury is caused by a nonstationary item within a building. Lee v Highland Park School Dist, 118 Mich App 305, 308-310; 324 NW2d 632 (1982), lv den 422 Mich 902 (1985). See also Cody v Southfield-Lathrup School Dist, 25 Mich App 33, 38-39; 181 NW2d 81 (1970).
Because governmental immunity was properly asserted, the trial court did not err in denying plaintiffs’ motion to amend and in granting summary disposition for the defendant city. We cannot believe that the Legislature intended its immunity exception to include freestanding and moveable items of furniture located within a public building such as the library chair in this case.
Affirmed.
Relying on Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 .(1979), the panel in Vargo stated that "the exception to governmental immunity found in MCL 691.1406; MSA 3.996(106) is no longer to be governed by whether the instrumentality causing the injury was a fixture or structural part of the public building. Of concern now is whether the injury occurred in a 'public place’ and whether that public place was fit for its assigned and intended use.” 100 Mich App 821. Although such language appears to indicate a conflict in the decisions of this Court regarding when to apply the dangerous or defective public building exception to governmental immunity, we believe that this case and that category of cases which it represents may be distinguished and harmonized. In Vargo, the question of liability arose from injuries to a high school student while lifting weights in the school gymnasium, and the Court refused to label the failure of individual school employees to exercise due care as a "defect” in the building. 100 Mich App 822. Bush centered on the presence or absence of safety devices in a schoolroom lab. 405 Mich 731-732. | [
-29,
-23,
-62,
39,
21,
11,
-14,
-4,
-8,
19,
-7,
-32,
4,
14,
-40,
15,
-62,
11,
2,
4,
34,
9,
-51,
2,
-16,
-3,
27,
-9,
-3,
14,
45,
-50,
1,
-20,
-20,
10,
28,
48,
37,
4,
21,
0,
-17,
-65,
13,
-23,
41,
30,
81,
-5,
11,
22,
-12,
-8,
-19,
-45,
11,
8,
-21,
6,
-9,
44,
-12,
-46,
30,
10,
-7,
12,
-20,
-43,
-4,
39,
-31,
-63,
-29,
2,
30,
2,
-14,
50,
-45,
8,
30,
-11,
15,
30,
-26,
-9,
-44,
1,
-52,
-38,
-17,
3,
11,
79,
-37,
-7,
23,
-11,
-21,
16,
4,
63,
11,
-6,
9,
-31,
46,
-45,
-20,
-17,
-8,
-12,
-3,
-11,
50,
41,
8,
70,
-1,
7,
28,
-31,
40,
22,
40,
-28,
12,
23,
19,
36,
19,
-8,
1,
41,
28,
18,
17,
0,
11,
-25,
12,
-5,
-20,
39,
13,
-4,
10,
9,
-37,
-33,
3,
29,
-39,
23,
-38,
-4,
32,
-8,
1,
-14,
-11,
-49,
5,
-61,
-52,
12,
11,
-16,
30,
-6,
-7,
16,
37,
17,
-53,
-10,
-40,
-1,
7,
7,
50,
4,
-16,
-32,
-5,
0,
-16,
37,
42,
-32,
-24,
-47,
-42,
78,
15,
56,
-37,
-46,
23,
-64,
2,
-39,
32,
-6,
51,
-49,
33,
-1,
-16,
-37,
-13,
-28,
37,
-59,
-4,
-22,
-17,
12,
-34,
16,
10,
39,
-37,
26,
-6,
13,
19,
-19,
6,
-11,
40,
-11,
18,
-36,
16,
21,
46,
-38,
8,
80,
-20,
28,
-45,
-14,
-47,
-2,
4,
-21,
47,
-38,
-5,
-4,
6,
-7,
15,
13,
-10,
6,
41,
34,
-31,
-27,
-40,
55,
-34,
15,
-75,
3,
-80,
56,
29,
39,
-31,
-49,
-25,
40,
25,
-6,
-12,
-52,
-11,
-49,
-14,
-11,
-5,
16,
-6,
-67,
-22,
-5,
-14,
17,
28,
-14,
-27,
-8,
10,
5,
-46,
-14,
3,
4,
-20,
48,
0,
40,
39,
-18,
0,
2,
25,
-81,
10,
-9,
-4,
-3,
41,
-44,
10,
12,
-41,
-3,
0,
-13,
20,
-4,
-52,
19,
2,
19,
-30,
-20,
14,
25,
10,
-22,
-6,
-10,
-14,
9,
28,
-34,
10,
28,
-11,
32,
42,
-11,
-27,
-3,
-10,
10,
2,
-2,
25,
-13,
-26,
31,
1,
-1,
13,
12,
4,
-64,
0,
11,
-5,
40,
-42,
-6,
2,
19,
-4,
-16,
-11,
32,
-40,
18,
18,
-26,
39,
-6,
29,
-62,
-5,
12,
7,
10,
-56,
-84,
6,
1,
7,
-23,
-45,
8,
-1,
11,
32,
39,
7,
4,
-40,
-28,
-24,
-38,
-1,
9,
2,
54,
7,
-5,
-19,
-9,
22,
15,
87,
-22,
37,
25,
9,
-66,
38,
-26,
0,
1,
34,
-9,
-21,
0,
-34,
-45,
22,
13,
-20,
-15,
-14,
-20,
13,
-28,
-52,
-76,
10,
-33,
1,
30,
-10,
25,
37,
50,
-5,
8,
-31,
-29,
44,
-41,
9,
-42,
21,
-43,
-2,
-13,
28,
1,
-45,
-4,
10,
-28,
-15,
4,
-40,
7,
4,
-23,
0,
51,
-14,
25,
10,
74,
33,
6,
-57,
13,
-1,
38,
-52,
-20,
29,
37,
7,
-3,
-16,
10,
12,
15,
-43,
-37,
9,
-48,
-33,
-8,
80,
-56,
-45,
15,
9,
33,
0,
1,
10,
23,
10,
-6,
24,
-50,
17,
-2,
-16,
-19,
-21,
-1,
12,
29,
-16,
16,
29,
2,
18,
-70,
12,
-6,
14,
-21,
-6,
37,
32,
2,
20,
18,
12,
26,
-5,
-13,
-26,
21,
41,
21,
-35,
-35,
0,
-8,
9,
0,
-38,
23,
38,
39,
-29,
23,
39,
14,
6,
2,
-4,
-36,
17,
10,
20,
27,
9,
-68,
-66,
-32,
13,
8,
-30,
0,
-35,
-24,
17,
-46,
-40,
-37,
32,
42,
31,
4,
-35,
4,
-14,
-12,
-22,
66,
-31,
-19,
-13,
2,
6,
-55,
-21,
10,
-12,
43,
15,
-47,
24,
-15,
9,
-28,
-48,
-13,
-80,
-17,
0,
-3,
69,
11,
-38,
-28,
1,
41,
6,
-39,
-12,
-36,
-53,
8,
-11,
5,
-59,
-16,
17,
15,
36,
31,
5,
25,
-65,
85,
34,
-4,
7,
8,
-11,
32,
-23,
33,
-75,
57,
-30,
47,
-7,
-13,
4,
18,
29,
-65,
-20,
-10,
-13,
-7,
-32,
10,
69,
-23,
13,
-7,
26,
20,
3,
54,
53,
-12,
-26,
27,
-26,
-14,
5,
-22,
-9,
-2,
17,
-10,
9,
-44,
21,
-15,
16,
9,
41,
7,
4,
-26,
-8,
-8,
2,
34,
-43,
-14,
-7,
20,
-50,
34,
-26,
-36,
-38,
-28,
12,
34,
-21,
10,
9,
-41,
-14,
-17,
-9,
4,
-20,
-10,
-7,
-72,
-22,
-3,
7,
1,
-16,
-37,
-35,
24,
-1,
33,
-15,
0,
5,
-8,
23,
-28,
5,
44,
37,
-33,
-69,
24,
55,
4,
13,
-33,
-8,
23,
0,
-19,
-52,
-41,
-4,
37,
-7,
32,
47,
-33,
24,
-7,
0,
-23,
31,
22,
19,
-45,
33,
71,
39,
-65,
-37,
22,
-21,
-15,
8,
-5,
42,
-23,
25,
42,
-29,
-21,
24,
-38,
16,
-21,
-8,
-8,
65,
-26,
40,
0,
20,
3,
-61,
-7,
5,
4,
-29,
-14,
-20,
-13,
-21,
62,
12,
-30,
-27,
-27,
-4,
-13,
31,
2,
11,
13,
-39,
-14,
-9,
29,
-56,
-10,
-36,
-34,
5,
-10,
26,
-15,
-4,
-8,
-12,
-3,
26,
-26,
0,
19,
2,
6,
33,
19,
-15,
36,
29,
2,
-31,
-14,
17,
50,
11,
-14,
47,
-1,
37,
66,
28,
-28,
38,
25,
50,
46,
-13,
33,
-30,
23,
-55,
-44,
51,
6,
8,
21,
2,
32,
43,
1,
-10,
18,
12,
-74,
26,
37,
-26,
14,
-22,
31,
-27,
-3,
12,
12,
30,
39,
-19,
65,
-22,
19,
-27,
-2,
67,
-40,
-24,
-27,
19,
25,
-8,
-2,
20,
-7,
-21,
-46,
-44,
12,
35,
39,
17,
7,
-32,
-19,
19,
14,
-2,
6,
-10,
11,
-51,
-19,
11,
39,
-65,
43,
-10,
3,
31,
38,
32,
9,
32,
-11,
-31,
11,
-18,
-5,
-14,
21,
-59,
-25,
3,
10,
-22,
5,
71,
-45,
31,
33,
-18,
51,
-9,
8,
9,
-13,
0,
31,
-48,
2,
6,
0,
-36,
-18,
1,
28,
-12,
-34,
35,
-17,
-8,
-51,
-9,
21,
-6,
43,
77,
-60,
-16,
-13,
-31,
-24,
6,
-11,
-6,
-14,
0,
-2,
-14,
-41,
-6,
-9,
-22,
21,
31,
37,
16,
28,
-9,
-6,
24,
9,
45,
2,
21,
30,
4,
24,
59,
-49,
45,
41,
-15,
46,
-42,
-22,
56,
2,
-26,
6
] |
Shepherd, J.
Plaintiff appeals by leave granted from an order holding that a document inadvertently released to plaintiff was nonetheless subject to the attorney-client privilege. We affirm.
Bruce Keidan (defendant), an attorney, repre sented plaintiff in his 1981 divorce action. Concerned that plaintiff might file a malpractice suit against him, defendant contacted his insurance carrier, which advised him to contact attorney Stephen Tuuk, whose firm apparently handled the carrier’s malpractice litigation. Defendant telephoned Tuuk and, on March 12, 1982, Tuuk sent defendant a three-page letter reflecting the contents of that conversation. The letter was labeled "personal and confidential” and enumerated "the facts surrounding a possible legal malpractice claim in a divorce action in which you 'represented’ an incompetent client.” It appears that a divorce judgment was entered in that case, which defendant subsequently determined plaintiff was incompetent to have understood. The letter outlined possible courses of action for defendant to protect plaintiff’s rights.
Approximately one year later, plaintiff asked defendant for his divorce file as he wished to retain new counsel. Defendant inadvertently failed to remove the March 12, 1982, letter before giving plaintiff the file, which defendant describes as "fairly voluminous.” Defendant claims he gave plaintiff the entire divorce file. Plaintiff claims, however, that defendant retained some correspondence and pleadings, thus arguing that defendant screened the file.
Plaintiff filed this suit on April 6, 1984, alleging malpractice and breach of contract for defendant’s failure to negotiate a "reasonable” or favorable property settlement and failure to appeal various matters, including the property settlement. Defendant was not represented by Tuuk, but by a different attorney. According to plaintiff, his "present counsel attempted to obtain information from [defendant] concerning facts from the [March 12, 1982] letter and the Defendant expressly refuted statements in the document.” Plaintiff subsequently attempted to use the letter in this litigation and to discover further correspondence between defendant and Tuuk, and sought to take Tuuk’s deposition. Defendant, however, moved for a protective order.
The trial court granted the protective order "with regard to Attorney Stephen Tuuk’s representation of the Defendant, Bruce H. Keidan, and communications between Defendant Keidan and Attorney Stephen Tuuk are hereby deemed subject to the attorney/client privilege.” In so concluding, the trial court held that a waiver of the privilege would not arise "by accident.”
MRE 501 provides:
Privilege is governed by the common law, except as modified by statute or court rule.
Michigan has long recognized the common-law privilege extending to communications between a client and an attorney. See, e.g., Passmore v Passmore’s Estate, 50 Mich 626; 16 NW 170 (1883). Neither party maintains that defendant and Tuuk did not enjoy an attorney-client relationship sufficient to invoke the privilege with regard to the March 12, 1982, letter. Plaintiff maintains instead that defendant permanently waived his attorney-client privilege as to the letter when he inadvertently gave plaintiff a copy of it.
At issue is an implied waiver of the privilege. In a case involving the physician-patient privilege, Kelly v Allegan Circuit Judge, 382 Mich 425, 427; 169 NW2d 916 (1969), the Supreme Court noted:
A true waiver is an intentional, voluntary act and cannot arise by implication. It has been defined as the voluntary relinquishment of a known right.
There are some circumstances, however, wherein justice requires that a person be treated as though he had waived a right where he has done some act inconsistent with the assertion of such right and without regard to whether he knew he possessed it. This is the doctrine of estoppel. [Emphasis in original.]
Kelly involved an insurance company which denied liability on a life insurance policy, alleging material misrepresentations in the insured’s application. The insurer sought to depose the decedent’s attending physician. The trial court concluded that the physician-patient privilege had been waived "for discovery purposes” when the plaintiff submitted a letter from the doctor indicating he had treated the decedent. The Supreme Court, however, found no waiver as the statute governing the physician-client privilege described "only one circumstance wherein a plaintiff shall be 'deemed’ to have waived the privilege” by producing the physician as the plaintiff’s witness in a personal injury or malpractice suit.
While Kelly is instructive, the attorney-client privilege is a common-law rather than statutory privilege. Another Supreme Court case, although it also involved the statutory physician-client privilege, further illuminates the general theory of privileged communications in Michigan. In Polish Roman Catholic Union of America v Palen, 302 Mich 557; 5 NW2d 463 (1942), the issues also concerned alleged fraudulent statements in a life insurance application. The insurer sought to introduce the testimony of a physician who had treated the decedent prior to his insurance application, claiming waiver of the privilege when the decedent’s estate "filed an affidavit of this physician making certain statements regarding his treatment of the insured which [the insurer] sought to prove by the testimony of the physician at the trial.” 302 Mich 561. Relying on an early case for support, the Supreme Court held that the privilege had not been waived by the filing of the affidavit:
In Briesenmeister v Supreme Lodge Knights of Pythias of the World, 81 Mich 525 [535-536; 45 NW 977 (1890)], this court repudiated the theory that once the confidential information had been published, the privilege of objecting to its repetition had been waived, and this court declined to approve the argument that the consent once given could not be later recalled:
"It seems to me that the argument loses sight of one of the rights conferred by the statute. Privilege includes both the security against publication, and the right to control the introduction in evidence, of such information or knowledge communicated to or possessed by the physician. The latter right exists although the former had ceased to be of any benefit. The public may know; but shall the jury be permitted to receive and weigh testimony derived from a source which the law has put the seal of silence upon, unless released by the party who alone has the right to say whether that particular witness shall be the medium of conveying such knowledge to the jury? For instance, the party may have disclosed to a third person all that he has to his physician. Now, while his admissions may be proved in a proper manner by such third person, they cannot be proved by the physician against the objection of the party. The privilege conferred is that the physician shall not disclose or testify to those matters which the statute inhibits without the consent of the party to whom the privilege is extended, and this objection may be interposed whenever and as often as the party’s rights may be affected by proffered testimony, if the objection be timely made.”
In an action by a beneficiary under a life insurance policy, plaintiff’s objection to a physician testifying as to an ailment concerning which he had received confidential information was sustained by this court, notwithstanding plaintiff had previously signed a proof of loss authorizing the physician to testify in regard thereto. Wohlfeil v Bankers Life Co, 296 Mich 310 [296 NW 269 (1941)].
We believe this dual nature of the privilege applies to the situation of an inadvertent disclosure of privileged material. It is supported by the result in Kubiak v Hurr, 143 Mich App 465; 372 NW2d 341 (1985), a fact situation which presented an even stronger case for waiver. In Kubiak, the plaintiffs attorney wrote to the defendants requesting a retraction of several allegedly defamatory statements. Defendants countered with a letter denying the plaintiff’s allegations and the plaintiffs attorney responded with a third letter. When the plaintiff filed her law suit, the defendants counterclaimed against plaintiff and sued her attorney for defamation based on the excessive pretrial newspaper publication of the letters and the statements. The issue appealed in Kubiak was the denial of the defendants’ motion to disqualify the plaintiff’s attorney because he would be called as a witness. In deciding that plaintiff’s attorney should not be called as a witness in the action against his client, this Court found that his testimony concerning the plaintiffs state of mind in having the letters published would be prohibited by the attorney-client privilege. The Court also decided that publication of the prelitigation letters did not waive that privilege, holding that "the mere publication of letters containing facts which had been communicated by [the plaintiff] to her attorney did not waive the privilege attaching to the communication.itself.” 143 Mich App 474.
We recognize that there are dissimilarities between this case and Palen and Kubiak. The lan guage in both cases prohibits further disclosure of information by the person to whom the privileged communication is made. Thus, in the Palen hypothetical, when the party has "disclosed to a third person all that he has to his physician,” those disclosed facts can still be admitted "in a proper manner by such third person.” It is apparently only the physician’s testimony as to those same facts that is foreclosed. In Kubiak, the parties apparently assumed that the statements and letters themselves were admissible. In fact, those same allegations formed the basis of the plaintiffs complaint in Kubiak, effectively waiving any privilege. What was foreclosed was testimony concerning additional statements, made by plaintiff to her attorney at the time the letters and original statements were published, which additional statements presumably were not published.
By analogy, it might be argued that all that is foreclosed in this case is Tuuk’s testimony concerning matters defendant confided to him. Defendant, having given the letter to plaintiff, however inadvertently, might appear to be in the position of the party in Palen who disclosed confidential information to a third party, and it might be argued that information actually disclosed could now be proven in a "proper manner.” Such an interpretation, however, runs afoul of the application of justice to the doctrine of implied waiver by estoppel utilized in Kelly. The discussion in Kelly concerning implied waiver must be read together with the discussion of "true waiver.” The hypothetical in Palen and the facts of Kubiak concerned intentional disclosures, not inadvertent ones. We believe the dual nature of privileges recognized in Palen requires certain circumstances similar to those of a "true waiver” before the second aspect of the privilege, the right to control the introduc tion of privileged matter into evidence, will be destroyed following elimination of the first aspect of the privilege, security against publication. At the very least, waiver through inadvertent disclosure should require a finding of no intent to maintain confidentiality or circumstances evidencing a lack of such intent. See Note, Inadvertent disclosure of documents subject to the attorney-client privilege, 82 Mich L Rev 598, 605-606, 616-619 (1983). See also 97 CJS, Witnesses, § 310, p 856, stating that there must be a distinct and unequivocal waiver and that the intent to waive must be expressed by word or act or omission to speak or act. See also Beasley v Grand Trunk WR Co, 90 Mich App 576, 597; 282 NW2d 401 (1979), in which this Court held that a decedent’s request that a physician transmit his physical examination results to a university waived the right of confidentiality at least as to the university, but decedent did not relinquish the right to control the introduction of those results into evidence at trial, and Seaton v State Farm Life Ins Co, 99 Mich App 587, 590-591; 299 NW2d 6 (1980), holding that a party who waives the physician-patient privilege during the first trial can reassert the privilege as to the same issue during the second trial.
Federal cases considering similar situations have reached mixed results, though the trend appears to be in favor of strictly construing the privilege as a narrow one, which "is not easily invoked and is easily destroyed.” Suburban Sew 'N Sweep, Inc v Swiss-Bernina, Inc, 91 FRD 254, 258 (ND Ill, 1981). This view seems to accord with those of Professor Wigmore involving inadvertent disclosure to a third person. See 8 Wigmore, Evidence (McNaughton rev, 1961), §§ 2325-2326, pp 632-634.
In United States v Kelsey-Hayes Wheel Co, 15 FRD 461, 465 (ED Mich, 1954), for example, the government was given access to the defendant’s voluminous files, from which it copied approximately one thousand documents. Of these, defendant later claimed twenty-nine were confidential under the attorney-client privilege. The court rejected defendant’s argument that the documents were inadvertently handed over, finding it difficult to believe that the documents were ever intended to remain confidential given that they were "indiscriminately mingled with the other routine documents of the corporation and that no special effort to preserve them in segregated files with special protections was made.” The court held that "the risk of insufficient precautions must rest with the party claiming the privilege.” Accord, In re Grand Jury Investigation of Ocean Transportation, 196 US App DC 8; 604 F2d 672 (1979) (potentially privileged documents mistakenly produced by original counsel pursuant to a subpoena); In re Horowitz, 482 F2d 72 (CA 2, 1973) (accountant had unrestricted access to client’s files; client should have taken some affirmative action to preserve confidentiality). See also the authorities cited in Suburban Sew 'N Sweep, supra at 257-259, though that case recognizes that situations exist in which the privilege will survive inadvertent disclosure.
On the other hand, a party was permitted to assert the attorney-client privilege as to documents inadvertently released to the other side in an earlier, unrelated case. Transamerica Computer Co, Inc v International Business Machines Corp, 573 F2d 646 (CA 9, 1978). The disclosure occurred during an accelerated discovery process involving some seventeen million pages of documents, involving what the court termed a "Herculean” effort. Under such circumstances, the court viewed the disclosure as effectively compelled rather than inadvertent, and such could not support a waiver.
These federal cases do not discuss the dual nature of the privilege recognized in Palen, however, which nature leads us to find no implied waiver under the facts of this case. We distinguish this situation, involving mere inadvertence, from a situation involving an error of judgment where the person knows the information is being released but concludes that the privilege will survive for whatever misguided reason. Such an error of judgment will destroy the privilege.
We believe the attorney-client privilege to be sufficiently important to protect in this case by finding no waiver. As McCormick notes regarding privileges:
They do not in any wise aid the ascertainment of truth, but rather they shut out the light. Their sole warrant is the protection of interests and relationships which, rightly or wrongly, are regarded as of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice. [McCormick, Evidence (2d ed), § 72, p 152.]
Noting the fact that numerous authors have viewed privileges as hindrances and advocated narrowing them, McCormick adds:
The privileges have survived largely unaffected by these winnowings of the law by eminent scholars and jurists who saw them as suppressing the truth, for it is evident that for many people, judges, lawyers and laymen, the protection of confidential communications from enforced disclosure has been thought to represent rights of privacy and security too important to relinquish to the convenience of litigants. Growing concern in recent times with the increase in official prying and snooping into the lives of private individuals has reinforced support for the traditional privileges and no doubt aided in the creation of new ones. [McCormick, Evidence (2d ed), § 77, p 157.]
We believe these views comport with the Supreme Court’s view of the dual nature of the privilege in Palen and our belief that Kelly requires that an implied waiver be judged by standards as stringent as for a "true waiver.” We do not believe the trial court erred in its ruling.
Affirmed.
We note that an early Michigan case, People v Dunnigan, 163 Mich 349; 128 NW 180 (1910), found a waiver of the marital privilege where a police informant, entrusted by the defendant to deliver a letter containing a potential confession to the defendant’s wife, instead turned the letter over to the authorities for whom he was secretly working. Dunnigan appears to stand for the proposition that even inadvertent disclosures out of the party’s control will end the privilege. That case, however, precedes the later Supreme Court authority upon which we rely. | [
-11,
-73,
-2,
46,
11,
-53,
-20,
-2,
-12,
29,
-20,
33,
41,
0,
-18,
-12,
58,
29,
15,
-27,
10,
15,
-20,
49,
57,
-68,
14,
-60,
-26,
13,
4,
35,
-37,
-8,
-72,
0,
94,
34,
-13,
15,
-1,
-62,
38,
-24,
-58,
-9,
-1,
-1,
-22,
7,
59,
42,
-5,
7,
-13,
0,
73,
12,
48,
-15,
-39,
8,
-5,
30,
23,
52,
1,
2,
-14,
14,
-32,
20,
-8,
-4,
-25,
-7,
18,
15,
13,
44,
0,
50,
39,
1,
59,
25,
6,
34,
60,
93,
4,
0,
-52,
-35,
-40,
25,
-17,
1,
-29,
12,
-12,
51,
6,
-49,
-14,
69,
15,
-21,
55,
58,
34,
-13,
-39,
-16,
32,
-27,
29,
-10,
17,
-28,
17,
-13,
41,
26,
45,
-5,
15,
-15,
26,
16,
-55,
20,
-21,
-1,
-38,
10,
16,
-71,
7,
-72,
-5,
-38,
-13,
-10,
28,
6,
-8,
-38,
-73,
0,
7,
22,
-2,
44,
5,
-24,
7,
-24,
23,
0,
-20,
8,
7,
19,
33,
-6,
-2,
-12,
25,
-34,
32,
59,
-28,
-14,
-38,
-31,
-5,
34,
-1,
50,
6,
25,
6,
-36,
25,
-8,
-69,
-4,
-55,
29,
-9,
-30,
28,
-11,
38,
-9,
12,
61,
33,
-9,
2,
8,
0,
45,
32,
0,
6,
-24,
-38,
-25,
4,
7,
-50,
-72,
11,
-49,
23,
-22,
-89,
14,
21,
-6,
-4,
-68,
-103,
-25,
1,
-4,
26,
-20,
-4,
21,
-75,
56,
19,
43,
29,
23,
34,
-29,
-30,
46,
20,
-13,
10,
40,
-29,
35,
-13,
-47,
-11,
6,
21,
-9,
-17,
-23,
-30,
21,
-20,
0,
-36,
8,
-35,
38,
34,
-12,
52,
-38,
23,
-50,
-42,
17,
14,
3,
-33,
-15,
-33,
-26,
-33,
-32,
21,
-13,
-92,
-50,
6,
40,
56,
-15,
32,
25,
-32,
-22,
-38,
6,
19,
21,
38,
-55,
-50,
-23,
19,
-41,
0,
-1,
-19,
-57,
-20,
-16,
-6,
34,
62,
1,
-39,
-10,
16,
13,
-35,
-39,
-22,
-65,
14,
64,
8,
3,
-21,
-36,
-7,
3,
34,
35,
-22,
21,
-66,
-7,
32,
-18,
1,
-62,
-18,
26,
-35,
-19,
5,
8,
-21,
-24,
26,
11,
8,
27,
-3,
8,
-13,
37,
-11,
35,
34,
-36,
-38,
4,
25,
-20,
-24,
-32,
27,
42,
4,
17,
-39,
31,
-15,
18,
11,
-18,
-46,
-15,
4,
27,
-43,
32,
-17,
-43,
28,
29,
2,
50,
-38,
9,
38,
-32,
-13,
18,
35,
48,
-56,
-42,
2,
1,
-12,
37,
9,
17,
-7,
6,
3,
26,
1,
-25,
8,
52,
28,
9,
32,
40,
4,
35,
99,
-18,
69,
6,
-41,
-29,
-65,
-21,
7,
13,
48,
12,
36,
-11,
-49,
0,
0,
-20,
77,
-7,
27,
12,
36,
58,
-9,
-22,
-32,
15,
-20,
-23,
-30,
-13,
0,
-20,
-26,
-21,
-7,
18,
-55,
-44,
0,
9,
-35,
-15,
46,
-9,
-2,
-41,
9,
-66,
-18,
3,
-17,
30,
-15,
-25,
17,
49,
-38,
-22,
-38,
-10,
-28,
-42,
-23,
42,
-27,
12,
-35,
22,
-7,
-28,
-10,
-26,
-72,
-8,
-15,
-7,
-36,
1,
-15,
-23,
-44,
8,
-2,
-5,
11,
43,
49,
-39,
-21,
-6,
45,
20,
-28,
1,
31,
42,
4,
20,
24,
35,
27,
-5,
33,
-17,
20,
-1,
-15,
-56,
26,
-10,
-32,
11,
34,
73,
-19,
-20,
22,
11,
-13,
-12,
-18,
-10,
9,
10,
-30,
-6,
41,
42,
19,
39,
15,
0,
-7,
-33,
24,
-2,
1,
5,
21,
7,
-21,
-32,
10,
1,
7,
34,
17,
35,
-24,
-9,
-11,
-17,
5,
-32,
11,
24,
87,
7,
-34,
-15,
-25,
-44,
-46,
3,
-11,
-21,
-49,
-42,
55,
2,
38,
-39,
-23,
-38,
-36,
-47,
36,
-37,
-27,
-44,
40,
56,
0,
-19,
-35,
-27,
26,
0,
34,
62,
7,
-45,
42,
-26,
-80,
17,
-59,
-72,
-9,
-13,
25,
11,
13,
14,
-23,
34,
65,
-34,
50,
-1,
16,
6,
42,
-54,
9,
0,
103,
16,
7,
39,
22,
-8,
56,
45,
-15,
-32,
-33,
36,
52,
-30,
13,
-46,
13,
33,
-20,
11,
-19,
-42,
11,
-28,
3,
9,
-11,
-75,
0,
19,
-45,
14,
13,
28,
-28,
33,
2,
14,
10,
56,
5,
49,
16,
13,
-14,
2,
12,
-29,
43,
9,
-4,
33,
8,
-10,
-18,
3,
-2,
-38,
20,
-37,
-10,
-15,
1,
24,
27,
26,
11,
-23,
6,
12,
6,
10,
1,
21,
-6,
27,
23,
39,
-25,
0,
12,
1,
3,
14,
-2,
-39,
40,
-23,
35,
-35,
-43,
63,
2,
-2,
48,
-10,
-2,
-21,
15,
34,
-54,
23,
24,
-52,
11,
17,
51,
35,
41,
5,
0,
36,
37,
24,
8,
-17,
24,
-18,
-46,
22,
-3,
26,
10,
-53,
-7,
23,
9,
-18,
-28,
-54,
-2,
24,
-6,
-29,
-36,
-2,
-17,
-31,
87,
10,
-28,
9,
-43,
-29,
-3,
-2,
-45,
-16,
-10,
5,
11,
6,
58,
-15,
6,
5,
24,
-48,
-28,
-22,
31,
-18,
34,
3,
-28,
-23,
38,
25,
29,
-21,
-12,
-22,
19,
77,
-13,
-23,
-30,
21,
-9,
-17,
-9,
1,
38,
-15,
9,
16,
-28,
-32,
-38,
35,
0,
-80,
-8,
-32,
16,
13,
-26,
-52,
21,
5,
-31,
16,
39,
-20,
-50,
-24,
46,
-25,
-30,
20,
80,
-27,
-19,
12,
63,
-74,
15,
-76,
5,
12,
5,
-70,
11,
-20,
12,
-40,
-19,
16,
42,
-52,
22,
-53,
-42,
12,
67,
-11,
25,
-7,
41,
-1,
-11,
37,
21,
-45,
-11,
-8,
-38,
19,
-63,
-25,
-62,
-37,
-10,
-10,
-32,
7,
-14,
13,
44,
3,
5,
5,
26,
56,
-3,
22,
-20,
-17,
45,
19,
40,
-9,
-26,
15,
-20,
-44,
36,
-7,
52,
-32,
0,
-36,
50,
56,
-14,
23,
-9,
-2,
-41,
-32,
44,
4,
18,
3,
-28,
4,
106,
-57,
31,
48,
72,
-38,
-34,
-10,
-23,
66,
-27,
-13,
12,
-23,
14,
4,
-53,
-77,
0,
57,
-35,
-24,
-67,
-8,
-16,
5,
19,
-17,
-6,
-51,
-64,
-7,
-10,
27,
-12,
-4,
-9,
36,
-15,
-25,
41,
-40,
-54,
-17,
-20,
13,
-34,
26,
0,
23,
-8,
12,
-19,
44,
15,
60,
15,
40,
-10,
-36,
34,
-5,
-33,
-5,
62,
16,
-12,
-10,
-10,
40,
-42,
8,
1,
3,
-10,
11,
29,
-10,
-28,
8,
14,
-3,
4,
-33,
-20,
15,
-19,
-44,
34,
-78,
-7,
18,
-24,
25
] |
Cynar, J.
Petitioner, Central Advertising Company, appeals as of right the June 20, 1986, circuit court order which affirmed the decision of the Michigan State Transportation Commission. The commission, in its finding, sustained the determination of the hearing officer denying petitioner’s request to erect a billboard. We affirm.
On January 15, 1985, petitioner entered into a ten-year lease with the Village of Eagle for the construction and maintenance of an outdoor advertising structure (sign) to be built on the southwest corner of the 1-96 and Grange Road interchange in the Village of Eagle. The sign was to be located about five hundred feet west of Grange Road and on the south side of 1-96.
Petitioner applied for a permit with the Michigan Department of Transportation Utilities and Permits Division to erect, use and maintain the sign. Petitioner’s application was denied on March 4, 1985, on the grounds that the proposed sign placement violated § 13(l)(d) and § 17(5) of the Highway Advertising Act (haa), MCL 252.313(l)(d); MSA 9.391(113)(d) and MCL 252.317(5); MSA 9.391(117)(5), respectively.
As a result of the permit denial, on April 17, 1985, petitioner timely filed a petition for a hear ing before a hearing officer. The hearing took place on June 3, 1985. At the hearing, the parties stipulated that petitioner sought a permit for the construction of a sign within five hundred feet of the I-96/Grange Road interchange, that the portion of 1-96 involved was located in Eagle Township and that 1-96 abutted the physical boundary of the Village of Eagle. Finally, the parties stipulated that the sole dispute involved the interpretation of § 17(5) of the haa.
The manager of the permits section of the Utilities and Permits Division of the Michigan Department of Transportation, Thomas Hawley, indicated that the mdot did not consider Eagle Township to be an "incorporated municipality” as defined in § 17(5), since Eagle Township was not a chartered township. Petitioner contended that an "incorporated municipality” should be construed as encompassing nonchartered townships as well as villages, cities, and chartered townships. Further, petitioner urged the hearing officer to read the statute as intending to focus on the location of the sign within or outside of the "incorporated municipality” rather than the location of a highway.
In an opinion dated August 14, 1985, the hearing officer affirmed the mdot’s denial of petitioner’s permit. Citing MCL 42.1 et seq.; MSA 5.46(1) et seq., the hearing officer concluded that Eagle Township was not an "incorporated municipality,” since it did not have a charter nor was it listed on the Secretary of State’s list of chartered townships. Because 1-96 was located outside an incorporated municipality, the hearing officer concluded that petitioner’s sign location violated § 17(5).
On August 23, 1985, petitioner timely appealed the hearing officer’s order to the Michigan State Transportation Commission. In a November 19, 1985, letter, a five-member panel of the commis sion unanimously affirmed the hearing officer’s decision. Thereafter, petitioner appealed to the Ingham Circuit Court, which affirmed the commission’s decision on June 9, 1986. The instant appeal ensued.
The sole issue before the Court is whether the circuit court erred in affirming the commission’s interpretation of § 17(5) of the haa.
Initially, we must decide the standard by which we will review the issue before us. Petitioner contends that the standard of review is whether the mdot’s construction of § 17(5) was supported by competent, material and substantial evidence on the whole record. MCL 24.306(l)(d); MSA 3.560(206)(l)(d). Respondent, on the other hand, argues that the standard is whether the circuit court’s decision is "(a) [i]n violation of the constitution or a statute,” or "(f) [a]ffected by other substantial and material error of law.” MCL 24.306(l)(a) and (f); MSA 3.560(206)(l)(a) and (f).
The haa, MCL 252.323(3); MSA 9.391(123)(3), states that a decision under the act is subject to judicial review as provided in 1969 PA 306, MCL 24.201 et seq.; MSA 3.560(101) et seq. MCL 24.306; MSA 3.560(206) provides:
(1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:
(a) In violation of the constitution or a statute.
(b) In excess of the statutory authority or jurisdiction of the agency.
(c) Made upon unlawful procedure resulting in material prejudice to a party.
(d) Not supported by competent, material and substantial evidence on the whole record.
(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.
(f) Affected by other substantial and material error of law.
(2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings.
The proper standard of review in this case is subsection (f), since the parties stipulated to the essential facts necessary for a disposition of this case. In other words, the question is one of law. Hence, subsection (f) applies. See General Motors Corp v Bureau of Safety & Regulation, 133 Mich App 284, 288; 349 NW2d 157 (1984); Const 1963, art 6, § 28; Ron’s Last Chance, Inc v Liquor Control Comm, 124 Mich App 179, 181-182; 333 NW2d 502 (1983). "The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not to be overruled without cogent reasons.” Magreta v Ambassador Steel Co (On Rehearing), 380 Mich 513, 519; 158 NW2d 473 (1968).
With these principles in mind, we turn to the construction of § 17(5), MCL 252-317(5); MSA 9.391(117)(5), which provides:
Along interstate highways and freeways located outside of incorporated municipalities, a sign structure shall not be permitted adjacent to or within 500 feet of an interchange, an intersection at grade or a safety roadside rest area. The 500 feet shall be measured from the point of beginning or ending of pavement widening at the exit from, or entrance to, the main-traveled way.
The rules of statutory construction were concisely stated in Nicholas v Michigan State Employ ees Retirement Bd, 144 Mich App 70, 74; 372 NW2d 685 (1985):
(1) when a statute is unambiguous, further construction is to be avoided; (2) if an ambiguity exists, the intent of the Legislature must be given effect; (3) a construction which best accomplishes the statute’s purpose is favored; (4) statutes are to be interpreted as a whole and construed so as to give effect to each provision; (5) specific words in a statute are given their ordinary meaning unless a different interpretation is indicated; and (6) respectful consideration is to be given to the construction of a statute used by those charged with its application.
The term "incorporated municipalities” as used in § 17(5) is not defined in the statute. To resolve a perceived ambiguity, a court will look to the object of the statute, the evil or mischief which it is designed to remedy, and will apply a reasonable construction which best accomplishes the statute’s purpose. R & T Sheet Metal, Inc v Hospitality Motor Inns, Inc, 139 Mich App 249, 253-254; 361 NW2d 785 (1984), lv den 422 Mich 944 (1985); Santia v Bd of State Canvassers, 152 Mich App 1, 5; 391 NW2d 504 (1986). In construing an undefined term in a statute, we must interpret the language in a manner consistent with reason, and it is proper to resort to external sources and consider any factors that would aid the court in determining legislative intent. See Sergeant v Kennedy, 352 Mich 494; 90 NW2d 447 (1958); Stover v Retirement Bd of the City of St Clair Shores Firemen & Police Pension System, 78 Mich App 409; 260 NW2d 112 (1977), lv den 402 Mich 879 (1978).
In Goethal v Kent Co Supervisors, 361 Mich 104, 112; 104 NW2d 794 (1960), our Supreme Court stated that "the power to provide for the incorporation of municipalities rests in the legislature of the state, subject to constitutional provisions designed to afford the rights and privileges of home rule government.”
Const 1963, art 7, § 1 provides that "[e]ach organized county shall be a body corporate with powers and immunities provided by law.” An organized township is a "body corporate.” Const 1963, art 7, § 17. However, a "body corporate” is not necessarily a municipal corporation, since a township must incorporate as a chartered township as set forth in MCL 42.1, 42.2; MSA 5.46(1), 5.46(2). Those provisions allow for incorporation when a majority of the electors vote in favor of incorporation or adoption of a charter by the electors or one granted by the Legislature. Once a township incorporates as a charter township, it is deemed a municipal corporation. MCL 42.1; MSA 5.46(1).
We conclude that the term "incorporated municipalities” as used in the haa includes chartered townships but does not include townships which are not chartered. As the Supreme Court stated in Gallup v Saginaw, 170 Mich 195, 201-202; 135 NW 1060 (1912):
We are unable to conceive of a valid municipal corporation without a charter, or a municipal charter without a corporation; a combination of the two makes the corporation, and framing or revising the charter is part of the necessary process of incorporating a city.
In this case, since Eagle Township did not have a charter, nor was it listed on the Secretary of State’s list of chartered townships, Eagle Township is not an "incorporated municipality” for the purposes of the haa. We believe this construction of "incorporated municipalities” best achieves the Legislature’s intent, since the Legislature adopted a procedure in MCL 42.1 et seq.; MSA 5.46(1) et seq., by which unincorporated townships could establish incorporated status.
Petitioner’s reference to Hanslovsky v Leland Twp, 281 Mich 652, 655; 275 NW 720 (1937), and Roosevelt Park v Norton Twp, 330 Mich 270, 273; 47 NW2d 605 (1951), does not change our interpretation of § 17(5). The above cases essentially held that a township is a municipal corporation "for the purposes of local government.” However, a municipal corporation under the general law of the state is not necessarily a municipality under a specific statute. See Detroit Bd of Ed v Michigan Bell Telephone Co, 395 Mich 1, 4-5; 232 NW2d 633 (1975), reh den 395 Mich 911 (1975).
By the use of the term "incorporated municipalities,” the Legislature intended to include chartered townships but did not intend to include nonchartered townships. Hence, we find no error in the hearing officer’s interpretation of § 17(5).
Petitioner also argues that the location of a sign outside of an incorporated municipality, and not the location of a highway or freeway, triggers the application of § 17(5). We do not agree.
The first sentence of § 17(5) clearly states that it is the location of the highways and freeways located outside of an incorporated municipality that brings § 17(5) into play. Had the Legislature intended the result suggested by petitioner, it would have so provided. This Court will not impose a meaning on a statutory provision which is contrary to the plain language of the statute. Saugatuck v Saugatuck Twp, 157 Mich App 52, 58; 403 NW2d 100 (1987).
Affirmed. | [
6,
13,
27,
0,
-1,
-25,
15,
24,
-24,
19,
-3,
-28,
9,
-4,
11,
18,
36,
41,
-6,
-6,
-36,
-50,
-2,
37,
-49,
-36,
24,
18,
-35,
4,
-28,
-17,
-36,
39,
-9,
-19,
24,
-38,
18,
39,
-4,
-32,
-47,
-26,
-9,
-47,
16,
-33,
0,
25,
-2,
57,
-18,
31,
-25,
-8,
3,
-17,
11,
46,
-42,
29,
-30,
12,
-6,
-37,
24,
67,
32,
-2,
-34,
22,
8,
-12,
43,
24,
-34,
14,
-61,
20,
-20,
-11,
29,
19,
35,
36,
-44,
-22,
18,
-22,
-17,
-40,
-9,
-22,
33,
66,
-37,
-25,
5,
-64,
49,
58,
22,
-38,
-6,
25,
-19,
3,
9,
-15,
15,
-56,
14,
-40,
36,
1,
-18,
72,
45,
17,
-12,
-43,
21,
50,
9,
-20,
48,
6,
-87,
-7,
29,
-41,
15,
41,
-7,
11,
58,
-25,
20,
15,
43,
32,
7,
28,
24,
-51,
-16,
13,
-31,
-25,
-34,
40,
26,
8,
-71,
59,
13,
5,
45,
-12,
27,
47,
8,
39,
-48,
-20,
-9,
10,
-35,
-8,
52,
21,
-14,
-57,
-29,
-35,
50,
75,
0,
23,
-18,
-1,
-8,
13,
-16,
-51,
9,
-46,
0,
-26,
51,
-29,
10,
-7,
10,
36,
13,
28,
11,
-4,
-33,
-40,
45,
-9,
-29,
-5,
-12,
13,
-39,
8,
-39,
-50,
-64,
19,
66,
-2,
23,
38,
81,
7,
46,
34,
34,
9,
-32,
4,
-14,
0,
-29,
-56,
16,
-31,
42,
30,
-63,
41,
-3,
-2,
38,
44,
-36,
41,
7,
-4,
8,
18,
-28,
-19,
40,
9,
85,
-27,
-33,
-2,
-26,
-54,
-42,
-14,
-12,
-9,
44,
9,
23,
-4,
-28,
3,
-24,
-25,
-89,
-26,
-10,
6,
35,
-8,
-59,
-33,
19,
-52,
46,
-6,
-14,
-16,
-4,
7,
30,
53,
20,
5,
-10,
17,
-25,
18,
-17,
21,
-32,
-30,
28,
-42,
-29,
-6,
-15,
65,
-28,
20,
47,
-59,
-65,
-50,
49,
70,
-5,
9,
1,
-16,
-7,
0,
41,
26,
21,
-37,
37,
11,
-8,
22,
-28,
56,
15,
6,
-9,
-28,
2,
-16,
-32,
29,
-24,
4,
39,
-5,
-25,
18,
30,
6,
-14,
31,
16,
52,
-27,
20,
22,
-20,
-4,
-2,
-1,
-11,
20,
13,
-13,
-23,
-40,
38,
-20,
0,
-37,
-5,
27,
28,
-27,
36,
24,
32,
-22,
-16,
-10,
22,
9,
-41,
11,
10,
-40,
7,
24,
0,
25,
10,
37,
-10,
-23,
-9,
-1,
-21,
-3,
-81,
-18,
8,
-18,
-29,
41,
-6,
2,
-12,
26,
32,
-36,
52,
-16,
31,
40,
-6,
-34,
-13,
-94,
-7,
-26,
29,
-30,
72,
4,
-31,
-69,
-5,
6,
50,
-8,
-46,
51,
-44,
-8,
29,
-13,
41,
-14,
47,
10,
10,
22,
-8,
-19,
-36,
-45,
-9,
-33,
3,
19,
-34,
-41,
-86,
-47,
0,
-39,
-30,
44,
53,
-70,
-4,
-10,
8,
-14,
6,
-23,
-48,
-19,
7,
-53,
-31,
-1,
-24,
-23,
15,
4,
-44,
-42,
46,
-32,
-6,
-37,
-28,
22,
-12,
3,
53,
29,
1,
-49,
-28,
2,
-33,
71,
51,
-26,
7,
21,
3,
32,
25,
18,
-34,
-34,
11,
31,
20,
-10,
13,
-25,
39,
-17,
24,
-7,
25,
-21,
1,
-23,
-16,
8,
4,
-8,
56,
-51,
-22,
-10,
31,
-60,
3,
-13,
-35,
48,
42,
35,
-33,
47,
39,
12,
4,
39,
29,
37,
-3,
13,
6,
-42,
2,
41,
-2,
14,
-16,
18,
46,
0,
-41,
50,
-67,
-13,
-11,
-42,
-51,
-5,
-19,
-32,
31,
-16,
34,
-29,
11,
16,
-23,
33,
-21,
-5,
-3,
28,
-32,
-21,
57,
31,
-7,
-27,
3,
2,
-87,
-2,
22,
7,
-10,
31,
26,
-20,
-17,
30,
30,
-2,
-5,
-33,
-8,
-26,
-29,
11,
18,
34,
7,
0,
8,
22,
-57,
-22,
6,
-13,
-47,
-32,
34,
9,
-29,
-6,
-15,
-39,
67,
2,
-2,
-20,
-14,
60,
-1,
35,
19,
21,
-11,
6,
-13,
13,
7,
21,
68,
-62,
6,
-14,
-47,
34,
-35,
36,
8,
-2,
-1,
-2,
-29,
-27,
-30,
-35,
-10,
10,
2,
-17,
15,
-32,
40,
39,
-12,
-33,
-14,
-27,
-59,
-10,
23,
-14,
-3,
-7,
0,
-60,
-83,
5,
50,
77,
-15,
-47,
-11,
-16,
-30,
-15,
-28,
17,
36,
54,
46,
20,
27,
-39,
-50,
26,
-8,
-18,
28,
32,
-34,
-10,
34,
0,
-6,
-9,
-11,
-73,
20,
-20,
22,
7,
36,
-16,
-12,
-72,
20,
27,
-55,
17,
37,
35,
0,
44,
19,
22,
85,
24,
41,
-35,
43,
-30,
23,
-68,
-20,
-34,
-16,
-12,
-70,
5,
66,
-41,
33,
23,
-53,
-21,
-30,
15,
-8,
6,
-1,
20,
-101,
-20,
3,
-43,
0,
34,
-16,
-7,
1,
-13,
-6,
-43,
35,
-3,
-67,
-9,
3,
-12,
-17,
17,
-92,
3,
12,
-21,
-37,
1,
-1,
12,
27,
-32,
-25,
14,
-9,
8,
-11,
-24,
-26,
24,
8,
-32,
32,
14,
-10,
-8,
49,
-17,
27,
13,
-45,
-40,
28,
40,
-46,
-4,
42,
-5,
26,
70,
9,
-25,
28,
-1,
1,
-7,
-32,
-52,
34,
25,
15,
-17,
18,
-2,
-46,
35,
59,
45,
62,
-59,
-9,
-56,
9,
-5,
-20,
-18,
-53,
65,
29,
76,
-9,
49,
22,
-12,
-19,
-63,
-26,
21,
43,
5,
53,
26,
-45,
3,
-39,
-36,
-2,
2,
2,
44,
-18,
-37,
10,
-33,
-35,
46,
-7,
-19,
-2,
-6,
39,
69,
7,
-57,
-40,
-16,
-67,
13,
-81,
23,
-36,
7,
-27,
38,
1,
3,
-2,
-40,
-8,
-4,
-57,
10,
21,
91,
-23,
16,
-30,
2,
15,
45,
10,
86,
59,
-48,
3,
-22,
-13,
6,
33,
-25,
-9,
-43,
-3,
-6,
-10,
-11,
-4,
-5,
5,
-12,
-18,
-34,
-3,
-3,
-28,
-17,
-18,
-14,
45,
0,
10,
43,
40,
-15,
-22,
-42,
20,
-34,
16,
1,
16,
-6,
-21,
30,
3,
13,
22,
14,
-38,
4,
-15,
5,
-28,
-48,
12,
-11,
24,
-16,
18,
-21,
5,
10,
-4,
23,
27,
18,
-10,
-38,
-37,
2,
10,
52,
69,
27,
-10,
-10,
-26,
25,
23,
-10,
79,
-51,
52,
-2,
17,
10,
12,
-3,
8,
51,
12,
18,
-73,
60,
46,
-38,
31,
31,
32,
14,
17,
11,
1,
-23,
-34,
20,
14,
-10,
-17,
-19,
-20,
82,
35,
-7,
25,
2,
22,
8,
-41,
4,
29,
6,
45,
-11,
34,
45,
21,
-16,
-5,
7,
6,
-36,
0,
-60,
-11
] |
Per Curiam.
Defendant was charged with and bound over for receiving and concealing stolen property with a value in excess of $100, MCL 750.535; MSA 28.803. Subsequently, defendant filed a motion in the Washtenaw Circuit Court to quash the information and suppress the evidence, in particular, a stolen engine and transmission, as being the fruit of an alleged unlawful search and seizure of his 1974 Monte Carlo. Following the circuit court’s denial of the motion, defendant appeals by leave granted._ The primary issue is whether the impoundment of defendant’s vehicle and inspection of the vehicle identification numbers (vins) stamped on the engine and transmission without a warrant were violative of defendant’s rights against unreasonable searches and seizures under US Const, Am IV, and Const 1963, art 1, § 11. To facilitate review of this issue, recitation of the following relevant facts is necessary.
On Saturday, February 16, 1985, Detective William Gilless of the Washtenaw County Sheriffs Department responded to a domestic disturbance between defendant and his father, Pete Smith, at Smith’s residence. Gilless was requested to come to the residence by a uniformed deputy who, while handling the disturbance, overheard a conversation between defendant and his father concerning stolen engine and body parts.
Detective Gilless had known both defendant and Pete Smith for several years, as Smith was an owner of, and defendant an employee of, the. Ypsilanti Towing Company, which had a contract with the sheriffs department to provide towing and impoundment services.
Defendant departed from the residence prior to Detective Gilless’ arrival. Upon arriving, Gilless spoke with Pete Smith for forty-five minutes. Smith informed Gilless that defendant was using Ypsilanti Towing as a "chop shop” operation, where he would strip down late-model vehicles to sell the parts and, also, purchase and disassemble old-model vehicles and reassemble them with stolen parts. Smith also indicated that defendant possessed a 1974 Monte Carlo, which contained a stolen transmission and engine from a 1982 Corvette, and that other stolen parts were kept at defendant’s personal residence.
After the conversation, and in an attempt to find defendant, Gilless and Pete Smith drove past defendant’s residence. Although defendant was not there, the Monte Carlo was parked in the driveway. Smith identified that vehicle as the one containing the stolen engine and transmission. Gilless was already familiar with the vehicle, as he had previously learned from defendant himself that it was completely rebuilt from the frame up and had a selling price of $5,000.
Gilless and Smith then proceeded to Ypsilanti Towing, where they encountered defendant. Gilless informed defendant of his father’s allegations, advised him of his Miranda rights, Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), and requested permission to inspect company-owned vehicles and the Monte Carlo. Defendant declined to give his consent and advised Gilless to obtain a search warrant.
Gilless immediately arranged to have Officer Michael Rae of the Ypsilanti Police Department keep the Monte Carlo in defendant’s driveway under surveillance while Gilless went to obtain the necessary search warrants. Defendant thereafter returned to his residence and encountered Rae, who explained to defendant his presence and purpose. Defendant initially went into his house, but returned outside within ten minutes and began to drive away. After driving half a block, defendant was stopped by Rae, who then requested Gilless to return to the location.
Gilless returned to the scene before having an opportunity to obtain the warrants and requested defendant to allow him to inspect the vehicle identification numbers. Defendant responded that Gilless could only inspect the vin engraved on the dashboard and then walked away with the keys, leaving the car locked. Gilless did not arrest defen dant at that time. Instead, he took steps to impound the vehicle.
The car was then impounded and was ultimately towed that day to the county sheriff’s department for overnight storage. Having finally spoken with an assistant prosecutor, Gilless was advised that he would not need a search warrant to inspect the vin’s mounted on the engine and transmission.
The next day, February 17, 1985, the vehicle was towed to Sakstrups Towing, where an inspection was conducted with the technical assistance of Frank Visconi, a special agent for the National Automobile Theft Bureau (natb), and Deputy Roger Hill of the county sheriff’s department. The officers pried open a door of the vehicle with a tool known as a slim jim in order to gain access to the hood latch. Neither the vehicle’s interior nor the trunk was inspected.
The vin on the dashboard was identified as belonging to the Monte Carlo. The engine vin was inspected from above after the hood was opened. Visconi opined that the original engine vin had been ground away and restamped with the vin of a 1979 Chevrolet truck. However, the engine itself had an outward appearance similar to that of a Corvette engine. By comparison, the transmission vin was unaltered and corresponded with the vin from the transmission of a stolen 1982 Corvette, as was learned by Visconi through a natb records check on Monday, February 18.
A more in-depth inspection was conducted on February 28, 1985, during which the engine and transmission were fully removed from the Monte Carlo and a heat restoration process was utilized to remove the existing truck engine vin and to "raise shadows” of the original vin stamped underneath. In the opinion of Visconi, the engine was from the stolen 1982 Corvette. Defendant was thereafter arrested and charged as stated.
In denying defendant’s motion, the circuit court judge adopted the reasoning of the examining magistrate who, in issuing an opinion on the admissibility of the vins, determined that no warrant was necessary to impound the car and inspect the vins because defendant had no expectation of privacy in the vins and that, nonetheless, the actions of the officers were supported by probable cause.
A trial court’s ruling at a suppression hearing will not be disturbed unless it is clearly erroneous. People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). A finding is clearly erroneous where the reviewing court is firmly convinced that a mistake has been made. People v United States Currency, 148 Mich App 326, 329; 383 NW2d 633 (1986).
The first issue is whether the inspection of defendant’s vehicle to determine the relevant vins was a search within the meaning of US Const, Am IV, and Const 1963, art 1, § 11, thereby necessitating a warrant or a situation in which an exception to the warrant requirement applies. The test is whether the defendant had a reasonable expectation of privacy in the object or area of the intrusion. Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967); People v Nash, 418 Mich 196, 205; 341 NW2d 439 (1983).
In New York v Class, — US —; 106 S Ct 960; 89 L Ed 2d 81 (1986), the United States Supreme Court recently held that there was no legitimate expectation of privacy in an automobile vin which was affixed to the dashboard of the vehicle, subject to the plain view of the public. Noting the role played by vins in "the pervasive regulation by the government of the automobile,” as well as the lesser expectation of privacy an individual has in a motor vehicle, the Court concluded:
It is unreasonable to have an expectation of privacy in an object required by law tó be located in a place ordinarily in plain view from the exterior of the automobile. The vin’s mandated visibility makes it more similar to the exterior of the car than to the trunk or glove compartment. The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a "search.” See Cardwell v Lewis [417 US 583, 588-589; 94 S Ct 2464, 2468-2469; 41 L Ed 2d 325, 333-334 (1974)]. In sum, ... we hold that there was no reasonable expectation of privacy in the vin. [106 S Ct at 966.]
Prior to Class, Michigan case law also refused to recognize a reasonable expectation of privacy in vins. In People v Brooks, 405 Mich 225; 274 NW2d 430 (1979), our Supreme Court held that no "search” was conducted when a police officer checked a hidden vin by crawling under the vehicle. Similarly, in People v Brewer, 112 Mich App 670; 317 NW2d 218 (1981), a panel of this Court stated that the opening of a motor vehicle door by a police officer to view the vin on the door post does not constitute a search where the officer has a valid reason to check the vin.
We thus conclude that the inspection of the vins on the transmission and the engine did not constitute a search. Based upon the detailed information which Detective Gilless obtained from defendant’s father, as well as defendant’s refusal to cooperate with the officer, Gilless had probable cause to believe the car might contain a stolen engine and transmission and, thus, he had a valid reason to check the vins. Although the inspections conducted in the cited authority are arguably distin guishable from the instant inspection of the engine, which was not in plain view and required the opening of the locked hood, we nonetheless are not persuaded that the inspection invaded a reasonable expectation of privacy belonging to defendant. See United States v Polk, 433 F2d 644, 647-648 (CA 5, 1970).
In light of our finding that Officer Gilless had probable cause to believe defendant’s automobile contained stolen parts, we also summarily reject defendant’s other argument that the stop and seizure of the automobile itself without a warrant was unreasonable. Chambers v Maroney, 399 US 42; 90 S Ct 1975; 26 L Ed 2d 419 (1970).
Affirmed. | [
2,
30,
-31,
5,
-27,
21,
-33,
-13,
-17,
43,
35,
-33,
-16,
-9,
4,
-25,
54,
13,
17,
-28,
48,
-32,
-5,
-17,
0,
-69,
39,
-9,
-48,
32,
-44,
-18,
35,
-14,
28,
25,
56,
22,
15,
15,
-40,
-22,
5,
3,
-24,
-20,
4,
11,
32,
-72,
34,
2,
-36,
6,
23,
28,
59,
-37,
-1,
27,
20,
-8,
14,
17,
-18,
30,
5,
15,
0,
-22,
23,
21,
-46,
68,
31,
18,
13,
66,
-11,
41,
21,
-25,
36,
23,
9,
10,
-6,
-33,
-26,
-71,
-62,
0,
-50,
-18,
10,
-14,
2,
-31,
30,
-71,
-77,
65,
-26,
35,
17,
14,
-21,
-46,
-22,
-4,
30,
-31,
39,
3,
-9,
-37,
-11,
13,
82,
3,
-9,
-36,
30,
-11,
3,
-41,
3,
-32,
0,
36,
-16,
39,
37,
26,
7,
-6,
-6,
-3,
-6,
30,
-12,
5,
40,
14,
60,
4,
68,
-6,
19,
35,
-32,
29,
-16,
39,
19,
37,
7,
-25,
-14,
-1,
-33,
28,
-10,
-21,
-10,
-8,
23,
19,
-18,
13,
15,
-6,
1,
-28,
13,
-29,
-53,
56,
-35,
-16,
-6,
-24,
20,
-12,
-38,
-35,
21,
33,
-76,
12,
14,
18,
37,
11,
-31,
37,
47,
22,
-45,
-16,
10,
-30,
13,
-31,
7,
-50,
35,
-30,
-24,
21,
-3,
43,
7,
-32,
-13,
-3,
0,
-16,
12,
19,
36,
19,
-17,
-5,
2,
22,
-13,
5,
44,
3,
47,
6,
5,
-45,
-78,
-4,
3,
-35,
79,
49,
3,
-25,
-16,
-16,
51,
-34,
-50,
-28,
9,
4,
-10,
0,
-32,
-29,
-2,
-60,
42,
-9,
27,
25,
37,
17,
0,
10,
-47,
32,
18,
6,
-33,
-15,
-40,
11,
-26,
-19,
-30,
-10,
-4,
33,
17,
-10,
-32,
0,
-55,
7,
9,
14,
24,
22,
41,
-12,
-17,
3,
-27,
-20,
-13,
-13,
1,
-43,
-35,
16,
9,
20,
-14,
-10,
15,
-73,
6,
0,
-40,
41,
-8,
-16,
2,
53,
49,
-1,
9,
-30,
0,
39,
4,
35,
-35,
33,
-7,
-4,
12,
-7,
27,
-34,
-6,
-23,
-15,
-30,
-23,
5,
32,
-14,
25,
30,
-22,
-26,
15,
-2,
8,
-7,
5,
22,
-2,
-23,
24,
28,
14,
17,
-14,
6,
1,
6,
-30,
33,
62,
29,
11,
17,
19,
21,
0,
-20,
-17,
17,
-11,
-58,
1,
51,
-10,
-41,
-27,
-35,
-3,
9,
36,
-48,
23,
-35,
-26,
-23,
26,
-36,
-14,
48,
-42,
-23,
22,
-6,
-46,
-26,
37,
-1,
20,
-17,
-29,
56,
-1,
-1,
-19,
-41,
29,
67,
17,
-35,
-37,
-3,
51,
61,
3,
17,
32,
6,
-20,
-48,
-23,
28,
-5,
-39,
33,
-22,
-41,
13,
-13,
39,
62,
5,
45,
-27,
-22,
23,
-27,
-47,
18,
-2,
-17,
-25,
-13,
-30,
14,
-18,
-36,
-5,
12,
4,
9,
13,
-3,
-31,
-29,
50,
69,
-31,
-17,
4,
1,
-56,
-20,
0,
-7,
-53,
-2,
-40,
31,
-32,
9,
53,
-23,
-20,
-23,
-10,
-5,
7,
15,
-18,
-23,
46,
24,
-23,
-14,
-6,
-52,
29,
38,
38,
-30,
15,
-7,
-8,
22,
17,
-29,
32,
83,
3,
-4,
-6,
6,
34,
37,
-8,
3,
-2,
17,
10,
1,
11,
-4,
-13,
-58,
-17,
-15,
23,
40,
18,
12,
-16,
12,
2,
12,
21,
4,
-61,
-31,
-4,
22,
-41,
49,
-38,
43,
-11,
25,
11,
-20,
6,
29,
10,
-48,
-10,
1,
-26,
9,
-35,
8,
-15,
-15,
-9,
-3,
-7,
9,
5,
-6,
0,
-29,
11,
2,
-7,
31,
20,
37,
-12,
-28,
0,
43,
11,
-25,
38,
33,
-46,
-7,
42,
33,
-26,
-35,
32,
-4,
30,
-6,
-21,
-4,
-5,
-22,
3,
26,
-59,
-18,
-28,
6,
-25,
37,
21,
-73,
-12,
-4,
-17,
40,
-17,
-32,
21,
35,
-39,
21,
28,
16,
6,
45,
-12,
1,
-33,
-21,
36,
-26,
-41,
-2,
6,
32,
-39,
-10,
19,
-11,
-7,
-17,
14,
-21,
-48,
-22,
42,
0,
29,
32,
-25,
4,
47,
-39,
-17,
20,
32,
-11,
-27,
24,
-22,
14,
-28,
-15,
-26,
-45,
0,
11,
-21,
54,
44,
17,
-41,
28,
-16,
30,
-39,
-70,
2,
34,
-5,
-35,
-3,
27,
10,
31,
12,
1,
13,
-19,
0,
-45,
-28,
30,
-11,
-4,
-46,
-40,
-25,
-26,
-7,
14,
-6,
42,
-1,
5,
15,
29,
-27,
16,
-25,
6,
13,
-19,
-37,
-8,
24,
28,
1,
-52,
46,
8,
-23,
-7,
38,
-58,
27,
12,
-9,
0,
6,
-8,
-15,
-18,
-45,
-24,
-60,
-11,
-38,
29,
21,
-12,
-66,
-21,
-13,
24,
-5,
27,
-37,
5,
5,
2,
-21,
-18,
44,
-14,
30,
58,
-38,
4,
-26,
14,
13,
20,
29,
-15,
36,
20,
47,
-34,
25,
46,
7,
-46,
-39,
-13,
30,
3,
-19,
-21,
14,
-34,
-1,
51,
-11,
-44,
-32,
20,
-47,
-46,
-19,
-76,
20,
19,
-55,
-33,
-8,
-19,
31,
21,
8,
-48,
-31,
23,
0,
64,
-29,
-11,
-8,
-24,
4,
70,
2,
32,
-36,
31,
37,
26,
-17,
-22,
-36,
0,
26,
-17,
-28,
-11,
26,
-38,
-63,
47,
3,
-5,
8,
-12,
-33,
43,
12,
-55,
-2,
-71,
5,
39,
-40,
-6,
16,
31,
-4,
10,
51,
-18,
1,
16,
-20,
9,
12,
28,
-17,
-4,
32,
14,
25,
20,
-8,
29,
36,
-12,
-27,
-37,
35,
24,
57,
-13,
45,
8,
-21,
-1,
21,
-9,
-28,
11,
3,
6,
-21,
-2,
29,
42,
-16,
3,
72,
6,
-31,
13,
9,
-26,
-20,
29,
-24,
32,
17,
-17,
-24,
0,
-48,
2,
-8,
-10,
1,
-57,
-17,
-24,
14,
31,
-19,
11,
-77,
-4,
-3,
-19,
23,
46,
-2,
12,
-15,
-54,
0,
-3,
-5,
-9,
-16,
0,
-59,
2,
14,
-2,
-34,
26,
24,
2,
15,
1,
-29,
-31,
-18,
-63,
11,
7,
13,
-10,
-8,
36,
-28,
22,
-41,
37,
44,
-26,
-31,
-19,
8,
18,
7,
4,
-12,
-6,
43,
1,
-37,
14,
14,
0,
63,
-12,
-37,
0,
-33,
-2,
-7,
38,
9,
10,
25,
0,
-12,
4,
36,
-16,
-7,
-9,
-42,
-4,
-14,
24,
58,
6,
-15,
-4,
-29,
-13,
54,
83,
-38,
-13,
35,
-47,
-8,
8,
-7,
31,
23,
-25,
23,
-5,
27,
5,
33,
3,
-12,
38,
2,
57,
15,
-14,
-35,
-23,
55,
-40,
-20,
-59,
-19,
4,
9,
-10,
27,
-23,
1,
-21,
12,
-6,
40
] |
Per Curiam.
Defendant was convicted of receiving and concealing stolen property with a value of over $100. MCL 750.535; MSA 28.803. Subsequently, defendant was found guilty of being an habitual offender, third offense, MCL 769.11; MSA 28.1083. He was sentenced to a term of six years and eight months to ten years to be served consecutively to his current sentence for breaking and entering and concurrent with his sentence for prison escape. Defendant appeals as of right. We affirm.
The facts underlying this dispute, as stipulated at a motion hearing, are relatively simple. Defendant was an inmate with the Department of Corrections (doc) and assigned to a community residential center program (crc). He occupied Room 14 at the Ithaca Motor Inn which was rented by the doc and designated as a residential placement cell or facility. James Collins, an employee of the doc, was a parole officer for the county and the designated warden of the residential facility. Upon information amounting to less then probable cause, Collins decided to conduct a "shakedown” search of defendant’s room. Without a warrant or defendant’s knowledge, Collins obtained a pass key from the motel manager and entered defendant’s room where he found and confiscated items which he believed were stolen. Later that day, Collins returned with Gratiot County Sheriffs Deputy Michael Vetter and again inventoried defendant’s room where they found and confiscated another item.
Defendant unsuccessfully moved to suppress the evidence, arguing that he had a reasonable expectation of privacy in his room which, in turn, necessitated that any search be conducted only pursuant to Fourth Amendment protections. The prosecution contended that a prisoner had no reasonable expectation of privacy in his prison cell and, hence, the Fourth Amendment’s protections against unreasonable searches and seizures are inapplicable.
The trial court concluded that defendant did not have a reasonable expectation of privacy and, therefore, there was no search within the meaning of the Fourth Amendment.
We are asked to decide whether a prison inmate assigned to a community residential program has a reasonable expectation of privacy in a room designated as a residential cell or facility thereby entitling him to Fourth Amendment protection. We hold that he does not.
In Hudson v Palmer, 468 US 517; 104 S Ct 3194; 82 L Ed 2d 393 (1984), the Supreme Court, after balancing the interests of society with those of a prisoner, concluded that prisoners have no legitimate expectations of privacy and therefore the Fourth Amendment’s prohibition of unreasonable searches does not apply in prison cells. Id. at 526. The Court reasoned that society is not prepared to recognize as legitimate any subjective expectations of privacy that a prisoner might have in his prison cell and, further, that a recognition of such a right simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions. Id.
We find that this reasoning is equally applicable to the situation where a defendant, as here, resides in a community residential center. In Michigan, a crc is, in fact, a prison. MCL 750.193(2); MSA 28.390(2). Prisons by their very definition are places of involuntary confinement and prisoners by virtue of assignment to a crc are not automatically purged of their "proclivity for antisocial, criminal, and often violent, conduct.” Id. at 526. Inmates have necessarily demonstrated an inability to control and conform their behavior to the legitimate standards of society and have demonstrated their inability to conform their conduct with either a respect for the law or an appreciation of the rights of others. Id. "Loss of freedom of choice and privacy are inherent incidents of confinement.” Id. at 528, quoting Bell v Wolfish, 441 US 520, 537; 99 S Ct 1861; 60 L Ed 2d 447 (1979).
Prison administrators, in this case the crc supervisor, are charged with the task of taking all necessary steps to ensure the safety of others within the prison community as well as the community which houses the inmates. Id. at 526. Crc supervisors can be no less diligent, nor more constrained, than their institutional counterparts in preventing the flow of illicit weapons, drugs and other contraband into the community.
We believe, and so hold, that a prisoner does not enjoy a reasonable expectation of privacy in his residential community cell. Consequently, the court did not err in denying defendant’s motion to suppress the evidence seized.
With respect to defendant’s claim of ineffective assistance of counsel, we find that, by failing to timely object, he has not preserved this issue for our review. MRE 103(a)(1). People v Standifer, 425 Mich 543, 557; 390 NW2d 632 (1986). Moreover, we find no manifest injustice to defendant. People v Kelly, 423 Mich 261, 281; 378 NW2d 365 (1985). When asserting an ineffective assistance of counsel claim it is incumbent on a defendant to make a testimonial record in the trial court in connection with a motion for a new trial or evidentiary hearing in order to produce support for his claim. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). Since defendant has failed to do either, we are unable to review his claims.
Affirmed. | [
57,
-32,
-20,
24,
-57,
10,
-45,
26,
-40,
58,
54,
24,
27,
-1,
16,
-28,
-13,
49,
16,
46,
25,
5,
-12,
90,
-10,
-35,
15,
90,
-81,
83,
7,
-10,
39,
-40,
-33,
-18,
62,
41,
-10,
23,
4,
-44,
22,
-23,
-42,
-14,
-3,
39,
43,
-42,
34,
-20,
7,
12,
27,
44,
40,
-45,
12,
55,
0,
5,
-23,
-18,
0,
11,
9,
18,
-14,
-56,
31,
-39,
-83,
-50,
55,
14,
26,
32,
6,
41,
-5,
-12,
-8,
2,
23,
-40,
20,
-70,
34,
-22,
-24,
4,
-24,
-78,
-32,
5,
-7,
-47,
86,
-47,
-76,
-19,
-38,
39,
53,
17,
-18,
-3,
-14,
-29,
-24,
6,
-10,
1,
-9,
-65,
-26,
4,
21,
-13,
11,
43,
56,
-23,
18,
-20,
8,
-35,
-12,
-3,
-39,
36,
1,
-21,
-14,
-6,
22,
5,
7,
-21,
-60,
4,
31,
39,
3,
8,
6,
6,
12,
3,
2,
23,
-39,
40,
-10,
43,
-42,
-7,
-100,
1,
4,
14,
-32,
-44,
13,
30,
-38,
29,
7,
25,
31,
21,
-2,
85,
10,
4,
-16,
31,
8,
-26,
-27,
0,
3,
28,
-33,
13,
35,
19,
-54,
-8,
-6,
-1,
-48,
-48,
26,
-16,
10,
25,
-4,
-81,
-19,
-1,
39,
25,
38,
-19,
21,
-6,
-28,
12,
-22,
25,
-47,
-37,
-14,
13,
12,
-18,
-19,
62,
-62,
35,
-29,
-40,
-24,
9,
25,
2,
33,
-23,
11,
9,
-7,
13,
-15,
1,
4,
-17,
24,
44,
-7,
13,
-15,
-39,
52,
-41,
-29,
16,
-42,
11,
5,
-20,
-21,
47,
-11,
-42,
45,
18,
-17,
-5,
-45,
-23,
-11,
-2,
-17,
25,
20,
-18,
-51,
60,
-58,
12,
-39,
-24,
1,
-5,
-10,
48,
2,
-57,
63,
1,
67,
46,
-32,
-43,
36,
16,
11,
-1,
17,
-36,
-32,
-18,
23,
-4,
-5,
-8,
-56,
11,
22,
0,
-17,
-71,
2,
23,
31,
24,
-31,
-6,
36,
58,
-17,
1,
-5,
-23,
-36,
-2,
15,
-21,
-16,
-15,
41,
-42,
12,
-7,
33,
-43,
10,
-26,
-39,
-11,
-10,
-36,
14,
47,
18,
30,
20,
39,
7,
-19,
-22,
-78,
-12,
12,
-23,
51,
-41,
-16,
58,
42,
10,
50,
-10,
-34,
-68,
15,
-16,
-34,
39,
-2,
-15,
-26,
45,
-8,
-3,
-10,
28,
4,
-21,
-88,
15,
-42,
-4,
14,
47,
-31,
22,
8,
32,
-20,
22,
-24,
-13,
-20,
-91,
-1,
31,
4,
-31,
-12,
-6,
-46,
-50,
-15,
32,
21,
61,
-51,
-80,
7,
14,
32,
-20,
-32,
-37,
7,
-22,
12,
-75,
8,
38,
76,
-23,
28,
22,
-12,
19,
-32,
15,
-18,
4,
-21,
25,
-2,
-50,
55,
1,
-5,
-26,
-30,
-21,
-54,
-6,
-3,
-58,
-45,
25,
0,
-11,
-31,
-26,
-27,
38,
-4,
-8,
-18,
19,
-30,
-12,
10,
11,
-30,
-19,
62,
54,
-38,
-59,
-39,
0,
-18,
-23,
-10,
27,
-21,
-76,
-60,
39,
-23,
30,
34,
-10,
33,
-17,
-17,
2,
33,
9,
34,
16,
2,
41,
-9,
-5,
-4,
-25,
-13,
40,
15,
-33,
7,
38,
-25,
30,
27,
-3,
28,
53,
31,
-20,
9,
-60,
33,
38,
-18,
-5,
34,
52,
57,
44,
13,
6,
3,
-50,
15,
39,
-35,
7,
0,
43,
-18,
45,
12,
-26,
36,
30,
-13,
-36,
-4,
35,
2,
22,
-32,
40,
-28,
-36,
-38,
-4,
-52,
3,
27,
-4,
35,
-1,
-16,
28,
-49,
-45,
-22,
-37,
44,
-12,
22,
-35,
-58,
-13,
21,
3,
-41,
-18,
-33,
54,
-15,
-4,
4,
-22,
40,
43,
10,
-2,
-12,
-22,
-13,
-38,
1,
-4,
11,
15,
-14,
20,
54,
-21,
-49,
-37,
-18,
-42,
7,
43,
-26,
-69,
-3,
-18,
-36,
0,
-21,
-3,
-68,
26,
28,
16,
15,
0,
-10,
85,
-35,
54,
62,
-23,
21,
16,
-30,
-17,
-28,
-28,
8,
-4,
10,
-22,
-22,
21,
-27,
-23,
-4,
-39,
-19,
-35,
7,
-24,
2,
-1,
-17,
37,
24,
42,
31,
7,
12,
-36,
13,
9,
10,
-33,
-42,
17,
20,
42,
-33,
-20,
-12,
21,
6,
16,
39,
48,
16,
-35,
0,
50,
25,
1,
28,
-32,
48,
15,
36,
-49,
-63,
46,
-51,
15,
12,
13,
77,
-2,
0,
44,
-43,
13,
-13,
-30,
-35,
14,
-11,
23,
14,
6,
19,
29,
-14,
33,
-27,
38,
-17,
33,
-47,
20,
-22,
-1,
19,
-28,
12,
29,
-5,
-51,
9,
-19,
-68,
-66,
16,
-1,
38,
49,
6,
5,
-33,
-70,
26,
-2,
22,
23,
-27,
20,
-28,
-15,
1,
6,
2,
-21,
-44,
-16,
0,
-37,
5,
-5,
26,
-35,
4,
28,
1,
-19,
15,
11,
32,
25,
0,
52,
0,
-11,
64,
54,
22,
-6,
-4,
-47,
56,
24,
7,
-20,
-34,
3,
50,
-48,
-51,
-9,
-19,
-13,
-33,
19,
26,
-18,
-34,
-1,
-1,
-56,
27,
4,
-7,
22,
23,
-14,
37,
-55,
-21,
-22,
5,
-46,
-41,
-36,
34,
-8,
30,
10,
-1,
16,
0,
20,
0,
-4,
1,
73,
-7,
18,
11,
-46,
-27,
-8,
-4,
5,
-5,
-3,
-12,
-20,
17,
18,
4,
15,
7,
2,
-23,
20,
0,
-30,
4,
-30,
14,
39,
-9,
16,
-5,
-20,
13,
-3,
34,
0,
-19,
-33,
21,
-3,
44,
-17,
34,
53,
19,
-10,
5,
-3,
-12,
45,
22,
60,
-20,
-25,
-7,
24,
28,
22,
20,
51,
-16,
5,
35,
12,
-27,
-24,
72,
14,
-19,
19,
9,
-77,
29,
58,
3,
-69,
8,
-29,
51,
-13,
-7,
-6,
-6,
-31,
10,
70,
10,
-18,
5,
10,
-49,
-29,
34,
-11,
28,
-4,
12,
64,
-10,
-14,
-39,
-3,
-4,
-19,
18,
25,
-1,
17,
4,
31,
-28,
17,
17,
-9,
13,
12,
-21,
-58,
30,
17,
-61,
-42,
59,
101,
36,
3,
-1,
1,
-59,
-26,
28,
19,
5,
21,
-6,
-4,
11,
22,
-40,
26,
17,
-23,
-22,
-44,
49,
-46,
54,
-10,
-37,
24,
0,
-49,
1,
10,
-26,
0,
-21,
13,
-21,
-11,
14,
-66,
26,
-2,
-3,
-14,
19,
51,
-26,
-47,
-6,
29,
-32,
-16,
-1,
6,
-11,
-10,
33,
-24,
-1,
-5,
-94,
2,
1,
-24,
34,
-5,
55,
-15,
-4,
23,
-1,
-13,
42,
27,
-1,
-20,
-23,
-34,
31,
-3,
4,
-27,
16,
14,
6,
-2,
6,
-52,
-6,
18,
-51,
67,
-23,
-7,
3,
-6,
22,
-36,
27,
-28,
19,
26,
42
] |
Per Curiam.
Plaintiff commenced this action for personal injury protection (pip) insurance benefits against League General Insurance Company, Allstate Insurance Company and the Assigned Claims Facility. The parties filed motions for summary disposition pursuant to MCR 2.116(0(10). League General appeals as of right from the circuit court’s order entering judgment in the amount of $7,256.35 against League General and awarding plaintiff interest and reasonable attorney fees. We reverse.
The undisputed facts are that plaintiff was driving his uninsured vehicle when it ran out of gas. While plaintiff was coasting on the road, an oil tanker was in the same lane directly behind plaintiffs car. The driver of the tanker was aware that plaintiff was slowing down and had on his four-way flashers. Both vehicles stopped for a red light. Plaintiff exited from his vehicle for the purpose of pushing it off the road and onto a side street. Plaintiff then began to push the disabled vehicle. When the traffic light turned green, the oil tanker accelerated and struck the rear end of plaintiffs vehicle, which in turn knocked plaintiff to the ground. Upon impact, plaintiffs vehicle was pushed down the street. The tanker then drove over plaintiffs right leg.
Plaintiff sought personal protection insurance benefits from League General under an automobile insurance policy issued to plaintiffs father-in-law which was in effect at the time of the accident. Plaintiff then commenced the instant action against League General, Allstate Insurance, and the Assigned Claims Facility, seeking payment of personal protection benefits. All parties, except the Assigned Claims Facility, filed motions for summary disposition pursuant to MCR 2.116(0(10). League General premised its motion on MCL 500.3113(b); MSA 24.13113(b), claiming that plaintiff was precluded from receiving personal protection insurance benefits because his uninsured vehicle was "involved in the accident” that injured him.
Following a hearing on the motions, the trial court granted both plaintiffs and Allstate’s mo tions. League General was found to be the priority insurer, since plaintiff was a resident relative in his father-in-law’s household. The court then denied League General’s motion for summary disposition, concluding that it would not determine as a matter of law that the plaintiff’s car was parked in such a way as to cause an unreasonable risk or that plaintiff was not entitled to no-fault benefits.
Plaintiff then filed a motion for summary disposition requesting that the lower court enter a judgment in the amount of pip benefits due plus penalty interest, MCL 500.3142(2); MSA 24.13142, and attorney fees, MCL 500.3148; MSA 24.13148.
Following a hearing, the court granted plaintiff’s motion for summary disposition, including plaintiff’s request for interest and attorney fees.
Defendant Assigned Claims Facility has filed a brief on appeal which supports in general the position taken by Lague General.
On appeal, League General argues that plaintiff’s uninsured vehicle was involved in the accident within the meaning of MCL 500.3113(b); MSA 24.13113(b), thereby precluding him from receiving personal protection insurance benefits. In addition, League General contends that the trial court erred in awarding attorney fees to plaintiff pursuant to MCL 500.3148(1); MSA 24.13148(1). We agree with defendant in both respects.
The issue to be resolved in this case is whether plaintiff’s uninsured motor vehicle was involved in the accident within the meaning of MCL 500.3113(b); MSA 24.13113(b), thereby precluding plaintiff from obtaining pip benefits from defendant. We hold that plaintiff’s uninsured vehicle was involved in the accident. Thus, plaintiff, as an uninsured motorist, was not entitled to pip benefits. MCL 500.3113(b); MSA 24.13113(b).
Michigan’s no-fault insurance act requires all owners of motor vehicles to maintain personal protection insurance, property protection insurance and residual liability insurance. MCL 500.3101(1); MSA 24.13101(1). The act provides that an insurer is liable to pay personal protection insurance benefits for. "accidental injury arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.” MCL 500.3105(1); MSA 24.13105(1). In Shavers v Attorney General, 402 Mich 554, 578-579; 267 NW2d 72 (1978), cert den sub nom Allstate Ins Co v Attorney General, 442 US 934 (1979), our Supreme Court stated:
The goal of the no-fault insurance system was to provide victims of motor vehicle accidents assured, adequate, and prompt reparation for certain economic losses.
The priority provisions of the act are designed to help implement these goals. Royal Globe Ins Cos v Frankenmuth Mutual Ins Co, 419 Mich 565, 575; 357 NW2d 652 (1984). The no-fault act is remedial in nature and must be liberally construed in favor of persons intended to benefit thereby. Gobler v Auto-Owners Ins Co, 428 Mich 51, 61; 604 NW2d 199 (1987).
As a corollary, the act provides for certain exclusions for those who are uninsured. MCL 500.3113; MSA 24.13113 sets forth three circumstances whereby a person would not be entitled to be paid personal protection insurance benefits for accidental bodily injury. At issue is subsection (b):
A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed:
* * *
(b) The person was the owner or registrant of a motor vehicle or motorcycle involved in the accident with respect to which the security required by section 3101 or 3103 was not in effect.
This provision reflects a legislative policy to deny benefits to those whose uninsured vehicles are involved in accidents. Lewis v Farmers Ins Group, 154 Mich App 324, 327; 397 NW2d 297 (1986), citing Belcher v Aetna Casualty & Surety Co, 409 Mich 231; 293 NW2d 594 (1980). However, the disqualification of an uninsured owner is not absolute. Heard v State Farm Mutual Automobile Ins Co, 414 Mich 139, 145; 324 NW2d 1 (1982), reh den 414 Mich 1111 (1982).
The act also provides a parked vehicle exception. A parked uninsured vehicle is like a tree or pole for purposes of the no-fault act and is, therefore, not "involved” in the accident for purposes of § 3113 unless one of the exceptions to the parked vehicle provision, § 3106, is applicable. Heard, supra at 144, 147-149. In Miller v Auto-Owners Ins Co, 411 Mich 633, 639-641; 309 NW2d 544 (1981), the Supreme Court stated the following regarding § 3106:
The policy underlying the parking exclusion is not so obvious but, once discerned, is comparably definite. Injuries involving parked vehicles do not normally involve the vehicle as a motor vehicle. Injuries involving parked vehicles typically involve the vehicle in much the same way as any other stationary object (such as a tree, sign post or boulder) would be involved. There is nothing about a parked vehicle as a motor vehicle that would bear on the accident.
The stated exceptions to the parking exclusion clarify and reinforce this construction of the exclusion. Each exception pertains to injuries related to the character of a parked vehicle as a motor vehicle — characteristics which make it unlike other stationary roadside objects that can be involved in vehicle accidents.
* * *
Each of the exceptions to the parking exclusion thus describes an instance where, although the vehicle is parked, its involvement in an accident is nonetheless directly related to its character as a motor vehicle. The underlying policy of the parking exclusion is that, except in three general types of situations, a parked car is not involved in an accident as a motor vehicle. It is therefore inappropriate to compensate injuries arising from its non-vehicular involvement in an accident within a system designed to compensate injuries involving motor vehicles as motor vehicles. [Emphasis in original.]
League General argues that, since plaintiffs vehicle was in use as a motor vehicle on the roadway, it had not attained a status akin to a stationary roadside object. League General claims further that plaintiff cannot seriously argue that his vehicle was "parked” at the time of the accident, since plaintiffs vehicle was actually moving on the roadway, albeit by virtue of plaintiffs pushing the vehicle.
We agree that under these facts plaintiffs car was not parked, thus rendering § 3106 inapplicable. We conclude that logic dictates that a moving vehicle is not parked, nor is it akin to stationary objects.
Plaintiff does not dispute that he is the owner of the vehicle or that it is uninsured. Rather, he argues that his vehicle was not involved in the accident within the meaning of § 3113.
In Heard, supra, the Supreme Court wrestled with the meaning of the phrase involved in the accident as set forth in § 3113. The Court concluded the meaning "cannot be determined by abstract reasoning or resort to dictionary definitions” but, instead, depends on the meaning derived from the purpose and structure of the no-fault act. Heard, supra at 147.
Contrary to League General’s contention, the phrase involved in the accident should be consistently construed throughout the no-fault act, Dussia v Monroe Co Employees Retirement System, 386 Mich 244, 248; 191 NW2d 307 (1971); Grand Rapids v Crocker, 219 Mich 178, 182-183; 189 NW 221 (1922), and, consequently, cases which construe the phrase under § 3115 of the act would be applicable to § 3113. In Stonewall Ins Group v Farmers Ins Group, 128 Mich App 307, 309; 340 NW2d 71 (1983), this Court construed the meaning of this phrase as it is used in § 3115(1) and quoted the trial court with approval:
"[TJhere has to be a link in the chain of circumstances that somehow has to be sort of an active link as opposed to a passive link. While it would not go so far as fault, there must be some sort of activity that somehow contributes in the happening of the accident.” [Emphasis in Stonewall.]
See also Brasher v Auto Club Ins Ass’n, 152 Mich App 544; 393 NW2d 881 (1986); Bachman v Progressive Casualty Ins Co, 135 Mich App 641; 354 NW2d 292 (1984).
Plaintiff contends that his car did not contribute to the happening of the accident. Rather, the sole cause of his injury was the oil tanker driver’s inattentiveness. However, we believe that plaintiff’s car was an "active link” in the chain of circumstances causing the oil tanker to drive over his leg. Plaintiff was operating his vehicle when it ran out of gas and stalled on the roadway. Plaintiff then began pushing his vehicle, which was wholly in the lane of traffic, while reaching in the driver’s side window to steer. When his vehicle was struck in the rear, the impact pushed the vehicle forward which knocked plaintiff away from the vehicle and onto the ground where the oil tanker ran oyer plaintiff’s leg. We find that plaintiff’s vehicle was involved in the accident and that such an interpretation gives effect to the intent of the Legislature, which is to deny benefits to those whose uninsured vehicles are involved in accidents. Lewis, supra; Browder v International Fidelity Ins Co, 413 Mich 603; 321 NW2d 668 (1982). Accordingly, we conclude that plaintiff is not entitled to personal protection insurance benefits because plaintiff’s uninsured vehicle was involved in the accident that resulted in his bodily injury. MCL 500.3113(b); MSA 24.3113(b).
We also reverse the trial court’s order awarding attorney fees to plaintiff. MCL 500.3148; MSA 24.13148. Section 3148 of the no-fault act permits a court to award attorney fees for unreasonable refusal or unreasonable delay in making payments. However, a refusal or delay by an insurer will not be found "unreasonable” within the meaning of § 3148 where the delay is the result of a legitimate question of statutory construction, con stitutional law, or a bona fide factual uncertainty. Gobler v Auto-Owners Ins Co, 428 Mich 51, 66; 404 NW2d 199 (1987); Kondratek v Auto Club Ins Ass’n, 163 Mich App 634, 638; 414 NW2d 903 (1987).
In view of our decision that plaintiff is not entitled to no-fault benefits, we conclude that the court’s finding of unreasonable refusal or delay in payment is clearly erroneous. Kondratek, supra at 638. Accordingly, we reverse.
Reversed.
Although initially disputed, the court subsequently determined that plaintiff was a resident relative in his father-in-law’s household at the time of the accident.
Allstate was the insurer of the oil tanker.
If a person is a pedestrian, he is awarded personal protection insurance benefits pursuant to the priorities established in MCL 500.3115(1); MSA 24.13115(1).
We disagree with plaintiffs argument that in order for a vehicle to be "used as a motor vheicle,” "the vehicle must be moving by power imparted from a source other than muscular power.” Plaintiffs construction of MCL 500.3101(2Xc); MSA 24.13101(2Xc) is incorrect. Since plaintiffs vehicle was designed for operation upon a highway by power other than muscular power and had more than two wheels, it is irrelevant under § 3101(2Xc) that he was pushing the vehicle. Plaintiffs vehicle is properly considered a motor vehicle under the act. | [
-27,
43,
-34,
32,
17,
-37,
24,
-4,
50,
30,
-5,
2,
44,
1,
-30,
21,
28,
4,
-12,
-7,
-14,
-18,
19,
16,
3,
10,
-10,
-13,
21,
84,
25,
-12,
-21,
-36,
-41,
13,
5,
62,
-22,
16,
26,
-33,
6,
-11,
0,
-6,
15,
14,
58,
-21,
-14,
0,
-25,
-32,
-13,
1,
48,
29,
1,
7,
-23,
-3,
40,
36,
-24,
7,
-19,
63,
23,
18,
-85,
53,
-49,
-24,
-17,
-15,
-25,
21,
12,
5,
23,
-22,
61,
-19,
45,
78,
-8,
-2,
-1,
-12,
-63,
-59,
-41,
-33,
-28,
35,
26,
-12,
7,
9,
-37,
20,
28,
21,
-43,
48,
15,
-43,
26,
34,
-11,
-7,
-13,
0,
24,
-11,
34,
-7,
35,
28,
36,
-7,
40,
-1,
-31,
32,
-21,
-28,
-56,
-9,
10,
-7,
21,
9,
22,
19,
12,
-27,
36,
38,
-42,
-44,
-7,
13,
2,
74,
50,
-64,
-9,
6,
13,
34,
11,
-7,
-17,
-12,
-33,
7,
36,
-58,
-6,
-25,
40,
38,
-7,
7,
-8,
25,
-3,
24,
46,
-48,
41,
7,
43,
22,
-8,
1,
-61,
0,
27,
-11,
-29,
38,
-24,
-34,
14,
10,
-82,
-19,
-10,
-16,
-24,
16,
-4,
22,
35,
49,
-23,
0,
22,
-80,
7,
-53,
2,
-16,
-28,
32,
12,
-36,
36,
-7,
-29,
-59,
-33,
14,
39,
-44,
-23,
-53,
-21,
-7,
-6,
-55,
-26,
-17,
-47,
-105,
41,
-19,
8,
-63,
-36,
36,
-25,
36,
-2,
-41,
54,
6,
61,
61,
-41,
-38,
38,
-3,
-6,
-28,
-32,
-43,
31,
-19,
29,
-25,
8,
-7,
6,
30,
-15,
24,
-4,
59,
24,
-26,
-4,
36,
-43,
-22,
19,
-43,
-20,
3,
20,
-10,
-8,
-67,
17,
-2,
30,
26,
1,
25,
-14,
-18,
-73,
2,
22,
-27,
22,
-34,
33,
-36,
-4,
18,
-8,
-54,
38,
-7,
-30,
-22,
35,
-6,
23,
-12,
-25,
-17,
6,
-29,
-59,
21,
-8,
13,
14,
-15,
61,
-18,
12,
31,
18,
-76,
45,
25,
22,
-5,
0,
1,
45,
-18,
0,
20,
-37,
10,
0,
7,
-5,
-45,
-6,
33,
26,
37,
-24,
10,
21,
-12,
-17,
48,
78,
38,
24,
-5,
-94,
-54,
0,
-33,
-36,
-17,
52,
-34,
-48,
93,
-12,
2,
11,
1,
42,
9,
-15,
38,
-49,
48,
27,
-29,
-2,
0,
-42,
-43,
10,
29,
-27,
46,
31,
-51,
3,
-43,
31,
-18,
-63,
-45,
-30,
29,
-17,
-31,
-2,
25,
1,
8,
-43,
-18,
-21,
9,
62,
3,
-33,
-47,
-38,
-1,
54,
-59,
-44,
-24,
-39,
-7,
-7,
48,
-16,
22,
79,
28,
22,
-60,
2,
-13,
25,
-76,
21,
-29,
8,
8,
-36,
11,
5,
24,
7,
-49,
-10,
41,
6,
-46,
-9,
28,
7,
-29,
-5,
10,
-14,
-59,
-20,
-24,
0,
19,
37,
55,
34,
29,
-23,
16,
13,
1,
8,
-51,
-27,
30,
6,
16,
3,
-51,
-17,
27,
38,
-57,
-22,
21,
-22,
39,
56,
16,
-45,
-13,
-19,
-10,
-54,
29,
-9,
-20,
-28,
-1,
14,
39,
29,
17,
0,
0,
-17,
-64,
25,
-24,
0,
52,
-54,
-67,
-47,
0,
14,
34,
34,
-43,
-33,
-23,
-4,
-25,
3,
10,
19,
-10,
12,
-6,
-40,
10,
5,
1,
-43,
-6,
-46,
-38,
-32,
-38,
-22,
27,
0,
3,
27,
-23,
37,
-30,
-6,
-12,
-36,
64,
-11,
-34,
-14,
30,
-27,
-60,
17,
-37,
4,
45,
32,
0,
-22,
-32,
47,
5,
2,
4,
-9,
1,
19,
-5,
-17,
23,
-14,
4,
8,
7,
22,
-58,
53,
-39,
-72,
31,
41,
-55,
10,
37,
24,
4,
-75,
-14,
-27,
35,
-35,
-23,
-72,
-15,
40,
5,
-1,
-70,
-40,
-44,
30,
26,
83,
34,
16,
-62,
-40,
-30,
-12,
-32,
-25,
-5,
69,
19,
11,
34,
44,
-22,
28,
45,
-15,
16,
-23,
-12,
34,
4,
60,
-33,
-14,
36,
46,
12,
9,
10,
-11,
44,
-42,
-11,
-13,
-9,
-2,
-41,
-6,
-17,
-18,
62,
-24,
-9,
-3,
16,
65,
-10,
-15,
25,
0,
21,
-19,
-30,
-62,
67,
-53,
14,
-19,
-4,
-13,
-36,
-33,
-6,
-10,
0,
14,
12,
-55,
-54,
51,
-41,
-1,
8,
3,
6,
23,
40,
34,
57,
-7,
66,
6,
22,
-35,
-46,
36,
-11,
-15,
18,
8,
16,
59,
-42,
-1,
12,
-7,
-33,
-18,
5,
14,
-38,
-1,
-35,
-2,
35,
-85,
-1,
-32,
41,
-5,
-23,
37,
36,
22,
-4,
-27,
-15,
25,
43,
45,
-37,
-32,
-50,
34,
-4,
-32,
-48,
-41,
63,
-8,
34,
9,
-31,
-1,
62,
2,
24,
-44,
-7,
-13,
-71,
-26,
-21,
39,
26,
90,
32,
5,
21,
-87,
54,
14,
10,
-3,
-24,
17,
33,
1,
-8,
14,
-12,
-14,
-58,
-9,
0,
24,
17,
-16,
4,
3,
-2,
-19,
-72,
20,
28,
39,
-46,
-28,
19,
17,
-81,
-19,
-3,
-21,
-9,
49,
-11,
8,
0,
0,
-35,
-2,
17,
69,
13,
40,
-34,
15,
18,
-14,
12,
22,
-8,
-11,
-2,
-5,
0,
-10,
-7,
66,
2,
44,
-28,
14,
-69,
68,
0,
36,
16,
-12,
0,
-42,
0,
0,
48,
-45,
-17,
30,
3,
0,
-20,
34,
8,
13,
-65,
0,
13,
-44,
58,
71,
-11,
-17,
-39,
9,
-34,
-37,
18,
18,
22,
-48,
26,
49,
14,
21,
-74,
26,
-3,
6,
10,
-21,
-17,
-18,
-22,
51,
-32,
-32,
12,
13,
-10,
24,
39,
1,
26,
22,
47,
9,
45,
17,
-11,
11,
-47,
21,
-13,
-19,
2,
-18,
78,
-11,
-18,
-48,
-7,
-36,
33,
34,
23,
-29,
-20,
-39,
4,
15,
33,
77,
-87,
-40,
6,
33,
24,
-5,
12,
-17,
-44,
-86,
-27,
2,
-15,
35,
16,
-2,
30,
1,
24,
-10,
54,
-3,
27,
-14,
-23,
9,
24,
6,
22,
43,
6,
28,
-29,
18,
29,
8,
-24,
-14,
-2,
-73,
2,
9,
46,
14,
31,
-50,
-48,
24,
-6,
-63,
73,
35,
-35,
-28,
10,
-7,
-25,
-47,
34,
49,
-20,
3,
0,
-40,
-20,
43,
-73,
9,
1,
-38,
-17,
26,
-2,
-19,
-33,
60,
-63,
-8,
-13,
-53,
-33,
8,
-12,
-19,
-11,
8,
-17,
-47,
-26,
24,
41,
17,
-2,
33,
9,
14,
4,
-2,
60,
28,
19,
0,
8,
24,
5,
-47,
37,
26,
-19,
57,
45,
4,
19,
6,
-34,
14,
66,
-36,
13,
-19,
-5,
26,
-5,
55,
19
] |
Per Curiam.
Defendant appeals by leave granted from the trial court’s order denying defendant’s motion for summary disposition and granting plaintiff’s motion for summary disposition because it ruled that MCL 445.1571; MSA 19.856(31) applied to the parties’ dealer agreement which was entered into before the effective date of that statute but terminated after its effective date. Plaintiff cross-appeals. We reverse the trial court’s order denying defendant’s motion for summary disposition and granting plaintiff’s motion. We affirm the trial court’s decision denying plaintiff’s cross-motion for summary disposition as to damages.
Plaintiff and defendant have entered into dealer franchise agreements since 1960 whereby plaintiff was a new car dealer for defendant’s Triumph automobiles. These agreements were renewed annually. In June of 1980, defendant notified plaintiff that, after December, 1981, Triumphs would no longer be manufactured for sale in the United States because sales were poor. Plaintiff and defendant’s last franchise agreement extended from January 1, 1981, to December 31, 1981. Plaintiff claims that the agreement was formally executed on July 14, 1981. Paragraph 36 of that agreement provided:
Upon termination of this Agreement by either party, or upon its expiration without renewal the Company will repurchase from the Dealer at the net price paid by the Dealer, less a deduction for any damage and less any rebates or allowances:
(a) All new and unused vehicles of the current or preceding model year bought from the Company;
(b) All new spare parts (see § 4) and special tools which were (i) purchased by the Dealer from the Company within the preceding twelve months, or (ii) included on any parts stocking list recommended to the Dealer by the Company;
(c) Signs carrying the names of Vehicle Lines, on the basis of a reasonable adjustment to the original price reflecting the period of use and current condition.
Proof may be required that any such property is owned by the Dealer and is free of liens or encumbrances, and matters may be settled directly with any lender holding a security interest in such property.
Defendant claimed that on August 27, 1981, its president wrote to all United States dealers, including plaintiff, and offered them two options: (1) to discontinue relations with defendant, after which defendant would repurchase all Triumph automobiles and all nonobsolete parts as well as inventory or (2) to continue as authorized parts and service dealers for Triumph for certain other incentives. Defendant claims that plaintiff never responded to this offer.
Even so, plaintiff continued to sell parts for and to service Triumphs. On October 12, 1982, plaintiff wrote defendant asking to terminate its relationship with defendant. On December 3, 1982, defendant’s counsel wrote to plaintiff and informed plaintiff that defendant accepted its termination notice, effective December 12, 1982, and agreed to repurchase parts pursuant to paragraph 36 of the 1981 dealership agreement and to repurchase its "inventory of stocking parts at current dealer prices less a 40% handling charge.” Defendant’s counsel’s letter further informed plaintiff that MCL 445.1571; MSA 19.856(31), which was passed after the 1981 dealership agreement became effective, did not apply because its application would alter the substantive provisions of that agreement.
MCL 445.1571; MSA 19.856(31) (hereinafter § 11) was given immediate effect by the Legislature on July 19, 1981, and provided:
(1) Upon the termination, cancellation, nonrenewal, or discontinuance of any dealer agreement, the new motor vehicle dealer shall be allowed fair and reasonable compensation by the manufacturer or distributor for the following:
(a) New current model year motor vehicle inventory purchased from the manufacturer or distributor, which has not been materially altered, substantially damaged, or driven for more than 300 miles.
(b) Supplies and parts inventory purchased from the manufacturer or distributor and listed in the manufacturer’s or distributor’s current parts catalog.
(c) Equipment, furnishings, and signs purchased from the manufacturer or distributor.
(d) Special tools purchased from the manufacturer or distributor within 3 years of the date of termination, cancellation, nonrenewal, or discontinuance.
(2) Upon the termination, cancellation, nonrenewal, or discontinuance of a dealer agreement by the manufacturer or distributor, the manufacturer or distributor shall also pay to the new motor vehicle dealer a sum equal to the current, fair rental value of his or her established place of business for a period of 1 year from the effective date of termination, cancellation, nonrenewal, or discontinuance, or the remainder of the lease, whichever is less. However, the payment required by this subsection shall not apply to any termination, cancellation, nonrenewal, or discontinuance made pursuant to section 10(c).
Section 11 was amended effective November 1, 1983.
On November 10, 1983, plaintiff filed suit against defendant, alleging that MCL 445.1571; MSA 19.856(31) applied. Defendant moved for summary disposition, alleging that plaintiff had failed to state a cause of action upon which relief could be granted because § 11 did not apply to agreements entered into before July 19, 1981. Moreover, defendant alleged that § 11 did not apply to plaintiff’s decision to service Triumphs and to sell Triumph parts in 1982 because there was no written contract between plaintiff and defendant concerning the sale of new motor vehicles. See MCL 445.1562; MSA 19.856(22). Plaintiff then moved for summary disposition claiming that § 11 applied to its 1981 agreement with defendant. Plaintiff further claimed that the Franchise Investment Law, MCL 445.1501 et seq.; MSA 19.854(1) et seq., applied to its 1982 sales of Triumph parts and servic ing of Triumphs. Plaintiff contends that defendant failed to comply with the Franchise Investment Law because it failed to file notice of its intention to offer for sale a parts and service franchise. MCL 445.1507a(1); MSA 19.854(7a)(1). In the alternative, plaintiff claimed that its 1981 franchise agreement was renewed by the parties’ conduct in 1982 and, therefore, § 11 applied. Defendant responded that the Franchise Investment Law did not apply because plaintiff had not raised the issue in its pleadings or moved to amend its complaint.
On September 17, 1985, plaintiff moved to amend its complaint to allege a violation of the Franchise Investment Law. The trial court issued its order and opinion on October 10, 1985. The court held that § 11 did apply to the parties’ 1981 agreement. The trial court declined to address plaintiff’s allegation that the Franchise Investment Law applied because plaintiff had not raised that issue in its pleadings and, therefore, that issue was not properly before the court. Finally, the court denied plaintiff’s motion for summary disposition as to damages because there was a genuine issue of material fact as to the amount of damages due. On January 31, 1986, plaintiff’s motion to amend its complaint was granted.
At the time the trial court heard the parties’ motions for summary disposition, there were conflicting United States District Court decisions on the issue of whether § 11 applied to agreements entered into before its effective date. In Dale Baker Oldsmobile, Inc v Fiat Motors of North America, No. G83-1045 CA 1 (WD Mich, Nov 2, 1984), Judge Douglas Hillman held that § 11 did not apply to dealer agreements entered into before its effective date but terminated thereafter; however, in Eastern Sport Car Sales, Inc v Fiat Motors of North America, No. 84-4738 (ED Mich, Jan 4, 1985) (order granting motion for summary judgment), Judge Robert DeMascio disagreed and applied § 11 to contracts executed before its effective date.
Because the federal court decisions conflicted, the trial court followed this Court’s decision in Anderson’s Vehicle Sales, Inc v OMC-Lincoln, 93 Mich App 404; 287 NW2d 247 (1979). In Anderson’s, the plaintiff and the defendant had a year-to-year dealer agreement which was terminable upon thirty days written notice. The defendant sent the plaintiff timely notice that its dealership agreement would be terminated on August 5, 1978. On July 11, 1978, the Legislature enacted a dealer agreement statute which required sixty days written notice and good cause for valid termination. The trial court held that the statute, which was effective immediately, did not apply to agreements entered into prior to its effective date. This Court reversed. This Court held that there was no retro-activity problem because the statute prohibited termination of the dealer agreement, not notice of termination, and, because the termination occurred after the statute became effective, the statute applied. Moreover, this Court held that the words of the statute (i.e., "[notwithstanding the terms, provisions, or conditions of a dealer agreement”) along with the language giving the statute immediate effect indicated the Legislature’s intent that the law have immediate effect. This Court also noted that the portion of the statute which required good cause for termination merely embodied a common law requirement for termination in slightly different language (i.e., "with good cause and in accordance with reasonable standards of fair dealing” compared to "good faith”). This Court further rejected the defendant’s claim that its contract rights would be destroyed, holding that the valid exercise of police powers does not impair the obligation of existing contracts because the Legislature may regulate potential inequities inherent in the economic relationship between manufacturers and dealers of motor vehicles.
Following the trial court’s order in this case, Judge Hillman’s decision in Dale Baker Oldsmobile, Inc, supra, was affirmed. Dale Baker Oldsmobile, Inc v Fiat Motors of North America, Inc, 794 F2d 213 (CA 6, 1986). In that case, the parties entered into a dealer agreement in 1980 and the defendant terminated the agreement on January 21, 1983, in accordance with the terms of the 1980 dealer agreement. Although the 1980 agreement contained provisions regarding the repurchasing of automobiles, parts, and equipment, the plaintiff claimed that § 11, as enacted on July 19, 1981, applied. Judge Hillman disagreed, finding Anderson’s distinguishable because § 11 of the 1981 act did not contain the language "[notwithstanding the terms, provisions, or conditions of a dealer agreement” even though other sections of the 1981 act did. Furthermore, Judge Hillman, relying on our Supreme Court’s decision in Karl v Bryant Air Conditioning Co, 416 Mich 558; 331 NW2d 456 (1982), held that § 11 would be applied retrospectively to the defendant if it was applied to the parties’ dealer agreement because it would create a new obligation or duty with respect to a transaction already past (i.e., execution of the dealer agreement.) We note that Karl was decided after Anderson’s.
As a general rule, statutes are presumed to apply prospectively only. Grogan v Manistique Papers, Inc, 154 Mich App 454, 458; 397 NW2d 825 (1986), lv den 428 Mich 885 (1987). In Karl, our Supreme Court decided whether the doctrine of comparative negligence applied to products liabil ity actions sounding in implied warranty and, if so, whether the doctrine of comparative negligence applied to an action filed before the enactment of the products liability comparative negligence statute but tried thereafter. In deciding the latter issue, the Court discussed four rules. First, the specific language of the statute must be reviewed to see if it contains language giving it retrospective or prospective effect. Second, even though a statute relates to an antecedent event, it need not be given retrospective effect. The Court noted that this second rule applies when the amount of entitlement under a statute is measured in part by services rendered under a prior statute; it does not apply in determining what, if any, changes may be made with respect to a cause of action begun under one rule of law by a subsequent statute. Karl, supra at 571. Third, a law is retrospective where it takes away or impairs vested rights acquired under existing laws or creates a new obligation and imposes a new duty or attaches a new disability with respect to transactions or considerations already past. Id. Fourth, a remedial or procedural act which does not destroy a vested right will be given effect even though the injury or claim is antecedent to the enactment of the statute. Id. The Court noted that these third and fourth rules both relate to retrospective application of new law to prior facts. Id. at 572. Retroactive application of a new law in the third situation is unacceptable whereas in the fourth situation it is acceptable. The Court noted that, where a new law interferes with express contractual rights or abolishes a cause of action, it should not be applied retrospectively. Id. at 572-575. On the other hand, a remedial or procedural statute may operate retrospectively if it does not take away vested rights. Id. at 575.
In Dale Baker, supra, the Sixth Circuit Court of Appeals, relying on Karl and cases discussed therein, noted:
[T]he statutes which are considered remedial, and thus retrospectively applicable, have affected procedural rights or rights incident to substantive rights. In this sense, remedial statutes involve procedural rights or change the procedures for effecting a remedy. They do not, however, create substantive rights that had no prior existence in law or contract. [Dale Baker Oldsmobile, Inc, supra at 217.]
The Court then discussed the rules outlined in Karl. The Court noted that the first two rules were inapplicable. Dale Baker, supra at 218. We agree.
The Sixth Circuit Court of Appeals then held:
There is no doubt that application of section 11 in this case would impose substantial new duties on defendant as well as giving plaintiff substantive rights, neither of which existed by law or contract. Under section 11, defendant would be required to pay plaintiff a sum equivalent to the current rental value of plaintiff’s place of business for one year, or, if there is a lease, the remainder of the lease, whichever is less. In addition, section 11 requires the defendant to purchase cars, parts, tools and signs under terms substantially different than those provided in the parties’ agreement.
Contrary to plaintiff’s argument, section 11 of the Motor Vehicle Act is remedial only in the sense that virtually all legislation is remedial; that is, the legislature has addressed what it perceives to be a problem and has attempted to resolve it. This kind of label is of no help, however, in determining the application of the statute. Rather, resort must be made to the more meaningful distinctions we have made above. The cases reveal that remedial, in this context, relates to procedural: statutes which determine the manner of effecting a remedy. We believe that section 11 falls squarely within the Michigan Supreme Court’s rule that retrospective application of a law is improper where the law "creates a new obligation and imposes a new duty, or attaches a new disability with respect to transactions or considerations already past.” In re Certified Questions [Karl], 416 Mich at 572; 331 NW2d 456. In accordance with the authorities discussed, we believe that the Michigan Supreme Court would so rule. [Id. at 219-220.]
See also Scuncio Motors, Inc v Subaru of New England, Inc, 715 F2d 10 (CA 1, 1983).
We note that the plaintiff in Dale Baker also argued that the defendant had no "vested” rights which were impaired by the application of § 11. In other words, because the defendant exercised its right to terminate only after the effective date of §11, that section applied. This argument appears to be the one made in Anderson's. The Sixth Circuit Court of Appeals rejected this argument, noting that the defendant’s contract rights became "vested” when the parties entered into the dealer agreement and that these contract rights were protected by Karl.
In addition, the plaintiff in Dale Baker claimed that § 11, when viewed in the context of the entire dealer-agreement statutory scheme, indicates the Legislature’s intent to apply that section retroactively. Again, the Sixth Circuit Court of Appeals rejected plaintiff’s argument, holding that the Legislature is presumed to be acquainted with rules of statutory construction and, therefore, its failure to state that the rule was to be retroactively applied indicated that the rule was to be prospectively applied. Id. at 220-221.
In this case, plaintiff argues that § 11 should be read in context with other sections of the dealer agreement statutory scheme which contain the phrase "[notwithstanding any agreement” and, therefore, applied retroactively to avoid chaos. We disagree. Like the Dale Baker court, we note that the Legislature is presumed to be familiar with rules of statutory construction. Ballog v Knight Newspapers, Inc, 381 Mich 527; 164 NW2d 19 (1969). Similarly, the Legislature is charged with knowledge of existing laws on the same subject when it promulgates new laws. See, e.g., People v Buckley, 302 Mich 12, 21; 4 NW2d 448 (1942). Here, Anderson's was decided in 1979, § 11 was passed in 1981. Moreover, the rules regarding retroactive and prospective application of statutes were well known even prior to Karl. Therefore, like the Dale Baker court, we reject plaintiffs claim that the Legislature intended § 11 to be retroactively applied.
Plaintiff also argues that § 11 merely refined the concept of fair dealing embodied in now-repealed MCL 445.521(g); MSA 19.856(1)(g), which provided:
"Fair dealing” means the duty of a party to a dealer agreement and all officers, employees, or agents of a party, to act in a fair and equitable manner toward each other so as to guarantee a party freedom from coercion, intimidation, or threats of coercion or intimidation from another party. Fair dealing includes recommendation, exposition, persuasion, argument, a request that a dealer agreement be performed, and advice that a dealer agreement is not being performed.
Now-repealed MCL 445.522(1); MSA 19.856(2)(1) provided:
Notwithstanding the terms, provisions, or conditions of a dealer agreement, the parties to the agreement, in performing, dealing, or complying with the terms, provisions, or conditions of a dealer agreement or in terminating, canceling, or failing to renew a dealer agreement, shall act with good cause and in accordance with reasonable standards of fair dealing.
We note that now-repealed MCL 445.532; MSA 19.856(12) allowed a dealer to sue for damages when its dealer agreement was terminated without good cause. No specific remedy was provided when the manufacturer or distributor terminated the dealer agreement with good cause. Hence, we reject plaintiffs argument that § 11 was merely intended to define fair dealing; instead, we believe that it imposed a specific duty upon manufacturers or distributors when the dealer agreement was terminated.
Having ruled that MCL 445.1571; MSA 19.856(31) does not apply to the parties’ dealer agreement, we need not address defendant’s claim that application of this statute to its agreement would violate the contract clause of the Michigan Constitution. Const 1963, art 1, § 10. J B Simpson, Inc v State Board of Tax Administration, 297 Mich 403, 407; 298 NW 81 (1941), cert den sub nom Brown v JB Simpson, Inc, 314 US 674; 62 S Ct 137; 86 L Ed 539 (1941). Moreover, the issue of whether the Franchise Investment Law applies to the parties’ relationship after December 31, 1981, is not preserved for appeal because that issue was never decided by the lower court given that plaintiffs request to amend its pleadings to raise that issue was granted only after the parties’ motions for summary disposition were heard. Behlen Mfg Co v Andries-Butler, Inc, 52 Mich App 317, 323; 217 NW2d 125 (1974). Finally, because we have held that MCL 445.1571; MSA 19.856(31) does not apply to the parties’ agreement and we have left it to the lower court to determine whether the Franchise Investment Law applies to this case, the trial court properly denied plaintiffs motion for summary disposition as to the issue of damages because there exists a genuine issue of material fact as to their amount.
The trial court’s order applying MCL 445.1571; MSA 19.856(31) to the parties’ dealer agreement is reversed. The trial court’s order denying plaintiff’s motion for summary disposition on the issue of damages is affirmed.
The Dale Baker Oldsmobile Inc v Fiat Motors of North America, Inc, 794 F2d 213 (CA 6, 1986) court rejected the holding in Anderson’s Vehicle Sales, Inc v OMC-Lincoln, 93 Mich App 404; 287 NW2d 247 (1979), finding that it believed that our Supreme Court would have ruled otherwise. Dale Baker, supra at 218. See also McAleer Buick-Pontiac Co v General Motors Corp, 95 Ill App 3d 111; 50 Ill Dec 500; 419 NE2d 608 (1981). | [
-12,
17,
-29,
19,
30,
24,
3,
14,
0,
36,
-26,
19,
-5,
48,
35,
8,
69,
42,
-15,
0,
-36,
-61,
0,
-11,
33,
-39,
4,
-36,
10,
68,
-29,
-35,
-16,
-39,
-32,
23,
-1,
69,
-4,
-17,
0,
2,
31,
30,
-34,
-24,
27,
-37,
66,
-22,
58,
17,
-27,
-41,
23,
1,
14,
-26,
-14,
65,
-26,
30,
30,
-10,
-45,
-23,
11,
20,
48,
-1,
-25,
6,
22,
24,
-9,
-24,
13,
46,
-1,
5,
29,
-40,
77,
-5,
-24,
99,
1,
8,
-35,
-33,
-41,
-9,
-14,
-17,
-22,
30,
44,
-48,
27,
-7,
-24,
-11,
-2,
50,
3,
-5,
-8,
-17,
14,
17,
19,
-3,
24,
-19,
7,
1,
-29,
-7,
35,
-20,
10,
-13,
11,
-3,
47,
-35,
36,
-55,
-45,
31,
-7,
-6,
39,
31,
78,
0,
0,
14,
-14,
13,
30,
42,
32,
-20,
36,
49,
26,
-51,
-19,
4,
-16,
3,
-16,
55,
28,
0,
-5,
6,
7,
-22,
19,
17,
30,
-5,
-21,
-21,
-39,
20,
-13,
4,
61,
13,
33,
-64,
13,
-1,
0,
13,
-23,
-16,
-41,
31,
8,
7,
-8,
-74,
-20,
31,
-54,
-8,
-7,
-27,
41,
17,
-4,
0,
15,
7,
-25,
29,
-32,
-46,
-3,
-10,
-17,
-13,
-19,
8,
1,
13,
-42,
-14,
28,
-68,
-16,
-3,
36,
47,
-11,
12,
13,
-15,
-20,
-5,
-45,
-3,
40,
-10,
53,
19,
-11,
60,
3,
49,
-43,
4,
-50,
-36,
38,
19,
4,
-30,
7,
-27,
-20,
19,
-40,
-6,
32,
-34,
4,
-13,
19,
-25,
-61,
-73,
-32,
25,
-2,
-13,
14,
72,
19,
-15,
-23,
8,
9,
3,
-2,
35,
-58,
-23,
-11,
-10,
-17,
-46,
-9,
27,
-3,
-34,
11,
-19,
16,
-46,
-47,
50,
42,
35,
-33,
-5,
-11,
33,
20,
-34,
17,
-34,
-23,
-39,
-28,
-11,
-27,
-62,
24,
12,
22,
-29,
-11,
-10,
-21,
8,
-40,
-36,
44,
-17,
1,
2,
10,
6,
23,
-14,
12,
46,
25,
54,
-5,
-41,
60,
-35,
-2,
-35,
23,
10,
-14,
-37,
18,
-24,
8,
22,
14,
48,
28,
20,
8,
10,
-23,
-11,
80,
-20,
13,
9,
-31,
-30,
-3,
-13,
4,
-16,
20,
-55,
-42,
28,
36,
-12,
6,
5,
7,
46,
28,
49,
-69,
54,
-29,
14,
-9,
19,
-34,
-62,
-21,
-3,
-48,
24,
-6,
-39,
24,
-49,
44,
6,
-18,
1,
0,
20,
-48,
-34,
-16,
0,
-42,
-23,
13,
1,
-16,
-6,
-5,
23,
-38,
-50,
-7,
-13,
72,
2,
10,
-14,
-29,
-15,
-16,
14,
-2,
-23,
49,
-66,
-40,
-16,
5,
-32,
-21,
-2,
25,
-59,
6,
8,
9,
38,
1,
9,
-5,
-52,
2,
30,
-34,
-14,
9,
36,
-49,
-39,
-57,
-32,
8,
2,
-33,
-27,
23,
7,
57,
-5,
10,
-17,
-5,
-1,
22,
25,
20,
-17,
26,
-76,
-5,
-15,
22,
-29,
17,
-40,
-2,
9,
-8,
56,
37,
26,
-8,
-16,
-34,
-25,
6,
-3,
-14,
28,
15,
2,
-50,
24,
-36,
27,
-2,
-40,
-4,
6,
-4,
16,
-32,
-4,
-19,
37,
0,
-31,
-36,
-61,
19,
31,
16,
11,
-42,
-46,
12,
27,
-20,
-12,
12,
29,
32,
-9,
-15,
61,
-14,
49,
5,
1,
-23,
-6,
10,
-23,
1,
30,
43,
-2,
-37,
12,
80,
-41,
19,
23,
-24,
-10,
-12,
-25,
-25,
31,
-56,
9,
-14,
-21,
14,
-34,
2,
9,
7,
-32,
18,
-28,
38,
0,
17,
16,
-20,
27,
-9,
21,
14,
19,
43,
-22,
7,
1,
37,
3,
-25,
25,
22,
17,
-15,
12,
46,
-17,
-48,
-47,
-46,
33,
0,
-23,
-32,
20,
24,
57,
28,
-42,
-43,
-40,
52,
0,
25,
17,
-8,
-24,
-9,
8,
4,
26,
-60,
0,
-35,
-24,
4,
27,
-19,
0,
15,
-15,
-52,
-18,
-6,
-12,
36,
12,
-6,
74,
-9,
10,
-35,
-20,
-20,
9,
9,
2,
19,
21,
21,
-11,
-31,
-2,
-20,
-9,
13,
67,
-40,
-56,
-15,
21,
19,
-61,
-7,
-36,
20,
5,
38,
5,
-69,
59,
31,
5,
-5,
71,
14,
-25,
-25,
-32,
-7,
-59,
-38,
-40,
37,
-40,
-18,
-6,
-11,
-13,
24,
36,
29,
29,
51,
52,
-33,
65,
-9,
46,
-34,
-14,
16,
-9,
-36,
4,
56,
-2,
38,
15,
-5,
22,
-18,
-36,
-33,
16,
13,
30,
0,
-44,
10,
74,
-25,
71,
-35,
23,
-72,
42,
40,
26,
-17,
-1,
-14,
-23,
-1,
52,
-20,
-4,
-9,
-100,
30,
-18,
-27,
-28,
-20,
69,
2,
-40,
0,
-26,
0,
18,
24,
-47,
-24,
20,
32,
-22,
-49,
-48,
3,
58,
37,
25,
6,
1,
-60,
18,
27,
1,
-15,
-27,
-25,
52,
9,
10,
22,
-27,
-33,
-5,
-13,
-10,
-31,
52,
15,
-24,
1,
-20,
51,
-45,
-7,
-2,
-8,
1,
-13,
-18,
20,
47,
36,
-72,
-52,
-13,
7,
25,
-28,
-35,
-4,
4,
51,
36,
40,
20,
12,
-6,
-5,
22,
35,
38,
25,
-56,
-15,
14,
-29,
71,
8,
-28,
15,
-8,
59,
-66,
3,
-63,
3,
-50,
49,
9,
-36,
14,
-11,
-30,
23,
-1,
-57,
31,
-27,
0,
-5,
-16,
-2,
27,
36,
-50,
21,
66,
-50,
16,
47,
-20,
17,
-50,
-45,
-15,
-12,
29,
33,
-8,
-25,
3,
0,
-21,
6,
-50,
-25,
25,
-9,
24,
-37,
-20,
20,
6,
-13,
16,
-43,
36,
30,
-33,
-33,
4,
65,
8,
-21,
-28,
-1,
60,
-24,
-22,
-5,
-33,
-12,
3,
14,
-35,
-26,
47,
-30,
-27,
29,
5,
-17,
38,
-7,
-63,
-51,
-34,
17,
3,
40,
19,
46,
-23,
-6,
10,
-11,
9,
30,
34,
21,
-3,
-66,
-19,
0,
-4,
12,
-28,
32,
-13,
-7,
7,
17,
34,
36,
-12,
-41,
-53,
24,
-5,
-27,
-29,
3,
16,
56,
33,
52,
-4,
18,
-24,
3,
-46,
-6,
-15,
-15,
12,
0,
2,
-1,
-68,
17,
42,
-14,
18,
-24,
12,
-6,
-12,
-23,
20,
-28,
23,
-31,
-9,
13,
13,
24,
-1,
19,
18,
30,
35,
-31,
32,
16,
-26,
9,
9,
-12,
-33,
41,
-18,
10,
68,
-8,
-29,
-51,
55,
28,
4,
-28,
26,
-35,
-12,
5,
-50,
37,
-2,
-10,
0,
7,
47,
20,
-4,
-18,
-27,
16,
-41,
-7,
3,
-18,
-23,
41,
15,
-38,
29,
22,
0,
8,
29,
-32,
28,
-2,
13,
15,
-11,
8,
-22
] |
Per Curiam.
On June 6, 1985, the Michigan Employment Security Commission Review Board upheld a referee’s determination that the claimants were not entitled to unemployment compensation benefits under the Michigan Employment Security Act, MCL 421.1 et seq.; MSA 17.501 et seq. The claimants’ application for a rehearing was denied. Claimants appealed to the circuit court. The circuit court reversed the Michigan Employment Security Commission Review Board’s denial of benefits to claimants. Respondent Howell Public Schools appeals as of right from the circuit court’s order reversing the order denying benefits to claimants.
The relevant facts in this case are not in dispute. Claimants were members of AFSCME Local 2652, which had a collective bargaining agreement with respondent Howell Public Schools. Claimants were either maintenance or custodial employees. The bargaining agreement provided that the claimants would work on an hourly basis for fifty-two weeks per year, not including personal vacation or holidays. Their work schedule included the days between Christmas and New Year’s Day, spring break, and summer vacation, when students normally are not in school.
Notice was given to claimants of a one-week layoff from December 26, 1982, through January 1, 1983. Claimants had never before been laid off by respondent during this period of time. This time period was not a customary, established holiday or vacation period under the collective bargaining agreement. However, it was a customary, established holiday period for the students. All claim ants worked the week prior to the week of layoff, had reasonable assurance of employment for the week after layoff, and all claimants returned to work immediately after the week of layoff.
Claimants applied for unemployment benefits for the one-week period of layoff. The claims were consolidated and the Michigan Employment Security Commission hearing referee denied claimants benefits because claimants’ unemployment occurred during an established and customary vacation or holiday under MCL 421.27(i)(2)(b); MSA 17.529(i)(2)(b). The Michigan Employment Security Commission Review Board upheld the referee’s determination. However, the circuit court reversed on the basis that a customary and established holidáy or vacation should be determined by the parties’ collective bargaining agreement rather than by the school system’s academic calendar.
The circuit court may reverse an order or decision of a referee or the Michigan Employment Security Commission Review Board if it finds that the order or decision is contrary to law or is not supported by competent, material, and substantial evidence on the whole record. MCL 421.38; MSA 17.540. The facts in this case are not contested. Therefore, this Court reviews the circuit court’s determination that the appeal board did not properly apply the law. Larkin v Bay City Public Schools, 89 Mich App 199, 203; 280 NW2d 483 (1979), lv den 406 Mich 979 (1979).
Section 27(i) of the Michigan Employment Security Act provided at the time of the claimants’ request for benefits as follows:
(i) Benefits based on service in employment described in section 42(8), (9), and (10) shall be payable in the same amount, on the same terms, and subject to the same conditions as compensation payable on the basis of other service subject to this act, except that:
(2) With respect to service performed in other than an instructional, research or principal administrative capacity for an educational institution other than an institution of higher education as defined in section 53(3), benefits shall not be paid based on those services for any week of unemployment beginning after December 31, 1977: (a) which commences during the period between two successive academic years or terms to any individual if such individual performs such service in the first of such academic years or terms and if there is a reasonable assurance that such individual will perform such service in the second of such academic years or terms; or (b) which commences during an established and customary vacation period or holiday recess if the individual performs such service in the period immediately before the vacation period or holiday recess, and there is a reasonable assurance that the individual will perform such service in the period immediately following the vacation or holiday recess. [MCL 421.27(0; MSA 17.529(0.]
The issue in the present case is whether claimants were unemployed during an established and customary vacation period or holiday recess under § 27(i)(2)(b) above. If so, claimants may not receive unemployment compensation because their unemployment occurred within a denial period. We believe that the circuit court correctly applied the law when it reversed the decision of the Michigan Employment Security Commission.
The circuit court correctly distinguished Larkin, supra, from the present case. In Larkin, a hall monitor who had never before worked during the school summer vacation period had her employment terminated as of June 7, 1975. Plaintiff was told that her services were not required for the 1975-76 school year. There is no mention in the Larkin decision of whether plaintiff had an employment contract or whether any such employment contract provided that she would be employed during the summer months. Plaintiff’s argument in Larkin was that her unemployment did not occur during a denial period because it did not fall between two successive academic years. Her unemployment did not fall between two successive academic years, plaintiff argued, because she was not going to have a 1975-76 academic year due to her unemployment. This Court rejected the argument that an academic year is defined by an individual’s particular circumstances. Larkin did not address the issue of whether an academic year under §27(i)(2)(a) could be defined by a collective bargaining agreement. Nor did Larkin address whether a layoff during a period when the employee had traditionally worked occurred during a denial period under § 27(i)(2)(b). In the present case, claimants had a collective bargaining agreement providing that they would work fifty-two weeks per year. In addition, the claimants had traditionally worked during the period that they were laid off. Therefore, Larkin does not address the issue in the present case.
The circuit court correctly applied Rogel v Taylor School Dist, 152 Mich App 418; 394 NW2d 32 (1986). Rogel was characterized by this Court as a case of first impression. In Rogel, there was a collective bargaining agreement for the nonteaching claimants to begin work on September 1, which was also the beginning date of the traditional school year. However, due to financial difficulties, the school district changed its calendar to reflect that the school year would begin on September 28. This Court noted that one of the rationales behind the denial periods of § 27(i) is that "school employees know of the seasonal layoff well in advance . . . and are not faced with the same 'economic crunch’ as those who are unpredictably laid off during the year.” Rogel, supra, p 424. The claimants in Rogel were laid off during a period when they had every reasonable expectation of working. They therefore suffered the economic crunch that unemployment compensation was meant to protect against. In addition, this Court noted that disqualification provisions are to be narrowly construed in favor of those involuntarily unemployed through no fault of their own. Therefore, this Court held that the claimants were entitled to unemployment compensation because their unemployment from September 1 to September 28 occurred during an academic year rather than between academic years.
As in Rogel, the claimants in the present case had every reasonable expectation of working between December 26 and January 1. Not only had claimants traditionally worked during that time period, but their collective bargaining agreement provided that they would work during that time period. We will not interpret the words "established and customary vacation period or holiday recess” in § 27(i)(2)(b) to mean those periods when students are not customarily in school. We do not believe that the Legislature intended to make unemployment benefits for nonteachers dependent on whether students were customarily in school during the unemployment period. Rather, a vacation period or holiday recess is established and customary when the employees in question do not traditionally work during that period and do not have a collective bargaining agreement to work during that period. Where, as in the present case, the claimants had both a tradition of working from December 26 through January 1 and a collec tive bargaining agreement to work for that period, then they had a reasonable expectation to work during that period. Thus, their layoffs did not occur during an established or customary vacation period under § 27(i)(2)(b), and they are entitled to unemployment benefits.
The order of the circuit court reversing the order of the Michigan Employment Security Commission is affirmed. | [
32,
-28,
-31,
45,
38,
24,
31,
-12,
-21,
46,
6,
-33,
58,
-25,
2,
-14,
14,
0,
-30,
19,
-40,
11,
23,
16,
-38,
-30,
41,
0,
-27,
22,
-101,
-12,
-2,
-56,
-10,
-45,
48,
-11,
5,
-11,
-11,
-20,
-6,
-26,
2,
-30,
5,
52,
28,
-24,
-15,
50,
-45,
-9,
37,
16,
-23,
-21,
-22,
29,
-31,
31,
63,
4,
33,
-14,
-17,
53,
-10,
-3,
0,
21,
-37,
4,
-4,
-14,
-9,
32,
-33,
24,
56,
-32,
16,
-37,
2,
-13,
11,
6,
-9,
1,
-81,
-12,
-41,
-40,
7,
21,
-20,
-8,
47,
0,
-10,
16,
-1,
1,
-28,
-18,
48,
-13,
-68,
60,
-11,
4,
24,
18,
3,
17,
35,
-3,
39,
8,
5,
22,
-16,
33,
24,
22,
-10,
-13,
-10,
3,
0,
8,
-7,
28,
-17,
44,
79,
-7,
-13,
-63,
-14,
25,
2,
-43,
-13,
-1,
17,
3,
24,
-18,
2,
-29,
-7,
18,
-30,
-1,
40,
0,
13,
-13,
3,
7,
14,
38,
-20,
-45,
0,
-7,
70,
-17,
-15,
-49,
25,
-14,
-10,
-26,
23,
19,
-14,
36,
-62,
-27,
-14,
-17,
-8,
-8,
-50,
-52,
31,
3,
8,
-17,
32,
-15,
-8,
17,
47,
9,
-46,
19,
-11,
11,
-13,
45,
-8,
-8,
54,
-3,
1,
44,
4,
3,
-32,
-38,
26,
-5,
30,
30,
25,
-28,
25,
35,
-4,
-5,
-7,
10,
-4,
-3,
69,
-6,
-8,
-18,
123,
-20,
18,
-14,
-31,
16,
79,
0,
10,
-39,
-12,
18,
-48,
-32,
-62,
-43,
53,
9,
3,
37,
8,
-12,
-17,
-44,
-51,
37,
-27,
18,
-20,
21,
19,
-17,
-16,
29,
-29,
54,
-39,
-39,
-6,
-2,
52,
-28,
1,
-41,
0,
-30,
95,
-14,
-22,
54,
-54,
8,
-58,
-9,
24,
-49,
-32,
1,
7,
-7,
21,
47,
34,
-57,
11,
11,
34,
47,
-26,
31,
0,
15,
-68,
12,
-53,
-71,
53,
-19,
18,
-32,
34,
-33,
32,
-73,
-30,
-23,
28,
-29,
-6,
7,
21,
43,
2,
3,
-4,
4,
-1,
-36,
13,
-30,
-31,
26,
53,
6,
-12,
30,
20,
9,
-8,
76,
63,
12,
-17,
-8,
42,
-15,
29,
-20,
23,
11,
18,
-5,
26,
64,
54,
-31,
-81,
27,
-1,
-7,
-30,
13,
-18,
68,
-17,
-9,
62,
-11,
-5,
-13,
51,
-4,
-47,
7,
2,
-5,
32,
30,
28,
-6,
33,
-48,
0,
-18,
-14,
39,
40,
-50,
-28,
-89,
-5,
5,
0,
63,
61,
-18,
-3,
11,
10,
-1,
0,
9,
37,
0,
4,
-56,
-48,
22,
-2,
-5,
-14,
3,
-29,
-22,
32,
5,
22,
-14,
43,
-10,
-58,
-23,
-35,
-6,
0,
36,
-19,
74,
-3,
11,
-1,
-42,
-59,
10,
-29,
-73,
-60,
-30,
-2,
4,
-18,
-42,
21,
2,
-28,
14,
-6,
37,
-25,
30,
-55,
16,
-48,
-16,
-6,
19,
-13,
-42,
-25,
-11,
-5,
22,
31,
-25,
-28,
17,
21,
16,
-8,
-10,
21,
65,
0,
-16,
-37,
-23,
0,
3,
7,
-22,
2,
-41,
-51,
12,
32,
36,
13,
21,
14,
0,
-30,
55,
-19,
9,
-11,
-25,
24,
27,
0,
-8,
26,
-51,
39,
-20,
-33,
-53,
-17,
-67,
11,
-34,
2,
57,
43,
8,
-35,
-7,
5,
-2,
-48,
-22,
-9,
-26,
-3,
8,
-73,
14,
-45,
21,
-5,
32,
91,
11,
45,
-46,
-5,
20,
-32,
-22,
-4,
-17,
-8,
77,
21,
7,
-6,
-21,
77,
5,
39,
-50,
-40,
-30,
-31,
38,
36,
11,
62,
-45,
-55,
20,
11,
41,
-34,
-1,
-13,
76,
12,
2,
-15,
11,
24,
6,
24,
54,
48,
-16,
-2,
13,
37,
52,
14,
-19,
25,
-68,
53,
-19,
21,
-3,
9,
-60,
-27,
21,
25,
0,
9,
2,
-17,
42,
31,
-4,
-71,
5,
-21,
-3,
-16,
68,
16,
0,
-29,
-1,
13,
-23,
-46,
-16,
19,
19,
47,
19,
24,
51,
8,
-3,
-56,
52,
22,
14,
-4,
-30,
-22,
27,
49,
-55,
-23,
-15,
31,
18,
-18,
15,
-19,
-2,
7,
39,
-13,
-49,
-48,
-10,
17,
-24,
-11,
67,
43,
-21,
-27,
-21,
0,
-6,
-20,
-66,
4,
29,
9,
9,
-7,
-18,
-15,
-53,
29,
-14,
18,
46,
47,
34,
46,
-10,
-6,
3,
11,
29,
-23,
-25,
-5,
42,
-14,
18,
22,
-13,
-16,
-41,
34,
55,
-3,
-4,
-21,
-69,
-21,
5,
-9,
-4,
-21,
65,
22,
-42,
-53,
35,
-25,
-19,
42,
52,
-40,
0,
-15,
10,
24,
10,
8,
-2,
-18,
10,
-45,
1,
-19,
-24,
5,
-8,
44,
-47,
4,
-4,
-9,
68,
-56,
-7,
4,
-10,
17,
50,
-10,
19,
100,
22,
-25,
-18,
-14,
28,
10,
-7,
-19,
-1,
-40,
-59,
-24,
49,
3,
-40,
-8,
-2,
-44,
47,
15,
-13,
5,
14,
26,
-38,
-19,
22,
63,
-34,
-7,
20,
19,
-8,
55,
-30,
-12,
-42,
-59,
-72,
-21,
23,
2,
-22,
-1,
-64,
-28,
-41,
2,
-15,
-34,
-29,
-37,
-58,
-9,
37,
12,
-27,
-7,
-35,
-28,
13,
-11,
38,
43,
-13,
-13,
-9,
34,
4,
2,
35,
-16,
22,
-20,
52,
-62,
55,
-19,
1,
55,
24,
-50,
-38,
49,
20,
-28,
3,
20,
10,
30,
31,
34,
54,
-4,
-10,
-17,
-35,
76,
1,
-3,
-42,
-12,
-46,
-32,
28,
-21,
27,
17,
-33,
-12,
-54,
-43,
76,
70,
-28,
0,
-35,
4,
-30,
-3,
-16,
-22,
31,
6,
47,
-37,
-35,
5,
6,
12,
-71,
22,
-1,
-52,
-22,
-27,
16,
0,
-39,
33,
-28,
63,
-88,
57,
-46,
6,
6,
31,
38,
37,
-22,
-55,
0,
21,
-11,
32,
-4,
-67,
-26,
25,
19,
-44,
-25,
-25,
34,
27,
-52,
-7,
25,
-43,
4,
-63,
-21,
36,
-4,
-43,
15,
-2,
-62,
-26,
-38,
5,
-104,
29,
-16,
8,
13,
-18,
-7,
30,
16,
-25,
-27,
58,
15,
10,
-27,
43,
-13,
-29,
6,
15,
-38,
-30,
-36,
-18,
12,
22,
-9,
4,
11,
43,
49,
46,
-31,
-35,
13,
-5,
-10,
-36,
20,
80,
61,
57,
-29,
14,
-66,
-43,
-21,
56,
-8,
-8,
-22,
1,
-21,
-4,
50,
13,
3,
1,
-60,
-25,
25,
18,
-6,
-21,
-30,
-77,
-34,
14,
16,
89,
-41,
-3,
-44,
-17,
-10,
43,
31,
60,
45,
0,
20,
0,
29,
29,
-9,
12,
61,
36,
-1,
3,
10,
79,
44,
-41,
-6,
-10,
6,
22,
-23,
-60,
11
] |
Meter, J.
Defendant appeals as of right from his conviction following a bench trial of four counts of making child sexually abusive material, MCL 750.145c(2). The trial court sentenced him as a second-offense habitual offender, MCL 769.10, to concurrent terms of ten to thirty years’ imprisonment. We affirm, but remand for the ministerial task of correcting the presentence investigation report.
The evidence presented at trial established that defendant took nude photographs of two fifteen-year-old girls with a digital camera in a studio located in defendant’s house. Testimony indicated that photographs were taken on two separate occasions: July 10 and July 20, 1999. At trial, the prosecution introduced four photographs, two of each girl, that were taken on July 20. The trial court found that these four photographs supported four convictions under MCL 750.145c(2).
Defendant first contends that the prosecutor presented insufficient evidence to sustain four convictions under MCL 750.145c(2). We disagree.
In reviewing the sufficiency of the evidence in a criminal case, this Court must review the evidence in the light most favorable to the prosecutor and determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 513-515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). This standard applies to bench trials. People v Legg, 197 Mich App 131, 132; 494 NW2d 797 (1992). This Court must resolve all evidentiary conflicts in favor of the prosecution. People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997).
MCL 750.145c(2) states:
A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child, or that person has not taken reasonable precautions to determine the age of the child.
MCL 750.145c(l)(h) states that “ ‘[c]hild sexually abusive activity’ means a child engaging in a listed sexual act.” Under MCL 750.145c(l)(e), a “listed sexual act” includes erotic nudity. MCL 750.145c(l)(d) defines “erotic nudity” as “the lascivious exhibition of the genital, pubic, or rectal area of any person.” MCL 750.145c(l)(d) further states that “[a]s used in this subdivision, ‘lascivious’ means wanton, lewd, and lustful and tending to produce voluptuous or lewd emotions.”
MCL 750.145c(l)(i) defines “child sexually abusive material” as
a developed or undeveloped photograph, film, slide, electronic visual image, computer diskette, or sound recording of a child engaging in a listed sexual act; a book, magazine, or other visual or print medium containing such a photograph, film, slide, electronic visual image, or sound recording; or any reproduction, copy, or print of such a photograph, film, slide, electronic visual image, book, magazine, other visual or print medium, or sound recording.
We first note that the felony complaint and information did not identify any specific dates on which the four crimes occurred; the documents simply indicated that the crimes occurred in “June/July 1999.” However, the prosecutor acknowledges that the photographs presented at trial derived from solely the second photography session on July 20, and the pros ecutor’s theory at trial was that those four photographs formed the basis for the four charged counts. In addition, the trial court explicitly relied on the four photographs to support its finding that defendant was guilty of the four charged counts; the trial court found that the four photographs constituted depictions of erotic nudity because of their lascivious nature. Therefore, the question becomes whether the four photographs, two of each victim, could support four convictions under MCL 750.145c(2), even though the four photographs were from one photography session on July 20, 1999.
Defendant contends that the evidence supported only two convictions, one corresponding to each girl, because the four photographs derived from a single photography session. In making this argument, defendant relies on People v Smith, 205 Mich App 69, 72-73; 517 NW2d 255 (1994), aff’d on other grounds 450 Mich 349; 537 NW2d 857 (1995), in which this Court, addressing the defendant’s four convictions under MCL 750.145c(2), stated:
However, we agree with defendant that the evidence presented by the prosecutor was scant with respect to the number of occasions on which this conduct occurred. Even viewing the evidence in the light most favorable to the prosecutor, we can conclude that defendant took more than one photograph, but only on one occasion. It cannot be discerned from the victim’s testimony exactly how many photographs were taken (she only refers to “pictures” in the plural) and the victim only specifically described one occasion on which defendant took photographs. Accordingly, while we conclude that the witness did give testimony sufficient to allow the conclusion by the jury that defendant committed one count of child sexually abusive activity, we cannot say that there was sufficient evidence to justify the conclusion that defendant committed four counts of child sexually abusive activity. Accordingly, we set aside three of defendant’s four convictions of child sexually abusive activity, leaving in place only one conviction and sentence for that offense.
Two years later, in People v Hack, 219 Mich App 299, 306-307; 556 NW2d 187 (1996), this Court stated in dicta:
In Smith, this Court determined that the defendant could only be convicted once for multiple photographs taken of the same victim at one time. Here, however, we are dealing with multiple acts committed against two victims. Accordingly, this Court’s opinion in Smith does not govern the outcome of this case.
At first blush, it appears that defendant is correct in arguing that the evidence in the instant case supported only two convictions under MCL 750.145c(2). On closer examination, however, we must reject defendant’s argument. Indeed, we do not believe that Hack set forth the correct interpretation of Smith. Contrary to the assertion in Hack, the Smith Court did not explicitly state that a “defendant could only be convicted once for multiple photographs taken of the same victim at one time.” See id. Indeed, in vacating three of the defendant’s convictions in Smith, this Court was swayed by the lack of evidentiary specificity with regard to the number of photographs. See Smith, supra at 72-73. The Smith panel may have been concerned, for example, that less than four photographs were taken or that certain of the photographs were not sufficiently lascivious to support a conviction under MCL 750.145c(2). In the instant case, by contrast, the prosecutor presented four photographs that the trial court specifically concluded were lascivious. In light of this evidence, we can discern no reason why defendant could not be convicted of four counts of “mak[ing] . . . child sexually abusive material” under MCL 750.145c(2). Indeed, defendant made four “photograph[s]” under MCL 750.145c(l)(i) and therefore could be convicted of four counts under the plain language of the relevant statutes. See People v Childs, 243 Mich App 360, 367; 622 NW2d 90 (2000) (unambiguous statutes must be enforced as written). Smith is sufficiently distinguishable from the instant case; no error occurred here with regard to the number of convictions.
Defendant additionally contends that the prosecutor presented insufficient evidence to support the trial court’s findings that defendant knew, had reason to know, or reasonably should have been expected to know the ages of the victims or failed to take reasonable precautions to determine their ages. Again, we disagree.
One victim testified that she told defendant at one of the two photography sessions that she was fifteen years old. According to this victim, defendant did not ask her for any identification before photographing her in the nude. The victim further stated that she did not see or hear defendant request identification from the other victim before taking nude photographs. The second victim testified that defendant did not ask either victim about their ages before taking photographs and that she never told defendant her age. She further testified that she signed a model release form indicating that she was over eighteen but did not sign the document until after the nude photographs were taken. She claimed that at defendant’s direction, she signed and backdated the document to make it appear that she had signed it before the photographs were taken. Another girl who accompanied the victims to the first photography session confirmed the second victim’s testimony regarding the backdating of the model release form.
Defendant testified that both victims signed release forms indicating that they were over eighteen; however, defendant could not find the form for one of the victims. Defendant additionally asserted that he took no nude photographs at the first photography session and that the victims promised to produce identification before any nude photography took place in the future. Defendant testified that at the second photography session, the victims told defendant that they forgot to bring identification, and defendant admitted that he proceeded to take nude photographs, regardless of the lack of identification, on the promise from the victims that they would supply identification within seven days.
Viewing this testimony in the light most favorable to the prosecutor, there was sufficient evidence for the jurors to conclude that defendant failed to take reasonable precautions to determine the age of the victims. No error occurred with regard to the sufficiency of the evidence.
Next, defendant contends that incorrect scoring occurred with regard to certain offense and prior record variables contained in the legislative sentencing guidelines. Defendant challenges the scoring of offense variable (ov) 10 (exploitation of a vulnerable victim), which was scored at ten points, ov 13 (continuing pattern of criminal behavior), which was scored at twenty-five points, and prior record variable (PRV) 7 (subsequent or concurrent felony convictions), which was scored at twenty points.
We initially note that in the trial court, defendant did not raise any issues before, during, or after sentencing regarding the scoring of the offense and prior record variables that are at issue on appeal. Moreover, defendant was sentenced within the range produced by the guidelines.
A party shall not raise on appeal an issue challenging the scoring of the sentencing guidelines or challenging the accuracy of information relied upon in determining a sentence that is within the appropriate guidelines sentence range unless the party has raised the issue at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the corut of appeals. [MCL 769.34(10); see also MCR 6.429(C).]
Therefore, the scoring issue is not properly presented for appeal. However, defendant also contends that his trial attorney rendered ineffective assistance of counsel by failing to challenge the scoring of the offense and prior record variables. Accordingly, appellate review of the scoring issue, as it relates to ineffective assistance of counsel, is appropriate.
To establish ineffective assistance of counsel, a defendant must show (1) that the attorney’s performance was objectively unreasonable in light of prevailing professional norms and (2) that, but for the attorney’s error or errors, a different outcome reasonably would have resulted. People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001). Defendant has not met this burden in the instant case, because, as will be noted, his offense and prior record variables were correctly scored. Counsel was not required to make a meritless objection to the scoring, see People v Gist, 188 Mich App 610, 613; 470 NW2d 475 (1991), and the failure to object was not objectively unreasonable and did not reasonably affect the outcome of the proceedings. Carbin, supra at 600.
Regarding ov 10, MCL 777.40(l)(b) dictates a score of ten points if “[t]he offender exploited a victim’s .. . youth . . . .” MCL 777.40(3)(b) states, “[e]xploit means to manipulate a victim for selfish or unethical purposes.” MCL 777.40(2) states that “[t]he mere existence of 1 or more factors described in subsection (1) does not automatically equate with victim vulnerability.” Defendant argues that despite the girls’ young ages in this case, there was no evidence that they were vulnerable or that he exploited them. He contends that the girls participated in the photography sessions without any coercion or exploitation on his part. We disagree. Indeed, the evidence presented at trial established that defendant manipulated the victims and took advantage of their vulnerability based on age. First, defendant paid the victims to pose nude, thereby dangling a financial reward in front of victims who defendant acknowledged were in need of money. Second, defendant took advantage of the vie tims’ youthful aspirations to become models. By using these two incentives, fame and fortune, defendant manipulated the minors into posing for lewd and lascivious photographs. No error occurred in the scoring of ov 10.
Regarding ov 13, MCL 777.43(l)(b) dictates a score of twenty-five points if “[t]he offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person.” MCL 777.43(2)(a) states that “[f]or determining the appropriate points under this variable, all crimes within a 5-year period, including the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction.” Defendant contends that because his previous conviction for delivery of a controlled substance to a minor was not a crime against a person but instead a controlled substance crime, it could not be considered under MCL 777.43(l)(b). We need not reach this issue. Indeed, the court nonetheless appropriately scored ov 13 at twenty-five points because of defendant’s four concurrent convictions under MCL 750.145c(2). No error occurred in the scoring of ov 13.
Regarding prv 7, MCL 777.57(l)(a) dictates a score of twenty points if “[t]he offender has 2 or more subsequent or concurrent convictions.” Defendant argues that because of his arguments regarding the sufficiency of the evidence and because he could be convicted of only two counts under MCL 750.145c(2) in this case, the proper score for prv 7 was ten points for “1 subsequent or concurrent conviction” under MCL 777.57(l)(b). Because we have upheld all four of defendant’s instant convictions, this argument is without merit. No error occurred in the scoring of prv 7.
Finally, defendant takes issue with certain information contained in the presentence investigation report (psir). At sentencing, defendant objected to references in the psir about his alleged involvement in nude photography with underage females other than the victims of the instant crimes. The court stated on the record that it was “not weighing that in sentencing.” Accordingly, the information about additional nude photography must be stricken from the psir. See People v Taylor, 146 Mich App 203, 205-206; 380 NW2d 47 (1985). However, because the trial court did not rely on the challenged information in sentencing defendant, resentencing is not required.
Defendant appears to challenge additional information (e.g., the allegation that he bought underwear from girls) contained in the psir but does not set forth a reasoned argument with regard to it. Indeed, it is apparent that defendant’s appellate argument is focused on the nude photography allegations about additional girls that the trial court disregarded. Accordingly, appellate review with regard to the possible additional challenges to the PSIR is inappropriate. Indeed, “[a] party may not merely state a position and then leave it to this Court to discover and rationalize the basis for the claim.” People v Griffin, 235 Mich App 27, 45; 597 NW2d 176 (1999).
Affirmed, but remanded for the ministerial task of correcting the presentence investigation report. We do not retain jurisdiction.
Our conclusion in this regard renders moot defendant’s argument that the trial court made insufficient factual findings to support convictions with regard to the first photography session.
Contrary to defendant’s contention, this case did not involve witness testimony that was so inherently implausible or so seriously impeached that it could not possibly be believed by a reasonable juror, as discussed in People v Lemmon, 456 Mich 625, 644; 576 NW2d 129 (1998).
The offenses here were committed in July 1999; therefore, this matter is controlled by the legislative sentencing guidelines. See People v Reynolds, 240 Mich App 250, 253; 611 NW2d 316 (2000).
Indeed, defendant indicates in his appellate brief that “[t]he court claimed that it would not take into consideration the challenged material.” The court made this claim solely with regard to the nude photography allegations and not to the additional allegations (e.g., the buying of underwear) that defendant appears to challenge on appeal.
Even if we did review the information in the psir about buying underwear, we would find no basis for relief. Indeed, with regard to this issue, defendant objected at sentencing to the statement about “offering to and on occasion purchasing underwear.” Defense counsel stated, “Mr. Harmon in his testimony denied that, and he denies that today.” The court responded:
Well, I — I accepted that testimony as true. I heard testimony under oath. I’m allowed to make reasonable inferences. ... I did not believe a great deal of what Mr. Harmon said. And I think there was sufficient evidence on the record, both direct evidence and reasonable one-step inferences, to justify what’s in the presentence report as to those items. So, I would leave that in there.
In objecting to the underwear information, defendant relied merely on his prior testimony at trial, and the court essentially indicated that it did not find this testimony believable but instead believed other testimony indicating that underwear buying did occur. Under these circumstances, no error requiring resentencing occurred. | [
28,
-5,
5,
41,
1,
-40,
-61,
-21,
-35,
5,
-10,
-24,
9,
-17,
44,
-31,
31,
11,
-16,
-40,
106,
4,
10,
15,
-32,
7,
42,
39,
-18,
-22,
-10,
16,
44,
-40,
-42,
8,
72,
-2,
38,
28,
64,
-32,
18,
-26,
-19,
-32,
40,
37,
26,
3,
30,
26,
34,
5,
-18,
-13,
33,
13,
50,
14,
-16,
46,
-5,
-26,
-3,
-62,
33,
-19,
-23,
-15,
14,
-28,
-41,
35,
19,
1,
-62,
13,
60,
80,
-2,
-1,
38,
30,
26,
-30,
11,
-35,
15,
-12,
0,
-23,
-64,
-46,
-22,
-12,
46,
-37,
32,
-36,
-27,
27,
3,
11,
-40,
6,
-34,
-6,
-28,
19,
25,
-11,
8,
3,
25,
-47,
1,
23,
15,
-25,
1,
50,
33,
4,
0,
-11,
19,
-26,
-8,
-27,
-59,
-15,
1,
-65,
-4,
5,
9,
15,
48,
36,
1,
16,
-34,
55,
-8,
31,
-78,
-2,
-4,
-5,
-2,
-38,
2,
42,
21,
-27,
-53,
-31,
-15,
-26,
12,
24,
-17,
11,
16,
-31,
-9,
22,
-7,
1,
26,
2,
30,
34,
20,
14,
1,
19,
29,
-42,
-49,
3,
29,
0,
-14,
-8,
-49,
-28,
-7,
-43,
-17,
29,
-59,
-53,
15,
-16,
26,
5,
15,
-24,
-35,
-47,
50,
0,
64,
-20,
-12,
-17,
-11,
-26,
-12,
11,
6,
-39,
-12,
-1,
19,
-3,
-40,
49,
-8,
-43,
22,
-35,
-44,
-12,
0,
13,
-16,
10,
-31,
43,
48,
-27,
-8,
25,
-56,
-2,
49,
34,
-4,
-37,
20,
-38,
62,
48,
-19,
1,
0,
-8,
21,
10,
-10,
7,
-52,
-7,
20,
-18,
-55,
22,
-27,
31,
9,
5,
-15,
28,
10,
40,
-63,
1,
-15,
-1,
-23,
-7,
-15,
-6,
-24,
14,
-29,
33,
13,
-2,
34,
-26,
-32,
-19,
-48,
37,
29,
-41,
16,
-13,
-20,
-19,
58,
-9,
-25,
-14,
-33,
6,
55,
-41,
-19,
-21,
17,
4,
48,
49,
-7,
24,
4,
0,
14,
12,
-4,
-8,
-3,
-34,
36,
31,
-3,
-25,
10,
-55,
-22,
-34,
72,
-55,
-11,
18,
-13,
0,
5,
-6,
-7,
24,
1,
-32,
-19,
38,
23,
3,
24,
-15,
-33,
7,
-14,
32,
-17,
-25,
43,
19,
88,
-8,
-52,
-21,
-16,
-29,
9,
-24,
50,
12,
-26,
-32,
28,
8,
0,
-11,
30,
37,
9,
-110,
-33,
27,
59,
-49,
52,
32,
41,
23,
-16,
11,
10,
2,
18,
-5,
8,
-26,
17,
-15,
-34,
35,
-33,
-23,
37,
-11,
5,
7,
56,
-44,
-28,
4,
72,
29,
-22,
5,
-2,
45,
-20,
-9,
-28,
45,
9,
31,
-5,
7,
8,
-70,
4,
-1,
25,
38,
65,
-38,
23,
7,
-11,
17,
70,
-53,
-32,
23,
-11,
-32,
5,
-16,
-35,
2,
0,
-5,
-35,
17,
-46,
22,
35,
12,
22,
-3,
51,
-13,
-20,
42,
0,
-35,
5,
38,
51,
-18,
-18,
-7,
-28,
-1,
0,
-21,
59,
-40,
-10,
-29,
3,
-15,
10,
-6,
18,
-8,
11,
16,
15,
28,
-27,
23,
49,
26,
-86,
-15,
36,
11,
-6,
-28,
12,
-19,
6,
-24,
-37,
71,
-7,
29,
-64,
36,
19,
27,
-31,
-48,
3,
17,
0,
11,
31,
39,
18,
-17,
14,
33,
-1,
-64,
-28,
-42,
15,
-31,
0,
32,
13,
-28,
43,
15,
-17,
-23,
-9,
-54,
-63,
0,
29,
-24,
12,
16,
26,
-18,
-20,
-29,
-14,
-1,
3,
10,
-19,
-8,
11,
8,
19,
-3,
-21,
23,
13,
21,
28,
-5,
-15,
16,
8,
6,
-31,
-48,
-67,
-42,
39,
-9,
44,
-33,
-34,
-18,
65,
-25,
65,
-11,
17,
-12,
-6,
39,
16,
39,
-16,
53,
11,
19,
-5,
-18,
-44,
-12,
3,
26,
40,
-29,
20,
-14,
9,
-27,
1,
-39,
-41,
-25,
-17,
-3,
35,
7,
-36,
-39,
20,
14,
5,
23,
-23,
-19,
34,
21,
-12,
0,
-4,
1,
-18,
-25,
-51,
-7,
-41,
-33,
6,
-21,
8,
43,
-61,
-6,
-6,
31,
-69,
-39,
-30,
28,
1,
-25,
-4,
3,
-12,
-12,
6,
21,
-46,
-9,
4,
37,
5,
0,
8,
-21,
2,
-21,
29,
-8,
7,
-49,
-34,
-16,
17,
14,
34,
-19,
-53,
36,
-2,
15,
-10,
0,
1,
-31,
-35,
-2,
-24,
22,
-25,
14,
-35,
-7,
26,
-35,
14,
-29,
59,
-46,
37,
74,
2,
23,
-6,
-31,
-22,
31,
21,
18,
25,
-22,
18,
11,
-14,
6,
-39,
68,
-26,
-4,
-25,
11,
-13,
-31,
19,
45,
25,
98,
22,
63,
-37,
-27,
-24,
-23,
-57,
-3,
-26,
9,
29,
12,
-15,
-39,
0,
30,
76,
-30,
7,
5,
6,
6,
6,
27,
-40,
52,
0,
47,
1,
-28,
-35,
-49,
5,
12,
46,
-66,
-1,
-32,
25,
4,
35,
23,
-4,
43,
49,
-11,
-63,
-20,
8,
15,
24,
-18,
-10,
-15,
41,
-34,
36,
-41,
-55,
-45,
-27,
13,
-45,
48,
-4,
2,
72,
-38,
40,
55,
-53,
9,
-29,
-5,
10,
-22,
-9,
53,
24,
27,
2,
49,
34,
40,
-35,
-2,
4,
-3,
46,
-8,
28,
-54,
-87,
51,
-28,
-81,
-4,
-7,
11,
23,
-29,
12,
12,
5,
-19,
-81,
-15,
-29,
53,
-12,
-56,
-10,
16,
15,
64,
-25,
13,
-25,
33,
32,
-1,
8,
-18,
1,
-19,
5,
-9,
32,
18,
12,
18,
-8,
21,
46,
8,
16,
46,
-8,
78,
-1,
-48,
-30,
18,
-8,
-14,
39,
50,
20,
-8,
41,
-30,
19,
-45,
29,
47,
-19,
11,
8,
-37,
-11,
13,
-12,
-9,
-16,
-40,
1,
-82,
52,
48,
-72,
60,
-54,
-10,
12,
-24,
-15,
-22,
-57,
-49,
26,
37,
-38,
-2,
8,
1,
8,
-1,
-31,
49,
39,
15,
35,
42,
-46,
16,
-10,
11,
-1,
-7,
31,
42,
82,
25,
-37,
10,
13,
27,
-66,
-7,
-3,
58,
93,
28,
5,
-36,
-77,
-57,
41,
-10,
-4,
9,
-39,
5,
5,
44,
-66,
56,
24,
-15,
-24,
-71,
28,
-32,
39,
-83,
1,
-11,
-23,
-28,
2,
-32,
-4,
-31,
24,
-12,
25,
-19,
7,
-15,
71,
-15,
21,
2,
-14,
1,
-9,
-31,
-19,
-13,
-16,
-22,
-21,
21,
-25,
-4,
2,
-24,
-40,
-37,
-50,
-26,
-52,
-48,
-5,
-20,
65,
-18,
-9,
41,
4,
42,
-17,
-14,
-35,
-6,
-29,
8,
-31,
-1,
53,
-23,
-20,
-11,
10,
41,
-20,
-76,
-21,
11,
-9,
49,
17,
-3,
-20,
17,
-17,
15,
13,
-23,
25,
16,
52
] |
Whitbeck, J.
Plaintiff Patrick Wysocki appeals as of right a jury verdict of no cause of action. Wysocki sued defendants, alleging negligent design and construction and premises liability after he suffered injuries when, while intoxicated, he broke through a deck railing and fell. The jury found that Wysocki was fifty percent or more at fault because of intoxication, barring his recovery under MCL 600.2955a. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
The parties have entered into a stipulated statement of facts for the purposes of this appeal, a practice that we strongly encourage and for which we commend them. We summarize those facts here. In mid-May of 1997, Wysocki was injured while on premises owned by Ruth Kivi and leased by David Felt. Wysocki’s injury involved a home deck and railing that was constructed in 1993 on those premises. Specifically, Wysocki was leaning on the railing, which had been constructed in 1993 by carpenter Mark Sutinen at the request of Kivi. Apparently, the railing gave way. At the time of the accident, Wysocki had a blood alcohol content of 0.21 percent.
Wysocki sued Kivi on a premises liability theory, Felt on a premises liability theoiy, and Sutinen on a negligence theory. The case went to trial in early August of 1999. Defendants proposed a jury instruction to the trial court, based on the intoxication statute. The intoxication statute reads as follows:
It is an absolute defense in an action for the death of an individual or for injury to a person or property that the individual upon whose death or injury the action is based had an impaired ability to function due to the influence of intoxicating liquor or a controlled substance, and as a result of that impaired ability, the individual was [fifty percent] or more the cause of the accident or event that resulted in the death or injury. If the individual described in this subsection was less than [fifty percent] the cause of the accident or event, an award of damages shall be reduced by that percentage.[ ]
The first question on the verdict form was “Did [Wysocki] have an impaired ability to function due to the consumption of alcohol?” The second question on the verdict form read, “Was [Wysocki’s] impaired ability due to the influence of intoxicating liquors [fifty percent] or more the cause of the accident that [Wysocki] claims resulted in his injury?” and “If your answer is yes, do not answer any further questions.” The jury answered “yes” to each of these questions and returned a no cause of action verdict. Wysocki now appeals.
H. EQUAL PROTECTION AND DUE PROCESS
A. OVERVIEW
The Equal Protection Clauses of the United States and Michigan Constitutions provide that no person shall be denied the equal protection of the law. In this regard, the Michigan and federal Equal Protection Clauses offer similar protection. This constitutional guarantee requires that persons similarly situated be treated alike. Indeed, this Court has held that the equal protection provisions of the federal and state constitutions are coextensive.
Conversely, however, the federal constitution does not require things that are different in fact or opinion to be treated in law as though they were the same. Stated differently, the courts have not interpreted the federal constitution to require “absolute equality.” Similarly, it is well established that the equal protection guarantee is not a source of substantive rights or liberties; rather, it is a measure of our constitutions’ tolerance of government classification schemes. We review due process claims similarly to equal protection claims.
B. STRICT SCRUTINY
When state legislation creates a classification scheme that is based on suspect factors, such as race, national origin, ethnicity or alienage, or that affects a fundamental interest, courts apply a high standard of review, labeled “strict scrutiny.” When courts review a statute under this strict standard, they uphold the statute only “if the state demonstrates that its classification scheme has been precisely tailored to serve a compelling governmental interest.” Courts have rarely sustained legislation under this standard of review. Justice Brennan, writing for the majority, laid out the rationale underlying the strict scrutiny analysis in Plyler v Doer:
Several formulations might explain our treatment of certain classifications as “suspect.” Some classifications are more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective. Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal. See McLaughlin v Florida, 379 US 184, 192; 85 S Ct 283; 13 L Ed 2d 222 (1964); Hirabayashi v United States, 320 US 81, 100; 63 S Ct 1375; 87 L Ed 1774 (1943). Finally, certain groups, indeed largely the same groups, have historically been “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” San Antonio Independent School Dist v Rodriguez, 411 US 1, 28; 93 S Ct 1278; 36 L Ed 2d 16 (1973); Graham v Richardson, 403 US 365, 372; 91 S Ct 1848; 29 L Ed 2d 534 (1971); see United States v Carolene Products Co, 304 US 144, 152-153, n 4; 58 S Ct 778; 82 L Ed 1234 (1938). The experience of our Nation has shown that prejudice may manifest itself in the treatment of some groups. Our response to that experience is reflected in the Equal Protection Clause of the Fourteenth Amendment. Legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of “class or caste” treatment that the Fourteenth Amendment was designed to abolish![ ]
C. THE “TRADITIONAL” OR “RATIONAL BASIS” TEST
The “traditional” or “rational basis” test represents the other polar extreme. Under this standard, courts will not strike down a statute if the classification scheme it creates is rationally related to a legitimate governmental purpose. Justice Stewart articulated the test in Dandridge v Williams:
If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” Lindsley v Natural Carbonic Gas Co, 220 US 61, 78; 31 S Ct 337; 55 L Ed 369 (1911). “The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.” Metropolis Theatre Co v City of Chicago, 228 US 61, 69-70; 33 S Ct 441; 57 L Ed 730 (1913). “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v Maryland, 366 US 420, 426; 81 S Ct 1101; 6 L Ed 2d 393 (1961)[ ]
In Michigan, courts have applied the rational basis test principally to economic and social legislation. Under the traditional or rational basis test, a classification will stand unless it is shown to be “essentially arbitrary.” Stated differently, one who attacks an enactment must show that it is “arbitrary and wholly unrelated in a rational way to the objective of the statute.” “Few statutes have been found so wanting in. ‘rationality’ as to fail to satisfy the ‘essentially arbitrary’ test.” Stated positively, the test is that courts must uphold a statutory classification where it is rationally related to a legitimate government purpose. The rational basis test “ ‘reflects the judiciary’s awareness that “it is up to legislatures, not courts, to decide on the wisdom and utility of legislation.” ’ ”
D. “HEIGHTENED” OR “INTERMEDIATE” SCRUTINY: THE “SUBSTANTIAL RELATIONSHIP” TEST
The Michigan Supreme Court has adopted the United States Supreme Court’s definition of “heightened” or “intermediate” scrutiny, which involves the “substantial relationship” test:
Under this level of scrutiny, there are two determinations that must be made. The first question is whether the classi fication serves an important governmental interest. The second question is whether the classification is substantially related to the achievement of the important governmental objective. Craig v Boren, 429 US 190, 197; 97 S Ct 451; 50 L Ed 2d 397 (1976), reh den 429 US 1124 (1977).[ ]
E. THE PRINCIPLES OF JUDICIAL DEFERENCE
There is almost universal agreement that the power of the Legislature is not without limits. “[T]hat those limits may not be mistaken, or forgotten, the Constitution is written.” And, as the Michigan Supreme Court stated in Manistee Bank, “[T]hat those limits not be exceeded, the courts are entrusted with the responsibility to review and the power to nullify legislative acts which are repugnant to the constitution.”
Nevertheless, courts are to use this authority sparingly. “[U]nder established rules of statutory construction, statutes are presumed constitutional, and courts have a duty to construe a statute as constitutional unless unconstitutionality is clearly apparent.” As the Michigan Supreme Court stated in Council of Organizations & Others for Education About Parochiaid, Inc v Governor, “When compelled to make a constitutional pronouncement, the court must do so with great circumspection and trepidation, with language carefully tailored to be no broader than that demanded by the particular facts of the case rendering such a pronouncement necessary.” Further:
The court will not go out of its way to test the operation of a law under every conceivable set of circumstances. The court can only determine the validity of an act in the light of the facts before it. Constitutional questions are not to be dealt with in the abstract.
Indeed, “[t]he party challenging the facial constitutionality of an act ‘must establish that no set of circumstances exists under which the [a]ct would be valid. The fact that the . . . [a]ct might operate unconstitutionally under some conceivable set of circumstances is insufficient. . . .’ ”
Thus, we should presume the intoxication statute to be constitutional unless its unconstitutionality is clearly apparent. Further, in ruling on this constitutional challenge, we should carefully tailor our language to the particular facts of this case. We are not to go out of our way to test the operation of the intoxication statute under every conceivable set of circumstances, nor are we to deal with the constitutional question in the abstract. Rather, we should recognize that the fact that the intoxication statute might operate unconstitutionally under some conceivable set of circumstances is insufficient.
IH. DUE PROCESS
A. WYSOCKTS POSITION
Wysocki argues that jury instructions based on the intoxication statute violate the Due Process Clauses of the United States and Michigan Constitutions. He contends that, in practical terms, applying the rules of comparative negligence to those who are less than fifty percent the cause of an accident, while applying the rules of contributory negligence to those who were fifty percent or more the cause of an accident, is arbitrary and capricious. In connection with his equal protection challenge, Wysocki argues that an intermediate level of scrutiny — the “substantial relationship” test — should be applied to tort recovery actions. He relies on a New Hampshire case, Carson v Mourer.
B. STANDARD OF REVIEW
We review the constitutionality of statutes de novo.
C. CARSON
We conclude that Wysocki’s reliance on Carson is misplaced. In that case, the court was dealing with a statute that required notice provisions and scrutiny of expert witnesses in medical malpractice actions. The New Hampshire Legislature adopted the law to combat the high costs of litigation in the medical malpractice system. However, the Court did not base its decision on the concept that recovery for injuries is a property right requiring due process protection. Instead, the court reasoned that the New Hampshire state constitution afforded the court latitude to offer more protection than the federal constitution, so the court applied an intermediate scrutiny test, rather than the traditional rational basis test. Further, the court stated that it routinely applied intermediate scrutiny to socioeconomic regulation as well.
However, Michigan’s Due Process Clause is construed only as broadly as the federal guarantee. Further, unlike New Hampshire courts, Michigan courts apply rational basis analysis to socioeconomic regulation. Therefore, we conclude that Wysocki’s claim is reviewable under the rational basis test in Michigan, regardless of the extra protection he may have been awarded had the tort been committed in New Hampshire. Therefore, the appropriate standard of review is under the rational basis test.
D. THE LEGISLATURE’S OBJECTIVE
Rather plainly, the intoxication statute sought to place more responsibility on intoxicated plaintiffs who are equally or more to blame for their injuries, therefore marking a shift toward personal responsibil ity envisioned by overall tort reform. This legislative intent is clear from the language of the statute itself, which bars recovery for some intoxicated plaintiffs and reduces recovery for other intoxicated plaintiffs.
The 1995 tort reform package was a series of bills that overhauled the tort system in Michigan. To this end, the Legislature enacted several laws that abolished joint and several liability, imposed damages caps on pain and suffering, and — in the intoxication statute — limited intoxicated plaintiffs’ recovery.
In deciding if the law is arbitrary or capricious, this Court uses the standards set down by the United States Supreme Court:
Arbitrary is: “[Without adequate determining principle . . . fixed or arrived at through an exercise of will or by caprice, without consideration or adjustment with reference to principles, circumstances, or significance . . . decisive but unreasoned.”
Capricious is: “[A]pt to change suddenly; freakish; whimsical; humorsome.”[ ]
Here, the Legislature did not act without consideration of principles or circumstances in enacting the intoxication statute. If a plaintiff is half or more at fault because of that plaintiff’s own voluntary intoxication, then shifting the burden from the defendant to the plaintiff who was at least or more responsible aligns with beneficial principles and societal circumstances.
E. DRAWING THE LINE
Wysocki argues that the difference between forty-nine percent and fifty percent is arbitrary. However, the Legislature cannot be restrained to using scientifically exact formulations of individual circumstances:
Regulation of an ordered society must sometimes, because of the nature of things, depend on numbers. We do not conceive it within our judicial competence to hold that four is discriminatory and six is not. Somewhere the municipal legislative authority must draw a numerical line albeit within reasonable limits.
In attempting to allocate fault to irresponsible drinkers, the Legislature set the number at fifty percent or more. We conclude that the Legislature drew the line within reasonable limits. Further, as we have already noted, statutes are presumed to be constitutional, and the burden is on a plaintiff to show that a statute is arbitrary and capricious. Wysocki has stated that the statute is arbitrary only because it is arbitrary to preclude recovery for those plaintiffs who are fifty percent or more at fault, while only reducing recovery for those who are less at fault. This Court need not address inadequately briefed issues:
It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position. The appellant himself must first adequately prime the pump; only then does the appellate well begin to flow.[ ]
In any event, we cannot say that the percentage limit was arbitrary, especially considering that the Legislature could have completely barred recovery for any type of intoxicated plaintiff by statutory enactment, and the limitation precluded recovery only for those intoxicated plaintiffs who were at least equally at fault for their injuries. The fifty percent limit is rationally related to the government interest of placing responsibility for tortious conduct by intoxicated or drug-affected persons directly on them. We conclude that the intoxication statute is not violative of due process and, therefore, that jury instructions based on the statute, rather than comparative negligence, were similarly not violative of due process.
F. THE STANDARD OF FAULT
Wysocki argues that due process requires a standard of fault to be used by the jury when deciding if plaintiff is entitled to damages. He asserts that this standard should be based on the conduct of a “reasonable person” in the same situation. He contends that the statutes encompassing the 1995 tort reform should be read together and that the other statutes enacted at that time required fault; therefore, he contends, the intoxication statute should be interpreted to require fault based on a negligence standard. He concludes that he should be bound only by comparative negligence principles. We do not agree.
Wysocki essentially contends that the only issue should be whether a plaintiff was comparatively negligent, regardless of legislative fiat. However, this Court has previously refused to consider this type of contention. In Thompson v Fitzpatrick, this Court held that the five percent limitation on damages reduction due to the plaintiffs failure to wear a seat belt during a collision was not violative of due process or equal protection. There, the plaintiffs damages were $250,000, half of which were caused when she was thrown from the vehicle because of her failure to wear a seat belt. However, MCL 257.710e limits reduction of damages caused by unbelted driver plaintiffs to five percent. The defendants argued that this limit was applicable only to cases where defendants attempted to limit damages on the basis of violation of the statute, rather than common-law comparative negligence. This Court held that the statute precluded any attempt for damages limitation at common law and that due process was not violated in denying the defendants the right to proceed under a common-law theory.
The seat belt law at issue in Thompson effectively abrogated common-law negligence in favor of the statutory provision. Here, Wysocki essentially contends that this Court should ignore its holding in Thompson and allow him to assert a claim at common law rather than following the plain language of the intoxication statute that specifically allows intoxication being fifty percent or more the cause of injuries to be an “absolute bar” to recovery. We decline to adopt such an approach and instead adhere to the reasoning of Thompson.
We note that Thompson also concluded that the seat belt statute did not violate due process or equal protection when it limited damages reduction to five percent, regardless of the amount of fault for a plaintiff’s injuries caused by his failure to wear a seat belt. In Ullery v Sobié, the trial court found that the plaintiff was sixty percent responsible for her injuries and that failure to wear a seat belt was about ten percent the cause of that sixty percent. This Court employed a rational basis test to determine that the statute did not violate due process. This Court also used a rational basis test to hold that the statute did not violate equal protection because there was a rational reason to differentiate between defendants who were sued by those wearing seat belts and those who were not.
The case here is analogous to Thompson and Ullery. In both of those cases, this Court upheld statutes that abrogated common-law comparative negligence: as a defense in the former, and as a cause of action in the latter. In those cases, this Court analyzed changes to the tort system as socioeconomic legislation using the rational basis test. In our view, imposing an absolute bar to recovery when Wysocki’s intoxication was fifty percent or more the cause of his injuries is rationally related to the legitimate government objective of allocating tort responsibility more heavily on those who are at fault. Therefore, we conclude that the jury instruction should not have considered fault and did not violate Wysocki’s due process rights.
Wysocki further argues that the statutes of the 1995 tort reform package are in pari materia and must be read together as one law. The goal of judicial interpretation of conflicting statutes is to determine and effectuate the intent of the Legislature. Therefore, Wysocki asserts that the intoxication statute should be interpreted to require only comparative fault. However, in our opinion, Wysocki wrongly identifies the topic about which the statutes are in pari materia.
The statutes are in pari materia; they relate to the same topic. However, that topic is the reduction of civil liability. The statutes should be read together to carry out the legislative intent to limit civil liability of some defendants under certain circumstances and to increase the significance of some plaintiffs’ actions under certain circumstances. While the enactments, for the most part, are indicative of a comparative fault system, rather clearly the Legislature intended to exclude intoxicated or drug-affected plaintiffs from that comparative fault system if their fault was more than fifty percent the cause of their injuries, in the same way as it excluded unbelted drivers from that system. We conclude, therefore, that Wysocki was not denied due process and that the intoxication statute cannot be interpreted in a manner that preserves his claim that jury instructions on the issue of fault should be limited to comparative fault.
IV. EQUAL PROTECTION
A. WYSOCKTS POSITION
Wysocki argues that jury instructions based on the intoxication statute violate the Equal Protection Clauses of the United States and Michigan Constitutions. He contends that there are two specific categories of similarly situated individuals, both of whom have the common element of having a diminished ability to react. According to Wysocki, the first category consists of those individuals who have a diminished ability to react because of the consumption of alcohol or drugs. He contends that the second category consists of those who have a diminished ability to react for whatever other reason (for example, distraction, physical tiredness, mental tiredness, or generally failing to use due care for their own safety). Wysocki argues that there is no legal reasoning “that can support the absolute defense in [the intoxication statute] as it pertains solely to those individuals who have a diminished ability to react due to alcohol or drugs, while other similarly situated claimants escape this same absolute defense.” As we have already noted, Wysocki argues that the “substantial relationship” test is the proper level of scrutiny.
B. LEGAL STANDARD
Wysocki asserts that his equal protection claim should be analyzed using the substantial relationship test because the right to recover for an injury is an important substantive right. Where no suspect class is involved, legislation must be sustained under an equal protection challenge if it is nonarbitrary and ration ally related to a legitimate government purpose. Intoxicated tortfeasors have not yet been identified as a suspect class and we doubt that they ever will be. Suspect classes are those that have been subjected to a history of purposeful unequal treatment, or have been relegated to a position of political powerlessness requiring protection. Intoxicated tortfeasors simply do not meet the classification requirements outlined by the United States Supreme Court. Therefore, in order to demand higher scrutiny, the law must interfere with a fundamental interest.
However, as we have already noted, a plaintiff in Michigan does not have a fundamental interest in existing remedies, regardless of New Hampshire law. Further, this Court has applied the rational basis test to determine whether comparative negligence principles can be abrogated statutorily without offending equal protection.
C. “SIMILARLY SITUATED”
As we have already noted, Wysocki argues that plaintiffs whose ability to function was impaired, and whose impairment was fifty percent or more the cause of their injuries, are similarly situated whether their impairment was due to alcohol or drugs or due to factors other than alcohol and drugs. Therefore, barring the former from recovery, according to Wysocki, violates equal protection. We do not agree.
We first observe that intoxicated persons are treated differently than sober persons in many circumstances. For example, MCL 29.54 specifically states, “A person shall not handle an explosive while under the influence of intoxicating liquor or narcotic,” while no similar provisions apply to sober persons. In another example, a sober driver who is involved in an automobile accident may be cited for a traffic offense, while an intoxicated driver who does the same act may be arrested for drunk driving. Therefore, it cannot be said that voluntarily intoxicated plaintiffs who are equally or more the cause of their injuries are situated similarly to sober plaintiffs. Further, assuming that the two groups were similar, intoxicated people are not a protected class. The equal protection claim would still fail under a rational basis test because the intoxication statute is reasonably related to a legitimate government interest: increasing the responsibility of intoxicated or drug-influenced tortfeasors by reducing or barring their recovery.
Equal protection does not require that people in different circumstances be treated the same. Indeed, there is case law to support the contention that those who voluntarily become intoxicated are not subject to the same protections as those whose infirmity is created by means beyond their control. When dealing with an intoxicated plaintiff who fell down the stairs at a tavern, the Michigan Supreme Court, before the advent of current liquor law, held:
[W]e have repeatedly held that one who is active in bringing about the intoxication may not recover for injuries resulting therefrom. The uniform holding in this jurisdiction has been that the civil damage provisions in the statute were for the benefit and protection of innocent parties only.[ ]
* * *
It would be doing violence to the [then current] statute to construe it as providing for the intoxicated person a right of action for an injury caused by himself.[ ]
We note that those who voluntarily become intoxicated have historically been considered to have put themselves, and others, at risk of injury. We further note that other jurisdictions have followed the reasoning that intoxicated persons should be limited or barred from recovery under state dramshop acts. We conclude that neither logic nor the law requires that plaintiff's whose ability to function was impaired, and whose impairment was fifty percent or more the cause of their injuries, be considered similarly situated whether their impairment was due to alcohol or drugs or due to factors other than alcohol and drugs.
Wysocki also argues, essentially, that forty-nine percent and fifty percent are “similarly situated” on the spectrum of comparative negligence. He fails to rec ognize that, inevitably, some degree of arbitrariness is required to facilitate efficient legislation. However, under the appropriate rational basis test, if any set of facts is known or can be reasonably conceived to validate the discrimination, then a rational basis for the legislation exists. A rationally based classification need not be precise in its classifications, nor is it void because it results in some unfairness.
It is certainly conceivable — indeed, it may be likely — that voluntarily intoxicated plaintiffs whose intoxication is fifty percent or more the cause of their injuries (in other words, whose intoxication was more the cause of the injuries than any other cause) may be deterred from intoxication and injury if they are barred from recovery. Therefore, while the precision with which the line is drawn may appear somewhat arbitrary, it is reasonably related to the legitimate government interest of allocating responsibility and preventing injury. It is thus not violative of equal protection.
V. THE STANDARD JURY INSTRUCTION: “A” VERSUS “THE” CAUSE
Wysocki asserts that the jury instruction based on the intoxication statute violates due process by using the term “the” instead of “a.” He notes that SJI2d 15.01, which contains the general definition of proximate cause, states:
When I use the words “proximate cause” I mean first, that the negligent conduct must have been a cause of plaintiff’s injury, and second, that the plaintiff’s injury must have been a natural and probable result of the negligent conduct.[ ]
Wysocki further notes that SJI2d 15.03 states:
There may be more than one proximate cause. To be a proximate cause, the claimed negligence need not be the only cause nor the last cause. A cause may be proximate although it and another cause act at the same time or in a combination to produce the occurrence.[ ]
By contrast, the actual jury verdict form at issue here mirrors the intoxication statute and refers only to “the” cause of the incident rather than “a” cause:
Was the Plaintiff’s impaired ability due to the influence of intoxicating liquors [fifty percent] or more the cause of the accident that the Plaintiff claims resulted in his injury .... If your answer is yes, do not answer any further questions.[ ]
This language tracks the language of the intoxication statute, which provides in part:
It is an absolute defense in an action for the death of an individual or for injury to a person or property that the individual upon whose death or injury the action is based had an impaired ability to function due to the influence of intoxicating liquor or a controlled substance, and as a result of that impaired ability, the individual was [fifty percent] or more the cause of the accident or event that resulted in the death or injury.[ ]
We first note that the standard jury instructions on which Wysocki relies are based on negligence arising under common-law comparative negligence principles rather than under statute. We conclude that the Legislature may, subject to rational basis scrutiny, abrogate common-law comparative negligence. Further, as we have already discussed, the intoxication statute does not violate equal protection or due process. Rather self-evidently, jury instructions based on that statute also withstand constitutional scrutiny. We further conclude that the jury instruction did not deny Wysocki due process or equal protection. The instruction was an exact reflection of the law, abrogating comparative negligence. Wysocki’s actions were wholly covered under the intoxication statute and, therefore, he was not entitled to the comparative negligence instructions.
IV. EIGHT TO JUEY TEIAL
Wysocki argues that he was denied his right to a jury trial because the jury was prevented from deciding further issues of fault after it determined him to be fifty percent or more the cause of his injuries. However,- as outlined above, further instructions regarding comparative fault were not required because, by operation of the intoxication statute, they were rendered moot. The intoxication statute abrogates common-law comparative negligence and bars any recovery by Wysocki. Regardless of the percentage of defendant’s negligence, if that percentage was under fifty percent the cause of Wysocki’s injuries, it is irrelevant under the intoxication statute. A defendant’s negligence would only be useful in determining proportional fault if a plaintiff’s intoxication was less than fifty percent the cause of the accident and the plaintiff was, therefore, allowed limited recovery under the intoxication statute.
Wysocki also argues that he was denied his right to a jury trial because the jury was not required to determine damages and comparative fault after initially deciding that he had no cause for recovery under the statute because of his intoxication. We disagree. We observe that Wysocki received a jury trial. The jury first determined that he was intoxicated and then at least fifty percent responsible for his injuries. We conclude that, necessarily, Wysocki had no damages and comparative fault was not an issue.
Affirmed.
MCL 600.2955a(l).
MCL 600.2955a(2)(b) defines “impaired ability to function due to the influence of intoxicating liquor or a controlled substance” as meaning that,
as a result of an individual drinking, ingesting, smoking, or otherwise consuming intoxicating liquor or a controlled substance, the individual’s senses are impaired to the point that the ability to react is diminished from what it would be had the individual not consumed liquor or a controlled substance. An individual is presumed under this section to have an impaired ability to function due to influence of intoxicating liquor or a controlled substance if, under the standard prescribed by section 625a of the Michigan vehicle code, Act No. 300 of the Public Acts of 1949, being section 257.625a of the Michigan Compiled Laws, a presumption would arise that the individual’s ability to operate a vehicle was impaired.
See US Const, Am XTV; Const 1963, art 1, § 2.
Doe v Dep’t of Social Services, 439 Mich 650, 670-671; 487 NW2d 166 (1992).
Royster Guano Co v Virginia, 253 US 412, 415; 40 S Ct 560; 64 L Ed 989 (1920); El Souri v Dep’t of Social Services, 429 Mich 203, 207; 414 NW2d 679 (1987).
Neal v Oakwood Hosp Corp, 226 Mich App 701, 716; 575 NW2d 68 (1997); People v McFall, 224 Mich App 403, 413; 569 NW2d 828 (1997).
Jefferson v Hackney, 406 US 535, 549; 92 S Ct 1724; 32 L Ed 2d 285 (1972); Reed v Reed, 404 US 71, 75; 92 S Ct 251; 30 L Ed 2d 225 (1971); Tigner v Texas, 310 US 141, 147; 60 S Ct 879; 84 L Ed 1124 (1940).
Doe, supra at 661, citing San Antonio Independent School Dist v Rodriguez, 411 US 1, 58; 93 S Ct 1278; 36 L Ed 2d 16 (1973) (Stewart, J., concurring).
Syntex Laboratories v Dep’t of Treasury, 233 Mich App 286, 292; 590 NW2d 612 (1998).
See American States Ins Co v Dep’t of Treasury, 220 Mich App 586, 592-594; 560 NW2d 644 (1996); see also Yick Wo v Hopkins, 118 US 356; 6 S Ct 1064; 30 L Ed 220 (1886); Strauder v West Virginia, 100 US 303; 25 L Ed 664 (1880); Bickel, The original understanding and the segregation decision, 69 Harv L R 1 (1955).
See Oyama v California, 332 US 633; 68 S Ct 269; 92 L Ed 249 (1948); American States, supra at 592-594.
See Nyquist v Mauclet, 432 US 1, 8, n 9; 97 S Ct 2120; 53 L Ed 2d 63 (1977); El Souri, supra; Chan v City of Troy, 220 Mich App 376, 378; 559 NW2d 374 (1996).
See Harper v Virginia Bd of Elections, 383 US 663, 672; 86 S Ct 1079; 16 L Ed 2d 169 (1966); Neal, supra at 717-718.
People v Pitts, 222 Mich App 260, 273; 564 NW2d 93 (1997).
Doe, supra at 662, citing Plyler v Doe, 457 US 202, 216-217; 102 S Ct 2382; 72 L Ed 2d 786 (1982).
Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975).
Plyler, supra at 216-217, n 14.
Dandridge v Williams, 397 US 471, 485; 90 S Ct 1153; 25 L Ed 2d 491 (1970).
See Manistee Bank, supra at 668.
Id., citing Lindsley, supra.
Smith v Employment Security Comm, 410 Mich 231, 271; 301 NW2d 285 (1981); see also In re Kasuba Estate, 401 Mich 560, 568-569; 258 NW2d 731 (1977); McAvoy v H B Sherman Co, 401 Mich 419, 453-454; 258 NW2d 414 (1977).
Manistee Bank, supra at 668.
Doe, supra at 662; American States, supra at 592.
American States, supra at 597, quoting Gronne v Abrams, 793 F2d 74, 77 (CA 2, 1986), quoting Ferguson v Skrupa, 372 US 726, 729; 83 S Ct 1028; 10 L Ed 2d 93 (1963).
Dep’t of Civil Rights ex rel Forton v Waterford Twp Dep’t of Parks & Recreation, 425 Mich 173, 191; 387 NW2d 821 (1986) (emphasis in the original).
Marburg v Madison, 5 US (1 Cranch) 137; 2 L Ed 60 (1803).
Manistee Bank, supra at 666.
Mahaffey v Attorney General, 222 Mich App 325, 344; 564 NW2d 104 (1997).
Council of Organizations & Others for Education About Parochiaid, Inc v Governor, 455 Mich 557, 568; 566 NW2d 208 (1997), citing United States v Raines, 362 US 17, 21; 80 S Ct 519; 4 L Ed 2d 524 (1960).
General Motors Corp v Attorney General, 294 Mich 558, 568; 293 NW 751 (1940).
Council of Organizations, supra at 568, quoting United, States v Salerno, 481 US 739, 745; 107 S Ct 2095; 95 L Ed 2d 697 (1987).
Carson v Mourer, 120 NH 925, 929-930; 424 A2d 825 (1980).
Blank v Dep’t of Corrections, 462 Mich 103, 112; 611 NW2d 530 (2000).
Carson, supra at 930.
Id.
Id. at 932.
Syntex Laboratories, supra at 290.
Stegeman v Ann Arbor, 213 Mich App 487, 492; 540 NW2d 724 (1995); see also Odonnell v State Farm Mut Automobile Ins Co, 404 Mich 524, 552; 273 NW2d 829 (1979) (challenged statute must he upheld if it is not arbitrary and is rationally related to a legitimate state interest).
See 1995 PA 249, effective March 28, 1996; 1995 PA 161, effective March 28, 1996.
United States v Carmack, 329 US 230, 243; 67 S Ct 252, 258; 91 L Ed 209 (1946); see also Williams v Martimucci, 88 Mich App 198, 201; 276 NW2d 876 (1979).
Alexander v Detroit, 45 Mich App 7, 12; 205 NW2d 819 (1973).
People v Sleet, 193 Mich App 604, 607; 484 NW2d 757 (1992).
Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
Thompson v Fitzpatrick, 199 Mich App 5, 6-7; 501 NW2d 172 (1993).
Id. at 6.
Id.
Id.
Id. at 6-7.
Ullery v Sobie, 196 Mich App 76; 492 NW2d 739 (1992).
Id. at 78-79.
Id. at 80-81.
Id. at 81.
People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998).
People v Morey, 461 Mich 325, 329-330; 603 NW2d 250 (1999).
In re Parole of Franciosi, 231 Mich App 607, 613-614; 586 NW2d 542 (1998).
San Antonio Independent School Dist, supra at 28.
Sleet, supra at 605-606.
Uttery, supra at 81.
MCL 257.625.
Other possible legitimate government interests of legislation similar to that at hand may include discouraging illegal drug use, see People v Hunter, 90 Mich App 1, 3; 282 NW2d 218 (1979), and encouraging temperance, see People v Hoy, 380 Mich 597, 604; 158 NW2d 436 (1968).
Weeks v Bd of Trustees, Detroit Retirement System, 160 Mich App 81, 86-87; 408 NW2d 109 (1987).
Malone v Lambrecht, 305 Mich 58, 60; 8 NW2d 910 (1943).
Id. at 62.
See, generally, Reget v Bell, 77 Ill 593 (1875); Engleken v Hilger, 43 Iowa 563 (1876); Sworski ti Colman, 204 Minn 474; 283 NW 778 (1939), overruled on other grounds Strobel v Chicago, R I & P R Co, 255 Minn 201; 96 NW2d 195 (1959).
Alexander, supra at 12.
Crego v Coleman, 463 Mich 248, 259-260; 615 NW2d 218 (2000).
Id. at 260.
Emphasis supplied.
Emphasis supplied.
Emphasis supplied.
MCL 600.2955a(1) (emphasis supplied). | [
-41,
26,
-46,
-32,
18,
-21,
26,
33,
-10,
55,
-36,
-38,
26,
-21,
28,
-15,
-26,
23,
-32,
6,
82,
-60,
-24,
15,
-34,
-18,
-34,
-4,
29,
-20,
36,
-6,
-24,
-12,
-27,
33,
3,
-15,
-22,
36,
48,
70,
10,
29,
-8,
5,
-41,
-60,
9,
-5,
0,
-14,
44,
-19,
32,
7,
23,
76,
4,
19,
-14,
-5,
4,
-24,
42,
0,
11,
-31,
-48,
-26,
-39,
39,
-52,
27,
-48,
89,
-11,
101,
7,
28,
-55,
15,
17,
49,
-63,
-21,
-40,
-55,
0,
-14,
22,
1,
-21,
26,
-55,
7,
-18,
-15,
-7,
36,
-7,
7,
7,
-18,
-51,
-23,
10,
-34,
-44,
-35,
-47,
53,
51,
46,
12,
-59,
29,
16,
-60,
28,
22,
37,
63,
-32,
-13,
-19,
27,
7,
-54,
-2,
29,
2,
-14,
-30,
-38,
27,
-53,
49,
26,
0,
32,
44,
2,
-26,
39,
23,
10,
7,
-6,
-19,
0,
29,
-23,
-15,
0,
-9,
-12,
-12,
-29,
-19,
-16,
-27,
30,
-24,
8,
-30,
14,
24,
-11,
-2,
49,
-23,
21,
-10,
56,
4,
64,
-49,
-51,
-10,
-29,
18,
30,
33,
18,
-13,
-42,
-11,
20,
52,
34,
22,
-89,
-15,
-8,
11,
19,
87,
41,
-27,
-18,
28,
-7,
-65,
32,
22,
-49,
6,
41,
-71,
47,
-42,
-25,
-44,
8,
-42,
-18,
-19,
-11,
-43,
-19,
0,
11,
17,
-46,
0,
-21,
-16,
-6,
-5,
12,
0,
15,
-11,
-9,
-62,
-9,
0,
31,
-35,
16,
66,
-47,
-10,
4,
-33,
-37,
33,
-2,
-17,
-7,
-1,
-19,
-50,
-12,
-27,
9,
-41,
-53,
11,
-35,
40,
2,
31,
-31,
57,
59,
17,
-42,
-7,
-30,
42,
21,
12,
-22,
-19,
-46,
24,
19,
41,
16,
9,
88,
19,
-92,
17,
7,
28,
-17,
0,
42,
-1,
-19,
-11,
47,
-2,
-20,
0,
14,
2,
13,
-35,
26,
51,
-30,
21,
0,
12,
-2,
-2,
-18,
-46,
8,
6,
45,
17,
6,
10,
6,
-65,
-46,
-31,
-21,
-48,
7,
-57,
20,
-38,
5,
11,
-20,
-9,
-3,
28,
-32,
0,
76,
-27,
-26,
36,
1,
-32,
27,
-44,
-10,
20,
1,
34,
23,
-18,
-38,
32,
28,
-61,
-36,
11,
-7,
3,
42,
14,
15,
-39,
-18,
61,
37,
-31,
10,
0,
-71,
14,
12,
26,
2,
-45,
11,
-28,
-22,
61,
-19,
31,
48,
8,
81,
-29,
1,
4,
-17,
-38,
-36,
27,
-35,
23,
32,
0,
-72,
51,
-55,
24,
24,
-43,
10,
-20,
37,
9,
-31,
-58,
-11,
-10,
33,
-9,
-26,
12,
48,
-22,
-6,
21,
23,
-50,
-6,
3,
31,
-14,
4,
-9,
18,
-20,
-26,
39,
10,
-71,
-22,
-3,
-8,
26,
-4,
-36,
-25,
21,
19,
-19,
-47,
-55,
-2,
-14,
8,
22,
-31,
17,
6,
-24,
0,
-16,
23,
1,
25,
27,
27,
-24,
16,
9,
8,
-42,
25,
-17,
69,
-12,
-62,
-24,
40,
-41,
2,
-14,
-28,
-7,
-33,
1,
-10,
46,
-11,
-22,
-3,
46,
37,
-3,
-18,
-11,
31,
-32,
-25,
-25,
20,
4,
8,
-4,
-64,
-40,
-32,
47,
-33,
-68,
-68,
-15,
-60,
-26,
13,
-48,
37,
29,
32,
48,
-36,
7,
-10,
15,
-21,
-7,
-4,
-37,
-9,
-48,
-2,
-33,
-38,
15,
-45,
-62,
20,
-34,
-48,
-82,
1,
-71,
21,
-4,
31,
8,
34,
-31,
7,
31,
-1,
6,
-9,
39,
35,
7,
0,
1,
32,
90,
-18,
-6,
-25,
46,
13,
2,
22,
-34,
-6,
-33,
11,
-7,
-5,
4,
11,
-19,
9,
-12,
46,
17,
-15,
13,
-17,
-53,
-60,
-26,
3,
22,
-45,
-1,
20,
8,
9,
20,
-15,
24,
41,
4,
-44,
-5,
-29,
56,
11,
-10,
32,
-38,
2,
-11,
-33,
-8,
12,
23,
1,
4,
-5,
0,
34,
20,
14,
7,
51,
-5,
-31,
-17,
-20,
12,
19,
-5,
-39,
45,
17,
63,
-37,
35,
-21,
68,
9,
-3,
-17,
-8,
-2,
-17,
-37,
-52,
3,
21,
-46,
31,
-10,
-29,
-19,
-16,
-12,
-1,
-31,
-14,
-16,
55,
-38,
-45,
-39,
5,
-35,
8,
-39,
-33,
-35,
49,
-22,
-9,
-13,
39,
2,
27,
11,
42,
13,
-41,
-30,
10,
3,
49,
-9,
36,
12,
25,
-32,
13,
-31,
42,
-9,
-76,
79,
-23,
29,
-7,
3,
-30,
75,
-15,
-43,
48,
22,
-11,
11,
65,
14,
-3,
8,
6,
19,
-10,
5,
52,
5,
29,
40,
-60,
-59,
-11,
-6,
72,
-12,
-3,
20,
24,
-7,
-32,
2,
29,
-28,
-55,
42,
-53,
1,
12,
-30,
10,
44,
-24,
-8,
-44,
-10,
27,
-9,
-12,
-42,
-25,
38,
-5,
3,
-5,
-6,
-44,
3,
-21,
13,
40,
40,
-29,
-59,
24,
-7,
6,
20,
22,
49,
-48,
-28,
1,
-16,
-25,
1,
22,
-44,
37,
29,
28,
73,
3,
-50,
33,
-3,
-17,
-46,
85,
-17,
-48,
6,
-11,
-5,
3,
-18,
-4,
-7,
15,
-33,
-43,
21,
18,
-39,
6,
-2,
46,
18,
-27,
17,
21,
48,
-29,
41,
-16,
-6,
2,
18,
-6,
38,
-20,
9,
4,
30,
-11,
25,
-5,
-20,
27,
10,
-28,
8,
25,
0,
46,
-41,
17,
-1,
0,
6,
6,
23,
-5,
-59,
-27,
-13,
39,
48,
-16,
24,
2,
-13,
-41,
14,
34,
-12,
87,
30,
-9,
6,
-10,
-36,
15,
41,
-2,
0,
-2,
-19,
5,
-43,
55,
0,
7,
5,
-18,
21,
-7,
-49,
-17,
-5,
18,
-56,
51,
40,
2,
-18,
45,
-22,
39,
-41,
-32,
-15,
22,
40,
9,
-6,
-2,
-22,
-1,
-10,
-1,
30,
16,
60,
67,
20,
5,
-40,
7,
26,
19,
22,
-20,
13,
42,
18,
4,
8,
-58,
21,
3,
-21,
-53,
-1,
-27,
22,
30,
17,
22,
-62,
27,
-39,
12,
-30,
16,
13,
-17,
-46,
11,
59,
8,
-36,
41,
-53,
-24,
3,
30,
-45,
-34,
-10,
-44,
-16,
-47,
35,
15,
14,
86,
-33,
-29,
-6,
2,
7,
19,
-14,
-4,
-9,
25,
6,
-2,
-1,
41,
-63,
5,
23,
37,
-48,
39,
26,
1,
44,
-7,
8,
21,
-18,
-17,
38,
-13,
-8,
-3,
15,
21,
-27,
8,
5,
9,
11,
-53,
-11,
-8,
-3,
-2,
-17,
8,
-51,
-33,
-11,
64,
-40,
19,
-10,
8,
0,
62,
62,
14,
-42,
20,
56,
22,
28,
65,
-27,
-36,
-19,
-29,
44,
-23,
11,
25,
2,
-25,
-31,
38,
20,
30,
52,
12
] |
Per Curiam.
Petitioners filed this original action pursuant to MCL 45.505(5), seeking to set aside an apportionment plan adopted by the Wayne County Apportionment Commission (respondent) on June 8, 2001, and further seeking an order compelling respondent on remand to adopt a plan known as the Price plan. The Price plan was submitted to respondent on June 8, 2001, by petitioner Shannon G. Price before adoption of the plan currently being challenged. Pursuant to MCR 7.206(D)(3) we grant peremptory relief, vacate the apportionment plan adopted by respondent, and remand for adoption of a new plan.
Wayne County is a charter county, as authorized by MCL 45.501 et seq., 1966 PA 293. Under the county charter there are fifteen county commissioner districts. Following publication of the 2000 census figures, respondent met on several occasions and considered several apportionment plans. At a meeting on June 8, 2001, respondent considered the Price plan, the Montgomery plan, and a revised staff plan. By a 3-1 vote the respondent adopted the Montgomery plan. Among other things, respondent considered the population divergence of the plans, existing political boundaries, minority voting, distinct neighborhoods and communities, and a planned new housing project.
The adopted (Montgomery) plan has a total population divergence of 9.05 percent. The adopted plan divides no townships. Only the cities of Detroit and Livonia are divided under the plan. Those are the same two municipalities divided by the previous, 1992 plan.
According to the 2000 census, Wayne County has a population of 2,061,162 people. Fifteen districts with perfectly equal population would each have 137,411 people. Under the adopted plan district 11 had the greatest number of people, 145,952, or 8,541 persons more than an ideal district, while district 7 had the smallest number of people, 133,516 people, or 3,895 fewer than the ideal. District 11 had a deviation of 6.22 percent, and district 7 had a deviation of 2.83 percent. Combining those two deviations yields a maximum deviation of 9.05 percent.
MCL 45.505(5) requires this Court “to determine if the plan meets the requirements of the law of this state.” Apportionment of Wayne Co Bd of Comm’rs— 1982, 413 Mich 224, 265; 321 NW2d 615 (1982). The apportionment process is “primarily a political and legislative process,” and a reviewing court should allow the political institutions latitude for exercising their judgment. In re Apportionment of Clinton Co— 1991 (After Remand), 193 Mich App 231, 236; 483 NW2d 448 (1992), quoting from Gaffney v Cummings, 412 US 735, 747; 99 S Ct 2321; 37 L Ed 2d 298 (1973). “A reasonable choice in the reasoned exercise of judgment should ordinarily be sustained.” Wayne Co Apportionment — 1982, supra at 264; Clinton Co Apportionment — 1991 (After Remand), supra at 237. This Court’s review is not to determine what is the “best plan.” Id. at 236.
Although the adopted plan’s 9.05 percent population divergence is comfortably less than the 11.9 percent allowed by ABATE v Mundt, 403 US 182; 91 S Ct 1904; 29 L Ed 2d 399 (1971), which was adopted by our Supreme Court in Wayne Co Apportionment— 1982 as the “range of allowable divergence under the federal constitution,” 413 Mich 263, the population of district 11 is 106.2 percent of the ideal. This deviation is greater than that allowed by the requirement that commissioner districts be “as equal in population as practicable.” MCL 45.505(2).
Wayne Co Apportionment — 1982 not only concluded that 11.9 percent was the allowable divergence (on the basis of ABATE v Mundt), but also described that range of divergence as “94.05% to 105.95%.” 413 Mich 256-263. These percentages represent an equidistant range of 5.95 percent above and below perfect equality. We note that the Supreme Court described this equidistant range parenthetically and without discussion and that ABATE v Mundt did not adhere to such a range. In addition, we find no express statutory language compelling an equidistant range. However, we cannot ignore the clear language and direction of our Supreme Court. The Court similarly referred to an equidistant range in the legislative apportionment case of In re Apportionment of State Legislature — 1982, 413 Mich 96, 141-142; 321 NW2d 565 (1982). We therefore conclude that for respondent’s apportionment plan to be valid it must not only satisfy the 11.9 percent divergence figure, but the divergence of each district must fall within the range of 94.05 percent to 105.95 percent. In other words, no district can depart from perfect equality by more than 5.95 percent,
In the instant case, a range of 94.05 percent to 105.95 percent translates into population limits of 129,235 people and 145,587 people. District ll’s population of 145,952 people exceeds the maximum limit by 365 people. Therefore, the adopted plan cannot be sustained. Wayne Co Apportionment — 1982, supra at 256, 263.
Petitioners also contend that in the event this Court invalidates the apportionment plan adopted by re spondent this Court should direct respondent on remand to adopt the Price plan. We disagree. Because reapportionment includes “fundamental choice about the nature of representation” in what is “primarily a political and legislative process . . . some scope for the ‘exercise of judgment’ ” by respondent must be provided. In re Apportionment of Clinton Co — 1991 (After Remand), supra at 236.
Accordingly the apportionment plan adopted by the Wayne County Apportionment Commission on June 8, 2001, is vacated as not being in compliance with the laws of this state. This matter is remanded to the apportionment commission to adopt, within thirty days of the date of this opinion, an apportionment plan that meets the requirements of the laws of this state. Upon adopting a plan on remand, the apportionment commission shall file a copy of the plan with the county clerk and with the clerk of this Court for further review. Any registered voter of the county may seek judicial review of the plan. MCL 45.505(5).
This Court retains jurisdiction.
The plan was adopted within sixty days of the latest official census figures becoming available. MCL 45.505(6)
The total population divergence or deviation is calculated by adding the percentage deviations from perfect equality of the districts with the highest deviations above and below perfect equality. See Apportionment of Wayne Co Bd of Comm’rs — 1982, 413 Mich 224, 242; 321 NW2d 615 (1982), adopting the 11.9 percent range of divergence allowed in ABATE v Mundt, 403 US 182; 91 S Ct 1904, 29 L Ed 2d 399 (1971); New York City Bd of Estimate v Morris, 489 US 688, 700, n 7; 109 S Ct 1433; 103 L Ed 2d 717 (1989); In re Apportionment of Clinton Co — 1991 (After Remand), 193 Mich App 231, 234; 483 NW2d 448 (1992).
Wayne County Apportionment — 1982 recognized that the criteria for county election districts with charter counties, MCL 45.501 et seq.; 1966 PA 293, and ordinary counties, MCL 46.401 et seq.; 1966 PA 261, are essentially the same. See 413 Mich 236, 256.
The deviations in ABATE v Mundt were 4.8 percent and 7.1 percent. See 413 Mich 242.
If all districts satisfy the 5.95 percent requirement, mathematically the plan will satisfy the 11.9 percent requirement. | [
15,
27,
-4,
18,
-46,
31,
-8,
38,
-40,
22,
-12,
-5,
6,
61,
11,
-29,
11,
5,
5,
30,
7,
15,
-28,
52,
-19,
20,
23,
-12,
-27,
-40,
-50,
-27,
2,
-37,
-4,
5,
39,
44,
13,
-32,
-55,
-38,
4,
25,
-36,
7,
8,
40,
13,
-17,
-27,
2,
-4,
-10,
4,
-28,
-7,
-10,
-30,
-27,
-38,
9,
-24,
24,
1,
34,
20,
11,
26,
-5,
5,
-15,
-41,
-13,
75,
-18,
1,
-53,
-13,
-13,
7,
18,
-8,
-2,
-76,
20,
17,
2,
13,
64,
-6,
-6,
-21,
-1,
30,
36,
42,
-15,
14,
-31,
-14,
15,
10,
19,
43,
-18,
-9,
8,
31,
25,
23,
-52,
-37,
5,
20,
36,
-7,
-6,
86,
0,
19,
17,
-61,
-12,
-14,
-14,
28,
1,
-17,
-25,
46,
15,
0,
-27,
87,
41,
0,
-7,
60,
37,
14,
-11,
13,
15,
18,
14,
-21,
-63,
49,
-33,
7,
27,
25,
37,
33,
-9,
42,
-6,
-11,
-2,
38,
-35,
-8,
-4,
-104,
-11,
-61,
14,
-60,
27,
68,
-29,
21,
7,
0,
9,
14,
38,
-44,
30,
-39,
-16,
-24,
-36,
-3,
32,
11,
-38,
-5,
-48,
69,
-12,
12,
-27,
26,
31,
66,
21,
-79,
23,
-10,
-19,
10,
-3,
-19,
-22,
-57,
-69,
-73,
-67,
8,
-12,
20,
-20,
27,
32,
61,
-34,
-2,
-10,
2,
7,
35,
-6,
-60,
-1,
-31,
9,
47,
-21,
27,
-13,
10,
40,
27,
11,
-15,
21,
-11,
19,
-19,
-11,
-4,
6,
-19,
22,
2,
-12,
29,
16,
9,
-22,
-7,
-16,
4,
0,
-45,
24,
31,
4,
19,
25,
5,
27,
-19,
54,
1,
-38,
-10,
-21,
-36,
0,
-25,
-1,
-51,
-10,
6,
-1,
-20,
-5,
-8,
-29,
13,
8,
5,
58,
21,
12,
-6,
26,
-24,
-7,
30,
44,
-21,
7,
16,
7,
54,
-28,
-25,
71,
5,
-76,
-23,
-15,
-39,
-50,
36,
39,
23,
4,
32,
-10,
21,
-64,
11,
70,
8,
-35,
-7,
17,
21,
38,
-11,
-68,
41,
-46,
-51,
-33,
6,
33,
46,
-18,
9,
-7,
-19,
27,
-52,
-2,
47,
-61,
35,
103,
45,
-38,
-27,
7,
-24,
-8,
-9,
-12,
63,
51,
-8,
-34,
-16,
-8,
4,
-37,
28,
-5,
-44,
-14,
-57,
-34,
30,
21,
-26,
14,
19,
-8,
6,
43,
5,
28,
17,
38,
-24,
26,
-21,
-34,
3,
-1,
50,
2,
2,
-9,
0,
-41,
-15,
-55,
8,
41,
-7,
-58,
8,
7,
12,
-7,
37,
8,
-18,
54,
17,
70,
0,
29,
45,
36,
-34,
-52,
-4,
-49,
-12,
51,
17,
4,
-10,
31,
16,
48,
-17,
-83,
-33,
-33,
13,
8,
-5,
47,
-35,
-46,
-3,
-28,
41,
29,
-34,
-48,
-6,
-39,
-19,
8,
9,
10,
28,
-62,
-65,
73,
2,
23,
36,
27,
-45,
-9,
-1,
44,
-41,
-29,
9,
-55,
-9,
-40,
-47,
-17,
-72,
3,
-36,
33,
57,
-31,
-66,
17,
-6,
30,
40,
-11,
-3,
-33,
43,
15,
13,
5,
-48,
-26,
-29,
-41,
-12,
-14,
-24,
20,
30,
-55,
28,
-26,
96,
-2,
19,
14,
-17,
7,
27,
38,
1,
14,
-67,
10,
-39,
2,
5,
-27,
-11,
-35,
2,
35,
-37,
11,
11,
19,
13,
0,
-10,
-7,
8,
-33,
49,
-16,
-1,
8,
-5,
-19,
-4,
-50,
13,
17,
-40,
12,
-21,
-14,
-26,
-21,
11,
3,
-13,
-27,
12,
33,
-41,
-13,
-7,
-22,
27,
-71,
-51,
-1,
8,
18,
-15,
-1,
-29,
5,
-36,
-20,
36,
-9,
33,
43,
14,
-30,
39,
66,
-29,
-9,
28,
-5,
57,
-17,
-1,
-5,
-23,
9,
-15,
7,
-7,
7,
0,
-16,
25,
-25,
-2,
1,
-31,
-60,
-6,
16,
82,
-4,
18,
11,
60,
-61,
-8,
-15,
4,
-25,
9,
-23,
-35,
15,
6,
-48,
-37,
-16,
-26,
-16,
30,
2,
-6,
38,
11,
33,
-20,
70,
37,
-21,
30,
-62,
12,
-14,
-31,
36,
24,
-58,
37,
-66,
17,
-20,
59,
25,
24,
13,
-26,
-12,
-11,
-6,
9,
-32,
-32,
15,
-1,
20,
-27,
0,
-33,
-38,
29,
-32,
3,
-51,
27,
-28,
9,
25,
51,
22,
-12,
-36,
9,
-23,
37,
-5,
-46,
52,
-4,
-7,
30,
0,
-13,
26,
11,
38,
-45,
38,
-68,
-19,
-11,
-26,
-36,
39,
-58,
16,
14,
-22,
27,
0,
-48,
-53,
-18,
-30,
-28,
16,
30,
24,
-17,
-2,
-28,
38,
43,
43,
7,
-78,
-8,
-37,
-6,
-7,
0,
33,
-22,
16,
15,
-5,
24,
-1,
-8,
4,
-1,
-13,
-57,
-74,
-25,
-27,
-28,
14,
24,
-9,
-2,
0,
11,
12,
17,
-16,
46,
40,
-22,
-10,
23,
-6,
9,
6,
-96,
53,
-17,
-18,
-15,
41,
-37,
21,
-47,
35,
-9,
34,
-58,
-24,
-48,
78,
21,
-1,
26,
-8,
2,
33,
22,
73,
-17,
-14,
3,
-42,
-16,
-11,
-53,
-16,
-67,
0,
60,
-38,
-61,
-23,
6,
10,
-59,
10,
-11,
0,
18,
-7,
11,
40,
61,
27,
14,
-34,
-25,
77,
21,
3,
-7,
19,
-34,
13,
-36,
33,
0,
36,
52,
17,
4,
-22,
-10,
37,
-99,
-14,
113,
0,
21,
-33,
10,
-17,
-4,
34,
7,
22,
31,
49,
-25,
15,
-19,
3,
-12,
26,
-44,
-35,
14,
-62,
-40,
-69,
-41,
1,
-54,
70,
13,
6,
-19,
-13,
-15,
-2,
82,
66,
16,
13,
-18,
26,
50,
41,
-22,
5,
-61,
22,
-11,
-1,
20,
56,
-18,
-3,
-35,
-14,
50,
-7,
-47,
8,
-11,
-45,
6,
-22,
25,
-8,
60,
2,
17,
-7,
-7,
1,
63,
13,
-51,
32,
14,
2,
-2,
37,
31,
-47,
2,
2,
8,
-30,
-6,
33,
50,
39,
-14,
-29,
-40,
19,
-8,
11,
-37,
-49,
11,
-40,
17,
32,
-5,
-23,
-26,
-23,
-33,
-14,
8,
39,
25,
-9,
15,
3,
-14,
0,
-35,
8,
17,
-21,
0,
-12,
-6,
-12,
-31,
-17,
-35,
26,
-9,
63,
-18,
-15,
38,
-20,
67,
20,
8,
16,
-31,
-11,
-36,
34,
-26,
34,
-7,
-29,
-25,
-59,
-18,
-11,
-22,
50,
-4,
20,
7,
-1,
31,
15,
-27,
24,
47,
-32,
-28,
-9,
49,
13,
-45,
43,
13,
11,
-39,
9,
49,
-8,
-4,
-72,
-16,
0,
-24,
-4,
15,
1,
17,
11,
29,
2,
10,
-30,
60,
-63,
8,
59,
7,
49,
6,
-18,
14,
-14,
-3,
86,
6,
4,
74,
-26,
-40,
18
] |
Per Curiam.
Plaintiff Duke Armstrong appeals the trial court’s order granting summary disposition to defendants Ypsilanti Charter Township, Ruth Jamnick, Brenda Stumbo, Darcus Sizemore, Karen LovejoyRoe, and William Gagnon. Armstrong also challenges the trial court’s denial of his motion to disqualify the trial judge and the later order of the chief judge affirming that denial. Jamnick, Stumbo, Sizemore, Lovejoy-Roe, and Gagnon cross appeal the trial court’s denial of their motion to quash Armstrong’s first amended complaint. We affirm.
1. basic facts and procedural history
A. OVERVIEW
Ypsilanti Township is a charter township, organized under the Charter Township Act. Jamnick, Stumbo, Sizemore, Lovejoy-Roe, and Gagnon are all members of the township board. A sixth member of the township board, although not a defendant here, Wesley Prater, was the elected township supervisor. Armstrong had served as Prater’s administrative assistant since 1991, but on May 30, 1996, the township board, with only Prater voting against the motion, eliminated the line-item funding for Armstrong’s administrative assistant position, thereby effectively eliminating his job. It is undisputed that the elimination of the line- item funding was not part of the normal budgetary cycle; rather it occurred during, instead of before or at the commencement of, the township’s fiscal year.
B. ARMSTRONG’S COMPLAINT
Armstrong’s first amended complaint contained thirteen counts. Count I asserted a claim based on defamation against the board members. Count n asserted a claim based on violation of the Michigan Handicappers’ Civil Rights Act. Armstrong claimed that he had been diagnosed with “stress reaction,” which required a temporary medical leave. Count m asserted a violation of the Michigan Civil Rights Act. Armstrong claimed that his age was at least one factor in the decision to terminate his employment. Count iv asserted a violation of the National Labor Relations Act. Armstrong claimed that his involvement in the attempted organization of his fellow employees in a labor union was at least one factor in the decision to terminate his employment. Count v was a claim of breach of an implied employment contract. Armstrong claimed that the township’s management made statements to him and other employees that it was the township’s policy not to discharge employees as long as the employees performed their jobs. Count VI asserted wrongful discharge contrary to public policy. Armstrong claimed that during his employment, the township established policies and procedures that created a legitimate expectation that his employment could be terminated only for just cause. Count vil asserted interference with a business relationship. Armstrong claimed that the board members interfered with his business relationship with the township, which relationship had a reasonable likelihood of future economic benefit to him. Count vni asserted the board members were grossly negligent concerning their conduct and treatment of Armstrong, including alleged false accusations and statements made by the board members concerning him. Count IX was a claim of intentional infliction of emotional distress concerning defendants’ conduct and treatment of Armstrong during his employment. Count x asserted violation of Armstrong’s constitutional rights. Armstrong claimed that, before his employment was terminated, he engaged in constitutionally protected speech on a matter of public concern by speaking with administrative assistants of various departments regarding forming a union and that his exercise of his constitutional rights was one reason for the termination of his employment. Count XI asserted a separate violation of Armstrong’s constitutional rights. Armstrong claimed that, before depriving him of his constitutionally protected property interest in continued employment, defendants did not conduct a hearing or otherwise afford him either notice of the grounds for the termination of his employment or a meaningful opportunity to respond. Count xn asserted a violation of the Michigan Constitution with respect to due process and fair treatment in investigations. Armstrong claimed that defendants failed to adequately investigate the facts and circumstances surrounding alleged false accusations. Count xttt was a conspiracy claim. Armstrong contended that the tortious conduct asserted in the complaint was done in concert by the board members in order to violate his legal and constitutional rights.
In mid-March 1999, the township moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). In early April, the trial court held a hearing on this motion but delayed ruling until a final decision was made on the judicial disqualification matter hereinafter outlined. In late April 1999, the board members filed a motion for summary disposition pursuant to MCR 2.116(C)(7) and (8). In early June 1999, the trial court held a hearing on this motion and took the matter under advisement.
C. THE TRIAL COURT’S RULING
The trial court addressed and granted both motions for summary disposition in an order and opinion entered on September 29, 1999, stating:
Plaintiff... alleges that defendants wrongfully eliminated funding for the Administrative Assistant to the Ypsilanti Township Supervisor, a position which plaintiff held. The four individual defendants were Township board members who voted for the resolution. . . .
* * *
For his claim against the township, plaintiff argues that the Township Supervisor position is analogous to that of a chief executive position and that [the] board’s action to eliminate funding thereby violates the separation of powers doctrine. He urges the Court to find that the Supervisor is the chief executive with the exclusive authority to abolish plaintiff’s position.
The Township of Ypsilanti has adopted the Charter Township Act (“the Act”). Pursuant to that Act, all legislative authority and powers of the township are vested in the township board. MCL 42.5(1). [At this point, the trial court quoted MCL 42.5 and MCL 42.9.]
Plaintiff asserts that this section of the statute only allows the board to create a position and does not explicitly grant the board authority to abolish a position. Plaintiff further claims that even if this section is construed to confer authority to abolish a position on the board, that authority would only concomitantly arise at the township supervisor’s recommendation. Plaintiff argues that since in this case the supervisor voted against the elimination of the funding for plaintiff’s position, the board had no authority to do so.
The construction of the statute urged by plaintiff is without merit. The legislature clearly provides . . . that the entire elected township board, which by definition includes the supervisor, has the authority to create employment positions at taxpayer expense. That authority is not conferred by the statute on the supervisor. Inherent in the board’s authority to create such a position is its authority to abolish it.
The ensuing sentence in this section of the Act fortifies the inteipretation that the board has the power to abolish employment positions in the township. That sentence expressly states that the board may not “abolish” the offices of township clerk or treasurer. The express designation of the offices of township clerk and township treasurer as offices that may not be abolished by the township board is recognition that the legislature intended that the board has the power to abolish other positions not so designated. . . .
Plaintiff also claims that the board’s role is to check the power of the supervisor by approving a budget that includes the appropriation of funds for the supervisor’s use. He claims that when [the] board eliminated funding for plaintiff’s position, the board encroached on the executive’s authority. On the contrary, it is the board that has the exclusive authority over budget, appropriation and expenditure for a township under the Act. MCL 42.27, 42.28. There was no usurpation of supervisor authority by the actions of the board in this case.
As to plaintiffs tort claims against the individual board members, the defendants assert that they are immune from plaintiffs tort claims under Michigan law. The highest elective officials of all levels of government are immune from tort liability when acting within their authority. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 633 (1984). The same was codified in 1986 [at this point, the trial court quoted MCL 691.1407(5)].
These defendants are clearly the highest elective officials in the township and are immune if they were acting within their authority when they eliminated plaintiffs position.
... As indicated by the analysis of the board’s actions above, the legislature gave the board as a whole the authority to create, combine, and abolish administrative offices as set forth in MCL 42.9. The actions of the individual trustees were therefore within their legislative authority and they are immune from plaintiffs tort actions by virtue of MCL 691.1407(5).
D. DISQUALIFICATION OF THE TRIAL COURT
The trial court record does not contain a motion to disqualify the judge, but the record does reflect that a hearing was held on such a motion on April 7, 1999. At the hearing, the following discussion ensued:
Mr. McKeever (plaintiff’s counsel]: Judge, as we just mentioned at the bench, I found out yesterday that I think four of the individually named defendants were involved with— as well as Mr. Winters was involved in setting up fundraisers for Your Honor, as well as selling tickets and what have you. And because of those facts—
The Court: You mean when I ran for the Supreme Court [in 1996]?
Mr. McKeever. That’s right, Judge. And I just — as I mentioned at the bench, due to those facts, at my client’s request, I bring this motion for Your Honor to disqualify himself. And as I mentioned previously, I certainly mean no disrespect, Judge.
Armstrong submitted his own affidavit, which asserted that the board members “participated in raising election funds for the Honorable Donald E. Shelton.” The trial court denied Armstrong’s motion for disqualification from the bench and stated:
Well, there were a number of people, obviously, who were kind enough to assist in the campaign when I ran for the Supreme Court. But, to my knowledge, the successful candidates do not disqualify themselves from hearing cases in which contributors to their campaigns were involved, nor do I think that I’m required to do so, nor do I think it would be appropriate to punish people for participating in the process in that way.
More importantly — so I’m going to deny the motion on the basis of any economic interest. More importantly is the question of whether I have any bias in favor of the defendants. I would gather that, if the Township of Ypsilanti were to — or its officials were to take a vote on whether I was generally in favor of them or generally against them in terms of my rulings, it would be a close issue. It probably would be a divided vote, and as it should be.
I have not — I don’t have — I don’t hesitate in my rulings to rule against the local governments or their elected officials when I think that justice of the cause requires that. And I would expect that the township officials in this township as well as other municipal bodies would, with chagrin, agree with that.
So I’m going to deny the motion to disqualify. If you would like to appeal that before we take up other matters, you can take it to the chief judge.
Shortly thereafter, the chief judge of the circuit court held a hearing to review the trial court’s decision to deny the motion for disqualification, ruling:
You have to show actual bias or prejudice. Again, you know, this is — I think the only way you’re ever going to avoid this is if you go to something like the Missouri plan. And I’m not saying that’s necessarily the best way, either, because there’s arguments that, then, you don’t have accountability to the general public.
So there’s countervailing public policy reasons to go the way that we are. But as long as we have this system, you’re going to have contributors and you’re going to have people who don’t contribute. And the logical extension of your argument is, literally, be — I mean, we might have just a few lawyers left practicing.
And I don’t think you’ve been able to demonstrate, sir, based on that record, that there’s actual bias or prejudice; and, therefore, the appeal of Judge Shelton’s decision to me — the appeal is denied. His decision is affirmed. He’s in the best position to say whether his relationship is such that he would not be able to do that.
H. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
This Court reviews de novo rulings on motions for summaiy disposition. Statutory interpretation is a question of law that we review de novo. We also review constitutional issues de novo. Whether there has been a violation of the separation of powers doc trine is a question of law, which we also review de novo.
B. GROUNDS FOR SUMMARY DISPOSITION
(1) MCR 2.116(C)(7)
MCR 2.116(C)(7) provides, in part, that summary disposition is appropriate when a claim is barred because of immunity granted by law. In reviewing a motion for summary disposition under MCR 2.116(C)(7), this Court accepts a plaintiffs well-pleaded allegations as true and construes them in a light most favorable to the plaintiff. In determining whether a plaintiffs claim is barred by governmental immunity, this Court must consider all documentary evidence, including any pleadings, depositions, admissions, or any other documentary evidence submitted by the parties. In order to survive a motion for summary disposition under MCR 2.116(C)(7), a plaintiff is required to allege facts in the complaint that justify application “ ‘of an exception to governmental immunity.’ ”
(2) MCR 2.116(C)(8)
MCR 2.116(C)(8) provides for summary disposition of a claim on the ground that the opposing party has failed to state a claim on which relief can be granted. A motion under MCR 2.116(C)(8) tests the legal suffi ciency of a claim by the pleadings alone and all factual allegations contained in the complaint must be accepted as trae as well as any reasonable inferences or conclusions that can be drawn from the facts.
(3) MCR 2.116(C)(10)
MCR 2.116(C)(10) provides for summary disposition where there is no genuine issue regarding any material fact and the moving party is entitled to judgment or partial judgment as a matter of law. The Michigan Supreme Court has held that a trial court “ ‘may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law.’ ” In addition, all affidavits, pleadings, depositions, admissions, and other documentary evidence filed in the action or submitted by the parties is viewed “in the light most favorable to the party opposing the motion.”
C. ARMSTRONG’S ISSUES ON APPEAL
Armstrong’s appeal requires us to address three separate, but interrelated, issues. The first issue is whether defendants’ actions violated the separation of powers doctrine. The second issue is whether defendants’ actions violated the Charter Township Act. The third issue is whether defendants were protected by governmental immunity. We will address each of these issues.
D. SEPARATION OF POWERS
(1) THE SEPARATION OF POWERS DOCTRINE
In Hopkins, this Court, discussing the separation of powers doctrine, stated:
The Michigan Constitution provides for the separation of the three branches of government as follows:
“The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.”[ ]
This separation of powers intends to preserve the independence of the three branches of government. In re 1976 PA 267, 400 Mich 660, 662; 255 NW2d 635 (1977). “ ‘[Wjhere the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.’” Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 752; 330 NW2d 346 (1982) (emphasis in original), quoting The Federalist No. 47 (J. Madison). The separation of powers doctrine does not, however, require so strict a separation as to provide no overlap of responsibilities and powers. Judicial Attorneys Ass’n v Michigan, 459 Mich 291, 296; 586 NW2d 894 (1998). If the grant of authority to one branch is limited and specific and does not create encroachment or aggrandizement of one branch at the expense of the other, a sharing of power may be constitutionally permissible. Id. at 296-297; Mayor of City of Detroit v Michigan, 228 Mich App 386, 410-411; 579 NW2d 378 (1998), vacated in part on other grounds Judicial Attorneys Ass’n v Michigan, 460 Mich 590; 597 NW2d 113 (1999).[ ]
(2) APPLICATION OF THE SEPARATION OF POWERS DOCTRINE TO TOWNSHIP GOVERNMENT
Here, the specific question is whether the separation of powers doctrine applies to township government. The Michigan Supreme Court conclusively answered this question in Rental Property Owners Ass’n of Kent Co v Grand Rapids, stating:
Const 1963, art 3, § 2, incorporates the separation of powers doctrine into the Michigan Constitution. . . .
In Detroit Osteopathic Hosp v Southfield, 377 Mich 128; 139 NW2d 728 (1966), we declined to answer whether art 3, § 2 applies only to state government, or whether it applies to local government as well. Both the context and history of the provision demonstrate that the provision applies only to state government.
The context of art 3, § 2 suggests that the provision applies only to state government and not to local government. The other sections of article 3 strongly suggest that the term “government” in art 3, § 2 is only intended to include state government. Art 3, § 1 states that “[t]he seat of government shall be at Lansing.” Obviously, the term “government” in this section refers only to state, and not local, government.
Furthermore, the history of municipal government in this state suggests that the provision does not apply to localities. Municipal government in Michigan typically has not been divided among three branches of government. Under the city manager form of government, popular among smaller cites, the executive, the city manager, serves at the will of the legislature, the city commission. The home rule cities act explicitly allows this blending of legislative and executive functions, stating, “The city charter may provide for the selection of the mayor by the legislative body.” MCL 117.3(a); MSA 5.2073(a). This Court has recognized that legislative bodies of local governments may also exercise executive powers. Wayne Co Jail Inmates v Wayne Co Sheriff, 391 Mich 359; 216 NW2d 910 (1974). Further, this Court has recognized that the legislative bodies of municipalities can operate as administrative tribunals. Bundo v Walled Lake, 395 Mich 679, 696-697; 238 NW2d 154 (1976).
(3) PROVISIONS OF THE CHARTER TOWNSHIP ACT
Undeniably, in light of Rental Property Owners, the separation of powers doctrine does not apply to a municipality like Ypsilanti Township.
We would arrive at this conclusion even without the Supreme Court’s guidance in Rental Property Owners. Even the Charter Township Act indicates that township government is not divided among three branches of government:
(1) Except as otherwise provided in this act, all legislative authority and powers of each charter township shall be vested in and shall be exercised and determined by a township board of 7 members composed of the supervisor, the township clerk, the township treasurer, and 4 trustees who shall be electors in the township. . . .
(2) ... As a member of the township board, the supervisor shall be the presiding and executive officer of the board and shall have an equal voice and vote in the proceedings of the board.[ ]
Therefore, a charter township is made up of a legislative “branch” only and does not include an executive “branch.” As the Michigan Townships Association puts it in its helpful amicus curiae brief, “townships are a unique form of government in which there is no clear separation of executive and legislativé powers between elected officials.” Accordingly, a township supervisor, despite the use of the term “executive officer” in the Charter Township Act, is simply the leader within the legislative township board, having voting power equal to any other board member. Rather clearly, we believe, when the Legislature used the term “executive officer” in the Charter Township Act, it did so in relationship to the township board, itself a legislative body. In light of this situation and the Court’s decision in Rental Properties Ass’n, we conclude that the separation of powers doctrine has no applicability in this case.
E. THE CHARTER TOWNSHIP ACT
(1) PRINCIPLES OF STATUTORY CONSTRUCTION
In Rose Hill Center, Inc v Holly Twp, this Court explained the longstanding rules of statutory construction:
The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature in enacting a provision. Statutory language should be construed reasonably, keeping in mind the purpose of the statute. The first criterion in determining intent is the specific language of the statute. If the statutory language is clear and imambiguous, judicial construction is neither required nor per-
mitted, and courts must apply the statute as written. However, if reasonable minds can differ regarding the meaning of a statute, judicial construction is appropriate.
Statutes should be construed so as to prevent absurd results, injustice, or prejudice to the interests of the public.
(2) ABOLISHING A POSITION UNDER THE CHARTER TOWNSHIP ACT
The Charter Township Act provides for the creation of charter townships and the rules by which charter townships must operate. MCL 42.9 provides in pertinent part:
The township board may, by resolution, upon the recommendation of the supervisor, or of the township superintendent if one shall be appointed, create such additional officers as may be necessary to administer the affairs of the township government, or may combine any administrative offices in any manner not inconsistent with state law, and prescribe the duties thereof. No creation of any additional administrative office or combination thereof shall abolish the offices of township clerk or township treasurer nor diminish any of the duties or responsibilities of those offices which are prescribed by state law.
Armstrong argues that MCL 42.9 provides township board members with the authority to act only at the recommendation of the township supervisor and, therefore, does not give the township board the authority to abolish a position. We disagree. We conclude that MCL 42.9 allows a township board to abolish a position and that any other reading of the statute would be absurd. Clearly, the township board has the authority to create positions within the township government. The statute is merely silent with respect to abolishing administrative positions. However, the fact that MCL 42.9 specifically denies a township board the authority to abolish the offices of township clerk and township treasurer indicates that other offices can be abolished. In People v Jahner, the Michigan Supreme Court recognized a pertinent rule of statutory construction providing that inclusion by specific mention excludes that which is not mentioned. Thus, it is manifest that MCL 42.9 allows a township board to abolish a position within township government as long as the position is not the clerk or the treasurer. Armstrong’s position fits outside this very limited class of protected positions.
Nevertheless, Armstrong claims that the township supervisor, Prater, must first recommend abolishing a position before a position can be abolished. It is undisputed that Prater did not recommend the abolition of Armstrong’s position and, indeed, cast the sole vote against that action. However, we conclude that MCL 42.9 does not require a township supervisor’s recommendation to abolish a position. As noted above, MCL 42.5 provides that “the supervisor shall be the presiding and executive officer of the board and shall have an equal voice and vote in the proceedings of the board.” If MCL 42.9 were read to require the township supervisor’s recommendation for every position to be abolished, MCL 42.5 would be meaningless in the context of employment decisions. Although MCL 42.9 requires the recommendation of a township supervisor to create a position, ultimately it is the vote of the township board that determines whether the position is actually created. It is reasonable to conclude that a township board may abolish a position, created by its own action, without a recommendation by the township supervisor.
(3) APPROPRIATIONS
MCL 42.29 states:
At the beginning of each quarterly period during the fiscal year, and more often if required by the township board, the supervisor . . . shall submit to the township board data showing the relation between the estimated and actual income and expenses to date; and if it shall appear that the income is less than anticipated, the township board may reduce appropriations, except amounts required for debt and interest charges, to such a degree as may be necessary to keep expenditures within the cash income.
Armstrong argues that MCL 42.29 permits appropriation reductions only when the township supervisor has submitted information to the township board that demonstrates that the township’s income is insufficient to meet budgetary expenses. He asserts that this did not occur here. Armstrong also argues that MCL 42.29 restricts a township board’s ability to reduce appropriations to instances in which there is a budget deficit, which is also not the case here. We disagree.
There is no mandatory language contained within MCL 42.29 that refers to appropriation reductions themselves. In other words, a township board may reduce appropriations, but it does not necessarily have to do so. MCL 42.29 simply does not provide that a township board can reduce appropriations only when there has been a reduction in income. In addition, MCL 42.27 and 42.28 clearly indicate that a township board has full and absolute control over the township budget. Thus, even without proof of a fiscal emergency, the township board had authority to eliminate Armstrong’s position.
F. GOVERNMENTAL IMMUNITY
MCL 691.1407(5) provides:
A judge, a legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority.
Here, the parties’ arguments center on whether defendant board members were acting within the scope of their legislative authority. In Marrocco v Randlett, the Michigan Supreme Court stated:
The determination whether particular acts are within their authority depends on a number of factors, including the nature of the specific acts alleged, the position held by the official alleged to have performed the acts, the charter, ordinances, or other local law defining the official’s authority, and the structure and allocation of powers in the particular level of government.
In American Transmissions, Inc v Attorney General, the Court, reviewing Marrocco and Smith v
Dep’t of Public Health, explained:
Earlier in Marrocco, supra at 707-708, this Court took from a 1987 plurality opinion [Smith] the emphasized portion of this statement:
“We conclude this inquiry by finding that intentional torts are immune if committed within the scope of a governmental function; however, the intentional use or misuse of a badge of governmental authority for a purpose unauthorized by law is not the exercise of a governmental function."
The American Transmissions Court also clarified:
This Court’s Marrocco opinion does not explicitly adopt an intent exception to governmental immunity, noting that a variety of factors must be considered to determine whether an official is acting with the scope of “executive authority.” 431 Mich 711. This Court did not include “motive” in that roster of considerations, and declined “to rule with specificity concerning the authority of officials” in that case. 431 Mich 711. Further, the language taken from the Smith plurality, 428 Mich 611, in Marrocco at 707-708, adds no such test.
In this case, the Attorney General allegedly defamed the plaintiffs during a 1991 television interview that concerned an earlier fraud investigation conducted by his department. Doubts had been expressed regarding the propriety of the department’s conduct, and Mr. Kelley was responding to questions regarding the investigation. On these facts, the Attorney General clearly is “immune from tort liability” because he was “acting within the scope of [his] executive authority.” MCL 691.1407(5); MSA 3.996(107)(5).[ ]
American Transmissions thus makes plain that the trial court correctly dismissed all of Armstrong’s tort claims because the township board members were protected from liability by governmental immunity. The fact that Armstrong alleged that defendants committed intentional torts, and that they had an improper motive and purpose in eliminating his position along with an unlawful intent, is meaningless in light of the language in American Transmissions because, as we have held, defendants were acting within the scope of their statutory authority in eliminating that position.
We note that MCL 691.1407(5) provides immunity only from tort liability. Armstrong’s complaint contained two counts, counts v and VI, that alleged contract claims, for which governmental immunity has no relevance. Nevertheless, Armstrong has failed to present a single word of argument on appeal to the effect that the trial court erred in applying the doctrine of governmental immunity to contract claims. It is not our function to manufacture arguments on Armstrong’s behalf and we decline to do so. We conclude that Armstrong has abandoned any separate argument that he might have in connection with his contract claims.
Because Armstrong raised federal, as well as state, causes of action, we are required to examine federal case law on the issue of governmental immunity. In Bogan v Scott-Harris, a case almost factually identical to the present case, the petitioners argued that they, as local officials performing legislative func tions, were entitled to immunity for their acts of introducing, voting for, and signing an ordinance eliminating the government office held by the respondent. The respondent was an administrator in city government. The petitioners, the city’s mayor, the city council’s vice president, and several other city officials, voted to eliminate the respondent’s position allegedly because of budgeting problems. The respondent-administrator then filed suit under 42 USC 1983, alleging, that the elimination of her position was motivated by unlawful racial animus and a desire to retaliate against her for exercising her First Amendment rights. The United States Supreme Court rejected the administrator’s argument, holding:
Because the common law accorded local legislators the same absolute immunity it accorded legislators at other levels of government, and because the rationales for such immunity are fully applicable to local legislators, we now hold that local legislators are likewise absolutely immune from suit under § 1983 for their legislative activities.
Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it. . . .
This leaves us with the question whether, stripped of all considerations of intent and motive, petitioners’ actions were legislative. We have little trouble concluding that they were. Most evidently, petitioner [city council vice president] Roderick’s acts of voting for an ordinance were, in form, quintessentially legislative. Petitioner [Mayor] Bogan’s introduction of a budget and signing into law an ordinance also were formally legislative, even though he was an executive official.[ ]
Bogan clearly requires dismissal of Armstrong’s federal claims. The board members’ action in eliminating the funding for Armstrong’s position was a legislative activity that could be undertaken pursuant to the Charter Township Act.
HI. DISQUALIFICATION OF THE TRIAL COURT
A. STANDARD OF REVIEW
When this Court reviews a motion to disqualify a judge, the trial court’s findings of fact are reviewed for an abuse of discretion; however, the applicability of the facts to relevant law is reviewed de novo.
B. BIAS AND INTEREST
MCR 2.003(B) provides the grounds for disqualifying a judge:
A judge is disqualified when the judge cannot impartially hear a case, including but not limited to instances in which:
(1) The judge is personally biased or prejudiced for or against a party or attorney.
* * *
(5) The judge knows that he . . . has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding.
Armstrong refers to MCR 2.003(B)(1) and (5) in his argument, but also argues that disqualification can be based on the appearance of impropriety.
In Cain v Dep’t of Corrections, the Michigan Supreme Court stated that “[i]n order for disqualification pursuant to MCR 2.003(B)(1) to be proper, the judge must have shown actual bias against a party or a party’s attorney.” Apart from MCR 2.003(B)(1), “[a]s a general rule, a trial judge is not disqualified absent a showing of actual bias or prejudice.” Here, Armstrong simply argues that he was prejudiced by the trial court, as evidenced by its ruling on the motions for summary disposition. In essence, Armstrong argues that the trial court demonstrated actual bias by ruling in favor of defendants. In Cain, the Court indicated that judicial rulings, in and of themselves, almost never constitute a valid basis for a motion alleging bias, unless the judicial opinion displays a “ ‘deep-seated favoritism or antagonism that would make fair judgment impossible’ ” and overcomes a heavy presumption of judicial impartiality. In Band v Livonia Associates, this Court stated:
Repeated rulings against a litigant, even if erroneous, are not grounds for disqualification. The court must form an opinion as to the merits of the matters before it. This opinion, whether pro or con, cannot constitute bias or prejudice. Mahlen Land Corp v Kurtz, 355 Mich 340, 350; 94 NW2d 888 (1959).
Further, in Ireland v Smith this Court stated that “[a] trial judge’s erroneous ruling, even when ‘vigorously and consistently expressed,’ is not grounds for disqualification.” Thus, Armstrong’s claim of actual bias based solely on the trial court’s ruling on the motions for summary disposition cannot be sustained. It cannot be said that the trial court’s ruling on the motions for summary disposition evidenced deep-seated favoritism or antagonism toward Armstrong.
C. “THE APPEARANCE OF IMPROPRIETY”
In In re Disqualification of 50th Dist Court Judge (On Remand), the prosecutor argued that the trial judge should have been disqualified because he had financial and economic ties with the law firm of one of the attorneys appearing before him. This Court agreed, explaining:
Proceeding to consideration of the merits, we hold that the appearance of impropriety arising from the financial ties between Judge Brown and Mr. Hatchett’s law firm required Judge Brown to disqualify himself even without a showing of actual bias or prejudice. We reach this conclusion after evaluating the totality of the circumstances. The ownership of the property on which the main office and the annex office of attorney Hatchett’s law firm are located, the payment of the property taxes by the firm over the years, and the payment and discharge of a mortgage for which Judge Brown was jointly hable certainly gives the appear anee of impropriety and reflects adversely on the judge’s impartiality and ability to fairly administer justice.[ ]
In Cain, the Michigan Supreme Court, in the context of reviewing a motion for disqualification, also noted that “[w]e acknowledge there may be situations in which the appearance of impropriety on the part of a judge ... is so strong as to rise to the level of a due process violation.” Further:
A showing of actual bias is not necessary where “experience teaches that the probability of actual bias ... is too high to be constitutionally tolerable.” Crampton v Dep’t of State, 395 Mich 347, 351; 235 NW2d 352 (1975). Certain situations have been identified as posing such a risk:
“[W]here the judge or decisionmaker
(1) has a pecuniary interest in the outcome;
(2) ‘has been the target of personal abuse or criticism from the party before him’;
(3) is ‘enmeshed in [other] matters involving petitioner . . .’; or
(4) might have prejudged the case because of prior participation as an accuser, investigator, fact finder or initial decisionmaker.” [Crompton, 395 Mich at 351.][ ]
Here, the appearance of impropriety, if it exists at all, is insufficient to reverse the findings of the trial court and the chief judge. The record is clear that, at the time the trial court ruled on the summary disposition motions, it had no economic, pecuniary, or other financial ties to the board members unlike the court in 50th Dist Court Judge. In addition, the four excep tions to the actual bias requirement do not apply to these facts.
Additionally, in Anson v Barry Co Drain Comm’r, this Court noted that situations that arose in a judge’s past, and that give rise to a request to disqualify, cannot overcome the presumption of impartiality if their connection to the case at hand is too tenuous. Any fundraising assistance involved in the trial judge’s candidacy for the Michigan Supreme Court three years earlier was so tenuous that it could not overcome the presumption of impartiality. There was no ongoing matter or relationship between the trial judge and the board members and no ongoing basis or reason for the trial judge to favor those board members. In sum, we conclude that there were no grounds to disqualify the judge handling this case.
Because we have affirmed on the above grounds, we need not reach the board members’ argument that the trial court erred in failing to dismiss Armstrong’s first amended complaint with regard to the allegations against them.
Affirmed.
MCL 42.1 et seq.
Now called the Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq.
MCL 37.2101 et seq.
29 USC 157 and 158.
US Const, Ams I and XIV; 42 USC 1983.
US Const, Am XIV (due process); 42 USC 1983.
Const 1963, art 1, § 17.
Van v Zahorik, 460 Mich 320, 326; 597 NW2d 15 (1999).
Rose Hill Center, Inc v Holly Twp, 224 Mich App 28, 32; 568 NW2d 332 (1997).
In re Juvenile Commitment Costs, 240 Mich App 420, 440; 613 NW2d 348 (2000).
Hopkins v Parole Bd, 237 Mich App 629, 635; 604 NW2d 686 (1999).
Fante v Stepek, 219 Mich App 319, 321-322; 556 NW2d 168 (1996).
Suttles v Dep’t of Transportation, 457 Mich 635, 642; 578 NW2d 295 (1998).
Id., quoting Wade v Dep’t of Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992).
Simko v Blake, 448 Mich 648, 654; 532 NW2d 842 (1995).
Smith v Stolberg, 231 Mich App 256, 258; 586 NW2d 103 (1998).
Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999), quoting Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
Quinto, supra at 362.
Const 1963, art 3, § 2.
Hopkins, supra at 635-636.
Rental Property Owners Ass’n of Kent Co v Grand Rapids, 455 Mich 246, 266-268; 566 NW2d 514 (1997) (emphasis supplied, paragraph structure altered).
MCL 42.5.
Rose Hill Center, supra at 32 (citations omitted).
Camden, v Kaufman, 240 Mich App 389, 395; 613 NW2d 335 (2000).
People v Jahner, 433 Mich 490, 500, n 3; 446 NW2d 151 (1989).
Emphasis supplied.
Marrocco v Randlett, 431 Mich 700, 711; 433 NW2d 68 (1988).
American Transmissions, Inc v Attorney General, 454 Mich 135, 141; 560 NW2d 50 (1997).
Smith v Dep’t of Public Health, 428 Mich 540; 410 NW2d 749 (1987), aff'd on other grounds sub nom Will v Michigan Dep’t of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed 2d 45 (1989).
American Transmissions, supra at 143-144.
See Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
Bogan v Scott-Harris, 523 US 44, 46; 118 S Ct 966; 140 L Ed 2d 79 (1998).
Id. at 46-47.
Id. at 47.
Id. at 49, 54-55.
FMB-First Michigan Bank v Bailey, 232 Mich App 711, 728; 591 NW2d 676 (1998). But see MCR 2.613(C) (factual findings generally reviewed for clear error).
Cain v Dep’t of Corrections, 451 Mich 470, 503; 512 NW2d 210 (1996).
People v Houston, 179 Mich App 753, 756; 446 NW2d 543 (1989).
Cain, supra at 496, quoting Liteky v United States, 510 US 540, 555; 114 S Ct 1147; 127 L Ed 2d 474 (1994).
Band v Livonia Associates, 176 Mich App 95, 118; 439 NW2d 285 (1989). See Czuprynski v Bay Circuit Judge, 166 Mich App 118, 124; 420 NW2d 141 (1988), and Cain, supra at 496-497, citing Liteky, supra at 550, 555-556.
Ireland v Smith, 214 Mich App 235, 249; 542 NW2d 344 (1995).
In re Disqualification of 50th Dist Court Judge (On Remand), 193 Mich App 209, 213; 483 NW2d 676 (1992).
Id. at 214.
Cain, supra at 512, n 48.
Houston, supra at 756-757.
Anson v Barry Co Drain Comm’r, 210 Mich App 322, 327; 533 NW2d 19 (1995). | [
32,
-18,
-2,
56,
15,
18,
-2,
-22,
-1,
33,
-6,
-23,
24,
38,
-11,
-33,
-29,
40,
-38,
30,
-6,
-25,
-23,
35,
-50,
-22,
10,
-15,
-35,
-21,
-21,
-44,
-23,
-11,
-19,
-20,
46,
-2,
-35,
-3,
-16,
-26,
-2,
-30,
-49,
-33,
29,
37,
51,
9,
-39,
44,
2,
20,
6,
-8,
38,
-34,
-30,
-15,
-65,
12,
1,
-9,
71,
-59,
7,
-1,
-10,
-24,
-13,
43,
-3,
-26,
-27,
-8,
-46,
10,
-13,
11,
4,
-11,
-21,
-14,
-37,
13,
-6,
18,
-30,
17,
-43,
1,
-43,
-14,
11,
-19,
51,
-44,
16,
-34,
12,
-8,
34,
-11,
-32,
-19,
30,
26,
-38,
0,
-7,
51,
57,
8,
34,
-31,
22,
36,
52,
-5,
30,
3,
12,
3,
16,
7,
7,
-2,
-10,
82,
47,
74,
-17,
-18,
-21,
12,
23,
-22,
-17,
-14,
31,
14,
23,
-18,
44,
-20,
-31,
9,
34,
-36,
-19,
-16,
55,
23,
-24,
-2,
-25,
0,
77,
-4,
37,
5,
-43,
-13,
-5,
7,
-24,
21,
75,
3,
-3,
19,
-9,
-39,
4,
19,
-2,
38,
-12,
46,
-9,
30,
-12,
-5,
-20,
-29,
5,
-53,
-18,
-26,
43,
-36,
-12,
-20,
30,
-8,
-10,
12,
-69,
-46,
-3,
-48,
26,
59,
-30,
-19,
-2,
-42,
-10,
35,
-9,
-38,
18,
-3,
-34,
-7,
35,
21,
16,
3,
18,
12,
-29,
-1,
-46,
-40,
39,
-29,
15,
-24,
29,
11,
106,
50,
-16,
28,
1,
26,
31,
-6,
-102,
39,
-2,
3,
-53,
-37,
-47,
25,
22,
65,
7,
-6,
-3,
-46,
-18,
-31,
-33,
-36,
3,
-15,
45,
1,
20,
-16,
42,
33,
-18,
13,
-34,
-31,
-4,
11,
9,
-43,
-31,
-25,
55,
1,
27,
10,
-12,
31,
-3,
-9,
-15,
27,
26,
-29,
-37,
-20,
13,
-2,
-22,
0,
57,
-27,
80,
-43,
35,
14,
-27,
47,
-20,
7,
27,
45,
-43,
-24,
-19,
-1,
-1,
-26,
30,
-10,
0,
-56,
-37,
2,
-23,
-44,
-71,
-29,
-22,
-2,
-33,
-67,
-2,
-37,
19,
-54,
-35,
11,
8,
-19,
-20,
0,
45,
53,
-7,
-33,
0,
47,
12,
16,
0,
17,
19,
14,
51,
-19,
-38,
-41,
11,
-3,
4,
-4,
-8,
-45,
-50,
-2,
-21,
1,
-27,
-29,
-29,
63,
-60,
73,
33,
15,
15,
-28,
24,
24,
40,
24,
56,
65,
21,
49,
2,
9,
33,
-40,
-4,
-24,
4,
32,
23,
0,
-49,
-16,
-7,
7,
-41,
23,
46,
79,
12,
49,
47,
-35,
-28,
39,
-13,
9,
2,
-119,
24,
34,
-20,
-7,
-12,
-5,
8,
1,
-12,
-14,
23,
-6,
47,
59,
-20,
-9,
40,
-14,
-8,
-30,
7,
56,
-6,
-46,
-5,
8,
7,
9,
-68,
-20,
-10,
-30,
-1,
7,
17,
-14,
12,
-33,
-8,
-13,
-22,
36,
4,
-4,
4,
-32,
-29,
-27,
-28,
26,
-47,
15,
-11,
-46,
-18,
-3,
37,
43,
-20,
71,
30,
-26,
-12,
7,
-1,
15,
-12,
-31,
10,
-45,
59,
11,
34,
5,
-41,
-9,
-25,
-33,
32,
19,
4,
6,
7,
25,
-12,
10,
22,
29,
-6,
28,
13,
10,
-5,
-8,
40,
13,
19,
-34,
-11,
-30,
-34,
20,
-7,
-16,
-16,
76,
0,
26,
30,
18,
-10,
0,
-1,
44,
-16,
11,
3,
-44,
-38,
-17,
11,
18,
39,
-9,
16,
-39,
41,
4,
-7,
-36,
-24,
-36,
-13,
13,
-5,
64,
45,
-6,
19,
6,
26,
-27,
13,
18,
-9,
-2,
14,
-11,
5,
0,
27,
-15,
7,
1,
2,
8,
83,
-24,
10,
15,
24,
19,
19,
19,
16,
26,
4,
38,
33,
-12,
-25,
-1,
19,
2,
-5,
-25,
-16,
-38,
33,
-34,
29,
-41,
-68,
-65,
-10,
-13,
14,
7,
-29,
18,
39,
23,
23,
6,
-37,
17,
-1,
23,
-39,
-3,
19,
-56,
-3,
-7,
-63,
-53,
-14,
26,
-76,
-20,
79,
6,
3,
53,
23,
-18,
-10,
-22,
14,
-47,
10,
-10,
47,
-58,
36,
-46,
15,
6,
-30,
16,
-10,
-31,
30,
-20,
11,
-8,
0,
1,
30,
17,
-12,
5,
-20,
38,
40,
-8,
-6,
-61,
-18,
23,
-23,
-86,
-9,
24,
-25,
19,
-3,
5,
13,
-10,
36,
-35,
34,
40,
38,
-35,
50,
-29,
26,
11,
-33,
29,
-26,
19,
-30,
25,
0,
-27,
7,
14,
8,
-41,
-22,
40,
15,
6,
13,
-56,
-10,
-7,
-32,
0,
-52,
32,
10,
13,
-32,
21,
13,
-3,
-30,
22,
-11,
-64,
-17,
5,
-14,
62,
-5,
17,
-9,
-4,
-12,
-9,
-62,
3,
-13,
11,
33,
-32,
16,
0,
-1,
53,
16,
7,
-1,
-6,
-17,
15,
-27,
21,
30,
-9,
6,
-35,
-27,
-2,
2,
-34,
9,
2,
-24,
0,
-12,
41,
-17,
40,
23,
-8,
-23,
45,
-6,
-32,
-11,
-20,
-10,
-25,
17,
36,
24,
37,
5,
17,
-24,
-32,
13,
17,
-2,
-15,
-18,
-21,
26,
17,
5,
9,
-12,
3,
-6,
-17,
16,
12,
-27,
-63,
-13,
-55,
21,
33,
24,
16,
62,
-21,
-2,
-3,
28,
27,
-22,
-6,
-16,
6,
-7,
16,
2,
48,
-17,
10,
63,
-13,
-14,
35,
-30,
26,
21,
1,
-4,
4,
-26,
-40,
9,
23,
2,
17,
45,
12,
-29,
52,
4,
-25,
-3,
-9,
33,
23,
-15,
-3,
19,
4,
31,
-20,
38,
7,
-1,
-32,
-5,
35,
-9,
-33,
27,
6,
-10,
-70,
-8,
-25,
41,
18,
-35,
-21,
-25,
44,
-43,
-27,
58,
10,
-29,
-26,
26,
6,
-9,
2,
-3,
4,
-11,
-9,
-23,
4,
-28,
-35,
17,
-24,
15,
-18,
0,
6,
47,
-15,
-75,
-19,
18,
3,
18,
0,
-29,
-4,
7,
11,
37,
-44,
-18,
51,
-27,
-22,
-51,
43,
-55,
-21,
-10,
1,
-22,
18,
-53,
3,
58,
-13,
-18,
31,
-17,
-30,
-24,
-44,
26,
-26,
-33,
25,
8,
-27,
-14,
-38,
18,
2,
53,
-12,
23,
9,
0,
5,
-32,
10,
22,
11,
-69,
-7,
8,
23,
-28,
16,
12,
32,
-7,
-4,
-13,
-10,
-1,
-5,
36,
-22,
28,
31,
-12,
-52,
1,
-64,
12,
45,
-19,
-48,
20,
-6,
-3,
-23,
7,
25,
39,
43,
-3,
-71,
-16,
53,
-22,
5,
-10,
-18,
-54,
-5,
-20,
4,
84,
-50,
10,
-48,
-42,
-22,
15,
5,
54,
26,
0,
25,
12,
7,
28,
-78,
-16,
59,
68,
75,
17,
-14,
35,
1,
3,
-30,
-31,
23,
-23,
-2,
-13,
-13
] |
ON REMAND
Before: Griffin, P.J., and Gage and Owens , JJ.
Griffin, RJ.
On remand from the Supreme Court, we reconsider an order granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(10). After doing so, we again reverse and remand.
i
In reviewing the grant of summary disposition under MCR 2.116(C)(10), we assess the substantively admissible evidence in the light most favorable to the party opposing the motion. Maiden v Rozwood, 461 Mich 109, 119-121; 597 NW2d 817 (1999); Bullock v Automobile Club of Michigan, 432 Mich 472, 474-475; 444 NW2d 114 (1989). In her brief on remand, plaintiff summarizes the relevant facts as follows:
This is a premises liability action in which the PlaintiflVAppellant, Ruth Woodbury, was injured when she fell from a second story, unguarded deck at the apartment that she had rented from defendants/appellees .... The dwelling had two apartments, one upstairs and the other downstairs. Plaintiff/Appellant occupied the second story apartment and had lived in the apartment for several years.
The dwelling used to have an outside stairway which led directly from the ground to the upstairs apartment enabling a person to enter the second story apartment without entering the first floor. At a time unknown, but before PlaintiffrAppellant began her tenancy at the dwelling, the stairway was removed and a covered stairway was built leading up to the second story apartment. To accomplish this task, an addition was built which jutted out from the main structure where the stairway had been located. The deck above this addition was directly outside the second story door enabling a person to walk through the second story apartment door onto it. The area outside the door was several feet wide and long, and was more or less flat or with a very slight pitch. Even though the area was elevated over nine feet from the ground, the edge was not protected by a railing. The door which led from the apartment to this area was operational at all times during Plaintiff/Appellant’s tenancy ....
From the first day of her tenancy at the apartment and continuing throughout the term of said tenancy, PlaintifUAppellant Ruth Woodbury used the walk-out deck area of this structure as a balcony/porch/deck.[ ] Ruth would often venture onto this area to answer the door as it would relieve her of the necessity of making a trip up and down the stairs to meet visitors. She would also use this area for flowers or shaking out her area rugs while cleaning the apartment. Any person at the apartment, child and adult alike, could access this area by merely opening the door and walking out.
During the PlaintiffiAppellant’s tenancy, Defendants/Appellees acquired this dwelling solely as income generating property from the previous owner, Helen Braun. Upon purchase from Ms. Braun, Defendants/Appellees made several repairs to the property, including installation of a new furnace near the stairs leading up to the apartment.
This was a concern to Plaintiff/App ellant because if the furnace started a fire, she and her husband would be cut off from the only exit leading to the ground floor from the apartment. In the past, Ruth had always relied on the fact that, in the event of a fire, she could always head out onto the porch area. Defendant/Appellee Charles Bruckner himself considered the door leading to this area as a fire exit and told Plaintiff/App ellant’s husband they should use it as a fire exit. However, with the placement of the new furnace by the stairs, this area became even more important to Ruth and her husband as it might be the only means of escape during a fire. Yet, despite Plaintiff/Appellant’s requests, Defendants/Appellees did not erect a railing to prevent falls from this area.[ ]
On the night of the accident, Ruth, who had difficulty sleeping, was restless and awoke. As she often would during these periods of insomnia, Ruth decided to clean her apartment. After cleaning the inside of the apartment and vacuuming, Ruth went outside onto the second story deck to shake out her throw rugs (ostensibly to avoid creating a dust cloud inside the apartment). Ruth walked onto the area in question and began shaking the rugs when she lost her balance and fell to the ground below, shattering both of her ankles and legs. These injuries ultimately led to the amputation of one of her legs.
Roger Roach, the Petersburg building inspector, soon after this incident, cited Defendants/Appellees for maintaining an elevated area over thirty (30) inches above the ground without a railing ....
In granting defendants’ motion for summary disposition, the lower court ruled that the rooftop was an open and obvious condition:
The Defendants] Bruckners could not anticipate Plaintiff would fail to protect herself from this type of incident. She proceeded to use the roof-top despite the obvious danger of falling from it. This Court will not impose a duty upon a party when none should exist.
In a two-to-one decision, this Court reversed and remanded for further proceedings. Woodbury v Bruckner, unpublished opinion per curiam of the Court of Appeals issued December 1, 1998 (Docket No. 204411). The panel unanimously concluded that the absence of a guardrail on the second-story roof area was an open and obvious condition known to plaintiff. However, the majority held that summaiy disposition was erroneously granted because there was a genuine issue of fact whether the open and obvious condition was unreasonably dangerous:
In this case, the parties agree that the second story rooftop porch did not have a guardrail and both defendants and plaintiff were aware of this condition. The danger of falling from the roof was open and obvious. However, even though the danger was open and obvious, defendants are not necessarily relieved of liability.
In Bertrand v Alan Ford Inc, 449 Mich 606; 537 NW2d 185 (1995), the Supreme Court clarified the duty owed by a landowner to an invitee where the dangerous condition is open and obvious, finding that, although a possessor of land may not have an obligation to warn invitees of an open and obvious danger, the landowner may still have a duty to protect invitees against unreasonably dangerous conditions. Id. at 610-611. The Court stated, “if the risk of harm remains unreasonable, despite its obviousness or despite knowledge of it by the invitee, then the circumstances may be such that the invitor is required to undertake reasonable precautions. The issue then becomes the standard of care and is for the jury to decide.” Id. at 611. See also, Hughes [v PMG Building, Inc, 227 Mich App 1; 574 NW2d 691 (1997)], supra at 10-11; Hottmann v Hottmann, 226 Mich App 171, 175-176; 572 NW2d 259 (1997).
In view of the absence of guardrails, the height of the roof-top porch, and the inherent dangerousness of the condition, we conclude that a genuine issue of fact exists as to whether the risk of plaintiff falling from the roof remained unreasonable. Hottmann, supra at 176. Accordingly, we hold that the trial court erred in granting defendants’ motion for summary disposition. Because of our disposition, it is not necessary for us to address the other issues raised by plaintiff on appeal. [Id. at p 2.]
Defendants’ application for leave to appeal was granted by the Supreme Court and the case was consolidated for purposes of oral argument with Lugo v Ameritech Corp, Inc, Docket No. 112575. 461 Mich 992 (2000). Joint oral arguments were held in the Supreme Court on October 10, 2000. On July 3, 2001, the Supreme Court rendered its decision in Lugo. 464 Mich 512; 629 NW2d 384 (2001). Two days later, the Supreme Court remanded this case to our Court in an order that states in pertinent part:
The cause having been briefed and orally argued, the judgment of the Court of Appeals is vacated, and the case is remanded to that Court for reconsideration in light of Lugo v Ameritech Corp, Inc, 464 Mich 512 (2001). On reconsideration, the Court of Appeals is to determine, inter alia, (1) whether the covenant imposed by MCL 554.139 gave rise to a duty in tort, see Mobil Oil Corp v Thorn, 401 Mich 306, 311-312 (1977); (2) if so, whether defendants can avoid tort liability arising from MCL 554.139 by relying on the open and obvious doctrine; and (3) whether defendants were entitled to summary disposition on their alternate theory that they were “landlords out of possession,” see, e.g., Wallington v Carry, 80 Mich App 248 (1977). [Woodbury v Bruckner, 464 Mich 875 (2001).]
Pursuant to the Supreme Court’s order, we now reconsider the case in light of Lugo, supra, and also consider the three additional issues raised in the order of remand.
n
In Mobil Oil Corp v Thorn, 401 Mich 306; 258 NW2d 30 (1977), the Supreme Court held that the common-law rule that a lessor could not be held liable for injuries arising from a breach of a covenant to do repairs “has been abrogated in its applicability to leases for residential dwellings with the enactment of 1968 PA 286.” Id. at 310. The Court further adopted the rule stated in 2 Restatement Torts, 2d, § 357:
A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if
(a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and
(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented, and
(c) the lessor fails to exercise reasonable care to perform his contract. [Id. at 311-312.]
Tenants are regarded as their landlord’s invitees. Stanley v Town Square Cooperative, 203 Mich App 143, 149; 512 NW2d 51 (1993). Although an invitor has a duty to maintain his property in a reasonably safe condition and is subject to liability for harm caused to invitees because of a condition on the land, ordinarily there is no duty to protect or warn where the danger is open and obvious. Riddle v McLouth Steel Products Corp, 440 Mich 85, 90, 95-96; 485 NW2d 676 (1992). However, “if the risk of harm remains unreasonable, despite its obviousness or despite knowledge of it by the invitee, then the circumstances may be such that the invitor is required to undertake reasonable precautions. The issue then becomes the standard of care and is for the jury to decide.” Bertrand, supra at 611 (applying 2 Restatement Torts, 2d, §§ 343 & 343A ).
m
Pursuant to the Supreme Court’s directive, we now reconsider our prior decision in light of Lugo, supra. After doing so, we conclude that our prior decision is consistent with and supported by Lugo. Accordingly, we again reverse and remand for further proceedings.
In Lugo, our Supreme Court clarified the open and obvious doctrine. In particular, the Court held that “if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk.” Id. at 517 (emphasis added). The Supreme Court defined the term “special aspects” and provided examples of conditions that because of their “special aspects” may be unreasonably dangerous despite being open and obvious. “Special aspects” was defined as those conditions “that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided.” Id. at 519. The risk of “falling an extended distance” was cited as a special aspect. Id. at 520. The illustrations of special aspect conditions discussed in Lugo were “an unguarded thirty foot deep pit in the middle of a parking lot” and standing water at the only exit of a commercial building. Id. at 518. Our Supreme Court explained:
Consistent with Bertrand,, we conclude that, with regard to open and obvious dangers, the critical question is whether there is evidence that creates a genuine issue of material fact regarding whether there are truly “special aspects” of the open and obvious condition that differentiate the risk from typical open and obvious risks so as to create an unreasonable risk of harm, i.e., whether the “special aspect” of the condition should prevail in imposing liability upon the defendant or the openness and obviousness of the condition should prevail in barring liability.
An illustration of such a situation might involve, for example, a commercial building with only one exit for the general public where the floor is covered with standing water. While the condition is open and obvious, a customer wishing to exit the store must leave the store through the water. In other words, the open and obvious condition is effectively unavoidable. Similarly, an open and obvious condition might be unreasonably dangerous because of special aspects that impose an unreasonably high risk of severe harm. To use another example, consider an unguarded thirty foot deep pit in the middle of a parking lot. The condition might well be open and obvious, and one would likely be capable of avoiding the danger. Nevertheless, this situation would present such a substantial risk of death or severe injury to one who fell in the pit that it would be unreasonably dangerous to maintain the condition, at least absent reasonable warnings or other remedial measures being taken. In sum, only those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine. [Id. at 517-519.]
After applying Lugo to the present case, we conclude that the unrailed rooftop porch possesses “special aspects” that differentiate its risk from typical open and obvious conditions so as to create an issue of fact whether the risk of harm was unreasonably dangerous. In fact, Lugo cites the risk of “falling an extended distance” as being within the class of risks that possess an especially high severity of harm. Id. at 520. This is precisely the risk that we address in the present case involving an unguarded rooftop porch. Severe injury should have been expected because of defendants’ failure to remedy the “special aspects” of this open and obvious condition. As we stated in our prior opinion:
In view of the absence of guardrails, the height of the roof-top porch, and the inherent dangerousness of the condition, we conclude that a genuine issue of fact exists as to whether the risk of plaintiff falling from the roof remained unreasonable.
For these reasons, we hold that there are sufficient “special aspects” inherent in the unguarded rooftop porch to permit a jury to find the condition to be unreasonably dangerous despite being open and obvious.
IV
Next, we are asked by the Supreme Court’s order to decide “whether the covenant imposed by MCL 554.139[ ] gave rise to a duty in tort, see Mobil Oil Corp v Thorn, 401 Mch 306, 311-312 (1977).”
The concept of duty encompasses whether the defendant owes the plaintiff any obligation to avoid negligent or other conduct. Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977); Hakari v Ski Brule, Inc, 230 Mich App 352, 359; 584 NW2d 345 (1998). In deciding whether a common-law duty should be imposed, “the court must look at several factors, including the relationship of the parties, the foreseeability of harm, the burden on the defendant, and the nature of the risk presented.” Id. In regard to the present landlord-tenant relationship, our Supreme Court in Mobil Oil, supra, held that a duty in tort exists. Further, defendants concede the existence of a duty to plaintiff. Accordingly, whether an independent duty in tort also arises by operation of MCL 554.139 is irrelevant. Instead, our common-law rules and any applicable statutory provisions axe important in determining the scope of defendant’s duty, not its existence.
v
The next issue raised by the Supreme Court is “if [a duty in tort exists], whether defendants can avoid tort liability arising from MCL 554.139 by relying on the open and obvious doctrine.”
As previously noted, tenants are invitees of their landlords. Stanley, supra. Further, the open and obvious doctrine applies to the duty of an invitor to an invitee. Riddle, supra. While we conclude the open and obvious doctrine may be raised by defendants, we hold that under the facts of the present case it is not applicable because a question of fact exists whether the unguarded rooftop porch was unreasonably dangerous despite being open and obvious.
VI
Finally, the Supreme Court asks “whether defendants were entitled to summary disposition on their alternate theory that they were ‘landlords out of possession,’ see, e.g., Wallington v Carry, 80 Mich App 248 [263 NW2d 338] (1977).” We hold that they are not. Wallington was a decision of our Court that applied the law of the state of Michigan, as it existed before Mobil Oil, supra. In Mobil Oil, our Supreme Court adopted 2 Restatement Torts, 2d, § 357 and expressly overruled the prior limitations of landlord liability as set forth in Kuyk v Green, 219 Mich 423; 189 NW 25 (1922), Awad v McColgan, 357 Mich 386; 98 NW2d 571 (1959), and Huey v Barton, 328 Mich 584; 44 NW2d 132 (1950). This now overruled line of authority was well summarized in Lipsitz v Schechter, 377 Mich 685, 687; 142 NW2d 1 (1966):
At common law, a landlord’s duty depends upon the facts and circumstances of each case. The element of control is of prime importance. Huey v Barton, 328 Mich 584, 588; 52 CJS, Landlord and Tenant, § 427, p 100. The common-law duty is predicated upon the concept that a lease is equivalent to a sale. The lessor, absent agreement to the contrary, surrenders possession and holds only a reversionary interest. Under such circumstances, he is under no obligation to look after or keep in repair premises over which he has no control. Prosser, Torts (3d ed), § 63, pp 411, 412; Harkrider, Tort Liability of a Landlord, 26 Mich L Rev 260, 383.
Relying on the “landlords out of possession” limitation of liability set forth in Lipsitz, supra, Huey, supra, and Kuyk, supra, our Court in Wallington, supra at 249-250, stated:
The general rule in Michigan, as the trial court correctly points out, is that in the absence of a statute requiring that a dwelling be kept in good repair by the owner or a special agreement under which an owner retains control of a dwelling occupied by a tenant, a landlord has no duty to inspect or repair rented premises. Lipsitz v Schechter, 377 Mich 685; 142 NW2d 1 (1966)....
Because the “landlords out of possession” doctrine has been overruled by our Supreme Court, we refuse to affirm the grant of defendant’s motion for summary disposition on this alternative ground.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
Defendants characterize this 8’ x 10’ walkout area as a mere flat roof.
Defendants deny that such requests were made. However, John Wood-bury in his deposition testified as follows:
Q. Did you ask him [Charles Bruckner] to do any more than that?
A. I think we did mention that we would like a railing put out there.
Q. You think? Why did you ask that?
A. Because it was a good idea at the time, I thought.
Q. Now, you say you think you asked Bruckner to put a railing—
A. I’m almost sure while they were doing the work we requested that a railing be put up. But to what date or what time, I cannot swear to, but I’m. sure that we’ve asked him more than once. [Emphasis added.]
Judge Danhof filed a dissenting opinion.
In their original Court of Appeals brief, defendants admitted that “[p]laintiff, as a tenant of the Buckners, was a business invitee on their property.” Further, defendants conceded that the scope of their duty to plaintiff was governed by 2 Restatement Torts, 2d, §§ 343 and 343A.
2 Restatement Torts, 2d, § 343 provided:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
2 Restatement Torts, 2d, § 343A provided:
A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
MCL 554.139 provides:
(1) In every lease or license of residential premises, the lessor or licensor covenants: (a) That the premises and all common areas are fit for the use intended by the parties.
(b) To keep the premises in reasonable repair during the term of the lease or license, and to comply with the applicable health and safety laws of the state and of the local unit of government where the premises are located, except when the disrepair or violation of the applicable health or safety laws has been caused by the tenants wilful or irresponsible conduct or lack of conduct.
(2) The parties to the lease or license may modify the obligations imposed by this section where the lease or license has a current term of at least 1 year.
(3) The provisions of this section shall be liberally construed, and the privilege of a prospective lessee or licensee to inspect the premises before concluding a lease or license shall not defeat his right to have the benefit of the covenants established herein.
See, generally, Klanseck v Anderson Sales & Service, Inc, 426 Mich 78; 393 NW2d 356 (1986). | [
15,
19,
-45,
6,
-35,
-36,
-2,
66,
0,
6,
22,
-8,
4,
-33,
38,
-1,
-16,
34,
-39,
-26,
-45,
-7,
-1,
27,
5,
24,
26,
0,
64,
46,
29,
3,
51,
-16,
12,
-8,
73,
54,
-20,
19,
29,
37,
17,
-32,
-35,
-13,
38,
4,
34,
-6,
-36,
32,
10,
-3,
11,
-1,
-16,
38,
29,
74,
-1,
15,
-56,
-23,
22,
15,
38,
-6,
-38,
-39,
31,
-12,
-21,
3,
-30,
30,
-35,
12,
32,
29,
11,
-34,
10,
-23,
-3,
10,
1,
-7,
-7,
12,
0,
28,
-14,
1,
10,
46,
-2,
-9,
31,
39,
9,
31,
1,
-13,
18,
-4,
11,
-38,
-30,
10,
-18,
14,
16,
-19,
14,
-33,
2,
-1,
-18,
29,
61,
36,
51,
-10,
-31,
-24,
-23,
-51,
11,
-22,
8,
43,
-30,
19,
-21,
-21,
21,
50,
-2,
-35,
-33,
20,
23,
-33,
-32,
39,
-45,
10,
-88,
28,
5,
37,
-51,
10,
22,
-23,
-3,
23,
-11,
20,
24,
-22,
26,
-31,
-4,
-18,
-47,
-25,
-10,
-24,
38,
-16,
22,
-21,
74,
60,
6,
41,
-20,
19,
1,
0,
25,
1,
-93,
-3,
19,
12,
-29,
26,
6,
-37,
-40,
33,
12,
48,
-12,
49,
-10,
-16,
-48,
-43,
-32,
-48,
41,
-45,
17,
-53,
24,
-65,
-21,
18,
-70,
-29,
42,
-13,
31,
-19,
1,
59,
-85,
-12,
44,
39,
-41,
-8,
-9,
31,
40,
-10,
60,
35,
21,
23,
0,
17,
-31,
3,
39,
-55,
17,
24,
-31,
-68,
33,
-9,
-84,
-22,
26,
-13,
51,
-54,
-34,
7,
-23,
-15,
-16,
-3,
47,
-2,
17,
49,
-13,
-17,
24,
57,
9,
29,
-76,
-7,
-33,
46,
-5,
28,
2,
-9,
-32,
53,
16,
-17,
14,
-13,
29,
-16,
11,
-18,
11,
47,
12,
-46,
8,
-10,
-52,
2,
-8,
-13,
-11,
-34,
-72,
-15,
29,
-49,
16,
-1,
6,
81,
72,
21,
-17,
-12,
-6,
27,
97,
-14,
18,
18,
-28,
36,
18,
-25,
-1,
-24,
11,
-53,
60,
24,
35,
-24,
-34,
64,
-27,
-1,
-28,
2,
-9,
38,
18,
4,
-14,
42,
-55,
-14,
-31,
-46,
-13,
25,
-29,
49,
3,
-25,
-11,
-11,
-13,
0,
20,
-13,
7,
7,
-24,
41,
0,
8,
-29,
-8,
-10,
-35,
-24,
-5,
-7,
28,
27,
-43,
-3,
11,
-9,
-5,
-5,
-17,
-5,
43,
-29,
-39,
17,
-8,
-24,
-38,
-44,
-9,
63,
20,
-31,
-2,
45,
-11,
-11,
-17,
-8,
14,
12,
-8,
-1,
2,
36,
20,
-55,
-22,
-18,
-19,
7,
30,
-43,
-3,
-9,
36,
-55,
19,
-22,
-8,
-7,
39,
19,
0,
31,
-8,
13,
-21,
-8,
-62,
-13,
0,
-44,
-22,
-6,
-34,
-4,
36,
-42,
-36,
-27,
-3,
-29,
-42,
-76,
-7,
19,
19,
14,
-27,
32,
-27,
14,
67,
-23,
-6,
-26,
-23,
6,
0,
12,
-27,
94,
-30,
-3,
12,
31,
-15,
-56,
-12,
2,
-32,
20,
-25,
2,
62,
-17,
12,
19,
22,
-77,
18,
-16,
45,
53,
10,
-20,
30,
-5,
1,
16,
6,
5,
0,
60,
-11,
-29,
16,
-24,
-10,
-33,
-1,
-42,
15,
20,
-6,
79,
-45,
-24,
16,
20,
58,
-29,
15,
3,
20,
-18,
-52,
51,
-37,
20,
-14,
-6,
-19,
31,
-3,
-28,
42,
16,
28,
-29,
41,
78,
-31,
7,
-39,
15,
18,
4,
21,
31,
-19,
27,
54,
55,
14,
-20,
33,
24,
0,
-27,
69,
3,
-15,
6,
67,
29,
-25,
-2,
-10,
-2,
24,
5,
-30,
22,
6,
30,
-8,
-33,
5,
17,
-1,
-24,
45,
-9,
-14,
-78,
1,
30,
10,
-16,
18,
-30,
33,
36,
-36,
-40,
4,
54,
37,
-12,
24,
-56,
-13,
25,
-6,
13,
-7,
-40,
-16,
-38,
-3,
3,
-26,
-33,
-14,
6,
-13,
93,
10,
6,
17,
33,
18,
-52,
22,
-47,
0,
6,
8,
-19,
14,
-21,
8,
-86,
45,
-25,
-29,
-21,
34,
-44,
-19,
-17,
35,
-30,
-3,
-31,
-17,
42,
-46,
-2,
-36,
-74,
62,
-1,
3,
-4,
-23,
38,
-15,
-41,
0,
-51,
40,
-12,
17,
31,
-45,
-42,
-11,
15,
-53,
-5,
18,
13,
-3,
-40,
-4,
-39,
-50,
18,
-33,
-3,
38,
-8,
82,
4,
-48,
-8,
10,
19,
14,
-12,
-24,
7,
-32,
17,
-23,
6,
35,
6,
-4,
-45,
13,
-2,
25,
-23,
33,
61,
-17,
-4,
26,
-27,
-48,
25,
41,
-6,
-51,
-22,
-1,
-33,
-32,
-41,
59,
10,
6,
30,
50,
-44,
-43,
10,
-2,
25,
16,
20,
-36,
0,
-16,
5,
14,
16,
-12,
-59,
13,
-31,
-4,
-24,
3,
-15,
49,
10,
5,
-17,
-26,
2,
-33,
-7,
34,
67,
-21,
10,
-10,
24,
45,
6,
-1,
-19,
18,
32,
-42,
-48,
0,
37,
-28,
-7,
24,
-6,
-2,
-25,
-70,
45,
-33,
-50,
2,
4,
17,
-19,
34,
9,
-24,
55,
-43,
-63,
-55,
-14,
0,
-19,
-41,
0,
-65,
35,
3,
-43,
37,
-31,
5,
44,
-14,
11,
-40,
-32,
23,
-12,
48,
3,
19,
27,
-10,
-15,
54,
14,
0,
33,
-40,
-11,
-23,
-25,
11,
18,
-11,
37,
-3,
-37,
26,
-33,
-49,
12,
-22,
5,
-14,
52,
-24,
-11,
0,
-31,
-1,
3,
-31,
-3,
43,
40,
23,
-9,
4,
11,
11,
17,
-22,
-19,
13,
12,
20,
23,
20,
22,
-1,
-10,
39,
-18,
66,
22,
6,
0,
0,
-29,
28,
3,
-14,
-33,
29,
58,
4,
-9,
32,
-5,
-3,
14,
2,
15,
-1,
11,
-19,
-8,
39,
10,
20,
4,
-18,
-40,
-39,
-20,
-12,
34,
109,
51,
20,
-64,
11,
20,
-8,
-7,
-21,
-54,
13,
1,
13,
33,
-28,
-9,
11,
0,
-70,
0,
28,
0,
12,
29,
-3,
-48,
-45,
-13,
22,
-11,
47,
28,
-19,
-28,
26,
14,
0,
-17,
51,
17,
-15,
0,
-13,
39,
-12,
27,
-38,
-52,
-37,
-29,
-48,
-29,
50,
-45,
-52,
49,
9,
-3,
-20,
-24,
-1,
8,
18,
-31,
24,
19,
-9,
-69,
-20,
-33,
3,
-9,
-20,
22,
34,
-16,
-6,
-14,
-27,
-3,
-15,
18,
-22,
-1,
-25,
5,
0,
-44,
41,
14,
-24,
-2,
18,
-34,
-33,
28,
-9,
-13,
-25,
-2,
-56,
10,
73,
-22,
-7,
-59,
-11,
-8,
0,
-28,
-12,
21,
-17,
-5,
-15,
14,
43,
-39,
2,
-5,
15,
48,
-12,
11,
-14,
-42,
27,
-42,
0,
56,
-16,
2,
-6
] |
Saad, J.
I. NATURE OF THE CASE
As part of Michigan’s tort reform legislation of 1995, the Legislature replaced the common-law doctrine of joint and several liability among multiple tortfeasors with the doctrine of several liability. Under the former system, any one of multiple tortfeasors could be responsible for all damages awarded to the plaintiff, notwithstanding that the individual tortfeasor was only partially at fault for the injuries or damages sustained by the plaintiff. Under the statutory several liability system, defendants now are only accountable for damages in proportion to their percentage of fault.
Consistent with this new several liability scheme, the remaining defendant here intended to argue to the jury that two former party defendants with whom plaintiff settled were partially at fault for plaintiff’s injuries and that the juiy should attribute a percentage of fault to them. However, the trial court prohib ited defendant from making that argument. Because the trial court’s decision directly repudiates the clear language of the statute, we reverse.
n. FACTS
Plaintiff, Helene Smiley, claims that she was injured during a September 29, 1994, golf lesson at Jawor’s U.S.A. Sports, Inc., driving range when defendant, Helen Corrigan, struck her in the head with a seven iron while Corrigan was practicing her backswing. In her complaint, Smiley contends that there were three negligent parties or co-tortfeasors: Jawor’s, the facility at which Corrigan was taking golf lessons, Tom Schall, Corrigan’s golf instructor, and Corrigan, the golf student.
By January 1998, Smiley settled her claims with Jawor’s and Schall for $25,000. Before trial, Smiley filed a motion to preclude Corrigan from arguing that the settling defendants shouldered some responsibility for Smiley’s injuries. Specifically, Smiley asserted:
The trier of fact is not required to ascertain percentages of fault of joint tortfeasors who have settled with an injured party and are not parties to the lawsuit between the injured party and the remaining tortfeasor.
Following oral argument, the trial court ruled that Corrigan could not argue the liability of the settling tortfeasors. Corrigan then filed an emergency application for leave to appeal, which this Court granted on March 26, 1999.
m. ANALYSIS
As part of its tort reform legislation, the Michigan Legislature abolished joint and several liability and replaced with “fair share liability.” The significance of the change is that each tortfeasor will pay only that portion of the total damage award that reflects the tortfeasor’s percentage of fault. Accordingly, if the factfinder concludes that a defendant is ten percent at fault for a plaintiff’s injuries and awards the plaintiff $100,000 in damages, the defendant will be responsible only for $10,000, not the entire damage award, as would have been the case under the former joint and several liability system. The Legislature made its intent to achieve this result very clear through its modifications to a number of statutes and its enactment of new statutes to reflect the changes in Michigan’s civil justice system:
Except as provided in section 6304, in an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each defendant for damages is several only and is not joint.. . . [MCL 600.2956 (emphasis added).]
The language is unequivocal and is reiterated in numerous other statutory sections: each defendant, in a multiple tortfeasor context, bears responsibility for only that portion of the damage that is “in direct proportion to the person’s percentage of fault.” MCL 600.2957(1) (emphasis added).
The Legislature further declared, clearly and unmistakably, that the trier of fact must consider the fault of each person who contributed to the tort, not only those who are parties to the litigation:
In assessing percentages of fault under this subsection, the trier of fact shall consider the fault of each person, regardless of whether the person is, or could have been, named as a party of the action. [MCL 600.2957(1) (emphasis added).]
Indeed, to remove any doubt that the determination of percentages of fault should include all possible tortfeasors, the Legislature enacted MCL 600.2957(3), which provides, in pertinent part:
Assessments of percentages of fault for non-parties are used only to accurately determine the fault of named parties. If fault is assessed against a nonparty, a finding of fault does not subject the nonparty to liability in that action and shall not be introduced as evidence of liability in another action.
The statutes explicitly require the trier of fact to make specific findings regarding:
(a) The total amount of each plaintiff’s damages.
(b) The percentage of total fault of all persons that contributed to the death or injury, including each plaintiff and each person released from liability under section 2925d, regardless of whether the person was or could have been named a party to the action. [MCL 600.6304(1) (emphasis added).]
Contrary to Smiley’s arguments, the foregoing statutory language is neither unclear nor inconsistent. Accordingly, there is no need to resort to rules of judicial construction or to delve into the legislative intent, and in fact, we are precluded from so doing. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). The words of the statute unambiguously tell the trial court what to do under the circumstances of this case: Corrigan will be responsible only for that portion of plaintiff’s damages that correlate to her percentage of fault, and it is for the trier of fact to expressly make that determination, which, contrary to Smiley’s assertions, we are confident the jury is able to do as long as Corrigan is free to present evidence and argue to the jury the fault attributable to the two settling parties in the conduct that led to Smiley’s injuries.
Tactically, Corrigan will try to minimize her fault at trial and will attempt to maximize the fault of Jawor’s and Schall and, perhaps, even Smiley. On the other side, Smiley will try to minimize the fault of the settling defendants, because she has already received money from them and now must try to maximize her award against the remaining defendant, Corrigan. The Legislature was not persuaded by, and we also reject, Smiley’s argument that it is fundamentally unreasonable to force a plaintiff to “defend” settling tortfeasors. Contrary to Smiley’s contention, the very nature of litigation imposes the burden on the plaintiff to prove that the primary fault rests with the defendant at trial, and it is the defendant’s strategic burden to argue and prove that the fault rests elsewhere. It is for the Legislature, not this Court, to consider policy arguments underlying the “empty chair” defense, and, again, the Legislature clearly rejected those arguments by opting for an unambiguous several liability statutory scheme.
Accordingly, the trial court’s grant of Smiley’s motion was clearly contrary to the plain language of the statutes.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
See 1995 PA 161; 1995 PA 249.
MCL 600.2956.
Though the language of the statutory sections at issue is clear and unambiguous, the reasons supporting the legislation are aptly stated in House Legislative Analysis, House Bill 4508 (Substitute H-6), April 27, 1995, p 3:
This bill takes a common sense approach to reforming the state’s civil justice system. It says, in essence, that defendants should pay their fair share of damage awards and no more.... This bill would essentially abolish joint and several liability and replace it with “fair share liability.” . . .
Allowing the apportionment of fault to “non-parties,” those not involved in the lawsuit, is also a means of providing fair treatment for defendants. Currently, fault is apportioned among the parties to a lawsuit but the fault of a non-party is not taken into account as a means of reducing the liability of an at-fault defendant. . . . This is clearly unjust and it imposes an unnecessary burden on those identified as “deep pockets” defendants.
Id.
The Legislature did not abolish joint and several liability in medical malpractice actions or in cases in which the defendant’s act or omission is a crime involving gross negligence or the use of alcohol or controlled substances. See MCL 600.6304(6); MCL 600.6312.
For a scholarly discussion of these issues, see Wright, Allocating liability among multiple responsible causes: A principled defense of joint and several liability for actual harm and risk eocposure, 21 U C Davis L R 1141 (1988); Twerski, The joint tortfeasor legislative revolt: A rational response to the critics, 22 U C Davis L R 1125 (1989); Wright, Throwing out the baby with the bathwater: A reply to Professor Twerski, 22 U C Davis L R 1147 (1989); Wright, The logic and fairness of joint and several liability, 23 Mem St U L R 45 (1992).
We are not persuaded by Smiley’s constitutional arguments. Smiley fails to articulate how the allocation of fault among all tortfeasors violates the Equal Protection Clause, and she identifies no class of similarly situated persons treated differently. US Const, Am XIV; Const 1963, art 1, § 2. Further, Smiley fails to demonstrate how the legislation is not rationally related to achieving the Legislature’s interest in ensuring “fair share damage awards.” House Legislative Analysis, HB 4508 (Substitute H-6), April 27, 1995; Neal v Oakwood Hosp Corp, 226 Mich App 701, 719; 575 NW2d 68 (1997). We reject the reasoning of the Montana Supreme Court in Plumb v Fourth Judicial Dist Ct, Missoula Co, 273 Mont 363; 927 P2d 1011 (1996). Here, nonparties are not bound by the jury’s allocation of fault under MCL 600.2957(3), and we find no logical basis to conclude that evidence regarding the culpability of all tortfeasors involved in an incident will render the jury’s verdict less accurate, as the Plumb Court appeared to conclude. Plumb, supra at 377-378. Moreover, Smiley fails to identify how the legislation violates a protected liberty or property interest under the Due Process Clause. US Const, Am XIV; Const 1963, art 1, § 17. Accordingly, we decline to further address these constitutional arguments. | [
-40,
28,
-31,
-7,
-30,
-32,
27,
4,
9,
-20,
-16,
4,
10,
-19,
7,
13,
-1,
-24,
-40,
-8,
17,
-23,
-45,
8,
-6,
-4,
75,
-32,
68,
-57,
2,
-1,
5,
31,
-56,
-8,
2,
33,
-50,
37,
66,
26,
10,
-65,
-27,
4,
77,
-34,
50,
-28,
-15,
-30,
-21,
-1,
-12,
0,
-7,
29,
5,
-41,
44,
-3,
0,
10,
11,
-48,
78,
1,
16,
-55,
-29,
10,
0,
-24,
-62,
22,
12,
3,
-43,
-50,
18,
22,
3,
13,
-12,
-13,
-19,
19,
-28,
-19,
-77,
-7,
-51,
28,
19,
-44,
13,
-27,
19,
-5,
44,
1,
-3,
5,
-17,
-19,
-28,
-29,
-12,
18,
-46,
88,
-9,
-20,
-20,
-23,
4,
4,
20,
73,
-24,
22,
46,
9,
-4,
60,
-27,
-34,
19,
-13,
21,
1,
-34,
-52,
-58,
2,
-3,
12,
13,
6,
-22,
-11,
5,
-56,
-1,
71,
-76,
-39,
19,
-35,
23,
0,
10,
42,
-33,
-51,
5,
34,
41,
-4,
-15,
-23,
37,
24,
16,
11,
-3,
6,
26,
-9,
31,
-18,
29,
-20,
0,
-11,
39,
-36,
-42,
10,
-13,
22,
22,
20,
19,
-56,
-25,
-41,
-33,
56,
34,
-49,
-46,
-28,
0,
4,
10,
64,
18,
20,
16,
-30,
-2,
-40,
18,
17,
32,
31,
-21,
-2,
-6,
-17,
-62,
-17,
14,
2,
61,
-32,
-57,
-34,
-15,
27,
27,
-27,
-13,
-60,
-41,
-53,
13,
-11,
25,
-37,
14,
19,
-21,
-23,
-20,
-8,
65,
30,
-8,
1,
-35,
-24,
79,
-50,
5,
16,
-2,
-14,
31,
-15,
13,
-20,
-31,
-10,
28,
43,
-71,
34,
-61,
35,
-6,
-18,
-36,
0,
0,
69,
-5,
22,
-15,
-42,
35,
-19,
-9,
-85,
-19,
63,
43,
27,
21,
60,
22,
-29,
17,
30,
-18,
53,
-43,
-54,
-19,
-45,
33,
-10,
14,
83,
44,
-38,
-10,
47,
-8,
-19,
56,
35,
13,
2,
-59,
-16,
34,
-16,
-36,
-9,
-2,
-45,
-3,
-19,
-28,
31,
44,
-21,
-12,
2,
13,
6,
-48,
-81,
42,
12,
7,
2,
-56,
20,
14,
-25,
-5,
-76,
37,
-7,
-23,
-7,
28,
-33,
77,
-46,
56,
24,
-10,
61,
-29,
-15,
-31,
46,
26,
-25,
14,
6,
24,
-46,
16,
27,
22,
-5,
-48,
-22,
-26,
39,
-20,
-15,
17,
94,
-1,
15,
0,
23,
-9,
-48,
11,
6,
-39,
44,
-14,
-2,
9,
8,
46,
-49,
-56,
-35,
-25,
33,
-54,
-45,
10,
4,
96,
67,
-23,
7,
-32,
-1,
79,
30,
12,
-28,
-30,
-3,
-13,
-50,
4,
22,
-12,
-22,
34,
45,
60,
19,
3,
-88,
-18,
-6,
57,
-33,
-5,
-38,
-19,
-76,
-6,
-32,
-35,
-21,
-7,
69,
28,
-21,
39,
-21,
-58,
-11,
-39,
-21,
1,
2,
-10,
-1,
-9,
67,
-70,
10,
35,
-11,
31,
21,
14,
-24,
-43,
-1,
47,
4,
-9,
-81,
0,
-33,
-11,
6,
70,
-57,
-11,
-20,
2,
-25,
31,
-54,
4,
13,
43,
20,
20,
26,
-42,
20,
-31,
13,
-24,
-21,
-28,
-26,
-55,
37,
6,
-66,
1,
0,
39,
53,
-67,
42,
-26,
8,
-59,
47,
-30,
15,
-34,
6,
7,
-13,
33,
-50,
6,
16,
-48,
-17,
31,
42,
-42,
-3,
-5,
-44,
-5,
-18,
-12,
-53,
-52,
-26,
-3,
-55,
0,
25,
31,
0,
66,
-24,
-20,
-21,
34,
40,
5,
2,
-24,
-12,
-1,
42,
23,
25,
65,
-38,
9,
19,
49,
-1,
36,
-48,
-4,
7,
8,
55,
7,
-20,
29,
-21,
-7,
-15,
5,
10,
-24,
14,
29,
6,
30,
-23,
8,
-38,
11,
-37,
0,
-11,
35,
-16,
-34,
15,
-21,
6,
-35,
10,
-28,
11,
11,
25,
30,
8,
1,
23,
-58,
49,
-8,
-1,
74,
9,
-28,
5,
-15,
-40,
-29,
21,
24,
17,
-4,
-52,
-4,
-44,
5,
-4,
-36,
-36,
1,
-22,
-14,
-44,
29,
47,
40,
2,
59,
6,
48,
-7,
-7,
57,
-7,
-50,
24,
-27,
-39,
30,
-21,
9,
15,
54,
2,
8,
-8,
27,
-10,
63,
40,
18,
-29,
20,
-55,
-44,
-26,
25,
-15,
-57,
2,
-75,
-53,
70,
-58,
-31,
22,
33,
6,
-4,
0,
38,
28,
-20,
3,
-12,
40,
17,
57,
34,
65,
15,
19,
7,
-19,
37,
25,
-37,
9,
55,
23,
9,
-57,
-38,
42,
10,
11,
40,
-45,
-30,
13,
-6,
20,
6,
-34,
-5,
-51,
-3,
-2,
-19,
-6,
-14,
-2,
-1,
37,
25,
-12,
-19,
31,
-5,
62,
77,
-19,
-10,
-71,
14,
-5,
18,
85,
-25,
54,
-64,
22,
9,
27,
-4,
71,
0,
14,
4,
51,
61,
35,
25,
17,
8,
0,
-31,
17,
44,
-10,
-47,
-24,
10,
90,
-3,
-53,
-1,
8,
9,
-68,
-4,
26,
12,
-33,
49,
9,
7,
-4,
-32,
-1,
-59,
40,
21,
45,
-36,
16,
3,
-4,
35,
-25,
-25,
20,
-24,
-60,
-42,
28,
-23,
34,
-28,
10,
19,
41,
-76,
-19,
1,
-6,
35,
-9,
11,
13,
-17,
-22,
13,
-1,
-4,
-8,
37,
-7,
19,
10,
-23,
3,
1,
35,
10,
-5,
-40,
-14,
16,
26,
35,
0,
-41,
-5,
-13,
-9,
-7,
12,
-5,
15,
-39,
0,
-15,
-36,
-4,
45,
-9,
-52,
5,
46,
9,
18,
-7,
-35,
-35,
55,
18,
-72,
42,
28,
35,
23,
-9,
-48,
-10,
-36,
21,
-11,
63,
-15,
21,
-57,
-18,
-2,
-22,
24,
-36,
-72,
54,
-18,
38,
54,
29,
-18,
36,
0,
25,
16,
-16,
32,
10,
-36,
-9,
-37,
-22,
-4,
13,
-38,
16,
-12,
-9,
32,
-17,
-76,
-19,
42,
44,
10,
-13,
-42,
-20,
8,
1,
14,
-22,
-45,
0,
-5,
-7,
56,
51,
0,
33,
-11,
41,
21,
-22,
11,
50,
-25,
37,
14,
1,
-1,
30,
-45,
11,
25,
-33,
-42,
-19,
20,
15,
-39,
11,
-66,
-30,
-39,
-29,
29,
-13,
45,
-34,
5,
-46,
4,
24,
21,
50,
-33,
-32,
10,
-21,
-7,
13,
-22,
17,
3,
33,
-13,
-42,
17,
48,
-40,
23,
39,
21,
-20,
-12,
-2,
-52,
-54,
-31,
0,
48,
25,
-8,
-50,
12,
-15,
-14,
9,
10,
-41,
-29,
-51,
23,
24,
-1,
-36,
9,
-33,
23,
-53,
-14,
-47,
10,
-26,
59,
-27,
-5,
34,
67,
100,
-16,
10,
28,
29,
-14,
-62,
43,
16,
54,
51,
32,
-21,
36,
2,
-24,
19,
23,
-48,
13,
-20,
-37,
-40,
40,
16,
-6
] |
Grant, J.
(after stating the facts). The court was in error. The general appearance and notice of trial operated as a waiver of the failure to file the bond and affidavit, within the time required by the statute, and gave the circuit court jurisdiction of the case. McCombs v. Johnson, 47 Mich. 593 (11 N. W. 400); Hamilton v. Wayne Circuit Judge, 53 Mich. 409 (18 N. W. 193); Sherwood v. Ionia Circuit Judge, 107 Mich. 136 (64 N. W. 1045).
Judgment reversed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
41,
13,
20,
10,
-74,
16,
37,
-37,
27,
18,
40,
-42,
5,
-19,
40,
11,
8,
21,
-5,
8,
-9,
13,
11,
46,
-49,
5,
24,
45,
-8,
-18,
5,
-20,
-1,
55,
-10,
4,
18,
-42,
53,
-5,
32,
-10,
-40,
3,
-45,
-19,
29,
-24,
58,
-38,
-34,
-2,
-68,
11,
-4,
25,
-20,
-49,
-38,
-11,
10,
-15,
0,
-32,
-37,
-53,
-4,
8,
21,
-31,
61,
32,
7,
38,
22,
17,
20,
-6,
-20,
18,
42,
-11,
-10,
-16,
4,
-53,
-23,
-39,
5,
-5,
-24,
16,
-81,
-40,
1,
-7,
3,
-46,
11,
-6,
-38,
25,
2,
22,
-15,
1,
2,
-18,
-28,
15,
25,
-41,
21,
-12,
-27,
-21,
-26,
12,
-1,
-26,
22,
-21,
46,
41,
18,
38,
11,
-3,
-22,
-51,
10,
26,
24,
5,
4,
-1,
-2,
47,
18,
1,
43,
19,
10,
-4,
29,
-22,
81,
-7,
-44,
20,
7,
24,
3,
25,
11,
36,
38,
-29,
-36,
1,
44,
23,
-23,
-6,
-4,
-23,
-26,
4,
-4,
-31,
-17,
40,
-6,
-8,
-19,
12,
-40,
4,
56,
2,
-18,
10,
-3,
-49,
15,
25,
25,
-40,
-48,
-9,
-36,
32,
-19,
6,
27,
29,
8,
8,
4,
18,
-35,
-1,
-27,
20,
-4,
-39,
5,
-36,
-20,
29,
-36,
-6,
38,
-7,
-3,
-18,
12,
-7,
9,
0,
-13,
31,
-11,
-15,
-11,
-18,
30,
26,
-23,
19,
-3,
25,
42,
13,
24,
-31,
-15,
-44,
34,
21,
-22,
34,
10,
30,
8,
-2,
-27,
-27,
18,
-8,
0,
41,
10,
11,
-30,
27,
55,
-14,
-40,
-13,
1,
20,
-70,
-25,
-1,
37,
21,
67,
-14,
-20,
-40,
-21,
1,
5,
35,
-24,
-13,
19,
5,
0,
-9,
14,
-62,
55,
-43,
42,
-20,
31,
15,
33,
47,
-14,
-25,
37,
49,
-34,
16,
6,
-17,
0,
46,
77,
-4,
21,
-17,
-19,
-13,
23,
-50,
9,
-10,
91,
1,
5,
4,
23,
0,
-23,
47,
-52,
-41,
31,
-1,
-44,
23,
13,
21,
-27,
-54,
-9,
-21,
-11,
-35,
7,
0,
28,
13,
4,
-9,
-14,
-27,
-29,
8,
25,
-20,
11,
-2,
3,
0,
10,
-6,
10,
20,
19,
-26,
-47,
-23,
-55,
2,
-39,
34,
-25,
-5,
29,
18,
-6,
-32,
28,
68,
26,
25,
-28,
-4,
9,
-21,
-26,
16,
-20,
-31,
26,
-1,
-17,
-30,
23,
16,
13,
-39,
-15,
10,
-7,
-37,
-25,
-18,
-36,
-26,
17,
1,
6,
-12,
7,
-45,
11,
3,
-12,
-63,
12,
-59,
-13,
10,
-41,
-32,
6,
16,
16,
-17,
-3,
35,
23,
-16,
-13,
10,
-16,
26,
-31,
-25,
8,
49,
87,
30,
-9,
35,
-16,
42,
-49,
3,
65,
-42,
-52,
-25,
14,
18,
-19,
-46,
-2,
-12,
-19,
0,
-34,
-39,
17,
72,
-20,
28,
10,
-25,
-15,
5,
-15,
-26,
-26,
42,
-41,
-18,
11,
-18,
41,
-29,
-34,
-9,
-34,
-32,
-8,
-4,
-13,
-48,
23,
-77,
0,
-10,
21,
11,
5,
-36,
3,
-4,
32,
-45,
-57,
21,
17,
14,
20,
-16,
-28,
-10,
4,
-16,
2,
-24,
-6,
-20,
34,
12,
-19,
17,
23,
42,
-27,
-50,
8,
17,
-3,
-8,
68,
-16,
31,
10,
-11,
3,
7,
38,
30,
-31,
45,
-4,
39,
-34,
15,
8,
13,
-6,
40,
25,
-39,
-6,
74,
-34,
2,
-24,
-7,
-5,
35,
-1,
8,
21,
10,
-12,
30,
-7,
-31,
0,
-24,
-1,
-50,
-24,
21,
-5,
-4,
21,
-13,
41,
-19,
45,
13,
54,
19,
-7,
-35,
20,
-21,
20,
-26,
-47,
-2,
16,
4,
0,
36,
-8,
7,
11,
16,
-58,
-46,
-17,
23,
34,
-35,
17,
-19,
13,
-12,
12,
-9,
-22,
-34,
-32,
10,
42,
34,
40,
5,
-60,
56,
65,
-6,
-5,
25,
-57,
2,
6,
5,
28,
-3,
24,
7,
-17,
-10,
-51,
47,
3,
17,
5,
39,
3,
-21,
-17,
-30,
6,
-17,
-10,
25,
-13,
1,
-26,
0,
-24,
-6,
12,
-9,
-27,
56,
10,
-11,
36,
-5,
-57,
-31,
4,
-15,
-4,
25,
0,
-48,
59,
-13,
48,
-27,
41,
-35,
60,
31,
-19,
42,
17,
-23,
-20,
-16,
27,
18,
49,
-11,
35,
49,
25,
13,
48,
-10,
18,
0,
6,
9,
16,
0,
-3,
-6,
-42,
29,
-41,
4,
2,
56,
26,
-15,
29,
-48,
15,
38,
-28,
-24,
16,
23,
-23,
5,
3,
2,
12,
-29,
19,
-24,
-47,
32,
-11,
30,
36,
-6,
-1,
-3,
0,
-25,
4,
-32,
-41,
-23,
30,
-21,
-23,
-27,
2,
-40,
4,
-7,
-32,
-7,
-47,
19,
-18,
-17,
-37,
28,
-11,
12,
10,
-30,
-63,
3,
69,
9,
24,
-2,
81,
8,
4,
14,
-13,
31,
18,
-33,
-6,
4,
-31,
-42,
-28,
-6,
-39,
9,
-55,
-1,
-5,
0,
12,
-32,
7,
8,
34,
51,
-17,
-30,
15,
-12,
-9,
0,
-28,
-18,
-2,
-31,
5,
-13,
-25,
30,
53,
-55,
-7,
14,
26,
-1,
15,
2,
11,
7,
40,
7,
17,
-12,
0,
13,
7,
85,
26,
-9,
19,
21,
32,
-12,
3,
-11,
-23,
0,
-18,
-50,
11,
61,
16,
-26,
39,
14,
-15,
-22,
27,
15,
-16,
0,
60,
-5,
25,
-6,
0,
-28,
4,
-59,
8,
-33,
-11,
-24,
-15,
44,
-21,
-17,
24,
47,
-4,
7,
-52,
-36,
-8,
5,
32,
14,
-17,
-7,
-13,
12,
-5,
-34,
40,
-30,
31,
-32,
-10,
-4,
-23,
3,
12,
66,
-47,
-22,
0,
-29,
7,
23,
26,
-52,
38,
6,
3,
-57,
-30,
-31,
-25,
-7,
32,
5,
-21,
11,
16,
26,
2,
-32,
39,
-28,
-3,
-3,
-16,
13,
62,
-4,
11,
-8,
-4,
4,
-28,
3,
-18,
-32,
0,
-10,
-53,
-1,
-4,
-43,
-13,
57,
-8,
-6,
8,
-3,
-6,
-12,
-29,
10,
-36,
-3,
-57,
3,
23,
2,
39,
-30,
21,
-31,
-15,
-39,
-41,
-28,
-37,
38,
9,
25,
-29,
-42,
-53,
-6,
5,
25,
-29,
-37,
-30,
0,
3,
18,
-44,
55,
-15,
8,
-8,
31,
-5,
-3,
-31,
24,
-7,
7,
-21,
13,
21,
11,
13,
32,
6,
-49,
11,
0,
-37,
0,
0,
-75,
-13,
16,
-37,
31,
33,
0,
20,
-5,
-51,
24,
-13,
-2,
-43,
54,
11,
44,
48,
19,
1,
-57,
9,
48,
-14,
20,
-21,
12,
28,
24,
-11,
38,
-59,
-36,
1,
8,
11,
28,
7,
35
] |
Hooker, C. J.
The plaintiff, a judgment creditor of' the Miller Hardware Company, brought this action against a preferred stockholder, under the provisions of section 7057 of the Compiled Laws of 1897, which reads-as follows:.
“If the capital stock of any such corporation shall'be withdrawn and refunded to the stockholders before the payment of all the debts of the corporation for which such stock would have been liable, the stockholders of such corporation shall be jointly and severally liable to any creditor of such corporation, in an action founded on this statute, to the amount of the sum refunded to him or them respectively.”
Its counsel professed to be able to show upon the trial, and offered testimony which he said would show, that the defendant received dividends from said company which impaired the capital stock; and that, while the books did not, upon their face, show this, it was because alleged assets consisted of worthless paper, the omission of which would show that the company had done business at a loss, and that such dividends were actually paid from the capital stock. The court directed a verdict for the defendant upon the ground that section 7073 provides that “in no event shall the holder of such preferred stock be individually or personally liable for the debts or other liabilities of said corporation, excepting debts for labor;” and the plaintiff has brought error.
Some of the dividends were paid before the Miller Hardware Company incurred the debt upon which plaintiff’s judgment is based; others were paid afterwards, the last being paid in April, 1897. Two months later the Miller Hardware Company made a common-law assignment, and it is said the assignee has paid 55 per cent, of its debts, which exhausted its assets.
When a corporation holds itself out to the world as .possessed of a given capital, those who deal with it have a right to the application of such capital to the payment of such debts as it may incur, and it has no authority to impair its capital by refunding to the stockholders a portion of its capital by way of dividend. This is not a new doctrine, as will appear from the following authorities cited by counsel: Williams v. Telegraph Co., 93 N. Y. 162; 5 Am. & Eng. Enc. Law (2d Ed.), 134-142; Flitcroft’s Case, 21 Ch. Div. 519; Main v. Mills, 6 Biss. 98 (Fed. Cas. No. 8,974); Park v. Locomotive Works, 40 N. J. Eq. 114 (3 Atl. 162); Hubbard v. Weare, 79 Iowa, 678 (44 N. W. 915); Richardson v. Buhl, 77 Mich. 632, 649 (43 N. W. 1102, 6 L. R. A. 457); 1 Mor. Priv. Corp. §§ 435, 440; People v. San Francisco Sav. Union, 72 Cal. 199 (13 Pac. 498); 1 Cook, Stockh. §§ 199, 290, 546, 548; Lockhart v. Van Alstyne, 31 Mich. 76 (18 Am. Rep. 156). It is claimed that this statute was not intended to have application to such cases, but merely to cases where the capital stock is reduced in amount by formal action of the stockholders, which may be lawfully done in conformity to section 7038. It is our opinion that section 7057 should not receive so narrow a construction. It does not, in express terms, refer to a reduction of the capital stock, but speaks of a “withdrawal” of capital stock, and “refunding” to the stockholders. If we hold this to refer to an amount constituting that portion of' the assets representing the capital stock, — and we cannot well imag-^ ine that it means anything less tangible, for nothing less could well be refunded; i. e., given back to the stockholder, — it could be as well done'by distribution by way of dividends, declared in the ordinary way, as by basing them upon formal action to reduce the capital stock. We see no reason to doubt that such dividends could he reached, if there were no statute, as being a fraudulent disposition of assets. This statute provides a new procedure, permitting one who has exhausted his remedy against the corporation (if not others) to sue the stockholder in an action at law. It is contended that this can- _ not have been contemplated, and that the collection should be made by an assignee for the benefit of all creditors. We have no doubt that a court of equity, under its general powers, might take custody of all assets for the purpose of distribution, and cut off the personal remedy of the creditor, under this statute, as in other cases; but we have not such a case. We are not advised that any court has ■ taken control of the assets of this corporation, or is in any way attempting their collection and distribution.
The preferred stockholder is not excepted by this statute, and he has no greater right to a dividend from the capital stock of an insolvent corporation than any other stockholder, until the debts are paid. See section 7073; Lockhart v. Van Alstyne, 31 Mich. 76 (18 Am. Rep. 156). The provision of section 7073, relied on by the learned circuit judge in his disposition of the cause, seems to us to have been misapplied. This case does not seek to impose a personal liability upon him, but merely to hold him for a trust fund, which has come to his hands through an unlawful disposition of it.
The judgment should be reversed, and a new trial ordered.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
-1,
-14,
58,
-13,
8,
-14,
35,
-70,
17,
-1,
16,
22,
5,
39,
19,
-47,
41,
-16,
-8,
11,
-12,
-33,
-24,
-10,
10,
-17,
16,
-4,
34,
6,
-33,
-58,
-23,
-25,
-15,
45,
-29,
29,
-13,
-3,
-24,
41,
43,
-35,
34,
-3,
-5,
-46,
16,
-30,
50,
-11,
-13,
-53,
-4,
9,
15,
22,
-32,
20,
-7,
-38,
38,
-50,
13,
15,
-3,
8,
-1,
-18,
-38,
-17,
-2,
16,
40,
-38,
-16,
33,
-47,
-41,
-6,
-25,
-13,
0,
-72,
11,
-1,
15,
3,
-8,
4,
-12,
-41,
4,
6,
49,
22,
5,
-29,
27,
6,
-38,
-50,
-12,
-9,
0,
24,
-43,
-33,
8,
13,
-14,
12,
9,
-20,
0,
-37,
-30,
-26,
-33,
54,
18,
-10,
0,
9,
30,
-34,
-15,
-29,
30,
1,
0,
-68,
-63,
42,
22,
-30,
-25,
-3,
7,
31,
30,
-53,
-8,
-11,
-14,
13,
25,
16,
0,
-10,
0,
-4,
-17,
38,
-35,
-34,
23,
52,
-59,
-15,
-48,
13,
-11,
-18,
51,
-5,
-4,
-80,
10,
-19,
16,
-77,
-42,
17,
57,
8,
-26,
-61,
-31,
-40,
-1,
25,
7,
17,
-2,
50,
-5,
10,
22,
27,
16,
-9,
7,
-24,
4,
33,
10,
54,
34,
7,
-65,
-15,
-52,
22,
-36,
43,
1,
-46,
-4,
-6,
51,
7,
-6,
-13,
35,
-12,
-88,
38,
45,
23,
-9,
-27,
-9,
-26,
-38,
-8,
23,
-35,
2,
-21,
-27,
16,
-47,
-24,
-14,
7,
-13,
29,
-1,
-37,
-18,
-47,
-39,
-15,
20,
-7,
18,
-16,
26,
12,
-17,
-57,
36,
-14,
-44,
-60,
-20,
-33,
-19,
10,
56,
-79,
27,
22,
-61,
52,
17,
-15,
15,
34,
1,
47,
42,
-25,
-18,
-19,
-28,
-22,
-75,
22,
-5,
5,
-35,
-13,
-25,
-22,
2,
-10,
-14,
26,
50,
57,
10,
34,
-14,
-21,
6,
21,
-18,
-68,
-43,
21,
-9,
55,
16,
-49,
-19,
13,
-25,
-22,
20,
-13,
-27,
51,
-23,
-3,
36,
-14,
33,
14,
-2,
-32,
2,
-23,
-5,
39,
-61,
11,
17,
-3,
21,
-9,
21,
-15,
-14,
53,
-6,
-41,
-16,
19,
19,
-21,
-22,
14,
2,
-32,
-8,
0,
-14,
-5,
-28,
26,
27,
54,
9,
13,
13,
-43,
15,
47,
-19,
0,
-13,
44,
2,
-59,
-32,
17,
36,
6,
-2,
-5,
4,
6,
7,
-42,
-40,
-6,
29,
28,
-58,
4,
-55,
13,
-38,
0,
-17,
-14,
-3,
-76,
27,
25,
65,
-18,
-27,
-24,
-63,
-33,
17,
-31,
20,
32,
-22,
-1,
-54,
-5,
-19,
1,
-8,
-31,
-10,
26,
-3,
-30,
-12,
23,
-35,
5,
0,
58,
-28,
-10,
-33,
29,
-36,
18,
34,
-55,
-17,
-14,
-14,
-2,
-52,
-16,
39,
-12,
24,
18,
3,
17,
-18,
-2,
9,
60,
33,
39,
-8,
26,
-7,
7,
7,
34,
8,
-3,
31,
37,
-56,
21,
-22,
49,
0,
36,
56,
40,
-25,
46,
-22,
36,
26,
-24,
10,
1,
-8,
10,
37,
-22,
33,
1,
-53,
-11,
-1,
25,
52,
-28,
-2,
-9,
-46,
-14,
0,
16,
23,
14,
-30,
-1,
0,
-5,
-5,
24,
27,
0,
-31,
72,
-21,
2,
-27,
0,
-26,
6,
41,
-47,
-25,
41,
10,
-17,
40,
-56,
29,
40,
61,
10,
14,
-72,
21,
-91,
9,
4,
26,
47,
-20,
16,
6,
2,
-7,
21,
-4,
16,
-34,
-3,
-29,
-22,
15,
47,
32,
-34,
28,
-4,
-3,
-42,
1,
-34,
-4,
53,
43,
11,
33,
22,
1,
2,
29,
-67,
31,
-11,
-24,
53,
-26,
-43,
15,
-1,
-11,
-7,
19,
37,
42,
-1,
1,
-12,
22,
-7,
-34,
9,
21,
61,
-73,
-33,
-17,
-10,
28,
20,
17,
18,
-19,
-14,
-24,
43,
-4,
26,
30,
-31,
12,
-33,
-20,
-12,
-50,
-55,
-45,
-47,
75,
-29,
14,
28,
37,
55,
5,
29,
-22,
9,
-19,
8,
-14,
31,
30,
-43,
31,
18,
-14,
-26,
-52,
19,
21,
-25,
-43,
-73,
32,
-73,
-11,
-26,
-18,
-48,
29,
-35,
18,
43,
37,
25,
-10,
-7,
-13,
1,
-45,
-13,
-4,
35,
27,
-5,
-24,
9,
-20,
34,
-77,
5,
15,
34,
12,
42,
-3,
30,
-12,
29,
-26,
23,
-9,
39,
13,
34,
0,
-9,
25,
8,
34,
-35,
-10,
3,
10,
1,
-26,
35,
15,
34,
-25,
-14,
-18,
0,
-15,
-53,
40,
51,
-13,
17,
-21,
-34,
19,
-42,
79,
32,
-25,
-46,
24,
37,
10,
47,
-44,
-13,
-33,
-3,
60,
30,
10,
-46,
-1,
-53,
-57,
22,
-55,
13,
9,
-6,
-35,
-63,
18,
31,
-42,
-6,
39,
-6,
57,
8,
-51,
7,
-1,
13,
-30,
-14,
29,
-72,
41,
-30,
17,
50,
30,
11,
42,
28,
10,
20,
-1,
-41,
0,
-24,
4,
-30,
-25,
18,
-24,
-6,
41,
-64,
-35,
22,
-63,
-72,
16,
6,
18,
13,
39,
16,
9,
7,
4,
-11,
-34,
-11,
40,
-25,
-25,
45,
23,
38,
13,
33,
-12,
-15,
-72,
-14,
14,
-8,
22,
-10,
-40,
4,
-15,
-16,
-55,
-2,
-23,
40,
-27,
9,
-23,
-62,
-10,
-5,
-11,
7,
28,
0,
5,
-37,
59,
-28,
52,
-7,
0,
-12,
-15,
-44,
26,
-21,
43,
27,
-25,
-22,
41,
46,
3,
31,
-17,
19,
-19,
-13,
-18,
27,
45,
35,
-2,
-43,
10,
-16,
16,
1,
14,
-7,
38,
-9,
-60,
-7,
10,
-19,
27,
17,
13,
-45,
13,
59,
-9,
-16,
41,
6,
-12,
20,
91,
-12,
-10,
-35,
37,
-10,
-9,
-17,
-13,
-23,
48,
19,
0,
-4,
24,
21,
-33,
-12,
16,
-4,
0,
25,
6,
48,
-38,
3,
-49,
27,
-1,
-36,
-5,
0,
2,
2,
27,
34,
13,
-27,
52,
38,
1,
2,
15,
-4,
35,
29,
-1,
6,
37,
-9,
16,
13,
18,
-10,
6,
24,
-4,
19,
31,
6,
-11,
-2,
46,
9,
-36,
-25,
-48,
13,
6,
42,
-55,
27,
10,
-70,
-19,
23,
23,
18,
-12,
-16,
-12,
17,
11,
1,
-39,
24,
-41,
-55,
29,
-9,
17,
-8,
23,
24,
35,
21,
-2,
-57,
-61,
47,
-14,
-13,
-69,
-12,
4,
0,
-15,
3,
32,
79,
-57,
-7,
45,
-4,
-25,
31,
-2,
19,
40,
11,
60,
57,
20,
5,
-9,
43,
-24,
13,
-21,
55,
-24,
24,
13,
-31,
7,
1,
22,
12,
15,
-8,
38,
-13,
69,
-2,
-11,
-21,
3,
4,
19,
10,
-2,
-7,
41
] |
Grant, J.
(after stating the facts). If the defendants the auditor general and the commissioner of the State land office had filed a demurrer to the bill because they were neither necessary nor proper parties, a different ■question would be presented from those now raised by the joint demurrer of all the defendants. No fraud is charged upon them. The charge in the bill is that the defendant Kirk Ludington falsely and fraudulently violated his contract with the complainant, neglected to pay the taxes, and falsely and fraudulently procured a homestead certificate. Upon the hearing the bill may be dismissed as to the auditor general and the commissioner of the State land office, and be sustained as to defendants Ludington. Kirk Ludington is not in position to take advantage of his •own wrong, and set up the requirement of the statute to pay or tender the taxes, or that suit was not commenced within the time prescribed by law. Under the allegations of the bill, he obtained his title fraudulently, and holds it in trust for the complainant. It is no defense to this fraud that complainant has not formally complied with the statute. He has offered all that equity requires, viz., to reimburse the State for the taxes, and for the fraud committed upon the State by defendant Kirk Ludington. So long as complainant has seen fit to make these officers of the State parties, and offers to reimburse the State, it is difficult to see why the State should object. It was Mr. Ludington’s duty to pay the taxes. Mr. Dixon relied upon him to do so. The question of who shall compensate the-State is not the real question here. The real question is, Did Kirk Ludington obtain this title by fraud as against the complainant? If so, the complainant is entitled to a decree against him.
Decree reversed, with costs, and case remanded for further proceedings.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
3,
30,
-27,
-3,
-24,
18,
50,
44,
-15,
75,
55,
-1,
42,
30,
-3,
-12,
13,
0,
9,
10,
1,
-30,
-13,
5,
-30,
-35,
-1,
-16,
-1,
32,
10,
-15,
-37,
18,
27,
7,
-9,
33,
20,
11,
-38,
-25,
-20,
-43,
18,
13,
-35,
-27,
3,
-14,
23,
0,
-4,
11,
34,
-8,
-37,
-31,
-11,
-69,
-33,
2,
4,
-1,
-19,
-37,
25,
18,
48,
-29,
-5,
35,
-9,
-31,
34,
-32,
-30,
-30,
-2,
26,
-3,
-26,
2,
-32,
64,
-34,
8,
12,
-41,
0,
-21,
23,
-2,
-36,
-1,
0,
36,
60,
55,
21,
-42,
-14,
-10,
34,
34,
-6,
-11,
-43,
-25,
-29,
52,
-57,
-16,
-43,
-10,
-31,
7,
-6,
-23,
-53,
25,
-26,
27,
5,
-10,
-9,
-21,
-22,
-32,
36,
65,
-13,
-40,
-25,
-39,
2,
0,
-29,
42,
-39,
8,
11,
-9,
-46,
-29,
39,
74,
-6,
15,
-19,
-46,
28,
2,
0,
0,
10,
20,
-32,
22,
-43,
59,
20,
-36,
-56,
19,
14,
38,
-56,
19,
4,
28,
9,
-45,
18,
44,
24,
14,
-7,
-32,
-43,
19,
-2,
15,
30,
1,
-17,
28,
-25,
-7,
-38,
2,
0,
15,
10,
22,
43,
3,
26,
-47,
-26,
-8,
-64,
-5,
13,
33,
-14,
65,
-17,
22,
29,
-56,
20,
-6,
-16,
-48,
-9,
28,
-60,
7,
-16,
12,
60,
37,
0,
-21,
-22,
15,
-6,
-1,
3,
-12,
-23,
9,
-20,
-19,
-54,
24,
-3,
53,
14,
-38,
-8,
-2,
-49,
29,
27,
-27,
7,
-39,
-13,
-37,
-34,
-52,
12,
-8,
10,
39,
-4,
-50,
-30,
8,
7,
-9,
-29,
-36,
-65,
-5,
29,
2,
6,
9,
20,
12,
18,
32,
-22,
-42,
-13,
-41,
30,
30,
10,
59,
31,
-47,
39,
-13,
37,
38,
-40,
16,
-49,
-27,
-4,
-4,
51,
35,
-26,
33,
16,
19,
14,
48,
4,
-6,
-36,
13,
9,
-74,
2,
-4,
25,
-38,
11,
7,
23,
-19,
-12,
1,
-35,
22,
15,
40,
-48,
-35,
-29,
40,
-37,
-69,
5,
8,
-44,
-1,
1,
81,
-62,
34,
-59,
-27,
-22,
1,
28,
10,
32,
32,
50,
-17,
-20,
-5,
21,
-13,
-20,
-76,
49,
45,
-25,
3,
-8,
-13,
12,
9,
49,
-35,
-29,
0,
-4,
-38,
-24,
45,
40,
-23,
-41,
-38,
27,
-55,
-26,
-73,
18,
-49,
-7,
-6,
-3,
-38,
33,
7,
-31,
0,
-31,
14,
12,
-18,
-7,
-8,
3,
16,
-42,
17,
-14,
-38,
8,
-7,
42,
52,
-29,
-40,
31,
21,
7,
-36,
39,
-4,
-5,
37,
-33,
20,
-3,
33,
32,
37,
23,
12,
-6,
-9,
-53,
14,
-16,
-17,
39,
18,
-1,
-11,
22,
8,
-29,
51,
-1,
-11,
-35,
-21,
11,
24,
12,
4,
-6,
-29,
-31,
-38,
24,
30,
9,
-28,
-40,
-31,
24,
15,
44,
40,
-46,
43,
-48,
-1,
-19,
14,
-31,
35,
-35,
-30,
16,
20,
12,
17,
-12,
13,
33,
-25,
-1,
-12,
-4,
25,
16,
-41,
-16,
-36,
-43,
-33,
-30,
16,
-3,
-40,
3,
16,
15,
3,
13,
24,
-34,
-20,
-1,
-4,
52,
26,
41,
20,
0,
41,
-6,
-33,
2,
17,
41,
-30,
1,
28,
14,
-50,
9,
87,
-30,
61,
30,
31,
-57,
-88,
-21,
3,
-14,
-2,
24,
40,
37,
16,
0,
0,
-36,
-9,
7,
-25,
15,
-7,
12,
-29,
69,
-2,
65,
40,
33,
6,
-45,
36,
-35,
-23,
-19,
8,
20,
-54,
24,
9,
-37,
-2,
5,
12,
-15,
43,
-44,
27,
-11,
-1,
-64,
-23,
-9,
19,
-2,
22,
21,
8,
-7,
-13,
-39,
22,
-13,
-37,
-27,
-20,
-56,
-9,
23,
-16,
12,
11,
-25,
-9,
0,
-5,
19,
-23,
-12,
-3,
-3,
-7,
30,
-57,
-5,
-55,
13,
46,
5,
-2,
8,
-32,
-19,
28,
37,
86,
-10,
38,
37,
-19,
-86,
-12,
11,
12,
6,
95,
-5,
17,
-12,
19,
-8,
-20,
-23,
-2,
-8,
-8,
41,
-33,
2,
-15,
-6,
7,
12,
-1,
-7,
-55,
-4,
15,
22,
-3,
26,
-6,
-16,
-38,
66,
-13,
30,
10,
-34,
9,
-5,
20,
-24,
45,
-36,
22,
71,
-40,
-4,
41,
-20,
6,
36,
5,
-63,
7,
18,
30,
-23,
-8,
27,
-31,
-4,
-10,
0,
10,
-44,
-10,
25,
-42,
-48,
-7,
22,
3,
19,
3,
11,
-37,
19,
15,
-43,
41,
37,
11,
13,
5,
18,
-16,
-6,
0,
0,
-6,
10,
36,
2,
-19,
-11,
-9,
1,
18,
-21,
-10,
-20,
-31,
-50,
5,
-4,
27,
-40,
31,
-3,
1,
-25,
13,
10,
27,
7,
-4,
25,
15,
5,
-3,
3,
18,
-1,
16,
5,
-2,
17,
18,
44,
32,
-3,
-7,
30,
-11,
29,
-41,
10,
-30,
-33,
-27,
-15,
3,
23,
-2,
-20,
32,
14,
15,
7,
7,
-38,
0,
23,
-6,
-39,
66,
-34,
1,
-29,
20,
5,
63,
17,
-5,
0,
-22,
-39,
16,
-47,
-15,
-4,
13,
-19,
28,
3,
-11,
36,
0,
32,
-37,
7,
-20,
10,
19,
44,
-13,
56,
-3,
26,
-31,
14,
14,
-37,
-16,
4,
13,
-5,
11,
44,
-24,
-40,
6,
35,
11,
-23,
-9,
28,
-1,
-18,
-47,
19,
0,
-20,
-41,
17,
42,
-52,
-4,
21,
-31,
13,
-43,
-8,
-32,
32,
-2,
28,
-53,
-32,
-47,
15,
8,
2,
20,
-7,
14,
23,
-5,
8,
-3,
-4,
25,
44,
39,
-44,
-4,
-28,
44,
27,
3,
16,
8,
-39,
-6,
69,
60,
12,
59,
-18,
-5,
-51,
23,
48,
-69,
10,
3,
8,
5,
0,
-20,
9,
22,
49,
-10,
27,
8,
13,
-35,
-34,
20,
3,
20,
46,
-3,
-43,
-1,
-14,
-12,
20,
-6,
53,
38,
-30,
-12,
-33,
-29,
-29,
0,
-5,
0,
-18,
46,
9,
-46,
44,
-54,
-41,
43,
4,
-34,
23,
-33,
34,
-49,
39,
1,
-45,
8,
-2,
13,
-10,
-15,
-26,
-17,
-34,
14,
-17,
-31,
0,
-59,
-48,
-32,
15,
46,
40,
-3,
-3,
-24,
-13,
-18,
-31,
0,
10,
-5,
-40,
-12,
16,
23,
-21,
-21,
30,
26,
-12,
-81,
-2,
12,
4,
5,
-6,
-42,
14,
38,
14,
-7,
-4,
49,
-4,
57,
-64,
-25,
-26,
39,
46,
55,
-9,
-3,
-24,
-23,
-41,
13,
-36,
60,
-10,
13,
-18,
98,
-43,
50,
17,
70,
-21,
-55,
5,
41,
9,
-78,
44,
-39,
17,
17,
-19,
6,
9,
22,
43
] |
Long, J.
The opinion of Judge Carpenter so fully covers the facts upon which he set the nonsuit aside that we insert it here:
“ This is a motion to set aside a nonsuit. The jury was-impaneled late one day, and the case continued until the next morning. Plaintiff’s counsel did not attend court on the following morning, but he sent word that he could not get his witness, and would therefore submit to a nonsuit. Judgment of nonsuit was accordingly taken. Plaintiff’s-counsel now moves the court to set aside that nonsuit, upon affidavits which show that his client, who had formerly resided in Birmingham, Oakland county, in this State, removed about a year since to the city of Buffalo, N. Y. that she gave no information of this fact to her counsel;. that her counsel, at the time the jury was impaneled, thought there would be no difficulty in reaching his client and her witnesses, as he supposed her still to reside in Birmingham; that, after the jury was impaneled, he made-an effort to reach the plaintiff, but was unable to ascertain her whereabouts, and did not learn them until just before this motion was made. Several objections are made to this motion, to which I will now refer.
“1. It is urged that the court has no power to set aside-a nonsuit voluntarily submitted to, except when leave to make such a motion is reserved. I have examined the cases cited in support of this contention by defendants’ counsel. I do not think they are applicable to a case like the present. In this case plaintiff’s counsel submitted to a nonsuit, as the court was informed, because he could not procure the witnesses essential to prove his case. He-recognized that there was nothing else to do than to permit a judgment of nonsuit to be entered. He could not have made a showing warranting a continuance of the case or the withdrawal of a juror; and it would seem tome unjust to say that his rights were any less than they would have been had he opposed the entering of a nonsuit, or than as if he had. stated the facts to the court, and taken the judgment of the court as to what course should be pursued. As already stated, he simply signified his recognition of the fact that the one thing that the court must do was to enter a judgment of nonsuit.
“2. Some criticism lis made of the affidavits because-they do not state that the plaintiff has stated the facts of the case to her counsel, and been advised by him that she has a meritorious case, etc. What she has stated is that she has stated the facts ‘ of her ’ ease. It does not seem to me that this criticism is just. Neither does it appear by these affidavits that plaintiff herself is a material witness, and that the case could not have proceeded in her absence. I think I should assume from the character of the cause of action that the plaintiff is a material witness. In any event, if this point is insisted upon, I should permit additional affidavits to be filed showing the fact.
“3. It is insisted that there was such an absence of diligence on the part of the plaintiff and her counsel that the court should not grant this motion. . I think it is clear that either plaintiff or her counsel was lacking in diligence. Plaintiff, knowing as she did that this suit was pending, should have apprised her counsel of her whereabouts, and it is probably not too much to say that counsel should have known his client’s whereabouts before he commenced the trial of the cause. It would seem to me, however, that such negligence as this can be adequately punished by granting this motion on proper terms, and that it would be inadequate punishment, and punishment out of proportion altogether to the fault, to deprive plaintiff of her cause of action, for such might be the effect of the denial of this motion.
“4. It is urged that the fact that the plaintiff has already tried three suits against these defendants to enforce this same claim (upon all of which she has been defeated), and the fact, too, that upon the first trial of such claim, upon the chancery side of this court, the trial judge decided that there was no fraud, should move the court to deny this motion. I cannot agree with this contention. The first suit was a suit in chancery to set aside a contract which it is now claimed was fraudulent. The Supreme Court dismissed the bill, upon the ground that the complainant, the plaintiff here, had ratified the transaction. In both the second and third suits the plaintiff sought to recover in assumpsit upon the implied contract arising from the fraud. It was held that this action could not be maintained. In other words, under the advice of counsel, plaintiff has chosen the wrong remedy for her cause of action. The fact that the trial judge in the chancery court thought there was no evidence of fraud may or may not be a defense. It is by no means clear that that constitutes a defense. If it does, it would seem to me unjust to the plaintiff, by a denial of this motion, to prevent her obtaining the judgment of the Supreme Court upon this proposition. I do not think that the fact that plaintiff has mistaken her remedy should deprive her of the right of now availing herself of a proper remedy.
“5. It is urged that it would be unjust to the defendants to deprive them of the rights which have accrued to them by the granting of this nonsuit. It is said that, should this nonsuit stand, the statute of limitations has barred the plaintiff’s right of recovery, and to set aside this nonsuit is to deprive the defendants of that defense. This very argument moves me to vacate the nonsuit. It seems to me unjust, as I have indicated before in this opinion, that the negligence of plaintiff or her counsel should cost plaintiff her entire right of action. It is sufficient, it seems to me, that, when one has been negligent, he should pay for the damages thereby caused.
“An order will be made in this case setting aside the nonsuit, on condition that, the plaintiff pay the taxable disbursements incurred by defendants for the purpose of trying this case, and an attorney fee of $50, such payment to be made in 10 days after the taxation of those costs.”
Under these circumstances, we think the circuit court was not in error. The matter of setting aside the nonsuit was within the discretion of the court.
The order will be affirmed, with costs.
The other Justices concurred. | [
6,
2,
-29,
0,
0,
4,
60,
-21,
-28,
31,
31,
0,
5,
-11,
-7,
-79,
3,
-20,
-22,
-37,
-34,
17,
0,
-22,
1,
-9,
9,
21,
-9,
9,
14,
-16,
-24,
69,
-61,
-4,
-5,
20,
-4,
21,
4,
-5,
-8,
-1,
-8,
-9,
-14,
0,
41,
11,
-8,
5,
16,
33,
-48,
-32,
-6,
46,
19,
22,
25,
-19,
-58,
-27,
-18,
0,
-18,
-25,
-19,
-29,
-68,
-38,
-11,
16,
7,
-36,
25,
-6,
10,
-2,
45,
8,
20,
-77,
-1,
-19,
7,
-44,
-8,
-40,
-69,
12,
-44,
-42,
-27,
32,
20,
36,
7,
2,
7,
30,
9,
-29,
0,
37,
-23,
-14,
-3,
7,
39,
-29,
2,
-19,
0,
-26,
-13,
20,
-14,
-12,
28,
17,
41,
54,
20,
7,
-14,
3,
31,
-10,
0,
55,
44,
-18,
-20,
-2,
24,
-25,
40,
-13,
67,
23,
5,
-33,
4,
-13,
-42,
55,
-25,
38,
-11,
41,
-1,
0,
-16,
19,
-7,
-62,
54,
-10,
-20,
-4,
-30,
-30,
-13,
-35,
-23,
5,
59,
0,
-28,
32,
32,
15,
-59,
17,
-39,
-26,
-17,
-17,
33,
4,
8,
8,
8,
7,
8,
21,
1,
-3,
13,
-5,
-23,
-4,
16,
18,
-32,
0,
29,
26,
-33,
-3,
-80,
16,
3,
43,
6,
-53,
2,
-28,
0,
12,
-49,
-46,
-42,
-31,
6,
-22,
-30,
15,
-10,
-3,
-11,
-7,
-29,
-18,
5,
9,
-10,
15,
-5,
-16,
-41,
-5,
11,
-18,
33,
0,
34,
27,
-29,
22,
47,
-14,
2,
-41,
4,
8,
-30,
-21,
-8,
-18,
24,
49,
-4,
32,
-26,
5,
-22,
4,
4,
54,
-58,
-16,
-2,
24,
26,
22,
-20,
29,
10,
13,
45,
68,
-21,
-29,
-25,
-17,
20,
28,
-87,
-2,
-44,
2,
-78,
41,
-30,
-12,
25,
-14,
5,
-3,
-20,
19,
46,
29,
9,
-22,
-35,
40,
29,
12,
-2,
31,
-2,
-33,
-42,
3,
9,
-5,
19,
-16,
43,
1,
65,
20,
-21,
5,
-28,
-53,
-23,
-9,
-25,
51,
-20,
-3,
22,
28,
-24,
-1,
34,
-15,
-1,
-17,
-14,
0,
4,
-9,
-12,
29,
-48,
-77,
23,
-7,
13,
-30,
-13,
-31,
-3,
4,
-11,
-14,
-30,
2,
18,
-22,
5,
-15,
-21,
13,
5,
-10,
0,
-43,
23,
-11,
-1,
8,
46,
7,
0,
12,
-67,
-27,
-15,
-24,
-39,
-12,
-64,
42,
-46,
0,
41,
24,
29,
59,
-53,
-45,
38,
8,
-20,
-31,
21,
17,
-2,
63,
-33,
20,
11,
79,
7,
-15,
0,
-10,
-60,
31,
-45,
-30,
0,
58,
-12,
35,
33,
9,
-14,
-5,
17,
2,
37,
-8,
-49,
3,
48,
-7,
-11,
-3,
12,
8,
10,
-19,
-26,
-9,
39,
-12,
5,
44,
16,
-22,
12,
36,
-11,
-24,
-12,
-65,
20,
30,
0,
13,
-16,
9,
53,
72,
4,
40,
4,
18,
-18,
-24,
39,
9,
32,
-6,
-44,
38,
26,
8,
-26,
16,
16,
-1,
22,
-26,
52,
2,
-51,
14,
-12,
31,
-23,
69,
10,
62,
-8,
-18,
-24,
-26,
-21,
-55,
14,
17,
19,
-3,
25,
6,
-42,
7,
37,
-8,
-21,
23,
10,
31,
-13,
-5,
1,
-40,
4,
-71,
12,
-40,
32,
39,
-15,
30,
-63,
-43,
-9,
20,
10,
23,
14,
-45,
6,
4,
-3,
26,
-40,
4,
-24,
-39,
66,
34,
35,
31,
21,
63,
13,
-31,
78,
15,
-24,
60,
41,
38,
23,
-45,
-1,
-7,
35,
4,
58,
-8,
14,
37,
22,
15,
-28,
-10,
40,
-34,
26,
12,
34,
21,
40,
0,
-21,
-45,
29,
-21,
22,
-3,
15,
-14,
-9,
-6,
11,
9,
-41,
-2,
-30,
23,
0,
-47,
-21,
-59,
-8,
-34,
3,
-47,
7,
8,
-42,
-27,
6,
-25,
0,
-6,
-44,
-10,
-19,
-4,
-38,
-18,
0,
-19,
-52,
42,
43,
30,
38,
16,
-2,
-7,
-32,
10,
-8,
2,
-29,
62,
-15,
35,
9,
-11,
11,
18,
24,
13,
24,
-61,
-5,
-40,
8,
-4,
4,
-34,
-25,
6,
-15,
-3,
-39,
-11,
7,
-7,
-3,
-19,
25,
-7,
-5,
-39,
-6,
38,
41,
-22,
41,
-28,
18,
17,
39,
-21,
27,
-14,
-2,
4,
-14,
32,
-23,
9,
7,
32,
20,
-16,
37,
52,
4,
-12,
27,
-8,
-12,
45,
-15,
6,
-34,
-22,
-1,
-35,
-16,
28,
-12,
0,
0,
5,
9,
-6,
27,
-2,
24,
-10,
9,
10,
-10,
-41,
60,
2,
-41,
-30,
4,
11,
11,
-6,
-48,
-18,
-18,
-20,
16,
1,
-42,
-30,
18,
53,
11,
-12,
-38,
-6,
-5,
28,
17,
39,
25,
-54,
-10,
-19,
-31,
-17,
-17,
9,
38,
-22,
-17,
-15,
46,
-18,
14,
-3,
34,
39,
31,
-12,
18,
-11,
59,
-16,
-16,
22,
10,
33,
24,
0,
-52,
0,
-12,
-34,
-7,
-15,
-13,
8,
-21,
4,
19,
16,
-29,
-14,
46,
-27,
45,
-4,
-19,
5,
-4,
6,
-29,
-12,
16,
3,
-8,
-30,
30,
-9,
-57,
50,
28,
-40,
-71,
16,
56,
-4,
27,
-38,
16,
4,
-3,
57,
25,
15,
-17,
8,
-38,
31,
10,
-22,
14,
14,
49,
-52,
-42,
-42,
-43,
-19,
38,
7,
22,
53,
-43,
-50,
32,
-68,
-33,
-26,
43,
-53,
20,
-34,
0,
25,
20,
-21,
-2,
15,
17,
-52,
23,
4,
-31,
8,
23,
-27,
-60,
-23,
5,
-4,
-10,
74,
-29,
34,
-20,
-44,
40,
44,
38,
-39,
-49,
50,
-1,
-46,
31,
-2,
-77,
-13,
25,
-28,
25,
19,
8,
-24,
-11,
24,
-27,
8,
-53,
4,
23,
37,
-13,
26,
-24,
-24,
10,
-61,
-4,
16,
64,
66,
46,
-4,
-5,
39,
16,
14,
-27,
-29,
-6,
4,
47,
34,
58,
-28,
3,
43,
-18,
30,
32,
8,
-4,
29,
85,
-1,
-4,
43,
-32,
28,
-23,
-3,
13,
-32,
-19,
13,
-25,
16,
4,
20,
48,
-12,
-48,
-22,
30,
-52,
-12,
-49,
-42,
43,
-15,
-39,
-41,
-24,
0,
-8,
-83,
33,
-44,
-4,
0,
-19,
-17,
1,
13,
-17,
42,
-20,
-19,
-36,
-48,
55,
26,
21,
20,
-14,
-5,
-16,
-33,
-1,
9,
-1,
20,
-34,
-18,
-20,
-9,
27,
-62,
-4,
16,
0,
-12,
-11,
-7,
-29,
-35,
-2,
-14,
-31,
33,
5,
20,
-10,
-23,
19,
2,
-40,
-24,
14,
5,
74,
42,
0,
18,
-2,
7,
40,
-22,
48,
-19,
-39,
34,
31,
21,
23,
-18,
-24,
-2,
-30,
23,
-32,
-5,
34
] |
Hooker, C. J.
The plaintiff claims to have suffered a sprain in the ankle by stepping into a hole in defendant’s-sidewalk upon a dark night, whereby he was incapacitated from business. The jury found a verdict in his favor for $800, and the defendant has brought error.
A number of witnesses testified, upon the part of the defendant, to statements made by the plaintiff relating to the place and occasion and extent of his injury, some of' which tended to show that he was hurt at a different place in the same village; others that the accident occurred, or that the injury was aggravated, at Flint; others that his. injury was trifling. The court instructed the jury that:
“ As to these statements claimed to have been made by the plaintiff as to the cause of his injury, you are instructed that it is proper to take them into consideration as bearing upon his credibility, and also upon the question of whether or not the injury he complained of was caused in the manner complained of, or' in some other or different way. In this connection I think I should caution you that this class. of evidence — that is, statements made by witnesses as of admissions or statements made by the plaintiff to them— should be carefully scrutinized; not because witnesses willfully misstate alleged admissions or statements they may have heard, but because of the fact that we know so well by experience how éasy it is to be mistaken as to a word or expression uttered by a third person, and which we are undertaking to repeat long afterwards. You have seen it exemplified in this case, where witnesses misspeak themselves, and where the attorneys differ as to what their witness has actually said here upon the stand.”
There was testimony tending to show that officers of the village were notified that the walk in the vicinity was defective, and also that the hole complained of was of six months’ or a year’s standing; while, upon defendant’s behalf, there was testimony denying actual notice on the part of most of the officers, and testimony tending to show that the walk was not in a dangerous condition.
At the time of the alleged accident, the plaintiff was carrying on the livery business. He testified that he was prevented by his injury from being at the barn and giving it his personal attention, and that, while his receipts for a given time before the accident were a sum stated, they were much less for a corresponding period thereafter, and that he sold out the business soon after.
The court was requested by defendant’s counsel to instruct the jury that:
“You are instructed that a municipal corporation is required to exercise vigilance in keeping its streets and sidewalks in reasonably safe condition for public travel by night as well as by day; but it is not an insurer against accidents, nor is it required to maintain the surface of its sidewalks free from all irregularities, and from any possible obstruction to mere convenient travel.”
‘ ‘ I charge you, as a matter of law, that a village, city, or township is not an insurer against accidents to pedestrians passing along their streets or highways, and that all that is required of a village, city, or township is to have their streets, highways, or sidewalks in a reasonably safe condition for public travel; and such reasonably safe condition exists whenever such streets, highways, or side walks can be safely passed over by a person who is in the exercise of reasonable and ordinary care-.”
He refused these requests, and instructed the jury as follows:
“It is the duty of the village authorities to keep the sidewalks along its public streets in a reasonable state of repair, and in a reasonably safe and fit condition for public travel, so that pedestrians lawfully passing and repassing along and over such walks by day as well as by night may do so with reasonable safety to themselves in the exercise of due care.”
‘ ‘ Personal knowledge of a defect in the sidewalk is not alone sufficient to bar recovery by one injured by reason of such defect. If plaintiff had made it appear that he had not the defect in his mind at the time of the alleged injury, and otherwise exercised due care to avoid the accident, he is not guilty of contributory negligence.”
‘ ‘ However, as I view it, it is not of material consequence in this case, as I think it is my duty to instruct you that the village, as a matter of fact, did have actual notice of this defective condition alleged to have existed in this walk. There is some dispute in testimony between the officers of the village and the witnesses on the part of the plaintiff as to whether or not certain ones of them received notice of this alleged defective condition; but, as I remember the testimony, it appears, without contradiction, that Mr. Hull, who was, at the time of the accident, street commissioner of the village, was informed, some time before this alleged accident, that the walk was defective; so that the village must be held to have had actual knowledge of the condition of the walk, whatever it may have been; and, if you find this walk was not in a reasonably safe condition for public travel at this time mentioned, the defendant, under the proofs in this case, must be held to have known the fact. Whether this knowledge came to them a sufficient length of time prior to this alleged accident to have permitted of the walk being in a reasonably safe condition and state of repair if the village exercised due diligence, is a question of fact for you to consider.”
Plaintiff’s physician testified that he charged him $13 for attendance, which had not yet been paid. The court refused to give a request that, “The plaintiff cannot recover for any medicines purchased or medical attendance in this case until he has shown that the same has been paid for, or agreed to be paid for.”
Error is assigned upon several of these subjects. It is uiged that the instruction relating to the testimony of witnesses offered to prove admissions was injurious, as it incicated distrust, on the part of the court, of such testimony. The instruction was one which the authorities jusífy; but justice requires care in giving instruction, lest the furors infer that it reflects an opinion, or are led to deny to the testimony its legitimate and proper weight. Any liscussion of witnesses or their evidence, especially where it applies to individual witnesses, or, if a class, to those \pon one side only, should be dispassionate. We think tiis was so intended, and do not feel justified in concludingthat the jurors were misled by it.
It is said that the court erred in the instruction that the defendant “had notice of the condition of the walk, whatevei it was.” This instruction was made to rest upon pro(f of notice to the street commissioner, who was not produced to deny it. The proof was from witness Sutherland who said that a hole had existed for about two years, and hat he “ called the attention of the street commissioner to the condition of the walk, not right there, just above it and'there and all the way down from my place.” He l.ved about 10 rods from the alleged hole. He said to him tlat there were holes all the way down the walk, and testfled that Hull told him to go to the street committee. Nothing appears to discredit Sutherland, and the fact of notici was proved. It is true that there was a dispute as to whvther the hole was such a defect as to be dangerous, but th) court recognized that by saying that the notice to Hull vas notice of such condition as actually existed. If the wilk was badly out of repair, this was enough to have created the duty of inquiry. The jury must have found thewalk defective.
Counsel were entit'ed to have the substance of the third and sixth requests given, and this, we think, is found in the charge. The coup did not say, in explicit language, that the village was not an insurer, or that the streets are in a reasonably safe condition for public travel when they can be safely passed over by a person who is in the exercise of reasonable and ordinary care; but the language-used was apt, and could not well have failed to convey a proper understanding of the true rule.
It was not error to refuse to instruct the jury that payment or agreement to pay for medical attendance was necessary to authorize a recovery. The law implies a promise to pay for medical attendance when it is called and accepted, and the instruction proposed, even though it be considered broad enough to cover an implied premise to pay, would probably have been misunderstood.
There was no proof that plaintiff sold out his busiaess at a loss, and the court excluded damages of such character. It is said that the plaintiff should not have been permitted to testify that he was compelled to sell out. The admission of this testimony was not excepted to. Being in, it was proper-for the court to instruct the jury tliat it was not an element of damage.
While the difference in profits was not the exact measure of damages, the showing of the falling off of receipts was some evidence of the value of plaintiff’s attention to his business, — -a circumstance from which the value of his time might be estimated, — and was admissible in an action of tort. The plaintiff was not to blame for being unable to demonstrate just the amount of his loss; and he was entitled to show it by, and the jury to fiad it from, the circumstances of the case, of which this was one. We-think the verdict pretty liberal, but not unusually so, and. we cannot review it upon this record. Allison v. Chandler, 11 Mich. 542; Gilbert v. Kennedy, 22 Mich. 117; McKinnon v. McEwan, 48 Mich. 108 (11 N. W. 828, 42 Am. Rep. 458); Geveke v. Railroad Co., 57 Mich. 589 (24 N. W. 675); Grand Rapids, etc., R. Co. v. Weiden, 70 Mich. 390 (38 N. W. 294); Kinney v. Folkerts, 84 Mich. 616 (48 N. W. 283); Haines v. Beach, 90 Mich. 566 (51 N. W. 644); Commissioners of Parks & Boule vards v. Moesta, 91 Mich. 154 (51 N. W. 903); Oliver v. Perkins, 92 Mich. 304 (52 N. W. 609); Patterson v. City of Boston, 23 Pick. 425; Turner v. Railway Co., 15 Wash. 213 (46 Pac. 243, 55 Am. St. Rep. 883); 8 Am. & Eng. Enc. Law (2d Ed.), pp. 620, 626, 650, 651, and notes, 653, 654.
The contents of the newspaper article was unimportant, am the refusal to admit it should not reverse the case.
The judgment is affirmed.
M>ore, Grant, and Montgomery, JJ., concurred. Loni, J., did not sit. | [
-7,
7,
-3,
-14,
-31,
-9,
25,
1,
15,
21,
63,
-34,
52,
7,
-13,
1,
-1,
-23,
21,
-22,
-22,
-71,
-13,
26,
-26,
6,
12,
-14,
-14,
-34,
10,
13,
15,
11,
-5,
18,
71,
8,
-5,
32,
27,
26,
-2,
-88,
1,
-7,
-5,
-43,
16,
-33,
29,
-4,
0,
-45,
-28,
27,
35,
30,
-4,
-47,
-21,
14,
13,
-87,
19,
-36,
-18,
20,
8,
-20,
-50,
29,
9,
-43,
-58,
15,
-39,
49,
-40,
28,
-8,
-14,
32,
15,
-47,
0,
-5,
-33,
21,
-58,
12,
-21,
44,
-14,
-13,
7,
44,
16,
-6,
46,
-50,
20,
1,
-42,
4,
-8,
-52,
-83,
-54,
12,
-66,
-2,
43,
-17,
0,
-50,
-10,
14,
0,
7,
44,
-38,
7,
-7,
-13,
8,
8,
10,
-22,
-34,
39,
-3,
-17,
43,
-1,
12,
-26,
-12,
38,
-14,
82,
30,
-25,
-9,
-3,
-12,
-49,
20,
-36,
0,
-39,
-41,
-8,
-47,
26,
-22,
-47,
-5,
75,
-4,
48,
0,
-15,
-6,
-18,
-8,
-25,
0,
11,
-1,
49,
36,
-2,
-76,
17,
8,
18,
10,
-31,
-17,
-38,
16,
-23,
-10,
3,
-25,
1,
-3,
15,
46,
36,
45,
-55,
11,
25,
-20,
-11,
-29,
51,
-6,
-8,
-26,
-12,
-24,
-20,
4,
12,
-37,
29,
18,
8,
-11,
24,
-19,
48,
-39,
13,
-7,
5,
-16,
8,
35,
16,
-37,
-19,
-7,
-7,
-6,
-58,
10,
10,
-12,
0,
-8,
4,
-26,
37,
8,
0,
-22,
-22,
0,
5,
-12,
-54,
-34,
-29,
-11,
8,
0,
12,
8,
-16,
-15,
-58,
-14,
-23,
-6,
-59,
22,
27,
69,
-13,
66,
10,
-13,
37,
51,
-24,
10,
33,
-13,
11,
44,
-18,
-10,
-46,
-28,
31,
1,
-14,
1,
13,
3,
-29,
1,
-16,
64,
-15,
6,
51,
-50,
-30,
1,
32,
11,
36,
-1,
-26,
-42,
26,
-15,
3,
43,
-5,
15,
18,
13,
16,
-6,
11,
-10,
30,
15,
15,
58,
-10,
17,
1,
-35,
-16,
-6,
-39,
-10,
0,
-1,
36,
-90,
-38,
-21,
6,
26,
-17,
10,
15,
-13,
-9,
-17,
-30,
5,
28,
15,
-18,
-23,
-6,
49,
-46,
-27,
18,
-1,
3,
-22,
18,
-36,
-23,
13,
23,
-34,
-23,
-4,
33,
-46,
-30,
22,
39,
-20,
-34,
-28,
3,
72,
4,
-31,
30,
14,
-17,
-92,
31,
-6,
-10,
57,
0,
14,
15,
-43,
-7,
-27,
-71,
-55,
-16,
12,
-46,
49,
60,
30,
-7,
43,
-24,
-28,
-10,
-25,
-35,
5,
31,
13,
-29,
-25,
12,
-30,
0,
-1,
17,
2,
0,
-7,
-5,
-4,
24,
33,
-2,
-29,
72,
7,
27,
-50,
65,
5,
-4,
-20,
-23,
-54,
24,
-33,
15,
-20,
14,
-22,
11,
-2,
-35,
-2,
-14,
-16,
-29,
1,
25,
29,
13,
-11,
4,
-15,
57,
-10,
6,
16,
3,
30,
10,
-42,
4,
-31,
37,
-31,
-41,
-2,
31,
-5,
-22,
-76,
-5,
-16,
27,
-24,
7,
28,
5,
13,
-11,
24,
-39,
20,
-30,
-29,
24,
54,
-11,
-32,
37,
16,
14,
13,
32,
-14,
-21,
-7,
3,
17,
-12,
28,
9,
19,
-30,
5,
-49,
-33,
49,
-61,
52,
-13,
20,
21,
-60,
14,
-6,
-18,
9,
39,
1,
-20,
-44,
-14,
-1,
-38,
-43,
-23,
-49,
-15,
-3,
27,
-33,
-51,
50,
8,
-20,
-2,
43,
-1,
6,
10,
32,
-25,
-35,
52,
58,
4,
30,
-6,
2,
33,
65,
60,
15,
-15,
38,
-10,
1,
35,
34,
-36,
21,
-28,
-20,
20,
-8,
20,
67,
-2,
42,
0,
37,
-14,
-41,
13,
47,
-15,
-57,
-44,
-26,
17,
-15,
12,
2,
2,
10,
6,
-2,
-1,
4,
19,
-13,
46,
10,
8,
-24,
12,
39,
-15,
-38,
19,
-17,
13,
30,
-20,
-62,
20,
29,
-31,
33,
-7,
16,
26,
18,
19,
4,
-44,
-6,
7,
-32,
-22,
-4,
64,
5,
5,
-7,
18,
29,
21,
4,
-12,
-42,
-45,
-41,
-4,
-31,
-5,
-33,
13,
35,
8,
-54,
10,
-1,
-41,
15,
-5,
-1,
0,
-22,
0,
-7,
-67,
6,
37,
48,
-22,
45,
-11,
-19,
18,
-10,
-9,
-12,
35,
-23,
-15,
15,
-2,
26,
0,
7,
22,
26,
3,
14,
19,
19,
-20,
-14,
29,
24,
11,
20,
-19,
69,
-15,
6,
-31,
-23,
2,
24,
-43,
-23,
18,
36,
6,
44,
54,
73,
-17,
0,
-21,
-36,
-4,
-4,
16,
30,
-3,
56,
-16,
12,
4,
30,
37,
-15,
64,
31,
40,
9,
20,
-55,
13,
-28,
-22,
14,
-59,
26,
-39,
78,
6,
32,
-25,
40,
10,
-26,
17,
-26,
25,
-13,
-22,
-26,
-24,
-9,
-18,
-16,
11,
-18,
-29,
36,
2,
-20,
33,
14,
16,
7,
6,
31,
-9,
-16,
-7,
-32,
-32,
3,
-20,
36,
-43,
-37,
18,
-2,
-25,
4,
2,
-31,
7,
15,
-34,
-11,
53,
2,
-22,
-17,
-18,
34,
-16,
-17,
50,
-32,
10,
15,
-10,
33,
-15,
17,
-6,
-44,
-33,
-5,
-23,
-3,
-6,
-13,
0,
-5,
8,
-1,
17,
6,
-10,
11,
13,
54,
8,
-15,
-44,
-6,
-56,
-23,
-10,
34,
5,
3,
3,
-11,
14,
5,
-60,
-26,
-18,
13,
-57,
31,
-18,
55,
-8,
-8,
-9,
36,
15,
-2,
-4,
-32,
-7,
70,
20,
-11,
25,
50,
-30,
-45,
-2,
-49,
-2,
19,
27,
47,
-12,
-36,
-44,
-13,
-15,
-30,
0,
-12,
-17,
-18,
-49,
24,
-17,
11,
0,
-21,
-4,
74,
62,
-45,
-5,
14,
11,
21,
-27,
36,
-42,
-43,
22,
-3,
30,
4,
-26,
4,
-51,
24,
47,
31,
69,
26,
19,
-17,
-39,
-9,
9,
19,
-6,
-27,
31,
10,
23,
-2,
-56,
27,
4,
-25,
35,
-1,
-6,
-25,
-7,
8,
47,
-16,
15,
6,
15,
-13,
47,
27,
-1,
-35,
12,
1,
-14,
17,
44,
-18,
-4,
-28,
6,
43,
7,
-3,
-28,
-20,
3,
64,
36,
0,
50,
-70,
-52,
-64,
55,
0,
32,
19,
20,
34,
46,
-4,
-39,
-21,
-12,
14,
31,
30,
35,
4,
-1,
17,
96,
13,
8,
-25,
14,
15,
-5,
-22,
-72,
7,
-10,
16,
12,
-21,
22,
-8,
-39,
-41,
28,
-55,
-42,
-8,
-18,
11,
8,
-61,
28,
15,
10,
-47,
-32,
-16,
-46,
-25,
-18,
-4,
-7,
-8,
35,
-9,
-32,
47,
30,
-28,
-30,
-8,
36,
19,
-4,
10,
29,
-10,
-12,
-18,
0,
35,
-9,
41,
21
] |
Grant, J.
(after stating the facts). Counsel for the complainants say in their brief that the proceedings, are not questioned except in two or three particulars, one of which is the laches of the drain commissioner in acting upon the petition, and the other that the provision of the act under which the cost of constructing this drain was apportioned is unconstitutional. These points were not argued in the main brief of complainants, but are argued in the reply or supplemental brief. Whether they should now be considered we will not decide. Section 4346, 2 Comp. Laws, provides a remedy by certiorari when the proceedings are attacked for defects. The statute gives 10 days in which to give notice of such certiorari, and, if such proceeding be not taken within the time prescribed, its legality shall not be questioned in any suit at law or in equity. • No such proceedings were instituted, and no objection made until the filing of this bill, on October 22d. Meanwhile the contract had been let, and $3,589 expended in the construction of the work. Complainants did not act with sufficient promptness, and are guilty of laches which bars their right to review defects, either by certiorari or by a bill in equity. Moore v. McIntyre, 110 Mich. 237 (68 N. W. 130), and authorities there cited.
Complainant Allen has not alleged in his bill, nor shown by his testimony, that his land is injured by the construction of this drain. He is, therefore, not entitled to maintain this suit. All the cases cited by the complainants in support of their contention are cases in which drain commissioners have flooded the lower lands by turning upon them an unusual flood of water from the higher lands, to the injury of the lower estate. Authorities are uniform that this cannot be done, even under .the authority of the drain commissioner, without compensation.
The complainant township, as a municipality, owns, no land to be injuriously affectdd. It cannot maintain a. bill in behalf of those landowners in the township who do> claim to be'injuriously affected. Bach landowner may maintain a suit to determine that question, but the township cannot interfere, and impose the cost of such suit upon the entire township. It follows that, if the township can maintain this suit, it is upon the sole theory that the construction of this drain will empty the waters of Rich-land and Fremont townships upon the lands of the township of Swan Creek, to the injury of the public health. The obvious reply is that this power is not, by law, conferred upon courts. It is placed exclusively in the power of those tribunals established by the law for the sole purpose of determining the question of necessity and of eminent domain. Neither the circuit court nor this court is at liberty to substitute its judgment upon this point for the judgment of the special commissioners who were appointed to determine that question. The testimony upon this point is conflicting. The finding of the special commissioners or a jury appointed under the statute to determine this is as conclusive upon the courts as is the verdict of a jury upon contested questions of fact. Clark v. Drain Com'r, 50 Mich. 618 (16 N. W. 167); Smith v. Carlow, 114 Mich. 67 (72 N. W. 22).
Decree is affirmed, with costs.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
5,
33,
7,
-25,
-6,
38,
52,
24,
12,
61,
24,
-31,
64,
-28,
15,
-57,
26,
-27,
-9,
12,
-37,
-10,
41,
40,
-39,
36,
40,
1,
-20,
23,
-23,
-16,
-63,
66,
-10,
-38,
36,
13,
1,
12,
-47,
-22,
11,
-67,
9,
16,
32,
42,
-4,
-20,
27,
32,
-19,
-15,
2,
-29,
-31,
0,
-46,
-42,
-55,
19,
-6,
16,
13,
2,
-26,
8,
24,
-24,
-36,
65,
9,
-20,
61,
3,
11,
-9,
-14,
4,
-16,
33,
34,
-51,
3,
-25,
-17,
23,
16,
17,
11,
0,
-22,
-4,
10,
-1,
15,
-7,
-9,
0,
-2,
27,
35,
10,
0,
-25,
-25,
-23,
-7,
17,
33,
3,
-12,
-45,
-36,
-42,
-16,
-13,
-33,
-44,
39,
2,
8,
6,
-43,
11,
14,
-24,
-47,
31,
-13,
-17,
3,
-4,
33,
6,
-22,
-25,
43,
32,
3,
16,
8,
-40,
29,
19,
29,
-29,
23,
-5,
0,
-2,
32,
-17,
-36,
-7,
19,
-63,
58,
31,
85,
66,
-65,
-39,
-62,
13,
13,
-23,
39,
2,
62,
4,
-9,
0,
25,
-46,
12,
27,
33,
15,
19,
-39,
22,
-10,
-9,
4,
-13,
-24,
18,
-50,
32,
-38,
-3,
-18,
21,
23,
-6,
45,
10,
-29,
-27,
-2,
-6,
16,
2,
0,
-6,
-35,
-5,
-5,
14,
44,
-20,
-15,
5,
-30,
65,
-20,
0,
-33,
36,
-15,
13,
-4,
-25,
6,
-23,
-9,
21,
-42,
21,
5,
20,
34,
15,
12,
26,
26,
18,
45,
-13,
39,
-27,
-31,
-11,
14,
-25,
-63,
-18,
47,
-7,
-33,
10,
4,
-4,
5,
-7,
29,
-47,
-46,
15,
46,
12,
-45,
-26,
-13,
-21,
21,
-3,
1,
19,
17,
16,
-18,
-36,
-12,
-29,
11,
-3,
30,
-20,
-15,
-2,
35,
-27,
54,
-58,
18,
1,
6,
18,
-27,
-21,
21,
30,
59,
47,
-9,
41,
-18,
29,
7,
20,
-11,
29,
6,
-26,
40,
-15,
8,
22,
36,
-36,
33,
2,
35,
-7,
-17,
15,
-18,
29,
1,
26,
-38,
-51,
-23,
55,
-13,
-4,
14,
-8,
20,
30,
11,
90,
-12,
11,
-63,
-59,
0,
70,
-9,
4,
-7,
8,
-7,
-36,
-73,
-31,
7,
-11,
49,
-47,
72,
50,
-28,
-4,
-10,
-27,
3,
43,
38,
-40,
-56,
-26,
-22,
-42,
-40,
34,
49,
-1,
-2,
1,
36,
-32,
10,
-3,
10,
-47,
23,
2,
-42,
-18,
16,
19,
19,
-20,
0,
-16,
13,
8,
-64,
-11,
14,
-21,
6,
19,
21,
-24,
21,
-15,
-4,
-39,
52,
14,
72,
0,
-19,
23,
26,
-2,
21,
30,
-43,
-37,
5,
54,
27,
35,
-4,
-1,
-34,
28,
-51,
1,
-49,
57,
17,
6,
44,
-23,
-18,
9,
-32,
-23,
10,
-28,
-59,
-77,
-1,
-22,
48,
43,
23,
-31,
3,
-3,
48,
-5,
-27,
4,
18,
-29,
9,
0,
26,
10,
-7,
65,
1,
-7,
-5,
-52,
-20,
-12,
-23,
-15,
-4,
39,
14,
-8,
30,
18,
26,
21,
8,
34,
25,
5,
15,
37,
-11,
-42,
-50,
-80,
-39,
-17,
36,
29,
28,
0,
24,
-51,
-3,
37,
0,
14,
-23,
-13,
41,
34,
55,
1,
-18,
-3,
-8,
-20,
5,
12,
29,
-18,
-9,
35,
18,
-63,
32,
67,
-8,
26,
3,
35,
-87,
-59,
-67,
0,
25,
-42,
10,
33,
-24,
24,
-10,
-20,
-34,
-29,
-23,
-6,
-4,
-31,
-22,
-8,
71,
13,
39,
17,
19,
-22,
-28,
33,
9,
-12,
-56,
-11,
27,
-24,
6,
-22,
-45,
33,
-14,
-11,
8,
14,
-17,
28,
21,
6,
-16,
29,
-33,
1,
11,
34,
-24,
20,
8,
2,
-28,
19,
47,
-48,
-40,
-19,
-22,
-10,
7,
-19,
-18,
32,
-23,
-8,
-22,
-32,
-21,
15,
-19,
4,
-28,
64,
45,
26,
-33,
-24,
-14,
23,
43,
-32,
-43,
-8,
-12,
11,
6,
15,
-16,
0,
40,
-35,
-31,
29,
-2,
18,
-15,
7,
-20,
-26,
-27,
31,
27,
-27,
21,
-55,
1,
4,
-5,
4,
11,
3,
-9,
28,
31,
-10,
-32,
-41,
-43,
-2,
-15,
-4,
38,
-11,
-23,
-37,
33,
-3,
-48,
31,
14,
-4,
-23,
38,
-31,
69,
-19,
10,
28,
-48,
1,
9,
45,
4,
-24,
3,
0,
-6,
2,
-1,
-58,
19,
-3,
-34,
26,
-4,
-11,
-4,
-35,
2,
17,
-1,
-12,
3,
5,
28,
-32,
3,
-41,
-24,
-43,
22,
43,
-28,
17,
-8,
-19,
23,
-6,
-24,
45,
26,
-20,
-5,
0,
-30,
28,
-15,
11,
8,
-19,
-4,
9,
-16,
13,
34,
-30,
-30,
19,
-3,
18,
-27,
-1,
-52,
19,
-9,
-1,
8,
-3,
3,
31,
12,
-19,
-16,
-72,
36,
9,
4,
2,
28,
-40,
23,
14,
-9,
23,
8,
-32,
5,
-2,
-34,
-3,
-27,
-15,
-18,
22,
25,
9,
-41,
-6,
22,
-64,
12,
-11,
-29,
35,
-12,
5,
16,
-34,
44,
-22,
-39,
-66,
46,
-16,
4,
-12,
-14,
9,
-25,
-39,
1,
-59,
-21,
-3,
5,
-31,
-49,
15,
-6,
39,
25,
-24,
-19,
-5,
25,
5,
44,
13,
17,
16,
-59,
-14,
10,
7,
-8,
-17,
-13,
4,
10,
-34,
1,
56,
14,
-35,
4,
53,
44,
-34,
-8,
0,
49,
-25,
-3,
8,
36,
-44,
-30,
57,
29,
-10,
4,
-24,
11,
-1,
6,
-47,
-20,
-4,
-39,
35,
-43,
25,
-25,
65,
-23,
-1,
8,
-16,
33,
-8,
-22,
-24,
16,
-5,
41,
65,
48,
-10,
-5,
3,
20,
-27,
-10,
8,
24,
20,
-27,
-19,
3,
-32,
-23,
-41,
-4,
2,
-14,
-11,
3,
-53,
-21,
-18,
-12,
-25,
-18,
65,
43,
5,
-1,
31,
12,
0,
-19,
6,
4,
19,
11,
-20,
8,
-17,
-28,
-26,
-34,
0,
-5,
90,
-17,
-34,
-15,
-56,
-12,
5,
4,
-37,
8,
31,
11,
22,
-20,
-43,
-23,
-14,
-29,
11,
-37,
11,
-13,
-37,
2,
18,
19,
-2,
9,
-12,
11,
-38,
16,
-34,
-39,
38,
-8,
16,
6,
18,
15,
9,
-9,
17,
49,
5,
7,
-20,
-38,
-9,
-41,
-4,
3,
-8,
-12,
-25,
1,
-27,
17,
-9,
-12,
33,
-11,
2,
-48,
21,
37,
14,
1,
-8,
23,
-37,
24,
-39,
27,
24,
7,
49,
11,
-48,
-15,
-42,
29,
66,
37,
-38,
-17,
-27,
-55,
-14,
1,
-30,
54,
62,
-6,
32,
43,
-31,
10,
33,
35,
-11,
-29,
44,
37,
50,
-58,
11,
-28,
-10,
-15,
-24,
63,
1,
-43,
19
] |
Hooker, C. J.
The plaintiff’s action is brought to recover upon an alleged contract of hiring as a school teacher. She produced a contract in writing, signed by two members of the school board as it existed at the date of the contract, and offered proof tending to show that she held herself in readiness to perform the contract on her part, but was prevented by the school board. The defense relied on is that, although the contract bears the signatures of two of the members of the school board, they were not authorized to sign it by any action taken by the board at a meeting. The contract bears date the 30th day of June. Plaintiff applied for the school on May llth-, and on May ,12th Mr. Ferguson, one of ther members of the board, informed her that the board had decided to hire her, and Mr. Wilson, another member, intimated the same thing. She stated that:
“They said that the board had a meeting, and that I was hired at that meeting by two members of the board. Mr. Ferguson told me that.”
Mr. Briggs, the director, notified her to the contrary when informed of her claim. The director, Briggs, produced the record of the district, and said that it contained a record of all the meetings for the year, both of the board and electors. The following is an exemplification of the record of the meeting of May llth:
“ Meeting of the school board was called to order at 8 o’clock p. m., May llth, 1900. Present: Jas. Ferguson, De Witt Wilson, and C. C. Briggs. After looking over the house, it was resolved that the school-room be papered and painted, and Mr. Wilson was appointed a committee of one to have the same done in proper shape. The application of Miss Cowley for the next term of school was presented by Mr. Wilson, but no action was taken on the application. C. C. Briggs, Director.”
The next meeting was on July 14th, and the following is a copy of the record:
“July 14, 1900. The school board of school district number three was called to order at 8 o’clock p. m. by the chairman. Full board was present. Application of Miss Lillian C. Cowley was presented, and voted upon: Effrick, no; Briggs, no; and Wilson, yes. The application of one Frederick was presented and voted upon: Effrick, yes; Briggs, yes; and Wilson, no. The director was instructed to draw a contract for Mr. Frederick for nine months’ school at forty dollars per month. Moved by Mr. Briggs, and seconded by Mr. Wilson, that the director correspond with parties in regard to purchasing ten new desks. Moved by Mr. Briggs that Mr. Wilson be appointed a committee of one to get the school-house cleaned, and pay three dollars for same. Seconded by Mr. Briggs, and carried on motion. Board adjourned.
“C. C. Briggs, Director.”
It will be observed that Ferguson was no longer a member of the board, having been succeeded by Effrick, who was elected at the annual meeting held on July 9 th. The plaintiff sought to show that the statement in the record of May 11th, that no action was taken upon her application, was not correct, and that at such meeting two members — i. e., Wilson and Ferguson — expressed themselves as favoring her employment. Ferguson testified that they talked the subject over at the meeting, and those two agreed to hire her, and that Briggs, the director, said that “if we hired her he would have to sign the contract, — something to that effect,” — and that the record mentioned was not true. Briggs states that the record was written up correctly the next day. The plaintiff recovered, and defendant has appealed.
Counsel for the appellant states that the questions in the case are two:
“ 1. Can the record of the school board, made in considering the applications for hiring teachers, be contradicted ?
“2. Is it necessary that the official action of the school board in hiring a teacher, taken at a' regular meeting, be in the form of a vote or resolution ?”
The statute (2 Comp. Laws, § 4671) provides:
.“No act authorized to be done by the district board shall be valid unless voted at a meeting of the board. A majority of the members of the board at a meeting thereof shall be necessary for the transaction of business.”
It' has been explicitly held that a teacher could not be legally employed without official action as required by statute. Hazen v. Lerche, 47 Mich. 626 (11 N. W. 413). The record of the proceedings of the meeting, kept by the director, states that ‘ ‘ the application of Miss Cowley for the next term of school was presented by Mr. Wilson, but no action was taken on the application.” Parol proof was not competent to contradict the record in this proceeding. See 20 Am. & Eng. Enc. Law (1st Ed.), 511, and cases cited; Hall v. People, 21 Mich. 462; Stevenson v. Bay City, 26 Mich. 44; Ten Eyck v. Railroad Co., 74 Mich. 232 (41 N. W. 905, 3 L. R. A. 378, 16 Am. St. Rep. 633); Ludington Water-Supply Co. v. City of Ludington, 119 Mich. 487 (78 N. W. 558); Sweet v. Gibson, 123 Mich. 701 (83 N. W. 407).
The"judgment is reversed, and a new trial ordered.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
35,
-65,
-16,
4,
5,
-4,
15,
0,
0,
3,
-2,
-33,
63,
53,
-16,
-4,
44,
23,
44,
-47,
-11,
-12,
-12,
-32,
-19,
-7,
35,
-71,
-34,
-9,
-11,
42,
-10,
-27,
-3,
2,
71,
-2,
27,
-11,
-8,
-4,
-25,
-93,
46,
7,
7,
7,
-43,
-6,
26,
39,
4,
-19,
-22,
0,
-1,
-43,
-27,
-18,
-55,
-12,
41,
-35,
-34,
-14,
-2,
26,
26,
-18,
-31,
-13,
-21,
-63,
23,
-44,
-16,
-1,
-3,
44,
10,
-15,
18,
0,
26,
2,
-16,
1,
25,
38,
-10,
-12,
-40,
2,
-14,
27,
-30,
-6,
35,
36,
20,
0,
-41,
-26,
22,
-16,
-24,
5,
-3,
58,
-60,
-21,
58,
-72,
5,
-32,
26,
24,
11,
-29,
29,
59,
-14,
-3,
-17,
69,
-31,
10,
17,
21,
-42,
-17,
-35,
-36,
25,
45,
-12,
-16,
0,
-41,
3,
41,
-52,
11,
-8,
-69,
-57,
38,
-73,
-11,
-24,
-38,
35,
-5,
23,
-8,
39,
0,
43,
-27,
-25,
-25,
0,
-12,
-44,
-15,
9,
4,
-15,
23,
-10,
62,
-38,
-5,
14,
-11,
22,
39,
5,
0,
-30,
-72,
3,
-10,
44,
-43,
45,
-16,
5,
67,
-42,
-14,
-33,
-51,
21,
7,
-50,
-13,
9,
13,
3,
15,
-32,
-7,
-20,
-16,
12,
-34,
-38,
24,
-18,
25,
-13,
10,
-13,
7,
28,
7,
20,
15,
43,
-8,
1,
29,
-65,
-34,
-2,
21,
46,
-22,
10,
50,
13,
-8,
-20,
4,
-37,
13,
57,
-1,
-38,
-6,
0,
50,
-52,
-78,
-62,
-19,
13,
18,
11,
21,
21,
19,
0,
2,
-34,
0,
-11,
12,
-12,
2,
-9,
4,
-15,
-41,
18,
65,
-1,
0,
2,
2,
15,
61,
-20,
-27,
-29,
-45,
-15,
-45,
-3,
21,
-80,
-25,
13,
-9,
-8,
7,
11,
-17,
-7,
0,
-10,
-13,
79,
-30,
28,
40,
-30,
-49,
-45,
-44,
50,
30,
37,
24,
-34,
-27,
21,
-48,
-25,
20,
10,
-7,
-5,
-34,
-21,
-32,
-64,
14,
-11,
-40,
-4,
36,
-7,
-37,
-20,
23,
3,
10,
45,
-24,
-51,
0,
7,
5,
-10,
50,
13,
-43,
27,
113,
-31,
-25,
-16,
10,
-73,
-25,
1,
-18,
37,
-70,
42,
-24,
-27,
51,
25,
-2,
3,
1,
9,
20,
-8,
-16,
35,
-10,
-5,
7,
37,
-7,
27,
-16,
48,
-10,
-17,
-30,
34,
56,
4,
56,
-33,
-49,
-35,
1,
29,
-21,
27,
40,
35,
-35,
0,
24,
1,
28,
2,
-5,
-4,
16,
-7,
-70,
-19,
-15,
5,
-12,
-51,
-6,
-63,
-45,
-22,
38,
55,
27,
13,
-16,
17,
-32,
-19,
21,
-12,
19,
18,
-22,
-4,
38,
0,
2,
37,
20,
-22,
-61,
-48,
-16,
47,
-34,
-28,
-13,
-8,
-2,
-13,
-7,
45,
-1,
-52,
7,
-11,
29,
50,
7,
-20,
-2,
37,
46,
31,
60,
7,
1,
13,
5,
33,
-6,
-7,
6,
54,
-4,
13,
57,
25,
11,
-54,
7,
-26,
-33,
7,
-12,
14,
13,
22,
-1,
-21,
-23,
7,
-4,
26,
-2,
10,
13,
22,
-55,
-4,
20,
45,
-42,
-57,
0,
0,
73,
50,
-26,
-46,
45,
-34,
4,
3,
-14,
-37,
-28,
-19,
31,
-13,
-18,
1,
8,
21,
-6,
28,
25,
-24,
24,
-24,
10,
47,
55,
-32,
-19,
-19,
26,
29,
21,
1,
0,
7,
40,
28,
2,
8,
-31,
7,
35,
42,
-26,
-24,
12,
11,
47,
-36,
-6,
-29,
-5,
12,
27,
19,
-4,
7,
-35,
-36,
53,
24,
-22,
7,
58,
-64,
3,
26,
-22,
42,
4,
-8,
29,
21,
1,
3,
-29,
45,
27,
9,
-25,
-11,
-5,
18,
29,
31,
-6,
25,
-12,
-17,
-62,
17,
13,
2,
36,
-33,
-3,
-60,
-58,
11,
26,
26,
28,
-15,
22,
-25,
8,
-42,
28,
-20,
-25,
-42,
31,
2,
-9,
-31,
-6,
26,
-11,
-49,
-28,
6,
17,
15,
-28,
-13,
63,
21,
24,
32,
18,
25,
-8,
55,
-52,
3,
-20,
2,
22,
-53,
-59,
20,
-28,
-1,
-5,
4,
-12,
-54,
-13,
-30,
26,
-47,
13,
24,
-41,
-6,
-56,
71,
-60,
0,
-49,
-54,
-44,
-1,
-30,
22,
-29,
-24,
-1,
3,
0,
57,
22,
-4,
-13,
14,
9,
54,
9,
30,
-15,
37,
38,
58,
-40,
55,
8,
38,
-7,
37,
-49,
52,
-25,
-74,
-22,
48,
10,
30,
-14,
-11,
-60,
25,
-47,
-30,
-5,
-15,
-20,
-14,
68,
37,
-18,
-11,
19,
18,
47,
32,
-1,
-32,
5,
13,
1,
4,
53,
8,
9,
35,
30,
9,
26,
-33,
5,
14,
-27,
-12,
-30,
57,
2,
-43,
-2,
-14,
-3,
-2,
-11,
16,
-18,
-5,
-9,
-56,
-9,
-41,
-43,
25,
-7,
-49,
15,
26,
-58,
-18,
5,
43,
1,
-30,
-21,
-17,
7,
-51,
-17,
0,
-49,
14,
68,
-45,
-8,
-3,
6,
31,
1,
-8,
-2,
61,
5,
-17,
-22,
-31,
-7,
0,
0,
-2,
24,
8,
-5,
17,
-11,
45,
28,
20,
-15,
-15,
-56,
-29,
26,
14,
7,
-8,
-43,
18,
-14,
-34,
15,
-26,
-7,
-5,
9,
-22,
3,
-38,
44,
-52,
-54,
-14,
-6,
44,
4,
-19,
11,
4,
15,
-27,
16,
9,
-27,
-1,
1,
-9,
5,
41,
12,
24,
-2,
14,
5,
-44,
-40,
35,
2,
-26,
12,
27,
-33,
30,
-17,
-17,
3,
0,
-52,
5,
57,
-3,
18,
35,
-55,
12,
-37,
8,
-3,
-14,
30,
-28,
0,
17,
35,
37,
-44,
51,
-3,
-2,
-26,
-34,
-22,
-12,
24,
-8,
-10,
65,
32,
-51,
64,
39,
0,
2,
-35,
-22,
0,
94,
-3,
41,
21,
39,
2,
40,
-18,
60,
3,
-32,
32,
5,
17,
14,
10,
-76,
-45,
41,
-13,
4,
-3,
27,
-14,
-17,
2,
-3,
40,
-26,
-49,
62,
11,
42,
-59,
30,
-37,
17,
11,
24,
29,
-23,
43,
34,
-10,
5,
21,
41,
30,
60,
-12,
1,
14,
27,
-35,
-9,
-49,
-36,
-26,
-12,
4,
39,
15,
-18,
48,
58,
23,
-37,
-12,
-14,
23,
-13,
6,
26,
28,
8,
28,
0,
-3,
-7,
32,
0,
-18,
44,
40,
6,
-19,
-15,
-43,
-1,
16,
22,
31,
31,
-31,
-39,
75,
-18,
11,
35,
-62,
-23,
-33,
-3,
-1,
28,
-58,
-7,
-56,
-51,
-72,
38,
4,
31,
-22,
-45,
55,
-73,
-25,
86,
-45,
-21,
0,
8,
14,
14,
-14,
42,
-29,
9,
5,
24,
-33,
47,
-10,
-25,
31
] |
Moore, J.
For some time prior to 1887, Edward C. Hargrave and his father, Edward J. Hargrave, owned mill property at Bay City, and were engaged in the business of manufacturing lumber and salt. The business was carried on in the name of E. J. Hargrave & Son. The father died in 1887. It is the claim of defendant that, after the death of Edward J. Hargrave, Elizabeth W. Hargrave, the widow of E. J. Hargrave, and Edward C. Hargrave, continued the business together under the old firm name of E. J. Hargrave & Son, until the firm failed in January, 1896. In the fall of 1895 Mrs,» Hargrave went to England; and it is the claim of the plaintiff that the business was the business of Edward C. Hargrave alone, carried on in the name of E. J. Hargrave & Son. Mr. Edward C. Hargrave, in 1891, organized the E. C. ■ Hargrave & Co., a corporation, at Hinkley, N. Y., which carried on the business of manufacturing lumber and sulphate fiber at that place. In this corporation Mr. Edward C. Hargrave was a large stockholder, owning $350,000 out of the $400,000 capital stock, all of which was paid up.
The several loans involved in this case were made by plaintiff, Stoddard, as follows: Early in 1893, viz., upon February 10, 1893, Edward C. Hargrave borrowed from the plaintiff, Stoddard, the sum of $3,000, giving his personal note, and transferring as collateral security a real-estate mortgage and accompanying, notes amounting to $3,000, running from Francis Gr. Fitch to Edward C. Hargrave, and also a lease, running for a period of five years, for the use of all of the railroads and booms connected with, said property. Fitch subsequently paid one of these notes, which was applied on the note, reducing this loan from $3,000 to $2,500. Upon September 1, 1893, another loan of $1,000 was made. The note representing this loan was indorsed by Mr. Courtright. It is claimed by plaintiff both of these loans were made to E. C. Hargrave. It is the claim of defendant they were made to E. J. Hargrave & Son.
Upon October-2, 1893, plaintiff, Stoddard, made another loan of $5,481.63, and upon January 5, 1894, another of $1,000. Mr. Stoddard testifies that the two amounts were brought together in some way, and, together with some additional items, made up the sum of $7,000, for which he took two notes, of $5,000 and $2,000, respectively, of Paiton & Co., the originals being taken up, the last renewals being dated October 31,1895, and are for $5,000 and $2,000, respectively, made by Patton & Co., of Albany, N. Y., to the Trenton Falls Lumber Company, and indorsed by E. C. Hargrave' & Co., the New York corporation, and by Edward C. Hargrave personally.
Upon May 8, 1895, Mr. Stoddard took the note of E. J. Hargrave & Son, dated May 8, 1895, for $1,000, due in four months. This note was secured by a certificate of stock in the E. C. Hargrave & Co. corporation.
Patton & Co. failed in the latter part of 1895, carrying down with it the Trenton Falls Lumber Company and the E. C. Hargrave & Co. corporation in New York, and by reason of these failures E. J. Hargrave & Son, of Bay City, came into financial difficulties. These various loans had been renewed from time to time. Whatever may be said as to whym these moneys were loaned or for whom they were borrowed, in January, 1896, Mr. Stoddard held notes as follows: Notes of E. J. Hargrave & Son: One note secured by the Fitch real-estate mortgage, $2,500; one note indorsed by Morris L. Courtright, $1,000; one note secured by certificate of stock in the E. C. Plargrave & Co. corporation, $1,000. Notes of Patton & Co.: One note, $5,000; one note, $2,000. The last two notes were made to the Trenton Palls Lumber Company and indorsed by them. They also bore the indorsement of E. C. Hargrave & Co. and Edward C. Hargrave personally.
In January, 1896, Mr. Stoddard first learned of the financial difficulties of the above concerns, and claims that a few days after January 1, 1896, he saw Mr. Hargrave at Mr. Stoddard’s office in Bay City, and that Mr. Hargrave told Mr. Stoddard of the claim against Pitch, which he (Hargrave) agreed to turn over to Mr. Stoddard, but that nothing was done about it then. Within a day or two prior to January 17, 1896, Mr. Stoddard went to the office of M. L. Courtright, who was the attorney for E. J. Hargrave & Son, and, after a talk with the latter, it was decided that Mr. Courtright, acting for E. J. Hargrave & Son, would turn over to Mr. Stoddard an assignment of the Pitch claim before mentioned, together with an assignment of a certain chattel mortgage on file December 6, 1893, made by Pitch et al. to E. C. Hargrave. An assignment was made, reading as follows:
. “ Por value received, we hereby sell, assign, and transfer to John L. Stoddard our claim and accounts against the Pitch Salt Company, together with a certain chattel mortgage given by the ,said company to us, bearing date December 5, 1893, and now on file in the office of the recorder of Bay. City, Michigan.
“ Dated this 18th day of January, 1896.
“E. J. Hargrave & Son,
“ By M. L. Courtright.”
It is claimed Mr. E. C. Hargrave afterwards ratified this assignment. The chattel mortgage was afterwards discharged, and a new one made by the Pitch Salt Company direct to Mr. Stoddard.
May 27, 1896, the following paper was given:
“Bay City, Mich., May 27, 1896.
“ One day after date, without grace, for value received, I promise to pay to the order of J. L. Stoddard ten thousand seven hundred eighty dollars and eighty cents ($10,780.80), with interest from date at eight per cent, per annum, payable quarterly until paid.
“This note is collateral to the following, viz.: One note for two thousand dollars ($2,000), dated October 31, 1895, and made by Patton & Co., and indorsed by the Trenton Falls Lumber Company, E. C. Hargrave & Co., and Edward C. Hargrave; a note for five thousand dollars ($5,-000), of same date as above, and made and indorsed the-same as last above note; a note for one thousand dollars-($1,000), made by E. J. Hargrave & Son, dated September 11,1895; a note for two thousand five hundred dollars ($2,500), made by E. J. Hargrave & Son, dated September 16, 1895, — all of which notes are now held by said Stoddard. E. C. Hargrave.”
It will be observed the note of $1,000 indorsed by Mr. Courtright is not mentioned in this paper, and it is claimed by plaintiff that the proceeds of the securities which he held were to be applied on any or all of the notes described in the .agreement, as in his judgment it would be to his advantage to apply them, and that none of them were to be applied on the note indorsed by Courtright. It is the claim of Mr. Hargrave that he did not notice the Court-right note was not included in the paper he signed. This-claim of plaintiff as to the application of the proceeds of the securities is denied by defendant and by Mr. Edward C. Hargrave, who wrote plaintiff October 5, 1898, as follows:
“ This firm owes you for three notes, one for $2,500 and two for $1,000 each, besides interest upon the same. One of the $1,000 notes is indorsed by M. L. Courtright. You hold for security for the above a real-estate mortgage for $2,400 and an assignment of an account due us from E. S. Fitch. We understand you are about to receive some money on the Fitch account. Any money you may receive on the Fitch account apply as follows: Apply all that you may receive on the note indorsed by Mr. Court-right until it is paid. After the Courtright indorsement ■ — that is, the note indorsed by him — is paid, apply all the money you may receive on the other $1,000 note until it is paid, and the balance you may apply on the $2,§00 note.”
As early as in November, 1899, there was realized from the property covered by the real-estate and chattel mortgages more than the amount of the notes of E. J. Hargrave &c Son, which amounts were indorsed on the $10,780.80 note. After considerable correspondence, this suit was brought to recover on the $1,000 note indorsed by defendant.
It was the claim of the plaintiff upon the trial of the case that Edward C. Hargrave was in reality E. J. Hargrave & Son; that the indebtedness was his personal indebtedness; that the Fitch real-estate mortgage was his; that the Fitch account and chattel mortgage were his, and that, therefore, the moneys realized from those securities were his; that, while no agreement was had between himself and Mr. Hargrave, at the time the securities were turned out to him, as to the application of the proceeds, such an agreement was had upon May 27, 1896, when Mr. Hargrave made the note for $10,780.80, representing all of the paper which plaintiff held except the $1,000 note of E. J. Hargrave & Son upon which Mr, Courtright was an indorser, and consented that the entire amount realized from the Fitch assets should be credited upon this note. It was the further claim of plaintiff that Mr. Courtright consented to this arrangement, and thereby waived the benefit of the security which had been given for the E. J. Hargrave & Son paper upon which Mr. Courtright was an indorser, and therefore plaintiff was entitled to recover from the defendant the amount of the E. J. Hargrave & Son note which he had indorsed.
The defendant, on the other hand, denied any such arrangement, or any knowledge thereof, and claimed that the indebtedness was the indebtedness of E. J. Hargrave & Son; that the assets were the assets of E. J. Hargrave & Son, and that he was entitled to have the assets of E. J. Hargrave & Son applied to the debts of E. J. Hargrave & Son until that indebtedness was wiped out; that the uncontradicted testimony showed that the assets were more than enough to pay the indebtedness, and that, therefore, the note of E. J. Hargrave & Son for $1,000, upon which, he was an indorser, was paid; that he never knew of or consented to any arrangement whereby he should waive the benefit of the security which had been turned out to plaintiff to secure the indebtedness of E. J. Hargrave & Son; that no such arrangement existed in fact; and it was contended in his behalf that plaintiff, by his dealings and actions, was estopped from claiming that any such arrangement existed.
The jury brought in a verdict in favor of the plaintiff and against the defendant for $905.50. The case is brought here by writ of error.
The law applicable to the case is not at all complicated. The trouble arises out of the proper disposition of the questions of fact. The record is very long. The testimony was conflicting. The charge was very full. Those portions of it which may perhaps be justly criticised are where the judge expressed his opinion that the business of E. J. Hargrave & Son was not the business of Mr. Edward C. Hargrave alone, but that there was associated with him either his mother or brother. But, if this was error, it was in favor of defendant. It is said that after the jury had been out for a time, and were recalled, what then occurred misled the jury. We do not get that impression from a careful reading of the record.
In one of the letters from Mr. Stoddard to Mr. Hargrave the following language is used:
“ I have been looking over my papers since writing the letter of yesterday, however, and, while the statement that I made in the letter yesterday as to the Fitch matter being received as security to the notes of $5,000 and $2,000, respectively, is not literally true, it is true in effect. I find that the exact understanding was that the Fitch matter was transferred to and received by me as a general or blanket security, and the proceeds to be by me applied wherever there should be a deficiency upon any of the several notes aggregating $11,500 that I held, with the right on my part to apply payments, if I chose to do so, to cover items of interest or discount due me. It is absolutely certain that the parties to the $5,000 note and $2,000 note mentioned are uncollectible, and therefore I shall, as I said, apply the net amount that I may receive from the Fitch matter upon those notes.”
It is said that, in any event, “under the blanket security theory,” the proceeds should have been divided, part of it being applied to the Courtright note. The contents of the letter, taken as a whole, do not justify that claim. No such theory was advanced upon the trial. See John Hutchison Manfg. Co. v. Pinch, 107 Mich. 13 (64 N. W. 729, 66 N. W. 340); Little v. Williams, 107 Mich. 652 (65 N. W. 568); Wolf v. Holton, 110 Mich. 166 (67 N. W. 1082). The testimony was contradictory. The charge presented the conflicting theories of the parties in such a way that the defendant, at least, is not in a position to complain. The jury found the version of the transaction claimed by the plaintiff to be true.
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
-30,
-2,
41,
-14,
-25,
11,
15,
-67,
84,
-35,
-43,
-15,
-10,
16,
64,
-6,
-38,
-52,
7,
-16,
66,
-38,
19,
-17,
-25,
-19,
5,
-4,
-51,
12,
1,
0,
-65,
12,
2,
38,
1,
10,
-19,
-4,
-46,
36,
44,
-28,
24,
23,
28,
-7,
18,
-20,
-9,
-31,
35,
15,
-20,
-1,
-19,
30,
1,
37,
23,
-41,
28,
-48,
-17,
7,
-2,
47,
22,
64,
-27,
-13,
26,
-52,
16,
-38,
9,
4,
-12,
-30,
-54,
30,
20,
-29,
-63,
48,
-49,
-3,
-28,
52,
-45,
19,
-20,
43,
-38,
42,
-34,
-1,
8,
42,
5,
-18,
-49,
-19,
6,
5,
-12,
-20,
-10,
34,
-26,
8,
76,
-4,
18,
15,
-32,
-22,
-19,
-4,
1,
-1,
-14,
-3,
28,
12,
2,
-2,
-25,
31,
-23,
-42,
-77,
18,
-41,
30,
-19,
46,
-54,
5,
45,
29,
26,
-35,
-11,
50,
-29,
-13,
25,
-10,
-16,
12,
7,
-47,
-13,
1,
-46,
22,
41,
-27,
10,
-29,
22,
-18,
-41,
11,
-5,
3,
-72,
10,
-24,
59,
-52,
-44,
16,
-1,
27,
-39,
-17,
-11,
9,
11,
-11,
-39,
7,
-12,
47,
-13,
-19,
36,
45,
-21,
-41,
33,
-63,
-20,
9,
-50,
-13,
-1,
12,
-45,
0,
-10,
11,
30,
9,
21,
-12,
25,
49,
7,
-37,
11,
6,
17,
-68,
-80,
35,
-1,
-14,
16,
6,
-6,
-45,
-21,
9,
-10,
-9,
-24,
-16,
-41,
2,
-5,
2,
-1,
-35,
-10,
-29,
0,
-29,
-9,
16,
-81,
-76,
-30,
-34,
-17,
-70,
78,
-47,
20,
-38,
17,
41,
-40,
20,
-68,
8,
11,
8,
32,
-35,
6,
27,
-37,
23,
32,
0,
63,
34,
-46,
35,
3,
-9,
2,
5,
68,
-38,
2,
70,
-2,
1,
-17,
4,
-9,
-1,
-10,
-25,
21,
31,
37,
23,
-36,
47,
38,
35,
-64,
8,
-6,
-35,
-11,
-6,
-39,
18,
34,
16,
-51,
13,
-40,
-1,
-14,
-42,
-34,
38,
30,
-8,
12,
-11,
-21,
-15,
68,
-35,
-5,
33,
11,
58,
-36,
-22,
24,
5,
16,
-8,
-4,
-56,
-26,
30,
10,
49,
-28,
13,
31,
-20,
19,
-17,
-26,
17,
-7,
-2,
-11,
-24,
-49,
5,
7,
34,
-15,
-13,
7,
-18,
61,
74,
-13,
20,
30,
15,
-59,
-42,
57,
3,
30,
10,
9,
-23,
18,
8,
-5,
-14,
20,
-26,
48,
1,
-4,
33,
-1,
-2,
57,
40,
1,
-29,
68,
-70,
36,
26,
8,
-37,
35,
10,
-14,
-71,
-54,
-13,
33,
-18,
-14,
-34,
-54,
17,
-50,
29,
-4,
-14,
-39,
3,
-18,
-16,
-40,
0,
-31,
56,
70,
6,
28,
-5,
-65,
28,
20,
17,
-41,
38,
-21,
-14,
19,
58,
2,
14,
-40,
-47,
0,
9,
22,
-23,
14,
32,
39,
21,
-9,
10,
34,
27,
3,
15,
-18,
0,
-7,
-18,
-18,
-32,
-25,
79,
24,
35,
12,
44,
49,
-5,
28,
-4,
-48,
22,
69,
2,
-4,
18,
-5,
-20,
-4,
56,
-8,
-36,
12,
-9,
-12,
42,
47,
-49,
-34,
3,
9,
-25,
22,
71,
-17,
-40,
-4,
-28,
43,
-2,
-37,
-11,
14,
-10,
-24,
16,
8,
-19,
-34,
-16,
-24,
2,
39,
-7,
-77,
-3,
50,
-50,
9,
-25,
33,
-6,
13,
13,
-5,
-35,
78,
-40,
38,
44,
55,
75,
-21,
30,
38,
-45,
5,
-9,
-15,
17,
10,
-24,
36,
-28,
28,
30,
-19,
-50,
11,
12,
19,
6,
-16,
2,
-27,
-39,
-31,
1,
46,
-17,
-5,
-25,
0,
26,
4,
-20,
-70,
93,
-26,
39,
47,
19,
-35,
-34,
37,
8,
-11,
-34,
28,
-27,
52,
-1,
9,
-45,
-30,
-38,
-13,
-46,
-2,
-12,
21,
-13,
2,
54,
8,
-19,
-39,
5,
-41,
-5,
67,
44,
26,
-4,
-22,
-25,
18,
-15,
-36,
-50,
32,
-26,
-18,
15,
13,
34,
23,
34,
-35,
19,
16,
-14,
-5,
25,
18,
-85,
-8,
-3,
49,
17,
-10,
3,
61,
2,
-12,
-56,
56,
-31,
37,
-2,
25,
-33,
-41,
-35,
-17,
29,
-37,
21,
13,
19,
-16,
4,
-31,
-28,
12,
45,
50,
-15,
-32,
15,
4,
-26,
-25,
62,
-14,
16,
51,
52,
1,
-30,
27,
-19,
-14,
22,
-19,
-11,
-63,
12,
19,
-25,
8,
30,
55,
70,
15,
7,
-26,
-6,
-13,
-2,
16,
-31,
28,
19,
-59,
-64,
-51,
-35,
53,
0,
-25,
98,
14,
-10,
24,
-19,
32,
5,
11,
-32,
12,
-30,
24,
-4,
-7,
52,
18,
-11,
33,
0,
23,
-19,
-49,
25,
-16,
30,
-24,
-20,
7,
48,
1,
-29,
-7,
38,
39,
2,
-28,
9,
-48,
-23,
-35,
-80,
5,
0,
-21,
-39,
11,
-43,
0,
16,
61,
-15,
30,
-8,
34,
7,
30,
42,
-27,
-33,
21,
-24,
2,
15,
14,
93,
17,
-17,
-13,
-42,
-4,
11,
-7,
-7,
57,
-33,
-21,
-1,
2,
34,
21,
11,
38,
4,
-24,
0,
14,
16,
-54,
42,
39,
48,
-11,
3,
45,
-4,
-8,
-67,
25,
-8,
25,
14,
-5,
-46,
-21,
2,
-9,
3,
-3,
27,
39,
-18,
45,
-28,
-5,
-7,
-31,
15,
-9,
-67,
-7,
7,
51,
-60,
22,
22,
-41,
15,
45,
51,
40,
-17,
7,
-6,
-27,
-29,
-19,
23,
2,
12,
26,
27,
-30,
-26,
3,
8,
2,
54,
-5,
-37,
18,
-41,
-25,
-1,
-36,
-6,
-16,
-39,
-78,
-17,
-3,
-28,
31,
22,
-35,
-48,
20,
-20,
-14,
-9,
9,
-3,
-45,
-22,
10,
-53,
-1,
-6,
-11,
-10,
5,
-22,
47,
18,
-34,
12,
35,
-4,
46,
12,
20,
43,
57,
-43,
4,
19,
39,
-21,
-48,
2,
-55,
-21,
-10,
-35,
26,
47,
20,
-45,
-5,
-17,
4,
8,
13,
2,
36,
-26,
-28,
-30,
39,
11,
-3,
22,
67,
-1,
-26,
-29,
84,
-31,
36,
37,
3,
-11,
39,
-8,
-23,
-17,
11,
-20,
-25,
-12,
-15,
19,
17,
10,
7,
-34,
-13,
-29,
-28,
14,
-15,
4,
18,
12,
14,
5,
30,
1,
-12,
-60,
3,
-25,
-42,
0,
-23,
-20,
31,
17,
27,
59,
-8,
1,
-86,
19,
-49,
-17,
-16,
0,
-58,
7,
1,
36,
14,
13,
-10,
-24,
80,
-2,
-42,
17,
-32,
-75,
56,
-10,
-30,
68,
-6,
1,
-24,
3,
4,
-19,
-50,
7,
-42,
36,
-34,
8,
-26,
1,
62,
47,
-33,
-60,
22,
40,
-7,
-48,
5,
22,
-6,
12,
-18,
30,
32,
36,
14
] |
Moore, J.
The plaintiff obtained a judgment on a note for $950 dated October 28, 1891, due in one year, which it is admitted is outlawed unless it is taken out of the statute of limitations by a payment January 31, 1895, of $20. The case is brought here by writ of error. The only evidence of the payment is an indorsement on the back of the note made by Louis Fowles, not in the presence of the maker of the note, unless it can be said the testimony of Mrs. Storer, a sister, is evidence upon that point. Her testimony is that in October, 1898, her sister Miss Holmes, while on a visit to her in New York, had a conversation with her as follows:
“The conversation commenced by her urging me to leave my place and come up there and stay with her, but I didn’t think I could do so. My business was involved there some, and I says to her, ‘If I sell off everything I have got, I couldn’t retain to myself more than six or seven hundred dollars. I have went in debt for a building, and the payments are coming on,’ I says. ‘Well,’ she says, ‘ I would help you out, but Loua has my notes. ’ And at that point the conversation was interrupted by the hired man coming in, and it never was resumed at that point. We had other talks, but not in relation to that point, exactly. And I don’t think she mentioned anything about the notes at any other time. I don’t remember that she did, but she did then.”
It was explained Miss Holmes always called the claimant “ Loua.” It will be observed there is no suggestion in this testimony that Miss Holmes said she had made any payment on a note, and it is not evidence tending to show she had made a payment. Nor can it be said to be a promise to pay the notes. In Mainzinger v. Mohr, 41 Mich. 687 (3 N. W. 183), it is held:
“At the common law, a new promise to pay a debt barred by the statute might be inferred from, a mere recognition of the existence of a just demand; and, when this rule was so changed as to require an express promise in writing, it was wisely provided, ” etc.
And in Sperry v. Moore’s Estate, 42 Mich. 358 (4 N. W. 13), it is held:
“The statute is explicit that in such cases no acknowledgment or promise shall be evidence of a continuing contract whereby to take a case out of the provisions of the chapter, or to deprive any party of the benefit thereof, unless such acknowledgment or promise be made or contained by or in some writing, signed by the party to be charged thereby.”
Was the- fact of the indorsement evidence of a payment ? Section 9744, 3 Comp. Laws, reads:
“No indorsement or memorandum of any such payment, written or made upon any promissory note, bill of exchange, or other writing by or on behalf of the party to whom such payment shall be made or purport to be made, shall be deemed sufficient proof of the payment, so as to take the case out of the operation of the provisions of this chapter.”
In Michigan Ins. Co. v. Brown, 11 Mich. 265, it is said:
“Although payments are indorsed as made within 10 years, the statute expressly denies to such indorsements, unexplained, any weight,- as evidence of payment, for the purpose of charging the debtor by treating them as an acknowledgment, so as to take the case out of the operation of the law. 2 Comp. Laws 1857, § 5377. In the absence of other testimony, therefore, the statutory bar is complete, and no decree can be made against Brown for the balance which may remain unpaid.”
In Rogers v. Anderson, 40 Mich. 290, it is said:
“The statute is express and clear * * * that indorsements of payments, written by or on behalf of the party to whom payment is made, shall not be deemed sufficient proof of payment to take the base out of the statute. 2 Comp. Laws 1871, §§ 7164, 7165. Unexplained indorsements of payments could not be received as evidence, so as to take the case out of the operation of the statute. Michigan Ins. Co. v. Brown, 11 Mich. 273.”
See, also, Chandler v. Lawrence, 3 Mich. 261; Snyder v. Winsor, 44 Mich. 140 (6 N. W. 197); Lester v. Thompson, 91 Mich. 245 (51 N. W. 893); Ocobock v. Myers’ Estate, 127 Mich. 181 (86 N. W. 534).
The request of defendant to direct a verdict in his favor should have been granted.
Judgment is reversed, and new trial ordered.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
17,
-16,
-46,
19,
15,
18,
50,
-12,
33,
17,
17,
21,
26,
0,
-27,
14,
28,
-5,
40,
-10,
-22,
-28,
-36,
-33,
-33,
58,
15,
40,
2,
21,
22,
11,
-69,
20,
-8,
-33,
9,
21,
30,
-52,
-15,
8,
32,
61,
-49,
-16,
-28,
-30,
36,
-23,
46,
-25,
35,
2,
-31,
4,
5,
-28,
-45,
-65,
-25,
-62,
32,
-20,
-29,
-6,
-6,
28,
-42,
22,
13,
6,
55,
6,
-49,
-63,
-39,
31,
-41,
-35,
28,
-42,
-22,
0,
-18,
14,
-28,
-26,
18,
-8,
-15,
44,
-12,
9,
1,
1,
22,
10,
53,
24,
-26,
-35,
-59,
9,
43,
18,
-29,
-39,
-73,
3,
-43,
0,
37,
-24,
-31,
34,
-53,
17,
28,
-37,
-8,
-2,
15,
13,
9,
30,
-11,
-31,
43,
11,
22,
0,
-48,
13,
-67,
-13,
-11,
-14,
9,
-33,
16,
17,
-10,
-15,
-4,
20,
-38,
2,
-44,
-25,
-47,
3,
47,
-3,
-13,
-19,
-16,
-59,
6,
-24,
49,
47,
-1,
-41,
-41,
4,
-3,
-11,
27,
-24,
27,
40,
-44,
-25,
-12,
-18,
-4,
-56,
8,
-54,
-28,
55,
-50,
-27,
28,
-15,
-11,
10,
19,
45,
3,
-19,
6,
54,
13,
16,
-5,
-28,
47,
-1,
-6,
-23,
0,
12,
10,
16,
30,
-4,
-4,
50,
-15,
11,
-29,
-1,
-29,
6,
7,
-8,
-56,
43,
-8,
10,
-25,
25,
-52,
-56,
37,
-28,
27,
18,
-81,
48,
-36,
19,
-34,
58,
-16,
9,
-6,
40,
-62,
-36,
-8,
-18,
8,
-54,
-46,
-46,
8,
32,
-28,
31,
-2,
51,
-33,
-25,
-4,
11,
-14,
-19,
-15,
70,
-36,
3,
42,
-29,
26,
23,
-10,
3,
39,
-74,
20,
44,
-13,
-25,
3,
-9,
-40,
1,
12,
-8,
-16,
8,
37,
-40,
9,
15,
1,
48,
21,
-9,
2,
27,
70,
31,
30,
34,
-27,
24,
11,
-35,
7,
8,
36,
-13,
-8,
-29,
-24,
-39,
-42,
26,
-4,
-16,
36,
3,
-39,
-53,
56,
-4,
7,
20,
-5,
11,
24,
6,
13,
-7,
-12,
11,
-38,
42,
52,
-4,
-15,
42,
9,
0,
-65,
-14,
-4,
29,
-4,
3,
-8,
13,
-13,
-72,
-27,
13,
-63,
-24,
-19,
32,
15,
28,
57,
2,
-2,
50,
-14,
8,
24,
10,
47,
1,
4,
-9,
0,
13,
27,
12,
-52,
-38,
-18,
2,
34,
-57,
-31,
26,
-12,
-13,
-16,
43,
28,
-40,
-12,
-42,
5,
7,
-41,
10,
0,
29,
22,
-13,
11,
-4,
-77,
-48,
2,
27,
31,
-48,
-32,
42,
-55,
4,
15,
83,
54,
-7,
-19,
-7,
4,
-54,
7,
-29,
55,
-14,
22,
12,
-12,
-20,
0,
-65,
41,
-19,
-11,
-12,
-4,
54,
16,
-33,
25,
-29,
-88,
21,
-24,
-18,
40,
65,
13,
21,
15,
58,
4,
-33,
7,
0,
80,
-29,
37,
32,
28,
10,
48,
17,
-2,
-26,
26,
-4,
2,
84,
8,
43,
60,
-35,
-19,
36,
-37,
21,
30,
-15,
-9,
33,
20,
-28,
-5,
33,
-29,
41,
39,
-12,
-18,
4,
-31,
-85,
-36,
-19,
34,
-30,
-2,
-5,
-20,
12,
-40,
-25,
-68,
78,
-32,
-3,
46,
18,
-37,
-7,
18,
-32,
21,
5,
0,
-8,
12,
31,
47,
-14,
13,
38,
27,
42,
7,
4,
-20,
5,
-29,
52,
-15,
25,
-5,
-30,
-5,
50,
-19,
-56,
26,
-4,
37,
6,
2,
1,
-44,
37,
9,
62,
-18,
14,
-9,
5,
-21,
19,
27,
-32,
20,
-22,
-44,
11,
17,
27,
-8,
-1,
12,
12,
-5,
-31,
59,
-20,
49,
21,
-6,
-46,
-44,
-13,
0,
-27,
-30,
21,
-13,
-11,
7,
1,
-37,
2,
-7,
-43,
34,
-2,
0,
17,
-29,
14,
9,
12,
-18,
18,
0,
-2,
-17,
-44,
3,
38,
41,
-10,
-31,
-26,
1,
-1,
27,
-33,
22,
-10,
27,
14,
-34,
10,
47,
10,
-36,
-10,
-13,
-23,
13,
10,
-5,
-1,
28,
15,
23,
-11,
5,
-5,
7,
-25,
-30,
18,
-52,
-3,
17,
7,
-34,
-38,
-21,
51,
6,
1,
46,
27,
-32,
-10,
31,
-65,
8,
8,
32,
-19,
-33,
12,
47,
-8,
3,
4,
19,
-5,
-7,
-11,
34,
22,
44,
24,
-31,
-41,
11,
-44,
34,
-27,
24,
-15,
-8,
46,
25,
-32,
5,
35,
34,
44,
-7,
-12,
-20,
44,
-33,
17,
-24,
-33,
-13,
29,
8,
13,
24,
-2,
2,
-11,
22,
-60,
35,
63,
-41,
-23,
-6,
15,
13,
-7,
1,
-15,
14,
-9,
-8,
15,
5,
45,
-4,
4,
29,
-5,
75,
25,
-73,
10,
50,
40,
-16,
0,
9,
12,
-67,
1,
0,
9,
-23,
-28,
-6,
3,
-23,
38,
-52,
-13,
-41,
-35,
16,
2,
2,
41,
3,
0,
33,
23,
48,
26,
0,
-5,
-39,
-27,
-17,
46,
3,
-32,
36,
27,
5,
-42,
-7,
-22,
-28,
-35,
-35,
13,
22,
28,
31,
14,
27,
-21,
19,
31,
-31,
5,
20,
-37,
45,
-8,
41,
35,
-33,
2,
-34,
16,
-59,
17,
-38,
-14,
-52,
-28,
-16,
-58,
2,
4,
1,
23,
-22,
32,
-11,
0,
-18,
-41,
-1,
-35,
-45,
17,
-50,
17,
3,
-28,
-24,
33,
5,
15,
0,
-11,
-47,
16,
-45,
0,
3,
-26,
-42,
-34,
-17,
15,
11,
43,
-10,
-15,
-10,
-27,
33,
10,
33,
-45,
-14,
38,
-72,
12,
1,
0,
-3,
16,
-48,
-45,
-35,
-19,
33,
-20,
-39,
-57,
-34,
-1,
47,
-18,
-45,
-15,
70,
-29,
-16,
10,
-40,
1,
-11,
29,
23,
-20,
20,
38,
-2,
8,
7,
79,
-1,
22,
25,
-16,
-17,
0,
-8,
-61,
69,
-18,
-26,
-37,
24,
-42,
-22,
20,
13,
2,
21,
25,
29,
10,
-22,
39,
16,
29,
20,
-8,
0,
-29,
-25,
61,
-39,
-29,
35,
10,
28,
3,
8,
15,
14,
33,
32,
11,
-10,
-7,
31,
25,
-7,
3,
-23,
14,
27,
-40,
18,
-45,
-12,
-13,
5,
11,
-14,
3,
8,
-23,
15,
25,
-16,
38,
0,
46,
-46,
-34,
-36,
-11,
-24,
23,
-6,
59,
5,
12,
32,
29,
18,
12,
-3,
-7,
-3,
-46,
24,
-6,
-14,
23,
48,
-30,
-13,
31,
4,
9,
-50,
49,
-6,
-12,
3,
-15,
-25,
-12,
10,
-29,
-7,
21,
10,
-64,
-8,
11,
-17,
-11,
-28,
-23,
12,
32,
-5,
-94,
38,
61,
9,
-17,
-8,
-23,
41,
25,
25,
-3,
-12,
-8,
-10,
31,
27,
28,
-9,
40
] |
Hooker, C. J.
In the year 1876 Mrs. Adeline L. Sprague was possessed of a large fortune. She had then eight children, all of whom are now living, except Amelia, who died intestate and unmarried in 1892, and Hattie, who died in 1889, prior to the execution of the trust deed in question, leaving one child, Gracie Deats, who is represented by Irene Sprague Moore, her guardian. Mrs. Sprague began to make advances of money to her children in 1876, and these advances continued in various amounts to the several children until she executed a trust deed to Irene Sprague Moore in 1889. There was considerable inequality in the advancements prior to July 1, 1879. After that date, and until the trust deed was made, each of six children (Irene and Amelia not being included) received substantially $600 a year. Mrs. Moore received nothing, and Amelia received only her maintenance, said to be worth about $200 per year. A uniform practice was not followed for the whole period by Mrs. Sprague in taking acknowledgment for payments.' No vouchers are shown to have been taken for some of them. Upon other occasions receipts as for advancements were taken, and this was the uniform custom after June, 1880. Before and after that date notes were taken, varying in form, and payable at different periods.
On April 22, 1889, Adeline L. Sprague made the trust deed mentioned of all her property to her daughter Irene Sprague Moore, as trustee, for the benefit of her seven living children and one grandchild, viz., Amelia L. Sprague, Irene Sprague Moore, Rollin C. Sprague, George H. Sprague, Mary A. Stofflet, Ida L. Taylor, Thomas S. Sprague, and Gracie Deats, the daughter of Hattie Sprague, deceased. A separate instrument gives the terms of the trust. It provides that Mrs. Moore shall:
1. Manage the property.
2. Pay (a) the expenses of the trust; (b) the mother’s debts on which she is liable as principal; (c) “also all indebtedness which she is or may become liable to pay, whether as surety, indorser, or maker of any promissory notes or other obligations now existing, made or incurred for the accommodation or benefit of others, and which such othérs should, or of right ought to, pay.”
3. Out of the income (a) support the mother; (5) pay funeral expenses, etc.; (c) out of the remaining income “the trustee, in her discretion, may pay to each of the beneficiaries and to all of full age, alike, annually, a sum not exceeding one thousand dollars per year; and any sum withheld from the minor beneficiary, Gracie Deats, shall be equalized at, if not before, the termination of the trust.”
4. It names the beneficiaries, and provides that: “It is my desire, and the purpose of this trust, that they shall share equally and ratably in all past, present, and future benefits received from me and my estate, including said trust estate. I therefore direct that, as soon as practicable after my death, said trustee shall proceed to the distribution of the trust estate among all of said persons as if she was executor and this was my last will.”
5. It provides that: (a) “ Obligations heretofore entered into for the benefit of any of said beneficiaries, and hereafter paid by said trustee,, shall bear interest at six per cent, per annum, and be charged to such beneficiary’s share.” (b) “ Should any of said beneficiaries die before me, his or her share shall be paid to his or her estate for distribution according to the laws of Michigan.”
6. A subsequent statement of advances was made, showing the date and amount each child, had received, and this statement contained the following clause: “And for the purpose of enabling the trust to be fulfilled without uncertainty or conflict of right,' I hereby now relinquish and assign to said trustee, for the purposes of said trust as expressed in said trust instrument, all rights reserved by me under said paragraph seven, said paragraph having now been fulfilled by this declaration.”
The record shows the date and amount of each item of money received by the different children, and the character of the note or receipt given at the time. After the creation of the trust, Amelia continued to receive her maintenance until 1892. Thomas was paid nothing, but was credited upon his indebtedness the same amount as was paid to others, who received substantially the- same sum yearly, excepting Gracie Deats, — to whom a large sum was given in 1896 to equalize her share with others, — and Irene, who has been paid nothing.
Amelia L. Sprague died January 13, 1892. Adeline L. Sprague died May 1, 1899, after which this bill was filed by Thomas S. Sprague for an accounting. One phase of the cause has been before this court, and will be found in 125 Mich. 357 (84 N. W. 293). Subsequently proofs were taken in the circuit court, and a decree was made, from which several of the parties have appealed, viz., Gracie Deats, Irene Sprague Moore, in her own right, and also as trustee and guardian, and Thomas S. Sprague, as administrator of Amelia.
Thomas S. Sprague has not appealed except in the capacity of administrator, and makes but one. objection to the decree, and that is that it should have directed the payment of the share of Amelia to her administrator for administration and distribution under the probate laws. The decree provides that:
“It is further ordered, adjudged, and decreed that said beneficiary Amelia L. Sprague became vested of her interest in said estate upon the execution and delivery of said trust deed; that she died prior to the death of Adeline L. Sprague, to wit, on January 13, 1892, and her interest immediately became vested in the other seven beneficiaries named in said trust instrument, subject to the claims of the creditors of said Amelia L. Sprague, said vested interest to be paid at the period of distribution. But it appearing to this court from the evidence that Amelia L. Sprague left no debts, it is therefore ordered, adjudged, and decreed that each of said beneficiaries shall receive one-seventh of Amelia’s share of said trust estate, which shall be ascertained separate and distinct from the shares to which the other beneficiaries are entitled in said trust estate; and it appearing from the evidence that Thomas S. Sprague has made a good and valid assignment of his interest in said Amelia’s estate to George W. Radford, the one-seventh of said Amelia’s estate to which said Thomas S. Sprague would be entitled, because of such assignment, shall be paid to him, said assignee, free and clear of any lien thereon.”
To show clearly the controverted questions, a further statement of facts is necessary. In 1877 — some years before 'the trust deed was made — Mrs. Sprague had made a will, by which she bequeathed her property to her children equally; and this will was superseded by the trust deed, as this court held in its former decision already referred to. At the time this trust was declared, it was accompanied by a summary of her dealings with her children, under a title called “ Supplemental,” reading as follows:
“supplemental.
. “ This is the statement of the ‘advances, payments, charges, and debts’ made by me to my children and held against them, intended, included, and' referred to in clauses five and seven of trust instrument made by me to Irene Sprague Moore, dated April 22nd, 1889. The advances and charges against my daughter Hattie A. Deats shall be charged against the share which her daughter, Gracie Deats, is to receive under said trust; it being intended that. Gracie Deats shall receive the same share and interest in the trust estate as her mother would have received had she been living at the time of the creation of the trust and named as an equal beneficiary thereunder, subject to charges for advances, etc., made to her. And for the purpose of enabling the trust to be fulfilled without uncertainty or conflict of right, I hereby now relinquish and assign to said trustee, for the purposes of said trust as expressed in said trust instrument, all rights reserved by me under said paragraph seven, said paragraph having now been fulfilled by this declaration.
“Adeline L. Sprague.”
The following tables show the situation at that time.
First Period, to July 1, 1879.
No Voucher. Notes. Total.
Rollin .....................§2,150 00 §4,150 00 §6,300 00
Thomas -_____ 2,150 00 1,800 00 3,950 00
George.............-.....- 2,250 00 2,250 00
Mary _____ 2,130 75 700.00 2,830 75
Ida ........... 2,050 00 2,000 00 4,050 00
Hattie .................... 50 00 50 00
§19,430 75
Second Period, July 1, 1879, to April, 1889.
Receipts. Notes. Total.
Rollin.................... §5,350 00 §1,800 00 §7,150 00
Thomas ..... 6,000 00 2,350 00 8,350 00
George ......... 8,019 44 400 00 8,419 44
Mary.................... 5,350 00 500 00 5,850 00
Ida ........ 5,350 00 700 00 6,050 00
Hattie ......... 5,350 00 1,200 00 6,550 00
§42,369 44
It is noticeable from these tables that, at the time the trust deed was made, no two children had received the same amount, while Irene had received nothing, and Amelia little more than her support. In addition to this, Thomas S. Sprague had obtained his mother’s indorsement on accommodation paper amounting to $19,600. It is claimed that this made the total amount received by him over $46,000, estimated by counsel for Mrs. Moore to be ■$10,000 or $11,000 more than his share of the estate.
At the outset it is important to determine whether all, and, if not all, then which, of the transactions between the intestate and her children were intended, when they occurred, to be treated as advancements. The record shows that previous to July 1, 1879, five of the children had received about $2,000 each, and Hattie $50, for which no vouchers were given. Amelia and Irene had received nothing. It appears to be conceded that these were advancements, and, if it were not conceded, we should have no doubt of it under the proofs and the provisions of the trust deed. During the same period about $9,000 was paid to several of the sons and daughters, for which notes were given; and these drew interest, either by their express terms or after maturity, unless they are to be treated ■as advancements. There is no presumption that money paid to a son, for which he gives to the ancestor a promissory note, is an advancement. On the contrary, the law presumes it to be a loan. The following cases cited in 1 Am. & Eng. Enc. Law (2d Ed.), 778, fully sustain the text in the statement that “the giving of any of the ordinary evidences of indebtedness is prima facie proof that the transaction wás a loan, and not an advancement, ” viz.: Harley v. Harley, 57 Md. 340; Speer v. Speer, 14 N. J. Eq. 240; Appeal of Harris, 2 Grant, Cas. 304; In re Jones’ Estate, 29 Pittsb. Leg. J. 89; Appeal of Morr, 80 Pa. St. 427; Ex parte Middleton, 42 S. C. 178 (20 S. E. 34). Cases involving promissory notes are the following: Grey’s Heirs v. Grey’s Adm’rs, 22 Ala. 233; Robinson v. Moseley, 93 Ala. 70 (9 South. 372); Denman v. McMahin, 37 Ind. 241; Seagrist’s Appeal, 10 Pa. St. 424. See, also, Vaden v. Hance, 1 Head, 300; In re Strock’s Estate, 158 Pa. St. 355 (27 Atl. 1003); Johnson v. Ghost, 11 Neb. 414. (8 N. W. 391); Ruiz v. Campbell, 6 Tex. Civ. App. 714 (26 S. W. 295); House v. Woodard, 5 Coldw. 196; Dawson v. Macknet, 42 N. J. Eq. 633 (8 Atl. 312). The rule was applied in the case of an outlawed note in Batton v. Allen, 5 N. J. Eq. 99 (43 Am. Dec. 630). Counsel cite several cases, some of which treat notes as advancements, but they are mostly cases where a subsequent will has shown a clear intention on the part of the testator to have them so treated. Grey's Heirs v. Grey's Adm'rs, 22 Ala. 233; Brook v. Latimer, 44 Kan. 431 (24 Pac. 946, 11 L. R. A. 805, 21 Am. St. Rep. 292); Peabody v. Peabody, 59 Ind. 556; Harris v. Harris, 69 Ind. 181; Roberson v. Nail, 85 Tenn. 124 (2 S. W. 19); Krebs v. Krebs' Ex'r, 35 Ala. 293; Hall v. Davis, 3 Pick. 450; Grim's Appeal, 105 Pa. St. 375; Patterson's Appeal, 128 Pa. St. 269 (18 Atl. 430). Our investigation of this question leads us to believe that the courts are substantially unanimous in their adherence to this rule.
After July 1, 1879, the intestate adopted the practice of taking receipts for moneys paid her children when she did not take notes. We understand that no one disputes that the items covered by the receipts were advances, and those covered by notes are governed by the same rule as other notes already discussed. This practice continued until 1889, when the trust deed was made. During the period last mentioned, Adeline L. Sprague also aided one of her sons in obtaining money by joining him in making or indorsing notes, which were hypothecated by him for money, and these notes were subsequently found to aggregate a much greater sum than was at first supposed by Mrs. Sprague’s agent and Irene Moore. Attention has already been called to the provisions of the trust deed. While, as we have said, the notes create the presumption of loans, rather than advances, it was competent for the intestate to give them the character of the latter by her trust deed, if she chose to do so, as appears to have been done by wills in several of the cases cited. See Krebs v. Krebs' Ex'r, 35 Ala. 293; Hall v. Davis, 3 Pick. 450; Sherwood v. Smith, 23 Conn. 516; Wallace v. Owen, 71 Ga. 544; Needles’ Ex’r v. Needles, 7 Ohio St. 432 (70 Am. Dec. 85); Kirby’s Appeal, 109 Pa. St. 41; Darne’s Ex’r v. Lloyd, 82 Va. 859 (5 S. E. 87, 3 Am. St. Rep. 123). To have that effect, such an intention must appeal* in the trust deed, which, like other instruments, must be construed in the light of the circumstances under which it was made.
We cannot avoid inferring that Mrs. Sprague may have been, and probably was, disturbed by the reflection that advancements and loans exceeding $60,000 had been made to some of her children prior to April, 1889, while others had received nothing, and that, in addition to that, a further sum had been pledged through indorsement for the benefit of one of them. The point-blank refusal of Mr. Gray, then acting as her solicitor, to advise her to yield further to the importunities of one of their number, who at that time stated the amount of such outstanding paper for his benefit at $8,300, while in fact the amount of such paper exceeded $19,000, is significant, as is the further fact that it was apparently short-time paper. At this juncture Mrs. Sprague deeded substantially all of her property to her daughter Mrs. Moore, in trust.
The third charge upon the property was the maintenance of the grantor, and to this not less than $3,000 a year was to be applied, to which should be added expenses of last illness and burial. It was expected that the income would defray these expenses, and, if any income remained, the trustee might, if she thought advisable, pay yearly to each child of full age, during the life of her mother, a sum not exceeding $1,000; the same to be paid to all alike. Any sum thus paid was to be “equalized” to the minor-grandchild, Gracie Deats, at some time before the termination of the trust. The trustee was to invest the estate, and upon the death of the mother it was to be distributed.
The directions as to distribution are clear and specific. The writing first states what shall be considered part of the trust estate for that purpose, and it is made to include not-alone what came to the hands of the trustee, but — First, all advances theretofore made to each and all of her children ; second, all debts due or to become due from them to her, or to her trustee; third, all payments made by her or her trustee; fourth, advances made to Hattie Deats (the mother of Gracie), which were to be charged against Gracie in the distribution; fifth, all payments made thereafter on the account or for the benefit of each and all of them. Thus it appears that the purpose of the mother1 was that all debts due to her should be recognized as such, and that all advances should be brought into hotchpot at the time of the distribution of the estate, for the purpose of ascertaining the amount to be divided.
We have seen that a large amount of accommodation paper was outstanding, made for the benefit of one of the beneficiaries, and that this was to be paid by the trustee. It is also noticeable that it is called “accommodation paper,” and the writing contains the implication that others-ought of right to pay it. In this connection we should read another provision of this document, which is included with the other directions relating to what should be considered the estate for the purpose of distribution, viz.:
“Obligations heretofore entered into for the benefit of any of said beneficiaries, and hereafter paid by said trustee, shall bear interest at six per cent, per annum, and be charged to such beneficiary’s share.”
These various provisions are convincing against the contention of complainant’s counsel that it was the intention that not only the sums represented by notes should be treated as advancements, in the technical sense of the term, but that the amounts paid to take up accommodation paper should also be so treated. Again, we have said that the writing indicates an intention that all advances should be brought into hotchpot, not with a view to the repayment of any sum really intended as an advancement, which it was beyond the power of the mother to compel, but for the purpose of an equal distribution of the residue of her estate. It is improbable that she intended to require an additional advancement of |8,000 as represented, and $19,000 as it really was, to one who had already received a disproportionate share. Furthermore, the beneficiary recognized this by securing and renewing his paper from time to time, when asked to do so by the trustee’s agent. The claim that he did this in ignorance of the terms of the trust is not sustained. The provision that 6 per cent, should be added, and the amount charged to the beneficiary’s share, should be taken in the connection in which it occurs. This was for the purpose of ascertaining the estate to be divided, and has reference only to money applied upon debts of the character mentioned, and not repaid to the estate, or otherwise settled with the trustee; and such settlements should not be reopened. Nor does it exclude the right of the trustee to collect or charge interest on paper given to the grantor.
The next question that is presented relates to the equalization of shares. It involves principally the question of interest, and, first, whether interest should be computed on advances made by the mother, and, second, on advances made by the trustee. The payments for which notes were given, and the amount paid on indorsed paper, etc., are not to be treated as advancements, but loans. Interest should, therefore, be computed upon them according to their terms, or at the.lawful rate. No specific provision is found requiring interest to be paid on advancements made by either the mother or trustee. If it is chargeable, in contravention of the general rule, which we recognize,' — i. e., that interest is not to be computed upon, advancements, — it must be in obedience to provisions of the writing which imply it.
The first of the provisions relied on relates to payments by the trustee, already quoted, which implies an intention that all shall receive a like sum, and that, if anything should be withheld from Grade Deats, it should be equalized. The other provision is the one expressing the mother’s purpose to be that all “shall share equally and ratably in all past, present, and future benefits.” These provisions raise a perplexing question. On the one hand, the writing is specific in its enumeration of what shall go to make up the estate for the purpose of estimating shares. Nothing is said about interest upon advances previously made by the grantor, or which should thereafter be made by the trustee, or upon debts due or to become due, or upon payments made by her or the trustee, except as the latter may be included in the provision already quoted, relating to obligations theretofore entered into, etc.; yet we cannot suppose that she intended to stop interest running on loans, and, on the other hand, there is perhaps an implication that no interest was to be computed on past or future advances arising from her omission to provide for interest. It is also noticeable that she does not provide for advancements being paid to Grade, but requires advancements made to those of full age to be equalized later as to her, instead of providing that she shall receive a similar sum. This is susceptible of either construction, viz., that she should subsequently receive a similar amount, with or without interest.
We understand it to be a general rule that interest is to be computed upon advancements after the death of the ancestor for the purpose of equalizing shares on distribution. See 1 Am. & Eng. Ene. Law, p. 785, and cases there cited. We think the intention expressed by this instrument is that, from the time this trust deed was made, all beneficiaries should share equally, and that the shares between them should be equalized from that time as to advances thereafter to be made, and as to the sums necessary to equal advancements theretofore made. In other words, she sought to divide the estate as of that date; and while we doubt an intention that interest should be computed back of that date on .technical advances, she designed that it should be thereafter. In short, for the purposes of distribution we are disposed to treat the estate as though it had come into the hands of an executor at that date. See 1 Am. & Eng. Enc. Law, p. 785, note 5. This would allow interest to Mrs. Moore, and possibly others, on deferred payments of the annuity, and it would increase the estate by the amount of the interest upon advances for the purpose of equalizing shares.
We are asked to confirm the distribution so far as it has been made. We have no hesitation in saying that it is within the terms of the trust for the trustee to proceed in the ordinary way to put the property received by her in a shape to distribute, and we are not disposed to question the disposition so far as made. We think, however, that no harm can result from leaving the matter of confirmation until full compliance with the decree which shall be made, if it shall then be made to appear that it has been complied with.
The foregoing discussion will serve to point out the way to determine the shares after the personal property of the trust estate is converted into money, and we see no objection to a partition of real property, either by division of the property or by sale and division of the proceeds under the direction of the circuit court; but some other subjects must be discussed in this connection. Amelia L. Sprague died in 1892, seven years before her mother. At the time she died she had a vested interest in this property under the trust deed, which expressly provides..that, in case of the death of a beneficiary, the distributive share shall be paid to his or her estate for distribution according to law. Upon her death her seven brothers and sisters, including Graeie Deats, and her mother, became vested with interests in her estate, under sections 9061 and 6322 of the Compiled Laws; and in 1899, upon the death of the mother, the seven children took vested interests in her share. It appears that neither the mother nor Amelia left any debts, and therefore that Amelia’s interest, whatever it was, is now .vested in her six brothers and sisters and Graeie Deats. There is no occasion for distribution to the respective administrators, or for their intervention, except for the purpose of paying the costs of administration proceedings, which, inasmuch as it is unnecessary that any estate shall pass through their hands for any other purpose, should be limited to a reasonable allowance for such sums and ser vices as they may have disbursed and performed, if any, in relation thereto.
While counsel have seen fit to come to this court upon the question of the necessity for the appointment of an administrator of the estate of Adeline L. Sprague, which, out of abundant caution, we held necessary, as it was insisted upon, a trial of the merits has disclosed that it was wholly unnecessary, and we think the party asking such appointment should be left to pay his own costs and disbursements in such proceedings; and the same should be done by the ones who asked administration upon the estate of Amelia.
The interests of two of the beneficiaries have been assigned. The first assignment by Thomas S. Sprague was. to the trustee for the protection of the estate. It was valid, but perhaps unnecessary for this purpose. It also purported to secure her personally for all claims that she held against him. Among them was a note of $1,675, originally for borrowed money. Had a second assignment been made, running directly to her, there would have been sufficient consideration to support it, and we think she should not be required to lose her security because an attempt was made to secure her in both capacities. That this was the intention is clear, and it is a reasonable construction to give this paper that effect. Of course, her interest is second to that of the trust estate, and this assignment does not cover any interest subsequently inherited from the estate of Amelia. There were other assignments, by two of the sons, of their interests in the trust estate and Amelia’s estate. No complaint is made of the decree regarding these, and we have no occasion to discuss them.
We are not disposed to disturb the decree of the circuit court as to compensation. The amount paid to the trustee’s husband seems to us adequate for all services growing out of the transaction.
Amelia died vested of a one-eighth interest, and her estate should be credited with the same amount as any other beneficiary. This was not subject to any lien on behalf of the trust estate for advances to or debts due from other beneficiaries.
We have been subjected to considerable inconvenience through a failure of the index to name or describe the respective exhibits, which should be in some way identified. We have attempted to cover all points essential to an accounting, and the cause will be remanded for further proceedings. A decree in conformity to the foregoing may be taken. Irene Moore, trustee, will recover costs against Rollin C. Sprague and Thomas S. Sprague personally, and not as against the estate of Amelia.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.
Section 6322, in the 12th line above, should read 9322. | [
-3,
32,
-2,
-30,
-9,
66,
45,
34,
93,
-37,
-43,
-54,
-1,
17,
9,
21,
-30,
-8,
-36,
-52,
-24,
-42,
-60,
-36,
21,
63,
90,
-17,
13,
29,
62,
19,
-46,
19,
29,
11,
-7,
8,
2,
-12,
-21,
24,
10,
58,
9,
-2,
-30,
-49,
0,
-6,
5,
-28,
43,
-13,
39,
56,
-18,
-32,
20,
-11,
19,
-25,
48,
-43,
-47,
24,
9,
8,
-2,
-40,
24,
5,
3,
-18,
-2,
0,
39,
58,
-35,
-18,
17,
-55,
-15,
15,
2,
-30,
-33,
-13,
6,
0,
-1,
-4,
0,
25,
-31,
20,
3,
31,
22,
74,
-1,
-92,
-32,
5,
19,
0,
-19,
-25,
-19,
-8,
-44,
-10,
18,
-5,
-25,
42,
-27,
-26,
-45,
0,
-25,
-51,
-24,
14,
27,
36,
-39,
6,
-2,
6,
-54,
-13,
-43,
-23,
1,
-32,
-63,
-23,
24,
-65,
57,
21,
-7,
-33,
-37,
17,
-48,
-29,
-2,
-36,
0,
23,
-2,
-7,
62,
-6,
2,
-8,
-7,
-45,
-58,
-19,
32,
-24,
-88,
-34,
13,
-28,
30,
50,
38,
12,
-81,
-45,
-10,
-35,
21,
-42,
6,
-8,
12,
13,
-19,
7,
21,
-20,
1,
15,
-5,
3,
-23,
-3,
29,
17,
-26,
0,
12,
-60,
27,
23,
-6,
7,
-5,
-1,
30,
-14,
9,
14,
-30,
22,
23,
51,
3,
15,
-24,
31,
-25,
21,
-53,
4,
66,
33,
9,
-41,
-73,
-23,
-20,
2,
-55,
22,
22,
41,
10,
21,
-10,
48,
-113,
-10,
-39,
27,
-19,
-40,
16,
-37,
-2,
1,
32,
-10,
-5,
62,
-72,
64,
-13,
52,
25,
-25,
25,
38,
14,
-12,
-42,
20,
-39,
-26,
66,
-28,
39,
19,
-1,
8,
38,
-23,
17,
22,
-1,
13,
-16,
3,
-62,
-5,
39,
-8,
-9,
8,
26,
-22,
9,
-1,
0,
45,
-4,
53,
43,
-36,
21,
5,
-10,
-9,
9,
-44,
0,
-4,
23,
25,
64,
-3,
21,
-7,
-23,
-24,
10,
37,
5,
-9,
9,
1,
-34,
-37,
-51,
23,
34,
-14,
-59,
30,
22,
57,
33,
-11,
-7,
49,
-37,
26,
8,
-52,
21,
19,
16,
-3,
5,
-30,
7,
58,
55,
2,
-11,
-62,
-15,
-42,
-50,
35,
-32,
21,
45,
-3,
-41,
2,
52,
65,
50,
10,
8,
13,
43,
14,
18,
-4,
1,
11,
30,
-38,
72,
13,
6,
-19,
45,
-8,
0,
22,
32,
8,
-88,
19,
13,
44,
-14,
0,
-63,
-1,
17,
-9,
-11,
31,
-37,
54,
31,
12,
6,
-38,
-84,
-63,
-58,
34,
-15,
-64,
-23,
18,
4,
4,
-17,
27,
42,
3,
51,
-23,
-10,
-74,
16,
-70,
34,
63,
48,
8,
14,
-14,
-51,
-10,
-18,
5,
-48,
-72,
-29,
40,
32,
13,
34,
-52,
16,
21,
-15,
2,
42,
27,
25,
78,
41,
30,
22,
-64,
37,
14,
14,
6,
-2,
38,
2,
-93,
90,
33,
-22,
-11,
31,
40,
50,
43,
-4,
28,
-28,
-11,
9,
16,
-30,
-8,
-3,
-50,
32,
3,
25,
30,
10,
3,
0,
-13,
-7,
16,
24,
4,
-20,
-42,
-14,
-9,
96,
-73,
-21,
8,
50,
-30,
9,
-37,
9,
29,
2,
18,
57,
-41,
-21,
-3,
-51,
-31,
-33,
-38,
-23,
-42,
24,
9,
12,
24,
34,
-62,
76,
19,
51,
-8,
-75,
31,
25,
32,
38,
60,
-18,
-11,
-23,
28,
-8,
8,
-26,
-49,
1,
43,
-6,
-1,
-33,
22,
13,
67,
-20,
22,
33,
33,
-53,
11,
-30,
-47,
24,
-25,
-33,
50,
19,
-42,
27,
-14,
-28,
25,
2,
-82,
61,
-46,
5,
-17,
3,
-6,
-36,
-8,
-30,
33,
-35,
0,
-19,
11,
-5,
15,
32,
36,
52,
-7,
20,
30,
3,
68,
-29,
80,
10,
9,
-41,
36,
30,
-62,
13,
34,
-1,
11,
-33,
-24,
-33,
24,
-28,
-7,
-8,
-2,
8,
-42,
8,
-17,
23,
24,
22,
28,
-4,
-23,
24,
-26,
-55,
3,
-21,
-28,
85,
38,
45,
51,
32,
8,
25,
-15,
26,
52,
-80,
-30,
14,
-18,
1,
-10,
-6,
3,
-41,
-43,
-20,
11,
-15,
-22,
53,
-19,
-71,
1,
-32,
1,
24,
-8,
38,
3,
-7,
7,
54,
11,
33,
35,
29,
-8,
-7,
55,
3,
10,
-22,
-48,
-9,
-2,
10,
13,
-29,
36,
27,
-13,
-7,
43,
42,
13,
-4,
-21,
18,
-11,
-67,
23,
40,
-26,
-7,
-5,
0,
-32,
46,
44,
22,
43,
23,
0,
0,
64,
-10,
-51,
-21,
40,
-21,
-26,
-8,
23,
21,
-32,
-32,
-62,
-5,
76,
29,
-44,
-4,
-24,
20,
61,
-36,
26,
99,
-26,
-69,
-21,
25,
12,
-77,
41,
45,
33,
-34,
-18,
-2,
-72,
-20,
5,
-44,
15,
-49,
33,
27,
10,
1,
17,
18,
-3,
15,
30,
38,
-61,
-9,
15,
24,
-47,
-57,
97,
26,
-31,
2,
28,
-98,
21,
-3,
-31,
14,
21,
-60,
-23,
51,
0,
0,
9,
-8,
-46,
53,
-36,
-32,
13,
17,
-33,
101,
-45,
10,
9,
-16,
16,
-30,
47,
-27,
0,
-46,
-11,
-35,
-58,
-47,
-8,
-32,
-1,
-2,
-25,
-10,
24,
-62,
5,
16,
-15,
0,
-3,
-5,
-42,
25,
26,
-14,
27,
-26,
-19,
-11,
-24,
-26,
18,
-18,
43,
-39,
-9,
-9,
20,
-25,
-65,
-8,
-20,
-23,
-18,
24,
-48,
-54,
37,
-33,
-1,
47,
-37,
19,
0,
-12,
20,
-13,
-24,
-18,
-16,
-52,
-99,
-18,
-16,
-29,
16,
-50,
-30,
0,
10,
2,
6,
61,
-33,
-4,
-15,
-54,
12,
-45,
11,
-32,
19,
19,
2,
-5,
46,
-11,
16,
-49,
57,
-14,
59,
-9,
-11,
8,
19,
-57,
-60,
43,
-30,
-7,
4,
9,
-54,
-22,
11,
-25,
27,
-23,
-21,
-12,
-26,
32,
18,
31,
-8,
41,
4,
-95,
2,
1,
35,
-30,
-38,
-11,
42,
2,
-70,
2,
-28,
26,
-8,
28,
-12,
-34,
38,
22,
25,
-69,
-22,
48,
-16,
6,
37,
17,
-35,
80,
70,
-60,
27,
-17,
-17,
34,
-19,
2,
-24,
15,
1,
66,
13,
-27,
16,
-29,
31,
-25,
74,
-9,
23,
27,
54,
23,
-20,
33,
4,
13,
-24,
29,
-47,
-60,
-22,
35,
-40,
11,
-30,
-14,
-8,
5,
38,
-12,
78,
-47,
-51,
18,
22,
-19,
-14,
13,
-39,
-23,
18,
8,
-12,
-8,
40,
-49,
12,
3,
-60,
-12,
37,
-76,
-41,
14,
35,
-3,
-21,
-44,
-12,
-9,
57,
5,
1,
-38,
1,
71,
-79,
38,
-44,
28,
16
] |
Grant, J.
(after stating the facts). if he above opin ion so completely covers the case that little else need be said. Mr. Uhl, upon the execution of the assignment and its acceptance by him, became the trustee for the creditors •and Mr. Ichabod L. Quimby. As such it was his duty to ■dispose of the property, páy the debts, and, if anything remained, turn it over to Mr. Quimby. Under common-law assignments, the assignee has no right to continue to carry on a business without the authority of a court in chancery, or the assent of the creditors and the assignor. In this case both the assignor and the creditors unanimously assented, and both were therefore estopped to deny his authority. Wilhelm v. Byles, 60 Mich. 561 (27 N. W. 847, 29 N. W. 113).
When the creditors had been paid, the trust as to them was fully discharged. The purpose of the assignment had been accomplished. Mr. Ichabod L. Quimby was then ■entitled to his own. No retransfer of property was necessary to convey title to him. He could take possession of his own, and carry on the business in his own name. If he chose- to make an arrangement with Mr. Uhl, and Mr. Uhl assented, they were then the only ones interested. Steevens v. Earles, 25 Mich. 40, and cases there cited; Toms v. Williams, 41 Mich. 552 (2 N. W. 814); Wilkins v. Fitzhugh, 48 Mich. 78 (11 N. W. 814); Poole v. Munday, 103 Mass. 174. The assignment did not, after performing its purpose, bind either Mr. Quimby or Mr. Uhl. The moment the debts were paid, they were free to deal with the property and manage it as they saw fit. Mr. Quimby evidently desired to continue the business, which had been so profitable, in the name of Mr. Uhl as assignee. The purchase of property'was necessary to the ■continuance of the business, to effect which large sums of money would be required, which Mr. Quimby did not have. After the death of Mr. Quimby, his son, George, who liad been a manager with him, and for some time before his father’s death had been the substantial manager, continued the business in the same way, with the assent of all interested. The management was successful under him. Upon his death the complainant Mrs. Morley, who-was familiar with the business, considered herself capable of carrying it on successfully. It is more than probable-that she would have done so had the times continued prosperous. She was a woman of intelligence, of energy,, and of good business ability.
All the complainants lived together, close to the property, as members of one family. For nearly 20 years-they had lived out of the business, in comparative ease, if not luxury, during which time they had received the benefit of Mr. Uhl’s name, his advice, his indorsements, and money procured for them by him. The family during-these years drew out from the estate $77,741.88. Complainants do not seek to set aside Mr. Uhbs doings for the-first 14 years, but only when the times became depressed, and when he was away from home, in Washington and in Germany, in the service of the government. During-that time he wrote letters, wishing to be relieved; asking complainants, through Mrs. Morley, to pay the debts for-which he was liable, and relieve him from all responsibility. In other words, complainants wish to receive the-benefits from the business when it was a success, and to cast upon Mr. Uhl all the losses incurred in depressed times. The claim is without equity, and is unconscionable. Even though Mr. Uhl had carried on the business-in a way not strictly authorized by the authority conferred upon him, either as assignee or by the Quimbys, yet, having acted in good faith and with their assent, they cannot select those years in which he made a profit, receive the-benefit of that, and compel him to pay for the years when there was a loss. Thqy must take the bad with the good; and it is evident that, for 20 years during which this business was carried on, the profits exceeded the losses. In re Small’s Estate, 144 Pa. St. 293 (22 Atl. 809); Hoyt v. Sprague, 103 U. S. 613. Where beneficiaries either expressly or impliedly assent to the action of their trustee in managing their property not in strict accord with the terms of the trust, they will be held to have acquiesced in such action. See authorities above cited; also 11 Am. & Eng. Enc. Law, 841; Heyn v. O'Hagen, 60 Mich. 150 (26 N. W. 861). A party cannot complain when he has ■consented. Barton v. Gray, 57 Mich. 636 (24 N. W. 638).
It is hardly conceivable that complainants did not fully understand the situation. There can be no pretense that Mrs. Morley did not. That she knew her legal rights, ■clearly appears from her letters. Whether the other complainants had actual knowledge is immaterial. They were in position to know, and did know, that Mrs. Morley was running the business. When they filed this bill they ■did not ask to have the business closed up, but continued. One of the very purposes of filing the bill, according to its •allegations, was to prevent Mr. Uhl’s taking steps to close up the business and secure what was due him. One of their prayers was that a receiver be appointed, and that he be authorized to continue the business.
Decree is affirmed, with costs.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
42,
-27,
-7,
-6,
-20,
18,
10,
16,
33,
11,
23,
-12,
44,
-9,
3,
16,
12,
26,
-26,
6,
26,
-31,
-7,
-25,
23,
-15,
50,
-1,
14,
19,
27,
0,
-18,
29,
-41,
28,
19,
-66,
27,
-51,
29,
1,
10,
22,
41,
38,
23,
-76,
43,
-67,
22,
53,
1,
24,
28,
8,
-13,
2,
-9,
17,
1,
-74,
11,
-36,
-23,
-5,
4,
25,
48,
-20,
-28,
57,
23,
16,
40,
-1,
-15,
0,
-13,
20,
41,
-29,
22,
-15,
-59,
6,
-4,
30,
-27,
21,
-6,
2,
12,
-15,
-16,
23,
43,
18,
7,
-11,
4,
-11,
15,
2,
16,
-36,
18,
-8,
54,
-1,
14,
43,
29,
3,
-47,
0,
-61,
-5,
-36,
14,
27,
-11,
31,
-3,
35,
-21,
-55,
2,
-19,
16,
31,
-1,
-125,
-4,
-16,
-5,
-69,
-23,
12,
-12,
7,
-16,
-8,
-25,
22,
-13,
10,
17,
7,
-22,
9,
7,
29,
-16,
2,
15,
21,
3,
18,
-38,
22,
1,
26,
-45,
-10,
10,
-26,
18,
-22,
114,
-13,
18,
-7,
-16,
6,
25,
12,
-16,
7,
8,
-2,
-1,
21,
6,
3,
-22,
-14,
11,
37,
-50,
-56,
13,
-24,
60,
5,
40,
-15,
-20,
-21,
-6,
-11,
-31,
-16,
39,
-14,
-20,
11,
-22,
-19,
16,
-10,
17,
-8,
-17,
-43,
19,
-24,
-4,
-20,
-31,
37,
-11,
-6,
-38,
-26,
-49,
0,
19,
-69,
-18,
16,
-67,
0,
57,
6,
8,
33,
-8,
0,
-25,
32,
13,
-4,
-50,
15,
-40,
0,
42,
-27,
6,
-40,
-15,
24,
56,
-8,
-8,
-26,
0,
-62,
-78,
-6,
33,
-28,
17,
35,
-20,
-18,
38,
23,
2,
-18,
-10,
36,
-39,
-15,
17,
-12,
-5,
-22,
32,
3,
-12,
4,
33,
-42,
-2,
-34,
42,
-58,
33,
33,
18,
34,
-12,
31,
37,
-20,
34,
-44,
0,
23,
-14,
13,
53,
57,
53,
12,
-44,
-37,
-20,
-12,
38,
-42,
-11,
14,
52,
1,
-2,
5,
-23,
18,
-21,
43,
22,
-8,
-16,
17,
-39,
12,
33,
16,
-24,
-48,
-43,
-32,
-16,
43,
-28,
-11,
-21,
12,
25,
51,
-29,
24,
-7,
3,
-65,
-33,
8,
-11,
13,
-63,
19,
26,
12,
21,
-5,
-3,
-9,
7,
15,
4,
-30,
-11,
-1,
-29,
39,
-9,
-27,
40,
16,
-46,
-32,
-48,
26,
-24,
1,
-82,
33,
-42,
51,
-2,
7,
11,
-14,
-59,
36,
0,
-3,
-27,
-46,
-4,
15,
-48,
-19,
3,
14,
-40,
-37,
-3,
50,
-51,
-20,
11,
-6,
22,
-17,
18,
-8,
-54,
14,
63,
-11,
17,
-26,
60,
-51,
33,
22,
-13,
-47,
-16,
1,
6,
-30,
-13,
44,
-33,
4,
8,
-30,
32,
-22,
0,
-20,
-38,
-23,
13,
23,
11,
-28,
0,
68,
-36,
20,
-32,
4,
-22,
-10,
12,
-44,
11,
24,
39,
7,
44,
10,
18,
62,
46,
-16,
42,
-18,
10,
-9,
26,
-10,
40,
16,
-26,
0,
-34,
8,
-30,
-28,
-23,
24,
15,
21,
39,
20,
29,
33,
-39,
3,
-10,
-40,
-15,
-26,
22,
39,
2,
20,
22,
-57,
-33,
2,
-11,
34,
58,
4,
29,
43,
4,
1,
-1,
-92,
3,
48,
0,
-36,
-13,
63,
23,
-11,
16,
-5,
-12,
11,
40,
21,
-41,
3,
55,
19,
10,
58,
19,
-41,
-15,
-14,
-8,
2,
-8,
-17,
47,
-13,
-40,
-17,
1,
-8,
-1,
34,
-15,
47,
15,
14,
5,
-18,
-69,
-14,
34,
-14,
-15,
-17,
6,
0,
-5,
-1,
-29,
65,
20,
-44,
30,
-67,
-20,
-19,
1,
13,
42,
-55,
15,
53,
-52,
0,
23,
16,
21,
-19,
-49,
-24,
12,
-43,
-16,
48,
-24,
-7,
4,
17,
21,
15,
-27,
-35,
-36,
-27,
28,
18,
3,
78,
-53,
-1,
-6,
-8,
7,
7,
18,
40,
-27,
-26,
1,
7,
75,
12,
-27,
11,
27,
-35,
20,
27,
24,
56,
13,
-64,
18,
3,
-1,
-12,
36,
20,
23,
-54,
-9,
26,
-42,
37,
-15,
-38,
2,
-2,
0,
7,
-59,
-3,
-30,
37,
16,
39,
29,
-36,
-59,
27,
-14,
92,
26,
-9,
-5,
-10,
28,
-17,
36,
-53,
2,
25,
10,
43,
-21,
1,
5,
-19,
25,
-17,
10,
-12,
17,
25,
-42,
42,
31,
11,
-32,
-13,
8,
8,
-22,
36,
22,
-35,
10,
-24,
10,
-63,
-21,
-60,
7,
-13,
-14,
65,
35,
18,
32,
-15,
-34,
7,
-58,
1,
-35,
17,
-41,
-15,
24,
0,
-10,
-39,
-6,
24,
0,
-8,
-27,
-23,
-2,
-38,
49,
-36,
34,
19,
8,
-28,
-25,
-43,
5,
-56,
11,
-18,
12,
-24,
-7,
0,
-6,
-29,
15,
63,
-4,
27,
-69,
4,
-24,
26,
12,
5,
22,
48,
43,
-16,
-35,
-12,
-19,
17,
-15,
-30,
-31,
48,
-40,
26,
13,
14,
-62,
-22,
-7,
-65,
-69,
-19,
9,
-3,
22,
3,
78,
-11,
17,
-2,
7,
-65,
-31,
26,
52,
-1,
28,
-20,
12,
21,
-12,
19,
15,
26,
-51,
-13,
9,
5,
9,
-49,
-6,
23,
-23,
37,
22,
34,
-6,
15,
-14,
3,
-13,
0,
-14,
4,
10,
6,
4,
-11,
-26,
28,
-48,
32,
13,
-18,
-20,
21,
0,
-16,
-63,
-3,
-3,
-60,
-102,
-4,
-13,
-36,
-33,
11,
45,
-22,
-4,
-63,
-21,
-4,
10,
4,
-33,
11,
-2,
3,
-19,
9,
16,
3,
-15,
-57,
-25,
-24,
47,
-17,
-2,
17,
-7,
43,
37,
-9,
29,
19,
-9,
-1,
-19,
19,
-20,
-1,
-16,
-20,
42,
-28,
-36,
36,
-41,
17,
-21,
28,
6,
43,
19,
-11,
-6,
40,
-7,
-14,
-56,
24,
-3,
-5,
49,
-4,
-2,
37,
4,
5,
-29,
-45,
21,
20,
-2,
32,
63,
49,
19,
0,
-12,
1,
-12,
12,
-27,
0,
36,
9,
13,
-16,
-31,
0,
38,
-29,
1,
-11,
-29,
4,
-34,
10,
-17,
4,
71,
-24,
-1,
2,
-38,
-3,
1,
-38,
-18,
9,
-14,
2,
26,
-40,
34,
-2,
-41,
60,
12,
26,
-10,
-11,
-55,
-4,
-70,
-23,
-21,
-15,
19,
1,
47,
4,
64,
-26,
1,
-26,
21,
-4,
-20,
-14,
28,
-23,
23,
-14,
14,
-48,
0,
-1,
-54,
45,
19,
52,
-6,
-26,
-44,
-64,
7,
0,
-9,
23,
-26,
-2,
18,
47,
56,
-25,
29,
-39,
-49,
13,
-31,
-48,
33,
75,
15,
-55,
-34,
10,
35,
41,
41,
2,
-24,
48,
2,
14,
5,
-2,
-9,
46
] |
Montgomery, J.
Certiorari to review an order of the circuit judge dissolving an attachment. Three questions are raised: First, whether immaterial evidence was admitted; second, whether the testimony on the hearing was such that the finding of the circuit judge that the evidence did not support the affidavit should be reversed; and, third, whether material evidence was excluded.
The first question may be disposed of by saying that, although testimony was received upon the question of the merits of plaintiff’s claim, the circuit judge states in his findings that, in the view he took of the case, such testi mony was not material, and was not considered by him in reaching a conclusion; so that, if there was any error in the admission of this testimony, it was cured, as this testimony was not considered by the court for any purpose foreign to the issue.
We think the testimony was competent, at least for the purpose of showing want of bad faith on the part of the defendant in dealing with the property in the manner in which he did. If he showed to the satisfaction of the court that he did not owe the plaintiff anything, or did not believe that he owed the plaintiff anything, this would have weight as bearing upon the question of whether he had disposed of his property with intent to defraud the plaintiff. See Hyde v. Nelson, 11 Mich. 353.
Whether, upon the trial of a petition to dissolve an attachment, the question of the defendant’s indebtedness may be tried and determined, is not altogether clear from the authorities. Mr. Stevens, in his work on Michigan Practice (volume 1, § 61e), takes the ground that, if the indebtedness be denied, it would seem to cast upon the plaintiff the burden of producing at least prima facie evidence of it; and it would follow from this, logically, that at the hearing of the dissolution proceedings the defendant would have the right to controvert the existence of any indebtedness, and that this would become a question for the determination of the commissioner, or of the circuit judge, on the hearing in dissolution proceedings. He bases this conclusion upon the peculiar language of our statute. We do not, however, find it necessary to go this length in the present case, or to determine whether the authorities from other States, which hold it not competent to enter upon a trial of the question of indebtedness, are or are not controlling under our statute. In the case of Hyde v. Nelson, supra, it was held proper for the defendant to testify that he did not know he was owing the plaintiff, as bearing upon his alleged fraudulent intent.
It appears that on April 1st — about 30 days before the contracting of any of his alleged indebtedness to plaintiff —defendant had lumber in his lumber yard worth between $8,000 and $10,000; that on September 27th — the date of the hearing on the petition to dissolve the attachment — he had but $2,500 to $3,000 worth. He testifies that the remainder had been disposed of in the ordinary course of business, in small lots; that he had not purchased any new stock; and that he had refrained from depositing the proceeds in the bank, to keep it from being garnished. It also appears that the only other property he had in Bay county was an incumbered house and lot. Defendant’s counsel state that there is no evidence that he did not have property elsewhere; but defendant’s reply, ‘ ‘ I have got this money,” in answer to the question, “What else have you got?” fairly construed, means that he had covered by his testimony all the property which he had.
It is apparent from the reading of this record that the testimony tended strongly to show that the defendant had converted this property into cash, and retained the money in his possession, and withheld it from deposit iri banks, with the idea of preventing its being reached by garnishment. If plaintiff’s claim were undisputed, it might be difficult to say-that this evidence could be-construed any other way than as conclusively showing an intent to defraud creditors, within the rule laid down in McBryan v. Trowbridge, 125 Mich. 542 (84 N. W. 1084). But, as before stated, the question of defendant’s intent, as held by this court in Hyde v. Nelson, involves the inquiry as to whether he actually understood that he owed añy indebtedness. So, if he did not, it cannot be said that he made any disposition of his property with intent to defraud creditors. We cannot say, therefore, that there was no evidence which justified the finding of the circuit judge; and, this being so, it is not our province to exercise our independent judgment upon the question of fact. This has been often decided by this court. See Sheldon v. Stewart, 43 Mich. 576 (5 N. W. 1068); Carver v. Chapell, 70 Mich. 51 (37 N. W. 880); Brown v. Blanchard, 39 Mich. 790; Rowe v. Kellogg, 54 Mich. 206 (19 N. W. 957).
It is also contended that the circuit judge erred in excluding testimony as to defendant’s business transactions prior to April 1st. None of the alleged indebtedness was contracted before April 26th. It is admitted that defendant pursued a different course of dealing, as to depositing the proceeds of sales, after his dispute arose with plaintiff Than before. What the plaintiff sought to show by the cashier of the bank was the condition of defendant’s account in the bank for a considerable period prior to April. His account from April down to the time of this proceeding was shown, and it disclosed the withdrawal of ■'deposits, as stated. Plaintiff’s counsel stated:
“We offer to show that, during the period last year from the 1st of April to the 1st of October, — which is the busy season for the lumber business, — large amounts were deposited and large balances credited to Mr. Cole at the same bank. We desire to show the year before, because, since early in the spring of this year, on account of the trouble arising over these different suits, he has closed out, instead of branching out in, his business.”
We think this testimony might well have been received, but we are unable to see how the failure to receive it worked prejudice to the plaintiff; for the undisputed testimony showed precisely what plaintiff was aiming to establish by his testimony, namely, that defendant had reduced his stock, and placed this money where it could not be reached by garnishee process. Whether this was done fraudulently or not might depend upon other considerations. The circuit judge found that it was not fraudulent ; but the facts' could not be made any clearer by additional testimony along the same lines. We think no prejudicial error was committed in excluding the testimony offered.
It follows that the order dissolving the attachment must be affirmed.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
-16,
-34,
43,
51,
-14,
24,
-13,
-24,
0,
17,
-19,
-4,
13,
-11,
-4,
0,
25,
-37,
-6,
-49,
-8,
2,
9,
8,
46,
-30,
15,
57,
20,
-26,
-17,
16,
-13,
39,
0,
-37,
22,
0,
27,
7,
0,
32,
39,
-50,
-45,
19,
-2,
-13,
-30,
-32,
17,
-8,
-4,
-1,
7,
-18,
-15,
-6,
-26,
-14,
0,
3,
11,
28,
-38,
10,
-10,
-10,
-1,
-67,
-27,
-3,
1,
-7,
-2,
-28,
5,
-8,
7,
-1,
16,
12,
9,
-15,
4,
-27,
-2,
0,
22,
19,
-27,
44,
-57,
-9,
-1,
-48,
51,
-6,
43,
-7,
3,
-28,
-29,
7,
-12,
-3,
-7,
-51,
3,
-16,
69,
-31,
-19,
-17,
-62,
-34,
-22,
-16,
-20,
-25,
33,
-2,
-34,
2,
-7,
-9,
18,
-11,
5,
26,
14,
22,
-47,
0,
15,
-54,
-5,
-24,
-9,
31,
24,
11,
52,
-29,
16,
11,
16,
-5,
27,
6,
11,
-7,
60,
16,
15,
0,
0,
-58,
4,
-62,
40,
34,
-61,
-50,
-10,
-7,
29,
15,
28,
-39,
-10,
31,
-1,
27,
6,
-1,
5,
19,
1,
-17,
-12,
3,
42,
-23,
4,
47,
-31,
12,
35,
-39,
6,
15,
-18,
21,
-11,
61,
19,
17,
-3,
-20,
-24,
-44,
-12,
-57,
-60,
25,
55,
-38,
27,
20,
-6,
32,
17,
-19,
-37,
-55,
18,
-56,
6,
16,
-7,
25,
-9,
-27,
-39,
-10,
-13,
35,
-32,
-10,
-3,
44,
24,
-36,
15,
7,
48,
-16,
21,
-20,
-15,
20,
36,
-65,
26,
-43,
-34,
0,
-5,
-23,
-29,
11,
11,
41,
-24,
-20,
0,
-3,
-36,
-20,
-14,
49,
-18,
38,
-38,
-39,
21,
-10,
35,
57,
-4,
30,
25,
53,
57,
26,
-14,
-10,
-91,
35,
-5,
4,
-6,
1,
-54,
27,
-53,
25,
31,
16,
0,
-47,
-33,
11,
13,
12,
0,
-31,
-18,
-9,
55,
-27,
7,
63,
-40,
14,
-14,
5,
-10,
-22,
5,
60,
38,
-9,
59,
25,
0,
-23,
13,
-4,
-3,
52,
-1,
-73,
0,
5,
24,
-69,
-15,
-32,
9,
40,
13,
-3,
12,
-4,
-39,
-40,
-27,
3,
13,
-47,
-28,
18,
27,
-21,
-14,
-14,
-20,
12,
-28,
13,
-20,
23,
32,
-34,
-7,
-36,
7,
-3,
-12,
-12,
3,
-32,
11,
6,
-30,
-44,
24,
5,
-20,
-13,
-14,
12,
-32,
-14,
4,
-18,
-12,
-4,
-95,
-21,
0,
5,
26,
-8,
-3,
-16,
-32,
6,
-20,
-13,
-4,
42,
-7,
22,
8,
-7,
-13,
31,
-20,
52,
-3,
6,
-23,
-3,
19,
-43,
-4,
21,
9,
29,
-32,
1,
-14,
9,
21,
42,
7,
-14,
-5,
-7,
22,
-17,
-7,
3,
-18,
26,
-7,
-29,
0,
-5,
-2,
-35,
-3,
22,
20,
-11,
-22,
9,
-9,
7,
-29,
29,
-18,
28,
-11,
26,
28,
-13,
-24,
2,
-6,
21,
0,
47,
-23,
-31,
-4,
0,
43,
-14,
18,
13,
41,
-21,
-9,
-18,
49,
6,
55,
0,
-10,
22,
-63,
28,
-12,
-4,
-19,
29,
6,
40,
-1,
18,
-26,
40,
-43,
-40,
11,
-1,
-9,
-26,
22,
7,
-33,
-23,
-29,
-46,
-36,
10,
31,
45,
4,
-18,
20,
-17,
-14,
6,
-6,
25,
26,
35,
21,
6,
-16,
1,
6,
5,
18,
28,
57,
-16,
-40,
3,
-11,
-6,
-10,
23,
0,
-43,
33,
86,
2,
-42,
14,
44,
22,
-37,
-17,
4,
-36,
55,
-14,
28,
-28,
9,
-9,
-9,
1,
22,
11,
-10,
19,
22,
23,
25,
26,
-23,
-14,
5,
-29,
12,
-4,
-1,
53,
-31,
-37,
-43,
10,
-18,
13,
-11,
30,
18,
2,
-5,
17,
2,
6,
-29,
-5,
0,
-36,
-26,
-4,
-9,
20,
1,
35,
-45,
-15,
2,
14,
-26,
-19,
-29,
-16,
-8,
7,
28,
-12,
0,
-9,
13,
-14,
2,
-9,
36,
5,
-9,
42,
-11,
13,
-21,
-29,
-23,
6,
18,
-11,
35,
-27,
31,
-15,
-19,
16,
-15,
-46,
12,
39,
18,
38,
-32,
-24,
7,
-17,
-14,
-11,
-10,
-6,
-41,
14,
19,
-7,
-21,
-25,
-20,
-9,
16,
2,
-16,
-16,
50,
43,
3,
50,
-5,
35,
44,
42,
-26,
36,
-32,
1,
-3,
28,
60,
23,
47,
-6,
5,
-14,
-39,
8,
-11,
15,
-4,
2,
-13,
39,
4,
-17,
-59,
-30,
15,
-46,
27,
2,
-1,
22,
11,
21,
-35,
22,
-29,
7,
-16,
59,
35,
-3,
22,
22,
-26,
-25,
1,
15,
4,
-21,
24,
29,
23,
-36,
20,
-45,
8,
-46,
-12,
28,
56,
-23,
-30,
13,
-16,
26,
1,
11,
5,
52,
-3,
26,
-38,
19,
-36,
-21,
-10,
19,
25,
38,
-26,
-20,
35,
-17,
50,
0,
-1,
-1,
1,
12,
28,
-34,
-12,
30,
2,
-8,
10,
-42,
50,
-3,
-40,
-14,
-6,
0,
46,
-52,
-36,
4,
-16,
-44,
8,
11,
3,
-41,
-26,
50,
-24,
8,
60,
-21,
0,
7,
1,
33,
-39,
-52,
40,
13,
-34,
0,
-3,
6,
17,
-10,
-10,
-11,
29,
0,
-2,
-4,
-32,
-10,
31,
4,
20,
9,
-27,
7,
24,
-36,
37,
47,
24,
11,
11,
-10,
-73,
-20,
-14,
3,
-11,
-35,
-13,
6,
22,
5,
-36,
-4,
38,
22,
-34,
0,
11,
21,
-49,
-48,
0,
51,
11,
-2,
-27,
17,
-30,
-9,
-28,
-1,
-32,
1,
-16,
-34,
21,
-6,
63,
20,
41,
32,
25,
-3,
-94,
-11,
31,
26,
-54,
18,
56,
-19,
-36,
12,
-5,
4,
7,
54,
5,
11,
22,
-37,
-11,
-15,
-1,
-6,
-51,
-3,
-2,
4,
-27,
15,
-8,
13,
-6,
33,
-32,
-20,
49,
32,
6,
4,
32,
-7,
-9,
20,
-28,
-4,
-19,
11,
8,
12,
37,
86,
24,
17,
45,
-4,
35,
-4,
-13,
8,
-7,
28,
29,
29,
-10,
18,
19,
33,
23,
-4,
-4,
-7,
-39,
3,
8,
-30,
29,
-13,
-4,
17,
-6,
33,
-30,
-55,
4,
22,
32,
-1,
-23,
-19,
4,
-48,
18,
-41,
15,
15,
21,
-40,
-4,
6,
-3,
-22,
8,
11,
-9,
-45,
-3,
-28,
65,
-8,
-34,
29,
78,
-9,
-21,
-20,
0,
7,
0,
-65,
-60,
-26,
3,
72,
9,
-32,
8,
35,
-44,
-48,
-16,
29,
-42,
48,
-16,
-48,
-49,
-6,
13,
31,
-29,
-65,
31,
34,
-28,
-37,
0,
-16,
12,
-5,
3,
40,
-62,
17,
32,
-29,
18,
-25,
0,
8,
10,
-33,
17,
-25,
-6,
9,
-11,
-3,
0,
-3,
47
] |
Holbrook, J.
In June of 1969 the Attorney General for the State of Michigan filed a complaint against Koscot Interplanetary Inc., a foreign corporation, and its directors and agents, Elwood Engene Burnley, Charles C. Cooper, Larry Hofmeister, and Allen Oakes, hereinafter referred to as Koscot, which sought a restraining order to keep Koscot from further sale of its distribution system for marketing cosmetic products.
Koscot is domiciled in Florida and is now licensed to do business in Michigan. Its primary business is the manufacture of cosmetic products. It maintains a national network for distribution of its products.
The primary distinguishing factor for its line of cosmetics is that they contain mink oil which is represented to be the oil that most closely resembles the natural oils of the human skin.
On June 3, 1969, the Circuit Court for the County of Ingham ordered defendant Koscot to show cause why a preliminary injunction should not be issued. On June 13, 1969, a show-cause hearing was held and subsequently a consent judgment was mutually entered on June 30, 1969.
This consent judgment was amended by stipulation on November 7, 1969. On February 12, 1970, defendant moved for vacation of the consent judgment. The Attorney General answered and opposed said motion and requested the court to determine the legality of Koscot’s marketing plan.
On August 10,1970, an extensive hearing was conducted and on October 27, 1970, the court rendered an opinion as follows:
“This matter is before the court on a motion by defendant entitled as follows: ‘Hearing to Determine Legality of Defendants Marketing Plan, Pursuant to Consent Judgment entered on June 30, 1969/
“The court holds that the marketing plan is in substantial compliance with Michigan law.
“Anything in the consent judgment which conflicts with the above holding is hereby struck and held for naught.
“The motion of the plaintiff to dismiss the motion of defendant is hereby, denied. The court is of the opinion that the defendant did not, in any material manner, violate the consent judgment.
“The court is of the opinion that the marketing plan of the defendant is not a lottery; is not in violation of the Uniform Security Act; is not a fraud nor misleading and deceptive advertising in the scheme the defendant uses in recruiting representatives in Michigan. .
“It is not a fraud to have one distributor to each 7,000 people, (old plan 4,000)-. An expert witness, called by the plaintiff, testified that Avon has 20,000 sales people in Michigan. Considering the population of Michigan as being 9,000,000 people,' each Avon sales representative has 450 prospective customers.
“All of the exhibits offered by both sides, except those specifically excluded heretofore, are hereby admitted.
“The special record, appearing on page 282 to page 292 of the transcript, is hereby admitted into the main or general record, and made a part thereof.
“Orders and/or judgments may enter agreeable, to this opinion.”
Prom this opinion and subsequent judgment the people" have appealed.
The issue concerning whether Koscot’s marketing plan violates the Uniform Security Act has been stricken on appeal by order of this Court.
It is apparent that the selling method employed by Koscot is a dual level marketing plan. For a better understanding of how the plan works, relevant information extracted from the company’s policy statement is quoted below.
“II. CORPORATE OBJECTIVES: In order to market the cosmetics and other products which it handles, Koscot intends to create a network of 40,000 distributors throughout the United States, each of whom will be a franchised independent contractor. (The per capita limit for any given community is one distributor per 4000 population.) Working under the distributors will be 400,000 retail sales personnel, who contract with the distributors to sell products on commission. Through the use of this network, the corporation will be enabled to market each of the many lines it handles. At present there are some 14,000 distributors in the country. The company expects to reach 40,000 in the spring of 1970, whereafter no more franchises will be sold except on a replacement basis.
“III. FRANCHISE SALE METHODS: In order to acquire its desired distributor network as rapidly as possible, the corporation pays very substantial commissions to those who bring in new distributors. Financial records will show that the company realizes very little profit from the sale of distributorship-franchises, and that its retail reorder sales are the real source of income. Distributorships are now being sold in two basic ways, one being single-level and the other being temporarily dual-level. These two plans are described as follows, and are offered to the public at meetings attended by distributors who bring friends and acquaintances.
“A. THE SINGLE LEVEL PLAN: D, who is a distributor, sponsors P, a prospect, by interviewing him, filling out and signing with P an application blank, and sending the application together with P’s check for $4,500.00 to Koscot in Florida. This transaction constitutes an offer which only Koscot’s own personnel have the power to accept. If the application is accepted, D is paid a commission of $3,000.00. P receives $2,500.00 worth of cosmetic product at retail, and has the right to reorder product at 35% of retail for all future orders. P receives training which is mandatory, and supervision from D who will assist him in organizing his business, and in selecting and hiring his retail salesgirls. These salesgirls pay P $10.00 each, and are given by him $36.00 worth of retail product. Thereafter they buy from P at 60% of retail value, and sell door to door to the public. The commission is in part a finders’ fee, and in part compensation to D for the time and effort he must expend in helping P to get his operation off the ground. Of the $4,500.00 which P paid, Koscot has retained $1,500.00 It has shipped to P product whose value to the company (the standard wholesale price at 35% of retail) is $875.00. The cost of training P, who may go through the sales and business training schools as many times as he likes at no cost to him, is. approximately $300.00. The cost of extensive travel by company employees to appear at sales meetings and assist in state organizations must also come from the $1,500.00 received. Therefore, for the franchise itself, Koscot receives less than $500.00. We think that legally and economically, the rights purchased by P have a value which far exceeds this amount. Our reason for paying such large commissions is of course to stimulate the rapid accretion of the distributors we feel we need. P, by virtue of having become a distributor, has the right to sponsor other prospects so long as distributorships are available, after which he retains only the right to buy products from Kos cot at the standard discount. No commissions other than the one described above are paid under this plan.
“B. THE DUAL LEVEL PLAN: In the structure of this plan, in addition to D the distributor there is a subdistributor called S, the supervisor. S purchases his product through D at 45% of retail value; D therefore realizes a 10% (of retail) gain on all of S’s sales. To earn this money, D must do actual supervision of S and assist him materially. A monthly report of this supervision must be sent by D to the company as to each supervisor under him. S organizes his retail sales girls, and sells to them at 60% of retail, just as D does. The Supervisor franchise is sold for $2,000.00, which is sent to the company for acceptance. It must be sponsored by a Distributor, and may be sponsored by a Supervisor as well. If the applicant, P, is accepted, a commission of $500.00 is paid to the person who brought him in, whether he be D or S. In addition, and regardless of whether the commission is paid to D or to S, D receives from the company $200.00. This is because the company will ship direct to P, as his initial order, $2,000.00 (at retail) worth of cosmetic products, and on such a shipment D is entitled to his standard 10%. P receives the same training precisely as under the single-level plan, and may go through retraining as often as he likes. P must be personally interviewed by D prior to submitting his application, and also by S if S is to receive any commission from the company. Of the $2,000.00 received, the company has paid out $700.00, shipped product worth to it (at 35%) $700.00, and spent $300.00 on training, leaving a gross receipt of $300.00.
“S, in addition to having the right to earn commissions and purchase product at 45%, also has the right to apply for the D position. In order to do so, he must be sponsored by a D. His application is then sent, with a check for $3,000.00, to the company. If his promotion is approved, he is shipped $3,000.00 worth of product (at retail), which is worth to the company $1,050.00. A commission of $1,950.00 is paid to D in this transaction. It should be noted, however, that if he wished to become a Distributor for $3,000.00, he must first replace himself with another Supervisor. If he does not do so, he must pay an additional $1,000.00, which is retained by the company. This additional cost is imposed because in failing to recruit an additional Supervisor in the promotional transaction of S, the company has lost that which it seeks — an additional representative-franchisee. As is evident, if P (the prospect) wished to go directly to the D position without first becoming a Supervisor, he could do so, on the sponsorship of a D, by paying $6,000.00 to the company. He would receive $5,000.00 in retail product, and D would receive his commission of $2,650.00.”
Defendant acquires potential investors in its company by use of “Golden Opportunity Meetings”. A very detailed booklet providing a selling approach and technique is used by defendant in conducting these meetings. The booklet is entitled The Distributors Training Manual and excerpts of what the company suggests to take place at the meeting follow:
“Invite guests to the meeting. Be eager to share your wonderful opportunity with everyone you meet. Interested people are everywhere in buses, stores, on the streets, and in their homes.
* # #
“DON’T GO INTO DETAILS. Never explain the program to a guest before bringing him to an Opportunity Meeting. Do not mention cosmetics or give any particulars, as many people will prejudge the program and decide it is not for them before they see the presentation.
“USE THE CURIOSITY APPROACH. When you invite a guest to an Opportunity Meeting you arouse his curiosity. Tell him you have discovered a wonderful financial opportunity that will fit him like a glove! Or, tell him you have seen a money tree and would like for him to take a look at it.” (p 24.)
“AROUSE EVERYONE’S ENTHUSIASM! Help other Distributors interest their guests and they will help you interest yours. Worked properly, this first impression that guests have of KOSCOT Distributors will cause them to want to belong to the group. An Opportunity Meeting is held to arouse enthusiasm, so begin before the meeting.
# # #
“BRING GUESTS WHO ARE NOT WELL ACQUAINTED. When you invite friends, they tend to influence each other too much. One skeptic in your group may affect the attitudes of your other guests.” (p 26.)
“GIVE ALL THE SPEAKERS A BIG APPLAUSE. It will improve their performance. Always let them know that you appreciate their efforts. Do everything necessary to maintain a high, level of enthusiasm. This is the whole purpose of the Opportunity Meeting, and the Distributors in the audience play as important a role as the speakers.” (p 27.)
“ ‘Let’s continue this evening with a shocking fact! Does it surprise you that 95% of the people you know have nothing to look forward to in life?’ ” (p !•)
“ ‘There are ordinary men and women in KOS-COT like you and me who are earning 5 and even 10,000 dollars per month! In the next few minutes I will show you exactly how people are earning this kind of money, but first let’s look briefly at the positions available in our company.
“ ‘There are 3 representative levels in KOSCOT. The first is that of the Beauty Advisor (6) the foun dation of onr company. The next position is that of a Supervisor (7) and the highest position is that of a Director. (8)
“ ‘You just saw how a Beauty Advisor can retail from $300 to .$1,800 a month, depending upon her efforts. When she averages only $900 a month in sales for six months, she has worked her way up to the position of Supervisor (Point to the Supervisor position) with no additional investment.
“ ‘You may also begin at this level in KOSCOT, so let’s put you in the picture and start you as a Supervisor in KOSCOT (9).
“ ‘This is you, and your job is to create retail outlets for our product (10). These outlets should be Beauty Salons, Barber Shops, Fur Shops, Studios, or girls like Alice who want to conduct Beauty Forums.
“ ‘Let’s assume you decide to recruit girls to be trained as Beauty Advisors. The world’s largest kosmetic [sic] company sponsors over 200,000 girls a year. Knowing this, with a full-time effort in our program, don’t you believe you can sponsor at least 2 girls a week? Do all of you think you can? (Hold up 2 fingers and nod your head at the audience as you ask them the question.)
“‘Fine! You sponsor 2 girls a week or 8 (11) during your first month. Now, because you sponsored these girls, they must buy their products from you. They can’t get it anywhere else.
“ ‘Suppose these girls are all working part-time and produce only $300 (12) in volume during their first 30 days. Since you have 8 of them (Point to the 8 girls), 8 times $300 (13) gives you a monthly volume of $2,400. This is what they have ordered from you their first month in the business.
“ ‘As a Supervisor you are working at a 55% discount (14). Your Beauty Advisors are at 40% (15). The difference is 15% (16) and 15% of $2,400 is $360 (17)! This is what yon have earned from the efforts of yonr Beauty Advisors their first thirty days in KOSCOT!
“ ‘You will all agree that is not a lot of money, won’t you? It is certainly not the kind of money we were talking about earlier, and it is not what brought you here tonight! But it is a beginning.
“ ‘Now, let’s take a look at your second month in the business. Suppose you do no more than continue to sponsor 2 girls per week or 8 (18) for the month.
“ ‘Since this new group is just beginning we will assume they produce only the part-time monthly volume of $300. (Point to original $300). This group then will give you a volume of $2,400 their first month. (Point to the original $2,400).
“ ‘The group you sponsored last month (Point to this group) has now been thoroughly trained. We have shown them that by conducting 2 Beauty Forums per week and servicing the customers they gained their first month, they can now produce an average monthly volume of $900 (19). Eight times $900 (20) equals $7,200.
“ ‘This gives you a total monthly volume of $9,600 (21)!
“ ‘You are at a 55% discount! Your girls are all at 40% (Point to this figure) so you have a 15% commission on their volume and 15% of $9,600 is $1,440 (22)!
“ ‘This still isn’t the kind of money we were talking about earlier but it’s a good place to start, isn’t it? $1,440 a month is over $17,000 a year. That is more than three times the national average, so it has to be a good place to start!
“ ‘Let’s look at your third month in the business. Again sponsor only 8 girls (23) who produce the part-time volume of $300 a month (Point to the $300). This new group will produce $2,400 their first 30 days. (Point to the $2,400).
“ ‘The last group you sponsored (Point to this group) has learned the benefits of our incentive plan. They have learned that by increasing their efforts and continuing to service their customers they can produce a monthly volume of $900 each (Point to the $900). When this occurs, this group will give you an additional $7,200 in volume (Point to the $7,200). Your first group of girls may have increased their volume even more, but suppose they are still producing only $900 (24) each per month or $7,200 (25) for the group. Then your total monthly volume is $16,800 (36)!
“ ‘At this point you will certainly want to become a Director (27) and enjoy the benefits of a 65% (28) discount! This gives you a commission of 25% (29), and 25% of $16,800 is $4,200 (30)!
“ ‘Ladies and gentlemen, this is over $50,000 (31) a year and now we are talking about about a great, deal of money aren’t we? Do you know what excites me about this figure? Many KOSCOT Distributors are presently earning this kind of money and more! The point you should consider is this: When we can do so much, surely you can do as well or even better when you exert the necessary effort.
“ ‘You continue to sponsor 8 girls (32) a month and train them to produce the necessary volume, and you will be giving yourself an $1,800 a month raise in income every month. Do this for twelve months and your income will exceed $200,000 per year!
# # #
“ ‘Before we can retail our product in any area, we must have an adequate network of Distributors to supply these outlets. By corporate resolution, KOSCOT has limited the number of distributorships available in each state. But while distributorships are available, let’s take a brief look at another fantastic opportunity available to the Distributor.’ ” (pp 5-9.)
“ ‘To become a Director, a Supervisor must complete three requirements. One, he must take advantage of the retail and business training that his initial investment provided for (43); two, he must purchase an additional $3,000-in product to increase his personal inventory (44); and three, he must create a new Supervisor’s order for KOSCOT products (45).
“ ‘This means he must go out, create a new Supervisor’s initial order (46), and bring this order to you (47), the Director, before you release this Supervisor to become a Director (48)..
“‘This is the strength of our marketing plan. This means the number of Supervisors in your organization can never decrease.
“ ‘When this new Supervisor entered the program, he ordered $2,000 (49) in retail product. This Supervisor created the order, so he receives the 25% commission on product. (Point to the $500). But you are the Director, so you earn the 10% Director’s commission of $200 (50)!
“ ‘As soon as this Supervisor’s initial order is received by the company (draw arrow from new Supervisor to company) the company sends you (draw arrow from company to Director) the 65% commission on this $3,000 additional inventory. This is $1,950 (51)! You now have earned a total of $2,850 (52) !
“ ‘Create this volume once a month and at the end of the year you will have earned over $34,000 (53) .’” (pp 11-12.)
“ ‘Ladies and gentlemen, this is KOSCOT, and this is the opportunity we have to offer you tonight! Now, turn to the person who brought you here and do two things. First of all, thank him, for he has given you the opportunity of insuring your place among the successful 5%.’ ” (p 13.)
“BEHAVIOR AFTER THE OPPORTUNITY MEETING
“BEGIN ENROLLING YOUR GUESTS IMMEDIATELY after the last speaker finishes. This is the best time, for their enthusiasm is at its peak, at this point.” (p 27.)
“Many people have joined our program, not because of the financial opportunity alone, but because of the fraternal spirit of our Distributors. While some individuals cannot fully understand our marketing plan when they first see it, everyone understands our willingness to help one another.” (p 28.)
“TEAM UP WITH OTHER DISTRIBUTORS in your area when you contact guests. Our most successful Distributors use the Buddy System for recruiting. As a group you will be able to show the proper enthusiasm.” (p 29.)
# * #
“SEVEN EMOTIONAL KEYS
“USE THE ASSUMPTIVE MOOD when talking to your guests. Assume that they will decide to join our organization and let your attitude reflect this assumption. Statements such as, ‘We’ll go talk to your guests tomorrow,’ or ‘Call your cousin in Houston and get him to a meeting,’ will cause the guest to feel that he is already a part of the program.
“ASK SUBORDINATE QUESTIONS to elicit affirmative responses and get your guest thinking positively. Just as inertia makes it difficult to alter the direction of a moving object, so also it makes it difficult to switch from a positive to a negative trend of thinking.
“Anything will do. ‘Are you enjoying your steak? Do you like my new Cadillac? Would you like to earn $30,000 next year working part-time?’ The more positive responses you receive, the easier it will be for your guest to think positively concerning KOSCOT.
“TAKE ADVANTAGE OF IMPENDING EVENTS whenever you can. Because people dis like decisions they will put them off as long as possible. You must give your guests a reason to make their decisions the first night they see the opportunity. Always use impending events. 'You want to enroll now because Mr. Glenn Turner will be here tomorrow night for a special meeting, and you definitely want to have guests here then! (When appropriate)
# # #
“OFFER AN ADDED INDUCEMENT to urge your guests to enroll as soon as possible, something more than KOSCOT alone can offer. Your personal reputation as a successful Distributor is an excellent inducement, or your reputation for helping your Distributors succeed. . Or, perhaps the fact that your guest will be the first Distributor in his area.” (P 30.)-
“BASIC TECHNIQUES
“BRING OUT YOUR AGREEMENT PAD before you begin your enrollments. Let him get accustomed to seeing it before you ask him to fill it out.
“ALWAYS GIVE YOUR GUESTS A CHOICE between positions in the Company. Never ask them if they are interested or if they are going to enroll. Instead ask them which position they are interested in.
“YOU WANT TO CHANNEL YOUR GUEST’S THINKING INTO A POSITIVE DIRECTION. Do this by getting him to agree on minor issues. When you want him to agree with you, nod your head at him when you ask questions.
“CONTRACT! This is another stop sign in our language. Everyone is afraid of a contract. That is why we have none in KOSCOT. We use application forms and agreement pads.
“No one wants to sign a contract and you have just asked him to read all the small print that you can’t always explain well enough to him. It is much better to have him okay the agreement.
#.U. Jt TP 7P
“Whatever method you use, avoid the word ‘sign’. Even when you are talking with other Distributors, don’t mention ‘signing up’ new Distributors. Instead, talk about ‘enrolling’ new men. The sooner you break the ‘sign’ habit, the better.
* * #
“CO-OPERATION TECHNIQUES
“Many times you will find a guest who will not take your pen and fill out the agreement. So you must lead this man to make the right decision.
“When you are ready for him to enroll, simply ask him a question, the answer to which you place on the agreement.
“ ‘What is your correct full name ?’
“ ‘What is your correct mailing address ?’
“ ‘What is your date of birth?’
“ ‘Place of birth?’
“As long as your guest lets you fill out the agreement, he is thinking your way. When you are finished, put your signature in the correct place and get him to approve of you as his sponsor.” (pp 42, 43, 44.)
“MAKING THE FINAL ARRANGEMENTS
“Sometimes your guest will fill out the agreement and enroll, but he does not have any money or a check with him. So you must make the final arrangements the next day. The only thing to avoid here is the negative people he may see before you get to him again. If you didn’t have his wife come to the meeting, she may destroy his enthusiasm. Or his friends, because he will have to tell someone about the opportunity he has seen.
“Make certain he doesn’t go home empty-handed. Give him a copy of Think and Grow Rich by Napoleon Hill. Loan him a good motivation record to listen to. See that he has a manual and a copy of the Koszette.’ Let him take your notes home.” (p 47.)
Under defendant’s marketing plan, product sales and the selling of positions are affected by the aforementioned multi-level distributorship-supervisor-ship pyramid-sales technique. Individuals considering position purchases are induced to buy upon the assurance that once having joined the program and paid their money they will have the right to bring or refer other prospective merchandise-position buyers to the company and receive payment from Koscot for each referred purchaser.
Three issues are raised on appeal, two of which we consider.
I.
Does the defendant’s marketing plan violate the Michigan deceptive advertising statute ?
Among plaintiff’s contentions is that the information used in defendant’s recruiting scheme and at their opportunity meetings is misrepresented and not totally true, and as a result many persons are persuasively induced to invest from $2,000 to $5,000 to become franchisees in the business.
Section 1 of the deceptive advertising act, MCLA 445.801; MSA 19.853(1), provides as follows:
“It shall be unlawful for any person knowingly to make, publish, disseminate, circulate or place before the public any advertisement which contains any statement or representation which is untrue, deceptive or misleading; or to advertise the availability of goods, wares or merchandise so as to misrepresent or unreasonably overstate the available supply in relation to reasonably expectable public demand, unless the advertisement discloses a limitation of quantity.” Section 3 of the act (MCLA 445.803; MSA 19.853 [3]) provides:
“In determining whether or not advertising is deceptive or misleading, there shall he taken into account, in addition to the above, the extent to which the advertising fails to reveal facts material in the light or representations made or suggested in a positive manner.”
Expert testimony at the trial indicated that the promises of success to the degree represented were unrealistic. This opinion was based on the fact that defendant company is new in the cosmetic field and enjoys a market penetration of less than 1% of cosmetic market sales. Claims made at the opportunity meetings promise potential investors incomes up to $200,000 per year. Further, the prospect is told that the number of distributorships available is limited.
This information concerning limitation on the number of distributorships available is predicated upon a market analysis prepared by Checchi & Company of Washington, D. C., which specializes in market feasibility studies and surveys. The company recommended that one distributor be available for every 4,000 of population. Originally Koscot had adopted this limitation but now under its new plan it has increased the number to one distributor for every 7,000 of population.
The problem arising from information concerning the number of distributorships available is that the prospect is not told that the number available in any designated geographical area is unlimited. The prospect is simply told that the number available in the state is limited.
Consequently, the number of distributorships available in Michigan might be located and concentrated in a certain geographical area, whereby, ac cording to the market survey analysis, financial success beyond any modest degree would be virtually impossible.
If it were disclosed to the investor that this situation can and does arise, there would be little question but that the investors would find the claims of financial success represented, to be far out of proportion to reality. This problem is evidenced by the fact that in the City of Owosso alone there were 13 distributors for defendant’s product, and there was a population of only 16,000 people. The result of this situation, insofar as sales to ultimate consumers are concerned prevented the distributors from enjoying anything but a minimal profit as compared to the claims of income represented by defendant. Those who did make money made it from commissions for the selling of distributorships.
The people cite language from the case of Lefkowitz v ITM, Inc., 52 Misc 2d 39, 47, 48; 275 NYS2d 303, 315 (1966), as follows:
“Depending on the size of the sales force available to respondents, and the territory available to them, somewhere along the line, the plan had to fail as a matter of economic feasibility and mathematical certainty. No matter the junction at which this was reached, the number of latest participants would grossly exceed the sum of the participants of all prior rounds. It is patent that by far the greater number of participants could earn no commissions.
“This is the vice and quicksand nature of ‘endless-chain’ transactions. * * *
“While the futility of the ‘endless-chain’ plan is obvious to the promoters, it is not apparent to the consumer participant.”
This language well covers and supports one of our major criticisms of defendant’s selling scheme. Defendant’s policy statement sets out that there will be a network of 40,000 distributors and 400,000 beauty advisors for the marketing of its product on a national basis. The figure of 40,000 represents^ and includes not only distributorships but supervisor-ships as well. Under Koscot’s new plan a distributor is entitled to a 25% commission on the sale of product and a supervisor is entitled to a 15% commission. In Michigan the proposed number of distributorships and supervisorships available is approximately 1250. Defendant’s witness testified that under Koscot’s policy statement ten beauty ad-visors are available to each distributor or supervisor. In Michigan, in conformance with Koscot’s own recommendation there will be 12,500 beauty ad-visors.
We now proceed to demonstrate the improbability of defendant’s claims. We approach the demonstration under conditions most favorable to defendant. Mathematical possibility for claimed financial success of a prospect at the distributorship level follows.
Assume a distributor with the recommended ten beauty advisors. Further assume each advisor sells $300 per month, the recommended minimum by Koscot. The distributor would realize $36,000 per year in gross sales. His commission is 25% or $9,000.
In Michigan, if each distributorship and supervisorship were sold, and each had the recommended number of beauty advisors, selling the recommended minimum in product, Koscot would enjoy gross sales of $45,000,000. According to witness Grigsby, the annual projected market for consumption of cosmetic goods in Michigan is $280,000,000. In theory, the $45,000,000 in sales by Koscot would represent a market penetration of approximately 20%. Koscot presently enjoys a market penetration of 0.24%. Expert testimony at the trial indicated that the largest cosmetic company operating in Michigan supplies 13.8% of the market and the company has been in business over 80 years. It is followed by 82 other companies, 70 of which enjoy a market penetration of less than 1%. It was the expert’s opinion that it would be almost impossible for Koscot to capture such a market penetration.
At the G-olden Opportunity Meetings it is represented that a distributor can achieve an income beyond $200,000 per year simply by managing a sales force of beauty advisors. To realize an income of that magnitude each distributor’s sales force would have to generate $800,000 per year gross volume in product sales. At these meetings, prospective franchisees are urged to have a sales force of 96 to 120 and realize bigger profits, which is in violation of the declared ratio of 10 beauty advisors per distributor set out in defendant’s policy statement.
A distributor would need 220 beauty advisors selling the recommended monthly minimum in products to realize the $200,000 income figure. For each distributor in Michigan to realize a $200,000 income, a network of 2,750,000 beauty advisors selling $300,-000,000 in product would be necessary. The $300,-000,000 in sales is beyond the total estimated market demand for cosmetic goods in Michigan.
At the trial testimony was given by a franchisee stating that defendant’s representative promised him that Koscot would repurchase the products if he was unsuccessful in selling them. When request was made to the company, they flatly refused to repurchase the goods.
After viewing Koscot’s marketing plan in its most favorable light, we are constrained to conclude that defendant’s scheme is a blatant attempt to extract money from investors through the use of misrepre sented facts, exaggerated claims and statistics, undisclosed facts, and false advertising.
II.
Whether the defendant’s marketing plan is a lottery in violation of Michigan law?
The people contend that the promotional marketing scheme of defendant is in essence a lottery in clever disguise. Further, the people contend that this scheme is analogous to a chain letter and identical to the devices of referral selling, which are frequently condemned on the basis of a lottery. We are in accord with this contention. The Michigan statute prohibiting lotteries is found in 193Í PA 328, § 372, as amended by MCLA 750.372; MSA 28-.604, which provides as follows:
“Any person who shall set up or promote within this state any lottery or gift enterprise for money, or shall dispose of any property, real or personal, goods, chattels or merchandise or valuable thing, by the way of lottery or gift enterprise, and any person who shall aid, either by printing or writing, or shall in any way be concerned in the setting up, managing or drawing of any such lottery or gift enterprise, or who shall in any house, shop or building owned or occupied by him or under his control, knowingly permit the setting up, managing or drawing of any such lottery or gift enterprise, or the sale of any lottery ticket or share of a ticket, or any other writing, certificate, bill, goods, chattels or merchandise, token or other device purporting or intended to entitle the holder or bearer or other person to any prize or gift, or to any share of or interest in any prize or gift to be drawn in any such lottery or gift enterprise, or who shall knowingly suffer money or other property to be raffled for in such house, shop or building, or to be there won by throwing- or using- dice, or by any other game or course of chance, shall for every such offense 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.”
Michigan’s lottery prohibition has been considered by our Supreme Court in a number of cases. In deciding these cases, the Supreme Court has formulated certain principles which must be utilized and kept in mind whenever any application of Michigan’s lottery prohibition is under consideration.
In People v McPhee, 139 Mich 687, 690, 691, 692 (1905), the Court discussed the difficulty of defining the evil that our lottery statute is intended to curtail. Further the case indicated that a broad meaning is to be given the term lottery. The Court said:
“A lottery may be defined to be any scheme whereby one, on paying money or other valuable thing to another, becomes entitled to receive from him such a return in value, or nothing, as some formula of chance may determine.
# # #
“Our statute does not justify a court * * * in deciding a thing is not a lottery simply because there can be no loss, when there may be very large contingent gains or because it lacks some element of a lottery according to some particular dictionary’s definition of one, when it has all the other elements, with all the pernicious tendencies which the state is seeking to prevent.”
vF tP vF
“The statute is intended to reach all devices which are in the nature of lotteries, in whatever form presented, and the courts will tolerate no evasions for the continuance of the mischief.”
In the case of People v Elliott, 74 Mich 264 (1889), the Court held the term lottery to mean a scheme by which a result is reached by some action or means taken, and in which result man’s choice or will has no part, nor can human reason, foresight, sagacity, or design enable him to know or determine such result until the result has been accomplished.
In Sproat-Temple Theatre Corp v Colonial Theatrical Enterprise, Inc, 276 Mich 127 (1936), the Court held the essential elements of lotteries to be consideration, prize, and chance, even though not specifically defined by statute.
In the case before us, the elements of consideration and prize are clearly present. Consideration is present in that a participant in the Koscot plan must pay a sum of money for the privilege of joining the marketing plan. Prize is present in that the participant hopes to receive a return higher than his investment by bringing prospects to a Golden Opportunity meeting whereby the defendant may be able to sign one or more prospects into the organization, thereby allowing the participant to earn commissions on those over whom he exercises no control. When one invites and brings a prospect to a Golden Opportunity meeting he is relying on the ability and efforts of the operators of that meeting, representing defendant, to persuade the prospect to join. This contingency satisfies the element of chance. For example, if “A”, a distributor, brings “B”, a prospect, to a meeting and “B” purchases a supervisorship, and “B” in turn brings “C” to another meeting, and “C” purchases a supervisorship; “A” makes money from both “B” and “C”, with “C” being outside of “A’s” knowledge and control. This constitutes chance dominating over skill.
In many instances there is virtually no contact maintained after a person is sold a franchise by defendant. He can move anywhere in the country and yet the person who recruited him will receive profits from whatever he does.
If “X” in Florida recruited “Y” in Michigan, “X” would receive a commission on any sales of recruitees brought in by “Y”, regardless of where “Y” locates. There would be no contact between “X” in Florida and the new recruitees of “Y”.
The case of Twentieth Century Company v Quilling, 130 Wis 318, 323-325; 110 NW 174, 176 (1907), arose from facts very similar to the case before us. Eelevant language found therein is set out below:
“The written contract, while containing some of the conditions of the real arrangement made, was largely a mere cover executed to give appearance of fairness and legality to the arrangement; * * * that the real arrangement was a joint scheme to make money by selling similar nominal territorial rights to others who should also become parties to the scheme and sell similar territorial rights to still others, and so on — the idea being that the process should go on in constantly broadening circles as long as purchasers could be found who were foolish enough to buy, and thus necessarily leave the ultimate purchasers with nothing to show for their money or notes save the practically worthless right to sell the patented device in some backwoods county.
“We are unable to regard such a project as a legitimate business enterprise. How large would be the number of purchasers who would be induced by the prospect of large returns for little labor to join the scheme it is impossible to say or even speculate. Each purchaser would be desirous to get back at least as much as he had invested. In order to do this, the first purchaser under the most favorable circumstances would have to sell rights aggregating $1,000, the second purchaser would have to sell rights aggregating $2,000, and thus the necessity of finding victims would increase in geometrical progression until the purchasers who are in the tenth place from the original purchasers must, in order merely to reimburse themselves, find others who would pay more than half a million dollars. Of course, it is not likely that the scheme would last so long as this, but however long it lasts, it will infallibly leave a greater or less crowd of dupes at the end with no opportunity to recoup their losses because the bubble has at last burst. It contemplates an endless chain of purchasers, or, rather, a series of constantly multiplying endless chains, with nothing but fading rainbows as the reward of those who are unfortunate enough to become purchasers the moment before the collapse of the scheme. While contemplating large gains to the original promoters and early purchasers, it necessarily contemplates losses to the later purchasers; losses increasing in number with the greater success of the scheme.
x ji, jj,
“Any contract which contemplates or necessarily involves the defrauding or victimizing of third persons as its ultimate result must be contra bonos mores”
Defendant in the case at hand has promulgated a scheme which has all the earmarks of a lottery. The population limitation of one distributor for each 7,000 of population is clearly a fiction since saturation of the market will inevitably occur.
The evidence shows that sales to ultimate consumers in Michigan were very small, and most of the sales by defendant in Michigan were sales of inventory to distributors and supervisors. This-indicates the main thrust in defendant’s scheme is not to sell product to the ultimate consumer, but rather to sell franchises through the referral plan.
The combined number of distributorships and supervisorships sold in Michigan to date is over 300. Assuming those presently holding franchises recruit, on an average, one prospect who buys a new franchise, that will total approximately one-half of the franchises available in Michigan under defendant’s plan. If these franchisees also bring in, on an average, one prospect who purchases a franchise, we have reached the saturation point for franchises in Michigan. These last 600 franchisees will be precluded from participating in the referral plan. The defendant is in a position to know this, but that information is not so obvious to the new recruitees.
In the recent past, open-ended referral schemes have multiplied and come before the courts in several jurisdictions. In a number of these cases, the courts have passed upon the issue of whether or not such schemes constitute lotteries. The leading case is Sherwood & Roberts — Yakima, Inc, v Leach, 67 Wash 2d 630, 635-636; 409 P2d 160, 163 (1965). In that case appliances were sold at inflated prices. The purchasers received the privilege of referring potential customers to the seller. The seller promised to pay $100 for each sale to a prospect whose name was submitted by the buyers, and $200 for each 15 names so submitted to whom the seller’s salesman made a presentation. The purchaser was to send a card to each prospect he selected indicating a friend would call upon him and show him a fabulous program. The program was not described until the solicitor came. The Court used the following language:
“Assuming that respondents in fact used skill or judgment in selecting the referrals, the trial court properly held that chance permeates the entire scheme. The court found that respondents took a chance that the referrals might not be interested,; that the salesman might not adequately make his presentation; that the referral might have already been referred by someone else; that the market might be saturated; and that the salesman might not even contact the referral. In addition, the trial court noted that respondents have no control over the general operation after they gave the names of referrals. In fact, respondents were told not to contact the referrals before the Lifetone salesman made his presentation, and respondents were told to emphasize the money-making program in case the referrals contacted them. * * *
“It is inherent in referral selling that purchasers such as respondents be without control. Sooner or later, the market, unknowingly to- the purchasers, will become saturated. This principle is the same as in the chain letter scheme. The case at hand is a classic example.” (Emphasis supplied.)
In Lippincott Mortgage Investment Co v Childress, 204 So 2d 919, 920-921, 923 (Fla DCA, 1967), the Court described the following plan:
“Universal Marketing Research, hereinafter referred to as Universal, was engaged in the promotion and sale of central vacuum cleaning systems for use in private homes. In January of 1966 one Prichett, a friend of appellees, approached them and asked if they were interested in making some money. After receiving a positive response from appellees, Prichett stated that he would send somebody out to talk to them about the proposition. Several nights later they were visited, in their home by two representatives of Universal who explained the program sponsored by their company designed to sell their product and to earn money for the purchasers. Under the plan appellees would agree to purchase for installation in their home a central vacuum cleaning unit for a total cost of approximately $750 cash, or $975 if bought on a time payment plan. To evidence this indebtedness appellees would give their prom issory note in return for which, they would he employed as representatives of Universal under a commission agreement, the earnings from which would pay for the vacuum cleaning unit and in addition yield appellees an indeterminate amount of money. Under the commission agreement appellees would furnish Universal the naines of 16 of their home-owning friends considered to he prime prospects for purchasing the vacuum cleaning unit. For each unit sold by Universal to the prospects furnished by appellees, the latter would be paid the sum of $50. It was represented that sales to such prospective purchasers would yield commissions sufficient in amount to pay in full the promissory note representing the purchase price of the unit sold to appellees. In addition, each prospect submitted by appellees would be offered the same proposal offered appellees, and each would be requested to furnish Universal the names of 16 of their friends who might be good prospects for purchasing a vacuum cleaning unit. For each person referred by appellees’ prospects to whom a unit was sold, appellees ¡would be paid an additional sum of $50. It was from commissions to be earned by the sale of units to the persons referred by appellees’ prospects that the big money would be made. The prospective purchasers on this second level of the plan would theoretically number 156 and represent a potential yield of $7,800 in commissions to appellees. Appellees would agree to contact their friends whose names they would submit to Universal and interest them in the idea of participating in a plan to make money, and not to discuss the plan with them in detail until after Universal’s representatives had had an opportunity of making a demonstration to them of the plan in its entirety.
“As an outgrowth of the foregoing meeting between appellees and the representatives of Universal, appellees agreed to purchase a vacuum cleaning unit and signed a promissory note in the amount of $972 payable to Universal in 36 monthly installments. This note represented the purchase price of the unit which was later installed in appellees’ home, and the note was subsequently assigned to appellant. At the time of executing the foregoing promissory note, appellees also signed a commission agreement containing in substance the terms and provisions hereinabove related. In the discharge of their obligation appellees furnished to Universal the names of 16 of their friends whom they considered would be interested in purchasing the vacuum cleaning unit, and subsequently received from Universal commissions in the total sum of $200. Upon failure or refusal of appellees to make any of the monthly payments called for in their promissory note, this suit was instituted.
4¿, M. JL
“From a careful consideration of the foregoing statute, it is our conclusion that the plan or scheme devised by Universal and used in the promotion and sale of its vacuum cleaning units falls within the purview and intent of the statute, and constitutes a lottery. The motivating factor which induced apellees to enter into the business arrangement with Universal was not a desire to purchase a vacuum cleaning unit, but to be paid a lot of money in return for a minimum expenditure of time or effort. The purchase of the cleaning unit was incidental to the overriding motive on the part of appellees to earn money by way of commissions on sales to be made by Universal. Although the commission agreement made it clear that the cost of the unit purchased by appellees was to be paid regardless of the accrual of commissions, appellees were assured that the promissory note they signed should be of no concern because the commissions they could expect to be paid them would more than pay the note in full. The plan encompassed the organization by Universal of a group of prospective purchasers suggested by appellees who were brought together under a plan whereby commissions would be paid to appellees, as well as to the prospective purchasers named by them, the membership of which group would increase through a chain process of new members securing other new members and thereby advancing themselves in the group to a position where they in turn would receive commissions. Concluding as we do that the undisputed evidence establishes as a matter of law that the transaction between appellees and Universal out of which issued the promissory note sued upon constituted a lottery within the meaning and intent of the statute quoted above, it follows that the trial court was correct in rendering summary final judgment in favor of appellees.” (Emphasis supplied.)
In view of the foregoing cases, we conclude that the plan devised and used by Koscot for the sale of cosmetic products, constitutes referral selling and a lottery, which is prohibited by our statute, supra.
It is evident from defendant’s policy statement that its scheme is to generate the income of money to the company through the sale of distributorships and supervisorships through a referral plan. These distributorships and supervisorships are general in nature and do not grant an exclusive right to sell in any designated geographical area to the purchaser.
We can see that if a distributor sells another distributorship or supervisorship he receives a rebate called a commission in the form of a percentage of the cost of the new distributorship or supervisor-ship. The emphasis of this plan is placed by the company on the ability of distributors and supervisors to recruit others into the plan.
While the company supplies a training program for the new franchisees, even at these meetings the major emphasis is placed upon recruiting new dis tributors and supervisors. Each distributor and supervisor is permitted and recommended to bring prospects to a meeting from anywhere in the state, including his own area, to be sold a franchise by the defendant.
It seems clear that if Koscot’s plan was to sell the product to the ultimate consumer the distributors would not be urged to solicit prospects that will necessarily be in direct competition with themselves. Again, the emphasis is placed on recruiting new distributors and inventory loading, not on sale of product to ultimate consumers.
At the opportunity meetings the fantastic monthly incomes represented to be available in some instances, i.e., $10,000, are not based upon selling the product door to door but rather selling other distributorships and supervisorships.
The people have not and do not oppose the sale of defendant’s products in this state. Their contention is that the sale’s plan should be carried on in such a manner that sales to the ultimate consumer should be the fundamental goal of the company rather than sales of distributorships and supervisorships, through the referral scheme.
We are in accord with this position. In viewing the case we come to the conclusion that the public policy of the State of Michigan could have been considered in the trial court, but was not raised.
Authority for raising this issue sua sponte is found in the provisions of GCR. 1963, 820 which states:
“.1 Relief Obtainable. The Court of Appeals may, at any time, in addition to its general powers, in its discretion and on such terms as it deems just:
# # #
“(7) Give any judgment and make any order which ought to have been given or made, and make such other and further orders and grant such relief, as the case may require.”
In Sipes v McGhee, 316 Mich 614, 623-624 (1947), the Court gave a definitive meaning to the term public policy:
“What is the meaning of ‘public policy?’ A correct definition, at once concise and comprehensive, of the words ‘public policy,’ has not yet been formulated by our courts. Indeed, the term is as difficult to define with accuracy as the word ‘fraud’ or the term ‘public welfare.’ In substance, it may be said to be the community common sense and common conscience, extended and applied throughout the State to matters of public morals, public health, public safety, public welfare, and the like. It is that general and well-settled public opinion relating to man’s plain, palpable duty to his fellow men, having due regard to all the circumstances of each particular relation and situation.
“Sometimes such public policy is declared by Constitution; sometimes by statute; sometimes by judicial decision. More often, however, it abides only in the customs and conventions of the people,— in their clear consciousness and conviction of what is naturally and inherently just and right between man and man. It regards the primary principles of equity and justice and is sometimes expressed under the title of social and industrial justice, as it is conceived by our body politic. When a course of conduct is cruel or shocking to the average man’s conception of justice, such course of conduct must be held to be obviously contrary to public policy, though such policy has never been so written in the bond, whether it be Constitution, statute or decree of court. It has frequently been said that such public policy is a composite of constitutional provisions, statutes and judicial decisions, and some courts have gone so far as to hold that it is limited to these. The obvious fallacy of such a conclusion is quite appar ent from the most superficial examination. When a contract is contrary to some provision of the Constitution, we say it is prohibited by the Constitution, not by public policy. When a contract is contrary to statute, we say it is prohibited by a statute, not by a public policy. When a contract is contrary to a settled line of judicial decisions, we say it is prohibited by the law of the land, but we do not say it is contrary to public policy. Public policy is the cornerstone — the foundation — of all constitutions, statutes, and judicial decisions, and its latitude and longitude, its height and its depth, greater than any or all of them.”
Our Supreme Court has on many occasions set forth our duty in regard to reviewing equity cases de novo, and reiterated the rule in the case of Biske v City of Troy, 381 Mich 611, 613-614 (1969):
“To quote Justice T. M. Kavanagh, writer of the Court’s opinion in the Christine Case (pp 517, 518):
“ ‘We hear and consider chancery cases d,e novo on the record on appeal. Johnson v Johnson, 363 Mich 354 (1961); Osten-Sacken v Steiner, 356 Mich 468 (1959); Futernick v Cutler, 356 Mich 33 (1959); A & C Engineering Co. v Atherholt, 355 Mich 677 (1959); Straith v Straith, 355 Mich 267 (1959); Ball v Sweeney, 354 Mich 616 (1958). This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases. This is primarily because the trial judge is in a better position to test the credibility of the witnesses by observing them in court and hearing them testify than is an appellate court which has no such opportunity. We do not ordinarily disturb the findings of the trial judge in an equity case unless, after an examination of the entire record, we reach the conclusion we would have arrived at a different result had we been in the position of the trial judge.’ ”
After much due, needed, and difficult consideration of all the evidence in the case, we are compelled to reach the conclusion that we would have been required to arrive at a different result had we been in the position of the trial chancellor. We therefore determine that the Koscot’s marketing plan is in violation of the Michigan deceptive advertising statute, constitutes a lottery under Michigan law, and is in violation of the declared public policy of our state for the reasons hereinbefore enumerated. McNamara v Gargett, 68 Mich 454 (1888), and Shutt v City of Grand Rapids, 275 Mich 258 (1936).
We order a judgment be entered in accord with our determination herein, together with an injunction restraining defendant and its agents from developing a distribution system in the State of Michigan through its marketing plan, including the referral system herein described. Further, that the defendant and its agents desist and refrain from using such deceptive advertising found herein to be violative of the Michigan deceptive advertising statute.
Reversed. Costs to plaintiff.
All concurred.
Numbers in parentheses indicate diagram previously drawn on blackboard by speaker. | [
52,
24,
5,
26,
-18,
-25,
13,
3,
-35,
2,
2,
-12,
-33,
62,
-11,
-2,
0,
-3,
28,
-26,
41,
5,
20,
-17,
-67,
-47,
-7,
-9,
37,
-64,
-12,
5,
66,
-50,
5,
12,
74,
24,
8,
-20,
-19,
-33,
58,
4,
-14,
33,
8,
-49,
32,
8,
57,
54,
3,
2,
-77,
-44,
-6,
13,
37,
41,
-45,
32,
56,
46,
-5,
-19,
-22,
46,
8,
30,
20,
-19,
12,
6,
27,
-9,
-12,
-17,
19,
-30,
31,
28,
15,
59,
-65,
48,
-20,
13,
3,
19,
-31,
-29,
-91,
-95,
14,
-11,
-17,
13,
-49,
0,
5,
22,
-6,
22,
19,
50,
-2,
-41,
59,
26,
10,
-5,
-40,
-29,
0,
-1,
14,
42,
-41,
-30,
-51,
-7,
0,
54,
-22,
-7,
20,
-59,
25,
-5,
23,
0,
54,
46,
-14,
10,
64,
-11,
16,
-42,
-24,
17,
-5,
3,
0,
3,
-20,
5,
2,
19,
-17,
-57,
-36,
44,
9,
1,
7,
24,
-9,
-10,
-8,
-21,
33,
38,
-23,
-44,
-10,
29,
-21,
22,
-4,
9,
-28,
-60,
-5,
35,
-22,
1,
-77,
49,
-24,
-9,
-35,
26,
-35,
-2,
-1,
-34,
-49,
-13,
7,
-25,
34,
6,
-37,
7,
-12,
50,
13,
-22,
-3,
13,
-32,
2,
40,
-45,
-38,
14,
-22,
39,
-12,
1,
21,
-65,
-4,
-26,
-65,
25,
8,
-6,
55,
-71,
55,
60,
-3,
-9,
-17,
-16,
-60,
-27,
-43,
30,
30,
0,
-38,
23,
38,
-3,
50,
1,
-9,
-18,
1,
-19,
1,
0,
-4,
20,
5,
2,
42,
36,
-23,
-5,
-60,
-52,
-48,
1,
-2,
47,
-4,
-52,
-79,
-19,
-53,
-10,
-13,
28,
-14,
-9,
-70,
7,
-40,
-8,
-44,
-41,
-47,
8,
45,
-41,
17,
-11,
-20,
-45,
13,
26,
43,
19,
-3,
25,
33,
41,
-3,
0,
47,
4,
14,
23,
20,
26,
20,
-8,
-13,
2,
24,
-22,
-53,
-13,
-39,
-41,
2,
-58,
-41,
-61,
-58,
-20,
72,
29,
81,
-58,
0,
63,
46,
67,
-6,
-31,
39,
-62,
31,
-34,
-31,
-59,
-25,
-40,
-14,
-27,
25,
-14,
-4,
57,
-12,
18,
11,
44,
-35,
47,
39,
-10,
-32,
-47,
5,
-3,
39,
18,
-1,
46,
-18,
-25,
-13,
34,
10,
-42,
5,
13,
37,
67,
42,
-14,
-2,
78,
-3,
-24,
-8,
-25,
-17,
-24,
-5,
9,
-25,
41,
-8,
-51,
33,
11,
-22,
-32,
-3,
6,
-11,
-45,
-3,
-12,
0,
28,
-91,
-20,
-54,
-28,
35,
-31,
-1,
55,
-28,
-63,
-18,
-6,
84,
67,
24,
-13,
3,
5,
14,
-5,
-8,
-32,
20,
-9,
-2,
-50,
30,
5,
-56,
-13,
-3,
-8,
-6,
31,
-12,
-5,
-17,
28,
58,
-3,
-2,
-11,
8,
36,
26,
-13,
5,
14,
-39,
31,
-11,
-63,
-27,
44,
30,
-11,
5,
35,
23,
-30,
-26,
60,
17,
16,
-8,
6,
-16,
-43,
-7,
-72,
-24,
37,
6,
43,
13,
2,
-5,
39,
-27,
54,
-55,
-28,
16,
36,
12,
-41,
-77,
32,
14,
-53,
35,
12,
11,
-1,
-10,
13,
-8,
10,
-39,
28,
3,
-51,
-43,
31,
10,
-15,
-4,
-45,
29,
26,
17,
35,
35,
12,
-17,
-6,
-6,
-55,
11,
25,
38,
7,
29,
46,
-30,
-12,
-1,
13,
-17,
34,
-4,
-11,
27,
-49,
8,
-47,
7,
-33,
-15,
-12,
28,
-45,
28,
-27,
10,
-38,
35,
-23,
17,
-10,
26,
-37,
-11,
-61,
-1,
-58,
-37,
9,
-42,
-16,
57,
28,
0,
44,
-3,
33,
-10,
43,
37,
17,
5,
25,
-14,
-58,
21,
87,
3,
15,
-5,
83,
34,
77,
-27,
4,
-53,
-25,
13,
-30,
11,
-55,
-50,
1,
-22,
22,
12,
-54,
-26,
-4,
-25,
-27,
52,
72,
16,
-22,
19,
-22,
7,
39,
8,
-11,
-48,
-14,
-24,
38,
17,
-9,
-4,
-2,
18,
-43,
4,
28,
-20,
-24,
32,
14,
-23,
0,
29,
-1,
14,
2,
-7,
-9,
16,
-17,
-25,
-26,
-2,
-9,
10,
13,
15,
42,
-48,
-91,
-9,
-1,
-19,
-28,
14,
-47,
-23,
-27,
-33,
24,
-16,
33,
34,
22,
32,
-43,
-7,
33,
-40,
-11,
-16,
-11,
-18,
-14,
-21,
-51,
-13,
40,
10,
0,
-26,
-12,
-4,
19,
20,
-11,
4,
21,
-4,
55,
-23,
30,
61,
-33,
16,
90,
26,
-45,
-11,
-46,
-24,
-7,
21,
-47,
19,
-20,
-22,
-6,
72,
-46,
-30,
-5,
32,
38,
-15,
20,
-27,
-13,
64,
46,
10,
55,
12,
-14,
7,
39,
39,
-16,
-36,
-25,
-58,
15,
-32,
-17,
25,
14,
-14,
-6,
-4,
19,
-8,
40,
56,
-5,
-12,
42,
24,
-28,
36,
-30,
71,
11,
14,
10,
-34,
-6,
-18,
39,
46,
-3,
-16,
8,
37,
1,
3,
5,
15,
35,
-46,
-41,
-24,
-40,
-3,
-36,
-44,
45,
24,
-16,
-7,
-25,
-32,
-6,
-5,
50,
-55,
-55,
35,
-12,
12,
30,
-27,
11,
11,
-38,
40,
-10,
34,
28,
56,
-16,
1,
-43,
9,
-38,
-24,
54,
32,
33,
-4,
-44,
-43,
-24,
13,
22,
-75,
-2,
11,
-36,
39,
4,
-5,
-1,
19,
-74,
19,
52,
-65,
-24,
-45,
8,
20,
-8,
18,
25,
13,
18,
-44,
-46,
-21,
-27,
-1,
7,
5,
27,
-75,
50,
49,
-64,
41,
13,
30,
23,
-12,
6,
22,
12,
-47,
1,
-11,
-20,
-27,
-7,
-61,
11,
45,
29,
-20,
-52,
-14,
48,
26,
7,
-53,
-13,
6,
49,
14,
-39,
9,
-28,
11,
-7,
38,
16,
24,
35,
-38,
-48,
8,
13,
-5,
-18,
23,
-3,
43,
-18,
41,
-35,
37,
17,
44,
26,
-10,
-6,
21,
0,
62,
-21,
-28,
-61,
-52,
-6,
39,
23,
-19,
-12,
21,
10,
-59,
10,
21,
18,
0,
1,
-53,
11,
-3,
36,
-26,
17,
47,
-58,
-8,
38,
-40,
24,
15,
18,
60,
87,
58,
-33,
0,
27,
-39,
17,
-17,
13,
21,
9,
-19,
5,
8,
-36,
-18,
-30,
-42,
11,
26,
-12,
-18,
-6,
-39,
50,
4,
6,
-23,
7,
-12,
13,
-36,
24,
4,
15,
-15,
-18,
12,
12,
6,
35,
20,
16,
32,
-4,
5,
10,
-13,
44,
7,
-11,
-47,
12,
-43,
26,
12,
5,
-18,
87,
-12,
-26,
7,
3,
-18,
-13,
-4,
-21,
-24,
25,
-13,
-10,
11,
-3,
9,
17,
-24,
14,
0,
-17,
3,
-4,
22,
-8,
-18,
18,
-50,
24,
-3,
7,
-42,
-22,
-60,
-26,
-23,
10
] |
Per Curiam.
Defendant was charged with armed robbery, tried before a jury, found guilty, and was given an 8- to 20-year sentence.
The only issue raised is whether defendant is entitled to a reversal of his conviction for the crime of robbery armed based upon the claim that the jury verdict of “guilty as charged”, was improper. The trial court, after hearing the clerk’s inquiring of the jury panel as to its verdict, based on a raising of the jurors’ hands, determined that the verdict of guilty of robbery armed was the unanimous verdict of the jury.
There was no objection raised below, though defense counsel was given adequate opportunity; and unless manifest injustice is shown, this Court will not review the issue. People v. Ramsey (1970), 25 Mich App 576; People v. Willis (1965), 1 Mich App 428; People v. Ritholz (1960), 359 Mich 539. While the court’s failure to request a recorded affirmative response or an independent polling of the jurors does not reflect optimum practice, no manifest injustice has appeared. The issue is not preserved for appeal and the trial court is affirmed.
MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). | [
0,
60,
-18,
9,
-32,
-8,
-11,
-14,
-55,
53,
-7,
-34,
-10,
10,
0,
-41,
3,
-22,
27,
-4,
-22,
-34,
-39,
11,
-18,
10,
18,
73,
-12,
29,
7,
25,
31,
10,
16,
-38,
-19,
12,
-23,
2,
-4,
-1,
-30,
28,
-30,
6,
8,
-27,
32,
-16,
35,
0,
-31,
19,
4,
13,
-12,
12,
-33,
42,
30,
19,
-83,
-20,
22,
-55,
-5,
-1,
-10,
-28,
-34,
12,
-27,
-49,
9,
0,
-3,
38,
-26,
-32,
-24,
-91,
30,
-5,
-2,
-27,
18,
-64,
-32,
-26,
-5,
48,
-6,
-28,
41,
14,
66,
-28,
4,
-26,
29,
-24,
-3,
9,
-5,
-22,
-32,
-62,
41,
-14,
5,
-2,
21,
6,
-19,
27,
-34,
38,
-3,
-21,
-8,
54,
42,
35,
11,
19,
-13,
6,
2,
-30,
9,
72,
-8,
-22,
-26,
42,
12,
16,
28,
18,
5,
23,
24,
-23,
16,
19,
-34,
-28,
21,
-8,
-15,
46,
-55,
20,
-1,
28,
-38,
-25,
2,
21,
-17,
-12,
2,
-19,
5,
-17,
17,
-15,
23,
-8,
-26,
-70,
66,
11,
70,
-8,
15,
-8,
-10,
4,
9,
35,
-16,
33,
-25,
11,
-50,
-20,
-42,
-44,
-29,
43,
-17,
-28,
52,
18,
33,
22,
3,
37,
11,
-26,
13,
0,
-42,
5,
35,
-32,
23,
0,
-23,
12,
-19,
-14,
31,
-8,
-18,
-13,
1,
-21,
-70,
-12,
-13,
-45,
37,
-50,
0,
-24,
-28,
-11,
45,
-12,
4,
-22,
-9,
8,
-5,
-63,
39,
0,
-3,
-46,
44,
-31,
-15,
34,
8,
9,
-2,
22,
3,
-17,
11,
29,
-19,
-17,
33,
-10,
5,
6,
-38,
37,
-17,
-25,
-57,
72,
-7,
21,
-80,
-36,
10,
1,
11,
1,
13,
10,
-59,
50,
5,
-1,
15,
16,
66,
0,
-19,
-3,
-60,
35,
7,
34,
61,
9,
-7,
22,
34,
-6,
-10,
-4,
-49,
-7,
33,
36,
-11,
-39,
-23,
18,
12,
-10,
-11,
-15,
33,
25,
30,
-6,
5,
9,
-9,
43,
47,
-9,
-81,
-31,
27,
-91,
16,
-24,
29,
-51,
-44,
-44,
-30,
20,
-23,
23,
24,
-4,
23,
44,
44,
18,
38,
-16,
-11,
-37,
24,
7,
-34,
-4,
-46,
-5,
29,
-7,
-2,
5,
7,
-61,
-39,
16,
-21,
-45,
9,
-25,
0,
36,
37,
13,
-6,
-11,
14,
54,
-14,
-25,
-12,
10,
-27,
3,
43,
0,
-5,
26,
-7,
11,
52,
-42,
-4,
-5,
5,
-12,
-20,
25,
-60,
-11,
-26,
-65,
-20,
11,
-31,
-20,
36,
-50,
-54,
-13,
-2,
7,
-36,
-33,
-52,
-12,
7,
-39,
-13,
41,
51,
33,
-24,
-29,
22,
14,
32,
-33,
43,
-38,
-3,
9,
-31,
-15,
-16,
24,
-16,
-50,
11,
22,
-10,
-84,
37,
24,
-26,
-26,
40,
3,
-19,
-11,
-22,
-7,
-7,
-39,
-30,
-6,
41,
3,
29,
7,
-17,
-45,
-20,
57,
51,
-46,
18,
35,
-13,
-12,
-30,
7,
18,
-54,
-64,
-8,
47,
-39,
37,
-37,
4,
41,
1,
11,
23,
35,
55,
41,
52,
-1,
-17,
-57,
-28,
-65,
4,
-24,
0,
-7,
18,
-18,
18,
19,
23,
7,
-11,
2,
0,
0,
-13,
-6,
-12,
-16,
37,
34,
-4,
-62,
7,
8,
-11,
31,
-14,
42,
7,
-41,
0,
6,
11,
62,
-42,
-60,
-7,
9,
-3,
35,
-20,
-6,
-48,
-15,
12,
22,
-12,
19,
46,
49,
-33,
-82,
8,
-20,
3,
14,
30,
38,
24,
6,
-22,
-28,
62,
25,
29,
8,
-19,
-15,
-2,
-14,
-21,
2,
17,
-56,
-37,
36,
75,
41,
17,
-35,
6,
-20,
26,
28,
34,
48,
-48,
51,
-35,
22,
41,
61,
4,
5,
39,
48,
-60,
8,
8,
-32,
62,
0,
-23,
21,
-5,
13,
27,
-35,
-43,
-44,
-34,
-22,
56,
21,
20,
-9,
-51,
25,
40,
-36,
17,
-37,
-37,
-39,
53,
-1,
-8,
-7,
13,
16,
-39,
-11,
-33,
35,
11,
33,
5,
1,
-13,
-12,
-16,
-50,
-8,
-1,
-8,
-8,
-7,
-37,
-46,
50,
-1,
57,
-33,
-30,
-32,
36,
34,
-39,
26,
-29,
-47,
27,
9,
-34,
-25,
65,
21,
-32,
21,
-17,
-35,
1,
30,
-23,
10,
74,
-47,
-13,
4,
34,
7,
-24,
36,
48,
-9,
-25,
21,
-36,
35,
33,
16,
6,
-15,
-12,
-53,
-30,
6,
0,
8,
-3,
18,
4,
-3,
3,
-4,
72,
-20,
6,
14,
-30,
84,
76,
-58,
-1,
29,
43,
9,
-16,
19,
22,
6,
-27,
12,
-55,
-44,
2,
-34,
2,
0,
-18,
-66,
-45,
-20,
50,
-67,
-43,
1,
31,
-10,
-32,
24,
-2,
25,
64,
-7,
6,
47,
48,
41,
6,
-15,
21,
-24,
-27,
-14,
42,
-1,
-36,
-40,
1,
-55,
-53,
3,
20,
41,
28,
-13,
-26,
-22,
23,
39,
46,
-30,
4,
-7,
37,
22,
-13,
-8,
37,
-13,
-32,
-10,
-2,
-42,
-16,
22,
-15,
-39,
-42,
2,
-13,
40,
23,
-15,
47,
11,
-27,
-14,
-25,
15,
-25,
-49,
4,
-2,
-13,
-20,
56,
7,
29,
44,
18,
30,
0,
12,
47,
63,
-42,
-15,
-21,
-7,
7,
3,
21,
58,
-13,
-32,
41,
0,
29,
-33,
-7,
13,
-18,
-3,
9,
24,
-77,
-25,
34,
59,
-34,
-20,
7,
-25,
-12,
11,
67,
-52,
-17,
14,
36,
-11,
18,
7,
-7,
-16,
28,
13,
33,
-30,
-28,
19,
0,
20,
-10,
-14,
-27,
8,
-33,
-6,
20,
32,
-31,
0,
50,
-22,
-7,
22,
43,
-18,
-44,
35,
-22,
-26,
22,
25,
33,
-24,
41,
-28,
-4,
-27,
-5,
5,
-18,
3,
16,
58,
-14,
-13,
-34,
-54,
10,
19,
35,
-39,
0,
-23,
-25,
31,
-8,
-1,
-24,
27,
34,
-33,
-15,
75,
-4,
37,
32,
-28,
15,
6,
-20,
25,
32,
10,
-11,
-23,
-19,
10,
-23,
-17,
41,
30,
-13,
23,
-50,
39,
-25,
-16,
7,
-39,
62,
31,
-59,
-32,
35,
-1,
-47,
46,
-2,
-59,
4,
-40,
5,
-8,
-16,
-31,
46,
-33,
23,
-9,
-14,
12,
5,
54,
-7,
-24,
26,
-4,
23,
1,
30,
20,
-25,
47,
11,
0,
-38,
1,
30,
56,
-35,
-6,
-69,
-1,
-34,
1,
-15,
0,
9,
-16,
-63,
22,
-26,
4,
-25,
-5,
46,
-41,
-27,
9,
11,
56,
21,
-30,
11,
4,
-26,
2,
33,
11,
24,
24,
-59,
-16,
26,
17,
-13,
-8,
-2,
7,
8,
29,
-20,
15,
12,
-1,
-32,
-17,
37,
-27,
53,
0,
7
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.