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O’Hara, J.
These are appeals from jury convictions of the offense of robbery armed. MCLA §759.529 (Stat Ann 1971 Cum Supp § 28.797). These appeals were taken of right.
The factual background and the prior proceedings are somewhat complex, and we deem it advisable to set them both out in relative detail before we undertake disposition of the controlling legal question.
On May 16, 1967, a Detroit hotel, catering to very short-time occupancy by couples, was robbed at gun point. Ingress was gained by a man and woman posing as potential customers. Upon entrance the man taped the hands and eyes of the hotel employees and one patron. After this, their knowledge of the subsequent events was obviously limited to auricular impressions. They testified to hearing voices, footsteps, doors opening and closing, and a rumbling noise like a heavy object being rolled along a corridor. A large amount of money was taken from a cash box, but a safe moved to a stair landing was left unopened. One of the two defendants was identified, by a witness who effected entrance to the hotel after the robbery was in progress, as being present, armed, and a participant in the robbery. Outside of this identification, the case against the two defendants was largely circumstantial.
The circumstances were as follows: One of the defendants lived next door to the hotel which was robbed. On the morning prior to the robbery he rented a U-Haul van in his own name. A companion, with him at the time of the rental, asked to borrow a dolly which he threw in the back of the rented van. The two men had driven to the U-Haul rental lot in a blue Pontiac. The U-Haul agent was able to recall two digits in the license plate on the Pontiac. He was also able to recognize the man who accompanied the renter of the unit as the same man identified as having participated in the robbery. Other witnesses testified to the presence, at the robbery scene, of a van similar to that rented by one of the defendants, and to the presence of a blue Pontiac parked nearby with two of the digits previously specified in the license plate by the U-Haul agent. Another witness testified that at the time of the robbery two men ran past him toward the van and the car. The next day the van was turned in to the rental lot and the fee paid.
The police department undertook an investigation of the robbery. By whatever techniques employed, a man named John Wesley Brown was arrested, and on May 19, 1967, he gave a detailed statement, out of the presence of the two defendants, reciting by chapter and verse the plan and execution of the holdup and naming the two defendants as participants. They were arrested and charged with the offense. For whatever reason, the informant was not. At the preliminary examination Brown completely repudiated his previous inculpatory statement. He exculpated both defendants, and claimed one of his coparticipants was dead and that the other’s whereabouts was unknown to him.
The defendants were nonetheless bound over for trial. It began on September 9, 1969, and ended in a “hung” jury September 19, 1969. A new trial began June 10, 1970, ending in a conviction June 23, 1970. Appeals were taken as before noted. We now tackle the knotty legal issue which was properly preserved and which is before us for review.
On the second trial John Wesley Brown was indorsed on the information as a res gestae witness. He was called by the prosecuting attorney. At this point, able and alert defense counsel, individually and in concert, objected strenuously, if not heatedly, to the right of the prosecuting attorney to call Brown. The thrust of the objection and arguments in support thereof were that, while Brown was a res gestae witness, he was also a confessed participant in the crime established by his statement to the prosecutor and by his own testimony twice under oath. Thus, argued the defendants, the prosecution was under no obligation to call him. Further, counsel argued that by calling him without the obligation to do so was an obvious ploy, an “outrageous” tactic, and done only for the purpose of getting the otherwise inadmissible extrajudicial statement inculpating defendants before the jury as substantive evidence of guilt.
Anticipatorily, defense counsel further fulminated that no instruction given instanter, or in the charge in chief, that Brown’s inculpatory statement was not to be considered as bearing on the defendants’ guilt but only as bearing on the very limited issue of Brown’s credibility, could counteract the effect of the statement upon the jury. Once in, contended counsel, the jury could not possibly make that delicate distinction and defendants would be victims of otherwise inadmissible and highly prejudicial testimony against which they had no possible defense. Thus they would be denied a fair trial, argued defense counsel, in the constitutionally guaranteed sense.
Not so at all, countered the people. In the first place the prosecutor contended that he would need prescient knowledge to anticipate what the unpredictable Mr. Brown would say on this trial, and thus know whether he would, in fact, be an accomplice or not. He contended that while it might be true that case law clearly holds that an accomplice, a confederate, a coparticipant need not be called by the people, nowhere had it been authoritatively held that the people could not call any res gestae witness, accomplice or not, and impeach him and impugn his credibility by showing a prior inconsistent statement which inculpated the charged defendants.
Precedent abounds as to the obligation of the State to indorse all res gestae witnesses in the interests of the search for truth. Equally well settled is the exception relieving the people of the necessity of calling an accomplice.
We hold here that the right of the prosecution to impeach its own witness is derivative of, and coextensive with, the obligation to call that witness. Absent the obligation, a witness thus called becomes the people’s witness and subject to the settled rules concerning the examination of any witness voluntarily called by either party.
In the case at bar, while Brown had made prior inconsistent statements as to the complicity of the charged defendants in the robbery, he at no time denied his own participation therein. This fact was known to both the prosecuting attorney and defense counsel. This, together with defense counsel’s objection to calling Brown, clearly relieved the people of any necessity of calling him. Obviously, defendants could not thereafter predicate any claim of error on the failure of the prosecution to indorse and call Brown as a known res gestae witness.
The devastating effect of the prior extrajudicial statement inculpating both defendants, which would otherwise have been inadmissible on the issue of defendants’ guilt or innocence, cannot be minimized. Such prior inconsistent statement could not be received as substantive evidence. Ruhala v. Roby (1967), 379 Mich 102.
The prosecutor by calling Brown himself when not required to do so and eliciting exculpatory substantive testimony that could not but weaken his case in chief, and then impeaching Brown by the inculpatory extrajudicial statement, did get before the jury, inadvertently or otherwise, inadmissible evidence which under these circumstances should not have been received over objection on the stated ground. The prejudice to defendants was of such magnitude as to move us to reverse and remand for a new trial.
It is so ordered.
All concurred.
APPENDIX
Cases recognizing the state’s obligation to indorse all res gestae witnesses include the following: People v. Howard (1970), 24 Mich App 328; People v. Haywood (1970), 28 Mich App 459; People v. Roland Robinson (1971), 30 Mich App 372; People v. King (1971), 32 Mich App 167; People v. Gomolka (1970) , 28 Mich App 636; People v. Banks (1970), 27 Mich App 331; People v. Hutson (1970), 25 Mich App 109; People v. Alexander (1970), 26 Mich App 321; People v. Campbell (1971), 30 Mich App 43; People s. Green (1971), 34 Mich App 149; People v. June (1971), 34 Mich App 313.
Equally well-established is the accomplice exception to the res gestae rule:
People v. Leroy Morgan (1970), 24 Mich App 660; People v. Alonzo Sanders (1970), 28 Mich App 510; People v. Moore (1971), 29 Mich App 597; People v. Chaney (1970), 21 Mich App 120; People v. Crown (1971), 33 Mich App 266; People v. Green (1971), 32 Mich App 482.
There is little point in citing individual cases in support of what is settled law. In lieu thereof, we have appended a list of the case which we examined and considered. | [
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] |
Per Curiam.
Defendant was charged with robbery armed (MCLA 750.529; MSA 28.797); he pled guilty to the charge of robbery unarmed (MCLA 750.530; MSA 28.798) and was sentenced to a term of 10 to 15 years.
The record establishes that the defendant was aware of the nature of the accusation; the judge minimally discharged his obligation in that regard.
The judge made a conscientious effort to comply with the direct questioning requirement set forth in People v. Barrows, 358 Mich 267, 272 (1959). Although he overlooked establishing an element of the crime of unarmed robbery before accepting the guilty plea, we may rely on the preliminary examination transcript to supply the missing ingredient.
Here, as in People v. Bartlett, 17 Mich App 205 (1969), the defendant was originally charged with robbery armed and was allowed to plead guilty to a charge of robbery unarmed. In both cases, here as there, the judge established by direct questioning of the defendant that he had stolen money from the victim but failed clearly to establish that the larceny had been accomplished by an assault upon the victim, constituting the offense of robbery. In both Bartlett and this case the preliminary examination transcript showed that witnesses for the people were prepared to testify that the originally charged offense, armed robbery, had been committed by the defendant.
Having in mind the reluctance of guilty-pleading defendants to state all the facts where they have bargained for a reduced charge, in a case such as this we may properly rely on the preliminary examination record in affirming a conviction of the reduced charge.
Defendant argues that the judge failed to inform him of the consequences of his plea. In the presence of the defendant, the court conducted a colloquy with defense counsel during which counsel stated that the maximum penalty for unarmed robbery was a sentence of 15 years. Defendant was, therefore, aware of the consequences of his plea.
Finally, defendant argues that the record does not demonstrate that his plea was voluntarily and understandingly made. The trial judge’s examination of the defendant in this regard was adequate.
Affirmed. | [
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] |
Grant, J.
{after stating the facts). The defendant and the several other organized companies involved in this controversy were organized under the tram or street railway acts, and not under the railroad law of the State. It is urged that the acts under which these companies were organized do not authorize a consolidation, and that, therefore, any attempted consolidation would be illegal and void. In this case the conclusive reply to this proposition is that the .defendant is not in position to raise the question. If there was in fact a consolidation between the Ann Arbor Street-Railway Company and the Ann Arbor & Ypsilanti Street-Railway Company and the Ann Arbor & Ypsilanti Electric Railway Company, and between the last company and the defendant, the latter cannot deny its liabilities, either for contracts or torts, or its liability resulting from sucb consolidation, upon the plea that its organization is 'illegal. The legality of its organization cannot be attacked collaterally in suits by and against it, based upon dealings with it. Its legality can be attacked only in a direct proceeding by the State for that purpose. So long as the State chooses to recognize its validity by keeping silence, it is a corporation de facto, though not de jure, and liable the same as any other corporation in its dealings with others. Swartwout v. Railroad Co., 24 Mich. 389, and note; Hall Manfg. Co. v. Railway Supply Co., 48 Mich. 331 (12 N. W. 205); Coe v. Railway Co., 31 N. J. Eq. 105; Washburn v. County of Cass, 3 Dill. 251 (Fed. Cas. No. 17,213); Tarpey v. Salt Co., 5 Utah, 494 (17 Pac. 631); Bell v. Railroad Co., (N. J. Ch.) 10 Atl. 741, and note; Whitney v. Wyman, 101 U. S. 392.
Did the transactions between these companies constitute consolidations or sales ? It is manifest that the Ann Arbor & Ypsilanti Electric Railway Company was organized for the purpose of uniting the two old organizations under one management, or of absorbing them, and taking over to itself all their properties and business. It exercised no other function, and evidently it was not the intention to construct a new road between Ypsilanti and Ann Arbor. It did nothing but to absorb these roads and run them as one. The stockholders, managers, and directors of the old companies were the parties who created and organized the electric company, and who transferred all the stock to the new company. The directors of the two old companies all became stockholders in the new, and most of them as well bondholders. The electric company paid not a dollar to the other companies as compensation for the transfers ' of all their properties to it. The arrangement left the two old companies without assets and without business. They were virtually out of existence by the arrangement. They had not only disposed of all their property, but all the business which they were organized todo. Under defendant’s contention, their creditors had no remedy except by suit in equity to compel the stockholders to pay assessments to the full value of their stock, or to reach the stock and bonds of the electric company which had been received by the stockholders of the old companies, upon the theory that they were assets of those companies. If the stock was fully paid, such proceedings would be valueless. Whether the stock in the electric company, in the hands of the stockholders who had been stockholders in the Ann Arbor Company, could be reached by a proceeding in equity, is a doubtful question, but it is unnecessary to discuss it. We think that the law will not permit such a transaction upon the theory of a sale. Those who managed the transaction evidently thought so too; otherwise they would not have taken the precaution to take a bond from the Ann Arbor Street-Railway Company to indemnify the electric company against the plaintiff’s claim. Every layman knows that by the purchase of property the vendee does not assume the vendor’s debts, and that this rule applies as well to corporations as to individuals. Mr. Beach says:
“The word ‘consolidation’ is used to denote any conjunction or union of the stock, property, or franchises of two or more corporations, whereby the conduct of their affairs is permanently, or for a long period of time, placed under one management, whether the agreement between them be by lease, sale, or other form of contract, and whether its effect be the dissolution of neither of the companies, or whether one of them be dissolved and its existence be merged in the corporate being of the other, or whether it result in the dissolution of both companies, and the creation of a new corporation out of such portions of the original companies as enter into the new.” 1 Beach, Priv. Corp. § 326.
We are of the opinion that each transaction was a consolidation in fact, or, as it is termed in England, an “amalgamation.” The law will not permit the creditors of two corporations to be deprived of the assets of such corporations in payment of their debts, and turn them over to suits in equity against the stockholders, when the union or consolidation with another corporation is effected with ■out the passage of a dollar or other valuable consideration between the corporations themselves. The effect here is precisely the same as though the stockholders of the Ann Arbor Street-Railway Company and of the Ann Arbor & Ypsilanti Street-Railway Company had united to form the electric company, and had pooled their stock and bonds into the one company. The purpose and result of both proceedings would have been the same. Chicago, etc., R. Co. v. Ashling, 56 Ill. App. 327; Hurd v. Steam Laundry Co., (Sup.) 60 N. W. Supp. 813. Not a dollar was paid, in either of these consolidations, into the treasury of those companies whose existence was thereby terminated. What we said in Grenell v. Gas Co., 112 Mich. 70 (70 N. W. 413), is equally applicable here:
“A corporation cannot sell all of its property, and take in payment stock in a new corporation, under an arrangement that has the effect of distributing the assets of the vendor among its stockholders, to the exclusion and prejudice of its creditors.”
Even if this were a purchase, it was a purchase under similar circumstances to those in the Grenell Case, wherein we held that the purchase was subject to the rights of ■creditors.
It is also contended that the Ann Arbor Street-Railway Company was insolvent, and that therefore plaintiff was not prejudiced by the consolidation or transfer. The consolidated company cannot raise this question. The question is not whether either of the old companies was solvent or insolvent, or whether both were solvent or insolvent. By the consolidation the new company is burdened with the debts of the old, and the sole question then is, Has the new company sufficient assets to pay its debts, which then include those of the old companies ?
The judgment is affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Montgomery, J.
The bill was filed in this case by-Frank J. Riggs, as trustee in bankruptcy of George H. Whitaker, to reach certain property standing in the name of Sarah F. Whitaker, wife of George H. Whitaker, alleged to have been transferred to her in fraud of creditors, and to reach the proceeds of certain other property which had been conveyed to her, but the title of which has passed out of her hands. The circuit judge granted the relief prayed, and -defendant Sarah F. Whitaker appeals.
The testimony of George H. Whitaker, given on the trial of the case of Luitje against Whitaker, was received in evidence. We think this testimony was incompetent as against Sarah F. Whitaker. See Blanchard v. Moors, 85 Mich. 380 (48 N. W. 542); Whelpley v. Stoughton, 119 Mich. 314 (78 N. W. 137). The case will be determined, therefore, without reference to the testimony given by Mr. Whitaker.
The testimony shows that in 1897’George H. Whitaker was the owner of a terrace of dwelling houses on Second avenue, in Detroit, of the value of about $50,000. This property was covered by three mortgages, — one of $25,000, one of $4,000,"and one of $3,500, making a total of $32,500. Whitaker was also owner of a house and lot on Second 'avenue, in Detroit, valued by witnesses at from $7,000 to $14,000, but probably worth, as near as we can judge, about $10,000. Whitaker effected a sale of the terrace property to P. A. Ducey. The evidence is not quite clear as to what was realized upon this property. The value of the equity, as shown by the record, was about $17,500. But it is certain that Mr. Whitaker received a deed for 12 lots in Wesson & Ingersoll’s addition to Detroit; also a contract to transfer 24 lots in the same location, worth, according to the estimate, $7,200, with $5,000 against them, or $2,200 net. The testimony is not clear, although it is claimed by the defense to show that he received also about $6,000 in money.
There is no doubt upon this record that Mr. Whitaker was indebted in large sums at this time; nor is there any doubt in our minds that he was insolvent. Many technical questions are raised as to the character of the testi- ' mony offered to show the insolvency of Mr. Whitaker. Among others, it was shown that an execution was returned nulla bona, — an execution regular on its face. But it is sought to break the force of this return by raising technical objections to the judgment upon which the execution issued. The evidence of the officer’s return implies, however, an effort on his part to make the amount of the judgment, under a writ valid upon its face; and the value of this evidence is not detracted from by a discovery, made by counsel years afterwards, that, had somebody seen fit to attack the judgment, it might not have proven valid.
Nor is there any doubt that Mrs. Whitaker knew of her husband’s indebtedness. She testified as follows:
“I never gave the debts very much thought at all. I thought it was paying pretty well, and I hated to have him sell it. I never knew anything about Mr. Whitaker’s business at all. When I thought about it, I knew that Mr. Whitaker was dealing with these men, and was largely in debt. ”
It appears that, with this knowledge of her husband’s affairs, Mrs. Whitaker claims that an agreement was made, at the time she joined in the .deed of the terrace to Ducey, that she should receive, in consideration of so joining in the deed, a deed of the house and lot on Second avenue, the equity in which was, say, $5,000, and the 12 lots received by him from Ducey, in Wesson & Ingersoll’s addition to Detroit. Four of these lots were afterwards conveyed to Mr. Gavett in exchange for a cottage. The Gavett cottage, the Second-avenue property, and the remaining lots were deeded to Mrs. Whitaker. She claims that this conveyance was made in consideration of her joining in the deed. She testifies as follows:
“ Q. What do you understand to be your dower in the property ?
“A. I never gave any attention to it. I don’t know what it means. I supposed that it meant one-third.
“ Q. You did not have any idea what it meant, or what its value was ?
“A. I didn’t think anything about it. If he sold the terrace, I wanted him to give me a certain amount.
“ Q. Without any regard to your dower right ? That you have not in mind ?
“ A. No, I never thought anything about my dower interest.
“ Q. Now, why, if you were to have these lots about the time that the deal'was made with Ducey, for signing the deed to him, why didn’t you have them ?
“A. I don’t remember whether he did .deed them right to me right away or not. That was his business. I paid no attention to it. I would have to look up when they were deeded to me. But I always trusted Mr. Whitaker. He never deceived me, and, if he said that he would do it, I never had to bother my head about it after that.”
On the trial before Judge Rohnert she testified:
‘ ‘ Q. What do you understand to be your dower in the property ?
“A. I gave no attention to it. I did not know what it means. I suppose it means one-third.
“ Q. You did not have any idea what it meant, and what its value was ?
“ A. I did not think anything about it. If he sold the terrace, I wanted him to give me a certain amount.
“ Q. And that is all you had in your mind ?
“A. Yes, sir; for myself and children.
“ Q. Without any regard for your dower right, if you had any in mind ?
“A. No, sir; I never thought anything about my dower interest.”
It is insisted that Mrs. Whitaker had the right to make the best bargain she could, and that, if she actually, made a contract to deed away what interest she had in this, property, in consideration of the conveyance to her of the property involved in this suit, creditors cannot complain. There may be limits within which such a contention could be allowed. But an insolvent debtor must be just before he is generous. In the view we take of this transaction, it was not in the nature of a bargain at all. It is very evident that Mrs. Whitaker never weighed the valu’e of her interest in the terrace property, or sought to consider it. It is evident that she knew of her husband’s indebtedness, if not of his insolvency. As we read the record, both parties doubtless felt that it would be safer to have this property in Mrs. Whitaker’s name, and it was placed there. The transaction operated to defeat creditors of their rights, and they have the right to complain.
It is strenuously insisted that the evidence does not show that Mr. Whitaker did not retain sufficient money to pay his indebtedness. But, without reciting the testimony at length, we think it is perfectly manifest that he was insolvent at the time this transfer occurred, and has remained so until the present date.
It is urged that complainant has been guilty of laches. But we think no such laches is shown as cuts off the right to set aside this transaction.
The decree protected the interests of Mrs. Whitaker to the extent of the improvements she had put upon the property, subrogated her to the rights of the mortgagee in the mortgage she had discharged, and protected her homestead right. We think the decree fully protects all her equitable rights, and should-be affirmed.
Hookee, C. J., Mooee and Geant, JJ., concurred. Long, J., did not sit. | [
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Hooker, C. J.
The plaintiff sued the defendant, a life-insurance company, organized'and doing business under the laws of the State of New Jersey, before a justice of the peace. The process was a summons. A judgment being rendered in favor of the plaintiff, the defendant took a special appeal to the circuit, where plaintiff again recovered, and defendant brought error. The record does not show that process was not properly served. The question raised by the special appeal was whether, under the law of this State, a justice of the peace has jurisdiction to entertain a suit against a foreign insurance company.
In 1873 the legislature passed an act requiring foreign insurance companies who wished to do business in this State to consent to service of process upon the insurance commissioner. This was not a practice altogether new. 3 Comp. Laws, §§ 10015 to 10021, inclusive. This provision is now in force. In the case of Hartford Fire-Ins. Co. v. Owen, 30 Mich. 441, the court expressed doubts whether it had ever been intended to confer jurisdiction upon justices of the peace in cases against foreign insurance companies, except in attachment or garnishment, and said that, whatever may have been the intent, the statute of 1873 placed it beyond doubt that no jurisdiction was afterwards possessed by justices. Act No. 155, Laws 1873. In 1881 an act was passed providing for the commencement of actions against nonresident corporations by serving process upon any agent, etc. For this act, as originally passed, see 2 How. Stat. § 8145. In Reath v. Telegraph Co., 89 Mich. 22 (50 N. W. 817), it was held that this statute applied only to proceedings in the circuit court. Subsequently this statute was amended in a way which shows an intent to give justices of the peace jurisdiction as to foreign corporations. See 3 Comp. Laws, § 10442. It is now claimed that it was not intended to apply’to foreign insurance companies, and that they are still governed by the law of 1873, as construed in the case of Hartford Fire-Ins. Co. v. Owen, supra. The learned circuit judge held otherwise upon the hearing of the special appeal.
We should have no hesitation upon the subject but for a possible inference deducible from the language used in Hartford Fire-Ins. Co. v. Owen, supra, viz.:
“And the fact that suits are commenced before justices by process which must be returned in twelve days from date, and may be in two days, and need never be served more than six days before return, is very significant. In a multitude of cases a proceeding against a foreign corporation in this summary way would lead to a denial of justice, and we ought not to impute to the legislature an intent to produce such oppressive consequences, if we can avoid it. These and some other similar reasons have inclined us to believe that the statute was never designed to apply to any but courts of record. Whatever may have been the case before, we think the statute' of 1873 has placed it beyond doubt that no jurisdiction is now possessed by justices. By that statute it is provided that in all cases service may be made by delivering the proper papers to the commissioner of insurance, who is required to send duplicates to the company where it is located, or to its agents within the State, as may have been determined by the company. Act No. 155, Laws 1873. There is no exception to this. It applies to all cases of suits against them. It is impossible to apply such a provision to any court proceeding on summary process. It would allow no time to prepare for defense, or even to appear. Whether this statute entirely supersedes the former law on the subject, or whether it is merely additional, we need not now consider. But it applies to all suits brought after its passage, and makes the service on the commissioner permissible, if not imperative.”
But this is not necessarily conclusive. The amendment to the act of 1881 was clearly intended to give justices of the peace jurisdiction in cases against foreign corporations generally. The method of service was pointed out, and we see.no obstacles to a suit against a foreign insurance company under this law which do not exist in the case of any other foreign corporation. The act is in terms broad enough to include this, and we are of the opinion that the act of 1873 is not necessarily inconsistent with such a construction. Other questions raised need not be discussed, further than to say that we find no error in them.
The judgment is affirmed.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
This suit was brought in the circuit court. A bill of particulars was filed, which stated, after the formal heading:
“Take notice that the following is a bill of particulars of the plaintiff’s claim, for which suit is brought:
“ The following articles of furniture, fixtures, including soda fountain, purchased under the terms of contract sued upon:
Soda fountain__________1..............'.......— $2,200 00
William Wright & Co., bill of fixtures------------- 791 20.”
Then followed 20 other items for fixtures and equipments connected with the soda fountain, the total of the items being about $4,500. The circuit judge directed a verdict for the defendants. The case is brought here by-writ of error.
The defendants stand in the place of the Mabley & Goodfellow Company, who entered into an agreement with the plaintiff, by the terms of which the soda fountain and fixtures involved in this litigation were, by the plaintiff, put into the building known as the “Majestic Building” in Detroit. A great many errors- are assigned, but, as we think one feature of the case disposes of it, we shall refer only to that. The agreement was dated February 26, 1897. Those portions of it important to this discussion read as follows :
“The first party shall furnish the second party with the drawings and the description of the fixtures and fountain necessary to place upon said premises, which fixtures and fountain shall be suitable to the place, and in keeping with the other fixtures in the portion of the Majestic Building controlled by the first party as aforesaid, and said second party shall cause said fixtures to be constructed and placed upon said premises. The cost of said designs and descriptions shall be paid by the first party, and the cost of said construction by the second party. If this license should not be renewed as hereinafter contemplated, by reason of the first party refusing to renew the same, then said first party shall buy said fixtures and fountain, and shall pay the second party therefor the reasonable cost of said construction, which, however, shall not exceed the actual cost thereof. If the second party shall elect not to renew this license as herein contemplated, then the first party shall buy said fixtures and fountain, and shall pay the second party seventy-five per cent, of such reasonable cost of construction, which reasonable cost shall not exceed the actual cost. * * *
“This license shall begin on or about the first day of April, 1897, and continue only so long as its terms and stipulations, and each and every one of them, are fully and promptly complied with by the second party, and in such case from then until and including the tenth day of February, 1898. If, at the expiration of this license, the relation of the parties and the business conducted have been satisfactory, the second party shall have the right to renew this license on the same terms and conditions for the term cf four-years from and after the last-mentioned date.”
It is claimed by plaintiff that, before this suit was brought, such a condition arose as made it the duty of the defendants to take the soda fountain and fixtures, and to pay him for them. It will'be observed that, under the terms of section 3 of the contract, the obligation of defendants to purchase the fountain and fixtures depends upon whether the license is renewed February 10, 1898, or not. The amount which defendants are to pay depends upon who elects not to renew it.
The testimony offered upon the part of the plaintiff tends to show that, before this agreement was entered into, it was represented to him by the manager of the Mabley & Goodfellow Company that eight floors of the building would be filled with goods, making a large department store controlled by that company; that, at the time the agreement was entered into, the Woodward-avenue entrance to the store was near where the fountain was to be placed, and no other fountain was to be placed upon any one of the eight floors; that, relying upon this, plaintiff was induced to put into the contract a guaranty to make sales amounting to $30,000 annually, and to pay the defendants 25 per cent, thereof; that defendants did not cause eight floors to be filled with goods, making a large department store, but only two floors were occupied, and that, as a result, plaintiff’s sales up to November were nowhere near reaching at the rate of $30,000 a year, and in November, because of the situation, the written contract was modified orally, by an agreement between the manager and the plaintiff that only 10 per cent, of the sales should be paid as rental, and the guaranty of sales to the amount of $30,000 should be eliminated; that, in pursuance of this contract, only 10 per cent, was paid until a new manager came on. What occurred after this ■ is stated in the brief of counsel for plaintiff as follows:
“On February 10, 1898, Goodfellow left the management of the Mabley & Goodfellow Company, and Charles A. Shafer took his place as manager of the company in person. This was the date on which the right to renew the license accrued, but, owing to the confusion necessarily incident to a change of management in so large a concern, nothing' was done in regard to a new lease for some time. Mr. May became manager February 20, 1898. On March 10th he called Mr. Hangsterfer to his office, where they had a talk, in which Mr. May, in substance, declared that Hangsterfer had broken his agreement in the lease, and asked him what he was going to do about it. Hangsterfer asserted his right to remain on payment to the defendants of 10 per cent, of the gross sales, irrespective of any guaranty of any specific amount of sales, and that the guaranty had been abrogated, and the percentage reduced to 10 per cent., by verbal agreement at the talk with Good-fellow, November 9, 1897. On April 5th, Hangsterfer, in a conversation with Shafer, said he would stay on the basis of 10 per cent, of sales, with no guaranty as to the total amount of the same. He continued in possession, paying rental at the rate of 10 per cent, of his gross sales. This continued until March 19, 1898, when Shafer began to retain all the money turned in to him, instead of 10 per cent, of it only. This continued for some two weeks and a half, when plaintiff retained the money received from sales, and made no settlements with the defendants whatever. On April 8, 1898, Hangsterfer was served with a written notice to quit the possession of the premises.”
A like notice was served April 26th, 1898, and a third notice on July 16th. On July 13, 1898, for the first time, plaintiff served notice upon the defendants of his election to vacate the premises, and that the defendant should pay him the cost of the fountain and fixtures, according to the terms of the agreement. In the meantime Mr. Shafer undertook to close the Woodward-avenue entrance, near the soda fountain, and open a door nearly to the other side of the building. On the 9th of April the plaintiff ■commenced a suit in chancery against Mr. Shafer, in which he set up the original agreement and its modification in November, and claimed it was' then in force as modified, and he also set up the proposed alterations in the store, and also that defendants proposed to put in a soda fountain, and that he would be greatly injured if the proposed changes were permitted, and prayed for an injunction.
The defendant claimed Mr. Goodfellow was not authorized to change the written contract; that, as it was a contract for more than a year, under the statute of frauds it could not be legally changed except in writing; that, as Mr. Hangsterfer remained after February 10th, it was an election to renew for four years under the written contract unchanged; that defendant has always been ready to have him remain under the written contract, and that,- if anything was necessary to be done to renew it, he was ready to do so, and had so notified the plaintiff; and that it was not until plaintiff refused to perform the contract that defendant sought to end it.
Without discussing these various claims or the interesting legal questions which arise, it is apparent that neither of the parties to the contract elected, on or about February 10th, to terminate it. The plaintiff insisted upon his right to continue his tenancy upon the terms of the contract as modified by the oral arrangement made in November ; the defendants denied that the written contract had been modified, but conceded the right of plaintiff to remain under the original written contract. There is nothing to indicate that plaintiff sought to end his tenancy, and to give up his possession, until in July. On the con trary, he asserted his right to remain by the terms of his lease as modified. Taking any view of the case, it is clear the condition did not arise February 10th, or in a reasonable time thereafter, when plaintiff had a right to insist upon defendants’ paying him for the fountain and fixtures. His right to require the defendants to take the fountain depended upon the terms of the written instrument. The time when the election might be made was fixed in“ the instrument. The plaintiff could not enter upon the second year of his tenancy, and continue therein for five months, insisting he was there as tenant, and at the same time hold the defendants liable for the value of the goods. If he has any remedy for what occurred, it is not in this action. See Horner v. Fellows, 1 Doug. 51; Foster v. Rowley, 110 Mich. 63 (67 N. W. 1077); Thompson v. Howard, 31 Mich. 309; Merrill v. Wilson, 66 Mich. 232 (33 N. W. 716); Thomas v. Watt, 104 Mich. 201 (62 N. W. 345).
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Hooker, C. J.
The defendant, being owner of some timbered lands, deeded them to the plaintiff for a consideration of some $2,000. Subsequently the plaintiff, who bought the land for the timber, claimed that in estimating the stumpage a mistake was made, whereby his estimator went upon a different tract, containing a greater amount of timber than the tract that he was looking for; that this mistake was due to wrong directions given to him by defendant’s foreman. He tendered back the deed and de manded the money paid, and this was refused. The plaintiff then commenced this case by attachment. His declaration contains two counts, alleging fraud and deceit on the part of the defendant and claiming damages. To these were appended the common counts. The plaintiff recovered, and defendant has appealed.
Two theories are set up by the declaration, — one that the defendant has practiced fraud and deceit, whereby upon rescission he became liable in damages; the other, that the contract has been rescinded for the fraud or mistake, and the plaintiff has thereby become entitled to recover the consideration. Defendant says that the first are counts sounding'in tort, and, being so, the action as to them is in form ex delicto, which cannot be joined with a count for money had and received to plaintiff’s use. It may be that, upon demurrer, we should be compelled to hold that the special counts are not technically counts in assumpsitj but the charge made by them, and the damages sought to be recovered, might be made and sued for in assumpsit, and, these counts being filed in an attachment case, and joined with other counts clearly in assumpsit, we should treat them as such upon the trial, and therefore hold that there is not a misjoinder for the reason stated. See Hallett v. Gordon, 122 Mich. 567, 573 (82 N. W. 827).
It is said these counts are inconsistent, but we think not. All treat the contract as voidable; some for fraud and deceit, and the others — i. e., the common counts — for either fraud or mistake; and either justifies rescission and recovery of the contract price. It was not the right of the defendant to require an election, as plaintiff might recover on either theory, unless there is something to prevent in the fact that this was an executed contract for the sale of land.
Counsel contend that equity alone has jurisdiction in such cases of rescission. There is a plain distinction between a case where a grantor seeks to rescind a contract which he has executed by giving a deed when the grantee refuses to reconvey, and one where the grantee wishes to rescind and tenders a reconveyance to that end. In the former case the intervention of a court of equity may be necessary, because a court of law cannot afford adequate relief; but such is not the case in the other instance. There are cases which support the right to bring an action for the consideration after a tender of reconveyance of land, and no satisfactory reason for denying the application of the general rule in other cases suggests itself. The case of McKinnon v. Vollmar, 75 Wis. 82 (43 N. W. 800, 6 L. R. A. 121, 17 Am. St. Rep. 178), is squarely in point, and Newton v. Tolles, 66 N. H. 136 (19 Atl. 1092, 9 L. R. A. 50, 49 Am. St. Rep. 593), is analogous.
We are of the opinion that the undisputed proofs show that the parties labored under a misapprehension of fact. Both understood that an attempt was made to ascertain the stumpage on given descriptions of land, and an estimate was made and acted upon by both upon the supposition that it was an estimate of the timber upon those lands. It is proved to a demonstration that it was not. When discovered, plaintiff at once complained, and took steps within a reasonable time to rescind. A verdict might have been directed for the plaintiff, and, as the amount of damages could not be in dispute, there was no necessity for the services of the jury, further than to formally render such a verdict as the court should direct. Hence it is unnecessary to discuss other questions.
We find no error, and the judgment is therefore affirmed.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
{.after stating the facts). Plaintiff’s counsel concede that the instructions upon the questions of the negligence of the defendant and the contributory negligence of the plaintiff were correct, for no question is raised upon them. All the errors assigned relate to the admission of the testimony of the two oculists who examined the eyes of the plaintiff about the time of the accident, and who were permitted to testify as to their condition; to the instructions upon the measure of damages, and the cause of plaintiff’s injuries.
If the cross-walk was in a reasonably safe condition, as required by the statute, or if plaintiff was guilty of contributory negligence, all the other questions become immaterial. We must assume that this jury was one of aver age intelligence. To assume that they would be prejudiced by the testimony of the physicians, or by the charge of the court upon the other branches of the case, would impeach their intelligence. Naturally, the first question for the jury to determine would be, Was the defendant negligent ? If they found this question in the negative, it would be unnecessary for them to consider any other branch of the case. A determination that there was no negligence on the part of the defendant is conclusive of all the other questions in the case, and renders it unnecessary to consider the alleged errors. Kramer v. Gustin, 53 Mich. 291 (19 N. W. 1); Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78); Anderson v. Boom Co., 57 Mich. 216 (23 N. W. 776); Johnston v. Davis, 60 Mich. 56 (26 N. W. 830).
Complaint is made that the judge refused to permit plaintiff to show the condition of the cross-walk prior to 1897. Its condition for two years prior to the accident was certainly sufficient time to establish the implied notice which the law holds sufficient, and this is the sole object of such testimony.
Judgment affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Per Curiam.
Defendant was convicted of taking indecent liberties with a ten-year-old girl by a trial judge sitting without a jury. MCLA § 750.336 (Stat Ann 1954 Rev § 28.568). The victim testified that defendant, while visiting in her parents’ home, touched her breasts, disrobed her, forced her to lie down, positioned himself on top of her, and., made overtly sexual movements while reclining thus. An older sister of the victim, returning home from shopping, found defendant and the victim together in a bedroom. As the older sister looked into the bedroom, the victim was pulling up her undergarments and slacks. The complainant was unable to testify whether defendant had effected genital penetration during the assault. A policewoman who interviewed the victim two days after the incident gave testimony which was largely cumulative of that given by the complainant. However, the policewoman related to the court that the child told her that defendant choked her during the assault and that he did, indeed, accomplish a penetration.
Defendant assigns as error the admission of the policewoman’s hearsay testimony as to what the victim told her regarding the incident. In sex offenses, hearsay statements made by a victim of tender years to a witness who subsequently testifies to the content of these declarations are admissible as part of the res gestae of the crime if the delay from the time of the incident to the time of the conversation is adequately explained. People v. Baker (1930), 251 Mich 322; People v. Davison (1968), 12 Mich App 429. However, we feel it is unnecessary to determine if this concededly hearsay testimony is admissible as a segment of the continuing res gestae of the crime; we hold that the error, if any, is harmless. The admission of hearsay is rendered harmless when the declarant of the out-of-court statement testifies to and substantiates the incompetent evidence. People v. Hallaway (1970), 25 Mich App 604. The testimony of the policewoman was largely cumulative of that of the victim. Where inadmissible hearsay of this nature is presented to a trial court sitting alone, we can assume that its verdict rested upon evidence properly offered and not upon the inadmissible testimony. People v. Davison, supra, at 433.
Further, defendant attacks the constitutionality of the indecent liberties statute as unduly vague. We cannot accept this contention. The legislation penalizes conduct that is of such character that the common sense of society regards it as indecent and improper. People v. Hicks (1893), 98 Mich 86; People v. Szymanski (1948), 321 Mich 248; People v. Heady (1933), 265 Mich 317; People v. Visel (1936), 275 Mich 77; People v. Lakin (1938), 286 Mich 282; People v. Brandt (1969), 18 Mich App 267; People v. Dexter (1967), 6 Mich App 247; Armstrong v. Bannan (CA 6, 1959), 272 F2d 577. A penal statute, proscribing sexually-offensive, anti-social conduct, is not unconstitutionally ambiguous because it fails “ * * * to graphically outline the acts encompassed by the crime * * * ”. People v. Green (1968), 14 Mich App 250, 251.
Finally, defendant took the stand to deny the allegations of the complainant. The prosecutor on cross-examination and for the purposes of testing defendant’s credibility brought defendant’s past convictions to light. It remains the law of Michigan that, whenever a defendant chooses to testify, his past convictions may be used by the prosecution to impeach his credibility. MCLA § 600.2158 (Stat Ann 1962 Rev § 27A.2158); People v. DiPaolo (1962), 366 Mich 394; People v. Cybulski (1968), 11 Mich App 244; People v. Roney (1967), 7 Mich App 678.
The final allegation of error is that the trial court failed to make specific findings of fact at the conclusion of the case. While GrCR 1963, 517.1, requires the court in a nonjury case or in a case tried with an advisory jury to make findings of fact and state separately its conclusions of law thereon, this court rule does not apply to criminal cases.
Affirmed.
The prosecution attempts to justify the two-day lag in reporting the complaint by the victim by alluding to the fact that the victim told the policewoman that defendant said he would choke her if she “hollered”.
That the policewoman indicated that defendant entered the victim is not, in and of itself, significant since this fact need not be proven in an indecent liberties prosecution. The testimony as to penetration cannot be said to have influenced the outcome.
Defendant also challenges the statute as unconstitutionally discriminatory; we find this totally without merit. While the legislation originally punished the misconduct of males only, the legislation was amended in 1954 to include females. PA 1954, No 51, § 1. Defendant’s prosecution is under this later, amended version.
See also, People v. McMurchy (1930), 249 Mich 147, 178, 179, in which it is noted that some crimes by their very nature must necessarily be couched in broad language so that the legislation can accomplish its end of proscribing socially undesirable conduct. No legislation of this genus could ever possibly recite a litany of wrongdoing for which one remained criminally responsible. | [
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] |
J. H. Gillis, J.
Defendant, charged with second-degree murder, was found guilty by a jury of manslaughter (MCLA § 750.321 [Stat Ann 1954 Eev § 28.553]) and from his conviction and sentence he appeals.
The death occurred in defendant’s ex-wife’s apartment and resulted from a single bullet which entered the center of deceased’s forehead. On the day in question, defendant went over to his ex-wife’s apartment in which also resided deceased and her baby. His former wife left the apartment and upon her return, defendant met her at the rear door and asked her not to go in.
Two police officers were sent to the dwelling in question on a radio call which indicated a shooting may have occurred. At the trial one officer testified that he entered the apartment, observed deceased in a pool of blood on the floor, and then saw defendant standing in the doorway to the kitchen. On direct examination the officer testified he then had a “conversation” with the defendant after which he placed him under arrest. On cross-examination defense counsel asked the officer whether defendant had told him that he was not in the same room as the deceased when the shot was fired. The witness answered affirmatively. Counsel then asked if defendant had indicated that he was in the bathroom at the time he heard the shot. Again, the officer’s response was in the affirmative. On redirect examination the prosecutor asked the witness to recount the complete conversation. The officer then testified that defendant stated he was sitting on the toilet and that the deceased had asked him how to load the gun. He said he had replied that the gun was already loaded. On recross-examination it was admitted by the officer that defendant made the above statements in response to his question of “what happened?” Defense counsel thereupon asked that the officer’s testimony regarding defendant’s statement be stricken from the record and asked for a Walker hearing as to the voluntariness of defendant’s statement. People v Walker (on rehearing, 1965), 374 Mich 331. At said hearing the officer indicated that upon entering the apartment and seeing deceased he asked the defendant what the deceased’s name was. After obtaining this information he immediately asked, “What happened?” The officer further testified that he considered defendant a suspect as soon as he saw the body on the floor. The trial court denied the motion to strike the testimony.
The controlling issue on this appeal is whether the trial court committed reversible error by allowing the prosecutor on direct examination of the officer to make reference to defendant’s conversation with said officer and subsequently on redirect examination to elicit defendant’s entire statement where there was no showing that the defendant had been informed of the Miranda warnings.
In Miranda v. Arizona (1966), 384 US 436, 444 (86 S Ct 1602, 1612; 16 L Ed 2d 694, 706; 10 ALR3d 974), the United States Supreme Court stated:
“Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”
The Court in Miranda then went on to state that:
“By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. ”
The Miranda opinion further pointed out (384 US at 477, 478 [86 S Ct at 1629, 1630; 16 L Ed 2d at 725, 726]):
“Our decision is not intended to hamper the traditional function of police officers in investigating crime # # # When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-ihe-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever in formation they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.” (Emphasis supplied.)
It is quite obvious that any questioning anywhere by a police officer generates some pressures and anxieties. However, before defendant’s contention can be afforded substance under Miranda, the question that must be answered is whether he was in custody or deprived of his freedom of action in any significant way when the officer asked “What happened?” Therefore, it is necessary for this Court to determine under what circumstances the statements of defendant were made.
The question asked by the officer was not the product of a process of interrogation aimed at eliciting incriminatory statements from one whom an investigation had focused upon. Instead, it was a situation of an officer reacting naturally and spontaneously to the scene before him. It was a routine means of commencing an investigation and not an inquiry made pursuant to an already-launched investigation. The defendant had not as yet been placed under arrest; neither was he in foreign surroundings nor in a “police-dominated atmosphere” as stressed in Miranda.
In an almost identical factual situation the Court of Criminal Appeals of Tennessee found that the Miranda rights were unnecessary. Ballard v. State (Tenn Crim App, 1969), 454 SW2d 193 (and cases cited therein). In that case a young woman was shot in the neck and killed instantly. She was lying on the bed in an upstair’s apartment bedroom of the defendant. The first officer to arrive went to the bedroom and there saw defendant standing in the middle of the floor. The gun was at the foot of the bed. The officer asked him what happened and the defendant replied, “I shot her.” The court held that the statement was properly admissible. See also People v. Robinson (1970), 22 Mich App 124; People v. Patton (1968), 15 Mich App 198.
Consequently, we conclude there was no violation of Miranda in the case before us.
Defendant also asserts that it was reversible error for the trial court to grant the jury’s request to have a blackboard brought to the jury room during deliberations. The blackboard contained a diagram of the location of the shooting as drawn by one of the prosecution witnesses. The following statement is taken from the record:
“The Court: Let the record indicate that the jury is deliberating and the defendant is not in court but Mr. O’Connell is here and assistant prosecuting attorney and the jury has made a request for the blackboard that was used to outline the place of the alleged occurrence, the drawing of the apartment, made by the witness Bulgin and there are some figures on there which were added by defense counsel O’Connell. Now, does counsel feel it would help the jury in arriving at a verdict to give them this particular blackboard without the lines drawn?
“Mr. Galligan: I have no objection.
“Mr. O’Connell: We have no objection to them seeing it since they requested it, your Honor.
“The Court: All right. We will let them take it. It is not in evidence. They have seen it. It may aid them in arriving at a verdict.”
The trial in this cause commenced on September 23, 1970, and concluded on September 29,1970. During much of this time the blackboard sat in front of the jury. In light of defense counsel’s consent and the fact that the jury had seen it for several days, there is no reversible error here. We fail to see how the defendant could have been prejudiced in any manner.
Defendant’s other assignments of error are without sufficient merit to warrant discussion.
Affirmed.
V. J. Brennan, P. J., concurred.
The nature of the conversation between the officer and defendant was not solicited by the prosecution on direct examination.
"This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.” (Footnote of Supreme Court.)
The similarity extends even to the point where a police officer testified on cross-examination that there were two “suspects” at the house. | [
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Moore, J.
The following statement of facts, taken from the brief of the attorney general, does not materially differ from that contained in the. brief of counsel for relator :
At the county treasurer’s sale in October, 1886, relator purchased lot 1 of block 5 and lot 7 of block 4 of the recorded plat of the village of Iron River for the.taxes of 1883 and 1884. He purchased the same lands at the auditor general’s office in August, 1888, for the taxes of 1885, and at the county treasurer’s sale in October, 1888, for the taxes of 1886, and in May, 1890, for the taxes of 1887.
It appears that in 1878 relator located 80 acres of land with certain scrip issued by virtue of a decree rendered on the 16th day of December, 1873, by the Supreme Court of the United States, in section 26, in township 43 N., range 35 W., and received a certificate in full satisfaction thereof under date of August 1, 1878. In the same year Alexander MacKinnon located 160 acres of land under certain scrip issued by virtue of a decree of the Supreme Court of the United States rendered on the 28th day of January, 1878, in section 26, township 43 N., range 35 W., and received a certificate in full satisfaction thereof. In May, 1880, the relator executed to Alexa'nder MacKinnon a quitclaim deed purporting to convey to him an undivided one-half of the 80 acres located by relator, and Alexander MacKinnon at the samé time executed and delivered to relator a quitclaim deed which purported to convey to the relator an undivided one-half of the lands which had been so located and entered by Alexander MacKinnon; which deeds were duly recorded in the office of the register of deeds of the county in which the lands were located. In 1881 Alexander MacKinnon and the relator executed and recorded in manner and form as required by law a town plat embracing the lands so located and entered by them, which plat was named and is known as the “Plat of the Village of Iron River,” and of which said lot 1 of block 5 and lot 7 of block 4 of the recorded plat of the village of Iron River is a part.
Relator alleges that, after the relator and Alexander McKinnon located the lands in question, their right to locate said lands with said scrip was duly contested before the commissioner of the general land office at Washington, and an appeal from the decision of said commissioner was taken to the secretary of the interior; but in this case the fact of such contest is immaterial, because the final decision rendered by the secretary of the interior fully sustained the right of relator and Alexander MacKinnon to locate the lands with the scrip. It also appears that, where lands were located with the aforesaid mentioned scrip, it was thought the laws of the United States made no provision for issuing a patent to the persons locating such lands thereunder, and patents for the lands were not issued until sometime in the year 1895, Congress having passed an act of May 30, 1894, authorizing the issuing of such patents.
By virtue of the above-mentioned quitclaim deeds the relator and Alexander MacKinnon became the joint owners of the lands located by them as aforesaid, and exercised absolute ownership over them, and executed and recorded-said plat of the village of Iron River, and were exercising such ownership at the time the said lots were assessed for the taxes of 1883, 1884, 1885, 1886, and 1887; and it does not appear but that th°e said relator is still the owner of an undivided one-half of said lots as such ownership existed at the time of his said purchases for the taxes in question. On the theory that said lands were not subject to taxation for the years in question as real estate, and that as such purchaser relator is entitled to a cancellation of said sales by the auditor general, and a refunding of the amount paid, together with the interest théreon, a writ of mandamus is prayed for.
The respondent denies that the relator is entitled to the relief prayed for. The relator bases his right to relief solely upon the theory -that the lands in question were not subject to taxation as real property. His counsel concedes that the interest in said lands which the MacKinnons held jointly was subject to taxation as personal property under section 3 of the tax law of 1883, but that it could not be taxed as real estate, and therefore relator is entitled to have his money refunded.
A great many questions are raised which we do not deem it necessary to discuss. When the relator and Alexander MacKinnon located these lands, they paid for them in full, and obtained the full equitable title. Nothing stood in the way of their having legal title, except the mere issuance of a patent, which, when issued, would relate back to the time when they obtained their certificates. They entered into possession of these lands, and treated them as though they were the absolute owners of them. They platted them, and recorded their plat. It is impossible to read this record without concluding that not only the assessing officers, but the relator and Alexander MacKinnon, supposed the interest the MacKinnons had in the lands was property assessable as real estate. Their interest was no more real or valuable whether it was called real estate or personal property. Had it been assessed as personal property, if the assessor had done his duty, it would have been assessed at the same amount for which it was assessed as real estate. The MacKinnons being the owners of this property, it was their duty to pay taxes upon it. The law provides for a board of review, before whom the property owner may appear, if he desires, and ask for a change in his assessment.- Section 18 of the tax law of 1883 provides, among other things, as follows :
“They shall correct all errors in the names of persons and the descriptions of property upon such roll, and in the assessment and valuation of property thereon, and they shall cause to be done whatever else may be necessary to make said roll comply with the provisions of this act.” Act No. 9, Pub. Acts 1883.
Practically the same provisions are found in all of the later tax laws. If the MacKinnons had appeared before this board of review, and suggested their assessment should be changed from a real-estate assessment to a personal-property assessment, is there any doubt as to the power of the board to act ? It is not made to appear they did this. Because the property was not assessed as personal property, but was assessed as real estate, it is now, after the lapse of many years, sought to avoid the payment of any taxes thereon, and to have the money refunded for taxes which the relator at one time thought ought to be paid. This claim does not appeal to our sense of justice, nor accord with our idea of the duty the property owner owes to the State, which makes his person and property secure. It has been held many times in this court that the issuance of the writ of mandamus is not a matter of right, but is a matter of discretion. Before it should issue, it should be made to appear that justice requires its issuance. Tennant v. Crocker, 85 Mich. 328 (48 N. W. 577), Van Akin v. Dunn, 117 Mich. 421 (75 N. W. 938).
The writ is denied, with costs.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.„ | [
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] |
Moose, J.
This case was commenced in the circuit court to recover for injuries received from falling through, an open trapdoor. It was tried before a jury. The plaintiff recovered a judgment of $2,500. The case is brought here by writ of error.
The defendant company is engaged in the business of manufacturing chemists. In the latter part of 1899 and early in 1900, it moved its business from the west side of the city of Detroit to the corner of Bellevue and Jefferson avenues. The new laboratory covered nearly a block. It was three stories high, and built around a court. At the time of the accident plaintiff was 29 years old. Prior to the accident he had worked 4 or 5 years for defendant company, running two hydraulic presses. He was sent to work at the new laboratory Friday, January 19th. He worked a few hours in the tablet department. The balance of that day and on Saturday he worked in the pill-finishing room. The following Monday he was set to work in the elixir room, unpacking and assorting jugs, and continued to work there until the time of the accident, which was on the morning of Wednesday. At this time, the defendant was still engaged in moving, and did not get fully settled in its new quarters until some weeks later. The version of the plaintiff of the transaction is substantially as follows:
“ As we unpacked the bottles, we put the excelsior, shavings, and mats into a large, rough, board box. I brought it in from the courtyard. This box was about 4 feet long, 3 feet broad, and 4 feet high. We put about 100 or 150 pounds of sawdust, shavings, and excelsior into that box. The shipping room is in the same side of the building, closer to Jefferson avenue. It might be a couple of hundred feet from the door coming out of the fluid-extract room to the door going into the shipping department; the doors being on the same side of the court. The door to the fluid-extract room is about on a level with the yard. Outside of the door leading into the shipping room there is a platform. There are two doors going into the shipping room. This platform might be about 90 or 100 feet long, and about 9 yards wide. It is 3 or 4 feet high,— high enough for a wagon to back up against, and load and unload straight to the wagon. It was used for that purpose. At the south end of the platform there are steps leading up to it. At the north end there is a slope about 10 or 15 feet long. There was no other way of getting into the shipping room from the fluid-extract department except through these doors.
“When we got the box filled with shavings and excelsior, Callan told Olschefski and me to take it to the shipping room. He said he could use it over for repacking some stuff. I had never been in the shipping room up to that time, nor had I ever been on this platform outside of the shipping room. Olschefski took the front end of the box, taking hold of it at the bottom, and I took hold of the back end. His back was towards me. I got hold of the box underneath. There were no handles upon it, nor was there any way of taking hold of it except to take hold of the bottom. I lifted it up the length of my arms, and walked straight along. The top of the box came right up in front of my face. I could not see over it. When we came out of the fluid-extract room we went along the yard until we got to the sloping end of the platform, which we went up. The platform was piled up with cases of drugs and barrels. They were right on the inside of the platform, piled along by the wall. They extended out far enough from the wall so as just to leave a passageway to walk on. They were along the whole platform, except the space opposite the door, which was left vacant. This passageway was about 3 or 4 feet wide. When we walked up this sloping end of the platform, we went along the passageway until we got as far as the trapdoor. That might be about 15 feet from the end of the platform. We had not got as far as the door opening into the shipping room. By the ‘trapdoor’ I mean a hole cut in the platform. It was about 3 feet square. It was on the outer edge of the platform, — right on the passageway where we were walking. There was no cover over this hole. When I came to this hole I fell right into it, — down into the basement. That was the first time I ever saw the hole, — when I was taken out of it. I did not see it when I fell into it. I walked along with the box, just as I was walking, and the first thing I knew I dropped right into it. I fell down to the bottom. It might be 5 or 6 feet deep. There was a cellar under this platform, for shavings, packing, and stuff, and a concrete floor. I did not know that this hole was there when I stepped into it.”
He received injuries which are claimed to be permanent.
Olschefski testified:
“ It was a box that was made to pack 2 gallon bottles in. It was 1 foot 6 inches wide by 3 feet long and 2 feet deep. I nailed handles on each end, so that we could carry it more easily. They were made out of boards, and stuck out about 2 feet at each end. I nailed them on the box about 10 days before the accident happened. I was working with that box every day, — using it to carry shavings out in.”
Other witnesses testified to about the same thing. Testimony was given tending to show there was room enough, because of the projecting handles, so that plaintiff could see, between the end of the box and his body, where he was going. This is denied on the part of the plaintiff. Olschefski testified that he warned the plaintiff of the existence and approach to the hatchway as they passed along, carrying the box. His testimony is: “I told plaintiff to look out for it. Those are the words I used.” Plaintiff denies that he was warned. The jury were charged:
“If the plaintiff was informed by Olschefski, who accompanied him, of the existence of this hole, then he had all the information that he could have had from the defendant itself, and consequently there could be no recovery.”
Counsel contend negligence was not shown, and say:
“It is beyond all controversy that the plaintiff knew, or had ample warning, that things were not in order, and that at any moment and at any place he was likely to find some article where it did not belong, some portion of the building unfinished, or some place not in a condition justifying heedlessly walking through or about it. * * * The situation of the plaintiff was like that of an employe engaged in the construction or reparation of a building. Everything was in a formative condition, or in a state of transition. The employés and their superiors were each and all engaged in an effort to bring order out of the confusion into which everything had been thrown by reason of the removal of the laboratory and its incidents. The very condition of things admonished each employé that he must not take anything for granted. The rule of duty to furnish a safe place has no application here. The place was as safe as places of this sort, or under such circumstances, usually are. Andre v. Elevator Co., 117 Mich. 560, 563 (76 N. W. 86). * * * It was the duty of all the employés engaged at the new laboratory, under the conditions presented at the time, to take note seasonably of things or conditions which ordinary observation would bring to their attention, and which they could see as well as the master could see them. Hatchways in laboratories and factories are common. They are there for the purpose of utility and convenience. To be used they must be opened. An employé cannot complain of their existence, or of their being left open from time to time, when they are so situated that in broad daylight they will be discovered with .the slightest attention. As well might an employe complain when, through heedlessness, he falls over a box of drugs or a carboy of acid.» He might claim that he was unaware of their presence on a platform, and was not told that they were there. But the master would have the right to assume that he and other employés ¿working with him would use the senses with which nature had endowed them.”'
As applied to the facts of this case, we think this contention cannot be sustained. The platform was not in process of construction. It was apparently completed. It was used for unloading goods, and as a way traveled by the employés. The plaintiff had never been there before. He was not bound to assume that, upon a platform of this character, he would find an open trapdoor. He had no occasion to suppose he was likely to drop into an opening if he did the work he was set to do. Trapdoors are dangerous openings, and, when open, should be properly guarded. See Engel v. Smith, 82 Mich. 1 (46 N. W. 21, 21 Am. St. Rep. 549); Pelton v. Schmidt, 104 Mich. 345 (62 N. W. 552, 53 Am. St. Rep. 462). The case comes within the principle announced in Brown v. Railroad Co., 118 Mich. 205 (76 N. W. 407), where it was said:
“The plaintiff did not know this. He had been but a short time employed on a boat, and was wholly unacquainted with freight boats’, or the custom of leaving the hatchways open on such boats. He was employed as an oiler of engines on the Ann Arbor. He was taken away from his accustomed work, and, if his testimony be-true, put into a dangerous place, without warning ok caution, by one who stood in place of master. It is true that the rule is well settled that the servant assumes all the risks usually incident to his employment, but this rule cannot be invoked in the present case. His usual work, for which he was employed, was that of oiler, and that on another and different kind of boat. He was taken from that work, and put to do work of another kind. Plaintiff had the right to assume that he would not be put in a position of danger in going upon the boat to aid in fitting her out. Harrison v. Railroad Co., 79 Mich. 409 (44 N. W. 1034, 7 L. R. A. 623, 19 Am. St. Rep. 180); Engel v. Smith, 82 Mich. 1 (46 N. W. 21, 21 Am. St. Rep. 549).”
It is urged that, if the record discloses evidence of negligence on the part of any one other than the plaintiff himself, it is that of a fellow-servant, not that of the principal ; that Olschefski was acting as the eyes for himself and plaintiff as well,' and, inasmuch as he saw the trapdoor, it was his duty to warn the plaintiff, and, if he did not, his failure to do so was the intervening cause of the injury, and the defendant is not liable. As before stated, this is not the case of an employé who knew the danger. Plaintiff had never before been on this platform, and did not know of the existence of the trapdoor. The language used in Cone v. Railroad, Co., 81 N. Y. 206 (37 Am. Rep. 491), is instructive:
“As between the plaintiff and the defendant, it was the duty of the latter to furnish its employés, for use in the prosecution of its business, good and suitable machinery, and keep it in repair. Wright v. Railroad Co., 25 N. Y. 562; Laning v. Railroad Co., 49 N. Y. 521 (10 Am. Rep. 417); Flike v. Railroad Co., 53 N. Y. 549 (13 Am. Rep. 545); Corcoran v. Holbrook, 59 N. Y. 519 (17 Am. Rep. 369). It was also its duty to furnish, for the management of such machinery, careful and trustworthy servants ; and, if these conditions were fulfilled, the plaintiff, although'injured by the negligence of his fellow-servant, could maintain no action against their common principal. Wright v. Railroad Co., supra; Coon v. Railroad Co., 5 N. Y. 492. But that is not the case here. The plaintiff was not injured by the negligence of his co-employé while managing good and suitable machinery. The defendant failed to supply machinery of that character. * * * Therefore the defendant’s contention-comes to this: ‘We concede that we failed in our duty. We did not supply a suitable machine. ' But our servant, the engineer, could, notwithstanding, have so managed that the defect should cause no harm.’ If this doctrinéis accepted, it will loosen the rule of responsibility, which now bears none too closely upon corporate conduct. It will seldom happen that unusual care on the part of an engineer would not prevent an accident. In this case he might have opened the cocks or blocked the wheels, or, with extreme care, so separated the engine from its train that the two should occupy separate tracks. It now seems that it would have been well to have done one or the other of these things. His omission to do so may have been negligence towards the defendant, but it does not remove the responsibility which attached to it, to furnish good and suitable machinery, or place it upon a subordinate, whose duty is to be measured by the degree of skill necessary for its management, and who is not called upon to make good the want of corporate care and attention.”
In Grand Trunk R. Co. v. Cummings, 106 U. S. 700 (1 Sup. Ct. 493), it is said:
“In the instruction which was given we find no error. It was, in effect, that, if the negligence of the company contributed to (that is to say, had a share in producing) the injury, the company was liable, even though the negligence of a fellow-servant of Cummings was contributory also. IE the negligence of the company- contributed to, it must necessarily have been an immediate cause of, the accident, and it is no defense that another was likewise guilty of wrong.”
See, also, Ellis v. Railroad Co., 95 N. Y. 546; 7 Am. & Eng. Enc. Law (1st Ed.), p. 828; Town v. Railroad Co., 84 Mich. 214 (47 N. W. 665); Sheltrawn v. Railroad Co., 128 Mich. 669 (87 N. W. 893).
Can it be said that the action of the company in constructing this trapdoor, and leaving it open, in the line which must be traveled by plaintiff if he complied with the direction given by the foreman, without informing him of its existence, or putting a guard about it, did not contribute to his injury ? It cannot be said it did not.
The judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Montgomery, J.
This is certiorari to review a peremptory writ of mandamus issued by the circuit court on petition of the.township of Grosse Pointe, requiring the Detroit, Lake Shore & Mt. Clemens Railway and the Detroit & Lake St. Clair Railway, two Michigan corporations, to comply with certain conditions of a franchise granted by the relator to the Detroit, Lake Shore & Mt. Clemens Railway, its successors and assigns, and accepted by said railway. By virtue of 2 Comp. Laws, § 6448, the Detroit & Lake St. Clair Railway had purchased the railroad, franchise rights, and other property of the Detroit, Lake Shore & Mt. Clemens Railway, and was operating said railroad. The writ commands both respondents to maintain certain electric lights during the hours of darkness, while actually engaged in running cars, and to run a car over said line daily, except Sundays, at such an hour that passengers thereon may make convenient connection at the terminus of said railway, in Grosse Pointe Farms, with a car on the Citizens’ line, reaching Woodward avenue, in Detroit, at 7 o’clock a. m., local time. The Detroit & Lake St. Clair Railway contends that the writ of mandamus should not have issued against it — First, upon the ground that the franchise or license of a town board is a mere contract, and “does not rise to the dignity of a statute,” and therefore that the duty to perform the acts required by the writ is not a duty imposed by law, but a mere contractual obligation; and, second, upon the ground that it is not shown to have accepted the conditions of the franchise.
In City of Lansing v. Lansing City Electric Ry. Co., 109 Mich., at page 127 (66 N. W., at page 951), it was held that mandamus is the proper remedy to compel a street-railway company to comply with a city ordinance requiring it to pave between its tracks. It is sought to distinguish that case from the present on the ground that the ordinance in that case had the force of law, while it is contended that in the present case the agreement between the township authorities and the railway company is a mere contract, which will not he enforced by mandamus. We see no reason for this distinction. The statute (2 Comp. Laws, § 6446) provides, as to cities and villages:
“Any street-railway corporation organized under the provisions of this act may, with the consent of the corporate authorities of any city or village, given in and by an ordinance or ordinances duly enacted for that purpose, and under such rules, regulations, and conditions as in and by such ordinance or ordinances shall be prescribed, construct, use, maintain, and own a street railway for the transportation of passengers in and upon the lines of such streets and ways in said city or village as shall be designated and granted from time to time for that purpose in the ordinance or ordinances granting such consent; but no such railway company shall construct any railway in the streets of any city or village until the company shall have accepted in writing the terms and conditions upon which they are permitted to use said streets.”
As to townships, the provision is as follows:
“Any company organized under the provisions of this act may construct, use, maintain, and own a street railway for the transportation of passengers in and along the streets and highways of any township, upon such terms and conditions as may be agreed upon by the company and the township board of the township, which agreement, and the acceptance by the company of the terms thereof shall be recorded by the township clerk in the records of the township.”
In effect, these two provisions are not dissimilar. In either case the company derives its authority to occupy the street or highway from the statute. The only limitation is that it first obtain the consent of the local authorities ; and in either case, when the consent is obtained, the conditions are as binding as though imposed in the statute.
As to the contention that the purchasing company is not liable to be proceeded against in the same manner as its grantor was, we think it unsound. The only rights derived are by purchase, it is true, but it seems clear that such a purchasing company takes the road subject to all the obligations resting upon its grantor. See 2 Comp. Laws, § 6448.
The writ of mandamus was properly directed to the Detroit & Lake St. Clair Railway. As to the Detroit, Lake Shore & Mt. Clemens Railway, we think the situation is different. This company sold out to its co-respondent, and is not in position to comply with the requirements of the writ. The order as to this company is reversed, and, as to the Detroit & Lake St. Clair Railway, affirmed. No costs will be awarded to either party.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
{after stating the facts). The defendant Grace Hospital is a charitable institution, organized and maintained in the same manner as Harper Hospital of Detroit. The liability alleged against defendant in this casg is the same as that alleged in Downes v. Harper Hospital, 101 Mich. 555 (60 N. W. 42, 25 L. R. A. 602. 45 Am. St. Rep. 427). That case controls this as to the liability of Grace Hospital, and the court properly directed a verdict for the defendant hospital.
The trustees of the hospital are laymen. The rules of the hospital provide for a medical board of 25 physicians and surgeons of the city of Detroit, who have charge of all the surgical matters in the hospital. They examine applicants for appointment upon the medical staff, and recommend such appointments to the trustees. Dr. Fletcher was appointed by the trustees upon the recommendation of the medical board. Dr. Fletcher was first appointed, after his examination, junior assistant, where he served six months; then senior assistant, where he served another six months; and was at the time of the operation serving as house surgeon. He was a graduate of a medical college of good standing. No complaint whatever is made by any person that he was inexperienced or incompetent. No intimation had ever been made by any one to defendant trustees that he was incompetent to fill the position. The trustees, who are laymen, must naturally leave the competency of their physicians and surgeons to the judgment of those competent to determine such matters, since they are not qualified to make the determination themselves. They performed their full duty towards the patrons of the hospital in appointing a competent board to examine applicants, and in acting upon its report by the appointment of Dr. Fletcher. The testimony on the part of the superintendent of the hospital, Mr. Putnam, who was a witness for the plaintiff, was that, as a surgeon, Dr. Fletcher was considered one of the most competent young men they ever had in the hospital. No charge of incompetency had ever been made against him. The trustees were therefore not negligent in retaining him. Fwen if this were not a charitable institution, the full duty of the trustees in employing and retaining Dr. Fletcher was performed. It is therefore unnecessary to determine, as it was in Downes v. Harper Hospital, whether, for some active wrong or act of negligence on the part of the trustees, recovery might be had by a patient against them.
There is no evidence of negligence on the part of Dr. Fletcher and the attending physicians. Dr. Fletcher was in the service of the United States army as a surgeon, in the Philippines, at the time of the trial, and was not a witness. Dr. Haggerty and Dr. Knight were present, and both testified that the amputation was performed, in their judgment, at the proper place, giving their reasons why. No charge against these physicians is made. Dr. Hare testified that he would have attempted to save the arm lower down, near the wrist, and possibly the thumb, but admitted that the rest of the hand should have been amputated. On direct examination, to a question whether it would have been possible to perform the operation so as to save any portion of the hand, he replied:
“I think so; I would have tried it.
“ Q. Could they have saved the thumb ?
“A. I think so.”
After testifying further on direct examination as to what he would have done, he said it was a matter .of individual judgment. On cross-examination he said:
‘ ‘ I would not consider it negligent to do what the physicians did. * * * Different doctors have different views. Medical and surgical men of equal experience differ in their judgment in such cases. * * * The operation was a good job.”
The sole testimony as to the propriety of attempting to save more of the boy’s arm in the amputation rests entirely upon this testimony of Dr. Hare. We do not think this testimony was of any probative force to show negligence on the part of the attending surgeons, or to justify the submission of the question of malpractice to the jury. The operation was properly performed; the only differ-' ence in judgment being whether the arm might, with safety, have been amputated nearer the wrist.
Judgment affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
R. B. Burns, J.
Defendant was convicted of unarmed robbery. MCLA § 750.530 (Stat Ann 1954 Rev § 28.798). On appeal he claims that the trial judge erred by not dismissing the case as his arrest was illegal, and that it was reversible error not to suppress from evidence a cigarette lighter.
The complainant, Jessie Tate, testified that the defendant grabbed him by the arm and forced him into a hallway of an apartment building. The defendant then proceeded to take everything out of his pockets, including $73.90, a pocket knife, and a lighter with the initials “J T” on it.
John E. W. Jones testified that on or about the same day the defendant asked him if he could use a color TV set, and offered to sell him one for $125. Jones paid the defendant $40, and when the defendant and his partner left him he became suspicious and followed them. The two men ran away. Two weeks later Jones saw the defendant, went to his truck, secured a rifle, confronted the defendant, and forced him to walk to the police station. At the police station the police arrested the defendant on Jones’s complaint.
During an inventory of defendant’s possessions the police officer discovered a lighter with the initials “J T”. The complainant was called and identified the defendant in a lineup and the defendant was charged in the present case.
At the close of the people’s case the defendant moved to dismiss the case because of the illegal arrest and to suppress the lighter from evidence because of unlawful search and seizure. Both motions were denied.
Defendant is correct that neither of the arrests were valid. MCLA § 764.16 (Stat Ann 1954 Rev § 28.875) provides:
“A private person may make an arrest—
“(a) For a felony committed in his presence;
“(b) When the person to be arrested has committed a felony although not in his presence;
“(c) When summoned by any peace officer to assist said officer in making an arrest.”
Jones did not have the authority to arrest the defendant. Larceny by conversion under $100 is a misdemeanor. MCLA § 750.362 (Stat Ann 1954 Rev § 28.594).
The police officer arrested the defendant on the strength of Jones’s verbal complaint. A police officer does not have the authority to arrest a person without a warrant for a misdemeanor not committed in his presence. MCLA § 764.15 (Stat Ann 1954 Rev § 28.874).
An illegal arrest does not make all subsequent proceedings void. When a defendant has been arrested without a warrant or illegally, that fact cannot be considered at trial where it appears the arrest was followed by a complaint and warrant on which the defendant was held for trial, or, where the defendant was regularly bound over to the circuit court for trial. Even though a defendant is illegally arrested, he cannot say that he should not be tried at all. People v. Miller (1926), 235 Mich 340; People v. Nawrocki (1967), 6 Mich App 46.
Defendant did not move to suppress the lighter from evidence prior to trial, nor did he object to the introduction of the lighter in evidence. He waited until the people had presented their case and closed their proofs before he moved to suppress the lighter from evidence.
MCLA § 769.26 (Stat Ann 1954 Rev § 28.1096) provides that no verdict shall be set aside, reversed, ór a new trial granted on grounds of improper admission of evidence unless in the opinion of the court it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.
In this case there was no miscarriage of justice.
Affirmed.
J. H. Gillis, J., concurred. | [
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Per Curiam.
Plaintiff appeals from the order of the trial judge granting an accelerated judgment on the ground that her notice of claim, although timely filed within the prescribed period, was not verified. MCLA § 691.1406 (Stat Ann 1969 Rev § 3.996[106]).
As a matter of judicial policy, courts favor a liberal construction of notice requirements and have not denied relief when the notice may be reasonably interpreted as in substantial compliance with the applicable statute. Swanson v. City of Marquette (1959), 357 Mich 424; Jackson v. City of Detroit Board of Education (1969), 18 Mich App 73; Citizens Casualty Co. v. City of Detroit (1967), 8 Mich App 379; Kustasz v. City of Detroit (1970), 28 Mich App 312; Meredith v. City of Melvindale (1969), 381 Mich 572.
Reversed and remanded for proceedings not inconsistent herewith. Costs to plaintiff. | [
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O’Hara, J.
Defendant was convicted by a jury in Recorder’s Court of the offense of first-degree murder committed during perpetration of an armed robbery. MCLA 750.316; MSA 28.548.
At approximately 10:30 p.m. on September 27, 1969, defendant, using the name of an acquaintance, gained entrance to the house of George Baker. Upon entry he pointed a pistol at Baker and demanded his wristwatch and diamond chip ring. At this time Baker’s roommate, Kenneth D. Scruggs, entered the room. Defendant shot and killed him.
Appellate counsel interposes the ingenious defense that defendant’s conviction of first-degree murder must be reversed because the statute under which he was prosecuted for felony murder has, as one of its elements, the common-law offense of robbery. This offense, he asserts, does not exist in Michigan since it has been superseded by statute. He cites venerable authority in support of his premise, People v. Calvin, 60 Mich 113 (1886). True, Calvin (at p 120) does contain this language: “We must consider the common-law crime superseded by the statute * * * ”.
Thus, resourceful counsel argues, the trial judge was obligated to charge that malice, as legally defined, had to be found by the jury before defendant could be convicted of murder in the first degree. This is exactly what the trial court did not charge. He charged rather that if the jury found the killing occurred in the perpetration of, or attempt to perpetrate, a robbery, the jury need not find malice, intent, or deliberation, because in this circumstance the statute presumes those necessary elements.
Defendant’s argument at first blush seems unassailable. There is no common-law offense of robbery in this state, so the charge as given was fatally defective. Counsel however apparently overlooked another statement in Galvin which decimates this argument.
“The question now arises whether the common-law offense of robbery exists in this State, in view of the statutes above noted: [Citations omitted]. The information charges sufficiently the common-law offense: * * * .” Galvin, supra, p 120. (Emphasis supplied.)
What the Galvin Court said is that in a prosecution for robbery:
“a common-law information for robbery is not permissible in this State, but the crime must be laid under the statute.” (p 120.) (Emphasis supplied.)
What the Galvin Court (or any other appellate court in this state) did not say is that an information for felony murder cannot be laid under the common-law offense of robbery.
That is what was done here. The trial judge charged correctly as to the elements of common-law robbery. He instructed the jury that if it found the killing occurred in the perpetration of that offense, the killing was murder in the first degree.
The jury so found. It could hardly have done otherwise. There was no error.
The conviction is affirmed.
All concurred.
“Sec. 316. First degree murder — All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.” | [
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Per Curiam.
Defendant was tried by a jury and found guilty of armed robbery, MCLA 750.529; MSA 28.797.
On appeal defendant contends that tbe trial court erred in allowing tbe prosecution to present certain witnesses after tbe prosecution allegedly had stipulated that they would not be produced. The record does not convincingly support the defendant’s contention. The only evidence of such a stipulation to which this Court’s attention has been drawn by the defendant is the statement of the trial judge reconstructing what occurred at a pretrial conference:
“It then appeared that the defendant, through counsel and individually, waived the production of these two witnesses at the trial and thereafter the court said therefore the people will not produce these witnesses and the statement was made by the prosecutor, the assistant prosecutor, ‘That’s right’.”
The witnesses in question were accomplices to the crime. The prosecution, at the time of the pretrial conference, had these witnesses indorsed, but sought a waiver of their production from the defendant because of the fear that these witnesses would exercise their privilege against self-incrimination and thus not benefit the prosecution’s case. As the trial judge’s statement acknowledges, such a waiver was given and the prosecution then indicated that the prosecution did not intend to call these witnesses.
On the day of the trial, one of the witnesses proved willing to waive his privilege against self-incrimin ation in order to testify against the defendant. The trial court offered the defense time to consult with the witness and the defense counsel did speak to him in private for 15 minutes. Defendant’s present claim of surprise and bad faith by the prosecutor is thus without merit. People v. Burnstein, 261 Mich 534 (1933). See, also, 22A CJS, Criminal Law, § 498(c), pp 162-164.
Defendant’s second claim is that in an armed robbery charge the prosecution must show that the victim of the robbery had a possessory interest in the goods taken. This was properly answered below by citing the case of People v. Needham, 8 Mich App 679 (1967). Defendant’s attempt to distinguish the present case from Needham is also without merit, the money here having been taken “in the presence” of one whose “right to possession was certainly greater than that of his assailant”.
Defendant’s third issue, that the trial court erred in not giving an instruction as to lesser included offenses, also fails to impress us since the facts of this case are indistinguishable from the facts of People v. McCormick, 28 Mich App 550 (1970), and People v. Membres, 34 Mich App 224 (1967). In these cases it has been held that such an instruction is not required where the evidence does not support a lesser crime than the one charged.
Defendant’s final appeal is that the sentence was a denial of justice and tantamount to cruel and unusual punishment, the defendant being only 19 years of age at the time and having no previous criminal record. Armed robbery carries a possible sentence of life, or any term of years, imprisonment. The sentence given was within the statutorily prescribed limits and will not be overturned on appeal. People v. Richardson, 25 Mich App 117 (1970); People v. Rodgers, 30 Mich App 582 (1971).
We finally note that a number of these issues were not properly briefed on appeal. Normally issues not properly briefed on appeal are considered to be abandoned. Grove v. Story Oldsmobile, Inc, 31 Mich App 613 (1971). In doing justice to the defendant, we have nonetheless considered these issues and have found no reversible error. Therefore, the judgment below is affirmed. | [
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Per Curiam.
Plaintiff brought an action for damages which resulted from injuries sustained when she slipped and fell while leaving a supermarket maintained by defendants. After the plaintiff rested, the court below granted defendants’ motion for a directed verdict of no cause of action.
We are unable to distinguish the facts of this case from those in Nash v. Lewis (1958), 352 Mich 488, and on authority of Nash we must, albeit reluctantly, affirm.
Affirmed. | [
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Holbrook, J.
This Court has granted plaintiff’s application for leave to appeal from an interlocutory order. The concise statement of proceedings and facts as certified by the trial judge are as follows:
“On the 6th day of August, 1968, plaintiff’s vehicle was struck in the rear by defendants’ vehicle.
“Plaintiff received low back injury, hip, and leg injury.
“A pre-trial hearing was concluded on March 4, 1969.
“On August 31,1970, an order compelling plaintiff to submit to physical examination and protective order was entered.
“The plaintiff was prohibited from recording or transcribing any portion of said physical examination.”
The trial of the case was set down for October 2, 1970, and at the request of plaintiff’s attorney it was stipulated by all counsel that the trial be adjourned. On September 21, 1970, the trial court ordered the matter be adjourned to the next term.
The one issue raised on this appeal by plaintiff is stated as follows:
When the trial court orders the plaintiff to undergo a medical examination, including an oral history, without specifying the scope and extent of examination, can the trial court restrict the plaintiff’s attorney to the role of a silent passive observer and deny the use of either a mechanical tape recorder or in lieu thereof, a court reporter so that a record may be had of the questions asked and the answers given?
At the hearing on the motion by defendants to compel the plaintiff to submit to a physical examination and a protective order, the trial judge mentioned that the plaintiff’s attorney could be present at the examination but should remain silent. This portion of the court’s oral determination was not incorporated in the written order. A court speaks only through its orders and judgments and not through its opinions. People v. Batten (1967), 9 Mich App 195; Miskinis v. Bement (1949), 325 Mich 404; Michigamme Oil Co. v. Huron Valley Building & Savings Ass’n (1937), 280 Mich 12. Inasmuch as the order did not contain the requirement that the at torney remain silent, we conclude that that portion of the opinion is not effective or operative.
The trial court’s order requiring plaintiff to submit to a physical examination is authorized under GCR 1963, 311 which states:
“.1 Order for Examination. In an action in which the mental or physical condition or the blood relationship of a party, or of an agent or a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental or blood examination by a physician or to produce for such examination his agent or the person in his custody or legal control. The order may be made only for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination, the person or persons by whom it is to be made, and shall provide that the attorney for the person to be examined may be present at the examination.
“.2 Report of Findings.
“(1) If requested by a party against whom an order is made under subrule 311.1 or the person examined, the party causing the examination to be made shall require the examining physician to deliver to both parties a detailed written report setting out his findings and conclusions pertaining to the conditions examined, together with like reports of all earlier examinations of the same condition, and shall make available for inspection and examination X-rays, cardiograms, and like diagnostic aids. After such request and delivery the party causing the examination to be made shall be entitled upon request to receive from the party or person examined a like report of any examination, previously or thereafter made, of the same condition, and to a like inspection of all diagnostic aids. If either party or person examined refuses to deliver such report, the court on motion, and notice may make an order requiring delivery on such terms as are just, and if a physician refuses or fails to comply with this rule, the court may order the physician to appear for discovery depositions.
“(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition.”
The source of this rule is Rule 35 of the Federal Rules of Civil Procedure and the proposed amendment thereto.
The appellate courts of our state have not, as yet, ruled on the specific question here raised on appeal.
When we consider outside authorities we find different views expressed. In Warrick v. Brode (D Del, 1969), 46 FRD 427, 428, it is stated in part as follows:
“It has long been the practice in this district and in the state courts of Delaware that an attorney will not be permitted to be present at a physical examination of his client undertaken pursuant to Rule 35 if the other party objects. * * * The examination authorized by Rule 35, while providing for protective devices, does not provide for the presence of counsel. This is as it should be, because an examination should be divested as far as possible of any adversary character.”
The court rule in Warrick did not permit the attorney for the client to be examined to be present at the physical examination, whereas our court rule specifically provides that the attorney may be present.
The opposing view is expressed in the case of Gonzi v. Superior Court (1959), 51 Cal 2d 586, 589 (335 P2d 97-99) as follows:
“‘Whenever a doctor selected by the defendant conducts a physical examination of the plaintiff, there is a possibility that improper questions may be asked, and a lay person should not be expected to evaluate the propriety of every question at his peril.’ The same reasoning is applicable in the case at bar. If an injured plaintiff is not permitted to have a reporter present at the court-ordered examination by defendant’s doctors there is no disinterested person present to report, or later testify to, what occurred during the examination. If the defense-employed doctor is called upon to testify at the trial on the issue of plaintiff’s injuries his version of the questions and answers elicited at the examination might differ materially from plaintiff’s counsel’s version of the same questions and answers. It appears to us that orderly procedure in the administration of justice requires that permission be granted at the request of either party for a reporter’s presence in such a situation as is here presented.”
In 8 Wright and Miller, Federal Practice & Procedure, § 2236, pp 684-686, the authors discuss the cases which have dealt with the manner in which a physical examination should be conducted, as follows:
“Rule 35 has raised a number of questions relating to the proper format for a physical or mental examination. One federal court provided that the party to be examined might have his own physician present during the examination when the tests to be made were of a rather drastic nature, and this has been generalized in other cases to permit the examined party to have his own physician present in any case if lie wishes to do so and communicates that wish to the doctor or the attorney for the other side.
“There have been varying views on whether the attorney for the examined party may be present during the examination, with the difference in view perhaps reflecting the indecision of the courts- about whether the examination is part of an adversary proceeding, in which the examining doctor is acting for the other side, or whether the doctor is an impartial expert seeking only the truth. There would seem to be some instances in which the presence of the attorney would be clearly inappropriate. In one state the rule, otherwise similar to Federal Rule 35, provides specifically that the examined party may have any representative present throughout the examination, yet that state’s highest court held that the rule would hardly compel the doctor to disrobe a female patient in her lawyer’s presence, and admitted X-rays that were taken while the attorney was excluded from the room.
“Other state court cases have said that usually the party may have an attorney present, but have ordered that a psychiatric examination be held in private, on a showing that having another person present during such an examination would not be conducive to an authentic appraisal of the party’s condition. It also has been suggested generally that no useful purpose is served by having an attorney present at a medical examination, and that to do so might interfere with and unduly prolong the examination.
“The only reason that would support permitting an attorney to be present is that the doctor must ask the examined party questions during the examination. He must be permitted to take the party’s history and to ask such other questions as will enable him to formulate an intelligent opinion concerning the nature and extent of the party’s injuries. He should not, however, ask questions that might obtain admissions bearing on the issue of liability. Those courts that permit the attorney to be present reason that a lay person should not be expected to evaluate the propriety of every medical question at his peril.”
In construing GCB 1963, 311, as applied to this case, we consider all of its pertinent provisions including that: (1) the examination may be ordered only for good cause shown, (2) the order shall specify among other things the scope of the examination, (3) the person or persons by whom the examination is to be made are to be named, (4) the attorney for the person examined may be present at the examination, (5) the examining physician deliver to both parties a detailed written report setting out his findings and conclusions pertaining to the conditions examined, and (6) the person examined may, through his attorney, take a deposition of the examining physician.
We are constrained to determine that the court rule is all inclusive and provides the safeguards necessary to protect the interests of a person to be examined by a doctor for the opposing side.
The plaintiff asserts that in construing the court rule we should consider that the plaintiff has the right to make a record of the questions asked and the answers given at the physical examination by the use of either a mechanical tape recorder, or in lieu thereof, a court reporter. We decline to write in the court rule by interpretation that which is absent in its language.
Affirmed. Costs to defendants.
All concurred.
“This matter having come on to be heard upon motion by defendants Smith and Jim Cook Leasing Co., and the argument of counsel having been heard in open court, and the court being duly and fully advised in the premises, Now Therefore,
“It is ordered that said motion be and hereby is granted; and
“It is further ordered that plaintiff, Ida Nemes, appear and submit to physical examination by Dr. Harold Fenech or such other physician as may be selected by defense counsel at a time to be selected, mutually convenient to the interested parties; and
“It is further ordered that counsel for the plaintiff be and hereby is prohibited from recording or transcribing any portion of said physical examination of plaintiff.”
“It is stipulated and agreed by and between the above parties by their respective attorneys that the trial date of October 2, 1970, is adjourned without date.
“The matter shall be reset after completion of appellate proceedings, the medical examination in question, and plaintiff’s attorney has an opportunity to take the deposition of the examining doctor.” | [
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Per Curiam.
Defendant was charged with attempt to take indecent liberties with (MCLA § 750-.336 [Stat Ann 1954 Rev § 28.568]), and having carnal knowledge of, a minor under 16 years of age (MCLA § 750.520 [Stat Ann 1954 Rev § 28.788]).
On October 13, 1970, a hearing was held before a judge of the recorder’s court at which time defendant purported to offer a plea of nolo contendere to the charge of attempt to take indecent liberties with a minor. The judge informed defendant, before plea was entered, that the maximum sentence he could receive was five years. Defendant proceeded to unequivocally waive, both orally and in writing, his right to trial by jury. The court then conducted proceedings as though defendant had pled guilty. On November 4, 1970, defendant was sentenced to serve from 2-1/2 to 5 years. On February 22, 1971, the court set aside the sentence which had been imposed on November 4,1970, and imposed a new sentence of from 2-1/2 to 10 years. The judge explained that he had erroneously believed the maximum sentence under the indecent liberties statute was five years where in actuality it was ten. Defendant’s attorney indicated that perhaps defendant would like to withdraw his plea because it was entered on the belief that attempt to take indecent liberties carried a maximum sentence of five years. The court, nevertheless reformed defendant’s sentence from a maximum of five to a maximum of ten years.
It has been held that the requirement of GCR 1963, 785.3, that the defendant be informed of the consequences of his plea does not require that the defendant be informed of the maximum or minimum sentences to which his plea will subject him as long as the defendant knows he is subject to punishment. People v. McFarland (1969), 17 Mich App 599. Even though the court was not required to volunteer the maximum statutory sentence in this case, the court did so, erroneously informing defendant. It appears to this Court that the policy of GCR 1963, 785.3, in requiring that the defendant be apprised of the consequences of his plea implies that the defendant not suffer misfortune because of a misstatement of the consequences of his plea by the court. Because of defendant’s apparent reliance on the representation of the court, it was error for the court to reform defendant’s sentence in the manner here attempted.
Reversed and remanded. | [
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] |
Per Curiam.
Plaintiff is a member of the board of directors of the Peoples Community Hospital Authority, a public body corporate authorized by statute. By a letter dated June 23, 1971, plaintiff and two other board members requested that Donald J. Pizzimenti, the chairman of the board, call a special meeting on July 15,1971, for the express purpose of electing new officers. The chairman denied the request and pointed out that the rules and regulations adopted by the board provide for the election of officers in January or February of each year.
Plaintiff sought a writ of mandamus to compel the call of a special meeting; the writ was denied. Plaintiff appeals, relying principally on the following statutory language: “The chairman shall call a meeting at any time upon written request of 3 members of the board.” MCLA 331.6; MSA 5.2456(6).
It is well settled that a trial court’s refusal to issue a writ of mandamus will only be reviewed for abuse of discretion. We find no abuse. While it is true that the statute requires the chairman to call a meeting at the request of three board members (with no qualifications regarding the purpose behind the request), we nevertheless feel that since the request was dated one day before a regularly scheduled board meeting, and since the board holds regularly scheduled meetings each month (save July and August) the trial court acted correctly in denying the request for a writ of mandamus.
Affirmed.
1945 PA 47; MCLA 331.1-331.11; MSA 5.2456(1)-5.2456(11).
See Iron County Board of Supervisors v. Crystal Falls, 23 Mich App 319 (1970), and the cases cited therein. | [
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Memorandum Opinion. Defendant was convicted on guilty plea of assault with intent to rob while unarmed, and appeals. The people have filed a motion to affirm.
Upon examination of the briefs and record it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission.
Motion to affirm granted. | [
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Memorandum Opinion. Defendant pleaded guilty to unlawfully driving away an automobile and appeals. A motion to affirm has been filed by the people.
Upon examination of the briefs and record it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission.
Motion to affirm granted. | [
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Van Valkenburg, J.
The plaintiff operated an earth removal and landfill business in the Township of Sterling Heights for approximately 30 years. The governing board thereof, in 1965, enacted two ordinances governing such businesses, being ordinances number 81 and 82. These in turn were accepted by the city when it adopted a charter on July 1, 1968.
Prior thereto the plaintiff did, in fact, receive a permit for a period of one year beginning with April 1, 1968. Thereafter, he deposited the sum of $150 with the city clerk, but did not furnish the engineering data required by the ordinances. The permit to continue business was refused. On May 26, 1970, plaintiff filed a complaint for declaratory judgment in circuit court, praying that the ordinances be declared unconstitutional as applied to his property and that an order temporarily restraining the city from enforcing the ordinances be issued. After attempts by the trial court to effectuate an out-of-court resolution of the differences between the parties failed, the city filed a motion for a summary judgment on the basis that the plaintiff had not exhausted his administrative remedies. The motion was granted. On August 10, 1970, the plaintiff filed a motion to set aside the summary judgment and to have a hearing on the merits granted. This was denied, whereupon plaintiff filed a claim of appeal on September 17,1970.
The issue is whether or not it was necessary for him to do anything else before challenging the validity of the ordinances in court.
The generally-accepted rule can be found in 2 Am Jur 2d, Administrative Law, § 595, p 426:
“The doctrine of exhaustion of administrative remedies requires that where a remedy before an administrative agency is provided, relief must be sought by exhausting this remedy before the courts will act.”
Continuing on page 428:
“It involves a policy of orderly procedure which favors a preliminary administrative sifting process, particularly with respect to matters peculiarly within the competence of the administrative agency, avoidance of interference with functions of the administrative agency by withholding judicial action until the administrative process has run its course, and prevention of attempts ‘to swamp the courts by a resort to them in the first instance.’ ”
It will be observed that the key words in the above quoted rule are “where a remedy before an administrative agency is provided”. Illustrative of this point is Hutson v Royal Oak, 28 Mich App 393 (1970), wherein the plaintiff attempted to secure repayment of taxes without applying to the Board of Review. Since that Board had the authority to grant the relief requested, the question was not properly raised in circuit court prior to some disposition by the Board.
The situation in the instant case is significantly different from that in Hutson, since here no element of the city government is vested with the power to determine the validity of the ordinances. If we were to require plaintiff to comply with the licensing requirements, when he asserts that such requirements are arbitrary, unreasonable and capricious, before he could raise the questions in a court suit, it would result in his having to do exactly that which he asserts is unwarranted. Since plaintiff has applied for a license and tendered the required $150 license fee, he has complied with the administrative requirements to a sufficient degree to raise the question of whether the additional requirements are constitutionally valid.
The case of Long v Highland Park, 329 Mich 146, 149 (1950), is illustrative of the point at issue. There the city took the position that the plaintiff would have to exhaust his administrative remedies by seeking a building permit before he could challenge the validity of a certain zoning ordinance. The Court held :
“Appellant claims that equity does not have jurisdiction where the plaintiffs had not exhausted their remedy under the provisions of the zoning ordinance by applying for a building permit, seeking relief from the board of zoning appeals, the zoning commission, and the common council of the city. There is no merit in the claim. Plaintiffs do not here seek, nor have they asked the city for a building permit, to erect a building for any particular use. The municipal authorities referred to do not have the power to declare the ordinance unconstitutional and void as applied to plaintiffs’ property and they could not grant the relief here sought. An attempt by them to do so, which in effect would result in a violation of the ordinance, would have been ineffective.”
The plaintiff herein alleges in his complaint that the said ordinances are invalid as far as his property is concerned. He further alleges that the ordinances, as applied to him, are arbitrary, capricious and unreasonable, and that the enforcement thereof amounts to the taking of his property without due process and equal protection of the law. We rule that he should have an opportunity to prove these allegations.
As stated by this Court in Dunnan & Jeffrey, Inc v Gross Telecasting, Inc, 7 Mich App 113, 118 (1967):
“We are not here concerned with what plaintiff may or may not prove at trial but rather what it says it will prove. If plaintiff’s complaint contains allegations which, if proved, state a claim on which relief can be granted, defendant was not entitled to summary judgment.”
Reversed and remanded to the Circuit Court of Macomb County for a full evidentiary hearing on the complaint as amended. Costs to abide final result.
All concurred. | [
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Memorandum Opinion. Defendant pleaded guilty to assault with intent to rob being armed and appeals. A motion to affirm has been filed by the people.
After an examination of the briefs and record, it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission.
■ Motion to affirm is granted. | [
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McGregor, J.
Defendant was tried by a jury and convicted of sale of heroin, contrary to MOLA § 335.152 (Stat Ann 1971 Rev § 18.1122), sentenced to serve not less than 20 years nor more than 30 years in prison, and appeals after a motion for a new trial was denied by the trial court. On appeal, defendant alleges numerous errors committed by the trial court.
The first contention is that it was prejudicial and reversible error for the prosecutor to cross-examine defendant concerning his prior criminal record. By statute, the prosecutor has the right to cross-exam ine a defendant concerning Ms prior criminal convictions for the purpose of assisting the jury in determining defendant’s credibility, when he testifies as a witness in his own behalf. People v. Finks (1955), 343 Mich 304; People v. Di Paolo (1962), 366 Mich 394; People v. Koontz (1970), 24 Mich App 336; People v. Cook (1970), 24 Mich App 401.
However, even though a prosecutor may, for the purpose of impeachment, cross-examine a testifying defendant with respect to his prior criminal convictions, such cross-examination must be properly conducted. In People v. Di Paolo, supra, the defendant claimed that the prosecutor exceeded the permissible scope of cross-examination, thereby depriving him of a fair trial. In that decision, the Court quoted from the trial record as follows:
“ ‘Q. All right. Now, you testified you had been in Erie, Pennsylvania, in 1950, is that correct?
“ ‘A. Yes, sir.
*At, At, TP TP
TP TP
“ ‘Q. You also testified you had been convicted of only 1 crime, is that correct?
“ ‘A. Yes, sir.
“ eQ. I will ask you whether or not on the 23rd day of November, 1940, you were convicted of rape in Erie, Pennsylvania?
‘A. I was no convicted. I, — this is very important to me to make statement about this. I,—
“ ‘Q. The answer is either “yes” or “no”.
“ ‘A. No, sir.
“ ‘Q. So if the police records show that, they are wrong?
“ ‘A. Yes, sir.’
“After some further questions relating to defendant’s past conduct counsel again referred to the alleged offense in Pennsylvania, and the following occurred :
“ ‘Q. You deny the rape in Pennsylvania?
“ ‘A. No deny. I was find no guilty. No rape.
“ ‘Q. So if the record shows you were convicted of rape in Pennsylvania, then this record is wrong?
“ ‘A. Yes, sir.’ ”
The Court then ruled as follows :
“No attempt was made by the people to establish that Di Paolo had in fact been convicted of the crime of rape in the State of Pennsylvania. The question asked, coupled with the reference to the police records, was well calculated to cause the jury to conclude that such conviction had occurred and that police récords showed such to he the fact. The jury might have concluded from the questions of the assistant prosecutor, and the subsequent repetition thereof, that appellant was falsifying with reference to the commission of a very serious crime in another State. As before stated, he denied his guilt of the offense charged against him in recorder’s court, his statements being directly in contradiction to the testimony of the principal witness against him, the alleged prostitute. Obviously the determination as to appellant’s credibility was of material importance. The conclusion may not be avoided that the question asked and repeated with reference to the police records constituted prejudicial error requiring the reversal of the conviction and the granting of a new trial. People v. Jones (1940), 293 Mich 409.” Di Paolo, supra, 396, 397.
In the instant case, the defendant took the witness stand to testify in his own behalf. During cross-examination, the prosecutor questioned the defendant as follows:
“Q. Isn’t it true, Mr. Rahar [the defendant], that in 1969 in San Francisco, California, that you were convicted of the charge of possession of restricted dangerous drugs ?
“A. No, it is not.
“Q.. [defense counsel]: Your Honor, may I approach the bench?
“A. The Court: You may.
(Whereupon both counsel approached the bench and a discussion was held off the record and out of the hearing of the court reporter.)
“The Court: We’ll excuse the jury to the jury room for just a few moments.”
Then, in the absence of the jury, the trial court permitted the prosecutor to “explore this line of questioning.” During this “separate” hearing, the defendant testified as follows:
“Q. * * * Isn’t it true, Mr. Rahar, that in 1969 you were found guilty of receiving — excuse me, of possession of restricted dangerous drugs in San Francisco, California?
“A. No, it is not true.
“Q. Is it true, Mr. Rahar, that you were arrested on March 8, 1969, in San Francisco, California on a charge of possession of an opium pipe, etc. ?
“A. It is true I was arrested on that date, but, not for the charge you just mentioned, an opium pipe.
“Q. Well, is it true, Mr. Rahar, that you were arrested on a charge of possessing restricted dangerous drugs on March 8,1969 ?
“A. I was arrested on March 8 for being in the presence of this bust. I was in the room, four people in the room to be exact.
# * #
“Q. What was the penalty?
“A. Penalty? I wasn’t convicted of possessing any drugs. I was found guilty of being in an illegal establishment.
“Q. Illegal in what sense? Or don’t you recall?
“A. There were drugs present in the establishment. * * *
“Mr. Gibson [defense attorney]: * * * Is it true that it was your information that the first charge, possession of dangerous drugs, was stricken from the record or expunged from your file?
“A. That’s true. The judge told me in the court room that I was guilty of being in an illegal place because drugs were present and there was no possession charge whatsoever.
* * #
“The Witness: I was going to explain the rest, your Honor, because the judge made mention of the fact that I was under 21 and after the time was served my record would be sponged [sic], as she called it, which means it would be taken off my record because of the fact that I was under 21.
# * *
“The Court: Did you ever come by any sort of a certificate or instrument which would have been executed by a court in California I assume informing you that the record was expunged? That is to say, it was held to be a nullity, a void? Have you ever received any such instrument as that?
“The Witness: I didn’t receive an instrument, I just took it by what the judge had mentioned to me before I left court.
“The Court: Well, under these circumstances, Mr. Gibson, I believe that counsel [the prosecutor] is entitled to inquire into this. * * * It is my recollection of the law that thereafter he may, and I think it’s Dellabonda [People v. Dellabonda (1933), 265 Mich 486] that prescribes that he may be prosecuted for perjury. I don’t want this individual exposed to that. And under these circumstances, if he believes it was expunged, in the words he has described it, I believe it is a subject matter which the prosecutor may inquire into on the matter of credibility.” (Citation added.)
The defendant’s counsel objected to the trial court’s ruling on the grounds that: (1) the defendant’s criminal record was a collateral matter and the prosecutor could not impeach a witness on a collateral matter, and (2) the defendant had already testified that he had not been convicted of possession of restricted dangerous drugs. The trial court responded to defense counsel as follows:
“ * # * I think it’s the Dellabonda case that says if the accused or the witness when asked, were you convicted, answers no, the attorney asking the question is bound by the answer. But he may then, and I think it’s Dellabonda that says, you explore the possibility of perjury.
“Now, I don’t think this witness, I don’t think his statement of no is intended with any thought of dodging the issue. His answer of no is based upon an understanding of what a judge to]d him. But my only purpose, is number one, so that this trial may have a minimum exposure to error, that this be explored in the absence of the jury. And, secondly, that no unfair advantage be taken of your client. I don’t want him prosecuted for perjury of his an swers in good faith as he indicates and I don’t know that there’s any more that I can say, 'but I believe under these circumstances then that the prosecutor is entitled to ask the question, were you arrested and convicted in a certain location.”
The jury was returned to the court room and the trial court directed the prosecutor to proceed. The defendant then testified as follows:
“Q. * * * Now, Mr. Rahar, is it true that you were found guilty in January of 1969 in San Francisco, California, on a charge of possession of restricted dangerous drugs?
“A. It is not true that I was convicted of possession of dangerous drugs.”
A few moments later, the court recessed the trial until the following morning. The next morning, June 4, 1970, the defendant returned to the witness stand and the prosecutor continued his cross-examination. The following testimony was transcribed:
“Q. Now, Mr. Rahar, didn’t you say yesterday, when I asked you the question of whether or not you were convicted in San Francisco, California in 1969 on a charge of possession of restricted dangerous drugs, that your answer to my question as the way it was put was no ?
“A. That’s right. I was not convicted of possession of dangerous drugs.
“Q. Could I assume by that answer that if I asked the question differently that your answer would be different?
“A. You can assume anything you wanted by that answer I guess. I don’t know what you could assume.
“Q. Yes or no?
“A. Yes, I guess you could.
“Q. Let me put the question this way, Mr. Rahar: Isn’t it true that you were on March 8, 1969, in San Francisco, California, arrested on a charge of possession of an opium pipe and other apparatus?
“A. Yes, I was arrested but not convicted of the charge.
“Q. It’s your testimony that you weren’t convicted of any charge ?
“Mr. Gibson: Your Honor, I think his testimony is quite clear.
“The Court: The testimony was of that charge.”
Here, just as in Di Paolo, supra, the prosecutor’s repeated questioning of defendant as to a prior conviction was prejudicial error, where the defendant denied being convicted and the prosecutor made no attempt to establish that defendant had, in fact, been convicted of possession of dangerous drugs.
Furthermore, the prosecutor compounded his error by then asking defendant if he had been arrested for possession of an opium pipe and other apparatus.
In People v. Brocato (1969), 17 Mich App 277, 302-303, this Court stated:
“We now hold that a defendant testifying at his own trial may not be asked if he has been arrested or charged with a erime, where the arrest or charge has not resulted in a conviction and where the only purpose of the questions is to impeach the defendant’s credibility as a witness. Where credibility is the only issue, the probative value of arrests and charges, unsubstantiated by a conviction, is slight at best. When weighed against the great danger that the jury, despite careful instructions, might misapply such evidence, the scales of justice tip in favor of exclusion. United States v. Beno (CA2, 1963), 324 F2d 582.”
Furthermore, in People v. Council (1971), 36 Mich App 682, this Court stated :
“In the instant case, the prosecutor continually asked the defendant whether he had been convicted of automobile theft in April 1962. The defendant repeatedly denied it, but the prosecutor continued to question him upon that point. Furthermore, when the prosecutor asked the defendant if he would still deny it if his FBI record showed it, he implied not only that the defendant had an FBI record, but also that he was lying about having committed the automobile theft. When a prosecutor repeatedly uses such tactics, tending to destroy the credibility of the defendant in the minds of the jurors, reversible error is committed. See People v. Jones (1971), 32 Mich App 309; and People v. Di Paolo (1962), 366 Mich 394, for situations parallel to the instant case.”
Since defendant Rahar testified that he “did not sell any narcotic drug or anything else to Bob Whit-more on that day [January 5, 1970]” and, since the chief prosecution witness Whitmore testified that, on January 5, 1970, he purchased a tinfoil packet of heroin from the defendant, the determination as to defendant’s credibility was of critical and material importance. Therefore, we conclude that the improper impeachment of the defendant’s credibility cannot be characterized as harmless error.
In view of our conclusion, reached on the principal assignment of error, it is unnecessary to consider the other alleged errors claimed by defendant.
Reversed and remanded.
All concurred.
MCLA § 600.2158 (Stat Ann 1962 Rev § 27A.2158) provides that: “No person shall be excluded from giving evidence on any matter, civil or criminal, by. reason of crime or for any interest of such person in the matter, suit, or proceeding in question, or in the event of such matter, suit, or proceeding, in which such testimony may be offered, or by reason of marital or other relationship to any party thereto; but such interest, relationship, or conviction of crime, may be shown for the purpose of drawing in question the credibility of such witness, except as is hereinafter provided.”
It should be noted that this “right” to cross-examine a witness concerning his prior criminal convictions may be limited when the prejudicial effect of the evidence elicited outweighs its probative value. In People v. Eldridge (1969), 17 Mich App 306, 312, this Court stated: “[W]e are persuaded that the witness’ prior conviction was so highly prejudicial to defendant that it should not have been admitted for impeachment purposes. [I] f certain evidential material, having a legitimate probative value, tends nevertheless to produce also, over and above its legitimate effect, an unfair prejudice to the opponent, or by virtue of the personality of the witness tends to receive an excessive weight in the minds of the tribunal, there is good ground for excluding such evidence, unless it is indispensable for its legitimate purpose.’ 6 Wigmore on Evidence (3rd ed), § 1864, p 491.”
People v Dellabonda (1933), 265 Mich 486, does not hold that, when an accused denies a conviction, the prosecutor may explore the possibility of perjury.
The perjury statute in Michigan (MCLA § 750.423; Stat Ann 1954 Eev § 28.665) provides: “Any person authorized by any statute of this state to take an oath, or any person by whom an oath shall be required by law, who shall wilfully swear falsely, in regard to any matter or thing, respecting which such oath is authorized or required, shall be guilty of perjury, a felony, punishable by imprisonment in the state prison not more than 15 years.” Therefore, as stated in 4 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 2003, p 2284: “If * * * the defendant did not wilfully testify falsely, a prosecution for perjury will not lie.” | [
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Pee Cubiam.
This appeal is brought by the employer and its insurance carrier from the decision of the Workmen’s Compensation Appeal Board, which affirmed the award of compensation to an employee injured upon a public sidewalk while on his way to work.
Defendant’s place of business was located in a substantially residential area and consisted of a small factory and an adjoining residential structure in which patterns were stored. The defendant’s entire business property occupied three adjoining lots fronting upon Trumbull Avenue in Detroit, Michigan. Along the front of this property ran a public sidewalk, while another paved walk connected this passageway with a side entrance to the factory which employees were requested to use. The rear of the lot upon which the residential structure stood was apparently used on occasion for the parking of delivery trucks. No parking facilities were provided for employees, and those who drove to work were expected to park upon the street. On March 3, 1967, plaintiff, an employee of the defendant, drove to work and parked on Trumbull Avenue opposite and slightly to the north of the defendant’s property. The roads and sidewalks were apparently in the typical condition for that time of the year in Michigan, being covered with patches of snow, ice, and slush. Plaintiff alighted from his car, crossed Trumbull, and at some point along the public sidewalk abutting the defendant’s property slipped and fell, severely injuring his leg and hip. The injuries so sustained have apparently disabled plaintiff from further work of like kind to that which he had been performing for the defendant.
The referee found that plaintiff’s injuries arose out of and in the course of his employment and awarded compensation. The appeal hoard affirmed, partially relying upon Lasiewicki v Tusco Products Co, 372 Mich 125 (1963), and its own interpretation of recent appellate decisions in this area. In affirming the referee, the appeal board found that plaintiff was upon a public sidewalk at the time of his injury. We are bound by this finding. Maki v Hanna Iron Ore Division, 24 Mich App 258 (1970); MCLA 418.861; MSA 17.237(861). Thus the question on appeal is a question of law: Does an employee injured upon a public sidewalk while on his way to work and while within close proximity to the place where he works suffer an injury which is compensable as arising out of and in the course of his employment?
In 1940 our Supreme Court denied compensation to the widow of a 77-year-old man who injured himself by falling upon an icy sidewalk while his hand crossed over his employer’s property line reaching for the doorknob. Simpson v Lee & Cady, 294 Mich 460 (1940). Obviously if plaintiff’s award is to be upheld in this case, this compelling precedent must be overcome.
Falls on icy sidewalks are not uncommon occurrences in workmen’s compensation law. In general such accidents are not compensable, as the general rule is that injuries sustained while going to or coming from work do not arise out of or in the course of one’s employment. Some recent cases from other jurisdictions support Michigan’s Simpson decision. Acton v Wymore School District No 114, 172 Neb 609; 111 NW2d 368 (1961); Tromba v Hardwood Mfg. Co., 94 RI 3, 177 A2d 186 (1962); Halama v Dept. of Industry, Labor do Human Relations, 48 Wis 2d 328; 179 NW2d 784 (1970).
However there are exceptions to this general going to and coming from work rule. One of the most im portant is recognized in Michigan by statute, MOLA 418.301(2); MSA 17.237 (301 [2]), which provides:
“Every employee going to or from his work while on the premises where his work is to be performed, and within a reasonable time before and after his working hours, shall be presumed to be in the course of his employment.”
This language was added to our workmen’s compensation law in 1954, long after the decision in Simpson and substantially before the 1967 accident now under our consideration.
There has been a sufficient number of cases construing this statute to indicate clearly an intent to interpret its provisions liberally. Freiborg v Chrysler Corporation, 350 Mich 104 (1957); Dyer v Sears, Roebuck & Co, 350 Mich 92 (1957); Lasiewicki v Tusco Products Co, 372 Mich 125 (1963); Jean v Chrysler Corporation, 2 Mich App 564 (1966). Of particular interest is the construction to be given the word “premises” as contained in this act. “Premises” does not equal “property”, and land owned by an employer may or may not be part of the premises, just as land owned by another than the employer might still be considered part of his premises. In Lasiewicki, supra, a portion of a city-owned roadway used and maintained by the employer as a parking lot for its employees was determined to be part of its premises. When, as in this case, the employer espects his workers to park upon the public streets we can see no reason why, by analogy, these two should not be determined to be part of his premises. In Jean, supra, an injury upon a public roadway lying between the employer-owned parking lot and its place of business was held to be compensable. There a workmen’s compensation appeal board opinion awarding compensation to one who slipped and fell upon an icy sidewalk between a parking lot and place of business was cited with approval. Again, by analogy, this present case is indistinguishable. We believe that it would be a poor public policy which would make liable an employer who accommodates his employees by providing them with a parking lot while relieving from liability an employer less concerned with the welfare of his workmen.
Both Lasiewicki and Jean, supra, quoted with approval the language of Hills v Blair, 182 Mich 20, 27 (1914), that:
“A workman might be on the premises of another than his employer, or in a public place, and yet be so close to the scene of his labor, within its zone, environments, and hazards, as to be in effect at the place and under the protection of the act.”
From an analysis of present case law we conclude that “zone, environments and hazards” is substantially what is meant by the word “premises” as contained in the workmen’s compensation act.
From the above, we can conclude that an employee is protected by the act when he is within said “zone, environments, and hazards”, while arriving at, departing from, or during the time of his employment by travelling his usual, customary and direct route.
The appellee herein qualifies under the above rule as he was injured on the icy sidewalk abutting his employer’s place of business. This was the conclusion of the appeal board below, which we now affirm.
This interpretation of the 1954 amendment embraces the liberal spirit previously accorded the workmen’s compensation act.
Affirmed. Costs to appellee.
1954 PA 175.
See Whetro v Awkerman, 383 Mich 235 ((1970), a recent example of the liberal construction given to the workmen’s compensation act in the area, of causality. For a parallel case to the present decision from another state see Hammond v Great Atlantic & Pacific Tea Co, 56 NJ 7; 264 A2d 204 (1970). | [
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Memorandum Opinion. Defendant pleaded guilty to manslaughter and he appeals. A motion to affirm has been filed by the people.
Upon an examination of the briefs and record, it is manifest that the question sought to be reviewed is so unsubstantial as to need no argument or formal submission.
Motion to affirm is granted. | [
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Per Curiam.
Plaintiff is a sales representative formerly employed by defendants; his suit for unpaid commissions resulted in a jury verdict in his favor in the amount of $10,000.
Defendants appeal alleging certain errors in the admission of exhibits and testimony. The evidence introduced dealt with plaintiff’s sales volume and the amount of commissions due. Prior to trial, and in the face of an order of the court, defendants refused to answer interrogatories on these very points.
In view of defendants’ recalcitrance, and the serious sanctions the court1 could have imposed pursuant to GrCR 1963, 313.2, we feel the trial court acted properly by allowing the plaintiff to iiitroduce the best evidence at his disposal.
Affirmed. Costs to plaintiff. | [
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] |
Per Curiam.
Plaintiff sued for damages alleging that defendants, adjoining landowners, have by earth fill caused the level of their land to be raised to a point where it will no longer accept surface waters flowing in.their natural course from plaintiff’s land onto defendants’ land, with the result that the waters have accumulated on plaintiff’s land damaging the basement of plaintiff’s building and the machinery therein. Plaintiff also claims he is entitled to $5,600 for loss of profits due to the necessity of cancelling jobs for which he had already had work orders.
Defendants admit filling their land, but deny any negligence or obligation to accept surface waters from plaintiff’s land. They further contend that Hedlund Plumbing and Heating was improperly joined as a party defendant; that part of the water was from the nearby roadway and plaintiff’s downspouts; that if defendants were negligent, plaintiff was contributorily negligent through poor building construction. The defendants also contend that damages were not proven and that defendant Hedlund Plumbing Company was a proper party to pursue a counterclaim against plaintiff as the result of an alleged encroachment of plaintiff’s building ’onto defendants’ land, which deprives defendants of its full use.
The trial court determined the following facts:
1) Plaintiff’s land is the dominant land; defendants’ land is the servient land; and prior to defendants’ filling of their land, the natural course over which surface waters flowed was across plaintiff’s land and onto defendants’ land.
2) Defendants’ filling of their land diverted surface waters from flowing in their natural course across plaintiff’s land onto defendants’ land and caused them to become impounded on plaintiff’s land.
3) As a direct and proximate result of the impoundment of the surface waters upon plaintiff’s land, he suffered damage.
4) Plaintiff’s building does in fact encroach onto defendants’ land by 0.1 of a foot on the northeast corner, which encroachment has been increased by several inches as the result of adding gutters and downspouts to the building.
The court also determined that defendants’ counterclaim was not meritorious:
“Defendants claim damages as the result of their being prohibited by the township ordinance from building closer than ten feet from plaintiff’s building. But a side yard as defined in the ordinance is that distance between the side lot line and the nearest line of the dwelling. Nothing here or elsewhere in the ordinance indicates that an owner’s side lot may be reduced in width by an encroaching building. Beyond this, as stated in plaintiff’s brief, the proper party to press this damage claim was not before the court.”
A judgment of no cause for action was entered on defendants’ counterclaim.
In granting judgment and awarding damages to the plaintiff, the court held that the average prudent man possessing knowledge of the natural surface water flow should have known that the raising of defendants’ land would cause water problems for plaintiff and failure to provide for this was negligence. The trial court correctly stated the law. The owner of lowlands must accept surface water which naturally drains onto his land. Emerald Valley Development Company v. Diefenthaler (1971), 35 Mich App 346. Defendants not only refused to accept this surface water by raising the surface of their land, hut they also cast this water onto plaintiff’s land, causing damage.
Questions of negligence and contributory negligence are for the trial judge to decide. Thompson v. Essex Wire Company (1970), 27 Mich App 516. Findings of fact and the decisions based thereon will not he reversed unless this Court finds that they are clearly erroneous. Thompson v. Essex Wire Company, supra; Cooper v. Klopfenstein (1971), 29 Mich App 569.
The record in the instant case supports the trial court’s finding of fact. The judgment based upon defendants’ negligence is proper and is sustained.
Through stipulation, both counsel agreed that Hedlund Plumbing Company, as lessee of defendants’ premises, was a party defendant. Judgment against this defendant was not error. Furthermore, there was no objection to the joinder. This issue, appearing for the first time on appeal, was not properly saved for review. Therrian v. General Laboratories (1964), 372 Mich 487.
The record indicates that the court made a fair computation of damages, even to the extent of depreciating certain claimed items on a percentage basis. Godwin v. Ace Iron & Metal Company (1965), 376 Mich 360. We find no error.
Affirmed. Costs to appellee. | [
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R. B. Burns, P. J.
Defendant, Sill Mortgages, Inc., assigned a mortgage to defendant, Farm Bureau Life Insurance Company, which had been taken on plaintiffs’ home. Sometime thereafter, plaintiffs’ home was extensively damaged by fire. Upon discovering that fire insurance had never been issued for their home, plaintiffs instituted suit against the defendants. The suit was settled by stipulation which reads, in part:
“1. That the plaintiffs’ claims against the defendants be settled for $4,000. * * *
“7. That the plaintiffs shall proceed to arrange for the restoration of the premises damaged by fire, being the subject matter of litigation in this suit, and of the said $4,000 the defendant Farm Bureau Life Insurance Company of Michigan shall pay to the plaintiffs and/or their contractors, the amount of their respective statements for the work done in connection with the restoration of the damaged premises.”
The estimated costs of restoration known by plaintiffs during negotiations were $700 over the settlement figure of $4,000. Plaintiffs were unable to obtain satisfactory financing for the extra $700. After a time, the restoration cost estimate rose to $6,500. Approximately 7-1/2 months after the execution of the stipulation agreement plaintiffs’ house was found unsafe and condemned by the City of Muskegon. Plaintiffs have not restored their house and admit they have no intention of doing so in the future. Plaintiffs’ purpose in the present suit is to obtain the $4,000 held by Farm Bureau to purchase household furniture. Farm Bureau desires to apply the $4,000 against the plaintiffs’ mortgage debt. Farm Bureau has instituted foreclosure proceedings because of plaintiffs’ default on the debt.
Pursuant to the declaratory judgment procedure of GCR 1963, 521, the trial judge upheld Farm Bureau’s decision to apply the $4,000 against the mortgage debt. Plaintiffs had plenty of time to arrange for restoration of the mortgaged home. The record does not present a case of “supervening impossibility” excusing the plaintiffs from their contractual promises to restore the house.
Regardless of how the stipulation agreement terminated we still have the problem of disbursing the $4,000. The contract contains no provision for distribution of the $4,000 on any conditions other than restoration of the house. In “ascertaining the intention of the parties” the trial court adhered to a cardinal rule of contractual interpretation. Klever v Klever, 333 Mich 179 (1952).
In its decision the trial court determined that both parties to the agreement had intended the $4,000 to inure to the joint benefit of both mortgagee and mortgagor. Both parties wished to protect their separate interests in the mortgaged property. Permitting the plaintiffs to purchase personal property with the $4,000 would be inconsistent with their original intentions. The trial court’s decision to have the $4,000 applied against plaintiffs’ mortgage debt is consistent with the parties’ original intentions.
Plaintiffs’ attorney claims a lien over the $4,000. Under Michigan law attorneys’ liens, if not waived or released, are upheld and founded upon common law. Kysor Industrial Corp v D M Liquidating Co, 11 Mich App 438 (1968). By drafting a settlement agreement which specifically provided that the proceeds were to be signed over to Farm Bureau, plaintiffs’ attorney released the lien.
Affirmed. Costs to defendants.
All concurred.
This form of impossibility develops after the inception of a contract. Bissell v L W Edison Co, 9 Mich App 276 (1967). | [
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Danhof, J.
The plaintiff brought this action seeking a declaratory judgment that an insurance policy did not provide coverage. The trial court held that there was coverage and we affirm.
The policy covered 2 automobiles owned by the defendant Willie A. Irwin, a 1962 Rambler and a 1964 Rambler. In mid-October of 1966 Willie Irwin bought a 1954 Pontiac and towed it to his home. The title to the 1954 Pontiac was endorsed in blank; however, Irwin took no further steps to have the title placed in his name.
The principal witness at the trial was the defendant, Willie Irwin, whose testimony we summarize as follows: The Pontiac was purchased for its salvage value and to obtain its tires. Both the Ramblers became inoperable and a mechanic informed him that it would take a week or 10 days to repair one of the Ramblers. He decided to investigate the possibility of using the Pontiac to go back and forth to work. On December 12, 1966, the defendant and his son started the car with a booster and the son attempted to drive the car to a service station for repairs. The accident giving rise to this litigation took place while the car was being driven to the service station. On a previous occasion the car had been towed to the service station to have the brakes worked on.
The plaintiff’s first contention is that the Pontiac was owned by the defendant and thus falls within a clause excluding coverage for “owned automobiles” which are not named in the policy. In the trial court all parties stipulated that the Pontiac was not an “owned automobile” as that term is used in the policy. The case was tried on this assumption and, although it appears likely that the fact is directly contrary to the stipulation, we believe that the parties are bound by the stipulation.
The trial court held that there was coverage because the Pontiac was a “temporary substitute automobile”. The policy defines “temporary substitute automobile” as
“any automobile or trailer, not owned by the named insured, while temporarily used with the permission of the owner as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.”
Since it has been stipulated that the Pontiac was not an owned automobile the only question presented is whether the Pontiac was temporarily pressed into service as a substitute for one of the Ramblers. Willie Irwin testified that this was the situation and the trial court so found. We cannot say that this finding is clearly erroneous. GCR 1963, 517.1.
Affirmed, costs to the defendant.
All concurred. | [
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Per Curiam.
After a jury trial the defendant was convicted of carrying a concealed weapon. MCLA § 750.227 (Stat Ann 1962 Rev § 28.424). He now appeals.
On September 16,1969, the defendant was stopped by two police officers because he was driving a car that did not have a rear license-plate light. The officers examined the defendant’s driver’s license and shined a flashlight into the car. The butt of a revolver was observed sticking out from under the driver’s seat.
The defendant contends that it was error to admit into evidence a letter from the director of the Michigan State Police. The letter stated that there was no record that a license to carry a concealed weapon had been issued to the defendant.
We find it unnecessary to pass upon this contention. The defendant has never contended that he was licensed to carry a concealed weapon. At the trial he based his defense solely on the contention that he was not aware that the gun was in his car. The question of whether a defendant has been li censed must be put in issue by the defendant. MCLA § 776.20 (Stat Ann 1971 Cum Supp § 28.1274 [1]) provides:
“In any prosecution for the violation of any acts of the state relative to use, licensing and possession of pistols or firearms, the burden of establishing any exception, excuse, proviso or exemption contained in any such act shall be upon the defendant but this does not shift the burden of proof for the violation.”
Since the issue was never raised by the defendant, the letter is merely superfluous and its admission could not be reversible error.
The defendant contends that the trial court erred in refusing to grant his motion to suppress the gun. The trial court found that the police officers stopped the defendant for an actual violation and not as a pretext for an illegal search, and that the revolver was in plain view of the police officer who was standing where he had a right to be. These findings are supported by the record. Therefore, the search and seizure was valid. People v. Beauregard (1970), 21 Mich App 224; People v. Pruitt (1970), 28 Mich App 270.
The defendant contends that he was erroneously restricted by the trial judge regarding his cross-examination of a police officer pertaining to police practices that were not directly involved in the case. The defendant contends that this subject was a proper one to be explored in a hearing on a motion to suppress. However, the incident now complained of occurred during the trial before the jury and not during a separate hearing. The trial court gave the defendant the opportunity to explore this matter out of the presence of the jury and the defendant chose not to do so.
Affirmed. | [
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Levin, J .
The defendant appeals his conviction of armed robbery. MCLA 750.529, MSA 28.797.
After the jurors retired to consider their verdict they returned and the foreman asked that the testimony of the victim and of the only other eyewitness be read back to them. The judge refused the request saying that the trial had lasted but one day — the jurors were deliberating on the following day — and he did not think the request was justified. The jurors again retired to consider their verdict.
Later they reported that they were unable to agree on a verdict and stood nine or ten for con viotion. In response, the judge said that perhaps he had been too hasty in refusing the previous request and if the jurors still desired that the testimony be read it could be done, “if that is where the dividing line is between you, that you cannot agree upon what the testimony was”.
The jurors were permitted to consider the judge’s response in private and reported that they would like to have the eyewitness’s testimony read. The jurors were then excused so the judge could consider the matter with counsel. The defendant’s lawyer asked that the request be denied and, if it was granted, that the testimony of all the witnesses be read. The judge ruled that the eyewitness’s testimony would be read in its entirety, direct and cross, and it was so read to the jurors. None of the testimony of the other witnesses was read.
We do not think the judge conveyed to the jury that he desired a guilty verdict by first denying the jury’s request and then granting it after he learned that most of the jurors had voted to convict the defendant. The communication to the judge of how the jurors had voted occurred inadvertently. The judge made it clear that this information was not pertinent:
“Juror No. 7: Tour Honor, we find the conclusion is, this far, we have nine guilty—
“The Court: Don’t tell me that — .
“Juror No. 7: I am sorry, sir.
“The Court: That’s right. You should not. You have not agreed upon a verdict?
“Juror No. 7: We have not agreed upon a verdict.”
We have examined the authorities cited by the defendant’s lawyer. They do not substantiate his contention that the defendant should be granted a new trial because the eyewitness’s testimony was read back to the jurors.
The general rule, well established, is that when a jury requests that testimony be read back to it both the reading and extent of reading is a matter confided to the sound discretion of the trial judge. See Klein v Wagenheim, 379 Mich 558, 561 (1967); People v Walker, 371 Mich 599, 610 (1963); Rumptz v Leahey, 26 Mich App 438, 443 (1970).
In Klein v Wagenheim, supra, p 561, the Michigan Supreme Court considered and rejected the argument that it is not proper to read any testimony, unless all the testimony is read, because otherwise there would be a tendency to emphasize what is read. The Court declared: “This is not now and never has been the law in Michigan”.
It obviously would be far too burdensome a rule to require that the entire testimony of all the witnesses be read back if any testimony is read. In this case the jurors, not the judge, selected what should be read; the entire testimony of the witness, both direct and cross, was read. There was no error.
Affirmed.
All concurred. | [
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Memorandum Opinion. Defendant was convicted on plea of guilty to unauthorized use of a motor vehicle without intent to steal, and appeals. The people have filed a motion to affirm.
Upon examination of the briefs and record it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission.
Motion to affirm granted. | [
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Per Curiam.
The defendant was convicted of the crime of breaking and entering an occupied dwelling with intent to commit a larceny. MCLA § 750.110 (Stat Ann 1971 Cum Supp § 28.305).
The only issue raised on appeal concerns the procedures preceding the sentencing of the defendant to a prison term of 7-1/2 to 15 years.
Before sentencing, the defendant’s lawyer asked for a copy of the presentence report. The judge took the request under advisement and before the date set for sentencing furnished the defendant’s lawyer with four pages of the six-page report, withholding two pages.
The rule enunciated in decisions of our Court is that whether and the extent to which a presentence report shall be furnished rests in the trial judge’s discretion. See People v. McFadden (1971), 31 Mich App 512, 517.
In People v. Malkowski (1971), 385 Mich 244, 249, the Michigan Supreme Court considered the question raised on this appeal. The Court stated that the problems which arise out of sentencing “have been a matter of concern” to the Court over the past several years, referred to numerous law review articles dealing with the problem of a defendant’s access to presentence reports and declared:
“It is vitally important to the defendant and to the ends of justice that the sentence be based upon accurate information. The great majority of defendants plead guilty. For those defendants, probation or determination of the length of time they will be in prison are the only significant decisions to be made by the judge. One commentator points out:
“ ‘Basic fairness to the accused would seem to require the same opportunity to rebut evidence against him at sentencing as at trial. The stakes at sentencing may be just as high, and the justification for non-disclosure no more, than at the time of guilt determination.’ Lehrich, The Use and Disclosure of Presentence Reports in the United States, 47 FRD 225, 251 (1969).”
The Court also announced that it was considering revision of the court rules to require the furnishing of presentence reports routinely.
However, the Court affirmed Malkowski’s conviction because the prosecutor had printed the presentence report in the Malkowski case as part of the people’s appendix and Malkowski had little to object to. The Court concluded that “no useful result would be achieved” by remanding for resentencing.
The entire Court, except Justice Black, signed the majority opinion. Justice Black dissented from the Court’s intimation that presentence reports should be furnished.
While Malkowski is a harbinger of a change in the law, the law has not yet been changed. Under the circumstance that the Supreme Court is aware of the problem, has considered it, and has not yet acted, we do not think it would be appropriate for us to outrun the Supreme Court.
Affirmed.
See the recent annotation: Defendant’s Bight to Disclosure of Presentenee Eeport, 40 ALR3d 681. | [
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] |
T. M. Burns, J.
This is an appeal from the judgment of a directed verdict of no cause for action in favor of defendant. The judgment was entered on April 10, 1970. Plaintiffs moved for a rehearing on the motion for a directed verdict on April 23, 1970, which was denied on May 8, 1970. Claim of appeal was filed on May 26, 1970.
Frank Meli got into his 1965 Oldsmobile on January 1, 1966. The motor was running, but the transmission was in “park”. He put the car in gear; and as he stepped on the gas, the car leaped forward. The car continued forward even after his foot was removed from the accelerator, and the car jumped a ditch and hit a tree causing damage to the car and injuries to the plaintiff. Meli testified that the car had been serviced on a monthly basis by the dealer and that he had experienced no previous trouble with the accelerator. The auto had 28,733 miles on it at the time of the accident.
Roger DuMortier, an adjuster for AAA, the insurer of the automobile, was called as a witness. Mr. DuMortier testified that as a part of his adjustment of the damages claim on the car, he examined the automobile. His examination revealed that the accelerator was stuck to the floor and that the accelerator spring was knocked off rather than broken and that there was no evidence of mechanical failure.
Expert witness, Dr. Thomas Manos, was then called by the plaintiffs. Dr. Manos testified that he had performed certain experiments upon a 1964 Oldsmobile which was similar to plaintiffs. The experiments involved the acceleration behavior of the automobile with a disconnected accelerator spring.
Dr. Manos was then asked whether he had an opinion as to what would cause an automobile to suddenly accelerate when a slight pressure was applied to the accelerator pedal and to continue forward when the accelerator pedal was released. Dr. Manos testified that, in his opinion, the hypothetical factual situation would indicate that either the accelerator spring was broken or disconnected.
Finally, Dr. Manos testified that he would not expect a properly manufactured spring to either break or become dislodged after 28,733 miles and that the spring should last the life of the car. However, when asked if he had an opinion whether the spring in plaintiffs’ car was properly manufactured and installed, defense counsel objected. The objection was sustained. Dr. Manos did indicate that he could not tell whether the spring was broken or knocked off at the time of the accident, but only that the circumstances indicated that it was not connected.
On this appeal, plaintiffs present the following question:
Did the trial court err in granting a directed verdict for defendant on the grounds that there was not sufficient evidence for the jury to find that there was a defect attributable to defendant manufacturer in a suit based on breach of implied warranty?
Sufficiency of the evidence is a question for the trial court. Evans v Hackard, 29 Mich App 291, 294 (1970). However, plaintiffs first contend that the trial court, in directing the verdict in defendant’s favor, passed on the credibility of the expert witness, a function which can be performed only by the trier of fact, in this case the jury. However, our reading of the trial court’s opinion reveals that he addressed himself to the sufficiency of the evidence only. Therefore, plaintiffs’ contention that the trial court invaded the province of the jury by passing on credibility is without merit.
The trial court must, when deciding whether to grant a directed verdict, view the evidence in the light most favorable to the party opposing it. Therefore, in the instant case, if plaintiffs introduced evidence which tended to prove, either directly or by way of permissible inference, that there was a defect in the accelerator spring when it left the manufacturer and that the defect was the proximate cause of plaintiffs’ damages, then there is sufficient evidence to go to the jury.
Expert testimony established only that the spring was probably disconnected at the time of the incident. There was no evidence as to how the spring became disconnected. Therefore, a finding that the spring became disconnected because of a defect in the manufacture would have to rest on mere conjecture rather than on a required reasonable inference.
Reasonable inferences must be based on the evidence. However, if after all of the evidence is presented, there still exists two or more equally plausible explanations as to how the spring became disconnected, then the selection by the jury of one explanation would not be based upon a reasonable inference, but would be based upon mere conjecture.
“ ‘As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may he 2 or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any 1 of them, they remain conjectures only. On the other hand, if there is evidence which points to any 1 theory of causation, indicating a logical sequence of cause and effect, then there is a juridical basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence.’ ” City of Bessemer v Clowdus, 261 Ala 388, 394; 74 So 2d 259, 263 (1954); quoted in Kaminski v Grand Trunk W R Co, 347 Mich 417, 422 (1956).
In the instant case there was no evidence from which the trier of fact could properly deduce that the accelerator spring became disconnected as a result of a defect in the manufacture. We are dealing here with a part which is open and could have been disconnected while the car was being serviced or through any number of other ways, each as plausible as plaintiffs’ contention that it was caused by a defect in the manufacture.
We are not confronted here with an enclosed part such as a brake mechanism or a fuel pump where it could logically be inferred that any defect was present when the automobile left the manufacturer. In cases where the defect is more or less in a “sealed package”, it is more plausible to believe that the defect was caused by the manufacturer than to believe that the package was opened after sale, the defect caused independently, and then the package resealed. See Pattinson v Coca-Cola Bottling Co of Port Huron, 333 Mich 253 (1952); Sharp v Chrysler Corp, 432 SW 2d 131 (Tex Civ App, 1968).
Here, however, we are dealing with an exposed .part. The engine had been serviced several times. It is, therefore, just as likely that the spring was disconnected independently as it is that it was disconnected through some defect in the manufacture. Therefore, since there was no evidence to remove the plaintiffs’ theory from the realm of conjecture, the trial court properly directed the verdict in defendant’s favor.
Affirmed.
All concurred.
Cusumano v Stroh Brewery Co, 26 Mich App 549 (1970).
See also Parsonson v Construction Equipment Co, 386 Mich 61, 76 (1971). | [
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Murphy, PJ.
Plaintiff filed suit against Johnson & Johnson Vision Products, Inc.,* when she suffered permanent injury to her right eye after using contact lenses manufactured by defendant. The trial court found that plaintiffs claims against defendant were preempted by the Medical Device Amendments of 1976 (mda), 21 USC 360c et seq., to the Federal Food, Drug, and Cosmetic Act, 21 USC 301 et seq., and granted defendant’s motion for summary disposition pursuant to MCR 2.116(C)(4) (the court lacks subject-matter jurisdiction). Plaintiff appeals. We reverse and remand for trial.
Plaintiff alleged that she developed a comeal ulcer and suffered permanent injury to her right eye after using Vistakon Acuvue, etafilcon A, hydrophilic disposable contact lenses (Acuvue contact lenses), a product manufactured by defendant. Plaintiffs second amended complaint contained claims against defendant for negligent design and manufacture of the contact lenses, negligent failure to warn of the dangers associated with the use of the contact lenses, and breach of warranty. Defendant moved for summary disposition pursuant to MCR 2.116(C)(4), arguing that Acuvue contact lenses are regulated as Class m medical devices under the mda and that plaintiffs claims against defendant were expressly preempted by § 360k(a), 21 USC 360k(a). The trial court granted defendant’s motion, holding that § 360k(a) preempted plaintiff’s claims.
This Court reviews de novo a trial court’s grant or denial of summary disposition. Bitar v Wakim, 211 Mich App 617, 619; 536 NW2d 583 (1995). When reviewing a motion for summary disposition under MCR 2.116(C)(4), we must determine whether the pleadings demonstrate that the defendant was entitled to judgment as a matter of law or whether the affidavits and other proofs show that there was no genuine issue of material fact. Bitar, supra, 619-620.
The issue in this case is whether § 360k(a) preempts plaintiff’s negligent design and manufacture, negligent failure to warn, and breach of implied war ranty claims against defendant. The majority of federal and state courts considering this issue have held that § 360k(a) preempts most or all state products liability claims against the manufacturer of a Class HI medical device. See, e.g., Mitchell v Collagen Corp, 67 F3d 1268 (CA 7, 1995); Duvall v Bristol-Myers-Squibb Co, 65 F3d 392 (CA 4, 1995); Mendes v Medtronic, Inc, 18 F3d 13 (CA 1, 1994); Stamps v Collagen Corp, 984 F2d 1416 (CA 5, 1993); Stefl v Medtronic, Inc, 916 SW2d 879 (Mo App, 1996); Ambrosio v Barnes-Hind, Inc, 211 AD2d 70; 625 NYS2d 740 (1995). The United States District Courts for the Eastern and Western Districts of Michigan have both adopted the majority position. Strong v Telectronics Pacing Systems, Inc, 891 F Supp 401 (WD Mich, 1994), rev’d on other grounds 78 F3d 256 (CA 6, 1996); Kemp v Pfizer, Inc, 835 F Supp 1015 (ED Mich, 1993). Recently, the Sixth Circuit Court of Appeals adopted the majority position. Martin v Telectronics Pacing Systems, Inc, 70 F3d 39 (CA 6, 1995).
Until now, no Michigan appellate state court has addressed in a published decision the preemptive effect of § 360k(a) in regard to state products liability claims against manufacturers of Class m medical devices. After much consideration, we reject the reasoning of Martin as well as the rest of the federal and state cases that have held that § 360k(a) preempts most or all state products liability claims against manufacturers of Class HI medical devices. Instead, we are persuaded by the minority view, which rejects the view that § 360k(a) provides blanket preemption of all state law claims against manufacturers of Class in medical devices. Kennedy v Collagen Corp, 67 F3d 1453 (CA 9, 1995); Ministry of Health, Province of Ontario v Shiley Inc, 858 F Supp 1426 (CD Cal, 1994); Larsen v Pacesetter Systems, Inc, 74 Hawaii 1; 837 P2d 1273 (1992), amended 74 Hawaii 650 (1992); Haudrich v Howmedica, Inc, 267 Ill App 3d 630; 642 NE2d 206 (1994). We therefore adopt the minority position. In particular, we find the analysis and reasoning of the Ninth Circuit Court of Appeals in Kennedy to be persuasive.
The Supremacy Clause of the United States Constitution provides that the laws of the United States “shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” US Const, art VI, cl 2. Pursuant to the Supremacy Clause, Congress may preempt state law. Louisiana Public Service Comm v Federal Communications Comm, 476 US 355, 368; 106 S Ct 1890; 90 L Ed 2d 369 (1986). “Consideration of issues arising under the Supremacy Clause ‘start[s] with the assumption that the historic police powers of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and manifest purpose of Congress.’ ” Cipollone v Liggett Group, Inc, 505 US 504, 516; 112 S Ct 2608; 120 L Ed 2d 407 (1992), quoting Rice v Santa Fe Elevator Corp, 331 US 218, 230; 67 S Ct 1146; 91 L Ed 1447 (1947). Congressional intent is the touchstone of any preemption analysis. Cipollone, supra, 516. Congressional intent may be explicitly stated in the language of a statute or implicitly contained in its structure and purpose. Id. In the absence of an express preemption clause, state law is preempted if the state law actually conflicts with federal law or if federal law so thoroughly occupies a legislative field that it can be reasonably inferred that Congress did not intend the states to supplement it. Id. If the statute contains an express preemption clause, the plain wording of the preemption clause must be examined because it contains the best evidence of Congress’ preemptive intent. CSX Transportation, Inc v Easterwood, 507 US 658, 664; 113 S Ct 1732; 123 L Ed 2d 387 (1993). The question to be answered in instances of express preemption is the extent to which Congress intended to preempt state law. Cipollone, supra, 517; Kennedy, supra, 1456.
There is a strong presumption against preemption. Cipollone, supra, 523. This presumption is particularly strong when the regulations in question relate to health and safety, which have historically been matters of local concern, and when preemption would preclude state remedies where no federal remedy exists. Ministry of Health, supra, 1432.
The mda was enacted in response to concerns regarding the safety of the Daikon Shield and other medical devices, such as heart valves and pacemakers. Id., 1434. The purpose of the mda was to protect consumers from “increasingly complex devices which pose serious risk if inadequately tested or improperly designed or used.” Id., quoting S Rep No 94-33, 94th Cong, 2d Sess (1976), reprinted in 1976 US Code Cong & Admin News 1074. In introducing the legislation, Senator Edward Kennedy stated: “The purpose of this legislation is to protect the health and safety of the American people . . . the legislation is written so that the benefit of the doubt is always given to the consumer. After all it is the consumer who pays with his health and his life for medical device malfunctions.” Id., quoting 121 Cong Rec 59, 10688 (1975). The mda was also written to encourage the research and devel opment of medical devices that would improve the health and longevity of American people. Id.
The mda classifies medical devices as Class I, n, or m devices. 21 USC 360c(a). The degree of danger posed by the medical device to the public determines its classification. Class m medical devices are the most dangerous and the most heavily regulated. The Food and Drug Administration has classified extended wear soft contact lenses as Class in medical devices. 21 CFR 886.5925. Generally, Class in devices are subject to “premarket approval to provide reasonable assurance of [their] safety and effectiveness.” 21 USC 360c(a)(l)(C). To obtain premarket approval, the manufacturer of a Class m medical device must submit a detailed application to the FDA containing, but not limited to, the following information: information regarding the safety and effectiveness of the device, the intended use of the device, the methods used to manufacture the device, copies of proposed labeling for the device, and any other information requested by the FDA. 21 USC 360e(c)(l)(A)-(G); 21 CFR 814.20(b) (1)-(12). The FDA refers each application to a panel that prepares a report and recommendation. 21 USC 360e(c)(2). The FDA must either accept or reject the application within 180 days after receiving the application. 21 USC 360e(d)(l)(a). Defendant submitted an application for premarket approval of Acuvue contact lenses. The FDA approved the application, subject to additional FDA “conditions of approval.” There is no indication from the record that defendant failed to comply with the FDA’s additional approval conditions.
The MDA contains an express preemption provision which provides as follows:
Except as provided in subsection (b)[ ] of this section, no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement —
(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and
(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter. [21 USC 360k(a).]
Whether Congress intended to preempt state law products liability actions is unclear from the express language of the preemption clause. If a statute is silent or ambiguous regarding congressional intent, a court may look to an agency’s regulations for guidance in interpreting congressional intent. Chevron, USA, Inc v Natural Resources Defense Council, Inc, 467 US 837, 843; 104 S Ct 2778; 81 L Ed 2d 694 (1984). The court should defer to a federal agency’s construction of the statute unless the agency’s interpretation is unreasonable. Id., 844. Because the FDA is the agency that implements the mda, we must consider its interpretation of the preemption clause of the mda. The FDA interprets the preemption clause as follows:
State or local requirements are preempted only when the Food and Drug Administration has established specific counterpart regulations or there are other specific requirements applicable to a particular device under the act, thereby making any existing divergent State or local requirements applicable to the device different from, or in addition to, the specific Food and Drug Administration requirements. [21 CFR 808.1(d) (emphasis added).]
Defendant argues that the premarket approval process is a “specific requirement[] applicable to a particular device.” We cannot agree. While most federal and state courts that have considered similar arguments have concluded that the premarket approval process satisfies the fda’s preemption rule and preempts state common-law claims, we agree with the court in Kennedy that these courts have failed to consider whether Class m medical devices as a group can constitute a “particular device” within the FDA’s understanding of that term. Kennedy, supra, 1458. If the premarket approval process constitutes a specific requirement applicable to a particular device, then manufacturers of Class m medical devices would be immune from state products liability claims. However,
it makes little sense to hold that the fda’s premarket approval process qualifies as a ‘specific requirement applicable to a particular device.’ 21 CFR 808.1(d) (emphasis added). All class III devices are required to obtain premarket approval before being sold in interstate commerce. 21 USC 360e; 21 CFR 814.1. The fact that the premarket approval process involves specific requirements, see 21 CFR 814, 820, must not be confused with the premarket approval requirement itself acting as a specific requirement. [Id., 1459.]
The conclusion that the premarket approval process satisfies the requirement that there be a specific requirement applicable to a particular device is also inconsistent with cases that have analyzed the preemption issue with regard to Class n medical devices:
In Class ii cases courts have consistently focussed [sic] both on the specificity of the federal requirement and the particularity of the device. . . . [0]ther courts have required less overall specificity under § 808.1(d) for Class III devices than for Class H devices. They have required particularity in the preemption analysis of Class n devices, but have ignored the word ‘particular’ in the preemption analysis of Class hi devices.
Such distinctions between Class n and Class III devices make little sense. Congress enacted the mda to ensure that safe and effective medical devices were introduced into the market. HR Conf Rep No 1090. There is no reason for a court’s preemption analysis to change depending on the class of device in issue. [Id., 1458-1459.]
Moreover, it is the burden of the party arguing in favor of preemption to show that Congress intended to preempt state law, Silkwood v Kerr-McGee Corp, 464 US 238, 255; 104 S Ct 615; 78 L Ed 2d 443 (1984), and defendant has failed to show that there are any “specific requirements” that are uniquely applicable to disposable soft contact lenses. We find the court’s reasoning in Kennedy to be persuasive and reject defendant’s argument that the premarket approval process constitutes a specific requirement applicable to a particular device. “The federal law requiring the premarket approval of Class m devices was not enacted in order to free manufacturers from the everyday burdens of the marketplace after they are permitted to enter it. Premarket approval is supposed to benefit consumers, not create a rose garden, free from liability, for manufacturers.” Kennedy, supra, 1459-1460.
While our rejection of the conclusion that § 360k(a) provides for blanket preemption of all state products liability claims is a departure from the majority position, we believe that our holding is consistent with congressional intent. Because Congress enacted the mda to protect consumers, it would be entirely con trary to Congress’ intent to interpret the mda as providing for blanket preemption of state products liability claims against manufacturers of Class ni medical devices. Moreover, Congress included in the mda a provision stating that “[c]ompliance with an order issued under this section shall not relieve any person from liability under Federal or State law.” 21 USC 360h(d). Congress’ inclusion of such a provision in the mda is evidence that Congress intended to preserve state products liability claims against manufacturers of Class m medical devices rather than to preempt such claims.
Accepting defendant’s interpretation of Congress’ intent in enacting § 360k(a) would result in the elimination of any remedy for a consumer injured by a Class m medical device and would effectively immunize manufacturers of Class m medical devices from claims brought by consumers injured by such devices. This was not the result Congress intended when it enacted § 360k(a). “The legislative history of the [Medical Device] Amendments shows an intent to protect consumers from medical device injuries, rather than leave them without a remedy.” Ministry of Health, supra, 1440. We decline to interpret the mda as immunizing manufacturers of Class m medical devices from claims brought by consumers injured by such devices and providing for blanket preemption of all state products liability claims against such manufacturers in the absence of more specific statutory language. “If the intent of Congress were to nullify an entire body of state consumer protection law, and leave the victims without a remedy, it would have specifically said so.” Id.
In light of the purpose of the MDA of protecting consumers from unsafe medical devices, the fact that Congress did not provide any federal remedy in the MDA is also compelling evidence that Congress did not intend to provide for blanket preemption of state products liability claims against the manufacturers of Class m medical devices. Congress’ silence regarding whether it intended to preempt state products liability claims by enacting the MDA “takes on added significance in light of Congress’ failure to provide any federal remedy for persons injured by such conduct. It is difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct.” Silkwood, supra, 251. As the court noted in Kennedy, supra, 1459:
Reading the mda’s preemption provision in the manner advocated by the defendant would result in consumers of Class m devices being left without recourse for any harm suffered. Such a result flies in the face of the congressional intent behind the mda legislation: consumer protection.
Courts that have held that § 360k(a) preempts state products liability actions against manufacturers of Class m devices have also failed to consider the meaning of the words “general applicability” as used in the context of 21 CFR 808.1(d)(1). Id., 1458. 21 CFR 808.1(d) provides, in relevant part:
There are other State or local requirements that affect devices that are not preempted by section 521(a) of the act [21 USC 360k(a)] because they are not ‘requirements applicable to a device’ within the meaning of section 521(a) of the act. The following are examples of State or local requirements that are not regarded as preempted by section 521 of the act:
(1) Section 521(a) does not preempt State or local requirements of general applicability where the purpose of the requirement relates either to other products in addition to devices (e.g., requirements such as general electrical codes, and the Uniform Commercial Code (warranty of fitness)), or to unfair trade practices in which the requirements are not limited to devices. [Emphasis added.]
State common law is a law of general applicability. Kennedy, supra, 1459. Furthermore, plaintiffs breach of implied warranty claim arises under the Uniform Commercial Code, MCL 440.2314, 440.2315; MSA 19.2314, 19.2315, and the UCC is specifically included in 21 CFR 808.1(d)(1) as an example of a law of general applicability. Thus, 21 CFR 808.1(d)(1) also supports our conclusion that plaintiffs negligent design and manufacture, negligent failure to warn, and breach of implied warranty claims are not preempted.
Defendant argues that plaintiffs failure to warn claim is preempted because it would impose a requirement that is “different from, or in addition to” the requirements imposed under the mda. We disagree. According to plaintiff, defendant failed to include in or on the sealed contact lens dispensing box a warning of the risk of corneal ulcer associated with the use of Acuvue contact lenses. The mda contains labeling requirements that are applicable to all medical devices regulated by the MDA. 21 USC 352(f) requires medical devices to have a label with “adequate directions for use,” but provides that when such directions are “not necessary for the protection of the public health, the Secretary shall promulgate regulations exempting such drug or device from such requirement.” The FDA has promulgated a regulation providing for an exemption from the labeling require ment of 21 USC 352(f) for “prescription devices” if certain conditions are met. 21 CFR 801.109. One of the conditions is that the medical device must be one “for which directions, hazards, warnings, and other information are commonly known to practitioners licensed by law to use the device.” 21 CFR 801.109(c).
Plaintiff argues that the danger of increased risk of corneal ulcer was not commonly known when plaintiff was prescribed Acuvue contact lenses and that defendant therefore was required to include a warning in the package. Plaintiffs failure to warn claim is not based on state law. Plaintiffs failure to warn claim is actually a claim that defendant negligently failed to comply with the labeling requirements of the mda as well as the labeling requirements of the applicable FDA regulation. 21 CFR 808.1(d)(2) specifically states that § 360k(a) “does not preempt State or local requirements that are equal to, or substantially identical to, requirements imposed by or under the act.” In Ministry of Health, supra, 1439, the court stated that “the MDA would not preempt claims that the manufacturer negligently failed to comply with the fda’s regulations, since a finding of wrongdoing would merely impose those regulations already imposed by the statute, and would not be ‘different from or in addition to’ those imposed by the MDA.” Thus, to the extent that plaintiff’s failure to warn claim is based on defendant’s failure to comply with the mda and 21 CFR 801.109, plaintiff’s failure to warn claim merely seeks to enforce the federal standard established by the mda and the appropriate FDA regulation and is therefore not preempted.
Defendant also contends that 21 CFR 808.1(b) supports its argument that plaintiff’s claims are pre erupted. In 21 CFR 808.1(b), the FDA states that “no State or political subdivision of a State may establish or continue in effect any requirement with respect to a medical device intended for human use having the force and effect of law (whether established by statute, ordinance, regulation, or court decision).” To the extent that the FDA’s inclusion of the words “court decision” suggests that the fda interprets § 360k(a) as preempting plaintiff’s claims, the fda regulation contradicts congressional intent as well as every other fda regulation interpreting § 360k(a) and is not based on a permissible construction of the statute. Chevron, supra, 842.
Finally, defendant argues that the United States Supreme Court’s decision in Cipollone supports its argument that plaintiff’s claims are preempted. Cipollone involved an analysis of the preemptive effect of the Federal Cigarette Labeling and Advertising Act of 1965, and its successor, the Public Health Cigarette Smoking Act of 1969, 15 USC 1331 et seq. In contrast, the instant case involves the preemptive effect of § 360k(a) of the mda and its accompanying regulations. The statutes in Cipollone were applicable to a particular product, whereas the mda applies to medical devices generally as opposed to a specific medical device. While the language of the preemption clauses in the respective statutes is similar, it is not identical, and we conclude that the language of the mda, the legislative history, and the fda regulations reveal that Congress did not intend to preempt state products liability claims against manufacturers of Class in medical devices.
After our preparation of this opinion, but prior to its release, the United States Supreme Court decided Medtronic, Inc v Lohr, 518 US _; 116 S Ct 2240; 135 L Ed 2d 700 (1996). In Lohr, the Supreme Court held that § 360k(a) does not preempt all state common-law actions against the manufacturers of Class m medical devices. Unlike the contact lenses in this case, the medical device in Lohr, a pacemaker, had not undergone the premarket approval process because it was found to be “substantially equivalent” to a preexisting medical device and was allowed to avoid the premarket approval process and instead comply with a premarket notification process pursuant to 21 USC 360(k). However, for reasons stated previously in this opinion, we reject defendant’s claim that the premarket approval process constitutes a “specific requirement^ applicable to a particular device” and thus preempts plaintiff’s claims. We conclude that the reasoning and holding of Lohr is applicable to this case and supports our conclusion that plaintiff’s claims are not preempted.
In sum, we conclude that § 360k(a), considered in conjunction with 21 USC 360h(d) and the applicable FDA regulations, supports a finding that Congress did not intend to preempt plaintiff’s negligent design and manufacture, negligent failure to warn, and breach of implied warranty claims against defendant. The Supreme Court’s holding in Lohr supports our holding in this case. Accordingly, we conclude that the trial court erred in granting defendant’s motion for summary disposition pursuant to MCR 2.116(C)(4).
Reversed and remanded. We retain no jurisdiction.
E. R. Post, J., concurred.
Plaintiff also filed suit against Dr. Irving Adler, First Optometry Care Centers, Inc., and For Your Eyes Only, Inc. However, these defendants are not parties to this appeal because the trial court entered an order dismissing plaintiff’s cause of action against them pursuant to the parties’ stipulation for dismissal.
Because plaintiff’s complaint does not allege that defendant breached any express warranties, we will assume that plaintiff’s breach of warranty claim is a claim for breach of an implied warranty of merchantability, MCL 440.2314; MSA 19.2314, or a claim for breach of an implied warranty that the contact lenses were fit for a particular purpose, MCL 440.2315; MSA 19.2315.
Subsection b permits a state to apply for an exemption from the preemption of subsection a and is not at issue in this case. | [
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Corrigan, J.
In this case involving an issue of first impression, we hold that the specific provisions of the Mobile Home Commission Act (mhca), MCL 125.2301 et seq.; MSA 19.855(101) et seq., supersede the general provisions of the Uniform Commercial Code, MCL 440.1101 et seq.; MSA 19.1101 et seq., regarding the transfer of title to mobile homes.
Defendant Ford Consumer Finance Company, Inc., (Ford) appeals as of right the order granting summary disposition in favor of plaintiffs David D. Ladd and NBD Bank, N.A., and vacating the court’s previous order. Plaintiff NBD Bank, N.A., cross appeals the same order. We reverse the order granting summary disposition to plaintiffs and affirm the order on cross appeal denying plaintiff NBD’s claim that Ford was liable for conversion.
I. underlying facts and procedural history
Colony Homes Center, Inc., operated a mobile-home dealership in Flint, Michigan. To obtain its inventory, Colony entered an inventory financing agreement* with Ford in May 1988. Under this agreement, Colony would submit an invoice or other docu ment to Ford describing the mobile-home unit that it desired to acquire. Ford would then advance funds directly to the mobile-home manufacturer to purchase the unit on Colony’s behalf. Ford obtained a security interest in Colony’s entire inventory as well as all proceeds and accounts pertaining to the inventory.
Ford required the manufacturer to deliver the certificate of origin to it as a condition of financing Colony’s purchase. The certificate of origin identified the manufacturer, model and serial number of the mobile home, and the original purchaser. It provided temporary evidence of ownership. Colony agreed that upon the sale of a mobile home, it would immediately repay any sum that Ford had advanced for the purchase. Colony further agreed to hold the proceeds from the sale of the homes in trust for Ford’s benefit. After Colony paid in full the amount due on a mobile home, Ford agreed to release the certificate of origin to Colony to attach to the title application. Possessing the certificate of origin gave Ford additional security because Michigan law requires the certificate of origin to accompany the title application submitted to the Department of Commerce before the department issues a certificate of title. 1985 AACS, R 125.1232(1).
Plaintiff Ladd purchased a mobile home that cost $27,856.80 from Colony. Under a separate arrangement with Colony for consumer loans, plaintiff NBD financed Ladd’s “out of trust”* purchase, without veri fying whether Ford held the certificate of origin and without requiring Colony to pay off Ford. Colony “cashed out” its contract with NBD, without informing Ford of the out of trust sale or paying off the balance due. Colony delivered the mobile home to Ladd, along with an application for a certificate of title for filing with the Department of Commerce. Colony itself never filed the application for certificate of title. However, because Colony never repaid Ford, Ford refused to relinquish the certificate of origin. Consequently, Ladd could not obtain a certificate of title for the mobile home and NBD could not perfect its security interest in the mobile home.
Predictably, Colony ceased doing business and had no assets. Ladd and NBD thereafter sued Ford, alleging a claim and an interest in the certificate of origin. Plaintiffs alleged potential losses because plaintiff Ladd could not obtain title to the mobile home and plaintiff NBD could not perfect its security interest in the mobile home. NBD also alleged that Ford was liable for conversion because it had wrongfully retained the certificate of origin, and sought declaratory relief regarding six other allegedly similar purchases.
The trial court initially granted Ford’s motion for summary disposition under MCR 2.116(C)(8) and (C)(10), ruling that no sale of the mobile home had occurred. The court reasoned that the MHCA required a certificate of title to effect a transfer of ownership. Because Ford had refused to deliver the certificate of origin to Colony, the certificate of title could not be issued. Thus, the out of trust sale was void and did not transfer an interest in the mobile home to plaintiff Ladd.
On rehearing, the court held that plaintiff Ladd was a buyer in the ordinary course of business under the UCC, MCL 440.1201(9); MSA 19.1201(9), who was protected by MCL 440.9307; MSA 19.9307. The trial court reasoned that title to the mobile home passed from Colony to Ladd upon physical delivery of the home under MCL 440.2401(2); MSA 19.2401(2). The trial court further opined that plaintiff Ladd’s status as a buyer in the ordinary course of business protected plaintiff NBD’s security interest. Finally, the trial court determined that plaintiff NBD had not proved its claim of conversion against defendant Ford and denied declaratory relief regarding the six other purchases.
H. TITLE TRANSFER: DOES THE MHCA OR THE UCC GOVERN?
Ford initially contends that the trial court erred in holding that Colony validly transferred ownership to plaintiff Ladd under the UCC, MCL 440.2401(2); MSA 19.2401(2), at the time Ladd accepted delivery of the mobile home. We agree. This Court reviews de novo a trial court’s ruling on a motion for summary disposition, Johnson v Wayne Co, 213 Mich App 143, 148-149; 540 NW2d 66 (1995). MCR 2.116(C)(10) tests the factual basis underlying á plaintiff’s claim and permits summary disposition when “[ejxcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” Id. When deciding the motion, the court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it in a light most favorable to the opposing party. Id.
A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the complaint. It should be granted only if the claims are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Gazette v Pontiac, 212 Mich App 162, 167; 536 NW2d 854 (1995). A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994).
The MHCA subjects all mobile-home sales or transfers to the certificate of title provisions of the act, except for any new mobile home owned by a manufacturer or a licensed mobile-home dealer and held for sale. MCL 125.2330(1); MSA 19.855(130)(1). Thus, a manufacturer or dealer need not apply for a certificate of title while holding the home for sale. However, upon a sale, a new owner must apply for a certificate of title with the assistance of the dealer. The effective date of the transfer of title is the date of execution of either the application for title or the certificate of title. MCL 125.2330c(2); MSA 19.855(130c) (2): MCL 125.2330(3); MSA 19.855(130)(3) specifically provides that “a mobile home shall not be sold or transferred except by transfer of the certificate of title for the mobile home pursuant to this act.”
The Department of Commerce issues certificates of title for mobile homes. MCL 125.2330b; MSA 19.855(130b). Under the rules promulgated by the Mobile Home Commission under authority of the MHCA, a mobile-home dealer must prepare and file an application for a certificate of title with the Depart ment of Commerce. 1991 AACS, R 125.1217(2). The manufacturer’s certificate of origin must be attached to the original application for the certificate of title. 1985 AACS, R 125.1232(1). To facilitate the attachment of the certificate of origin to the application for title, a lender holding the certificate of origin must surrender it to the mobile-home dealer upon request. 1985 AACS, R 125.1232(2).
The provisions of the UCC governing transfer of ownership differ radically from the MHCA. Under the ucc, without regard to a certificate of title, title to goods passes to the buyer at the time and place at which the seller completes performance wdth respect to delivery of the goods, unless otherwise stated in the contract. People v Lee, 447 Mich 552, 562; 526 NW2d 882 (1994) (citing MCL 440.2401[2]; MSA 19.2401 [2]). Accordingly, we must determine whether the general provisions of the UCC or the specific provisions of the mhca control the transfer of legal ownership.
No Michigan case has considered this precise question. However, this Court has considered similar issues involving the transfer of title to automobiles and watercraft and held that the title transfer provisions of the watercraft certificates of title act (WCTA) and the Michigan Vehicle Code (mvc) preempt the UCC. Jerry v Second Nat’l Bank of Saginaw, 208 Mich App 87; 527 NW2d 788 (1994); Whitcraft v Wolfe, 148 Mich App 40; 384 NW2d 400 (1985); Messer v Averill, 28 Mich App 62; 183 NW2d 802 (1970). Whitcraft, supra at 50, applied the principle that a specific and particu lax act governs over a general act when the acts are contemporaneous and involve the same subject matter. The Court concluded that the mvc specifically governs the transfer of title to motor vehicles, and that the general title transfer provisions of the UCC, MCL 440.2401(2); MSA 19.2401(2), did not. Under the MVC, an owner or dealer must endorse on the back of the certificate of title an assignment of the title and must deliver the certificate to the purchaser at the time of delivery of the vehicle. Whitcraft, supra at 50 (citing MCL 257.233; MSA 9.1933, MCL 257.235[1]; MSA 9.1935[1], and MCL 257.239; MSA 9.1939). Thus, Whit-craft held that failure to comply with mvc dictates relating to endorsement and delivery of the certificate of title to a motor vehicle rendered the transfer void. Id.
Later, in construing the wcta, MCL 281.1201 et seq.] MSA 18.1288(1) et seq., currently MCL 324.80301 et seq.] MSA 13A.80301 et seq., in Jerry, supra at 93, this Court held that the WCTA preempts the UCC regarding the transfer of title to watercraft. The wcta provides:
A person acquiring a watercraft from the owner thereof, whether the owner is a manufacturer, importer, dealer, or otherwise, shall not acquire any right, title, claim or interest in or to the watercraft until that person has issued to him a certificate of title to the watercraft, or delivered a manufacturer’s or importer’s certificate for it. [MCL 281.1204(1); MSA 18.1288(4)(1), currently MCL 324.80305(1); MSA 13A.80305(1).]
The mhca’s provisions, although different in some respects, are analogous to the title transfer sections of the MVC and the wcta. Applying Whitcraft, Messer, and Jerry, we conclude that the specific certificate of title provisions of the MHCA control over the general provisions of the ucc. The MVC, the wcta, and the mhca are more than mere recording devices; all three acts reflect the Legislature’s intent that strict statutory compliance is essential to transfer ownership.
Generally, when two statutes conflict and one is specific to the subject matter while the other is only generally applicable, the specific statute prevails. Frank v William A Kibbe & Associates, Inc, 208 Mich App 346, 350; 527 NW2d 82 (1995). The title provisions of the UCC, primarily MCL 440.2401; MSA 19.2401, generally govern the transfer of title to goods. The ucc does not require the owner of a mobile home to endorse and deliver a certificate of title to transfer the owner’s interest in a mobile home, as does MCL 125.2330c; MSA 19.855(130c).
The transfer of title must also conform to regulations promulgated by the Mobile Home Commission under the mhca. Colony, as a licensed dealer of mobile homes, was required to prepare and file an application for a certificate of title and to attach the certificate of origin to the application. 1991 AACS, R 125.1217(2); 1985 AACS, R 125.1232(1). Under the mhca, upon delivery and sale of a mobile home, the effective date of a transfer of title to the home occurs on the date of the “execution of either the application for title or the certificate of title.” MCL 125.2330c(2); MSA 19.855(130c)(2). Because Ford refused to relinquish possession of the certificate of origin that must be attached to the application for title, the application for certificate of title could not be properly executed. Under an identical provision of the mvc concerning the time when title to a motor vehicle transfers, MCL 257.233(5); MSA 9.1933(5), execution of an application for certificate of title occurs when the application is sent with the necessary forms to the Secretary of State. Goins v Greenfield Jeep Eagle, Inc, 449 Mich 1, 14; 534 NW2d 467 (1995). We apply this construction as MCL 257.233(5); MSA 9.1933(5) to the identical language of MCL 125.2330c(2); MSA 19.855(130c) (2). Because Colony never filed a completed title application accompanied by the necessary form, the certificate of origin, title was not transferred to plaintiff Ladd.
The purchase of the mobile home was thus void. Under the mvc, the sale of a motor vehicle without an accompanying certificate of title will not transfer ownership of a vehicle to the buyer. Goins, supra at 13-14. Further, sale of a motor vehicle without the delivery of a certificate of title is void. Michigan Mutual Auto Ins Co v Reddig, 129 Mich App 631, 634-635; 341 NW2d 847 (1983). The same principle applies in this context. The sale of the mobile home to plaintiff Ladd was void; he did not acquire any right, title, claim, or interest in the mobile home.
m. WAS PLAINTIFF LADD A BUYER IN THE ORDINARY COURSE OF BUSINESS?
Defendant Ford also contends that the trial court erroneously determined that plaintiff Ladd acquired title to the mobile home as a buyer in the ordinary course of business under the ucc, MCL 440.9307; MSA 19.9307. Again, we agree. Plaintiff Ladd did not qualify as a buyer in the ordinary course of business because he did not first acquire title to the mobile home in conformity with the MHCA.
In Larson v Van Horn, 110 Mich App 369; 313 NW2d 288 (1981), this Court held that a buyer in the ordinary course of business takes title to an automobile free and clear of the security interest of a bank when title to the automobile is transferred to the buyer in conformity with the requirements of the mvc. In Larson, Oceanside Bank loaned Bloomfield Leasing money to purchase a Rolls Royce and took a security interest in the automobile but failed to note the lien on the vehicle’s certificate of title. Id. at 372. Bloomfield Leasing sold the Rolls to Larson and presented Larson with a signed certificate of title, without noting Oceanside’s security interest. Id. at 373. Larson did not apply to the state for a new certificate of title. Id. at 374. The trial court found that Larson was the owner of the vehicle. Id. at 377.
On appeal, this Court determined that Bloomfield and Larson both violated the mvc by failing to apply for a new certificate of title with the Secretary of State. Id. at 379. Nonetheless, the Court concluded that title to the Rolls Royce was transferred to Larson when Bloomfield Leasing signed and delivered the certificate of title to him. Id. Because Oceanside failed to perfect its security interest and because Larson purchased the car without actual knowledge of Oceanside’s security interest, Larson took title free and clear of Oceanside’s security interest. Larson was a buyer in the ordinary course of business under MCL 440.9307(1); MSA 19.9307(1). Id. at 379. Thus, Larson indicates that title must pass under the titling act before a buyer in the ordinary course of business can take the automobile free and clear of a secured party’s interest that is not known to the buyer.
In Jerry, supra, this Court considered the conflict between the certificate of title provisions of the wcta and the provisions regarding a buyer in the ordinary course of business. The defendant in Jerry argued that the ucc entrustment provision, MCL 440.2403(2); MSA 19.2403(2), permitted a merchant to transfer the rights of an entruster of a boat to a buyer in the ordinary course of business, even though the merchant did not transfer a certificate of title to the boat to the buyer in conformity with the title transfer provision of the WCTA, MCL 281.1204(1); MSA 18.1288(4)(1) (currently MCL 324.80304; MSA 13A.80304). Jerry, supra at 92-93. This Court rejected the defendant’s argument and held that the UCC entrustment provision could not preempt the certificate of title provisions of the wcta where title to a watercraft did not transfer by delivery of a certificate of title under the WCTA. Id. at 94. The UCC entrustment provision could not be reconciled with the plain meaning of MCL 281.1204(1); MSA 18.1288(4)(1) (currently MCL 324.80304; MSA 13A.80304), which effects transfer of title by issuance or delivery of a certificate of title. Id. Jerry did not address whether the buyer in the ordinary course of business takes title to a watercraft free of any security interest under MCL 440.9307; MSA 19.9307. The ucc entrustment provision is the Article II analogue to MCL 440.9307; MSA 19.9307, because both provisions are designed to protect good-faith purchasers from certain priority interests. See White & Summers, Uniform Commercial Code, (3d ed) § 24-16, p 1175. Jerry thus provides controlling authority on this issue.
As our decisions in Larson and Jerry provide, title must first transfer under the acts before a buyer in the ordinary course of business can take free and clear of a security interest not known to the buyer under the provisions of the UCC. Like the defendant in Jerry, Ladd cannot take advantage of the protections given a buyer in the ordinary course of business under MCL 440.9307; MSA 19.9307, unless the certificate of title to the mobile home was transferred to him. Likewise, Ladd could not have acquired title to the mobile home under the ucc entrustment provision. Without transfer of the certificate of title, title to the mobile home did not pass to plaintiff Ladd. MCL 125.2330; MSA 19.855(130). The sale was void and Ladd does not qualify as a buyer in the ordinary course. Therefore, the trial court erred in finding that Ladd was a buyer in the ordinary course of business.
Despite our sympathy for these innocent plaintiffs, this Court is bound to follow the clear and unambiguous language of the title transfer provisions of the MHCA, MCL 125.2330; MSA 19.855(130). See In re Schnell, 214 Mich App 304, 310; 543 NW2d 11 (1995). Judicial construction of the MHCA title provisions is neither required nor permitted. Id. If the Legislature intends a buyer in the ordinary course of business to take title to a mobile home under the ucc, it should plainly state so in an amended statute.
IV. DECLARATORY JUDGMENT
On cross appeal, plaintiff NBD contends that the trial court erred in denying a declaratory judgment regarding the rights of six other purchasers of Colony mobile homes, who, like plaintiff Ladd, could not obtain title to their homes because Ford held the certificates of origin. MCR 2.605, the rule governing the trial court’s authority to grant declaratory judgments, provides in part:
(A) Power to Enter Declaratory Judgment.
(1) In a case of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory judgment, whether or not other relief is or could be sought or granted.
A circuit court’s decision whether to grant declaratory relief under MCR 2.605 is reviewed for an abuse of discretion. Allstate Ins Co v Hayes, 442 Mich 56, 74; 499 NW2d 743 (1993). Although this Court has sometimes opined that declaratory judgments are reviewed de novo, see, e.g., Michigan Residential Care Ass’n v Dep’t of Social Services, 207 Mich App 373, 375; 526 NW2d 9 (1994), the Supreme Court’s decision regarding the governing standard of review plainly controls. Hauser v Reilly, 212 Mich App 184, 187; 536 NW2d 865 (1995). Therefore, we are constrained to apply an abuse of discretion standard.
The trial court did not abuse its discretion in denying NBD’s request for declaratory judgment. The six other purchasers were not parties in this case. The trial court stated that it was not familiar with the facts surrounding the six other mobile-home purchases and did not know whether the litigants had been properly notified of the instant proceedings. The court reasoned that nothing would preclude it from considering these six cases in due course. The trial court did not abuse its discretion by denying declaratory relief regarding the six other purchases.
V. CONVERSION
Finally, plaintiff NBD contends that Ford wrongfully converted the certificate of origin by refusing to deliver it to Colony. We disagree. NBD has an unperfected security interest in the mobile home. NBD asserts a proprietary interest in the certificate of origin under a Mobile Home Commission rule, 1985 AACS, R 125.1232(2), that requires the lender holding the certificates of origin immediately to surrender the certificates upon request of the mobile-home dealer.
A conversion is any distinct act of dominion wrongfully exerted over the personal property of another and occurs at the point that wrongful dominion is asserted. Attorney General v Hermes, 127 Mich App 777, 786; 339 NW2d 545 (1983). Plaintiff NBD lacks a proprietary interest in the certificates of origin under the Mobile Home Commission’s administrative rule. The benefit of the rule runs toward the mobile-home dealer who can request the delivery of the certificate from the lender. Further, the mobile-home dealer must file the original application for mobile-home title at the time of the sale of the mobile home. See 1991 AACS, R 125.1217(2). Therefore, plaintiff NBD had no right or obligation to possess the certificates of origin and defendant Ford had no obligation to release the certificates to NBD. Accordingly, the trial court properly dismissed plaintiff NBD’s conversion claim.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Under a floor-plan financing arrangement, the creditor loans the debtor the necessary funds to purchase the inventory or finance the business’ operating expenses. The inventory is then pledged as collateral to secure the loan. As inventory is sold, the debtor applies a set percentage of the purchase price to the floor plan in satisfaction of that account. Yamaha Motor Corp, USA v Tri-City Motors & Sports, Inc, 171 Mich App 260, 264, n 1; 429 NW2d 871 (1988).
NBD and Colony entered into an agreement under which NBD agreed to finance the consumer retail purchase of Colony’s mobile homes. NBD received credit applications from customers of Colony. If the credit application was approved by NBD, the purchaser would sign a promissory note and security agreement at Colony’s office. Once the purchaser signed the installment loan contract at the mobile-home dealership, the mobile-home dealer took the agreement to an NBD branch for “cashing.” The sale of a mobile home under this arrangement is referred to as an “out of trust” sale.
A mobile home is arguably a “good” under the ucc because a mobile home is a moveable thing at the time of identification to the contract. MCL 440.2105(1); MSA 19.2105(1).
After the Jerry decision, the Legislature repealed the wtca in 1995 PA 58, Part 803 and recodified the act with minor changes in MCL 324.80301 et seq.; MSA 13A.80301 et seq. The changes merely removed archaic language and references.
The same conclusion was reached by the United States Bankruptcy Court for the Western District of Michigan in In re Superior Ground Support, Inc, 140 Bankr 878, 883 (1992). The bankruptcy court concluded that under Michigan law, the “protection afforded to a buyer in the ordinary course of business of motor vehicles does not result without compliance with the Michigan Vehicle Code’s provisions on the transfer of ownership.” Id.
The ucc does not define the term “buyer,” although courts usually focus on whether a completed sale has occurred in order to give a buyer the protection of MCL 440.9307; MSA 19.9307. White & Summers, Uniform Commercial Code, (3d ed) § 24-13, p 1165, n 2. Because Ladd did not receive title to the mobile home from Colony, a completed sale did not occur and Ladd did not qualify as buyer of the home. | [
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Per Curiam:.
Defendant appeals as of right the circuit court’s order setting judgment interest at twelve percent pursuant to MCL 600.6013(5); MSA 27A.6013 (5). We affirm.
Plaintiff’s complaint against defendant alleged that defendant issued to plaintiff a policy insuring a building and its contents. Plaintiff alleged that on August 28, 1990, a fire occurred at the building, resulting in substantial damage to the premises. Plaintiff submitted proof of loss and a claim for benefits, but defendant refused to pay, thereby breaching the insurance contract.
The trial court entered an order granting partial summary disposition in favor of plaintiff with regard to the issue of liability. Defendant appealed, and this Court affirmed the grant of partial summary disposition in an unpublished order, entered May 2, 1994 (Docket No. 159141). Defendant requested, but was denied, a rehearing. The parties stipulated damages in the amount of $176,750, and agreed that taxable costs and interest would be added and included in the judgment.
Plaintiff then brought a motion in the circuit court to determine the rate of interest to be applied to the judgment. Plaintiff contended that the fire insurance policy was a written instrument and that MCL 600.6013(5); MSA 27A.6013(5) provides for a twelve percent rate of interest when the judgment is based on a written instrument. Defendant argued that an insurance policy is not a written instrument under the Uniform Commercial Code (ucc) and therefore the rate of interest should be calculated pursuant to MCL 600.6013(6); MSA 27A.6013(6). Defendant claimed that MCL 600.6013(6); MSA 27A.6013(6) provides that the interest rate for all other civil actions is one percent plus the average interest rate. The trial court entered an order that set the interest rate at twelve percent compounded annually as provided in MCL 600.6013(5); MSA 27A.6013(5).
On appeal, defendant challenges the trial court’s award of twelve percent interest under MCL 600.6013(5); MSA 27A.6013(5) rather than the rate in MCL 600.6013(6); MSA 27A.6013(6), arguing that the insurance policy was not a “written instrument.” We disagree. The determination of which statutory provision applies in a given action is a purely legal question to be resolved by statutory interpretation. Old Orchard By the Bay Associates v Hamilton Mutual Ins Co, 434 Mich 244, 251; 454 NW2d 73 (1990).
MCL 600.6013; MSA 27A.6013, in part, provides:
(5) For complaints filed on or after January 1, 1987, if a judgment is rendered on a written instrument, interest shall be calculated from the date of filing the complaint to the daté of satisfaction of the judgment at the rate of 12% per year compounded annually, unless the instrument has a higher rate of interest. In that case interest shall be calculated at the rate specified in the instrument if the rate was legal at the time the instrument was executed. The rate shall not exceed 13% per year compounded annually after the date judgment is entered.
(6) Except as otherwise provided in subsection (5) and subject to subsection (11), for complaints filed on or after January 1, 1987, interest on a money judgment recovered in a civil action shall be calculated at 6-month intervals from the date of filing the complaint at a rate of interest that is equal to 1% plus the average interest rate paid at auctions of 5-year United States treasury notes during the 6 months immediately preceding July 1 and January 1, as certified by the state treasurer, and compounded annually, pursuant to this section.
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Indenbaum v Michigan Bd of Medicine (After Remand), 213 Mich App 263, 271; 539 NW2d 574 (1995); Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). The first criterion in determining intent is the specific language of the statute. Indenbaum, supra. The Legislature is presumed to have intended the meaning it plainly expressed. Id. Courts may not speculate regarding the probable intent of the Legislature beyond the words expressed in the statute. If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. Id. If reasonable minds can differ regarding the meaning of a statute, judicial construction is appropriate. Id.
Unless defined in the statute, every word or phrase of a statute should be construed and understood according to the common and approved usage of the language, taking into account the context in which the words are used. MCL 8.3a; MSA 2.212(1); In re Public Service Comm’s Determination Regarding Coin-Operated Telephones, Direct-Inward Dialing, & Touchtone Service, No 2, 204 Mich App 350, 353; 514 NW2d 775 (1994). When, as in this case, words are not defined in the statute, a court may consult dictionary definitions. Dedes v Asch, 446 Mich 99, 105; 521 NW2d 488 (1994); Indenbaum, supra.
We initially note that defendant’s argument that this Court should look to the ucc for the definition of written instrument is without merit. The ucc is not contained in the same statutory chapter, it does not address the same subject matter, and MCL 600.6013; MSA 27A.6013 does not make reference to the UCC as a definition guideline.
In any event, Black’s Law Dictionary (6th ed), p 1110, defines “written instrument” as “something reduced to writing as a means of evidence, as the means of giving formal expression to some act or contract.” “Written” is defined as “expressed in writing.” The Random House College Dictionary, Revised Edition, p 1251 (1984). “Instrument” is defined as “a formal legal document, as a contract, deed or grant.” Id., p 691.
On the basis of these definitions, we find that an insurance policy or contract is clearly a written instrument. It is, in essence, a contract, reduced to writing, which evidences the formal agreement between the parties. We also note that in O-So Detroit, Inc v Home Ins Co, 973 F2d 498, 504-505 (CA 6, 1992), the Sixth Circuit Court of Appeals examined Michigan law on the subject and interpreted MCL 600.6013(5); MSA 27A.6013(5) to include insurance policies. We agree with that interpretation and therefore conclude that the trial court properly applied MCL 600.6013(5); MSA 27A.6013(5) and determined that the proper interest rate was twelve percent.
Defendant further argues that the trial court’s ruling renders meaningless the provision of the Uniform Trade Practices Act that provides for twelve percent penalty interest against an insurer who fails to pay a claim on a timely basis. MCL 500.2006(4); MSA 24.12006(4). Again, we disagree. MCL 500.2006(4); MSA 24.12006(4) provides for interest from a date sixty days after satisfactory proof of loss was received by the insurer. Whereas, MCL 600.6013(5); MSA 27A.6013(5) provides for a twelve percent rate of interest from the date of filing the complaint. The two provisions do not completely overlap and MCL 500.2006(4); MSA 24.12006(4) provides for a longer period of interest. Even if the penalty interest is offset by the interest under MCL 600.6013(5); MSA 27A.6013(5), the penalty interest will generally be greater because it goes back to an earlier date. See McCahill v Commercial Union Ins Co, 179 Mich App 761, 779-780; 446 NW2d 579 (1989). Therefore, although the two provisions provide similar redress, they do not render each other meaningless.
Next, defendant contends that the trial court’s interpretation of the judgment interest statute, MCL 600.6013(5); MSA 27A.6013(5), violated the Equal Protection Clause of the Michigan Constitution, Const 1963, art I, § 2, because the court’s interpretation created an irrational classification that imposes a higher penalty upon contract defendants as opposed to tort defendants. Constitutional issues are questions of law. Issues of law are reviewed de novo on appeal. Duggan v Clare Co Bd of Comm’rs, 203 Mich App 573, 575; 513 NW2d 192 (1994).
The equal protection guarantees of the Michigan Constitution ensure that people under similar circumstances will be treated alike. Hauser v Reilly, 212 Mich App 184, 189; 536 NW2d 865 (1995). Equal protection does not require that persons under different circumstances be treated the same. Id. Under traditional equal protection analysis, a statute must be sustained if the classification is rationally related to a legitimate governmental interest. Doe v Dep’t of Social Services, 439 Mich 650, 662; 487 NW2d 166 (1992); Bissell v Kommareddi, 202 Mich App 578, 580; 509 NW2d 542 (1993). The constitution “is offended only if the classification rests on grounds wholly irrelevant to the achievement of the [legislative] objective.” Bissell, supra.
The purpose of the prejudgment interest is to compensate the prevailing party for the delay in recovering money damages. Farmers Ins Group v Lynch, 186 Mich App 537, 538; 465 NW2d 21 (1990). We find that differentiating between contract actions and tort actions is logical. In a contract action, the plaintiff has a preexisting relationship with the defendant and is attempting to recover what the plaintiff is entitled to under the contract. If there is a delay in the judgment, the individual is being denied payment from the time when the breach occurred to when the judgment is finally paid. In a tort action, a plaintiff generally recovers for a tort and the recovery and redress occur simply as a result of the legal process, not as a result of a preexisting contract that bound the parties. Moreover, with regard to legal issues, including that of damages, contract actions are treated differently from tort actions. Finally, when the Legislature restored the twelve percent interest rate, it indicated that a lower rate gave “debtors an incentive to default on written instruments carrying a higher interest rate than allowed under the new rate.” Senate Legislative Analyses, SB 226, May 8, 1987. Clearly, the Legislature intended to prevent a breach of contract. Accordingly, we conclude that the trial court’s interpretation of MCL 600.6013(5); MSA 27A.6013(5) did not violate the Equal Protection Clause of the Michigan Constitution.
Affirmed.
Even if MCL 600.6013(5); MSA 27A.6013(5) did not apply, it appears that MCL 500.2006(4); MSA 24.12006(4) would apply because defendant failed to timely pay under the terms of the insurance contract. Therefore, the trial court’s determination that the interest rate on the judgment should be twelve percent would have been proper although not based on the proper statute. This Court will not reverse the decision of a trial court where the right result is reached for the wrong reason. Welch v District Court, 215 Mich App 253, 256; 545 NW2d 15 (1996). | [
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] |
D. E. Shelton, J.
Plaintiff Raquel Blair was a twenty-two-year-old pregnant woman who was treated at defendant Hutzel Hospital. She filed this action against the hospital, alleging that the defendant negligently failed to offer her maternal serum alphafetoprotein (msafp) screening during the second trimester of her pregnancy. She alleges that the screening test would have provided a substantial opportunity to discover that her fetus had Down’s syndrome and that by failing to administer the test the hospital thereby negligently deprived her of the ability to make an informed decision to terminate her pregnancy, causing her to deliver Delano Blair, a child bom with Down’s syndrome, on May 10, 1992.*
Defendant filed its first motion for summary disposition, pursuant to MCR 2.116(C)(8) and (10) , arguing that plaintiff’s wrongful birth action was contrary to the public policy of the State of Michigan. The trial court denied the motion.
Defendant filed a second motion for summary disposition, pursuant to MCR 2.116(C)(10), arguing that plaintiff could not prove proximate causation beyond mere conjecture. Although there was evidence that there was a twenty-five percent to thirty percent chance that MSAFP would have identified the fetus as suffering from Down’s syndrome, the trial court nevertheless granted defendant’s motion. Plaintiff has appealed and defendant has cross appealed from the trial court rulings.
Two issues are presented for appeal. First, defendant asks this Court to hold that the tort of wrongful birth is no longer valid in Michigan. Second, defendant maintains that the doctrine that the loss of a substantial opportunity to avoid physical harm should not be applied to a wrongful birth cause of action.
I. WRONGFUL BIRTH
This Court first expressly recognized the wrongful birth cause of action in Eisbrenner v Stanley, 106 Mich App 357; 308 NW2d 209 (1981), a case involving rubella-caused birth defects. In Proffitt v Bartolo, 162 Mich App 35, 40-41; 412 NW2d 232 (1987), this Court again held that wrongful birth is a cognizable claim in Michigan:
The term “wrongful birth” is a shorthand name given to actions brought by the parents of a child bom with severe defects against a physician (or other responsible party) who negligently fails to inform them in a timely fashion of the risk that the mother will give birth to such a child, effectively precluding an informed decision as to whether the pregnancy should be avoided or terminated. A “wrongful life” claim, on the other hand, is brought on behalf of a child with birth defects who claims that, but for the negligent advice to the parents, the child would not have been bom.
In rejecting that earlier challenge to the wrongful birth concept, we noted at p 42:
The jurisdictions considering the issue have now almost uniformly adopted the wrongful birth cause of action. See generally James G v Caserta, 332 SE2d 872, 875, n 6 (W Va, 1985), and Anno: Tort liability for wrongfully causing one to be born, 83 ALR 3d 15.
And concluded at pp 46-47:
Against this backdrop, we conclude that the Eisbrenner holding with regard to wrongful birth remains the law in Michigan until changed by the Legislature or the Supreme Court. The issue of whether abortion should be allowed and all the related moral, religious, and policy arguments are not before us following the line of privacy cases culminating in Roe v Wade, [410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973)]. The issue is instead whether physicians have a duty to ascertain and advise parents of information necessary for the parents to exercise the options provided by Roe, whatever the physician personally believes. If a physician breaches the appropriate duty under the facts of a case, and it can be established that the parents would have avoided or terminated the pregnancy, the necessary causal connec tion is established. The parents should recover for their extraordinary medical expenses and the extraordinary costs of raising the child, as well as the emotional harm they have suffered.
As long as abortion remains an option allowed by law, the physician owes a duty to furnish patients with adequate information for them to be able to decide whether to choose that course of action. Those who would eliminate such a right of recovery must first abolish the right to have an abortion — a matter not germane to this appeal.
We have continued to recognize the wrongful birth cause of action in subsequent cases, and neither the Supreme Court nor the Legislature has acted to change our holdings. See Rinard v Biczak, 177 Mich App 287; 441 NW2d 441 (1989), and Rouse v Wesley, 196 Mich App 624; 494 NW2d 7 (1992).
The defendant asserts that the adoption of MCL 400.109a; MSA 16.490(19a) and the holding of the Supreme Court in Doe v Dep’t of Social Services, 439 Mich 650; 487 NW2d 166 (1992), indicate a contrary public policy. That statute whose constitutionality was upheld by the Supreme Court in Doe, prohibits the use of Medicaid funds to pay for an abortion unless the abortion was necessary to save the life of the mother. Such a funding decision does not affect or change the principle that abortions are lawful in this country, or the principle that a physician owes a duty to furnish a patient with adequate information so the patient may decide whether to choose to have an abortion or to be exposed to the possibility of producing a disabled or deformed child.
The trial court properly denied summary disposition of the wrongful birth claim because that is still a viable cause of action in this state.
II. THE SUBSTANTIAL OPPORTUNITY RULE
In Falcon v Memorial Hosp, 436 Mich 443; 462 NW2d 44 (1990), the Supreme Court held that the family of a decedent could maintain an action for malpractice where the malpractice had denied the decedent a substantial opportunity to survive, even when that opportunity was less than fifty percent. The Michigan Supreme Court held that the trial court erred in granting summary disposition where the plaintiff could show that the defendants’ medical malpractice had deprived the plaintiff’s decedent of a substantial opportunity to avoid dying as a result of cancer. The plaintiff in Falcon presented evidence that, absent the defendants’ negligence, the plaintiff’s decedent would have had a 37.5 percent chance of survival. The Court held that this was a “substantial” opportunity and that the plaintiff could maintain an action against the defendants for their failure to preserve the decedent’s opportunity to live.
Defendant here maintains that this substantial opportunity rule should be limited to wrongful death actions. There is no merit to that position. Although Falcon involved a claim of wrongful death, Justice Levin stated in a footnote that
[t]he accrual of a cause of action for loss of an opportunity of achieving a better result does not.. . depend on whether death ensues as a result. The cause of action accrues when harm and damages result from the loss of a substantial opportunity for a better result. The plaintiff has the burden of establishing through expert testimony the difference between the course of the disease and treatment had there been a correct diagnosis, and the course of the disease and treatment as a result of failure to diagnose or misdiagnosis. [Id. at 470, n 43.]
Moreover, this Court has very recently held that the substantial opportunity rule applies to all medical malpractice actions. In Weymers v Khera, 210 Mich App 231; 533 NW2d 334 (1995), lv gtd 451 Mich 898 (1996), the plaintiff claimed that her physician’s negli gence deprived her of a thirty percent to forty percent opportunity to save her kidney function. Judge Smolensk! eloquently stated at pp 236-237:
We hold that the loss of a substantial opportunity to avoid physical harm is harm distinct from the underlying injury for which tort law should allow recovery in proportion to the extent of the lost opportunity, provided that the negligence of the defendant, more probably than not, caused the loss of opportunity.
We believe that the arguments for allowing a cause of action for the loss of an opportunity to survive apply equally to allowing a cause of action for the loss of an opportunity to avoid lesser physical harm. In recognizing such harm, the traditional rule that the plaintiff must prove that the defendant’s negligent conduct, more likely than not, caused the harm is not contradicted. Falcon, supra at 462-463 (Levin, J.), 472-473 (Boyle, J.); Harris v Kissling, 80 Or App 5; 721 P2d 838 (1986); but see Falcon, supra at 473-495 (Riley, C.J., dissenting).
Allowing recovery for the loss of a substantial opportunity to avoid physical harm is an equitable approach. DeBurkarte v Louvar, 393 NW2d 131, 137 (Iowa, 1986). In this case, defendants undertook to protect plaintiff from the type of harm that occurred. Falcon, supra at 461 (Levin, J.). As Justice Levin stated in Falcon, an actor’s negligent omission in cases like this prevents the plaintiff from being able to prove the defendant’s liability, and destroys the ability to allow fate to run its course. Id. at 456-457, ns 20, 21. Here, assuming for the purpose of argument only that defendants should have diagnosed and treated plaintiff for Goodpasture’s Syndrome upon her admission to the hospital, plaintiff might still have lost kidney function, but she would know that it was because of “fate,” i.e., the natural progression of the disease, and not because of any failure by defendants.
If the lost opportunity doctrine is limited to cases only involving death, potentially flagrant examples of malpractice could go uncompensated in cases in which the same negligent failure to diagnose or treat results in a lost oppor tunity to avoid egregious harm, i.e., paralysis or coma. Thus, the deterrent and loss-allocation functions of tort law would be undermined if defendants could escape liability for the effects of negligent conduct that cause demonstrable losses. DeBurkarte, supra at 137 (citing King, Causation, valuation, and chance in personal injury torts involving preexisting conditions and future consequences, 90 Yale L J 1353, 1377-1378 [1981]); but see Falcon, supra at 494-495 (Riley, C.J., dissenting).
Defendant nevertheless contends that the wrongful birth tort should somehow be carved out as an exception to the substantial opportunity rule. The only authority cited for this unusual proposition is the 1989 California case of Simmons v West Covina Medical Clinic, 212 Cal App 3d 696; 260 Cal Rptr 772 (1989). The rationale of Simmons is inapplicable in this state, however, because California is one of the minority of states that does not recognize the substantial opportunity rule in any type of tort. See Dumas v Coone, 235 Cal App 3d 1593, 1600-1601; 1 Cal Rptr 2d 584 (1991).
The substantial opportunity rule is the law of Michigan that applies to this case. A patient goes to a physician in order to improve opportunities of avoiding, ameliorating, or reducing physical harm, as well as pain and suffering. A pregnant patient goes to a physician in order to obtain the best possible care during her pregnancy and the best possible outcome of the pregnancy. We have consistently held, as we did in Proffitt, that a physician has a duty to ensure that a woman makes informed decisions regarding her procreative options, including the option of abortion. The failure to so inform a woman is a breach of that duty. The element of causation is satisfied if a plaintiff can show that the defendant’s negligence in providing that information deprived her of a substantial opportunity to leam of the risks of bearing a child with birth defects and that had she been provided with such information, she would have obtained an abortion.
In Falcon, a 37.5 percent chance of survival was held to be substantial as a matter of law. In Weymers, a thirty percent to forty percent chance was held to be substantial. In this case, plaintiffs expert testified that there was a twenty-five percent to thirty percent chance that MSAFP screening would have identified plaintiff’s fetus as being affected by Down’s syndrome. Plaintiff testified that she would have undergone an abortion had she been provided with the information. Under these circumstances, we hold that plaintiff’s claim that she was deprived of a substantial opportunity to leam of the defective condition of her fetus when her physician negligently failed to provide MSAFP screening stated a cause of action. Further, such evidence created a question of fact. The defendant denies that the failure to provide the screening was a breach of the standard of care and denies that such screening would have provided a substantial opportunity to achieve a better result. We hold that both of those issues are questions of fact for a jury to resolve.
The trial court’s granting of defendant’s second motion for summary disposition was in error.
The grant of summary disposition for defendant is reversed, and this matter is remanded for trial on plaintiff’s wrongful birth complaint.
Reilly, J. concurred.
This cause of action arose after the Supreme Court decision in Falcon v Memorial Hosp, 436 Mich 443; 462 NW2d 44 (1990), and before the April 1, 1994, legislative change to Falcon brought about by MCL 600.2912a(2); MSA 27A.2912(1)(2). That statute does not control, and has no relevance to, the issues in this case. The Legislature did not attempt to make its statutory rescission of Falcon retroactive, and plaintiffs cause of action is therefore governed by Falcon and its progeny.
We have previously defined the meaning of a wrongful birth claim as distinguished from a wrongful life claim in Proffitt v Bartolo, 162 Mich App 35; 40-41; 412 NW2d 232 (1987):
The term “wrongful birth” is a shorthand name given to actions brought by the parents of a child bom with severe defects against a physician (or other responsible party) who negligently fails to inform them in a timely fashion of the risk that the mother will give birth to such a child, effectively precluding an informed decision as to whether the pregnancy should be avoided or terminated. A “wrongful life” claim, on the other hand, is brought on behalf of a child with birth defects who claims that, but for the negligent advice to the parents, the child would not have been bom. See Smith v Cote, 128 NH 231; 513 A2d 341, 344 (1986); Procanik v Cillo, 97 NJ 339, 347-348; 478 A2d 755 (1984). Both causes of action involve claims of professional negligence.
A stipulation was filed in this case dismissing the wrongful life claim and that claim is not part of this appeal.
Rinard held that an action did lie for a physician’s failure to diagnose a pregnancy. The Court, at pp 290-291, stated:
A cause of action can be maintained in Michigan for failure to diagnose pregnancy. In Proffitt v Bartolo, 162 Mich App 35, 46-47; 412 NW2d 232 (1987), lv den 430 Mich 860 (1988), this Court stated that as long as abortion remains an option allowed by law, physicians owe a duty to furnish patients with adequate information for them to be able to decide whether to choose that course of action. Proffitt was a wrongful birth case. The term “wrongful birth” is a shorthand name given to actions brought by the parents of a child bom with severe defects against a physician, or other responsible party, who negligently fails to inform them in a timely fashion of the risk that the mother will give birth to such a child, effectively precluding an informed decision as to whether the pregnancy should be avoided or terminated. 162 Mich App 40. The instant case does not involve a wrongful birth cause of action. However, the claim asserted in this case is more analogous to that cause of action than to other causes of action such as wrongful life or wrongful pregnancy which Michigan courts have addressed. See Proffitt, supra at 40-41.
Rouse arose from a pregnancy caused by an unsuccessful tubal ligation, and this Court held that the parents could not make what amounted to a “wrongful life” claim. The Court, at pp 626-627, stated:
In Michigan, causes of action are recognized for what has been labeled wrongful birth and wrongful pregnancy, but there exists no cause of action for wrongful life. Wrongful birth is a tort action brought by parents of a child with a birth defect against a doctor or other person whose negligent failure to inform the parents of the risk of the birth defect deprived the parents of the opportunity to make an informed decision to avoid or terminate the pregnancy. Rinard, supra at 290-291; Proffitt v Bartolo, 162 Mich App 35, 40; 412 NW2d 232 (1987). The cause of action for wrongful birth is available to parents to recover the extraordinary medical expenses and costs of raising the child, as well as emotional harm. Rinard, supra at 296. | [
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] |
Michael J. Kelly, J.
Defendant was convicted by a jury of two counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and one count of second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3). Defendant received concurrent sentences of fifteen to thirty-five years for each conviction of first-degree criminal sexual conduct and ten to fifteen years for the conviction of second-degree criminal sexual conduct. Defendant appeals as of right and we reverse.
The prosecution made a pretrial motion to admit testimony by defendant’s half sister regarding uncharged prior criminal sexual conduct perpetrated upon her involving acts similar to those charged in this prosecution. The victim here was defendant’s stepdaughter, nine years old at trial, and less than seven when the sexual abuse took place. The accusations were not made until two years after the events. The motion revealed that the half sister would testify about innumerable sexual acts including “rape” having been inflicted upon her by defendant over a period when she was age four to age thirteen (according to defendant-appellant’s brief), or when she was age three to adult (according to the prosecutor’s brief). We conclude that these allegations of similar acts were so horrendously prejudicial as to require their suppression as being more prejudicial than probative. This was not a skunk in the jury box. It was a pig farm. No trier of fact could have been unswayed by the depiction of this depravity in assessing discrete claims of the “bad man’s” guilt. We decry permitting the effect of this testimony under any rubric, including an instruction by the court that the prior acts were introduced in accordance with MRE 404(b)(1) for purposes of establishing a scheme or plan, or absence of accident or mistake.
Due process is the constitutional guarantee of federal and state government that crimes charged against the most hateful among us are entitled to be indicted, examined, and proved beyond a reasonable doubt. Otherwise we have given in to prosecutorial tyranny. The effect here was to try the defendant for uncharged criminal acts of monstrous repugnance without the bother of due process. The trial court abused its discretion in permitting the testimony. People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993). The prosecution’s argument that because of defendant’s general denial all elements of the offenses were at issue is correct under VanderVliet, but the situation surrounding the alleged contacts was so inflammatory and so prejudicial that the probative value was clearly outweighed.
Reversed.
Doctoroff, C.J., concurred. | [
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O’Connell, P.J.
In these consolidated appeals, defendants appeal by leave granted the circuit court’s order denying their respective motions for summary disposition. Defendants claim that the court erred as a matter of law in interpreting 1993 PA 78 contrary to its plainly stated language. We reverse and remand.
Plaintiff Julie Morrison sought prenatal care from defendant Timothy K. Dickinson, M.D., at defendant Allegan Medical Clinic, P.C., during the course of her third pregnancy. On May 21, 1992, defendant physician admitted Mrs. Morrison to defendant Allegan General Hospital to deliver the child. Plaintiffs allege that defendant physician failed to properly control the delivery and failed to maneuver the baby’s head over the perineum. As a result of defendant physician’s failures, Mrs. Morrison suffered a fourth-degree laceration, which defendant physician also treated unsuccessfully.
On April 28, 1994, the Morrisons’ attorney wrote to each defendant, stating that the letter’s purpose was to provide notice of the Morrisons’ intent to file a medical malpractice claim against defendant physician, defendant clinic, and defendant hospital. Less than a month later, on May 19, 1994, the Morrisons filed their complaint, alleging medical malpractice against defendant physician, vicarious liability against defendant clinic, ostensible agency against defendant hospital, and loss of consortium against all three.
In lieu of answering the complaint, defendant physician moved for summary disposition, claiming that the Morrisons’ complaint must be dismissed for fail ure to give 182 days’ notice as required by MCL 600.2912b; MSA 27A.2912(2). Defendant hospital moved for summary disposition on identical grounds, and defendant clinic joined its codefendants’ motions.
The circuit court denied defendants’ motions for summary disposition, opining that 1993 PA 78 yielded an absurd, unjust, and clearly inconsistent result. The court reasoned that recent amendments of the law governing medical malpractice actions required the Morrisons to give 182 days’ notice before filing their medical malpractice claim, yet, because of the Legislature’s failure to amend all relevant statutes uniformly, failed to allow the Morrisons to take advantage of the amendment’s tolling provision. The court concluded that neither the tolling provision nor the notice provision should be applied to the Morrisons’ cause of action.
Defendants now appeal, challenging the circuit court’s interpretation of § 2912b. We review de novo both questions of statutory interpretation and orders granting or denying motions for summary disposition. Folands Jewelry Brokers, Inc v City of Warren, 210 Mich App 304, 307; 532 NW2d 920 (1995); Grebner v Clinton Charter Twp, 216 Mich App 736; 550 NW2d 265 (1996).
Defendants first argue that the circuit court erred in interpreting MCL 600.2912b; MSA 27A.2912(2) contrary to its plainly stated requirement to provide 182 days’ notice of intent to file a medical malpractice claim. The Legislature made a number of changes to the Revised Judicature Act when it enacted 1993 PA 78, which became effective on April 1, 1994, including three provisions that apply to this case. First, the Leg islature adopted a notice provision, providing as follows:
Except as otherwise provided in. this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person had given the health professional or health facility written notice under this section not less than 182 days before the action is commenced. [MCL 600.2912b(l); MSA 27A.2912(2)(1).]
Second, the Legislature permitted a tolling of the period of limitation during the 182-day notice period, stating that the applicable period of limitation is tolled
[i]f, during the applicable notice period under section 2912b, a claim would be barred by the statute of limitations or repose, for not longer than a number of days equal to the number of days in the applicable notice period after the date notice is given in compliance with section 2912b [MCL 600.5856(d); MSA 27A.5856(d).]
The third relevant aspect of 1993 PA 78 — the pertinent effective dates and the chronological parameters defining to what causes of action the amendments applied — was not codified. 1993 PA 78, § 4 provides as follows:
(1) Section [ ] .. . 5856 [referring to the tolling provision] of Act No. 236 of the Public Acts of 1961, as amended by this amendatory act, do[es] not apply to causes of action arising before October 1, 1993.
* * *
(4) Section [ ] 2912b [referring to the notice provision] ... of Act No. 236 of the Public Acts of 1961, as amended by this amendatory act, [applies] to cases filed on or after October 1, 1993.
The Legislature did not, however, amend the statute of limitations for medical malpractice actions, which provides:
(1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the period of time prescribed by this section.
* * *
(4) Except as otherwise provided in this chapter, the period of limitations is 2 years for an action charging malpractice. [MCL 600.5805; MSA 27A.5805.]
In summary, the limitation period for medical malpractice actions is two years. MCL 600.5805(4); MSA 27A.5805(4). For causes of action filed on or after October 1, 1993, a plaintiff must provide 182 days’ written notice before commencing suit. 1993 PA 78, § 4(4), MCL 600.2912b; MSA 27A.2912(2). If a cause of action would be barred because of the 182-day notice provision, the limitation period may be tolled for 182 days after notice is given. MCL 600.5856(d); MSA 27A.5856(d). However, this tolling provision does not apply to causes of action arising before October 1, 1993. See 1993 PA 78, § 4(1).
Applying the statutory scheme outlined above illustrates the Morrisons’ dilemma, a dilemma that stems primarily from the Legislature’s consideration of the date of filing significant in 1993 PA 78, § 4(4), and its consideration of the date the cause of action arises as significant in 1993 PA 78, § 4(1). The instant plaintiffs’ cause of action arose on May 21, 1992. Pursuant to the applicable two-year statute of limitations, the Morrisons were permitted to file their complaint on or before May 21, 1994. MCL 600.5805(4); MSA 27A.5805(4), MCL 600.5838a; MSA 27A.5838(1). Under MCL 600.2912b; MSA 27A.2912(2), which became effective April 1, 1994, the Morrisons were required to give 182 days’ notice to defendants before filing their complaint.
The difficulty in the present case arises, however, from the fact that the tolling provision of MCL 600.5856(d); MSA 27A.5856(d) does not apply to plaintiffs. As stated above, their cause of action arose on May 21, 1992, that is, before October 1, 1993. While a tolling provision exists, MCL 600.5856(d); MSA 27A.5856(d), the tolling provision does not apply to causes of action arising before October 1, 1993, 1993 PA 78, § 4(1), though the notice provision does so apply. 1993 PA 78, § 4(4).
1993 PA 78 became effective on April 1, 1994, but by then the Morrisons could not possibly satisfy all the requirements of 1993 PA 78 without running afoul of the notice requirement of MCL 600.2912b; MSA 27A.2912(2) and the two-year limitation period of 600.5805(4); MSA 27A.5805(4). Under the plain language of 1993 PA 78, § 4(1), the tolling provision of MCL 600.5856(d); MSA 27A.5856(d) does not apply to the instant cause of action. Consequently, the Morrisons were required to provide defendants with notice of their intent to file a malpractice claim by November 19, 1993, so as to give 182 days’ notice before filing their claim on May 21, 1994. However, the Morrisons gave notice of their intent to file suit only on April 28, 1994, and filed their complaint on May 19, 1994.
In short, though the Morrisons’ cause of action had previously accrued, because of legislative amendment of the pertinent statutes, the Morrisons’ claim, as well as the actions of all those potential plaintiffs similarly situated, was vitiated. Implementation of the notice requirement effectively abrogated the Morrisons’ claim despite the fact that it had already vested.
The circuit court realized the inequity of this result, and, apparently, refused to enforce either the notice requirement or the tolling provision and its limitation. After reviewing the applicable case law, we conclude that the notice requirement should have been applied to the present cause of action, but the limitation of the tolling provision should not have been applied.
As set forth in Folands, supra, “[w]hen inteipreting a statute, our goal is to ascertain and effectuate the intent of the Legislature.” The Legislature is presumed to have intended the meaning it plainly expressed. Frasier v Model Coverall Service, Inc, 182 Mich App 741, 744; 453 NW2d 301 (1990). Both the notice requirement and the tolling provisions are part of 1993 PA 78, and, together with MCL 600.5805; MSA 27A.5805, they address medical malpractice claims. These statutes must then be understood as having a common purpose and must be read together as one law. Feld v Robert & Charles Beauty Salon, 174 Mich App 309, 317; 435 NW2d 474 (1989), rev’d on other grounds 435 Mich 352; 459 NW2d 279 (1990). This rule’s object is to effectuate the Legislature’s propose as expressed in these harmonious statutes. Jennings v Southwood, 446 Mich 125, 136-137; 521 NW2d 230 (1994).
Reading the notice provision and the tolling provision together, it is clear that the Legislature intended to toll the limitation period set forth in MCL 600.5805(4); MSA 27A.5805(4) during the pendency of the notice period. Frasier, supra, p 744. However, the plain language of the related statutes serves to vitiate accrued causes of action under facts such as those in the present case, because though a plaintiff’s action may have accrued, the intervening notice requirement coupled with the absence of a tolling provision effectively abrogates the claim. This the Legislature may not do, whether intentionally or unintentionally.
While the Legislature possesses the authority to expressly extinguish a common-law right, Dyke v Richard, 390 Mich 739, 745; 213 NW2d 185 (1973), a statute of limitations may not be construed so as to impliedly abrogate a cause of action. Dyke, p 746 states:
Justice Cooley described our responsibility in dealing with such statutes of limitation in Price v Hopkin, 13 Mich 318, 324 (1865):
“The general power of the legislature to pass statutes of limitation is not doubted. The time that these statutes shall allow for bringing suits is to be fixed by the legislative judgment, and where the legislature has fairly exercised its discretion, no court is at liberty to review its action, and to annul the law, because in their opinion the legislative power has been unwisely exercised. But the legislative authority is not so entirely unlimited that, under the name of a statute limiting the time within which a party shall resort to his legal remedy, all remedy whatsoever may be taken away. ... It is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought [citations omitted] and a statute that fails to do this cannot possibly be sustained as a law of limitations, but would be a palpable violation of the constitutional provision that no person shall be deprived of property without due process of law.”
Since “[i]t is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought...Price, supra, a statute which extinguishes the right to bring suit cannot be enforced as a law of limitation.
This rule of law has also been phrased as follows: “It is clear that once a cause of action accrues, —i.e., all the facts become operative and are known — it becomes a ‘vested right.’ ” In re Certified Questions, 416 Mich 558, 573; 331 NW2d 456 (1982). “[Retrospective application of a law is improper where the law takes away or impairs vested rights acquired under existing laws . . . .” Id., p 572 (internal quotation marks and citation omitted).
Turning, then, to the present case, 1993 PA 78 plainly states that “a person shall not commence an action alleging medical malpractice . . . unless the person has given . . . written notice under this section not less than 182 days before the action is commenced.” MCL 600.2912b; MSA 27A.2912(2) (emphasis supplied). The Legislature hereby established certain procedural rules pertaining to the filing of malpractice actions, an act well within its power. See Dyke, supra, quoting Price, supra. The public act simply mandates notice before a complaint is filed. Mull v Equitable Life Assurance Society, 444 Mich 508, 519; 510 NW2d 184 (1994). The Morrisons failed to comply with this statutory mandate because they failed to provide defendants -with 182 days’ notice before filing their complaint. Therefore, the circuit court erred as a matter of law when it did not dismiss the Morrisons’ complaint. Accordingly, we reverse the order of the circuit court denying defendants’ motion for summary disposition.
However, to address the tolling provision, 1993 PA 78 also plainly states that the period of limitation is tolled if “a claim would be barred . . . for not longer than the number of days equal to the number of days in the applicable notice period . . . MCL 600.5856(d); MSA 27A.5856(d). The act’s words unambiguously provide for tolling. Frasier, supra, p 744. Nevertheless, 1993 PA 78, § 4(1) states that MCL 600.5856(d); MSA 27A.5856(d), does “not apply to causes of action arising before October 1, 1993.” Under the facts of the instant case, this would result in the abrogation of a vested cause of action under the guise of a procedural amendment of the pertinent statute of limitations. As made clear by our Supreme Court, Dyke, supra; Price, supra; In re Certified Questions, supra, such retrospective application is offensive to the constitutional guarantee that no person shall be deprived of property without due process of law. Therefore, 1993 PA 78, § 4(1) may not be enforced in cases such as the present matter where enforcement would vitiate an accrued medical malpractice claim without providing the potential plaintiff the benefit of the 182-day tolling provision.
Additionally, we would note that extant case law and this Court’s inteipretation of the 182-day tolling provision serve to preserve the causes of action of all plaintiffs situated similarly to the present plaintiffs. The tolling statute, MCL 600.5856; MSA 27A.5856, applies to prior suits that have not been adjudicated on the merits. Buscaino v Rhodes, 385 Mich 474, 482; 189 NW2d 202 (1971). “A dismissal without prejudice is not considered to be an adjudication on the merits, and therefore the tolling statute applies.” Federal Kemper Ins Co v Isaacson, 145 Mich App 179, 183; 377 NW2d 379 (1985). Thus, the present plaintiffs, as well as the many plaintiffs who find themselves in the identical situation, enjoy the balance of the 182-day tolling period remaining after suit was filed. Further, a limitation period is tolled during the pendency of an appeal. Riza v Niagara Machine & Tool Works, Inc, 411 Mich 915 (1981). Therefore, all plaintiffs finding themselves in the present plaintiffs’ situation will be free to timely refile their suits following the dismissal of their actions.
Reversed and remanded. The circuit court is directed to enter an order granting summary disposition without prejudice in favor of defendants. Plaintiffs are free to refile their cause of action immediately, the 182-day notice period long having expired. | [
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] |
Michael J. Kelly, J.
Respondent appeals as of right from a June 24, 1994, opinion and judgment of the Michigan Tax Tribunal canceling respondent’s tax assessments against petitioners.
Maxitrol Company is a subchapter S corporation for federal income tax purposes. A subchapter S corporation refers to a small business corporation that meets the requirements set forth in § 1363 of the Internal Revenue Code, IRC § 1363. In general, an S corporation,
with limited exceptions, is not taxed at the corporate level. Instead, its items of income, loss, deduction and credit are passed through to, and taken into account by, its shareholders in computing their individual tax liabilities. [RIA Federal Tax Handbook (1995), § 3362, p 487.]
Petitioner Frank Kern is the sole shareholder in Maxitrol Company. Petitioner Lucille Kern is his spouse.
During the years 1985-88, Maxitrol paid the Michigan intangibles tax on behalf of Frank Kem. Maxitrol deducted the amount of tax it paid on his behalf from its ordinary income on its federal income tax return, a calculation properly made pursuant to IRC § 164(e), which states:
Taxes of shareholder paid by corporation. Where a corporation pays a tax imposed on a shareholder on his interest as a shareholder, and where the shareholder does not reimburse the corporation, then
(1) the deduction allowed by subsection (a) shall be allowed to the corporation, and
(2) no deduction shall be allowed the shareholder for such tax.
Maxitrol did not separately state the deduction from its ordinary income calculation. At issue here is Maxitrol’s duty to pay taxes in Michigan pursuant to the Michigan Single Business Tax Act. MCL 208.1 et seq.; MSA 7.558(1) et seq. Because Maxitrol deducted the payment of Michigan intangibles taxes that it made on behalf of Frank Kern from its federal taxable income, its obligation for single business tax payments was correspondingly reduced. Maxitrol’s deduction also reduced the Kerns’ federal adjusted gross income, which correspondingly reduced their individual Michigan taxable income.
Respondent audited petitioners and assessed separately to Maxitrol and the Kerns the amount that respondent computed petitioners had been deficient in their tax payments because of respondent’s conclusion that Maxitrol took improper deductions. Maxitrol and the Kerns filed separate petitions with the Michigan Tax Tribunal to review respondent’s tax assessments. The two cases were consolidated below.
Respondent argued below that because IRC § 164(e) was not applicable to Maxitrol, Maxitrol improperly deducted the payment of taxes it paid on behalf of Frank Kern and, thus, that the improper deduction taken at the federal tax level resulted in a deficient payment of Michigan taxes by Maxitrol and the Kerns. Moreover, respondent argued that Maxitrol should have separately stated the deduction so that the Kerns would have had to pay income tax with respect to the deduction taken by Maxitrol. The core of the dispute revolves around the applicability of IRC § 164(e) to subchapter S corporations. The Tax Tribunal held that section was applicable to all corporations. The Tax Tribunal also held that respondent did not have the authority to audit petitioners’ federal income tax returns for the accuracy and applicability of deductions that had been accepted by the Internal Revenue Service. We affirm in part and reverse in part.
i
We believe the Tax Tribunal correctly held that IRC § 164(e) applies to subchapter S corporations. IRC § 164(e) is a general provision dealing with payments made by corporations. IRC § 1363(b) provides that a subchapter S corporation must calculate its taxes like an individual. Respondent takes the position that because IRC § 164(e) does not apply to individuals, it should not apply to Maxitrol.
The tribunal relied on federal and state authority for its interpretation that because Congress specifically used the word “corporations” in IRC § 164(e) without referring to any specific type of corporation, Congress must have intended to have IRC § 164(e) refer to all corporations. Moreover, even the treasury regulations refer to “banks and other corporations.” Treas Reg § 1.164-7 (1960). Therefore, Maxitrol had the right to take a deduction under IRC § 164(e).
This Court reviews a decision of the Tax Tribunal to determine whether the tribunal erred in applying the law or adopted a wrong principle. We generally defer to the Tax Tribunal’s interpretation of a statute that it is delegated to administer. Thrifty Royal Oak, Inc v Royal Oak, 208 Mich App 707; 528 NW2d 205 (1995).
The Tax Tribunal stated two main reasons for its ruling that IRC § 164(e) was applicable to Maxitrol: (1) case law applying IRC § 164(e) uses the general language “corporations”; thus, the tribunal implied that the deduction would be applicable to S corporations; and (2) IRC § 164(e) and the treasury regula tions also use the general language “corporations”; thus, the tribunal implied that the deduction applies to S corporations.
The Tax Tribunal’s reliance on case law was arguably subject, we think, to another interpretation. The Tax Tribunal relied mainly on Hillsboro Nat’l Bank v Comm’r of Internal Revenue, 460 US 370; 103 S Ct 1114; 75 L Ed 2d 130 (1983), to support its conclusion that IRC § 164(e) applies to S corporations. Rather than relying on the reasoning in Hillsboro to apply the rule of law set forth in Hillsboro to S corporations, the Tax Tribunal relied on the general language used in the case to support the proposition that Hillsboro did not limit its holding only to banking institutions. Thus, the Tax Tribunal held that IRC § 164(e) could be applicable to S corporations.
The Tax Tribunal’s reasoning was disputable. Courts can rule only on the issues presented before them. The issue whether S corporations may use the deduction set forth in IRC § 164(e) was not before the Hillsboro Court. However, we have found no authority for the respondent’s assertion that IRC § 164(e) exists as a general provision applicable solely to the payment of tax by C corporations to the wholesale exclusion of S corporations. Granting deference to the Tax Tribunal’s interpretation, we cannot say that it is clearly erroneous. We therefore affirm the Tax Tribunal’s decision to permit the deduction to S corporations.
n
Respondent next claims that contrary to the Tax Tribunal’s ruling with regard to the issue of respondent’s authority to audit, the tribunal has misinter preted the Legislature’s statutory grant of authority in MCL 205.21; MSA 7.657(21). We agree with the Department of Treasury with regard to this issue.
Because petitioners’ Michigan tax returns depend on the computations in their federal tax returns and statements, the Michigan and federal tax returns are inextricably intertwined, and, unless respondent is permitted to make its own assessment of the validity of petitioners’ claimed deductions on their federal income tax statements and returns, the Michigan audit would be so limited and superficial as to be totally inadequate. We hold that respondent had the authority to assess the propriety of the deductions taken and the statements made on the petitioners’ federal tax returns in connection with the deductions taken by Maxitrol for Mr. Kern’s intangibles tax obligations during the years that were the subject of respondent’s audits of petitioners’ Michigan tax returns. We find, therefore, that the Tax Tribunal erred in prohibiting respondent from assessing the validity of the federal tax statements. Respondent has the express authority to audit Michigan tax returns, and that express authority necessarily includes the authority to assess the validity of the federal tax statements upon which Michigan tax computations depend.
Affirmed in part and reversed in part. | [
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] |
Butzel, J.
Plaintiff Otis T. Buys, who owns a farm in Paw Paw township, Van Burén county, suffered a multiple fracture of the knee on September 6,1939, when the bolster of his wagon broke, and the wagon tipped over on the highway in the driveway in front of his farm house. He claims that the accident was caused by a faulty condition of the road due to negligence of the Van Burén County Road Commission.
In imposing the obligation on the counties to keep in reasonable repair so that they shall be reasonably safe and convenient for public travel all county roads, bridges, culverts, the general highway law (Act No. 283, chap. 4, § 21, Pub. Acts 1909, 1 Comp. Laws 1929, § 3996 [Stat. Ann. § 9.121]) also provides that the county shall not be liable unless the claimant shall serve or cause to be served, within 60 days after an injury shall have occurred a notice in writing upon the county clerk or deputy county clerk, which notice shall set forth substantially all the facts, the time and place of the' accident, the manner in which it occurred, the extent of the in juries, names and addresses of witnesses, if any, and the further fact that the person injured intends to hold the county liable, et cetera. It is conceded that the statutory notice was not given within the 60 days.
Plaintiff’s wife reported the injury orally to the office of the Yan Burén County Boad Commission, which notified defendant Michigan Mutual Liability Company. Defendant was the commission’s public liability insurer on a policy limiting liability, for injury to one person, to $5,000. Defendant informed the commis-sion that the matter had been turned over to defendant’s claim department for attention, in a letter dated September 14, 1939.
After six days in the hospital, plaintiff was able to go home where, after some time, he became able to. move about on crutches, and eventually without them. On October 20, 1939, 44 days after the accident, Wade Carney, one of defendant’s adjusters, called on plaintiff at his home aiid discussed the accident. Plaintiff largely relies upon what was said at this interview, and what took place thereafter, to make out his present cause of action against defendant.
Plaintiff testified:
“He came into the room there. Mrs. Buys said ‘Here is a man to see you’ and he stepped into the door and said ‘I represent the Michigan Mutual Liability Company.’ * * * He * # * started to ask me questions about how long I had been out of the hospital and what my bill was worth and I looked up at him and said ‘What are you, an insurance adjuster?’ He said ‘Yes’ and I said ‘I haven’t started any suit.’ ‘No, but,’ he said, ‘You are entitled’ — he said ‘You will get compensation.’ I said ‘Why, I am not an ambulance chaser’ and Mrs. Buys spoke up then and she said ‘We have been to a lot of expenses.’ ‘Well,’. I said, ‘Who sent you out here?’ He said ‘The road commission sent me out here.’ We talked along and he got to speaking about the hospital bill being so high * * * and he asked me how many days I had been in there and I told him I couldn’t figure it out exactly — I couldn’t remember because I had been weak night and day and I could figure it out by the amount I paid to the hospital. And he talked quite a little about different things. He asked how the accident happened — what happened to the wagon. * * * I showed him what a bolster was like on a wagon like the one that tipped over. We had a very nice conversation — very friendly conversation. * * * When he got ready to go and Mr. Carney was getting ready to get in his car and I said, ‘Now, Mr. Carney,’ I said, ‘How do I get anything out of this? Do I have' to sue the county, and they sue you, or how is it done?’ ‘Oh,’ he said, ‘Don’t do that.’ He said, ‘Give us a chance to settle this first.’ ‘Well,’ I said, ‘When will I see you again?’ ‘Well,’ he said, ‘When have you got to see your doctor?’ I said, ‘I got to go up a week from Monday.’ ‘Well,’ he said, ‘I will see you, then in two or three weeks,’ and I said, ‘Okay’ and that is the last time I have seen him, until today. * * *
“Q. Just how did he say that about the compensation?
‘‘A. Why, he said that — well, I spoke up and said I didn’t know — when he said that — about compensation — I said I didn’t know that the county carried any insurance on the highway accidents. ‘Oh,’ he said, ‘Yes, we carry insurance.’ ”
Plaintiff’s wife testified:
“Mr. Carney called at our house. * * * I wouldn’t say definitely that I heard all the conversation between Mr. Carney and my husband, but I think I did. Well, the first thing there came a rap at the door, and I went out, and Mr. Carney, as he introduced himself, was there and said that he was looking for Mr. Otis Buys, and I said ‘Yes.’ ‘Well,’ lie said, ‘I have a report that he has met with an accident, can I see him?’ * * * Asked him in and I gave him a chair and he sat down, and he started talking — passed the time of day and started asking questions. And I was busy around there and didn’t pay any particular attention until finally I heard my husband say ‘What are yon, an insurance adjuster?’ He said, ‘Yes.’ * * * I came then right into the conference and said that the accident was on the 6th of September. And then they discussed different things and my husband says — Mr. Carney said that he represented the Michigan Mutual Liability, I think it is, and my husband says — ‘I haven’t started suit.’ ‘Well,’ he said ‘It was reported from the road commission.’ My husband said: ‘Well,” I didn’t know that they carried insurance.’ He said, ‘Yes’ and I think he said that he had been on some case the day before, but I could not say that definitely, and my husband says ‘Well, I haven’t started suit against anyone.’ ‘Oh,’ but Mr. Carney said, ‘You will get compensation.’ And my husband said, ‘Well, I ,am no ambulance chaser.’ And right here I spoke up and said ‘Well, it has been costing us a lot of money.’ Mr. Carney said ‘I am sure it has, Mrs. Buys, and’ he said, ‘You will be reimbursed.’ That is as far as my conversation went.”
Carney’s testimony contradicts the foregoing in several particulars. He testified that he told plaintiff that he represented the road commission, but he denied that he stated that he represented defendant. He testified that neither defendant’s name nor the subject of insurance was mentioned. He denies that he told plaintiff that any liability would be admitted or that he told plaintiff that he would be reimbursed or compensated. He further denies that he would be back in two weeks to settle the matter up, but admitted that plaintiff had asked him if he would return in two or three weeks, and that he replied that he would. When asked if he knew that two or three weeks after October 20th would be beyond the 60-day period, he replied that he was “aware of the statute.” He said he did not return because defendant was subsequently notified that plaintiff was represented by counsel which, according to defendant’s rules, precluded its adjuster from renewing contact with plaintiff directly. Plaintiff admits that he did not retain counsel within the 60 days, nor for some time later.
Plaintiff’s declaration counts alternately upon an express contract, quasi contract and fraud. The case was tried without a jury.
The trial court said, even after giving the testimony for plaintiff full probative force, negotiations never rose to the dignity of a contract. According to plaintiff’s own testimony, nothing was definitely agreed upon but plaintiff was asked not to sue until defendant was given a chance to settle first. This is a far cry from an agreement to pay any fixed amount. It amounts at most to negotiations that were to be continued later. On January 11, 1940, a letter written by plaintiff’s attorney to the county clerk of Van Burén county gave notice of the accident in the manner provided for by statute. He sought to excuse the four months’ delay by stating that when Mr. Buys was interviewed by a representative of the county’s insurance company a short time previous to November 1, 1939, it was then agreed between Mr. Buys and “your representative that no action would be taken by Mr. Buys pending negotiations for settlement.” It will readily be seen that, while there were negotiations, there was no promise to pay any amount certain but to continue negotiations for a settlement.
The trial court further found “that plaintiff was not prevented by the statements of Wade P. Carney from serving written claim of injury. The plaintiff did not know that such claim was necessary.” With respect to this finding, plaintiff in his appeal brief-says: “There is no testimony in the case whether he did know or whether he did not know, ’ ’ that the notice was necessary. Plaintiff intended the last statement as a criticism of the finding, but we regard it as a confession of failure to sustain his burden of proof. This is so whether his cause of action sounds in contract or in tort. If it sounds in contract, then it is incumbent upon plaintiff to show that he knew of the statutory requirement of notice when he talked to Carney; otherwise he could not have agreed to forbear serving the notice within the 60 days, and his promise, if any, must have been merely to forbear bringing suit until settlement negotiations could be attempted. If his cause of action sounds in tort, then he has the burden of showing either that he was aware of the statute when he talked to Carney, but in spite of such knowledge and in reliance upon Carney’s misrepresentations he forbore serving notice, or that he was ignorant of the statute when he talked to Carney, but would have consulted counsel and become acquainted with it within the remaining 16 days of the statutory period, had Carney not appeared on the scene and lulled him into a false sense of security. One or the other of the alternative factual hypotheses just mentioned must be made out, or there will be no proof that Carney’s misleading conduct, rather than plaintiff’s own ignorance of the law, was the proximate cause of plaintiff’s injury. Even in quasi contract, it is not enough for plaintiff to show that Carney deliberately attempted to mislead him, so that it would be unconscionable for defendant as Carney’s principal to retain the benefit unjustly obtained; he must go further, and show that the attempt was successful, and this he leaves undone by failing to negative the inference that his own ignorance is responsible for his plight.
Plaintiff having failed to sustain his burden of proof, the judgment for defendant was right, and must be affirmed for that reason. Aside from the question of burden of proof defendant suggests that plaintiff’s action, if he have any, should be brought against the road commission or the county rather than the present defendant. We do not determine the merits of this suggestion, or of the various claims of error that were made, since decision in the case at bar rests on the ground already indicated.
Other claims of error have been examined but found to have no merit. The judge gave plaintiff ample opportunity to submit his entire case. In reaching his decision he gave the testimony of plaintiff full probative value. The case was tried without a jury and even if the rulings of the judge on some questions of evidence were erroneous, as claimed by plaintiff, they were not prejudicial, and need not be discussed.
Judgment affirmed, with costs to defendant.
Chandler, C. J., and Boyles, North, Starr, Wiest, Bushnell, and Sharpe, JJ., concurred. | [
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Boyles, J.
The sole question in this case is as to the validity of an order of probate court made on rehearing, setting aside a former order of adoption. The facts necessary to a decision have been stipulated by counsel. On March 16, 1939, Robert B. and Marcena White, the natural parents of a minor child, joined in the execution of a declaration of adoption with the appellants herein for the purpose of giving their consent to the proposed adoption of said minor child by appellants. An investigation was duly made by the county agent, the declaration and consent together with the report of the county agent duly filed in the probate court for the county of Wayne, and on July 31, 1939, an order confirming the adoption was made and entered by the judge of probate of Wayne county. On October 11, 1939, within the statutory 90 days during which a petition for rehearing may be filed in probate court (Act No. 288, chap. 1, § 19, Pub. Acts 1939 [Comp. Laws Supp. 1940, § 16289-1 (19), Stat. Ann. 1940 Cum. Supp. § 27.3178 (19)]), Marcena White, the natural mother of said minor, filed in probate court a withdrawal of her consent and a petition for a rehearing on the order confirming the adoption. On December 1, 1939, an order was made and entered in the probate court for Wayne county as follows:
‘ ‘ State of Michigan,
“County of Wayne — ss.
“At a session of the Probate Court for said County of Wayne, held at the Probate Court Room in the City of Detroit, on the 1st day of December, in the year 1939.
“Present: D. J. Healy, Judge of Probate.
“In the matter of the adoption and change of name of Constance Estelle White, a minor.
’ ‘ ‘ The petition of Marcena White, natural mother of the said Constance Estelle White, praying for a rehearing upon the instrument in writing heretofore filed in this court, declaring that said minor is adopted as the child of Guy McNaron and Sally McNaron, his wife, on which instrument by an order of this court, made and entered on the 31st day of July, A. D. 1939, an order of adoption by the said Guy McNaron and Sally McNaron, his wife, and change of name was ordered entered, having been heretofore filed in this court in said matter, and the said matter having come on to be heard by this court on the 19th day of October, A. D. 1939, and all of the persons in interest in said matter being present in open court or represented by counsel in said matter, and the said matter having been heard and submitted, and the court having taken the testimony of all of the persons in interest in s*aid matter, and being fully advised in the premises :
“It is ordered that a rehearing of said matter be and the same is hereby granted, and upon rehearing: “It is further ordered that the aforesaid order of this court made and entered on the 31st day of July, A. D. 1939, substituting the said Gruy McNaron and Sally McNaron, his wife, in place of the parents of said minor, and changing the name of said minor, be and the same is hereby vacated and set aside.”
From that order an appeal was taken to the circuit court for the county of Wayne where a hearing was held and testimony taken, and an order entered affirming the decision of the probate court in setting-aside the adoption. The circuit judge held that he did not have power to set aside the order of the probate court granting a rehearing, and that the further action of the probate court in setting aside and vacating the original order of adoption on the rehearing should not be set aside by the circuit court. From the order entered thereon, the adoptive parents of said minor prosecute this appeal.
The precise questions raised for our determination are: (1) Will an appeal lie from an order of the probate court granting- a rehearing? (2) Was it proper for the probate court upon the rehearing to enter the further order setting- aside the order of adoption, the natural mother of the minor having withdrawn her consent to the adoption and having-filed a petition for rehearing within the 90 days’ period allowed therefor by statute?
Proceedings in probate court and the jurisdiction and authority of the probate court are entirely statutory. The probate court had authority to grant the rehearing on the petition of an interested party filed within 90 days from the time the original order of adoption was made. Act No. 288, chap. 1, § 19, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-1 [19], Stat. Ann. 1940 Cum. Supp. §27.3178 [19]). It is expressly provided by statute that no appeal shall lie from an order of the probate court granting a rehearing. At least that part of the probate court order of December 1, 1939, which merely grants a rehearing must for the purposes of this case be considered conclusive. Act No. 288, chap. 1, § 37, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-1 [37], Stat. Ann. 1941 Cum. Supp. §27.3178 [37]). Nor can there be any serious question as to the authority of the probate court to enter the order setting aside a previous order confirming adoption. This is likewise expressly conferred upon the probate court by statute. Act No. 288, chap. 1, § 19, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-1 [19], Stat. Ann. 1940 Cum. Supp. § 27.3178 [19]).
In this State, adoption proceedings are purely statutory. Act No. 288, chap. 10, § 1, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-10 [1], Stat. Ann. 1941 Cum. Supp. §27.3178 [541]). The statute requires the consent of the natural parents of a minor child if living, or the survivor of them, in order to confirm an adoption. Act No. 288, chap. 10, § 2, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-10 [2], Stat. Ann. 1941 Cum. Supp. §27.3178 [542]). Proper consents were filed in this matter before the original order was made and no question is raised as to the regularity or legality of the original proceedings for adoption.
The issue thus narrows itself down to the question whether the last part of the order of the probate court hereinbefore quoted at length, made upon the rehearing, vacating and setting aside the previous order confirming adoption, was a proper order. This court is asked to reverse the findings of the probate court, and of the circuit court upon appeal, and to hold that this part of the order should be set aside. At the very outset, we are confronted with the fact that the natural parent did withdraw her consent to the adoption during the 90 days’ period while the matter of confirming the adoption was still within the authority and control of the probate court if a petition for rehearing be filed. Such a petition for rehearing was properly filed; and an order granting the rehearing was properly made. These are established facts. After a rehearing had been granted and before any further order might be made by the probate court, that court was then confronted with the established fact that it no longer had the necessary consent of one of the natural parents. It had been withdrawn.
Appellants contend that Marcena White, the natural mother, could not withdraw her consent at the time it was attempted without showing fraud and duress in the procurement thereof. While this question has not been squarely before us, it has been raised in various proceedings in other jurisdictions. In Minnesota, it has been held that the mother’s consent may be revoked at any time before the child is legally adopted. State, ex rel. Platzer, v. Beardsley, 149 Minn. 435 (183 N. W. 956). In Washington, it is held that adoption is a contract between the parties but that a natural parent may revoke his consent at any time before a legal adoption has been made, subject to his liability to be sued for breach of contract; and that when the written consent is once revoked, the necessary consent being absent, such an order cannot be made. In re Nelms, 153 Wash. 242 (279 Pac. 748). See, also, Fitts v. Carpenter (Tex. Civ. App.), 124 S. W. (2d) 420. In the case at bar, the probate judge stated no reason for setting aside the original order, and the record before us contains none of the testimony taken either in the probate court or the circuit court on the appeal. So far as the record discloses, the original order of adoption was set aside merely upon a reconsideration of the whole matter. Without a record disclosing what reasons impelled the mother to withdraw her consent, we have no occasion to pass upon the question whether such reasons were sufficient, if indeed any stated reason is necessary beyond the mere fact she had changed her mind. In view of the legal conclusions reached herein, neither the lack of proof of fraud- or undue influence nor the respective advantages in favor of or against the adoption is controlling of the result. It is our opinion that under the circumstances of this case, no vested rights having intervened, the natural mother had the right to withdraw her consent to the adoption during the 90 days while the probate court still had control over the matter by a rehearing. When the probate court had once granted the rehearing, the court might then find that there was no longer thereafter the legal consent necessary to a further order confirming adoption. When the statutory provisions regulating adoption of children cannot be complied with, the adoption will fail. Albring v. Ward, 137 Mich. 352; Slattery v. Hartford-Connecticut Trust Co., 254 Mich. 671.
Appellants contend that the probate court went beyond its authority in setting aside its order of adoption on the same day after the Order granting rehearing had been made, without setting a new day for hearing. There is nothing in the record to show that such an objection was made in probate court, or any request made for a further opportunity for hearing. On the contrary, the order entered by the probate judge expressly establishes that all of the persons interested in the matter were' present in open court, or represented by counsel, and that the court took the testimony of all of the persons in interest in said matter. These facts are not challenged by appellants either-in the record or their brief. In the absence of any request, there was no occasion for further notice or further opportunity for hearing. There is no merit in appellants’ contention they did not have their day in court on the issues when they were all in' court, were heard, and no objection made.
Affirmed, with costs to appellee.
Chandler, C. J., and North, Starr, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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] |
Sharpe, J.
Defendant, Fred Becker, was tried, convicted and sentenced for the crime of manslaughter. At about 7:30 in the morning of November 17, 1939, defendant and one Edward Vaughn met near a small island in An Sable Lake in Ogemaw county. Both defendant and Vaughn were in their respective rowboats. As the boats approached each other, until they were separated by a distance of about 15 or 20 feet, an argument ensued concerning certain trapping rights. Shortly thereafter, shooting began and sometime later Vaughn was found on the shore in an unconscious condition. He was rushed to a hospital and died without regaining .consciousness.
An autopsy was performed upon Vaughn’s body and it was disclosed that a rifle bullet entered the abdomen to the right and slightly above the umbilicus and passed upward to the left costal margin, striking the edge of the ribs, and finally lodged in the upper part of the left arm. The bullet in its course did not penetrate any bone. The cause of death was a hemorrhage due to the wound caused by the rifle bullet.
Following the shooting, defendant rowed away. He went to his mother’s home and told her of the shooting. He then went to his own cabin where he secured an acquaintance to drive him to a store a short distance away, in order that he might telephone the State police. He remained at the store until the State police arrived. He was then taken to West Branch and placed in the custody of the sheriff. He made a statement to the State police and to the prosecuting attorney. He later submitted himself to the so-called lie detector, but at the trial of the cause the result of this test, upon the objection of the prosecuting attorney, was not submitted to the jury.
During the trial of the cause, the prosecuting attorney introduced in evidence, over defendant’s objection, a picture of the gun found in Vaughn’s boat, the purpose being to show what appeared to be blood stains upon tbe gun. Tbe garments worn by Vaughn on the day of the shooting were also introduced in evidence and one witness testified that they were saturated with blood. Another exhibit was a picture of the deceased in the nude. A motion for a mistrial was made by defendant because of the introduction of these exhibits. This motion was denied.
Defendant claims that on the morning in question he was out on the lake; that he had an argument with Vaughn over trapping rights, when Vaughn suddenly picked up a shot gun and fired it at defendant; that the ball went so close to defendant that it caused deafness in one ear and defendant, being in fear of his life, immediately picked up a rifle and returned the fire; that Vaughn then got out of his boat; and that defendant then rowed away to the home of his mother.
It is urged by defendant that the circumstantial evidence produced by the prosecuting attorney was not sufficient to prove the crime, beyond a reasonable doubt. The evidence relied upon by the prosecuting attorney as indicating that the bullet was fired from a distance of more than 20 feet, and not as claimed by defendant, is that hunters heard shots in that vicinity about the time of the shooting as related by defendant, but none of these witnesses heard shots in rapid succession as stated by defendant; that all of these witnesses stated that at least four or five minutes elapsed between shots; and that the bullet entered Vaughn’s body to the right of the navel, moved upward to the left and into the left arm and did not penetrate a bone, but lodged in the fleshy part of the arm.
We have related only a part of the evidence relied upon by the prosecuting attorney. In our opinion there was competent evidence from which a jury could determine that defendant was guilty beyond a reasonable doubt of the crime alleged.
It is urged that the trial court was in error in receiving in evidence the. bloody garments and the pictures. The general rule upon the admissibility of this kind of evidence is that it is admissible if helpful in throwing light upon any material point in issue. In the case at bar, the pictures and the clothing had some tendency to show the course of the bullet. This was material to the people’s claim that defendant did not shoot in self defense. We find no error in the admission of the exhibits.
It is also urged that the trial court was in error in refusing to allow the results of the polygraph, or the so-called lie-detector test, to be admitted in evidence. In the case at bar, the result of this test was offered by defendant and, upon objection by the prosecuting attorney, the trial court refused its admission.
The general principle of the acceptance of the lie-detector test is set forth in 20 Am. Jur. p. 633:
“Physiological or psychological deception tests used as' instruments for the ascertainment of the truthfulness of a witness are still too much in the experimental field for the courts to approve of their general use. The deception tests devised by scientists are of the following three broad types: TM association-reaction tests in which the time the subject takes to think of words associated with those in a list given him, some of which are neutral and some of which may evoke a guilty association, is carefully measured; the respiratory test, which is based upon the hypothesis that the breathing of the subject varies according to whether he is telling the truth; and the systolic blood pressure test. The instances in which such criteria have been subjected to judicial scrutiny are relatively infrequent. Those which have passed upon the question have held that the systolic blood pressure deception test for determining the truthfulness of testimony has not yet gained such standing and scientific recognition as to justify the admission of expert testimony deducted from tests made under such theory.”
We see no reason why, under the circumstances of this case, the result should have been admitted. There was no testimony offered which would indicate that there is at this time a general scientific recognition of such tests. Until it is established that reasonable certainty follows from such tests, it would be error to admit in evidence the result thereof.
The evidence sustains the trial court in his refusal to direct a verdict in favor of defendant or to grant a new trial. The judgment is affirmed.
Chandler, C. J., and Boyles, North, Starr, Butzel, and Bushnell, JJ., concurred. Wiest, J., did not sit. | [
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Fellows, J.
(after stating the facts). Upon a motion to dismiss in the nature of a demurrer we should apply those rules which have become fixed in the former practice when demurrers were in use. One of the recognized rules of long standing was that a bill would be sustained, as against a general demurrer, when the bill stated any ground for equitable relief, even though imperfectly. Hawkins v. Clermont, 15 Mich. 511; Hoffman v. Ross, 25 Mich. 175; Wilmarth v. Woodcock, 58 Mich. 482; Darrah v. Boyce, 62 Mich. 480; C. H. Little Co. v. Cemetery Ass’n, 135 Mich. 248. If this bill sets up any ground for equitable relief against the moving defendant, or against any property standing in her name, it must be sustained and she must answer.
On behalf of plaintiff it is insisted that under the arrangement for the trade of tne equity in the Balmoral apartment by plaintiff, supposedly with defendant Wagner, for the eight lots, on Jefferson avenue, she was to have title to all of them, and that, having complied with her part of the arrangement by assigning the contract for the apartment property, she became the equitable owner of the eight lots — all of them; that Hart received one of these lots for his share of the fraud perpetrated; that he paid no consideration, and, therefore, held such lot as trustee for her; that when it was used to purchase the Moss avenue property, the Moss avenue property became burdened with the trust; that defendant Julia P. Hart, who took title to the Moss avenue property by survivorship, was not a purchaser for value, and that when she sold, by executory contract of sale, the trust followed what she received for it.
Defendant insists that plaintiff has an adequate remedy at law; that the facts constituting fraud must be specifically alleged, and that the facts set up do not make a case for relief in a court of equity for fraud; that one must be able to trace trust funds definitely, and that the trust cannot be impressed upon property in the hands of a bona fide holder; that the prayer of the bill shows a different theory than that now urged by plaintiff, and that the funds are not definitely traceable into the hands of this defendant; and in one of the briefs filed on behalf of defendant there is considerable discussion of homestead rights, rights of the widow to her support during the settlement of the estate, priority of creditors, and what rights are acquired by the widow in lands, held by the entirety.
Without discussing at length many of the minor questions suggested it will suffice to say, that the bill contains a prayer for general relief, and that the statement of facts in the bill, rather than the form of the prayer, determines whether a case for equitable relief is made out; that there is nothing in the bill indicating that any question of homestead is involved; that a widow is not entitled to a homestead or support from money other than that belonging' to her deceased husband ; that under the facts in the bill, many of which we have not considered necessary to state, the case is of such a nature, and the complications in it so many, that it is clearly one for the court of equity.
The'defendant’s counsel is correct in his contention that the facts upon which the claim of fraud is based must be alleged, rather than conclusions. But it is sufficient if the substance of the transaction and the result is alleged. Merrill v. Allen, 38 Mich. 487. We think the facts are sufficiently stated in this bill. While it does not allege that Hart was active with de fendants Denton and Wagner in conceiving the fraud upon plaintiff, the facts alleged show he was active in its execution, and received his share of the proceeds.
Counsel for defendant is also correct in his contention that the party seeking to impress a trust upon property must be able to follow the fund, and that if the property is in the hands of a good faith owner, one who has purchased for full consideration, and without knowledge or notice of the trust, the trust may not be impressed upon it. But this bill does not make out such a case. Hart obtained this equity in the lot without consideration; He had demanded and received his commission from Berman for putting the deal through. He had received his pay for his services. Where the $5,000 received on the Berman mortgage went this record does not disclose. When the equitable title to this lot was deflected from plaintiff to Hart the transaction was without consideration. He used the property equitably belonging to plaintiff and applied it to the amount of $%850 in purchasing the Moss avenue property, taking title to himself and this defendant. When she, as survivor, took title it was likewise without consideration, and when she sold on an executory contract, presumably for part cash, and part on time payments, she then held, either in cash or in an interest in the contract, property equitably belonging to plaintiff, for which she had paid no consideration and to which she had no right, and upon which she had no equitable claim. These are the facts alleged in this bill and for the purposes of this motion must be taken as true. The plaintiff has traced into the hands of this defendant property equitably belonging to her sufficiently to put defendant to answer.
It follows that the decree of the court below must be reversed and the demurrer overruled. Defendant will have the usual time to answer. The plaintiff will recover costs in this court; but the record contains an swers and other pleadings of defendants other.than Mrs. Hart, and which are not necessary to present the questions relating to her, and which are the only ones here involved. Unless it shall be made to appear on the settlement of the decree that such unnecessary matter was incorporated in this record at the request of defendant, one-half only of the cost of preparing and printing the record will be allowed.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. | [
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Ostrander, C. J.
(dissenting). On Commonwealth avenue, in Detroit, about half-past seven o’clock in the evening of September 12,1917, some children were standing and some were playing hide and seek. The goal was on the east side of Commonwealth avenue near the corner of Kirby avenue, an intersecting street. William Kerbyson, one of the children, a boy of about 13 years, had been in hiding on the west side of Commonwealth, and he ran out from between some houses there and into the street. Reaching the curb on the west side, running, he tried to stop, but ran or fell, or slid, into the street and either into the side of or into the path of an. automobile going south on Commonwealth, and was injured. The people charge that he was killed and that respondent was responsible for the killing; that he “wilfully, unlawfully, feloniously, wantonly, negligently and recklessly” operated his. car, and that he feloniously did kill and slay the said Kerbyson. But upon his trial, he was convicted of manslaughter and sentenced to be imprisoned for a period not less than two years, the statutory maximum sentence being fifteen years. A motion to set aside the verdict was denied.
Respondent contends in this court that the judgment should be reversed:
“First. Because the people failed to prove the corpus delicti.
“Second. Because the court erred in admitting the evidence of Edward Ross as to the speed of the car when he was not in a position to competently judge that speed.
“Third. Because the court erred in not directing a verdict of acquittal at the conclusion of the people’s case.
“Fourth. Because the court erred in not charging the jury fully and completely as to what constitutes involuntary manslaughter.
“Fifth. Because the court erred in charging the jury as to the provisions of the ordinances of the city of Detroit controlling the operation of motor vehicles within the city and basing respondent’s unlawful act upon the violation of such ordinance.
“Sixth. That the court erred in referring only to the evidence of the people’s witnesses and not referring in any manner to the theory of the defense.
“Seventh. That the court erred in charging the jury upon the theory of contributory negligence of deceased when as a matter of fact the proofs show that the accident was unavoidable upon the part of respondent.”
Neither in the motion to direct a verdict nor in a request to charge was the point made in the court below that proof of the corpus delicti had failed. It was first presented as a reason for granting the motion to set aside the verdict. The contention is, therefore, based upon no exception. As the argument is understood, the precise point raised is that the proofs fail to show that the boy who was injured by the automobile died as a consequence, or, indeed, is dead. It was an essential fact, required to be proved beyond a reasonable doubt. That it was not proven — that there was no testimony supporting such a conclusion — may be relied upon on a motion in arrest of judgment or to set aside the verdict and grant a new trial, and the point will be considered on appeal: this because a respondent charged with having committed a felony may sit by while the prosecution makes such a case as it can, and is not obliged, before verdict, to point out that an essential element of the offense which the prosecution is bound to prove has not been proved.
The record discloses that a boy, called in the information William H. Kerbyson, and by witnesses and counsel Corbson, was injured by an automobile on September 12, 1917, after his injury was lying in the street and was carried to the curb, where some one held him until a doctor came. Whether he was then alive or dead, the nature and extent of his injuries, does not appear, nor what was afterwards done with him. It appears further that on September 13, 1917, Dr. Kenneth Dick, one of the county physicians, per formed a post mortem examination upon a body at the rooms of a certain undertaker. The inquiry made of the doctor was: “Q. I ask you whether or not you performed a post mortem examination on the body of William H. Corbson?” the answer: “I did.” . The evidences of injury which he found were described by the doctor, and among other injuries he found a fractured skull which he said was the cause of death. He described the boy as about 13 years of age. There is no other testimony upon the subject. In support of the motion to set aside the verdict, the doctor made an affidavit in which he says he did not know the boy but had been informed that the body upon which he performed the autopsy was that of William H. Corbson. Nothing is claimed in the brief for respondent for a difference in the spelling or pronunciation of the name of the boy.
This record, the fact that this case is here upon such a point, illustrates the value of the rule of practice in the trial of criminal causes involving homicide which requires proof, first of all, of the corpus delicti; that a certain named person is dead, and somebody’s criminality as the cause of the death. It is apparent that the prosecuting attorney at the trial principally •directed effort to prove the identity of the driver of the car, careless or forgetful of the fact that it devolved upon the people to prove, beyond a reasonable doubt, that a homicide had been committed, and of the further fact that the respondent waived proof of nothing essential to his conviction.
Counsel for the people call attention to decisions of this court, among them Foley v. People, 22 Mich. 227, to the effect that, unless some question is made upon it in the trial court, a point may not be relied upon on writ of error. None of the cases cited is controlling here. It has been the rule in this State, at least since People v. Lane, 49 Mich. 340, was decided, that even the respondent’s extrajudicial confession of crime, if unsupported, is not sufficient evidence of the corpus delicti. See, also, People v. Ranney, 153 Mich. 293 (19 L. R. A. [N. S.] 443).
In deciding this case, it is assumed that upon objection or suggestion the people could have produced testimony directly tending to prove the death of the boy as the'result of being struck by, or of running into, the automobile. But it must be held that what was offered was insufficient to sustain the burden resting upon the people.
No objection was made to the testimony.
The court ought not, for any reasons asserted at the trial, to have directed a verdict for respondent. There was testimony warranting the jury in finding that respondent was the driver, of the car.
The principles laid down and applied in People v. Barnes, 182 Mich. 179, were fairly applied in the charge which was given.
The court apparently took judicial notice of the ordinance of the city of Detroit concerning the lawful speed at which automobiles may be driven. People v. Quider, 172 Mich. 280. Whether the rate of speed with which the car was driven was a lawful rate was of some importance at the trial, and the statute and ordinance fix the same limit. There was, therefore, no prejudicial error in mentioning the ordinance.
The charge, no amendment being requested, did not misstate the applicable law.
It was a question of fact whether the striking of the boy was unavoidable or was the result of his own carelessness.
The judgment should be reversed, the prisoner remanded to the custody of the sheriff of Wayne county, to be dealt with according to law, and a new trial had.
Stone, J., concurred with Ostrander, C. J.
Fellows, J.
When the people proved in this case that the defendant, driving at the rate of 30 to 35 miles an hour, ran over the boy William H. Corbson (or Kerbyson), and that the “body” of the boy was picked up from the street and carried to the grass plot, when Dr. Dick was asked the question, “I ask you whether or not you performed a post mortem examination on the body of William H. Corbson?” and unequivocally answered, “I did,” and further testified that upon such post mortem examination he found a fractured skull, which he said was the cause of death, and he was not cross-examined, at all, or his unequivocal testimony of identity any way shaken or questioned, the corpus delicti was, in my judgment, prima facie established. This seems to have been the view of defendant’s counsel upon the trial, as he made no suggestion that the corpus delicti had not been proved, but centered his efforts to the question of whether the identity of the defendant had been established. Indeed, he affirmatively conceded that the death of the boy was established. During the discussion of his motion for a directed verdict the following occurred:
“The Court: Well, now_, let us see what the people have here, as a prima facie case: Here is a car — this is upon the people’s theory of this matter, and this is what the testimony tends to show, if the jury believe it, upon which they would be warranted in drawing a verdict from it — -the testimony tends to show that this boy was killed.
“Mr. Ellsworth (defendant’s attorney): Oh, yes.”
Whether the corpus delicti was proved or not depended upon what occurred upon the trial, not upon what was made to appear by a post trial ex parte affidavit. If defendant’s counsel had not admitted that the death of the boy was established and had upon the trial cross-examined Dr. Dick and brought out from him the facts disclosed by his affidavit, an other question would be presented. I am impressed (1) That the corpus delicti was prima facie proved; and (2) by the admission made by defendant’s counsel in open court the question is not now available to defendant. In a civil case a judicial admission is held to be binding, not only upon the trial then in hand, but also on a subsequent trial of the same case. Connor v. Railway Co., 168 Mich. 29; Johnston v. Cornelius, 200 Mich. 209. It is not necessary to extend that doctrine to criminal cases in order to dispose of the instant case. Here defendant’s counsel, in open court, in the presence of the defendant, conceded that the death of the boy was established. I do nót think he, or other counsel substituted for him, can now on behalf of the defendant in this court, insist that it was not. For these reasons I do not agree with the Chief Justice that the case should be reversed on the assigned error that the corpus delicti was not proved. In other regards I agree with him. I think the conviction should be affirmed.
Bird, Moore, Steere, Brooke, and Kuhn, JJ., concurred with Fellows, J. | [
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Ostrander, C. J.
(after stating the facts). Plaintiff, referring to Circuit Court Rule No. 66, section 5, and Supreme Court Rule No. 8, raises the point that because assignments of error did not accompany the bill of exceptions when it was settled, and were not returned here with the exceptions, there are no alleged errors to be reviewed and the judgment should be affirmed. Apparently, the practice was irregular; but the bill was settled “by consent” and it is possible that the assignments of error were in fact before the court when it was settled. Nor was a motion made here to dismiss, but the point is made at the hearing. Seasonably made, it is possible that upon a dismissal a new writ of error could have been sued out and the irregularity cured. Under the particular circumstances, we are not disposed to now dismiss or to affirm without consideration of the questions presented.
In refusing a new trial, the learned trial judge said:
“I am satisfied that the great weight of authority is to the effect that an alien enemy residing in his own country cannot maintain an action in this forum, but that an alien residing here and conducting himself properly under the law of our land has the right to the protection of the law and may assert that right in our courts.”
In this conclusion we agree. Clarke v. Morey, 10 Johns. (N. Y.) 68; Seymour v. Bailey, 66 Ill. 301; Hutchinson v. Brock, 11 Mass. 122; Rothbarth v. Herzfeld, 179 App. Div. 865; Arndt-Ober v. Metropolitan Opera Co., 169 N. Y. Supp. 944. See, also, Viola v. Mackenzie, Mann & Co., 24 Dom. Law Rep. 208.
The declaration refers to the law of 1909, a law which had been repealed, when it should have referred to the generally similar act of 1915. It is said the-court was in error in submitting the case to the jury as though, the act of 1915 had been declared upon. On the motion for a new trial, the point was first raised and in denying the motion the court said, aptly we think:
“No such question was raised at the trial. If it had been, it would have been an abuse of discretion on the part of the court if an amendment were not allowed, if claimed by the plaintiff. While as I remember it the court’s attention was not challenged to the declaration, I do not see but that it gave the defendant reasonable notice of the plaintiff’s claim.”
In our view of the responsibility of defendant George Kelly, it is not necessary to determine whether anything in section 29 of the act of 1915 offends the Constitution of the State.
The defendant George Kelly was held to be liable for the consequences of the actions of his son in driving the car, because he was a part owner, joint owner, of the car. It is, in the first place, doubtful if there is any testimony to support the proposition that the father and son were joint owners. It appears that the son bargained for the car with the former owner, and agreed with him about the purchase price, which was $1,200. It was a part of the bargain that the son should pay, and he did pay, $500 of the purchase price, and that the vendor should take for the balance of $700 a half acre parcel of land, the title of which stood in the father, but which the father had promised before then to give to his son. The money was paid and the car delivered, but the land, part of a larger parcel, had not then been surveyed. Later it was. surveyed and the father, defendant George Kelly, conveyed it to the vendor instead of conveying it to his son, to be by him conveyed to the vendor. The jury found, however, evidently because of some statements made by the father, that he had paid a part of the purchase price and was a part owner. The license for the car was obtained by the son and is in his name. Repairs to the car and expenses for maintaining it were paid for by the son. The father never drove it and rarely rode in it. No one but the son ever drove it.
But assuming that George Kelly was part owner of the car, he is not liable to the plaintiff in this action. The statute, Act No. 302, Pub. Acts 1915, is a part of chapter 89 of the Compiled Laws of 1915, entitled “Motor Vehicles.”
Section 29 of the act (section 4825) reads:
“Civil actions. Nothing in this act shall be construed to curtail or abridge the right of any person to prosecute a civil action for damages by reason of injuries to person or property resulting from the negligence of the owner or operator or his agent, employee or servant, of any such motor vehicle, or resulting from the negligent use of the highway by them or any of them. The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle, whether such negligence consists in violation of the provisions of the statutes of this State or in the failure to observe such ordinary care in such operation as the rules of the common law require: Provided, That the owner shall not be liable unless said motor vehicle is being driven by the express or implied consent or knowledge of such owner. In the event said motor vehicle is being driven at the time of said injury by the father, mother, brother, sister, son, daughter, or other immediate members of the family of the owner of said motor vehicle, then it shall be conclusively presumed that said motor vehicle is being driven by the consent or with the knowledge of such owner.”
It is said by the plaintiff, appellee, that this section makes .the owner liable if the car is driven with his knowledge and the defendant does not contend that this provision is unconstitutional. It is further argued that if George Kelly was a part owner he would be liable under this section—
“without any reference whatever to the question of his relationship to Ira Kelly, the other defendant, for the reason that George Kelly, as above stated, had constant knowledge that his son, Ira Kelly, was driving the car. This being true, the remaining portion of the section wherein it is provided that the owner’s consent shall be conclusively presumed if the car is being driven by the son, as in this case, would in no wise affect the interests of the defendant, George Kelly, for the judgment against him was not predicated upon that provision of the act.”
It is a lawful thing for two persons to buy and own an automobile. Either owner has the right to use the car, the consent of the other being implied if there is no express agreement respecting the use to be made of it. Either owner could .use it by driving it himself, or he could have an agent, employee or servant to drive it. It is evident that the legislature intended that the owner of a car .should be liable for the consequences of his own negligent driving and for the negligent driving of those whom he permits to drive it. In the main, the statute declares the rule of the common law and there lies at the foundation of the statute and of the common law rule the fact that the owner of a car may choose his agents and employees and may control possession of the vehicle. It is not evident that the legislature intended to make each part owner of a car liable for the consequences of the negligent operation of it by a co-owner or his agent or employee. In the first place, the foundation for such a rule does not exist, since a part owner of an automobile may not choose the agents or employees of the other owner nor control possession of the car by the co-owner. In the second place, the language of the law, fairly interpreted, does not evidence a purpose to visit upon an owner the consequences of neg ligence committed by persons whose custody and possession of the car he may not and cannot control. In the third place, it may be said that it is at least doubtful whether the legislative power extends to visiting upon the citizen consequences of tortious actions which he cannot prevent or control.
In the case at bar, an owner had possession of and was operating the car. He is liable for the consequences of his own negligent driving, and as to him we find no reason for disturbing the judgment. As to the other owner, we are of opinion that the judgment should be reversed.
Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Brooke, J.
(after stating the facts). It is, we think, apparent that all the contracts above outlined or set forth must be construed together to ascertain the intention of the parties. A consideration of their contents and the testimony introduced leads to the conclusion that in December, 1910, the Gustav A. Moebs Co. was in such financial straits that it was impossible for it to continue in business unless immediate relief was forthcoming. While the nominal assets at that time slightly exceeded the liabilities it cannot be doubted that a liquidation of the concern at that time would not have produced funds sufficient in amount to have cared for the liabilities. Had it been possible at that time to have secured practically the full amount of the indebtedness through liquidation, it is inconceivable that creditors representing upwards of $100,000 would have consented to accept two-thirds of the amount of their several debts in new preferred stock of the corporation and long-time notes for the balance. Confronted, then, with the alternative of furnishing a large amount of additional capital or taking an immediate loss, the creditors chose the former. Construing all the contracts together, we think it is plain that such agreements as were entered into were made with the corporation, the Gustav A. Moebs Co.; that the money to be advanced by the defendants or any of them was to be advanced to the corporation, for its benefit and in the hope that with the additional capital and the advice and co-operation of the individual defendants representing the large creditors, the in debtedness might ultimately be paid. The contract, then, having been made primarily for the benefit of the corporation and only secondarily or indirectly for the benefit of its stockholders, such stockholders including plaintiff cannot prosecute a claim based upon its breach without first making a demand upon the receiver (in this case the trustee in bankruptcy), to commence suit. Talbot v. Scripps, 31 Mich. 268. The evidence is undisputed that no such demand was ever made.
Coming to the second question raised by counsel for appellant, i.e., whether there was a breach of the contract to furnish, “moneys necessarily required for the operation and conduct of .the business,” we find that this undertaking on the part of the three corporate defendants appears in the so-called plan for reorganization and is executed by Gustav A. Moebs only. It is true that the underwriting attached to said plan and executed by each of the defendants recites that the signer of the underwriting “does hereby assent to the plan for reorganization of the affairs of the company as outlined in a written instrument dated December 8, 1910, hereto attached,” but this underwriting also contains the stipulation heretofore set forth to the effect that no personal liability is to be imposed upon the signer in undertaking to accomplish the plan. We have no difficulty in reaching the conclusion that it was the intention of the signers to limit their liability strictly to the investment they proposed to make in the preferred stock of the corporation and to the extension of the time granted the corporation upon the balance of their several claims, but even assuming that the contract in question was made directly with the plaintiff and that the limitation of liability referred, as contended, by plaintiff, simply to the initial steps of carrying out the reorganization and had no bearing upon the continuing obligation of the defendants to furnish, capital to the corporation, there is in our opinion no competent evidence either introduced or offered tending to support the contention that there was a breach of such obligation. Upon the completion of the reorganization, the Hoffman Leaf Tobacco Company accepted paper for approximately $31,000. At the time of the insolvency this indebtedness had increased to approximately $84,000. In the meantime Hoffman had indorsed the paper of the Moebs Company for $10,000, and the money for the conduct of the business had been secured thereon. Peters & Company furnished credit additional to that existing at the time of reorganization to the amount of approximately $1,000 so that during the three years the corporation was operated after its reorganization additional credit was furnished by one or other of the defendants to the amount of approximately $64,000. This was a sum nearly equal in amount to the entire common capital stock of the corporation. The only instance pointed out by plaintiff in which a suggestion was made for additional capital, which was not complied with, occurred in January or February, 1911. At that time it was. suggested by Mr. Moebs and Mr. Myers, the secretary, that $25,000 should be made available for corporate uses. It was finally determined that $10,000 should be raised through the indorsement of defendant Hoffman. It is claimed by plaintiff that the failure of the defendants to furnish this additional capital worked to the injury of the corporation. Mr. Myers, the secretary, was asked:
“Q. Now, Mr. Myers, will you state in what way was the business handicapped through a lack of money during that period of thirteen months?
“A. We did not have sufficient traveling men and we could not do the missionary work necessary to spread out the business, take chances in our cigars, repeat in different localities.”
The same witness testified:
“A. Yes, that business was done with a pretty sick company and it was going to require a long period of convalescence before we could get it on its feet.”
Mr. Moebs while on the stand being interrogated as to the value of the missionary work in the business testified:
“Q. Can it be made so that you will know that it is or is not profitable in the future?
“A. It is a chance you take; it is a matter of judgment.
“Q. It is a matter, that you can try oilt?
“A. You try out; yes.
“Q. And you tried Lavine out in that territory and it did not prove successful?
“A. Hardly. It might have been a success if the necessary advertising and specialty work was done and carried out.”
In view of the fact that the plan of reorganization recited that it was not the intention or purpose to extend the business but rather to reduce it, and inasmuch as the only complaint made by plaintiff is that additional money was not furnished for the purpose of expansion or so-called missionary work, it would seem that by no stretch of the imagination can the defendants be charged with a breach of their obligation to furnish necessary additional capital.
The affairs of this corporation were at all times under the control of a board of directors of whom Gustav A. Moebs was one. The obligation of the defendants to furnish necessary additional capital was, of course, in any event, limited to furnishing it as and when in the judgment of the board of directors, acting in good faith and without fraud, the same became necessary. There is no evidence in the record of a demand upon the defendants for more capital or credit made by the board of directors and refused by defend ants, nor is there any evidence of fraud or bad faith on the part of the board.
We are of opinion that a verdict for the defendants was properly directed and the judgment is therefore affirmed.
Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
Stone, J.
This case is here upon certiorari to the industrial accident board to review its order affirming the award of $10 per week for 300 weeks, made 'by the committee of arbitration to the claimant or plaintiff, as the widow of Wesley McMinn, deceased.
It is conceded that all parties were under the act. The accident happened August 16, 1917, and resulted in the death of Mr. McMinn on the night of that day. On August 22, 1917, the respondents filed a report of the accident in which, among other things, it was stated that the occupation of the injured party was,
“Collector, solicitor and chauffeur. Department or branch of work. Collecting and soliciting. * * * How long so employed? Year and a half. * * * Date of accident. Aug. 16, 1917. Hour of accident. 8 p. m. * * * Wages or average earnings per day. $35 per week. Working hours per day. Different hours. Cause and manner of accident: Was driving a Ford touring car, struck a pile of brick and auto overturned. Nature and extent of injury. Death.”
After the claim was filed and on October 6,1917, the insurance company filed a denial of liability on the ground that there was no accident, and if there was one, it did not arise out of, nor in the course of, the deceased’s employment. Later, and on November 3, 1917, the insurance company advised the board in writing that it wished to deny liability upon the further ground, that the employee was guilty of wilful and intentional misconduct.
In their petition for the writ of certiorari the respondents allege errors in the findings and order of the board in the following particulars: .
“1. By holding, as matter of law, that Wesley McMinn, deceased, sustained an accident which arose out of and in the course of his employment by the C. Kern Brewing Company.
“2. By holding that there is any testimony in the • record to sustain a finding that Wesley McMinn, deceased, met his death in an accident which arose out of, and in the course of his employment by the C. Kern Brewing Company.
“3. By holding that the death of Wesley McMinn occurred while he was in the course of his employment by the C. Kern Brewing Company.
“4. By holding that the death of Wesley McMinn arose out of his employment by the C. Kern Brewing Company.
“5. By holding that Wesley McMinn, deceased, was not injured by reason of his intentional and wilful misconduct.
“6. By holding that the accident which resulted in the death of Wesley McMinn was not due to the deceased’s wilful and intentional misconduct.
“7. By holding, as matter of law, that. Wesley McMinn, deceased, was not injured by reason of his intentional and wilful misconduct.
“8. By holding, as matter of law, that Gladys. E. McMinn is not prevented from recovering compensation from the defendants because Wesley McMinn was injured by reason of his intentional and wilful misconduct.”
We cannot better state the views and conclusions of the board, than to quote somewhat at length from its findings. They were in part as follows:
“The first question is: Did the accident arise out of and in the course of the employment of the deceased?
“As to that question, it appears that Mr. McMinn was in the employ of the respondent brewing company as a solicitor and collector. He had no stated hours of employment. He seems to have worked more ' or less every day, but he worked about when he pleased. He usually went to the office of the brewing company between eight and ten in the morning. He often worked evenings. His duties as solicitor and collector were to solicit business for the brewing company, to get purchasers for the brewing company’s beer, to sell all the beer he could, and to collect the money owing to the brewing company. It appears very clearly that in the solicitation of customers and in the placing of the product the respondent employer permitted Mr. McMinn to entertain prospective customers and to spend money in their places by way of treating persons present, etc. He often met the persons he was to do business with in the evening. It seems that he looked up prospective customers wher ever he could find them, and he was also advised regarding any such prospective customers by the manager of the brewing company by telephone or otherwise.
“It appears that prior to August 16, 1917, the deceased met Mr. Marvin J. Perrigo, proprietor of the Riverview Hotel, which hotel was located at Ecorse. Mr. McMinn and Mr. Perrigo discussed the proposition of Mr. Perrigo beginning the purchase of beer from the respondent employer, but no definite agreement was reached. It appears that on August 16, 1917, a ball game was arranged for hear Ecorse by the members of some sort of a social organization at or near that place. Mr. McMinn and Mr. Perrigo both attended and took part in the ball game. Mr. Perrigo testified that he' spoke to Mr. McMinn at that time about purchasing beer from the respondent employer. He said:
“ ‘And on the day of this ball game we were talking about it, in fact I spoke to him about it, and he said, “Well, after the game” — this was before the game started — and he said “after the game, I think some of the boys and myself will be down for dinner.” And he says, “I will talk to you then about it.” ’
“At about eight o’clock that evening, Mr. McMinn left the ball grounds to go to Mr. Perrigo’s for the dinner, and to talk about Mr. Perrigo beginning the us© of the respondent employer’s beer. Mr. McMinn was driving an automobile belonging to the respondent brewing company. The machine was furnished him by his employer, and was kept in a garage at the home of Mr. McMinn. It appears that the work Mr. McMinn was doing required him to use the automobile, and the employer furnished it and permitted him to use it about as he saw fit. The nature of the work of the employee appears to have been such that he was left largely to his own judgment and devices as to how he did his work and when he did it, but he was -required to produce results and he evidently did produce them.
“It seems clear that his chief purpose in going to the Perrigo hotel was for the purpose of doing business for his employer with Mr. Perrigo. He seems to have been active and alert in the interests of his employer, and it does not appear to the board that the fact that he took some friends with him to dinner at Perrigo’s is of any importance. It is quite possible that he believed that the taking of the friends to the dinner at the Perrigo hotel and the entertainment of them there might aid him in securing the business of Mr. Perrigo. He was, in oiir judgment, driving his employer’s automobile on his employer’s business at the time he met with the accident and was killed.
“When he got quite near to the Perrigo hotel he had occasion to drive past a point where the street upon which he was driving was torn up to some extent. There seems to have been some bricks piled in the street. The car evidently struck the bricks, tipped over and was badly damaged, and he was killed. He was not instantly killed, but died about six hours afterwards at the Ford hospital, to which he had been taken. The board reaches the conclusion that the accident did arise out of and in the course of the employment of the deceased employee.
“See Bradbury’s Workmen’s Compensation Law— Third Edition (1917), page 480, where the rule is stated as follows:
“ ‘If an employee is conveyed to and from Ms work in a conveyance furnished by the employer, under an express or an. implied contract to furnish such conveyance, an injury to an. employee while on the journey arises out of the employment.’
“See, also, Judson v. Andrews & Peck Co., 1 Conn. Comp. Dec. 54, Bradbury’s Workmen’s Compensation Law, Third Edition (1917), p. 483; Beaudry v. Watkins, 191 Mich. 445; Kunze v. Detroit Shade Tree Co., 192 Mich. 435; and Porritt v. Railway, 199 Mich. 200. [See, also, Malone v. Railway, ante, 136.]
“The other question in the case is as to whether compensation should be refused on the ground that the deceased was guilty of wilful and intentional misconduct. Section 2 of part 2 of the workmen’s compensation law (2 Comp. Laws 1915, § 5432) reads:
“ ‘If the employee is injured by reason of his intentional and wilful misconduct, he shall not receive compensation under the provisions of this act.’
“This language has frequently been before the industrial accident board for consideration, and the question of when an employee is guilty of wilful and intentional misconduct has also been before the Supreme Court in many cases. In none of the cases so far has the Supreme Court held that an employee was guilty of intentional and wilful misconduct. Some of the cases in, which the question has been considered by our Supreme Court are the following: Jendrus v. Steel Products Co., 178 Mich. 285; Clem v. Motor Co., 178 Mich. 340; Rayner v. Furniture Co., 180 Mich. 168; Redfield v. Insurance Co., 183 Mich. 633; Gignac v. Studebaker Corp., 186 Mich. 574; Beaudry v. Watkins, 191 Mich. 445; Ramlow v. Moon Lake Ice Co., 192 Mich. 505; Kent (now Drayton) v. Chemical Co., 195 Mich. 671; Oniji v. Studebaker Corp., 196 Mich. 397; Cook v. Hoertz & Son, 198 Mich. 129; Riley v. Motor Co., 199 Mich. 233. * * *
“There is some disagreement as to how rapidly the deceased was driving his automobile. Walter Lush, a man who was riding in the machine, testified that the machine was being driven about 20 miles per hour and not to exceed 25 miles per hour at the most. He said the bricks in the roadway were the cause of the accident. Portions of an ordinance of the village of Ecorse were offered in evidence. Section 18 of the paper filed with the industrial accident board, which paper purports to be a copy of the ordinance, reads:
“ ‘Automobiles and motorcycles shall be driven at a rate of speed upon said streets not to exceed fifteen (15) miles per hour.’
“Another section provides that any person violating any of the provisions of the ordinance shall upon conviction be punished by a fine of not to exceed $100 and costs. It also provides that in the imposition of the fine, the court may make a further sentence that the offender be imprisoned in the Detroit house of correction until the fine and costs be paid, but not for a greater period than 90 days.
“It is claimed that because Wesley McMinn appears to have been driving more than 15 miles per hour at the time the accident occurred, he was therefore injured and killed ‘by reason of his intentional and wilful misconduct.’ There is no claim that the deceased wilfully or intentionally intended to injure or kill him self. There is no claim that he intended to have this accident occur for the purpose of procuring workmen’s compensation, either for himself or his dependents. He was probably driving something more than 15 miles per hour, but it does not appear to the board that he was driving at a greater rate of speed than the rate at which automobiles are usually driven on the streets of a village like Ecorse. * * *
“Presumption of law is doubtless to the effect that Mr. McMinn was driving 15 miles per hour or less. That presumption may possibly be overcome in this case by the testimony of the witnesses who put the rate of speed at 20 or 25 miles per hour. One of the witnesses for the respondents, Arthur F. Martin, in response to a leading question, said he thought the machine was going 25 to 30 miles per hour. He said that when the car struck the bricks It turned over twice, but that it only went 10 or 15 feet after it struck the bricks before it stopped.
“It appears to the board that the witnesses in this case knew very little about how fast the machine was actually going. It was after dark and the headlight was on the machine. It would certainly be pretty difficult for one standing on the street to estimate the rate of speed of a machine coming toward him. The man in the machine thought the machine was going about 20 miles per hour. There is no testimony from him to the effect that he knew anything about judging the rate of speed of a machine. It is possible that the machine was going more than 15 miles per hour, but the board is unable to say that the deceased met his death because of driving an automobile at a rate of speed greater than 15 miles per hour.
“The supreme court of California once had a case considerably like the present case before it. That case is Fidelity & Deposit Company of Maryland v. Industrial Accident Commission of California, 171 Cal. 728 (154 Pac. 834; L. R. A. 1916D, 903). In that case the industrial accident commission found that the man who was killed was driving at a rate of speed from 35 to 45 miles per hour. The commission awarded compensation, and the supreme court of that State; set the award aside. The California statute, however, was considerably different from the Michigan statute. The California statute provided that compensation should be paid ‘where the injury is proximately caused by the employment, either with or without negligence and is not so caused by the intoxication or wilful misconduct of the injured employee.’ — Subdivision 3, section 12 (a), California Workmen’s Compensation Act, as amended by chapter 607 of the . Laws of 1915.
“The California automobile law provided that it was unlawful to drive an automobile at a rate of speed in excess of 30 miles,per hour. The deceased in that case was driving at from 35 to 45 miles per hour. The California supreme court peremptorily set aside the award of the commission, saying:
“ ‘Tile conclusion is unavoidable that he was guilty of the wilful misconduct contemplated by the law.’
“By a law passed in 1917, effective January 1, 1918, the legislature of the State of California changed the. provision above quoted to read that compensation should be paid ‘where the injury is proximately caused by the employment, either with or without negligence, and is not caused by the intoxication of the injured employee or is not intentionally self-inflicted.’ — Subdivision 3 of section 6, California Workmen’s Compensation Law of 1917, which took effect January 1, 1918.
“It does not seem to the board that under the language of the Michigan statute the industrial accident board should follow the decision in the California case. * * * It would be impossible for this board to say that the deceased was in this case killed because he may have been driving more than 15 miles per hour. Possibly he was driving 20 to 25 miles per hour. Did that cause his death? If he had been driving 14 miles or 141/2 miles, or at any rate of speed less than 15 miles, would the accident never have happened? Did the fact that he may have been driving 5 miles or 10 miles per hour more rapidly than permitted by the ordinance bring about that accident. It is impossible for the board .to say that it did. * * *
“It is quite probable that Mr. McMinn’s death would have occurred just the same if he had been driving 14 miles per hour. We cannot say that the accident would not have happened just as it did happen if we were sure that the rate of speed at which the machine was going was less than 15 miles per hour. The only-authorities upon the direct proposition cited in Bradbury’s Workmen’s Compensation Law, Third Edition (1917), are found on page 563 of that work.
“We do not find that any workmen’s compensation law except that of Michigan contains the phrase ‘intentional and wilful misconduct.’ . Many of. the acts use the term ‘serious and wilful misconduct.’ Some of them seem to use the term ‘serious misconduct,' and others the term ‘wilful misconduct.’ The original bill as introduced in the Michigan legislature at the first Extra Session of 1912, contained the phrase ‘serious and wilful misconduct.’ .It was amended in the house by striking out the word ‘serious’ and inserting in lieu thereof the word ‘intentional.’ See House Journal, First and Second Extra Sessions 1912, page 74; Senate Journal, First and Second Extra Sessions 1912, pages 99 et sequitur; Senate Journal, First and Second Extra Sessions 1912, page 131; House Journal, First and Second Extra Sessions 1912, page 142. It would seém that the legislature deliberately inserted the word ‘intentional’ in place of the word ‘serious,’ and it seems to the board that ‘intentional and wilful misconduct’ ought to mean something more than ‘serious and wilful misconduct.’ There is nothing in the record to convince the board that the deceased wilfully or intentionally violated the ordinance of the village of Ecorse. He may not have known that he was driving more than. 15 miles per hour. He may not have known that such an ordinance existed. Yet, even though he did not, he would probably be presumed to know of the existence of the ordinance. But even if he is presumed to have known of the existence of the ordinance it is not shown that he wilfully or intentionally violated it. On this record the board cannot say that the deceased, was guilty of wilful and intentional misconduct which caused his death. In this connection we wish to mention the case of People v. Barnes, 182 Mich. 179, decided July 25, 1914. In that case the court charged the jury that if at the time Barnes, struck the girl who was killed by his automobile, he was operating his car in excess of the speed limit, he was guilty of manslaughter. The Supreme Court held that the charge of the trial court was erroneous. The court say:
“ ‘From aught that appears in this record, the injury might have occurred just the same as if the respondent had been running 9 miles an hour as it would were he running 11 miles an hour. The charge eliminates from the case all question of whether the respondent, in good faith, believed he was running within the statutory limit, and makes a mistake of judgment on the part of respondent amount to a crime. While it is not the law that, in order.to convict the respondent, it must be made to appear that he knowingly violated the statute because he is bound to know the law, yet there is authority to the effect that he must have been aware, in order to be convicted, that he was doing the unlawful act complained of.’
“It seems to the board that the reasoning in the case of People v. Barnes is applicable in the case now before us. There is nothing in this record to indicate that this accident might not haVe happened just as it did happen if the deceased was running his car 14 miles per hour.”
The important question for our consideration is, Was there any evidence to support the findings of fact of the board?
Turning to the testimony we find the following: Julius Kern, the manager and representative of the Brewing Company’s business at Detroit, testified that he employed Mr. McMinn, who had been in the company’s employ for about a year and a half, as collector and solicitor. He testified in part:
“Q. In this employment were the hours stated hours of employment, or were they irregular hours of employment?
“A. Well, no, I would not say that these hours were regular. He came to work at different hours in the morning and he quit at different hours in the evening.
“Q. Would his employment, if he had certain leads to follow, or certain business to solicit, would that take him into — would his duties continue into the evening?
“A. At times. * * *
“Q. When did you last see Mr. McMinn?
“A. I saw him the day before he was killed, I think on a Wednesday. I forget the date.
“Q. Did you know of any prospect which Mr. McMinn had to solicit business from, in the village of Ecorse?
“A. Why, he mentioned a party out there the day before he was killed, the last day I saw him, that he was going to go out there.
“Q. Do you recollect the name of tne party?
“A. Mr. Perrigo was his name, was the name of the party he was to see.
“Q. Well, now, as to that sort of employment, Mr. Kern, would you, or did you, rather, superintend or command or supervise that employment, or would he be left to his own devices, and his own resources as to obtaining such prospects?
“A. Well, I should say it was both ways. He would use his own, judgment and he would suggest to me certain people, and at times he would suggest to me where he was going to go, and what he would do that day; if I would consent to it he would do it; if I did not he would not do it. Then sometimes I would suggest certain people that he would call on.
“Q. What kind of a conveyance or vehicle did he have; what was it, a Ford machine?
“A. A Ford car.
“Q. Who owned that machine?
“A. Why, the company owned the machine, the Kern Brewing Company. * * *
“Q. This automobile which Mr. McMinn used, which you say belonged to the company, state where that was kept nights?
“A. Why, it was kept — he kept it generally at his garage at the house. * * *
“Q. Likewise, Mr. Kern, is it a fact that Mr. McMinn would be required and did make some collections in the evening occasionally?
“A. Yes, he occasionally made collections for the company in the evening.
“Q. From customers?
“A. Yes. * * *
“Q. By Chairman Zierleyn: What were the duties of Mr. — that is, as to hours, the duties of Mr. McMinn, as relates to hours, Mr. Kern?
“A. While he didn’t have any set hours. He would probably come to work — if he didn’t finish his work for .the day until six or seven o’clock, or five o’clock, why, he would not come back until the next morning, probably nine or ten in the morning. I never asked him to come back at a certain hour in the morning. He came around when he was ready to do so. I never had any words with him to that effect. He always used his own judgment. I was satisfied he was doing business. I never told him to come back in the morning unless it was for a certain purpose. He generally came around nine o’clock in the morning, sometimes half-past nine. At times at half-past eight in the morning.
“Q. Would his duties take him to this Perrigo’s place, if he were a prospective customer?
“A. Yes, it might take him there any time, I might say any reasonable hour in the afternoon or evening. Any time he would tell me, ‘Well, I can’t see this certain party until seven or eight o’clock at night, that is when they are generally home.’
“Q. If he were there at the time, it would be within the hours of his employment, if he were there in the interest of his employment?
“A. He would talk business to them, naturally, I presume he would be. * * *
“Q. Do you know that Mr. McMinn had him. in contemplation as a customer?
“A. He mentioned his name as one of them he was going to call on.”
The man Perrigo was examined, and after testifying that he had known Mr. McMinn well, about four years, the following appears:
“Q. Do you recall any time prior to the time of Mr. McMinn’s death that you had any appointment with him with reference to a business matter relating to his line of business, the brewery business, for instance?
“A. Yes. I met Mr. McMinn prior to his death, and Mr. Zimmerer.
“Q. Mr. McMinn and Mr. Zimmerer?
“A. No, just Mr. McMinn. I was talking with him in regard to. changing draft beer.
“Q. Where did you meet Mr. McMinn at the time?
“A. At the — Zimmerer’s place, it' was about two weeks prior to this ball game, I think this ball game was partly suggested.
“Q. The ball game had been partly arranged?
“A. Had been partly arranged for this certain day.
I spoke to him in regard to changing beer. He said that he would see what he could do about it.”
(Here follows the testimony of this witness quoted in the board’s findings.)
“Q. Were you at the ball game yourself?
“A. I played with them.
“Q. Now, at the time you first — or that the matter of changing beer was first spoken of in Mr. Zimmerer’s place, did you bring up the matter?
“A. I did.
“Q. You brought it up?
“A. Yes.- I approached him on the subject. * * * Now, in coming back from the ball game, he met with his accident, of course?
“Q. Were you in the same car?
“A. No, I was in my own car. They left ahead of me, and I passed them on the road. I was home, and as I went into the hotel I drove around to the back as usual, and I went into the hotel, and one of the waiters came up to me and said, ‘There has been a terrible accident out there.’ ”
The witness then described the scene of the accident which he at once visited and where he saw McMinn ; this was about a half block from his hotel.
On cross-examination, the following occurred:
“Q. When was the arrangement made relative to your going out there to your hotel for dinner?
“A. Right on the ball ground.
“Q. On the ball ground?
“A. Yes. I knew nothing of their coming out.
“Q. You didn’t know anything about their coming out there before that time?
“A. Not coming out there for dinner.
“Q. Sir?
“A. Not coming out there for dinner. I knew nothing about it until I came to the ball ground, until I talked with Mr. McMinn.”
■Being further examined by Chairman Zierleyn, this appears:
“Q. When you talked with Mr. McMinn relative to the transfer of your business to him, I did not quite get the answer. When was that?
“A. That was about two weeks prior to the ball game.
“Q. Had there been an appointment made at the time?
“A. Nothing definitely, any more than he would see me about that time. .
“Q. When did you next see him again?
“A. At the ball game.
“Q. What was said at the time relative to it?
“A. I spoke to him in regard to it. I asked him what he had done about it, and the reply he made in regard to the price, he said, that ‘some of the boys and myself are coming down for supper or dinner after the ball game, and I will have a talk with you then.’
“Q. This was that he would come to your place after the ball game?
“A. Yes.
“Q. That was said at the ball game? ‘after which he was killed?’
“A. That was said before the ball game started.”
By Mr. Alexander (one of the arbitrators) :
“Q. Did Mr. McMinn have anything personally to do with getting the game up ?
“A. Nothing more than anybody else.
“Q. Then, during the game itself, he did not talk to you about any business, did he?
“A. Nothing only just what was said. I spoke to him in regard to it. I didn’t know then that he was coming down until he told me he would be down after the game, him and some of the boys.”
By Chairman Zierleyn:
“Q. That he would come down to your place?
“A. He would come down to my place and talk it over.
“Q. How many of the boys came down at the time this accident happened?
“A. Why, I think there were 7 or 8.
“Q. Those in your machine, and the ones in his?
“A. No, there was one more machine.”
There was other testimony of conversations with Mr. McMinn, most of which was objected to as hearsay. What we have quoted is not, we think, subject to that objection. It was competent for the manager of the brewing company to testify to the nature and scope of the employment, and of conversations about the business. And we think that it was also competent for Mr. Perrigo to testify relative to the negotiations, and the arrangement with Mr. McMinn for the meeting at the hotel.
We have repeatedly held that, under the statute, if there was competent evidence to support the finding, we will not review or weigh the evidence. We think there was some evidence in support of these findings.
We are of the opinion that from the evidence which we have quoted, an inference can be drawn that Mr. McMinn, at the time of his accident, was on his way to the place of business of Perrigo, in the course of his employment, and that the accident arose out of, and in the course of his employment. We consider- the case a close one upon the facts, but it is not our duty to weigh the evidence.
We shall not add to what has been quoted from the findings and conclusion of the board, upon the subject of intentional and wilful misconduct. We call attention, however, to a lengthy note to the case of Clem v. Motor Co. (178 Mich. 340), found in L. R. A. 1916A 355. It is there stated that the subject or question is one of fact. It will be noted that in the instant case the board found that the respondents had failed to show that the deceased was guilty of any intentional or wilful misconduct within the meaning of the workmen’s compensation act. That is to say: from the record as made, the board was unable to find that deceased was guilty of such misconduct. Such being the finding upon this question of fact, we think it is our duty to affirm the findings and order of the board; and the same will stand affirmed. .
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred. | [
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Steere, J.
By certiorari to mandamus defendants ask review and reversal of a peremptory order of the circuit court of Livingston county directing them in their official capacity to meet, take joint negative action upon the necessity for, and to dismiss pending proceedings looking to laying out a drain through the three counties they respectively represent.
The contemplated improvement, called the Lowe lake drain, as planned, has a length of between 11 and 12 miles, and in its course traverses the three counties mentioned. When proceedings were instituted for the improvement, in 1916, E. J. Doane was drain commissioner of Ingham county, Clayton E. Deake of Washtenaw county, and Arthur Grieve of Livingston county, the latter having since been succeeded by defendant Kenyon Wrigglesworth. Plaintiff Williams owns land in Livingston county through which the proposed drain would run, necessitating securing from him right of way for it. An application for this drain was signed by the requisite number of freeholders liable to assessment for benefits received and filed with the commissioner of Ingham county in February, 1916, pursuant to which the three commissioners met and ■acting jointly called a public meeting for consideration of such application, to be held March 7, 1916, at the village of Stockbridge in Ingham county, public notice being given which stated that:
“All persons whose lands were to be taken for the said drain and all other persons interested therein were asked to' appear at said time and place to be heard on said question in accordance with the statute.”
At this meeting the three commissioners did not agree as to the necessity for the drain, the commissioner of Ingham county being in favor of it and the other two announcing themselves as adverse to it. Two days thereafter the commissioners met again and signed a statement entitled “Disagreement of Commissioners as to Necessity of Proposed Drain,” which with recital of details as to the application therefor, description of the same, etc., concluded as follows:
“And whereas, a hearing was duly had by us on the 9th day of March, A. D. 1916, in accordance with the statute, for the purpose of determining the necessity of said drain.
“And whereas, full opportunity was given to all persons appearing at said hearing to offer evidence for or against the proceedings.
“Now therefore in view of the premises aforesaid, we, the said drain commissioners of said counties, of Ingham, Washtenaw and Livingston, are hereby unable to agree as to the necessity of said drain.”
Not long thereafter, and during that spring, the commissioner of Ingham county appealed to the State highway commissioner to determine the necessity for the drain. After a hearing on such appeal the State highway commissioner determined said drain to be a public necessity, and made an order accordingly; fol lowing and pursuant to which the three county commissioners met and jointly made an order of determination in harmony with that of the State highway commissioner, and proceeded with the prescribed statutory steps for such improvement, which, amongst other things, required them to secure right of way for the drain.
Being unable to obtain voluntary release of right of way from certain parties in Livingston county through whose lands the drain would go, including plaintiff, the commissioners, in November, 1917, made application as provided by statute to the probate court of that county for appointment of disinterested persons as commissioners to determine the necessity of taking the desired lands, appraise damages, etc.
While these condemnation proceedings were pending, plaintiff Williams applied to the circuit court of Livingston county for a peremptory writ of mandamus to compel the three drain commissioners to meet, dismiss their application before the probate court for condemnation, and enter an order determining said drain not to be a necessary public improvement. The commissioners made answer, and after hearing thereon at which the material facts were apparently not in dispute, the court made an order that the three commissioners should—
“assemble themselves together on some date to be determined by them, and not more than 30 days from this date, and then and there enter an order determining the application for the Lowe lake drain, so-called, to be unnecessary and discontinue further proceedings toward the construction thereof and dismissing the application therefor, and that each of said persons file in their respective offices a copy of said order as of the date of March 8, 1916.”
Defendants’ counsel urge and argue in their brief as reasons why this order of the circuit court should be reversed the following propositions:
“First. Mr. Doane, or any one of the commissioners, had the right to appeal to the State highway commissioner, when they disagreed as to the necessity of the drain.
“Second. That the court had no power to order the statement of disagreement (Exhibit A) amended, or a discretionary order entered.
“Third. The meeting held by the commissioners was informal.
“Fourth. Because the statutory certiorari was the proper remedy to review any alleged illegal -drain proceedings.”
Plaintiff’s counsel say that the meritorious legal issue involved is, whether upon the necessity for a proposed drain which traverses more than one county “a majority vote of the commissioners decides the question.” And, as to the remedy resorted to in the circuit court, admit that certiorari is the “proper and exclusive remedy for all defects in records of the proceedings at this stage of the establishment of a drain”; but contend that rule is not applicable to the situation presented here because plaintiff is “not objecting to the record,” and is only seeking to compel the commissioners to make a proper and truthful record of their action, which they neglected or failed to do, stating their position as follows:
“We are complaining because they failed to make a record. We simply are asking that these commissioners make the record that the statute required them to make. * * * If certiorari were brought, the return would show that these commissioners failed to agree, whereas, in fact, that is not true. In view of the conduct of the commissioners, we submit that mandamus was the only remedy open to Mr. Williams, whose lands were about to be taken by these commissioners for this alleged public purpose, whereas, in fact, these commissioners had determined legally that this alleged public improvement was unnecessary.”
In Auditor General v. Crane, 152 Mich. 94, it was held that where the drain commissioner failed to file certain papers essential to a true record of a drain proceeding, mandamus might be brought to compel him to comply with the statute in that particular, to lay a foundation for the statutory writ of certiorari; and mandamus was recognized in Cilley v. Sullivan, 187 Mich. 447, as proper to compel respondent to perform his official duties in joint action with the drain commissioner of an adjoining county where he had declined to co-operate in levying a special assessment for a drain, making the contention that the statute upon which the drain proceedings were based was claimed to be unconstitutional, and because of the probability of litigation following the heavy expenditures which proceeding with the drain would involve. On certiorari to refusal of the trial judge to grant mandamus the constitutionality of the law was passed upon by this court, it being held that the provision conferring authority upon the State highway commissioner to act as arbitrator in drain proceedings when properly appealed to was not unconstitutional as invading the right of local self-government, and mandamus should be issued by the trial court as prayed.
Conceding in the instant case that, if the record of the drain proceedings made by the commissioners is untrue in fact or incomplete, plaintiff is entitled to compel the commissioners by mandamus to correct and perfect them, the only material facts they would or could add to their record bearing upon the point at issue would be a statement of just how each commissioner stood and voted upon the necessity of the drain, which is admitted to have been as plaintiff claims, following which the truthfulness of their record that they were unable to agree is contingent upon whether defendants’ construction of the statute or that contended for by plaintiff should prevail.
Plaintiff’s contention is that the commissioners did, in fact and law, agree that the drain was not a public necessity for the reason that, acting jointly upon the question, a majority so determined. In support of this claim counsel urge, as controlling, the rule of construction found in section 64, 1 Comp. Laws 1915, which provides, in part:
“In the construction of the statutes of this State the following rules shall be observed unless such .construction would be inconsistent with the manifest intent of the legislature, that is to say: * ' * *
“3. All words purporting to give a joint authority to three or more public officials or other persons shall be construed as giving such authority to a majority of such officers or other persons unless it shall be otherwise expressly declared in the law giving the authority.” Citing Scott v. Young Men’s Society, 1 Doug. 119; Serrell v. Patterson, 107 Mich. 234.
The drain laws of Michigan which have long been a fruitful subject of litigation and legislation are found, in the form in which they were in force at the time of the proceedings under inquiry, in chapter 93, 1 Comp. Laws 1915, beginning with consecutive section 4870. In section 4874 provision for joint action of county commissioners first appears as follows:
“In all cases where the entire drain shall be laid in one county, and the benefits to be derived therefrom and the assessments for its construction shall extend to lands situated in one or more adjoining counties, then all such drains shall be laid by the commissioners of such counties acting jointly, and all their proceedings shall be had under the provisions of this act regulating the construction of drains traversing more than one county.”
In chapter 7 of the act, beginning with section 4932 of the compilation, the subject of joint action for construction of drains traversing more than one county is dealt with, it first being provided that:
“Whenever it may be desired to locate, establish, widen, deepen, extend or clean out a drain traversing more than one county, or affecting lands lying in more than one county, an application therefor shall be made to the county drain commissioner of either county traversed by the proposed drain. Such application shall be subject to the same conditions and the applicants to the same obligations and liabilities as in other drains under this act.”
The act further provides that the commissioner receiving the application shall, if he deems the drain necessary, notify the commissioners of other interested counties, furnish each with a copy of the application, and call a meeting. That portion of the law particularly in controversy here (section 4933) is as follows:
“Such county drain commissioner or commissioners shall, at the time and place fixed as above, meet with the county drain commissioner having the original application, and shall thereupon and thereafter jointly take all steps and perform all acts, and sign all papers as county drain commissioners are required to do singly in the case of other drains, including the application to the probate court: Provided, That should the said county drain commissioners be unable to agree as to the necessity, location or benefit of such drain, or any other matter relative thereto they, or either of them, may appeal to the State highway commissioner, who shall act in the premises as hereinafter provided. Such State highway commissioner shall be furnished with all the data relative to such drain, which may be in the possession of said county drain commissioner, or either of them, and said highway commissioner shall have the right to subpoena witnesses and take testimony, and his decision relative to such matters as may be in dispute shall be final.”
The statutory rule of construction quoted is but declaratory of the general common law rule which prevails where unqualified joint authority is given to public officials in the conduct of public matters, and is well sustained by the' numerous authorities plain tiff’s counsel cite, but to apply it in the construction of a particular statutory provision it must be consistent with the manifest intent of the legislature and purpose of the enactment. The joint authority given to drain commissioners by this statute is qualified by the proviso that if they “are unable to agree * * * they, or either of them, may appeal to the State highway commissioner,” etc. An agreement of individuals or officers where each has a voice and vote naturally indicates a concurrence- of minds — that they are of the same mind upon the question under consideration. Such is the construction put upon wording similar to this in Sudler v. Lankford, 82 Md. 142.
If the agreement of a mere majority was intended as final the proviso would seem superfluous. Construed with the manifest object in view and indicated legislative intent in dealing with this portion of the drain law, this language in the connection used fairly means that a concurrence or agreement of each commissioner is essential for a final settlement of the question to the exclusion of an appeal, which the act expressly authorizes any one of them to take in case the “commissioners be unable to agree.” Broadly viewed, the fair intent and proper construction of the provision is that no one of the counties involved shall be finally bound, negatively or affirmatively, by those representing the others without the concurrence of its representative except by affirmance on appeal to the State highway commissioner, whose decision on the matter “in dispute shall be final.” But even accepting the construction contended for by plaintiff as to the joint authority of the commissioners in the first instance, and conceding that a decision of a majority is controlling and final if not appealed from, the legislature has undoubted power to grant the right of appeal to any disagreeing commissioner, and we are satisfied the intent to confer such right is made evident by the language of the provision in question.
The order of the circuit court directing the commissioners to reconvene and take further action as. therein directed is therefore reversed and set aside.
Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
Bird, J.
In the year 1913, plaintiff was a farmer and resided on his farm in Gaines township, Kent county. He was also the owner of another farm in Byron township, which he operated. He traveled from one to the other with his teams and tools over an east and west highway extending through said townships. Early in the spring of 1913 defendants reached this highway in the construction of their interurban railway. The plan of crossing the highway was at right angles and a separation of grades, the highway passing over the railway. Soon after commencing the work the highway became impassable to travelers and as a consequence they veered to the south and went around the construction work. The owner of the land on the south side put an end to this by putting up his fences. Then travelers began to pass around to the north, and later defendants leased ten acres lying immediately north of the intersection to provide a passageway for them around the intersection. On the evening of August 21st plaintiff was returning from the Byron farm to his home with two teams and a lumber wagon. While driving around the construction work and over the leased land in the traveled track the wagon was driven into a deep hole from 18 to 24 inches deep, situate in or near the traveled way. The jolt occasioned thereby threw plaintiff off the wagon and severely injured him.
At the conclusion of plaintiff’s proofs defendants requested a directed verdict alleging several grounds therefor. This request was granted and placed upon the ground that plaintiff was a licensee and, therefore, took the temporary road as he found it. Plaintiff complains of this instruction and insists that he was an invitee and not a licensee, and by reason thereof it was the duty of defendants to see- that the temporary way over which he was invited to pass was in a reasonably safe condition for public travel.
There appears to be no disagreement between counsel as to the measure of liability of defendants in case plaintiff should be adjudged either a licensee or invitee, but their disagreement arises over the question whether the evidence made him a licensee or invitee, while using the temporary way. It is perhaps true that no express invitation was given plaintiff to use the temporary way, but we think the facts of the case show that an implied invitation was extended to him. The obstruction of the highway at the intersection, coupled with a temporary way around it, would suggest to the average traveler an invitation to use it. Add to this the fact that defendants leased the land for this very purpose, and that it was to their advantage for travelers to use it rather than to insist on their right to proceed on the highway, it shows an implied invitation to use the temporary way. In other words, it is a fair inference from the testimony that defendants desired to obstruct the highway at the intersection for their own convenience; they leased land adjoining the obstruction and furnished the public a temporary way around it in consideration of the public waiving its right to travel upon the highway while the work was progressing. Under these circumstances plaintiff was on their premises by implied invitation and if they failed to use ordinary care to keep the way reasonably safe for travel, and by reason thereof plain tiff was injured, without fault upon his part, they must respond in damages for such default. Stewart v. Railway Co., 89 Mich. 815. In this case it is said:
“It is true, as contended, that the owner of premises is under no legal duty to keep them in good repair for the accommodation of persons who go upon them for their own convenience merely. Where a person has .a license to go upon the grounds or the inclosure of another, he takes the premises as he finds them, and accepts whatever perils he incurs in the use of such license. ' But when the owner or occupant, by enticement, allurement, or inducement, whether express or implied, causes another to come upon* his lands, he then assumes the obligation of providing for the safety and protection of the person so- coming, and for any breach of duty in that respect such owner or occupant becomes liable for any injury which may result to the person so caused to come onto his lands. The enticement, allurement, or inducement, as the case may be, must be the equivalent of an express or implied invitation. Mere acquiescence in the use of one’s lands by another is not sufficient. Such an implied invitation may be inferred from some act or line of conduct or from some designation or dedication.”
But it is argued that defendants were under no legal duty to provide a temporary way, that it was a mere gratuity and, therefore, they are not liable. Conceding, for the sake of argument, that defendants were under no legal obligation to furnish a temporary way, the fact remains that they did furnish one and impliedly invited the public to use it and in so doing they assumed the duty to use ordinary care to keep it reasonably safe for public travel. Stewart v. Railway Co., supra; Retan v. Railway Co., 94 Mich. 146.
Another ground advanced by defendants for a directed verdict was that the testimony showed that plaintiff was guilty of contributory negligence. This argument is based largely upon the fact that plaintiff was familiar with the surroundings, having been back and forth between his farms frequently while the work was in progress. It appears from his testimony that he did not see the hole before driving into it, that he had never seen it, and it does not appear that it was so obvious that his failure to see it was negligence. As the record stood at the close of plaintiff’s proofs this question was one for the jury, as well as the question of the defendants’ negligence. The trial court was right in determining as a matter of law the question whether plaintiff was a licensee or an invitee, as the testimony concerning it was not in dispute.
The judgment is reversed and a new trial ordered with costs of both courts to plaintiff.
Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. Ostrander, C. J., and Kuhn, J., did not sit. | [
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Fellows, J.
As is quite common when cases of this character, involving family troubles, are submitted to courts for determination, a want of harmony appears in the testimony as well as in the relations of the parties. We do not find it necessary to state all the conflicting claims of the parties, but prefer to states the controlling facts which we find established on this record. In reaching our conclusions we are aided by. the findings of the trial judge, who heard and saw the witnesses and was well able to judge their credibility.
John Fleming, the defendant, and Arista his wife, were old residents of Carlton township in Barry county. They had three children: Charles, Fred, one of the plaintiffs, and Minnie. Charles married; he seems to have remained at home. Fred was a carpenter by trade; he married the plaintiff, Bertha, and after remaining a short time with his parents established a home of his own. Minnie, the remaining child, married a man named Vester. For a time Mr. Vester worked the Fleming farm; at the time of the hearing he lived in Hastings. Defendant owned 135 acres of land in Carlton township. For a time he engaged in mercantile pursuits but the venture was not successful. He deeded to Charles 55 acres of his farm land and took back a mortgage for $1,000, which seems to have been used to settle with his creditors. This conveyance to Charles, with the mortgage back, appears to have been regarded by all the family as giving to Charles his prospective share of his father’s estate. At about the time of this conveyance to Charles defendant placed the title to the remaining 80 acres in himself and Arista, as tenants by the entirety.
Charles died in 1904, leaving a widow and two children who lived with defendant and his wife until the re-marriage of the widow in 1912. Charles’ widow did nursing, and it is fairly to be inferred from the testimony that from her earnings and the proceeds of the 55 acres she furnished her share to the satisfaction of the old people. Soon after Charles’ death the mother began importuning plaintiff, Fred,. to move upon and work the home farm. We are satisfied that she was the active one in negotiating with Fred, but that all she did had the sanction and approval of defendant. She impressed on Fred that he was the only son left and that it was his duty to come with them in their declining years. He at that time was following his trade, doing other work, and maintaining his home not far from the old home, and her visits were frequent and her importunities insistent. Mr. Vester worked the farm for the first year after Charles’ death. We are satisfied that the trial court correctly found that as an ultimate result of these negotiations, covering about a year’s time, the parties agreed as contended by plaintiff, that he should give up his own home, move upon the old homestead, work it during the remainder of their lives, that both families should be cared for on the farm, the taxes and interest on a mortgage of a thousand dollars outstanding should be paid, and the balance, if any, was to be divided equally; and that upon the death of the parents Fred was to have one-half of the farm and the other half was to go to the daughter, Mrs. Vester. Defendant under the arrangement was to have a garden patch and was not required to do any work on the farm, unless he desired. We are further satisfied that it was originally agreed that defendant was to furnish the necessary teams and tools, but that it was later agreed that such new tools as it might be necessary to purchase should be paid for out of the proceeds of the farm. ,
Pursuant to this arrangement the plaintiffs gave up their home and Fred his trade, and in the spring of 1905 they moved upon the place. The father and mother, with Charles’ widow and children, occupied one part of the house and plaintiffs’ family the other, until after the death of Arista in the fall of 1912, and the marriage of Charles’ widow. After the death of" the mother, defendant lived with the family of the plaintiff. During the lifetime of Arista she and her husband executed a joint will giving Fred one-half, their property and the daughter, Minnie, the other half. We are satisfied that during all these years plaintiff fully carried out his contract. There was an occasional unpleasantness, such as might be expected. Defendant seems to possess some temper, and of late has on occasion failed to successfully curb it.
In February, 1916, defendant asked plaintiffs to fix up some things for him as he was going to Hastings to stay with his daughter, Mrs. Vester, for three weeks and take treatment with a Hastings doctor. After he had been at his daughter’s a short time he caused a notice to quit the premises to be served on plaintiffs. Negotiations between the parties proved fruitless, and this bill praying for the specific performance of the contract was filed. From a decree for such specific performance, and fixing the rights of the parties in the future defendant appeals.
The decree entered in the court below afforded an equitable solution of this unfortunate family trouble. But for insuperable legal objections we would be inclined to affirm it. The premises in question, however, were, at the time of the making of the contract, the home of defendant and his wife; they continued such home during the succeeding years of. her life. The constitutional homestead had never been admeasured and the contract was for an undivided one-half of the whole farm, including the homestead. In section 2, article 14, of the Constitution of the. State, is found the following provision with reference to the homestead :
“But such mortgage or other alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of his wife to the same.”
The contract in the instant case, a verbal one, was in effect a contract for the conveyance of land including the homestead of the vendors; the payment was. to be made in a. certain way. To square with the constitutional provision a contract to convey the homestead must be in writing and signed by both husband and wife. Our authorities are numerous on this subject. The early case of Ring v. Burt, 17 Mich. 465, is quite in point. In that case one Ira -Ring, husband of complainant, made a verbal agreement with defendant Daniel Burt, whereby the defendant agreed to move upon the premises, which were the homestead and which were worth slightly in excess of the amount of the exemption, and was to care for the old people the balance of their lives and have the property. Burt went upon the premises and performed his part of the contract with the knowledge and consent of the wife, and with her knowledge the husband delivered a deed to the daughter of Burt; which deed, however, she did not sign. It was held that the deed was void. We quote from the syllabus:
“A widow is not bound by a verbal contract, made by her husband, in his life time, by which his homestead was to be conveyed to a third person, in consideration of the support of himself and wife during their life time. And this is so, even though she assented to the contract, and the husband gave a deed in accordance with it, but which was not executed by her.”
A contract, without the wife’s signature, to convey a homestead is not voidable merely but is wholly void. Phillips v. Stauch, 20 Mich. 369; Hall v. Loomis, 63 Mich. 709. See, also, Webster v. Warner, 119 Mich. 461; Lott v. Lott, 146 Mich. 580; Klett v. Klett, 175 Mich. 224. The equities in the instant case are strongly with the plaintiffs; strong equities have existed in many of the cases cited. But strong equities cannot break down the constitutional barriers placed around the homestead.
The will executed by the defendant and his wife was not such, an instrument as complies with the constitutional requirement under consideration. Grindling v. Rehyl, 149 Mich. 641; Gould v. Mansfield, 103 Mass. 408. It is ambulatory, and did not partake of the essentials of a contract, and was revocable at will.
While the plaintiffs are not entitled to a decree for specific performance of this void contract, they are not without remedy, and their rights may be protected in this proceeding. Klett v. Klett, supra. Upwards of 11 years of their lives had been given before the filing of this bill to the faithful performance of a contract which they expected and had a right to ex pect would be equally faithfully carried out by this defendant. During that time permanent improvements have been made by plaintiff Fred on the premises in question. Since the death of defendant’s wife they have cared for him in their own home in the good faith expectation that one-half of the home farm would be theirs at his death. They must not be turned from a court of equity empty handed. That they have performed services for the defendant of greater value than they have received this record discloses, but how much greater in dollars and cents we cannot determine from the testimony before us. The farm consists of 80 acres; the record discloses it to be worth $6,000; there is a margin above the exemption of $4,500. The practice adopted in Klett v. Klett, supra, will be here followed. Defendant may, within 30 days, elect his exemption. If the parties do not agree upon the amount of land to go with the buildings it may be admeasured by commissioners to be appointed by the court. The plaintiffs will be allowed the value of the services they have performed, together with any money or property furnished from the date of the contract to the date of the decree, less the amount they have received. The necessary new tools bought to run the farm belong equally to the parties, and should be paid for equally by them. There is some testimony in the record from which it might be inferred that unnecessary tools have been put on the place. The trial judge will determine this question and adjust the amount on the basis of necessary farm implements and no others. When the amount due the plaintiff shall be determined by the court below a decree shall be there entered, fixing the same as a lien upon the premises outside the homestead and' directing a sale conformable as near as may be to mortgage foreclosure sales. In the meantime defendant will be enjoined from incumbering or selling said premises.
Defendant, by way of cross-bill in his answer, asked for an accounting. There is no testimony justifying an accounting in his favor, and his cross-bill will be dismissed. He holds the note of plaintiff Fred; the amount due on this note may be off-set against plaintiff’s claim.
The decree of the court below will be reversed and the case remanded for proceedings not inconsistent with this opinion. Defendant will recover costs of this court.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. | [
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Corrigan, J.
In this class action, plaintiff and other winners of the Michigan lottery sought relief from the repeal of the statutory exemption of state lottery winnings from Michigan taxes. 1988 PA 516; MCL 432.34; MSA 18.969(34). Defendants appeal the trial court’s grant of plaintiffs motion for summary disposition and its ruling that 1988 PA 516 violated the title-object clause of the Michigan Constitution. Const 1963, art 4, § 24. We affirm in part and reverse in part.
In 1987, Kamel Mooahesh, a member of a lottery club, shared one-half of a one million dollar prize won in the state lottery, MCL 432.1 et seq.; MSA 18.969(1) et seq. The prize money has since been paid and will be paid to him until 2006 in $25,000 annual installments.
At the time Mooahesh purchased his lottery ticket, § 34 of the Lottery Act expressly provided: "No state or local taxes of any kind whatsoever shall be imposed upon the proceeds from a prize awarded by the state lottery.” MCL 432.34; MSA 18.969(34). This tax exemption existed continuously from the lottery’s inception in 1972 until 1988. On December 30, 1988, however, 1988 PA 516 was enacted. A portion of the act provides:
For a tax year beginning after 1987, in calculating taxable income, a taxpayer shall not subtract from adjusted gross income the amount of prizes won by the taxpayer under [the Lottery Act]. [MCL 206.30(6); MSA 7.557(130)(6).]
In addition, the act expressly repealed MCL 432.34; MSA 18.969(34):
Section 34 of the McCauley-Traxler-Law-Bowman-McNeely lottery act, Act No. 239 of the Public Acts of 1972, being section 432.34 of the Michigan Compiled Laws, is repealed effective January 1, 1988. [1988 PA 516, § 2.]
On March 14, 1989, Mooahesh, individually and on behalf of a class consisting of other lottery winners before December 31, 1988, filed a six-count complaint in the Wayne Circuit Court against the Department of Treasury and the Bureau of State Lottery. The complaint was later amended to add two individual defendants, the State Treasurer and the Commissioner of the Bureau of State Lottery. All six counts arose from the passage and enforcement of 1988 PA 516.
The amended complaint alleged that the state breached its contract and that 1988 PA 516 violated the state and federal constitutions. Plaintiff also pleaded other counts not pertinent to this appeal. Each of the counts alleged the $10,000 jurisdictional amount. Plaintiff’s generalized prayer for relief sought (1) a declaratory judgment that the state had breached its contract with plaintiff and other members of the class; (2) a declaratory judgment that 1988 PA 516 was unconstitutional; (3) segregation of payments collected pursuant to 1988 PA 516 pending resolution of the dispute; and (4) payment of costs and attorney fees._
Defendants moved for summary disposition, contending that exclusive jurisdiction was vested in the Court of Claims. MCL 600.6419; MSA 27A.6419. This motion was denied as to the state and the lottery bureau, but granted as to the treasurer and the lottery commissioner, who were dismissed from the case. Plaintiff has not appealed that order.
Plaintiff then moved for summary disposition, seeking a declaration that 1988 PA 516 violated the title-object clause of the Michigan Constitution, Const 1963, art 4, § 24. That motion was granted.
At the same time that plaintiff brought this action, a similarly situated class filed suit in the Court of Claims. The class was essentially defined as all state lottery winners before December 31, 1988, who had received awards or installment payments in 1988, who filed 1988 state income tax returns, and who páid state income taxes under protest. The Court of Claims granted summary disposition for the plaintiffs, holding that 1988 PA 516 did not apply to those who won the lottery before December 30, 1988. This Court affirmed. Shay v Michigan, unpublished opinion per curiam, decided February 11, 1991 (Docket No. 120806). The Court of Claims ruled solely on the breach of contract claim.
I. CERTIFICATION OF THE CLASS
The lower court certified , the class represented by plaintiff as follows:
All winners of State of Michigan lottery prizes, which prizes were paid in installment payments, provided that at least one installment payment was received or receivable on or before December 31, 1988; the class shall not include those persons or entities who did not choose to exclude themselves from [a] certain class action presently, pending in the Michigan Court of Claims, said action being known as Shay v State of Michigan ....
On appeal, defendants contend that this certification was in error because the Mooahesh class could not be distinguished from the Shay class. We do not agree.
This Court will reverse an order of class certification only where it is clearly erroneous. Grigg v Michigan Natl Bank, 72 Mich App 358, 365; 249 NW2d 701 (1976), rev’d on other grounds 405 Mich 148; 274 NW2d 752 (1979); Northview Const Co v St Clair Shores, 395 Mich 497, 507; 236 NW2d 396 (1975). The lower court did not clearly err in certifying the Mooahesh class.
MCR 3.501(A)(1) describes the requirements for a class action:
One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if:
(a) the class is so numerous that joinder of all members is impracticable;
(b) there are questions of law or fact common to the members of the class that predominate over questions affecting only individual members;
(c) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(d) the representative parties will fairly and adequately assert and protect the interests of the class; and
(e) the maintenance of the action as a class action will be superior to other available methods of adjudication in promoting the convenient administration of justice.
Neither the explicit language of the court rule nor the corresponding federal court rule, FR Civ P 23, requires that a defined class be unique, i.e., that all its members be ineligible for membership in any other class. Defendants have cited no legal authority for this proposition and this Court has discovered no judge-made law imposing any such limitation. Moreover, as presently defined, no one can be a member of both the Mooahesh and the Shay classes. Thus, we have no legal or factual basis for concluding that the lower court’s decision to certify the Mooahesh class was clearly erroneous.
Defendants also complain that the class as certified differs from the class identified in the complaint. Although defendants do not identify the alleged discrepancies, we assume the problem lies in the paragraph of the complaint that refers to "all persons who have won Lotto and/or Super Lotto prizes in the State of Michigan Lottery Contest since its inception in 1973.” The trial court’s order refers to "All winners of State of Michigan lottery prizes, which prizes were paid in installment payments, provided that at least one installment payment was received or receivable on or before December 31, 1988.” These descriptions are functionally identical. The trial court’s definition is, if anything, more restrictive than that in the complaint, so any inconsistency works to defendants’ advantage. We see no reason to reverse the decision of the circuit court on this ground.
II. CIRCUIT COURT JURISDICTION
We next find that the circuit court had jurisdiction of the constitutional issues. Further, we find that plaintiff requested equitable relief and has no adequate remedy at law.
The portions of MCL 600.6419; MSA 27A.6419 pertinent to the present dispute provide:
Except as provided in [MCL 600.6419a; MSA 27A.6419a and MCL 600.6440; MSA 27A.6440], the jurisdiction of the court of claims, as conferred upon it by this chapter, shall be exclusive. . . . The court has power and jurisdiction:
(a) To hear and determine all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms, or agencies.
MCL 600.6419a; MSA 27A.6419(1) provides, in pertinent part:
[T]he court of claims has concurrent jurisdiction of any demand for equitable relief and any demand for a declaratory judgment when ancillary to a claim filed pursuant to [MCL 600.6419; MSA 27A.6419]. The jurisdiction conferred by this section is not intended to be exclusive of the jurisdiction of the circuit court over demands for declaratory and equitable relief conferred by [MCL 600.605; MSA 27A.605.]
The Court of Claims plainly has exclusive jurisdiction over contract claims against the state and its agencies. It does not have exclusive jurisdiction over demands for declaratory and equitable relief (although, of course, it does have ancillary jurisdiction when applicable). See 77th Dist Judge v Michigan, 175 Mich App 681, 699; 438 NW2d 333 (1989) (the Court of Claims lacked power to issue injunction in a case involving a district judge’s claim of an equal protection violation because of unequal salaries and benefits), and AuSable Manistee Action Council, Inc v Michigan, 182 Mich App 596, 599-600; 452 NW2d 832 (1989) (injunction to enforce land-use restrictions proper in circuit court because the Court of Claims did not have jurisdiction over purely equitable claims).
While various counts in the complaint sought money damages, the lower court dismissed many of the counts sounding in tort. The lower court accepted plaintiffs argument that his breach of contract claim merely provided a basis for equitable relief and for declaratory judgment. The circuit court, upon due consideration, concluded that plaintiff was not seeking money damages, but rather a determination whether it was constitutional to take plaintiff’s property and a return of property taken improperly. We believe that the circuit court’s analysis was correct. The relief plaintiff seeks is more in the nature of an equitable remedy than damages. Plaintiff does not seek damages for an unrelated injury, but rather the return of money allegedly properly belonging to him. Thus, the Court of Claims did not have exclusive jurisdiction; the claims for equitable relief were properly brought in the circuit court.
As for the declaratory judgment, although the Court of Claims may have jurisdiction, the circuit courts enjoy concurrent jurisdiction pursuant to MCL 600.6419a; MSA, 27A.6419(1). In 77th Dist Judge, supra, this Court held that "declaratory judgment is appropriate in the Court of Claims only if the underlying dispute or controversy is of a nature lending itself to an eventual remedy in money damages against the state or one of its branches.” 175 Mich App 700. In AuSable, supra, where the plaintiff’s only request was for equitable relief, the Court found jurisdiction proper only in the circuit court. 182 Mich App 599-600. We conclude that, although the Court of Claims has authority to issue a declaratory judgment, the circuit court also has jurisdiction.
The circuit court indisputably had jurisdiction to rule on plaintiff’s constitutional claim. See Kostyu v Dep’t of Treasury, 170 Mich App 123; 427 NW2d 566 (1988); Meda v City of Howell, 110 Mich App 179, 183; 312 NW2d 202 (1981). In Kostyu, a taxpayer contested the Treasury Department’s procedure for estimating his tax liability. In its analysis, this Court said:
In matters of taxation, the circuit court continues to have jurisdiction to entertain constitutional issues concerning the validity of tax laws .... [Id. at 128.]
See also Bales v Hwy Comm, 72 Mich App 50, 54; 249 NW2d 158 (1976) (a constitutionally created right can be protected in equity); Thom v State Hwy Comm’r, 376 Mich 608, 628; 138 NW2d 322 (1965) (no governmental immunity for constitutional claims).
The Court of Claims has exclusive jurisdiction of claims and demands against the state ex contractu and ex delicto. See, e.g., Greenfíeld Const Co, Inc v Hwy Dep't 402 Mich 172, 230; 261 NW2d 718 (1978); Advisory Opinion on Constitutionality of 1976 PA 240, 400 Mich 311, 320; 254 NW2d 544 (1977); Taylor v Auditor General, 360 Mich 146; 103 NW2d 769 (1960). That court was not created to provide a forum for testing the constitutional validity of laws. Indeed, its jurisdiction is carefully limited to "claims and demands ... ex contractu and ex delicto” and ancillary equitable and declaratory matters. To hold, as defendants have argued, that constitutional issues are triable only in the Court of Claims ignores the statutory authority that created the court.
Defendants have also asserted that plaintiff should be limited to his legal remedy, i.e., that regardless of its jurisdiction, the trial court should not award any equitable relief because plaintiff has an adequate remedy at law. That remedy is found in MCL 205.30(2); MSA 7.657(30X2), which provides in part:
A taxpayer who paid a tax claimed not to be due may petition the department [of Treasury] for refund of the amount paid within the time period specified as the statute of limitations ....
Jurisdiction of courts of equity is recognized where "the facts involved in litigation are such that a claimed legal remedy, although available, will not afford adequate relief.” Wild v Wild, 360 Mich 270, 276-277; 103 NW2d 607 (1960). A legal remedy cannot be said to give full and ample relief if it is not as effectual as that which equity affords. Fireman’s Fund Ins Co v Harold Turner, Inc, 159 Mich App 812, 816; 407 NW2d 82 (1987), citing Powers v Fisher, 279 Mich 442, 447; 272 NW 737 (1937).
The class here has an available but inadequate legal remedy. The prizes were to be paid in annual installments for twenty years. If the class is restricted to the refund mechanism of § 30, its members would be required to avail themselves of the payment and petition procedure every year, running the risk of inconsistent results and possibly a sequence of appeals to the Tax Tribunal and this Court.
The case of Knott v Flint, 363 Mich 483; 109 NW2d 908 (1961), is analogous. The plaintiffs, a number of business owners, objected to a special property tax assessment against them. Id. at 485-490. The defendant claimed that the plaintiffs could have paid the taxes and protested them, rather than seeking equitable relief. Id. at 492. The Court determined that that remedy, if available, would be inadequate:
Obviously this would have involved a large num ber of actions, particularly in view of the fact that the assessments were required to be collected in 2 annual installments. That such a course of procedure, if available, would have worked a hardship on plaintiffs is obvious.
If the course of action suggested was available under applicable law it does not necessarily follow that equity was without jurisdiction. This Court has suggested in prior cases that notwithstanding the possibility of following a legal remedy equity may take jurisdiction under circumstances imposing undue hardship. [Id. at 492-493.]
The remedy proposed by defendants in this case would "work an obvious hardship.” An equitable order is appropriate.
The complete remedy plaintiff sought was not available in the Court of Claims. Jurisdiction in the circuit court therefore was proper.
III. CONSTITUTIONALITY OP 1988 PA 516
Defendants next contend that the lower court erred in ruling that 1988 PA 516 violates Const 1963, art 4, § 24, the title-object clause, which provides in part: "No law shall embrace more than one object, which shall be expressed in its title.” We agree.
The question presented is governed by a de novo standard of review. Seals v Henry Ford Hosp, 123 Mich App 329; 333 NW2d 272 (1983).
The lower court held that the act violates the one-object provision because repealing the lottery exemption is an object distinct from raising revenue. The lower court also held that the act violates the title-object requirement because its title did not specify that it was intended to repeal the tax exemption on lottery prizes. We are not persuaded that the lower court correctly analyzed this question.
Section 1 of 1988 PA 516 amended MCL 206.30; MSA 7.557(130) by providing:
For a tax year beginning after 1987, in calculating taxable income, a taxpayer shall not subtract from adjusted gross income the amount of prizes won by the taxpayer under the McCauley-TraxlerLaw-Bowman-McNeely Lottery Act . . . being sections 432.1 to 432.47 of the Michigan Compiled Laws. [MCL 206.30(6); MSA 7.557(130X6).]
Section 2 of 1988 PA 516, immediately following, then repealed § 34 of the Lottery Act, MCL 432.34; MSA 18.969(34).
We first consider the holding that the act violated the single-object rule. As Michigan courts have held in numerous contexts, the one-object requirement should be construed reasonably. See, e.g., Kuhn v Dep’t of Treasury, 384 Mich 378, 387; 183 NW2d 796 (1971) (state income tax act not unconstitutional); Green v Court Administrator, 44 Mich App 259, 263; 205 NW2d 306 (1972) ("reasonableness is the hallmark” of cases interpreting art 4, § 24). Further, every legislative act is presumed constitutional as against constitutional challenges. Hall v Calhoun Co Bd of Supervisors, 373 Mich 642, 649; 130 NW2d 414 (1964). Moreover, every reasonable presumption is indulged in support of an act’s constitutionality. Builders Square v Dep’t of Agriculture, 176 Mich App 494; 440 NW2d 639 (1989).
[A]n act may contain any provision which directly relates to, carries out, and implements the principal object of the act. Legislation should not be invalidated merely because it contains more than one means of attaining its primary object. [City of Livonia v DSS, 423 Mich 466, 499; 378 NW2d 402 (1985), aff'g Greentrees Civic Ass’n, Inc v Pignatiello, 123 Mich App 767; 333 NW2d 350 (1983).]
The Legislature may enact new legislation or amend any act to which the subject of the new legislation is "germane, auxiliary, or incidental.” DSS, supra at 500. A statute may authorize the doing of all things that are in furtherance of the general purpose of the act without violating the one-object limitation of art 4, § 24. Kuhn, supra at 388. See also, e.g., Midland Twp v State Boundary Comm, 401 Mich 641, 654-654; 259 NW2d 326 (1977).
The purpose of the single-object rule is to avoid bringing into one bill diverse subjects that have no necessary connection. Builders Square, supra at 497 (item pricing and’ deceptive advertising act not unconstitutional). In Detroit Bd of Street Railway Comm’rs v Wayne Co, 18 Mich App 614, 622-623; 171 NW2d 669 (1969), this Court aptly summarized the single-object rule in the context of a dispute over a tax repeal:
It might have been better draftsmanship to have placed the provision concerning the taxability of municipal transportation utilities in the general property tax law (where one might expect to find it) rather than in the home rule act. There is, however, no constitutional requirement that the legislature do a tidy job in legislating. It is perfectly free to enact bits and pieces of legislation in separate acts or to tack them on to existing statutes even though some persons might think that the bits and pieces belong in a particular general statute covering the matter. The constitutional requirement is satisñed if the bits and pieces so enacted are embraced in the object expressed in the title of the amendatory act and the act being amended. [Emphasis supplied.]
As the DSS Court said, "Legislation should not be invalidated merely because it contains more than one means of attaining its primary object.” 423 Mich 499.
It is sufficient that "the act centers to one main general object or purpose which the title comprehensively declares, though in general terms, and if provisions in the body of the act not directly mentioned in the title are germane, auxiliary, or incidental to that general purpose . . . . ” [People v] Milton, 393 Mich 246-247 [224 NW2d 266 (1974)], quoting Loomis v Rogers, 197 Mich 265, 271; 163 NW 1018 (1917). [423 Mich 501.]
"To require that every end and means necessary to the accomplishment of this general object should be provided for by a separate act relating to that alone, would not only be senseless, but actually render legislation impossible.” Banner Laundering Co v Bd of Tax Admin, 297 Mich 419, 436; 298 NW 73 (1941) (use tax constitutional).
The Legislature’s object in the act at issue was to raise revenue. The title of 1988 PA 516 reads:
An act to amend sections 30, 262, 520, and 527a of Act No. 281 of the Public Acts of 1967, entitled "An act to meet deficiencies in state funds by providing for the imposition, levy, computation,, collection, assessment, and enforcement by lien and otherwise of taxes on or measured by net income; to prescribe the manner and time of making reports and paying the taxes, and the functions of public officers and others as to the taxes; to permit the inspection of the records of taxpayers; to provide for interest and penalties on unpaid taxes; to provide exemptions, credits and refunds of the taxes; to prescribe penalties for the violation of this act; to provide an appropriation; and to repeal certain acts and parts of acts,” sections 30, 520, and 527a as amended by Act No. 254 of the Public Acts of 1987 and section 262 as amended by Act No. 190 of the Public Acts of 1983, being sections 206.30, 206.262, 206.520, and 206.527a of the Michigan Compiled Laws; to add section 273; and to repeal certain acts and parts of acts on specific dates.
The object of such an act is "necessarily broad-ranging and comprehensive.” Midland Twp, supra at 654.
Revenues can be raised in any number of ways, as history has made obvious. Taxes may be imposed, increased, or rearranged. The object of "meeting] deficiencies in state funds” may reasonably be found to include the repeal of a tax exemption, even if that exemption does not appear in any act specifically devoted to taxation. While it might have been "better draftsmanship,” Bd of Street Railway Comm’rs, supra, to have provided for a separate amendment to the Lottery Act, the inclusion of the repeal of the tax exemption provision in an act amending the income tax laws does not render the act in violation of the single-object requirement.
Neither are we persuaded that 1988 PA 516 violates the requirement that the object of an act "shall be expressed in its title.” It is well established that the title of an act need not be an index of its provisions. Builders Square, supra at 499; see also, e.g., Kull v Michigan State Apple Comm, 296 Mich 262, 268; 296 NW 250 (1941) (tax imposed on apple production valid although the act also created an agency for the promotion and advertising of apples). If indexing were required, the title would not pass muster, because it plainly fails to list the repeal of the tax exemption. The principle instead is that the general object and not all the details and incidents of a statute need be indicated in the title. Ace Tex Corp v Detroit, 185 Mich App 609, 616; 463 NW2d 166 (1990) (inclusion of "sunset” provision in city tax on utility use did not make it unconstitutional). As the Supreme Court said in People ex rel Wayne Prosecuting Atty v Sill, 310 Mich 570, 574; 17 NW2d 756 (1945): "The title is good if it is a descriptive caption, directing attention to the subject matter which follows . . . or if it be expressive of the purpose and scope of the enactment.”
The title of an act must give fair notice to legislators and others interested in the object of the law to assure them that only matters germane to the object expressed in the title will be enacted. Continental Motors Corp v Muskegon Twp, 376 Mich 170, 181; 135 NW2d 908 (1965). The "object” of a law is its "general purpose or aim.” DSS, supra at 497.
The constitutional provision was designed mainly to prevent the legislature from passing laws not fully understood. . . . [I]t was intended that the legislature, in passing an act, should be fairly notified of its design . . . and that legislatures and parties interested might understand from the title that only provisions germane to the object therein expressed would be enacted . . . and to avoid bringing into one bill subjects diverse in their nature and having no necessary connection, but with a view to combining in their favor the advocates of all—or what is commonly spoken of as logrolling in legislation. [Maki v East Tawas, 385 Mich 151, 157-158; 188 NW2d 593 (1971), quoting State Mutual Rodded Fire Ins Co v Foster, 267 Mich 118; 255 NW 174 (1934).]
That the compilers of the law have placed a portion of 1988 PA 516 in the tax code and another portion in the lottery regulations is not dispositive:
Not infrequently there will be a number of existing acts to which the new legislation would be germane, auxiliary or incidental. The legislative choice will not be held invalid merely because an alternative location for the new legislation might appear to some more appropriate. [Milton, supra at 241.]
Perhaps the strongest recent authority for plaintiffs position concerning inadequate notice of the repeal appeared in OAG, 1987-1988, No 6438, pp 80, 90 (May 21, 1987). In that opinion (and indeed in a series of opinions) the Attorney General concluded that the failure of the title of the City Utility Users Tax Act, MCL 141.801 et seq.; MSA 5.3194(301) et seq., to reflect its "sunset” or termination date, in effect the repeal of that act’s provisions, violated Const 1963, art 4, § 24. The Attorney General opined that the act therefore could not terminate as scheduled on June 30, 1988. In Ace Tex, supra at 617, this Court rejected the Attorney General’s analysis that the lack of notice of repeal in the title of the act vitiated the termination date:
Although we would agree that a repeal in one act which affects another act could jeopardize the requirement of notice guaranteed by our constitution if the repeal was not declared in the first act’s title, we have not been persuaded that a self-repealer presents the same problem. By declaring its purpose to provide the procedure for imposing and collecting such a tax, we believe the act’s title challenges the reader’s attention to provisions in the act which might affect its duration.
We do not find that the title of 1988 PA 516 provided insufficient notice to "the legislators and parties interested” that the tax exemption on lottery winnings was being removed. The act’s title indicated that it was "An act to amend . . . an act to meet deficiencies in state funds by providing for the imposition ... of taxes on . . . net income . . . . ” Thus, definitions of "net income,” wherever found, would of necessity be included. Further, the amendment applied to an existing act, one of whose functions was "to provide exemptions [from taxation] . . . . ” An amendment to an act "to provide exemptions” may reasonably reach changes or elimination of such exemptions. The "object” of eliminating the lottery exemption is not so diverse in character as to violate art 4, § 24.
As set out in Builders Square, supra at 497, the goal of the title-object clause is notice, not restriction of legislation. The notice aspect is violated where the subjects are so diverse in nature that they have no necessary connection. Despite its failure to state explicitly in the title that the Lottery Act exemption was being repealed, we are able to declare that the subjects are not so diverse as to have "no necessary connection.”
Our decision that 1988 PA 516 does not offend the title-object clause makes it unnecessary to address defendants’ argument that if § 2 of the act is unconstitutional, it should be severed, leaving § 1 to repeal MCL 432.34; MSA 18.969(34) by implication.
IV. CONCLUSION
We conclude:
1. The circuit court properly certified plaintiff’s class.
2. The circuit court had jurisdiction to decide plaintiffs equitable claims and requests for declaratory judgment.
3. Plaintiff was entitled to seek equitable relief because his remedy at law was inadequate.
4. The circuit court had jurisdiction to determine the constitutionality of 1988 PA 516, but erred in finding the act unconstitutional for violation of the title-object clause.
Consequently, we remand this matter to the court below for proceedings consistent with this opinion. We direct the court and the parties to the decision in Shay v Michigan, supra, in the interest of judicial economy.
We do not retain jurisdiction. No costs, neither party having prevailed in full.
Affirmed in part, reversed in part, and remanded.
Plaintiffs complaint asserted that the potential class consisted of 1,000 Lotto or Super Lotto winners, plus tens of thousands of winners of smaller prizes. In the motion for class certification, plaintiff described 832 potential class members.
Plaintiff’s claims included breach of contract and promissory estoppel, violation of 42 USC 1983 against the individual defendants, violation of various provisions of the Michigan Constitution and the Consumer Protection Act [MCL 445.901 et seq.; MSA 19.418(1) et seq.], misrepresentation and conversion. The court dismissed the counts relating to 42 USC 1983 and the Consumer Protection Act.
At oral argument, defendants’ counsel pointed to evidence in the legislative history of 1988 PA 516 indicating that the Legislature was, indeed, aware of the presence of the proposed change in the lottery exemption. | [
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Connor, J.
Defendants were charged with several counts of breaking and entering an unoccupied building with intent to commit larceny, MCL 750.110; MSA 28.305. The trial court granted defendants’ motion to dismiss based on their claim of an illegal arrest. The people appeal as of right. We reverse.
At about 3:00 a.m. on March 5, 1990, Canton Township Police Officer Jerry Hardesty was called to investigate a "suspicious situation.” He talked to a tow-truck driver who had seen three white men moving something on a golf course near a highway he was traveling. When the driver confronted them, the men had threatened to "cap” him, and then had run away. Hardesty confirmed that a pile of "equipment” had been left behind, and saw three sets of footprints in the five inches of freshly fallen snow.
The footprints led in the direction of an apartment complex. Hardesty radioed for other officers to be on the lookout for three white males suspected of larcenous activity headed in the direction of the apartment complex. Officer Daniel Antieau heard the radio message. He saw three white men, the defendants, leaving the apartment complex in an automobile. The car was the only one on the road, and there were no other tire tracks in the snow.
Officer Antieau stopped the car and began to question the driver. A couple of minutes later, Officer Hardesty arrived and saw that two of the men were wearing work boots and the third was wearing tennis shoes. He went back to the abandoned equipment and followed the tracks in the snow. He saw that the tracks were consistent with the shoes of the men Antieau had stopped. The tracks led to a storage locker facility that had obviously been broken into. In one of the storage rooms, Hardesty found the print of a tennis shoe on the top of a table. Officer Hardesty radioed Officer Antieau, who placed all three men under arrest. In all, defendants were detained for about twenty minutes before they were formally arrested.
The prosecution contends on appeal that the twenty-minute detention did not transform the "investigative stop” into an illegal arrest, and that therefore the trial court erred in dismissing this case. We agree.
We first note that suppression of evidence, not dismissal of the charge, is the proper remedy for an illegal search or seizure. People v Dalton, 155 Mich App 591, 597; 400 NW2d 689 (1986). However, without the evidence obtained as a result of the twenty-minute detention, there would be nothing to tie defendants to the crimes with which they were charged, making dismissal inevitable.
A trial court’s decision to suppress evidence will not be disturbed unless the ruling was clearly erroneous. People v Martinez, 187 Mich App 160, 171; 466 NW2d 380 (1991), lv den 439 Mich 929 (1992), remanded on other grounds on reconsideration 439 Mich 979 (1992). A decision is clearly erroneous if, although there is evidence to support it, the Court is left with a definite and firm conviction that a mistake has been made. Id. Although we find no clear error in the trial court’s factual findings in this instance, we reverse because we are left with the definite and firm conviction that the trial court erred in suppressing the evidence.
Whenever a police officer stops someone and restrains that person’s freedom to leave, the officer has "seized” the person under the Fourth Amendment. Terry v Ohio, 392 US 1, 16; 88 S Ct 1868; 20 L Ed 2d 889 (1968). However, the constitution does not forbid all seizures, only unreasonable ones. Id. at 9. A brief stop of a suspicious individual, in order to maintain the status quo momentarily while more information is obtained, may be reasonable. Adams v Williams, 407 US 143, 146; 92 S Ct 1921; 32 L Ed 2d 612 (1972). And, "If the purpose underlying a Terry stop—investigating possible criminal activity—is to be served, the police must under certain circumstances be able to detain the individual for longer than the brief time period involved in Terry and Adams.” Michigan v Summers, 452 US 692, 701, n 12; 101 S Ct 2587; 69 L Ed 2d 340 (1981).
In determining whether an "investigatory stop” is reasonable, the court must examine both the character of the official intrusion and its justification. Id. at 701. Such an "investigatory stop” must be founded on a particularized suspicion, based on an objective observation of the totality of the circumstances, that the person stopped has been, is, or is about to be involved in criminal wrongdoing. People v Shabaz, 424 Mich 42, 59; 378 NW2d 451 (1985). See also People v Armendarez, 188 Mich App 61, 66-68; 468 NW2d 893 (1991).
While arguing in support of the trial court’s dismissal, defendants question whether Officer Antieau had a particularized suspicion sufficient to justify stopping the car. We agree with the trial court’s implicit finding that he did.
A police officer’s reasonable suspicion may be based on information obtained from another. Adams, supra at 147. See also People v Estabrooks, 175 Mich App 532, 536-537; 438 NW2d 327 (1989). It was reasonable for Officer Antieau to suspect that these were the three men about whom Officer Hardesty had radioed. They were the only people seen at the apartment complex. They were three white men in a group. They were leaving the area to which the three "suspects” had fled. And the lone tracks in the snow clearly reflected that their car was the only one to have left the apartment complex in some time.
Moreover, it was reasonable for Officer Hardesty, and therefore Officer Antieau, to suspect the men had been involved in criminal activity. They had been seen moving equipment on a golf course at three in the morning during a heavy snowfall. When discovered, they threatened violence, then abandoned the equipment and fled.
Defendants’ conduct raises a reasonable inference that the equipment had been obtained illegally. This behavior was far more indicative of criminal activity than merely running, sitting in a parked car, driving away from a business after hours, carrying a brown paper bag, or being black and driving a car slowly in a predominantly white neighborhood. Hardesty had a particularized suspicion of criminal activity, which he voiced when he radioed that he thought the equipment had been stolen. Compare with Shabaz, supra at 63-64.
The possibility that the occupants of the car were engaged in criminal conduct was strong enough that, upon an objective appraisal of the situation, we would be critical of the officer had he failed to stop the car and conduct a brief investigation to determine if, in fact, an offense had occurred in the area. We find Officer Antieau’s suspicion that the three had been involved in criminal activity to be reasonable. Thus, the investigatory stop was justified.
The trial court decided that although the stop may have been justified, holding the men for twenty minutes was not. We disagree. A twenty-minute detention does not transform an investigatory stop into an arrest as a matter of law. Compare United States v Sharpe, 470 US 675, 686; 105 S Ct 1568; 84 L Ed 2d 605 (1985), with United States v Place, 462 US 696; 103 S Ct 2637; 77 L Ed 2d 110 (1983). The question that must be asked in assessing whether a detention is too long in duration to be justified as an investigatory stop is whether the police were diligently pursuing a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain those stopped. Sharpe, supra.
The police did not have to engage in a *'fishing expedition” to determine whether the equipment had been stolen. Compare with People v Bloyd, 416 Mich 538; 331 NW2d 447 (1982). The newly fallen snow made it possible for them to confirm or dispel their suspicions in a matter of minutes by following the footprints to find out where the equipment had come from. The police diligently pursued this avenue of investigation until they, in fact, confirmed their suspicions.
Moreover, it was necessary to detain defendants while following the tracks in the snow. Although the three men’s identities could have been determined very quickly, the circumstances indicated that they had been "caught in the act.” This being the case, they were likely to have in their possession evidence of the crime, which would be lost absent detention.
Under the circumstances, the twenty-minute detention was reasonable. Therefore, the detention was not grounds for suppression of the evidence, and dismissal was not mandated.
Reversed and remanded. We do not retain jurisdiction.
Michael J. Kelly, P.J., concurred.
People v Bryant, 135 Mich App 206; 353 NW2d 480 (1984); People v Dixon, 85 Mich App 271; 271 NW2d 196 (1978).
People v Freeman, 413 Mich 492; 320 NW2d 878 (1982).
People v Bloyd, 416 Mich 538; 331 NW2d 447 (1982).
People v Shabaz, 424 Mich 42; 378 NW2d 451 (1985).
People v Burrell, 417 Mich 439; 339 NW2d 403 (1983). | [
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Per Curiam.
Plaintiff John McMillan, individually and as guardian and conservator of Charyl McMillan, filed an action against no-fault automobile insurer Auto Club Insurance Association (acia) on September 6, 1986, claiming that Charyl McMillan’s disability from her preexisting condition (multiple sclerosis) was the result of an automobile accident that occurred in February 1984, and, therefore, she was entitled to no-fault insurance benefits. Following a jury trial on plaintiff’s claims, judgment was entered in favor of plaintiff. The jury found that Charyl McMillan’s disability had arisen out of the automobile accident. Plaintiff was awarded damages in the amount of $60,000. Plaintiff then filed posttrial motions for, among other things, taxable costs, additur or a new trial on the issue of damages, and judgment for no-fault penalty interest notwithstanding the verdict. These motions were denied by the trial court in an order dated November 3, 1989. Plaintiff appealed as of right (Docket No. 123193).
On November 30, 1989, acia filed an action against plaintiff, seeking a declaratory judgment that it had no further liability to plaintiff in connection with Charyl McMillan’s automobile accident. Cross-motions for summary disposition were filed. The trial court granted acia’s motion for summary disposition in an order dated January 7, 1991. Plaintiff again appealed as of right (Docket No. 137222). Plaintiff’s appeals were consolidated by order of this Court.
Plaintiff first argues that the trial court erred in denying his posttrial motion for costs under MCR 2.625. We agree.
Taxable costs of litigation are allowed the prevailing party in an action unless prohibited by statute or court rule, or unless the trial court directs otherwise for reasons stated in writing and filed in the action. MCR 2.625(A)(1); Check Reporting Services, Inc, v Michigan Natl Bank-Leasing, 191 Mich App 614, 629; 478 NW2d 893 (1991). In this case, the trial court denied plaintiff’s request for costs, but failed to state its reasons for doing so in writing as required by the court rule. However, the record reveals that the trial court’s reason for denying plaintiff’s motion for costs was that, because plaintiff sought $300,000 in damages but obtained only a $60,000 jury verdict, plaintiff was not the prevailing party.
Where there is only one cause of action, the party who prevails on the entire record is deemed to be the prevailing party. MCR 2.625(B)(2). Plaintiff was the prevailing party in this matter. Plaintiff’s claim was that Charyl McMillan’s disability arose out of a 1984 automobile accident, and, therefore, she was entitled to no-fault insurance benefits. The jury so found, and, therefore, plaintiff succeeded in his claim against defendant. The fact that plaintiff did not obtain the total amount of damages sought does not prohibit him from being the prevailing party under MCR 2.625(B)(2).
The trial court’s reliance on Marina Bay Condominiums, Inc v Schlegel, 167 Mich App 602; 423 NW2d 284 (1988), is misplaced. Marina Bay stands for the proposition that where a party does not succeed on its claim, it is not a prevailing party even if its position is improved as a result of the litigation. The Marina Bay case does not stand for the proposition that a party receiving less than all the damages sought at trial is not a prevailing party,
Plaintiff next argues that the trial court erred in denying his request for additur or, in the alternative, a new trial on the issue of damages. We disagree. An appellate court must accord due deference to the trial court’s decision regarding the grant or denial of additur and should reverse the trial court’s decision only if an abuse of discretion is shown. Palenkas v Beaumont Hosp, 432 Mich 527, 531; 443 NW2d 354 (1989); Wilson v General Motors Corp, 183 Mich App 21, 38; 454 NW2d 405 (1990). The proper consideration in granting or denying additur is whether the jury award is supported by the evidence. Palenkas, supra at 532; Wilson, supra at 38. Further, trial courts have discretion in granting new trials, and appellate courts will not interfere absent a palpable abuse of discretion. Palenkas, supra.
After reviewing the record, we conclude that the jury award of $60,000, although much less than that sought by plaintiff, is supported by the evidence presented at trial. Therefore, the trial court did not abuse its discretion in denying plaintiffs motion for additur or, in the alternative, a new trial.
Next, plaintiff argues that the trial court erred in denying his motion for an award of no-fault penalty interest. No-fault penalty interest is not available until the no-fault claimant has presented the insurer with reasonable proof of the claim and thirty days have passed without the insurer paying thé claim. MCL 500.3142; MSA 24.13142. As plaintiff concedes, the jury could have found that reasonable proof of plaintiffs claim had not been presented to acia until sometime during the trial. Although we cannot say with certainty at what point during the trial acia had reasonable proof of plaintiffs claim, reasonable proof must have been presented to acia by the close of evidence on September 8, 1989. Therefore, as acia concedes, plaintiff is entitled to no-fault penalty interests from October 8,1989.
Plaintiffs next claim is that the trial court erred in granting acia’s motion for summary disposition in its action for a declaratory judgment that it had no further liability to plaintiffs in connection with Charyl McMillan’s automobile accident. We agree.
A party is barred from litigating a claim by the doctrine of res judicata if the same parties have litigated the claim before. Res judicata requires (1) the same parties, (2) the same claim, and (3) a judgment on the merits. Curry v Detroit, 394 Mich 327, 331; 231 NW2d 57 (1975). Acia’s action for a declaratory judgment involved the same parties as plaintiffs claim for no-fault disability benefits. The first action included a claim for judgment regarding acia’s ongoing liability to plaintiff. Lastly, a judgment was rendered on the merits in the first action upon a finding that Charyl McMillan’s disability arose out of the 1984 automobile accident. In the first action, plaintiff sought, litigated, and received a judgment providing for acia’s ongoing responsibility to cover Charyl McMillan’s disability. Acia never objected to the judgment rendered in the first action or sought to appeal it. Instead, acia sought a declaratory judgment that is in direct conflict with a judgment entered against it. The doctrine of res judicata bars acia from relitigating its responsibility to plaintiff. The trial court erred in granting acia’s motion for summary disposition and in denying plaintiffs motion for summary disposition.
Lastly, we find no merit in the final issue raised by plaintiff on appeal. The trial court did not decide that its prior ruling on plaintiff’s motion for additur collaterally estopped plaintiff from litigating in the second action the interpretation of the jury’s verdict in the first action.
Docket No. 123193 is remanded to the trial court for further proceedings consistent with this opinion. Docket No. 137222 is remanded to the trial court for entry of judgment in favor of the plaintiff. | [
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North, J.
Plaintiff, after having undertaken to rescind a contract under which he was purchasing-four lots from defendant, sought to recover in an action at law the payments he had made. In circuit court the case was tried without a jury, judgment entered for defendant and plaintiff has appealed. The facts and circumstances involved are stated in’ the opinion of the trial judge from which we quote:
“Plaintiff purchased on contracts of defendant four lots in Longfellow Manor subdivision in the city of Detroit. One contract was executed March 22, 1926, and three were entered into April 6, 1926. The purchase pricé was payable monthly. Each instalment was paid regularly and promptly until August 6,1929. The agreement did not provide that ‘Time is the essence of the contract.’
“Each contract contained the following clause—
“ 'Purchase price includes graded and cinderized streets and cement sidewalks to be incorporated on or’ before November, 1928. ’
“Claiming defendant failed to complete the above improvements within the time limited, and claiming rescission because of such failure, plaintiff brings this action, to recover the sums paid on purchase price, interest, and taxes, aggregating $3,547.19.
“Plaintiff did not protest because the improvements were not made ‘on or before November, 1928.’ He did not notify defendant he would insist they be made by that time. Instead, as above stated, he paid the monthly instalments until August 6, 1929. He gave notice of rescission January 9, 1930, tendered a reconveyance March 18th and commenced this suit March 22 (1930). The evidence shows this is a large subdivision. The city of Detroit constructed a water and sewer system in 1928 and 1929 which made it necessary to ‘tear up’ the streets. Defendant had laid cement sidewalks in the entire subdivision and the work was finished in June, 1929. Before this suit was commenced the streets were cinderized. Improvement has been continued until about eight months ago. The enterprise has not been abandoned. * * *
“The defendant has done that which it agreed to do. The plaintiff has not been damaged by the delay. It is in a position to convey to the plaintiff the lots for which he bargained when he completes the payments. The plaintiff should not be allowed to recover when the agreement did not provide that ‘Time is the essence of the contract,’ when some of the improvements were made before notice of rescission and when all were completed before suit was started. ’ ’
1 The record sustains the trial judge’s recital of facts and also his determination of law. Time was not expressly made the essence of this contract; and in view of the construction placed upon it by the conduct of the parties in continuing performance regardless of the express contract provisions as to the time within which certain things should be done or completed, it would be contrary to settled law to now hold that a breach of these independent covenants justified rescission. Especially is this true since there was practical performance before rescission and full performance before trial.
“One seeking to rescind a mutual contract, of which time is not the essence, on the ground of delay by the other party in complying with its terms, must show either such wilful and intentional delay as will evince the intention of the party delaying to treat the contract at an end, or that the delay has caused such damages as will render a decree of specific performance inequitable and unjust.” Reid v. Mix, 63 Kan. 745 (66 Pac. 1021, 55 L. R. A. 706).
The judgment entered in the circuit court is affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Wiest, J.
Plaintiff brought this suit to recover for services as an efficiency expert under a special contract at the rate of $300 per month, from May 2, 1927, to February 1, 1930, the amount claimed unpaid being $2,767.03. Upon trial, by jury, plaintiff had verdict and judgment.
The defense was no fixed period of employment as an efficiency expert, and such employment ende'd when the factory was closed on December 15, 1927, that on December 20, 1927, plaintiff was hired as a day watchman at 45 cents per hour and received pay at that rate to March 1, 1928; that on March 15, 1928, the factory re-opened and plaintiff was hired as a timekeeper at $40 per week, and such employment continued until June, 1928, when plaintiff was given charge of the employment department and acted as timekeeper at $225 per month and so continued until January 30, 1929, when the factory again shut down.
Defendant admitted at the trial that there was due plaintiff the snm of $407.50, and asked the court to direct a verdict for that amount. This the court declined to do.
Plaintiff recovered on the claim that he was hired for an indefinite period at a salary of $300 per month, and the contract was never changed, although the character of his work was changed, and while he was paid different amounts as his work changed it was accepted by him under the assurance of various officers of .defendant company that he would be paid the rest of his salary of $300 per month.
Defendant urges that:
“The contract of employment entered into by plaintiff and defendant corporation on April 16, 1927, under which the plaintiff was employed by defendant corporation as an ‘efficiency expert,’ at the plant of the defendant at Ionia, Michigan, terminated as a matter of law December 15, 1927, by the dismissal of the plaintiff and his subsequent rehiring as a day watchman. ’ ’
The contract of employment, being for no definite period, was a hiring at will and could have been terminated, at any time, by either party without notice. It was not terminated as a matter of law by the closing of the factory and the subsequent employment of plaintiff as a day watchman, if the parties agreed to the continuation of compensation as claimed by plaintiff.
The evidence presented a question of fact for the jury and we find no reason for disturbing the verdict.
The judgment is affirmed, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
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] |
Potter, J.
Plaintiff sued defendants, filing a declaration containing three counts, in addition to the common counts in assumpsit. The first count alleges plaintiff was fraudulently induced to purchase for $500 an interest in the capital stock of a corporation which defendants represented they were about to organize to acquire oil and gas leases and to drill and operate oil wells in Muskegon county; that he relied upon these representations and they were not true; that defendants did not organize such corporation, did not incorporate, and did not issue stock therein, and plaintiff received nothing for his $500. The second count alleges defendants solicited plaintiff to purchase a $500 interest in the capital stock of a corporation which they represented they were about to incorporate for the purpose of acquiring and operating oil and gas leases in Muskegon county; that such solicitation, offer, and sale were in violation of the blue sky law (2 Comp. Laws 1929, § 9769 et seq.); the sale and issue of stock in the proposed corporation had not been approved by the Michigan securities commission at the time said solicitation and offer of sale was made. The third count alleges defendants offered to sell, and solicited and induced plaintiff to purchase, a certificate of interest in, and a beneficial interest in, an oil and gas lease on 20 acres of land in Muskegon county, in consideration of the payment of $500 by plaintiff to defendants, and such solicitation, offer, and sale were unlawful and in violation of the blue sky law, Act No. 220, Pub. Acts 1923 (2 Comp. Laws 1929, § 9769 et seq.); and such certificate of interest and the .beneficial interest therein had not been accepted for filing as required by the statute prior to the time it was sold to plaintiff.
The questions in dispute are questions of fact. The trial court heard the testimony, and he concluded the 10 men interested entered into a joint venture for the purpose of acquiring the oil lease on the land in question in Muskegon county. At that time wells were being drilled adjacent to or in the immediate vicinity of the land in question, and if these wells proved productive, the lease which was acquired by the parties involved in this suit would probably become valuable. They purchased and paid for the lease $5,000.
It was not necessary under the blue sky law to have any public approval of the acts of these 10 men in risking $500 apiece in a joint venture. Both the plaintiff and the defendants knew they were gambling ; if the territory became proven territory, their lease would be valuable, and they would undoubtedly make a handsome profit; if the wells that were being sunk in the vicinity proved not to be productive, then the lease would not be valuable. The wells being sunk in the immediate vicinity of this land were not producing wells. Plaintiff lost his money along with the others who embarked in the enterprise, and for this loss, apparently, no one else is to blame.
The blue sky law does not prevent 10 men putting $500 apiece into a syndicate or joint venture to acquire an oil lease, and the fact it is concluded, after the failure of wells on nearby property to produce, not to drill or otherwise undertake to develop the territory leased, is not important. Like other joint investments in property, the parties embark in a common enterprise, and, that it proves disastrous and those contributing fail to realize a profit, does not affect its legality. We are satisfied the trial court arrived at a correct conclusion; that plaintiff is not entitled to recover. The judgment of the trial court is affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Reid, C. J.
Plaintiff brought his action against the 2 defendants to recover damages ■ for injuries to his person and to his automobile and loss of use of automobile, all occurring as the result of a collision between plaintiff’s automobile and an automobile owned by defendant Francis Nemecek and, Avith said defendant’s consent, driven by his son, defendant Otto Nemecek.
From a verdict by tbe jury and judgment thereon for defendants, plaintiff appeals.
Consolidated with this suit for purposes of the trial by order of the court against plaintiff’s objection, was also the suit brought by plaintiff’s wife, Annette Card, against the same defendants for her personal injuries caused by the same accident.
The intersection of Jefferson avenue and Cherry street in Grand Rapids is controlled by an automatic overhead traffic signal which has a 60-second cycle showing green for 25 seconds on Cherry and 35 seconds on Jefferson, with an amber or caution light that shows for 3-J seconds as the light changes from green to red. The light was working properly on October 11, 1948. At about 5:20 p. m. of that day, the plaintiff Harold Card was driving his Packard automobile in an easterly direction on Cherry street approaching Jefferson. His wife Annette Card was sitting in the front seat with him. At that same time the defendant Otto Nemecek was driving a Chevrolet automobile, owned by his father defendant Francis Nemecek, in a southerly direction on Jefferson avenue approaching Cherry. The 2' cars continued to a collision in the intersection of these 2 streets, the impact being between the front end of the Nemecek vehicle and the center (or to the rear of the center) of the left side of the Card vehicle.
The condition of the traffic signal at the time of this accident is in sharp dispute. Plaintiff claims .and produced credible witnesses to prove that the traffic light was green in his favor as he entered the intersection. Defendants claim and ‘offered testimony to prove to the contrary that the traffic light was green in defendant’s favor as he entered the intersection. We cannot say that the testimony in favor of plaintiff is overwhelming and must accept the verdict as establishing the facts so far as our decision is concerned.
Plaintiff claims erroneous the court’s order made before trial and against plaintiff’s objection, consolidating his case for trial with that of his wife against the same 2 defendants for her personal injuries, in the same accident. After the trial was had of the consolidated cases and verdict rendered, the court found that plaintiff Annette had been prejudiced by the consolidation, and the court set aside the verdict as to her, gave her a separate new trial and rendered judgment on the verdict against plaintiff Harold.
Defendants claim that the general powers granted courts are such as to include the right to order consolidation of 2 cases with different plaintiffs against the same 2 defendants for damages arising from the same collision.
Defendants cite and rely on decisions as to consolidation of cases, in Federal and State courts, where statutes differing from our statute are in effect.
Defendants do not claim that the statute, hereinafter quoted, gave the court any right to consolidate the 2 cases without consent of both plaintiffs.
While we have had occasion to note that in many instances, 2 cases with different plaintiffs arising out of the same collision have been consolidated by consent of the parties, still we have not determined that such consolidation may be ordered without the consent of the plaintiffs.
It is clear that the common law did not sanction the consolidation of actions by diverse plaintiffs without their consent. The legislature enacted a statute incorporated in the revised statutes of 1846, which (after successive amendments) was later, in' án amended form, incorporated as a part of the judicature act of 1915, which part of the judicature act is as follows:
“The plaintiff may join in 1 action, at law or in equity, as many causes of action as he may have against the defendant, hut legal and equitable causes of action shall not be joined; but when there is more than 1 plaintiff, the causes of action joined must be' joint, and if there be more than 1 defendant, the liability must be one asserted against all of the material defendants, or sufficient grounds must appear for uniting the causes of action in order to promote the convenient administration of justice, or when several suits shall be commenced against joint and several debtors, in the same court, the plaintiff may, in any stage of the proceedings, consolidate them into 1 action. If it appear that any such causes of action cannot he conveniently disposed of together, the court may order separate trials, or whenever several suits shall he pending in the same court, hy the same plaintiff against the same defendant, for causes of action which may he joined, the court in which the same shall he prosecuted may, in its discretion, order the several suits to he consolidated into 1 action.” CL 1915, § 12309 (CL 1948, § 608.1 [Stat Ann § 27.591]). (Italics supplied.)
The words which are not italicized in the above .quotation from the statute all relate to what plaintiffs may do, while the words which are italicized contain a grant of authority to courts as to consolidation of cases. Impliedly, the legislature intended that the courts should go no further than such grant and the common law as thereby modified.
We. are not to extend the terms of such- statute beyond necessary inferences. The statute cannot !be extended by any reasonable inference to cover the consolidation in question in the instant case. It is ■not contended that the statute authorizes the consolidation order in the instant. case. Decisions in othef States 'and Federal courts where there is a statute differing from ours, or no statute, as to consolidation, are not controlling.
In Bostrom v. Jennings, 326 Mich 146, a plaintiff husband sued in his individual capacity to recover for his own damages and as administrator of his deceased wife’s estate joined a cause of action to recover for damages for her personal injuries resulting in her death. In both-'the prevailing opinion at page 158 and the dissenting opinion at page 168, it was held that such 2 causes of action may- not be joined in 1 suit. Plaintiff in the Bostrom Case was required to present his different causes of action in 2 suits.
The Bostrom Case while not controlling the instant case, is authority for'-the proposition that plaintiff Card and his wife had no right to join' their separate causes of action in 1 suit.
Defendants in this case claim plaintiff was not shown to have been prejudiced by the consolidation, but plaintiff is not permitted to show the arguments of jurors over their verdict nor offer the affidavit (nor testimony) of a juror as to what influenced his mind to render the verdict. Confusion of mind on the part of 1 or more jurors is very often caused by added complexity of issues. Jurors can take a dislike to an added litigant. In this case plaintiff sought to recover from the defendants for damages for his personal injuries, secondly, for damages to his car and loss of the use of it, and jurors would naturally take a dislike to an -added third drive against the funds of defendants by the inclusion of the wife’s case for damages for personal injuries. Jurors often regard the husband and wife as having but a common pocketbook.
A strict showing of prejudice' should not be required where the legislature over a century of successive enactments, has seen fit for,evidently sufficient reasons, not to grant authority to make the consolidation made in this case. From the entire record in this case it is fairly to be inferred that plaintiff was prejudiced by the consolidation.
Plaintiff complains of the ruling of the court against plaintiff’s objection permitting defendant Francis Nemecek to testify that while the title to the automobile driven by his son, defendant Otto L. Nemecek, stood in his (the father’s) name, still the son Otto paid all the money for the automobile, has always had it in his, the son’s possession and that he, the father, was on his farm near Bast Jordan (possibly 170 miles away) at the time of the accident and that he, the father, knew nothing about it, until his son, “called us up and told us he had an accident.” Plaintiff objected to such testimony and the court ruled it immaterial but still permitted the testimony to be given.
The declaration alleged that the title stood in the father’s name and that the son (defendant Otto) was driving the automobile with his father’s consent at the time of the collision, which allegations were admitted by the answer. Defendants’ counsel admitted that the legal title stood in the father’s name and that the father was the owner as long as the title stood in his name. Defendants claim that 'they wanted to show by the father’s testimony that the son (defendant Otto) was not driving a borrowed car but the father’s ownership was expressly disclosed by the declaration and answer, and no claim had been made that the son Otto was driving a car borrowed from a third party.
There was no legitimate pui’pose whatsoever to be served by the father’s testimony above referred ¡to. It could only serve to instill into the minds of 'the jury the thought that it would be unjust to call |the father guilty under such circumstances.
Later the court erroneously charged the jury,
“So far as the liability.of the defendants is concerned, if you should find for the plaintiffs or either 1 of the plaintiffs, the verdict should be against these 2 defendants, because so far as the -law is concerned, the law recognizes that the father who has-the title to this car was the owner of it at that time and that this young man was the driver of it.”
While this charge corrected a false impression that the son was the owner of the car, yet the court erroneously left out the essential element of the father’s consent to his son’s driving the car.
If the consent had been recited to the jury it would have removed the impression that the father had done nothing to make him responsible for the accident, and was merely technically responsible for the accident.
The court nowhere in his charge recited the admitted consent of the father, nor did he instruct the jury to disregard sympathy arising from admission of testimony that the father was many miles away from the scene of the accident, had not. paid for the car and never had it in his possession.
The testimony as to liability was in sharp dispute, thus making it the more intolerable to admit immaterial testimony tending in any appreciable degree to create sympathy for a party to the case. '
The admission of the testimony of defendant Francis Nemecek, above cited, was prejudicial error. In view of our decision, other claimed errors-need not be considered.
For the reasons above indicated of improper consolidation of cases and erroneous admission of prejudicial testimony, the verdict is set aside. The case is remanded to the trial court with instructions to set aside the verdict and judgment appealed from and grant plaintiff a new trial. Costs to plaintiff.
Boyles, North, Dethmees, and Carr, JJ., concurred with Reid, C. J..
See CL 1948, § 256.29 (Stat Ann § 9.1446). — Reporter. | [
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Btxshnell, J.
On August 28, 1947, plaintiff Fred Wade purchased a new “Chariot” house trailer from defendant Tony Schmitt, Inc., a retail dealer in house trailers. The manufacturer, Chariot Trailer Company, is also named as a defendant.
Wade executed an order, which was accepted in writing by A. J. Schmitt, president of Tony Schmitt, Inc. This order shows a purchase price of $2,903.95, which includes an installed hydraulic dolly, sales tax, and a license for one-half year. Wade was allowed $1,095 for a used Alma house trailer, which he de livered to Tony Schmitt, Inc., and he paid a cash deposit of $308.95. To the balance due of $1,500 was added insurance and finance charges of $484.68.
Two days later, Wade and his wife signed a conditional sales contract, which was executed by Schmitt, who then assigned the corporation’s interest therein to the Michigan National Bank. This contract provided for monthly instalment payments of $55.13 each, beginning October 1, 1947.
Almost immediately after the delivery of the trailer, Wade, it is claimed, started on a trip west, and within several weeks experienced trouble with the new trailer. According to his counsel’s opening-statement and the allegations of his declaration “the paint peeled off in huge sheets,” the floors and interior walls began to “curl and warp,” mildew and dampness collected on the walls, floors and interior, and “the interior and exterior finish rusted, tarnished and corroded.” Because of improper insulation it “was so pervious to wind and weather that it could not be adequately heated,” and its construe-' tion was so weak that it separated in many vital structural points with the result that within 3 months it “became unusable as living quarters or as a means of travel.”
Upon Schmitt’s refusal to rectify the situation, Wade began this action for damages on February 20, 1948. Since commencement of suit the contract assignee repossessed and sold the trailer.
At the conclusion of plaintiff’s opening statement defendant Tony Schmitt, Inc., moved the court for a directed verdict, which was granted. This motion was based on CL 1948, § 440.71 (Stat Ann § 19.311), being section 71 of the Michigan uniform sales act, which reads:
“Where any right, duty, or liability would arise under a contract to sell or a sale by implication of law, it may be negatived or varied by express agree ment or by tbe course of dealing between thé parties, or by custom, if the custom be such as to bind both parties to tbe contract or the sale.”
Tbe motion was predicated upon tbe following language in tbe signed order and executed conditional sales contract wbicb defendant contends are “exculpatory or disclaimer provisions,” as discussed In Kolodzcak v. Peerless Motor Co., 255 Mich 47. Tbe language of tbe order is:
“It' is further agreed that there are no understandings, agreements or representations, express or implied, not specified herein respecting this order and terms mentioned, and this instrument contains the entire agreement between tbe parties, and is binding on both parties.”
Tbe conditional sales contract language relied upon by defendant reads:
“Tbe undersigned seller agrees to sell and tbe undersigned purchaser agrees to purchase tbe following described property and accessories attached thereto wbicb tbe purchaser has examined and accepted in its present condition and as to wbicb there are no representations, promises or statements by the seller other than made herein.”
In bis declaration plaintiff says that:
“Prior to tbe signing of tbe said purchase agreement and the said conditional sales contract, and as an inducement to plaintiff’s purchase of said bouse trailer tbe defendant, Tony Schmitt, Inc., by its salesmen and' agents represented to this plaintiff that tbe said house trailer was a new trailer in perfect shape, and that it bad never been used. They further represented that tbe said trailer was constructed in workmanlike manner, and that it would stand up under all reasonable and proper road conditions, as well as under all usage. Plaintiff further says that said salesmen and agents represented to him that tbe said trailer was thoroughly insulated; that it was of good sound construction, manufactured from sound and sturdy materials, and that it was dampproof and weatherproof; that the said house trailer was exactly as good as it appeared, and that it contained no hidden defects or imperfections ; that, as a matter of fact, it was 'better constructed than the Alma trailer he was trading in as a down payment, because it was a later and improved house trailer model.
“Plaintiff further says that the said defendant, by its agents, expressly warranted the said trailer to be characterized by all of the particulars enumerated in the foregoing paragraph, and further warranted that the said trailer would prove satisfactory in every respect for family usage and for living and traveling purposes, and that it would give plaintiff years of reliable continuous service. And plaintiff further says that by reason of the relationship • of seller and purchaser which existed between the said Tonv Schmitt, Inc., and the said defendant Chariot Trailer Co., a Michigan corporation, as the manufacturer of said house trailer, and the said plaintiff as purchaser, there was in addition on -the part of the said manufacturer, as well as on the part of the said Tony Schmitt, Inc., an implied warranty that the said trailer was well and sturdily constructed in workmanlike manner, of strong materials, and adapted for the use for which it was manufactured and sold, and that it would give satisfactory service in every respect, and that it contained no hidden defects or imperfections.”
On appeal, plaintiff argues that an implied warranty of fitness for use is not excluded by an express warranty of title or other related subjects, and that a negative provision as to other understandings, agreements or representations does not constitute such an express agreement that would bar recovery as contemplated by section 71 of the uniform sales .act hereinbefore quoted.
In the Kolodzcak Case, supra, there was an express 90-day warranty with a provision in the contract that there were no other understandings, agreements or warranties, expressed or implied. This Court held that the express 90-day warranty, plus the exculpatory provision, was controlling and decisive.
Here, the only express warranty is that a new 1947 trailer coach of the make or trade name “Char-' iot” would be delivered with a hydraulic dolly installed.
Defendant Tony Schmitt, Inc., if it desired to avoid liability for the implied warranty of fitness for use, could have easily excluded such liability in unmistakable language, as is permitted by language of the quoted statute, supra. The contract which defendant drafted should he strictly construed against it. Michigan Chandelier Co. v. Morse, 297 Mich. 41, and Veenstra v. Associated Broadcasting Corporation, 321 Mich 679.
The purpose of the doctrine of implied warranty of fitness for use is to promote high standards in business and to discourage sharp dealings. Bekkevold v. Potts, 173 Minn 87 (216 NW 790, 59 ALR 1164).
A provision seeking to exclude implied warranties should he strictly construed. See Luts v. Hill-Diesel Engine Co., 255 Mich 98; and Deere & Webber Company v. J. J. Moch, 71 ND 649 (3 NW2d 471, 139 ALR 1270).
Plaintiff’s pleadings were sufficient to comply with the provisions of CL 1948, § 440.15 (Stat Arm § 19.255) regarding implied warranties.
An express warranty as to a trade name in a contract of sale of a specified article, in this instance a “Chariot trailer coach,” may exclude implied warranties as to its fitness for a particular purpose, but its reasonable fitness for the general purpose for which it was manufactured and sold is not excluded. See Damman v. Mercier-Bryan-Larkins Brick Co., 253 Mich 392; and Outhwaite v. A. B. Knowlson Co., 259 Mich 224.
The decisions of this Court do not, as suggested hy the trial judge, prevent the plaintiff, under the .allegations of the declaration and in the light of the restricted language of the written agreement, from having his day in court.
The judgment entered upon the directed verdict is vacated and the cause is remanded for new trial. Costs to appellant.
Reid, C. J., and Boyles, North, Dethmers, Butzel, >Carr, and Sharpe, JJ., concurred. | [
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Reid, C. J.
Plaintiff brought this action to recover damages for personal injuries sustained by her by reason of her being struck by defendant’s automobile while driven by him. Prom a judgment on the verdict for plaintiff and denial of a motion for a new trial, defendant appeals.
Around 6 p.m. on the evening of November 7,1947, plaintiff, a 37-year-old secretary and bookkeeper, was attempting to cross east Jefferson avenue in Detroit from the south side to the north at a point opposite the east sidewalk of Seyburn avenue. There was no traffic light at the intersection.' Seyburn avenue runs into Jefferson avenue from the north, and stops. Jefferson is 90 feet wide at that point and there are 2 streetcar tracks on Jefferson to accommodate east- and westbound streetcar traffic. Directly opposite each other- are 2 protected safety zones 90 feet in length. Por convenience sake at the trial, the rails of the streetcar tracks were numbered 1, 2, 3, and 4, running from south to north.
After leaving the south curb, plaintiff arrived safely within the confines of the eastbound safety zone located just south of the eastbound tracks. Her path would have taken her from the west end of the eastbound zone to a point inside the west end of the westbouhd zone. The streetcar rails are 5 feet apart and therefore the distance between one zone to the other is the width of the car tracks plus a few feet, or approximately 15 feet plus 5 feet. Before she left the eastbound zone she looked to the east, to see if there was any traffic westbound which would interfere with her crossing. At that time there was only one car approaching from the east which, according to her testimony, was north of the northerly safety zone and. not then traveling directly toward her. That westbound car was the defendant’s. He was driving west and a little later, angled toward the streetcar tracks and about 90 feet east of the east end of the 2 safety zones. -Plaintiff was then at the west end of the 90-foot zone and therefore 180 feet west of the oncoming automobile. Before she left the protection of the eastbound zone all eastbound automobiles on the streetcar tracks ■ stopped 2 or 3 feet west from her to permit her to cross.
According to the plaintiff, the defendant’s car had been traveling on a course that would, if continued, bring the car on' the north side of the westbound safety zone. Plaintiff testified:
“I would be somewhere between the first rail, which would be on the south side'of Jefferson and the third rail, which would be the rail that would take me toward the Boulevard. Then I saw this car swerve out onto the track, coming from the east, going west. When I first saw it he was approaching the westbound track. So I continued to cross the street toward the safety zone that would be going north.
“Q. What did you do as far as watching?
“A. Well, I continually kept looking east to see if it was all right for me to go ahead.
“Q. When did you know you were going to be struck? Did you continue to watch this car as it came out from behind the zone ?
“A. That is right. I watched him constantly because I saw that he was on the track and it was just a matter of who would get there first, so when he started to get tangled up on the wet track, I made an attempt — ■
“Q. What do you mean by that, when he started to get tangled up, what happened ?
“A. Well, he skidded. The tracks were wet and when he approached the westbound rail, his car skidded and skidded right into me and threw me toward the southwest side of the crossing onto another automobile.
“Q. Of another automobile, in which direction?
“A. The car would be going east.
“Q. What happened when you hit that car?
“A. Then I guess I bounced off of that car into the wet street between the westbound rail and the northwest corner of the crossing. * *
“Q. When you left rail No 1 were you in motion? Did you walk right straight across?
“A. I continued to look east as I was walking, yes.
“Q. You looked towards the east; that would be this direction?
“A. That is right.
“Q. And what did you see?
“A. I saw a car pull out from the lane of traffic that was traveling west back of the safety zone. 'That would be the end of the westbound zone.
“Q. It would be over here somewhere?
“A. Yes, sir, and it swerved onto the westbound car track rails.
“Q. And at that point you were somewhere between rail No 1 and rail- No 3?
“A. I saw him coming, yes, sir.
“Q. Somewhere between rail No 1 and rail No 3?
“A. He wasn’t on the track yet. I saw him swinging out when I was crossing.”
According to the defendant, he was traveling on the south side of the westbound ■ zone, in the car tracks. Plaintiff testified that when the defendant’s car reached a point 90 feet or so east of the zone it altered its course from the main travelled course of westbound Jefferson traffic toward the car tracks. Plaintiff was then between rails Nos.-2 and 3. She kept her eyes constantly on the first oncoming car. Plaintiff claims that the wheels of defendant’s car when it struck the wet tracks skidded and continued to skid into her after she had crossed the fourth rail and was between that rail and the westbound safety-zone.
The safety zones had flasher lights that indicated “caution.” The defendant knew, approaching the zones, that there was danger of encountering pedestrians in the zones through which he intended to-drive.
Plaintiff wore a bright red coat. She was seen by an eastbound motorist 100 feet away. The defendant driver testified he did not see her until he was-10 to 12 feet from striking her.
The plaintiff was injured as a result of this accident. Her injuries are not disputed.
Plaintiff’s testimony includes her statement that the right-front corner of defendant’s car struck her. But her own statement that defendant’s car, “threw me toward the southwest side of the crossing onto-another automobile * * * going east,” is highly indicative that it was the left and not the right-front corner of defendant’s car that struck her, which latter proposition is in accordance with the testimony of several witnesses.
Plaintiff’s cause of action is based on her testimony that as she stepped from her last place of safety she saw defendant’s car 180 feet away and going westerly on a course which would take his car northerly of the northern safety zone and that thus the defendant’s car was not headed for the area between the 2 zones and that defendant changed his course into the area on which plaintiff was moving between the 2 safety zones at a time when the eastbound traffic had begun to move east, thus closing any possible retreat, and that defendant’s car after this change in its course skidded and struck her.
Defendant emphasizes his claim that plaintiff was guilty of contributory negligence, and claims that plaintiff voluntarily left a place of safety, started across the car tracks and walked into the left-front corner of his car.
Available for the jury as a basis for their finding that plaintiff was free from contributory negligence there is testimony supporting the inference that she formed a reasonable judgment that she could cross safely when she saw defendant’s approaching car being driven in a direction that would avoid the area-between the 2 safety zones, that after plaintiff left her place of safety, defendant changed his course and that the change of course and skidding of defendant’s car on the wet rail was the cause of her being struck and that without such swerve and skidding of defendant’s car, plaintiff would have crossed safely.
Plaintiff testified she had defendant’s car in constant view in attempting to cross and had formed a fair judgment that she had time to cross safely, but that defendant’s car swerved and then skidded. It would be a jury question whether the swerve and skidding caused her to be struck. Plaintiff was not bound to anticipate that the direction of defendant’s car would be changed to cause the car to go through the area between the 2 safety zones and afterwards to skid.
Defendant does not assert any claim that the alternative and inconsistent claim- of subsequent negligence of defendant is not properly available to plaintiff. Plaintiff pleaded subsequent negligence and the court in his charge submitted that question to the jury. Defendant makes no claim that submission of the claim of subsequent negligence was erroneous.
There was testimony from which the jury could draw a fair inference that plaintiff was in a place of recognizable danger at a time when defendant changed his course and should have seen and recognized her peril and that defendant then still had sufficient time to stop his car, the plaintiff being then precluded from retreating to her former safe place because eastbound traffic started up behind her when she stepped out of the path of eastbound traffic to cross. Defendant did not see her until he was 10 or 12 feet from striking her, though there is testimony to show that she was plainly visible.
We cannot say which of plaintiff’s theories the jury accepted but there was testimony which would fairly sustain a finding on the part of the jury that plaintiff was free from negligence and that defendant was negligent and. that his negligence was the sole proximate cause of the accident. Our decision in Staunton v. City of Detroit, 329 Mich 516, decided March 1, 1951, is not without some importance as indicating the duty of the driver in the instant case.
Defendant filed a motion for judgment non obstante veredicto, on the ground that defendant as a matter of law was not negligent, and that plaintiff was guilty of contributory negligence as a matter of law. While the record does not set forth the trial court’s denial of the motion for judgment non obstante veredicto, defendant’s appeal recites such denial and we must consider that the trial court made such order, in which order we concur. The defendant was not as a matter of law not guilty of negligence and plaintiff was not. as a matter of law guilty of contributory negligence.
The judgment and order appealed from are affirmed. Costs to plaintiff.
Boyles, North, Dethmers, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred. | [
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Sharpe, J.
This is a garnishment proceeding by plaintiffs seek to enforce payment by Citizens’ Mutual Automobile Insurance Company, garnishee defendant, of a judgment under the property damage coverage of an automobile insurance policy.
The facts are not in dispute and are as follows: On. January 3, 1947, Abner J. Foster, Jr., bought a policy of insurance from the Citizens’ Mutual Automobile Insurance Company which contained the following under the heading,
“Conditions:
“Upon the occurrence of an accident or loss covered by this policy, written notice shall be given by or on behalf of the assured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the assured and also reasonably obtainable information respecting the time, place and circumstances of the accident or loss; the names and addresses of the injured, if any, and of any available witnesses.”
Abner J. Foster, Jr., was involved in an automobile accident on September 7, 1947, in which he collided with a parked car owned by plaintiff Kenneth Weiner. In April, 1948, Abner Foster, Jr., was served with process in tbe common pleas court for tbe city of Detroit in an action commenced by Kenneth Wehner and bis insurer. Following service of process upon defendant Foster, be, ■ on April 15, 1948, made a written statement and report of tbe accident to bis insurance company. Garnishee defendant insurance company disclaimed liability on tbe policy in a letter dated April 19, 1948, which reads, in part, as follows:
“Tbe above mentioned suit arises out of an accident, which occurred in September, 1947. The summons and declaration were served upon you on April 8, 1948, according to tbe information you gave us.
“Tbe first notice of this accident that you made to tbe Citizens’ Mutual Automobile Insurance Company was on April 15, 1948, and tbe first notice of this pending suit that you gave to this company was on tbe same day, to-wit, April 15,1948.
“Tbe policy of this company, issued to you, requires that written notice of an accident shall be given to tbe company'as soon as practicable, and that every demand, summons or other process received by you shall be immediately forwarded to tbe company.
“Because of your violation of the above mentioned terms and provisions of tbe policy herein referred to, tbe company disclaims liability under its policy, and declines to take over, defend or in any way participate in the' suit or action hereinbefore referred to.”
On July 1, 1948, a judgment was rendered against defendant Abner J. Foster, Jr., in tbe sum of $612.54 plus $13.50 costs. On September 21, 1948, plaintiffs herein filed a declaration and summons to show cause why judgment should not be rendered against tbe Citizens’ Mutual Automobile Insurance Company was issued. Garnishee defendant insurance com pany answered and asked that the declaration and •summons instituted by plaintiffs be dismissed.
The cause was tried before a jury and at the close •of all testimony, garnishee defendant insurance company made the following motion for a directed verdict of no cause of action:
“The clear proofs are that something over 7 months elapsed from the date of an accident, which is obviously serious, wherein obviously great damage was done. The failure to [of?] the principal defendant, Abner Foster, to communicate with his company, as the contract called upon him to do, has not been explained, and his failure operated to the material prejudice of the company, first of all because the mere lapse of 7 months deprived them of. their right to investigate, settle or adjust the mat-' ter and deprived them of their right to inspect the damaged property, and deprived them of their right and legal duty to set up proper reserves.”
The trial court withheld decision on the motion under authority of the Empson act and submitted the following special question to the jury:' “Did the delay in giving notice materially prejudice the garnishee defendant insurance company?” The jury retired and returned a verdict answering the special question in the negative, whereupon, the court entered judgment for plaintiff in the amount of $640, with costs of $57.
The garnishee defendant thereafter made a motion for judgment non obstante veredicto as follows:
“The grounds for such motion are that this garnishee defendant was released from its obligation to the principal defendant and to the plaintiff due to the delay of said principal defendant in giving-notice as soon as practicable after the occurrence of an accident creating potential liability on. the part of said principal defendant on September 7, 1947, ■which delay materially prejudiced this garnishee defendant in its handling of the claim and subsequent litigation arising from said accident.”
This motion was denied by the trial court. Garnishee defendant appeals and urges that the trial court was in error:
“1. In refusing to direct a verdict in favor of garnishee defendant.
“2. In failing to hold that the delay of plaintiff [sic, principal defendant?] in reporting an accident caused material prejudice unto the rights of garnishee defendant.
“3. In failing to hold that plaintiff [sic, principal defendant?] violated his contract with garnishee defendant in such manner as to release it from liability.”
In Kennedy v. Dashner, 319 Mich 491, the controlling question presented on appeal was whether a notice received by the insurance company 47 days after the accident satisfied the contractual obligation to give a notice “as soon as practicable.” We there held that prejudice to the rights of the insurer is a necessary element to be considered in determining whether there has been an unreasonable delay in giving notice of an accident to the insurer “as soon as practicable.” In Weller v. Cummins, 330 Mich 286, we again affirmed the rule of “prejudice” and held that where the insurance company receives the necessary information from other sources than the assured it is not prejudiced by the failure of the insured to furnish the required information.
Having in mind that the burden of showing “prejudice” is upon the insurer, garnishee defendant insurance company urges that a delay of more than 7 months prevented it from examining the damaged automobile, prevented it from settling the claim of plaintiff and'the setting up of reserves for unpaid claims as required by CL 1948, §§ 533.3, 543.9 (Stat Ann 1943 Rev §§ 24.435, 24.536).
In support of its claim of prejudice, garnishee defendant insurance company produced Angus McIsaac, assistant claims manager for the insurance company,-who testified:
“Whenever an accident comes in, the first thing we would do, we would report it to the home office and if it was a policy holder’s car damage, we would obtain competitive estimates. That would be a couple of estimates from garages. In the event there was a- report of damage to the third party’s car, we would arrange to obtain estimates from garages. If the damage exceeded $75 or $100, we would have our collision adjuster or inspector look at the car and we would also make an investigation of the facts surrounding the accident so that we could determine the question of liability. We have a man in our organization who specializes in inspecting damaged automobiles. That is all he does. The first thing he would do would be to inspect the damaged car and if he wasn’t satisfied with the 2 estimates that had already been obtained, he would have an estimate made by another garage, a garage we know something about, that we have confidence in. While he is getting these estimates, we conduct an investigation of the facts surrounding the accident. We obtain detailed statements from our assured, from any witnesses we know of, sometimes we canvas the neighborhood for additional witnesses and if there is liability, of course, we arrange repairs and as to the third party, if there appears to be liability, we arrange for the repairs to his car and take the necessary releases. In other words we settle the claim.
“When an accident occurs which involves a considerable amount of money, my. company sets up reserves for the payment of losses. As soon as we receive the report of an accident, we promptly report-it to the home office, they set up a reserve on each accident that is reported to them. This is de termined according to the apparent damage and also according to the possibilities of our being liable for the damages. A reserve is an amount that an insurance company sets aside for each accident that is reported to them, so that they will be in position to take care of the claim in due course without upsetting their financial structure. In other words, they set this reserve to one side. * * *
“When there apparently had occurred a great deal of damages, where the damage is quite extensive, we ordinarily inspect the car ourselves even if Ward & Sheppard is handling the collision loss. It doesn’t make any difference who handles the loss to the other people. Where there is considerable damage we inspect the damage to automobiles, sometimes it helps to determine how the accident occurred.”
The purpose of giving notice as soon as practicable after the occurrence of an accident is to give the insurer an opportunity to investigate the facts and circumstances affecting the question of liability and the extent of such liability.
In Purefoy v. Pacific Automobile Indemnity Exchange, 5 Cal2d 81 (53 P2d 155), one Austin was insured by defendant insurance company and shortly thereafter was involved in an automobile accident with plaintiff resulting in plaintiff recovering judgment in the amount of $2,800. The insurance company learned of the accident 3-J months after its occurrence by letter • from plaintiff’s attorney. In affirming a judgment for defendant insurance company, the court said:
“Notice given 3-} months after the accident, especially when it is considered that the notice given at that date was not from the insured, but from the injured person, who was an adverse party, was not reasonably prompt notice, and did not constitute a compliance with the policy. Coolidge v. Standard Accident Ins. Co., 114 Cal App 716 (300 P 885) ; Los Angeles Athletic Club v. United States Fidelity & Guaranty Co., 41 Cal App 439 (183 P 174); Aronson v. Frankfort Accident & Plate Glass Ins. Co., 9 Cal App 473 (99 P 537). The information' communicated to the insurer 3-| months after the accident otherwise failed to comply with the policy. It contained the bare statement that a named policyholder had been in an accident, without stating even the time and place of the accident. It did not state the names and addresses of all witnesses to the accident, nor the ‘conditions surrounding- the happening’ of the accident, as required by the policy.
“The insurer was deprived of an opportunity to make a prompt investigation while the facts were fresh in the minds of the parties and witnesses, and before physical marks and effects of the accident had been obliterated. As to certain breaches of condition, it may more readily be shown whether prejudice had resulted therefrom. But respondent argues with convincing force herein that the lapse of time which removes the opportunity for prompt investigation, also destroys the possibility of showing prejudice arising from delayed inquiry. "Where witnesses are interviewed after lapse of time, during which they either may have forgotten the facts, or been approached solely by representatives of the injured party, it virtually becomes impossible to learn what facts, favorable to defendant, could have been ascertained through prompt inquiry. We are impelled to the conclusion that prejudice must be presumed in such situations.”
In Baker v. Metropolitan Casualty Insurance Co. of New York, 118 Conn 147 (171 A 7), the court said:
“When the facts are undisputed and one conclusion only is reasonably possible, the question of compliance with a provision for notice is one of law; otherwise it is a question of fact. Loomis v. Norman Printers’ Supply Co., 81 Conn 343, 347 (71 A 358); Fidelity & Deposit Co. v. Courtney, 186 US 342 (22 S Ct 833, 46 L ed 1193); 14 RCL, p 1329; 7 ALR 187; 76 ALR 61.”
In Parrish v. Phillips, 229 Wis 439 (282 NW 551), the notice of accident was given 33 days after the occurrence of the accident. The court had under consideration the issue of whether or not the insurance carrier was prejudiced or damaged by the delayed notice of the accident. The statutes of Wisconsin provide that no policy of insurance' shall limit the time for giving notice of any accident to less than 20 days and that failure to give such notice does not bar liability if the insurer was not prejudiced or damaged by such failure, but the burden of proof to so show is upon the person claiming such liability. The court held that the statutes created a presumption that the insurer is prejudiced or damaged by the failure to give notice of injury as soon as practicable because it puts the burden of proof upon the person claiming liability of showing that the insurer was not prejudiced or damaged by such failure. In reversing a judgment for plaintiff, the court reasoned as follows:
“It is true that.Phillips was not required to notify his insurance carrier within the 20-day period immediately following the date of the accident because of the statutory provisions above quoted. However, immediately upon the expiration of said 20-day period, the above quoted provisions of his policy were effective and required that he ‘give as soon as practicable -written notice.’ * * *
“On this issue, the trial court has held as a matter of law that Phillips did not give such notice as soon as practicable. We fully agree with the trial court’s ruling in this respect.
“ ‘Where the facts are uncertain or disputed, and the inferences doubtful, the question whether timely notice was given is one for the jury under proper instructions; but, where the facts are not in dispute, and the inferences are certain, it is a question of law for the court.’ Foster v. Fidelity & Casualty Co. of New York, 99 Wis 447, 451 (75 NW 69, 70, 40 LRA 833).
“The reasons for the policy provisions'requiring the assured to give written notice of an accident as soon as practicable are obvious. As said in McCarthy v. Rendle, 230 Mass 35 (119 NE 188, LRA 1918E 111):
“ ‘The occurrence of an accident, and injury, however, slight, may result in litigation, even in protracted litigation. It is the experience of every defender of causes that it is a matter of first importance to become possessed of all material facts and of the names and residences of all known witnesses at the earliest possible moment, as facts may be forgotten or distorted and witnesses may go beyond reach.’ ”
In the case at bar it is undisputed that the accident occurred September 7, 1947, and no report of the accident was made to the insurance company until 7 months and 8 days after the accident and after an action was commenced in the common pleas court of the city of Detroit. It is also undisputed that the insurance company had no opportunity to inspect the damaged automobile or investigate and interview witnesses during this period. In our opinion, the testimony of Angus Mclsaac, assistant claims manager for the garnishee defendant insurance company, was sufficient to make- a prima facie case that the insurer was prejudiced by the failure of the assured to give notice of the accident as soon as practicable. There being no evidence to contravene the testimony of Mclsaac, we hold that the trial court was in error in submitting the question of prejudice to the jury.
The judgment is reversed and the cause remanded for entry of judgment of no cause of action. Garnishee defendant may recover costs.
Reid, 0. J., and Boyles, North, Dethmers, Butzel, Care, and Bushnell, JJ., concurred.
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Dethmeks, J.
Plaintiff sued for damages to its fire truck and, as subrogee under tbe provisions of tbe workmen’s compensation law (CL 1948, § 413.15 [Stat Ann 1950 Rev § 17.189]), for injuries to its firemen, allegedly caused by defendant’s negligent operation of bis automobile. Tbe trial court directed a verdict for defendant on tbe ground of contributory negligence on tbe part of plaintiff’s employees in tbe operation of tbe fire truck. Plaintiff appeals.
In response to an emergency calí a fireman was driving tbe fire truck north on a nonfavored street, ' at about noon, on a bright clear day, at 25 to 30 miles per hour, with siren sounding, approaching what be knew to be an intersecting through street, on which defendant was driving bis automobile east toward the intersection. When at a point 25 to 30 feet sonth of the corner the fireman driver was able to see a block west on the intersecting street. He testified that when he arrived at the intersection he first looked to the west (from which direction defendant was approaching), then to the east and then again to the west, whereupon, for the first time, he saw defendant’s automobile, on the west side of the crosswalk, at which time the fire truck was at the south crosswalk; that he immediately stepped on the accelerator to increase speed in an attempt to pass ahead of defendant and avoid the accident. The lieutenant in charge of the detail sat next to the driver on the fire truck. It was a part of his duty to keep a lookout for other cars, but he did not see defendant’s automobile at all until the instant -when the driver accelerated the speed of the fire truck to avoid the accident. The collision immediately followed.
The trial court held the fireman driver and lieutenant in charge guilty of contributory negligence as a matter of law for failure to maintain a reasonable and proper lookout for traffic approaching on the intersecting through street.
Plaintiff relies on statutory provisions in effect when the accident occurred as follows:
“The driver of a vehicle upon a highway shall yield the right-of-way to ambulances, police and fire department vehicles when.the latter are operated upon official business and the drivers thereof sound audible signal by bell, siren or exhaust whistle. This provision shall not operate to relieve the driver of a police or fire department vehicle from the duty to drive with due regard for the safety of all persons using the highway.” CL 1948, § 256.321 (b) (Stat Ann § 9.1581 [b]).
“The speed limitation set forth in this act shall not apply to vehicles when operated with due regard for safety under .the direction of the police in the chase or apprehension of violators of the law or of persons charged with or suspected of any such violation, nor to fire department or fire patrol vehicles when travelling in response to a fire alarm, nor to public or private ambulances when travelling in emergencies. This exemption shall not however protect the driver of any such vehicle from the consequences of a reckless disregard of the safety of others.” CL 1948, § 256.310 (Stat Ann § 9.1570).
and, also, on CL 1948, § 256.322 (Stat Ann § 9.1582), requiring other vehicles , to stop at the right-hand edge of the highway at the approach of fire trucks, and a city ordinance containing like right-of-way provisions.
It will be noted that the quoted statute, according emergency vehicles the right-of-way, conditions the same upon the sounding of an audible signal by siren, et cetera. In addition, the statute expressly provides that the driver thereof shall not be relieved from the duty to drive with due regard for the safety of others. The statute exempting such driver from speed limits contains a like provision concerning due regard for the safety of others.' Plaintiff cites eases such as Isaacs v. City and County of San Francisco, 73 Cal App2d 621 (167 P2d 221), and Lucas v. City of Los Angeles, 10 Cal2d 476 (75 P2d 599), for the proposition that the statutory requirement-of due regard for the safety of others is met by the giving of suitable warning. Had such been the legislative intent in the enactment of the Michigan statute, which expressly requires the giving of an audible warning as a condition precedent to an emergency vehicle’s acquiring the right-of-way, no purpose would have been served by the further express requirement of the statute that such vehicle be driven with due regard for the safety of others.
Plaintiff relies somewhat on Theisen v. Detroit United Railway, 163 Mich 68. In that case the driver of a fire wagon had observed the approaching car bnt concluded that he could proceed in safety on the assumption that the operator of the car would obey the ordinance requiring it to stop before entering the crossing. This Court held the question of the driver’s contributory negligence under such circumstances to be one of fact for the jury. The instant case is distinguishable in that plaintiff’s driver did not make proper observation nor see seasonably what was plainly there to be seen so as to be able to form a reasonable belief as to whether he could proceed into the intersection in safety.
Many duties are imposed upon the drivers of motor vehicles upon public streets and highways. Some result from express statutory requirements to observe certain speed limits, to stop' for certain traffic signals and signs, or, under certain circumstances, to yield the right-of-way, violations of which constitute negligence per se. Garbacz v. Grand Trunk Western Railway Company, 323 Mich 7. Other duties are inherent in the exercise of that due care which connotes freedom from negligence as defined by the courts. Among the latter are the duties to maintain a reasonable and proper lookout, to see what is plainly there to be seen and give it due heed, and, before proceeding, from a suitable observation of conditions then and there existing, to form a reasonable belief that it is safe to proceed. Failure to perform any of these duties has been held, under certain circumstances, to constitute contributory negligence as a matter of law. MacDonald v. Skornia, 322 Mich 370, and cases therein cited and reviewed. The above-quoted statutes, relied on by plaintiff, by their express terms serve to relieve drivers of emergency vehicles only from those duties imposed on other drivers which relate to observance of speed limits, heeding traffic signals and stop signs, and the yielding of right-of-way. The language of those statutes contains not the slightest suggestion of a legislative intent to excuse such drivers from the other duties above mentioned. Had the legislature so intended, it would have been easy to so provide in express terms. The very opposite intent is indicated by the singling-out of speed limits and right-of-way regulations-alone for exemption purposes, and by the requirement in the selfsame statute that such vehicles must be driven with due regard for the safety of others.
Driving a fire truck into an intersection in full reliance upon the right to exceed speed limits and the right to proceed without stopping for the stop sign or the through street, but- without observing or giving any heed to oncoming traffic on the intersecting through street did not amount to driving with due regard for the safety of others as required by statute. Such driving in reliance upon a statutory right-of-way has frequently been held to constitute contributory negligence as a matter of law on the part of plaintiff drivers of private vehicles. Kerr v. Hayes, 250 Mich 19; Koehler v. Thom, 285 Mich 593. Inasmuch as the statute has not relieved drivers of fire trucks from the same duties to maintain a lookout, to see and heed what is present to-be seen, and, on the basis of such observation, tc form a reasonable belief that it is safe to proceed,, it follows inescapably that plaintiff’s driver must likewise be held to have been guilty of contributory negligence as a matter of law, barring plaintiff’s right to recovery. (See, annotation, 1 ALR2d 827.)
Affirmed, with costs to defendant.
Reid, C. J., and Boyles, North, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred. | [
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North, J.
Having first obtained leave of this Court, plaintiff has appealed from the circuit judge’s ruling denying a temporary injunction sought in plaintiff’s bill of complaint. Plaintiff claims that such refusal was an abuse of discretion and erroneous. On granting leave to appeal this Court issued a restraining order enjoining defendants from indulging in certain acts, including picketing of plaintiff’s place of business, pending our decision of this appeal. While the Metropolitan Barbers’ Association, Inc., a Michigan corporation, joined with John Niedzialek as plaintiff in this case, the corporation is not a party to this appeal. We herein refer to John Niedzialek as plaintiff.
In the main the relief sought is that defendants, who are members of Journeymen Barbers, Hairdressers and Cosmetologists’. International Union of America, Local No. 552 (A.F.L.), be enjoined from picketing Niedzialek’s barbershop. According to allegations in the bill of complaint, Niedzialek is a licensed barber, who, since 1940, has owned and operated a barbershop in a building which he purchased on VanDyke avenue, in Detroit. He employs 2 other barbers who are also licensed. Niedzialek and these employees ■ are members ■ of the plaintiff Metropolitan .Barbers’ Association, Inc., which is composed of barbers who own or are employed in shops located on the east side of Detroit. There was no dispute of any kind between Niedzialek and his employees as to wages, hours, or other terms and conditions of employment. The bill of complaint alleges there was no strike in progress involving Niedzialek’s shop; that the prices appellant charges for services are identical with those charged by barbers in shops affiliated with the defendant union. While it is denied in defendants’ sworn answer, the bill of complaint also alleges that the wages and working conditions of Niedzialek’s employees are at least equal, and in some respects superior, to those of members of the defendant union. However, defendants’ answer fails to specify any particular in which the wages and working conditions of plaintiff’s employees are riot equal to those of employees in union shops, except possibly that the answer does set forth that union shops are closed at 6 p. m. whereas appellant’s shop is not closed until 7 p. m. According to the allegations of the bill of complaint, on November 23, 1949, defendants George Husk and Arthur A. Borowski, together with at least 4 other men, entered appellant’s barbershop “and demanded in a harsh and dictatorial manner that plaintiff immediately sign up with the defendant union or that they would- commence at once to picket the premises.” Plaintiff did not comply with the demand. Picketing of plaintiff’s premises was at once instituted. It is alleged in the bill, in substance, that the picketing was not of a peaceful character, hnt that instead-the pickets interfered with prospective customers of appellant and, at least on one occasion, approached such a customer “in a highly threatening manner,” in consequence of which plaintiff: called the police; and that on the occasion of 2 similar disturbances it became necessary for plaintiff to summon the police. Other acts inconsistent with peaceful picketing are alleged as follows: That defendants “have sought, by various illegal means and methods * * * to force and- compel plaintiff to affiliate with the defendant union by becoming a so-called ‘Union Shop,’ and to compel his employees to join the defendant union as members.” But defendants’ answer specifically denies “that the defendants have sought by various illegal means and efforts to force and compel the plaintiff to affiliate with defendant union, and they allege that all efforts on the part of the defendants have been legal and in accordance with law and within the protection afforded the defendants by the United States Constitution.” Aside from the issue of whether defendants seek to compel unionization of plaintiff’s shop, they complain of 2 other matters: (1) That plaintiff’s shop is kept open later than union shops, and (2) That plaintiff in a window of his shop has displayed a misleading card which, defendants claim, indicates it is a union shop. However, the record discloses plaintiff assured the trial court that each of such alleged objectionable practices would be discontinued.
On the filing of the bill an order was issued to show cause why a temporary injunction should not issue as prayed in the bill of complaint. A hearing was had on the order to show cause. Only a little and quite inconsequential testimony of a single witness produced by defendants was taken. There was ■lengthy colloquy between the court and counsel, accompanied by quite .useless and conflicting state ments and claims of counsel for the respective parties.
Under the record before us, it appears beyond cavil, that when trial on the merits is had the issue will be: Should the picketing by defendants be permitted or should it be enjoined? The final result will depend upon the proof produced at the hearing bearing upon the issue of whether the picketing was pertinent to a lawful labor objective. And the issue may also be presented as to whether or not the picketing was peaceful or otherwise. Neither of these issues can be decided until there is a hearing on the merits. It is also clear; at least reasonably certain, that if in the instant case the picketing is continued in the interim until a hearing on the merits plaintiff will suffer irreparable injury. The contrary cannot be persuasively urged; nor can it reasonably be inferred from the record that enjoining picketing in the interim would result in any permanent- or irreparable injury to defendants, even if the ultimate determination should be that the picketing was lawful. It is the settled policy of this Court under such circumstances to grant to a litigant who is threatened with irreparable injury temporary injunctive relief and thereby preserve the original status quo. In a very similar case in which, as in the instant case, an answer to the bill of complaint had been filed, on review of denial by the circuit judge of a temporary injunction, we said:
“In granting or withholding injunctive relief pendente lite in a case of this character it is highly proper and quite essential for a court to consider whether the rights of the respective litigants will best be subserved by granting temporary injunctive relief if sought. If the personal rights or property rights involved will be best preserved by granting temporary injunctive relief in a suit presenting issues of controverted, merit, such relief should be granted. Gates v. Detroit & Mackinac Railway Co., 151 Mich 548. In the instant case it is quite self-evident that if the picketing instituted by defendant is not temporarily restrained plaintiff’s business will be completely ruined or at least suffer irreparable damage pending final decision herein. On the other hand it seems equally apparent that granting the temporary injunctive relief sought will not subject ■defendant to any material ultimate damage or deprivation of rights. We are constrained to hold that in denying plaintiff’s application for a temporary injunction the trial judge failed to properly ■exercise his discretion.” Cohen v. Detroit Joint Board Amalgamated Clothing Workers of America, 327 Mich 606.
Our decision in the Cohen Case is followed in Midwest Properties Co. v. Journeymen Barbers, Hairdressers, Cosmetologists and Proprietors International Union of America, Local 552, A. F. L., 330 Mich 478. In the Gates Case, above cited, we said: “The object of preliminary injunctions is to prenerve the status quo, so that upon the final hearing the rights of the parties may be determined without injury to either.”
In another case wherein the circuit judge refused to issue a temporary injunction against picketing, by mandamus we required the issuance of the injunction. In the per curiam opinion it is said of the circuit judge: “He failed to exercise the discretion which the law required of him in the circumstances.” Ideal Manufacturing Co. v. Wayne Circuit Judge, 139 Mich 92.
In a Federal court case the proper function of a temporary injunction is commented on as follows:
■ “An injunction pendente lite should not usurp the place of a final decree neither should it reach out any further than is absolutely necessary to protect the rights and property of the petitioner from Injuries which are not only irreparable, but which must be expected before the suit can be heard on its merits. Only those issues will be determined which are necessary factors in granting or denying a temporary restraining order. It is not necessary that the complainant’s rights be clearly established, or that the court find complainant is entitled to prevail on the final hearing. It is sufficient if it appears that there is a real and substantial question between the parties, proper to be investigated in a court of equity, and in order to prevent irremedial injury to the complainant, before his claims can be investigated, it is necessary to prohibit any change in the conditions and relations of the property and of the parties during the litigation.” Goldfield Consolidated Mines Co. v. Goldfield Miners’ Union No. 220, 159 F 500, 511.
The instant appeal should be and is disposed of the same as in Cohen v. Detroit Joint Board Amalgamated Clothing Workers of America, supra, as follows:
“As above noted a temporary injunction has already issued out of this Court restraining the picketing until our further order. Since it will best sub-serve the needs of the instant case and expedite final determination thereof, our temporary injunction will remain in force pending further order of this Court, and in the meantime the case will be remanded to the trial court for hearing and determination on its merits. In event of an unappealed decision against plaintiff, an application may thereupon be made by defendant to this Court for dissolution of our injunction.
“Costs on this appeal will abide final outcome of this litigation. A decree may be entered in this Court in accordance with the foregoing.”
Reid, C. J., and Boyles, Dethmebs, Bittzel, Carr, Bushnell, and Sharpe, JJ., concurred. | [
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Bushnell, J.
The city of Pontiac has appealed from a decree entered in the circuit court for the county of Oakland, based upon an opinion rendered by the 3 judges of that circuit. The trial judges held that the hereinafter quoted portion of section 5 of Ordinance No 985, adopted on August 26, 1941, was an improper exercise of the police power having “no relation to the public health, morals, welfare or safety.”
This portion of the section reads:
“No sign or placard stating the price or prices of gasoline other than such signs or placards as here inabove provided [signs not larger than 12 by 12 inches attached to pumps or dispensing devices] shall be posted or maintained on the premises on which said gasoline is sold or offered for sale.”
The court held that other signs on the premises larger than those required on gasoline pumps are neither deceptive nor fraudulent, and that the right-to truthfully advertise the price at which gasoline is sold on service station premises is a legitimate and valuable incident to such business.
The court found that the quoted provision of the ordinance is a deprivation of property without due process of law, constitutes an unlawful interference with private business, and is null and void because contrary to the Fourteenth Amendment to the Constitution of the United States and article 2, § 4, of the Constitution of the State of Michigan (1908).. The city was permanently restrained from enforcing or attempting to enforce the above quoted portion of section 5 of the ordinance.
Plaintiff copartnership, Oakland County Gas & Oil Company, is a retail and wholesale dealer in gasoline and other petroleum products. It operates 9 retail gasoline service and filling stations in Oakland and Macomb counties. The company purchases gasoline at the refinery and hauls it to its own stations, thus- effecting a saving of about 4 cents a gallon. This saving and others due to its method of conducting business are passed on to the consumer by means of prices less than those charged by other gasoline stations. The gasoline sold compares favorably in octane rating and quality with that sold in the local market.
Appellant city argues that the ordinance is a valid exercise of its police power; that it bears a reasonable relation to the public peace, health, morals, welfare and safety in that it prevents fraudulent and deceptive advertising; that it prevents small gasoline station operators from being squeezed out as a result of monopolistic practices, and that the signs permitted (12 by 12 inches in size) are ample to inform the public of the prices at which plaintiff sells-gasoline.
The controlling question is whether the controversial portion of the ordinance bears a reasonable relation to the public peace, health, morals, welfare and safety. Incidental thereto is the question of whether the retailing of gasoline per se is a business so affected with the public interest as -to warrant the exercise of the police power, without a showing of a particular evil so affecting the public. ’
This latter question was answered in Williams v. Standard Oil Co., 278 US 235 (49 S Ct 115, 73 L ed 287, 60 ALR 596), where the court held there could be no price regulation of gasoline because it is not. “affected with the public interest,” and that its sale is the same as the merchandising of any other commodity.
It is within the police power to prohibit false, fraudulent or misleading advertising. Jasnowski v. Judge of Recorder’s Court of the City of Detroit, 192 Mich 139, and People v. Austin, 301 Mich 456.
The right to advertise one’s merchandise is, subject to the police power mentioned, within the right to liberty and property. The denial of such right is a taking of property without due process of law. Ritholz v. City of Detroit, 308 Mich 258.
Business practices, such as the one against which the ordinance in question is directed, have no detrimental effect on public health, peace, morals, safety and welfare. The size of signs which plaintiff may care to use, and their location at points other than the pumps, if such signs are not misleading or fraudulent, may not be regulated by the legislative body of defendant city.
"With respect to the Massachusetts authorities cited by defendant, Slome v. Chief of Police of Fitchburg, 304 Mass 187 (23 NE2d 133), followed in Merit Oil Company v. Director of the Division on the Necessaries of Life, 319 Mass 301 (65 NE2d 529), we agree with the court’s observation on the Slome Case in State v. Miller, 126 Conn 373 (12 A2d 192), that:
“This decision appears to assume, without any substantial basis, that the prohibition is to prevent fraud and then to apply the unquestioned doctrine that the legislation to prevent fraud is within the police power.”
See Sperry & Hutchinson Co. v. Director of the Division on the Necessaries of Life, 307 Mass 408 (30 NE2d 269, 131 ALR 1254), which cited People v. Victor, 287 Mich 506 (124 ALR 316).
We are in accord with the court’s reasoning in Regal Oil Co. v. New Jersey, 123 NJL 456 (10 A2d 495), that:
“But assuming that there had been tense competition between dealers in the industry, we fail to see its relevancy. In the absence of a valid agreement to the contrary, or the violation of any valid public law, we know of nothing which makes or should make dealers in the sale of motor fuels any more immune from tense competition than any other merchantmen.
“Nor do we discern any merit in the claim that subdivision (c), section 201 of the act of 1939 can be supported upon the ground that it was enacted to prevent fraud and misrepresentation in the industry. A regulation sign posted on the pump or other equipment cannot be seen until one gets within a very few feet of it. The signs used * * * can be seen for a considerably greater distance. If the regulation sign serves to prevent fraud and mis representation then surely prosecutor’s larger signs should even more effectively tend to accomplish the same result.”
See, also, New State Ice Co. v. Liebmann, 285 US 262 (52 S Ct 371, 76 L ed 747).
The rule applied in People v. Victor, supra, and Ritholz v. City of Detroit, supra, is applicable here. The ordinance bears no reasonable relation whatsoever to public peace, health, morals, welfare or safety.
The decree is affirmed, with costs to appellees against the defendant city of Pontiac only.
Reid, Q. J., and Boyles, North, Dethmers, Btjtzel, Carr, and Sharpe, JJ., concurred.
NJ Laws 1938, Ch 163, p 363, art 2, § 201, as amended by NJ Laws 1939, ch 62, p 103 (56 NJSA 6-2). — Reporter. | [
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] |
Btjtzel, J.
On May 10, 1948, one Ethelwyn Hues-ted borrowed $884.45 from the' Marion, Michigan, branch of the Cadillac State Bank, plaintiff herein, on a chattel mortgage note secured by a 1942 Chrysler Sedan. The chattel mortgage was filed with the register of deeds of Osceola county, the county in which Marion is located. No affidavit of the mortgagee that a lien had been placed on the vehicle was ever filed with the secretary of State under the authority of CL 1948, § 256.102 (Stat Ann § 9.1472), and therefore the lien was never listed as an encumbrance on Mrs. Huested’s certificate of title. On June 10, 1948, Mrs. Huested made a single payment of $147.45 and has made no other since.
On June 3, 1948, Mrs. Huested assigned the car to one Gallagher in Grand Rapids, who in October, 1948, sold it to one Mansfield. On November 6,1948, Mansfield sold it to the Bishops, defendants, for $1,129.85. The purchase was financed by the National Discount Company, intervening defendant. Thereafter plaintiff located the car and began the instant replevin action on February 23, 1949.
Plaintiff relied solely on the filing of its chattel mortgage in Osceola county, claiming it to be the place where the property was located and the mortgagor resided, to defeat the claim of the defendants, that they were bona fide purchasers. The statute, CL 1948, § 566.140 (Stat Ann § 26.929), provides that, every chattel mortgage “shall be absolutely void * * * as against subsequent purchasers or mortgagees in good faith, unless the mortgage or a true copy thereof shall be filed in the office of the register of deeds of the county where the goods or chattels are located, and also where the mortgagor resides.” In order to prove that the statute had been complied with, the plaintiff introduced the testimony of its sole witness, Donald L. Walters, cashier of the Marion branch of the plaintiff. Walters testified that Mrs. Huested lived in a hotel across the street from the bank at the time the mortgage was executed, and that he had seen her there frequently. He further stated that she remained in Marion for a period of possibly 2 months after the first payment was made and a short time later, “she was working down around Detroit.”
In its opinion the trial court said of Walters’ testimony:
“This witness gave his testimony haltingly and uncertainly. It was my impression at the time of the' trial that he was drawing on his imagination to fill in the details and that he actually remembered little about details of the transaction. He testified falsely as to one material fact, i.e. he testified that Huested had the title to the car when the loan was made (May 10, 1948). (The title was not issued until May 17, 1948). Had the case been tried by a jury I should: have charged the jury that if any witness testified falsely as to any material matter that they could disregard such witness’ entire testimony. As a trier, of the facts I may disregard' the testimony of Mr. Walters on the basis stated. This I am inclined to do. I feel that Walters just did not remember the details of this transaction any better than he remembered about the title.”
The court, as trier of the facts, found that the plaintiff had not shown to the court’s satisfaction that Mrs. Huested resided in Osceola county, or that the vehicle was located in Osceola county at the time that the mortgage was made or filed (some 12 days later). Since there was no proof of a correct filing, the defendants were not put on notice of the.plaintiff’s lien and were bona fide purchasers. Judgment was entered for the defendants for $1,000, the appraised value of the car, with interest at 5% per annum from the date the car was seized. Prom the judgment and from the denial of a motion for a new trial on grounds of newly-discovered evidence, this appeal has been taken.
The plaintiff contends on appeal that it had proven the case by a preponderance of the evidence and that the trial court erred in entering judgment for the defendant. It argues that the defendant offered no evidence as to the location of the chattel or as to residence, and since Walters’ testimony was the only evidence before the court it could not be ignored. Plaintiff further argues that the court had no right to completely disbelieve Walters’ testimony because he said that he thought he saw the title in Mrs. Huested’s name on' May 10th. It is possible, plaintiff says, that Walters saw the title of the previous owner with the transfer to Mrs. Huested inscribed thereon, and this would be perfectly consistent with Walters’ statement.
Walters thought that Mrs. Huested remained in Marion until some time in August, 1948, although it seems apparent that she had left long before that time. He thought that he saw the title in her name, when she did not have title. The only proof that the ■car upon which the mortgage was issued was the one that was located in Marion was Walters’ testimony based upon Mrs. Huested’s self-serving statement, as there was no investigation made to- see if the car was the one to which Mrs. Huested had title.
Under the clear wording of the statute the plaintiff had the burden of proving that the chattel mortgage was correctly, filed. The defendant need offer no proof until that burden has been met. The plaintiff chose to meet the burden with the testimony of Walters only, although prior to the trial it must have been apparent that there were other sources by which the same could be shown and the testimony of Walters corroborated, i.e., the hotel register could Rave been introduced.
We cannot say that the trial judge erred. He saw .and heard Walters. It would be an unwarranted Intrusion into the province' of the trier of the facts to reverse on the record before us.
The plaintiff at the conclusion of the trial made a motion for a new trial on grounds of newly-discovered evidence. The affidavit of one Miltner was .attached. This affidavit set forth that Miltner had been told by Mrs. Huested that she resided in Marion, that he had never told anyone of the conversation, ■that he was not aware of its significance, and that Re had disclosed the information to the attorney for the plaintiff after judgment had been entered. At the hearing it appeared that Miltner was the attorney for the Cadillac State Bank, had referred the ■ease to the attorney of record, and had discussed the ■case with the attorney for the defendant. The court, ■although doubtful as to whether the alleged newly-discovered evidence was admissible at all, held that there had not been a showing of due diligence, and that the testimony could have been discovered if the plaintiff had exercised any diligence at all. We are in accord with this conclusion. .
The judgment and the order denying the motion for a new trial are affirmed. Costs to appellee.
Reid, C. J., and Boyles, North, Dethmers, Carr, Bushnell, and Sharpe, J J., concurred.
See PA 1949, No 300, § 238 (CL 1948, § 257.238 [Stat Ann 1949 Cum Supp § 9.1938]). | [
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Carr, J.
This ease resulted from an intersection traffic accident occurring January 12, 1949, in which plaintiff’s automobile was damaged and he sustained personal injuries. Between 6:30 and 7 o’clock in the ■evening of the date in question, plaintiff was driving-in a northerly direction on a highway in Bay county known as the Hospital road, which intersects a road running east and west, known as the Preeland road. Defendant entered the intersection from the west, striking- plaintiff’s car, with the results indicated.
In his declaration plaintiff alleged that the sole proximate cause of the accident was negligence on defendant’s part. At the conclusion of plaintiff’s proofs defendant moved for a directed verdict on the ground' that the testimony of the plaintiff established contributory negligence barring recovery. The motion was taken under advisement in accordance with the provisions of the Empson act. It was renewed after defendant rested his case, was again taken under advisement, and the case was submitted to the jury. Verdict in plaintiff’s favor, in the sum of $4,500, -was returned. Thereupon motion for judgment notwithstanding the verdict was submitted. The trial court granted the ■ motion, and plaintiff has appealed.
The sole question raised is whether the trial court was in error in granting the motion for judgment non obstante veredicto. The issue must be considered in accordance with the rule requiring that the testimony be construed in the light most favorable to the plaintiff. Staunton v. City of Detroit 329 Mich 516. Inconsistent statements in the testimony of the plaintiff do not prevent the application of the rule. Yampolsky v. Smith, 320 Mich 647.
The highway on which plaintiff was driving was' approximately 15 to 16 feet wide south of the intersection. It was surfaced with tarvia, as was the' intersection. It continued northerly as a shale road,, and there was a drop of approximately a foot from the tarvia to the shale. The Freeland road, on which defendant was driving, was likewise surfaced with, tarvia west of Hospital road to a width of 14 to 15 feet. Neither road was a through highway or otherwise favored for traffic. Plaintiff testified that, as he approached Freeland road, he made observations to-the west at a point 25 to 30 rods south of the intersection. At that time he saw defendant’s car approaching, and estimated that it was approximately 3 times as far from the intersection as was plaintiff. He estimated his own speed from 25 to 35 miles per hour, and the speed of defendant’s car at the time as between 40 and 50 miles per hour. It was quite dark and the headlights of both cars were on. There were-no natural obstacles to prevent the driver of either automobile from seeing the headlights of the other’s, car.
Plaintiff further testified that when he was 50 to 60 feet from the intersection he looked again, that he then observed the car of the defendant approximately 250 to 300 feet to the west and proceeding at the same rate of speed as when first observed. Plaintiff also stated that as he made this observation he saw the lights of defendant’s automobile illuminating a sign on the Freeland road, which sign, the record indicates, was approximately 380 feet west of the intersection. Plaintiff concluded that he had .sufficient time to pass' through the intersection in safety. When about'15 to 20 feet to the south of Freeland road, hé accelerated the speed of his caito a rate between 20 and 25 miles an hour, and entered the intersection. At the time he made the second observation he had decreased the speed of his vehicle to less than 20 miles an hour. When approximately 5 feet south of the drop from the tarvia pavement to the shale, on the north side of Freeland road, plaintiff applied his brakes and decreased his speed to approximately 10 miles an hour in order to pass over the “drop-off,” to avoid the risk, as he claimed, of losing control of his automobile. After he decreased his speed as indicated, he looked to his left and at that time saw defendant’s car approaching some 50 to 60 feet to the west, on the north or left side of Freeland road, and at a rate of 70 to 75 miles an hour. lie sought to accelerate his own speed, but' was unable to do so. It was his claim that his car was struck when it was approximately 5 or 6 feet on the tarvia, with the front end past the bump and on the shale road.-
The trial court came to the conclusions that plaintiff was guilty of contributory negligence as a matter of law because of failure to make approximately accurate observations as to the speed of defendant’s car, before entering the intersection, and in decreasing his speed immediately before passing over the “drop-off” from the tarvia to the shale without first making further observations. However, if plaintiff stated the facts correctly in his testimony, the cars would not have come in contact if defendant had driven at a reasonable rate of speed or if he had remained on the south side of the center line of the Freeland road. The factual situation presented is unusual. The proofs do not suggest any reason for defendant’s speed or for his driving on the wrong side of the highway. There was nothing to put plain tiff on notice, when he made his observation before entering the intersection, that defendant would operate his car in such manner. Plaintiff was not required to anticipate reckless or unlawful acts on defendant’s part. In Winckowski v. Dodge, 183 Mich 303, 312, quoted with approval in Suarez v. Katon, 299 Mich 38, it was said:
“Contributory negligence cannot be imputed to a plaintiff for failure to anticipate negligent acts of a defendant — no one need anticipate an unlawful act.”
See, also, Guina v. Harrod, 275 Mich 393; Dasovich v. Longacre, 324 Mich 62; White v. Herpolsheimer Company, 327 Mich 462. The finding of the jury that defendant was guilty of negligence is not questioned.
In view of plaintiff’s testimony as to the manner in which the accident happened, we think that the matter of his contributory negligence is a question concerning which reasonably-minded men might well reach different conclusions. Such being the case it may not be said .that he was guilty of contributory negligence as a matter of law. Nezworski v. Mazanec, 301 Mich 43, 63; Murray v. City of Detroit, 327 Mich 679; Staunton v. City of Detroit, supra. Under the testimony in the case, whether defendant’s negligence was the sole proximate cause of the accident- and whether plaintiff’s proofs established his freedom from contributory negligence were jury questions. The verdict was supported by the record, and the trial court was in error in granting the motion for judgment non obstante.
The judgment is reversed and the case remanded to the circuit court, with directions to set aside the judgment entered in defendant’s favor and to enter 'judgment for the plaintiff on the verdict. Plaintiff may have costs.
- Reid, C. J., and Boyles, North, Dethmers, Btttzel, Bushnell", and Sharpe, JJ., concurred.
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.Dethmers, J.
On a dry, clear, midsummer night plaintiff’s decedent left a country tavern on the west side of a 4-lane, 40-foot paved highway, intending to walk to some tourist cabins located directly across the road. There were no other buildings in the vicinity. Lighted signs in front of the tavern and cabins illuminated the road somewhat. Decedent’s eyesight was good. Some distance to the south the highway curved gradually, but there was a clear, unobstructed view of the payment in that direction for several hundred feet. Defendant was driving her automobile north in the most easterly lane. Her lights were on. No other automobiles or traffic were in sight in either direction. A.collision between decedent and defendant’s left front fender occurred in the most easterly lane, blood and skid marks indicating that at the instant of impact decedent was on the most westerly part of that lane. He was killed instantly. Shortly after the accident defendant told an officer that she had not seen decedent until she was practically upon him. A witness for plaintiff testified that from what he learned he knew that defendant saw the accident. There were no other eyewitnesses.
■ Defendant was present at trial but was not called as a witness. Plaintiff offered no proofs concerning decedent’s actions from the time he left the tavern until the accident. There is nothing in the record from which it might be inferred that he was free from contributory negligence. Plaintiff has con tended, however, both oh trial and on appeal, that it should be held that there were no eyewitnesses and that, therefore, decedent must be presumed to have been free from contributory negligence. As authority he cites Adams v. Iron Cliffs Co., 78 Mich 271 (18 Am St Rep 441); Gilbert v. Ann Arbor R Co., 161 Mich 73; Gates v. Beebe, 170 Mich 107; Parsons v. E. I. Du Pont De Nemours Powder Co., 198 Mich 409 (LRA1918A 406, 16 NCCA 625); Clark v. Lawrence Baking Co., 240 Mich 352; Russo v. City of Grand Rapids, 255 Mich 474; Petersen v. Lundin, 236 Mich 590; Hinchey v. J. P. Burroughs & Son Co., 240 Mich 273; Wilkins v. Bradford, 247 Mich 157; Gillett v. Michigan United Traction Co., 205 Mich 410; Fairchild v. Detroit, Grand Haven & M. R. Co., 250 Mich 252; Delfosse v. Bresnahan, 305 Mich 621; Fenn v. Mills, 243 Mich 634; and Gembolis v. Rydeski, 258 Mich 521. Defendant, on the other hand, urged on trial, as now, that under the authority of such cases as Black v. Ambs, 307 Mich 644; Foote v. Huelster, 272 Mich 194; Buchel v. Williams, 273 Mich 132; Collar v. Maycroft, 274 Mich 376; Kalbfleisch v. Perkins, 282 Mich 27; Peck v. Hampel, 293 Mich 252 ; and Faustman v. Hewitt, 274 Mich 458, defendant must be held to have been an eyewitness, removing the presumption and leaving the question of decedent’s freedom from contributory negligence a subject for proof by plaintiff. There having been no such proof, the trial court granted defendant’s motion for a directed verdict of no cause for action. Plaintiff appeals.
In seeking to reconcile the holdings in the above cases cited by plaintiff with those cited by defendant, it might seem that, with certain exceptions, a possible generalization might be drawn to the effect that the availability of the presumption to a plaintiff’s case depends upon the failure of the surviving defendant to have seen enough of decedent’s actions prior to and at the time of the accident to constitute defendant an actual eyewitness. The application of that test will hardly serve, however, to reconcile the adoption of the presumption in Petersen v. Lundin, supra; Fenn v. Mills, supra; and Hinchey v. J. P. Burroughs & Son Co., supra, with its rejection in Collar v. Maycroft, supra, and Faustman v. Hewitt, supra, the defendant in each of those cases, as in the instant case, having seen the decedent but an instant before the accident when it was too late for either to avoid it. That the amount of opportunity for and length of time during which defendant observed decedent prior to the accident, if at all, are factors to which but scant, if any, significance attaches, in the judgment of this Court, would appear from our failure to so much as touch upon or mention them in our opinions in Foote v. Huelster, supra, and Peck v. Hampel, supra, this Court having contented itself in the latter case with the observation that defendant was presumed to have seen decedent before the accident and, hence, to have been an eyewitness, thus removing the presumption of decedent’s due care. A further possible explanation of the apparently irreconcilable conflict in the holdings of this Court on the subject may be that, with the single exception of Delfosse v. Bresnahan, 305 Mich 621, in which defendant had admitted before trial that he had not seen decedent at all prior to the accident, the above cited cases relied upon by plaintiff antedate Foote v. Huelster, supra, and that the latter represents, a turning point in the views of this Court, supporting, as do our subsequent decisions, the contention of defendant that the presumption is not indulged if the surviving defendant saw decedent at all before the accident. Under the latter holdings it would follow in the instant case that plaintiff is not entitled to the benefit of the presumption in view of the testimony that defendant saw decedent when she was practically upon him and the further testimony that she saw the accident.
If it were to be assumed, however, that defendant did not see decedent at all before the accident and that there were, accordingly, no surviving eyewitnesses whatsoever, the presumption of decedent’s freedom from contributory negligence should nevertheless be deemed to have been overcome and rebutted by proofs of the physical facts in this case, which show decedent to have been guilty of contributory negligence as a matter of law. This, we think, follows from our holdings in Elrich v. Schwaderer, 251 Mich 33; Waterstradt v. Lanyon Dock Co., 304 Mich 437; Thomas v. New York Central Railroad Co., 267 Mich 396; Rushford-Surine v. Grand Trunk Railway Co., 239 Mich 19; Tomczyk v. Detroit, Grand Haven & M. R. Co., 267 Mich 474; Pomeroy v. Dykema, 256 Mich 100; Russo v. City of Grand Rapids, 255 Mich 474; and Richardson v. Williams, 249 Mich 350. The night was clear, visibility and decedent’s eyesight were good, he had a clear, unobstructed view of defendant’s approaching car for several hundred feet, there was no other traffic to confuse him, the highway was lighted somewhat by lights in front of the tavern and cabins, and defendant’s lights were on. Decedent could and should have seen defendant’s car approaching; it did not suddenly swerve toward him, but approached and collided with him in its own outer lane. Decedent either failed to make proper observation before entering the east lane or, having made it, failed to see what was. plainly there to be seen, viz., defendant’s car approaching him or, having seen it, negligently took his chances and proceeded in the face of known danger, with the result that he walked into the side of or stepped immediately in front of defendant’s left-front fender. In any such event, viewing the testimony in the light most favorable to plaintiff, dece dent was guilty of contributory negligence as a matter of law. Heckler v. Laing, 300 Mich. 139. Had he given due heed and taken the precautions which an ordinary, careful and prudent person would have taken under like circumstances, it is inconceivable that the collision could have occurred.
Affirmed, with costs to defendant.
Reid, C. J., and Boyles, North, Bittzel, Carr, Btjshnell, and Sharpe, JJ., concurred. | [
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North, J.
In this suit in equity plaintiff seeks to have the ownership of certain United States savings bonds, payable to “Charles D. Burns or Virginia Burns,” totalling $7,000 maturity value, decreed to be in the estate of Charles D. Burns, deceased, of which plaintiff is the administratrix and sole heir; and that it be decreed that the defendant “assign any interest in said bonds to Charles D. Burns Estate.” Plaintiff is the mother of deceased. Virginia Burns Bruen, the defendant herein, is the divorced wife of Charles D. Burns, and she claims to be the lawful owner of the bonds. By the decree in the circuit court in the instant case, which dismissed the bill of complaint, defendant was found to be “the surviving co-owner” of these bonds, designated by their respective numbers, and that defendant “is the sole and absolute owner thereof and that the plaintiff has no interest therein.” Plaintiff has appealed.
Charles D. Burns and defendant were married in November, 1937. No children were born of the marriage. The parties separated December 15, 1943, on which date defendant commenced a suit for divorce. A decree of divorce, “pro confesso,” was granted to her May 2,1944. There appears to have been a property settlement executed by Charles D. Burns and Virginia Burns on.November 24, 1943; but on De cember 14,1943, the parties entered into a final property settlement. This settlement was admitted in evidence, filed in the divorce proceedings, and by reference embodied in the decree. Later herein we quote the pertinent portions of this settlement agreement and of the divorce decree, in each of which the property settlement of December 14, 1943, is referred to as a “final” determination of the property rights of the parties to the divorce proceedings.
Charles D. Burns was killed in an automobile accident, April 3, 1947. The 3 “G” bonds involved in the present suit, which totalled $7,000, were found to be in his possession. And the record seems to justify the conclusion that these bonds were purchased by Charles D. Burns and kept in his possession thereafter until his death. There is no testimony that prior to Charles D. Burns’ death defendant herein knew deceased had purchased these 3 bonds. Each of them was dated in 1942, and made payable to Charles D. Burns or Virginia Burns. One of these, bonds was for $5,000, and each of the other 2 for $1,000. The United States treasury department declined payment for the reason that under the terms of the property settlement, which were embodied in the decree of divorce, “there are grounds upon which a court of competent jurisdiction might properly hand down a decision either way (as to ownership).” Defendant declined to transfer any interest she might have in these bonds to the estate of deceased. This suit was instituted for the purpose of securing an adjudication that Charles D. Burns at the time of his demise was the sole owner of these 3 “G” bonds; and in her brief appellant asserts that under the prayer for general relief in her bill she is entitled, to an order clarifying the divorce decree. Defendant filed an answer in which she admitted “that the parties owned bonds in the amounts alleged (in the bill of complaint) and that the bond numbers were not mentioned in tbe decree (in the divorce case), and that no specific assignment of the bonds was made.”
In defendant’s answer, as amended, praying dismissal of the bill of complaint, the affirmative defense is set up “that the matters involved in this proceedings pertain to the rights of a co-owner of certain United States defense bonds, which bonds are exclusively matters of Federal law and contract,” and defendant prays “that the court in this matter decree that the plaintiff in this action has no right, title or interest in and to said bonds and that this defendant is the sole owner thereof and the only one entitled to said bonds and that said court further order and direct the plaintiff to forthwith deliver said bonds to this defendant.” Relative to the above contention, the trial judge in his filed opinion concluded:
“The bonds in question were issued to Charles D. Burns or Yirginia Burns. The right of ownership by survivorship is established by the regulations made by the United States treasury department governing such bonds. One of the regulations provides that if the co-owners are divorced from each other after the issue of the bond the bond may be re-issued in the name of either co-owner alone or with a new 'co-owner or beneficiary. The request must be supported by a copy of the divorce decree certified by the clerk of the court under its seal.
“The regulations further provide that ‘if either co-owner dies without the bond having, been presented and surrendered for payment or authorized reissue the surviving co-owner will be recognized as the sole and absolute owner of the bond and payment or re-issue as though the bond were registered in his name alone will be made only to such survivor.’ ”
It seems that in decreeing defendant to be the owner of the bonds in suit the trial judge relied upon the conclusion that under the Federal regulations she be came such, owner in her sole right upon the death of the co-owner, Charles D. Burns. "When applied to an appropriate factual background there would seem to be no reason for not being in accord with the quoted portion of the trial judge’s opinion. But in the instant case prior to the' death of Charles D. Burns there had been a valid adjudication of the property rights between him and Virginia Burns. Hence, decision in the instant ease is controlled by ■the decree in the pro confesso divorce case, wherein the decree,' evidently prepared by Virginia Burns’ attorney and entered on his motion, contained the following:
“The parties having agreed to their property rights in writing and a copy of said agreement having been filed herein said property settlement (of December 14,1943) is hereby approved and the same shall be a final determination of the property rights •of the parties hereto and that the payment so .made by the defendant to the plaintiff under the property settlement * * * shall be in full satisfaction of all claims that she the plaintiff may have .in any property which the defendant now owns or may hereafter own or in which he may have any interest by inheritance or otherwise.”
The pertinent portion'of the property settlement referred to and made a part of the decree in the divorce case contains the following:
“Charles D. Burns agrees to deliver to Virginia Burns 13 $1,000 bonds and the equivalent of the value of 2 $1,000 bonds in cash, she to keep in addition a $100 bond she now has in her possession. * * . * (Provision as to property rights of defendant omitted.) The above settlement to be a final settlement of the property rights of the parties as to property real or personal now owned or hereafter acquired by either party hereto.” ^
Charles D. Burns complied with the above provision. It is almost a necessary inference from the above-quoted portions of the divorce decree and the property settlement that it was intended therein to itemize the property decreed to Yirginia Burns, and the itemization of such property certainly did not include the $5,000 bond involved in the instant case; and we think it may be fairly inferred that it did not include either of the $1,000 bonds involved in the present litigation — at least it did not idéntify them by serial number. A reasonable interpretation óf the divorce decree, as drafted by Yirginia Burns’ attorney, justifies the conclusion that by the terms thereof it was intended that - the property specifically mentioned in the decree was the property that was decreed to Yirginia Burns; and that such property and no other was decreed to her in lieu of her dower rights and of all other rights .she might claim in the property of .Charles D. Burns “in which he may have any interest hy inheritance or otherwiseCertainly Charles D. Burns at the' time the decree was entered in the divorce case had. “an interest” in the 3 bonds involved in the present litigation, which bonds were issued to “Charles D. Burns or Yirginia Burns.” -.
The conclusion, just above indicated, is not-in conflict with Federal regulations pertaining to United States savings bonds, series “G-”. Y^e quote the following from the 1949 edition of the Code of Federal Regulations, § 315.13(c), p 412:
“A divorce decree ratifying or confirming a property agreement between husband and wife or others wise settling their respective interests in savings -bonds, will be recognized” (by the United States treasury department).
After embodying in its opinion the foregoing quotation, the court in Chase v. Leiter, 96 Cal App2d 439, 452 (215 P2d 756), said:
“This last sentence is important. If the parties voluntarily enter into an agreement concerning interests in the bonds, which agreement is approved in a divorce decree, the government will recognize such an agreement.”
It appears from the record that defendant herein wrote to the United States treasury department concerning rights in the 3 bonds here in suit. Defendant received a reply which we quote in part, and more fully than hereinbefore:
“Under the savings bond regulations you became the sole and absolute owner of those bonds upon the death of Charles D. Burns unless the divorce decree and the property settlement incorporated therein extinguished your interest in them. * * * However, on closer reading of the property settlement we feel that there are grounds upon which a court of competent jurisdiction might properly hand down a decision either way (as to ownership). In brief, the terms of the settlement leave room for reasonable construction. Under the circumstances the treasury department would be bound by the court’s construction.”
Our consideration of the record in the instant case brings the conclusion that the decree in the divorce case embodying the property settlement, because of the terms above quoted therefrom, must be construed as providing that the only property adjudicated as belonging to Virginia Burns was that itemized in the decree, and that all remaining property, including these 3 bonds then in the possession of Charles D. Burns, was considered and decreed as being his property, because the decree provided that the provisions therein for Virginia Burns “shall be in full satisfaction of all claims that she the plaintiff may have in any property” in which defendant might then have “any interest by inheritance or otherwise.”
It follows that the decree entered in the circuit court must be reversed; and a decree may be entered in this Court as prayed in the bill of complaint and in accordance herewith. Costs of both courts to appellant.
Reid, C. J., and Boyles, Dethmers, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred. | [
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Reid, C. J.
Plaintiffs filed their hill for an accounting, for the discharge of a mortgage and for other equitable relief. Prom a decree dismissing the bill,, plaintiffs appeal.
The decisive point in the case is whether the payment by defendant of $3,900 of plaintiffs’ funds without a check or written authority, was in fact made by verbal authority of plaintiff.
Plaintiffs claim negligence and breach of duty by defendant, as financial agent for plaintiffs.
Plaintiff Paul A. Herbert handled the transactions-here in question on behalf of himself and his wife, the other plaintiff, and we refer to him as plaintiff..
. On April 22, 1948, plaintiff, who is a professor at Michigan State College, and his wife entered into a contract, exhibit No 3, with -one Cribeau for the construction of a house (in East Lansing) to be used by plaintiffs as a residence. The contract price was $18,500, the payments to be $3,700 upon signing of the contract; $3,700 when first floor is on; $3,700 when roof is covered; $3,700 when house is plastered ;• $3,700 when house is completed.
After construction had been begun, plaintiffs paid Cribeau $7,200, being the first instalment in full but only $3,500 of the second instalment, and later, about July 9, 1948, plaintiff .took with him the deed, ab stract and the Gibeau contract and specifications, to the office of defendant where he talked with Mr. Whittemore, secretary-treasurer of defendant association, and made arrangements for a loan of $12,000 secured by a $12,000 mortgage on the house and lot in question, the mortgage to be delivered on July 15,1948, but only the amount needed to complete the ■construction of the house was to be advanced by defendant on the mortgage.
Plaintiff testified that he called Whittem ore’s attention to the 2 payments on the construction contract which then had been made of $3,700 and $3,500 and pointed out that the next payment (the payment ■of which by Mr. Whittemore has occasioned the dispute in this case) would necessarily be $3,900, being the $3,700 mentioned as the amount of the third instalment due plus $200 remaining unpaid of the second instalment.
Plaintiff testified he asked Mr. Whittemore whether he would make the payments as they became due for plaintiffs because it would be impossible for plaintiff to leave his summer teaching schedule (at Dunbar forest near the Soo) and come back to East Lansing at either regular or frequent intervals to make the payments, and that Mr. Whittemore stated he would make the payments as they became due.
After the meeting on July 9th, plaintiff went immediately to Texas, returned to East Lansing on July 15, 1948, and went to defendant’s office where the $12,000 mortgage was executed. Plaintiff told Whittemore that Gibeau was getting along on the house and he would be wanting some money pretty soon. After executing the mortgage, plaintiff drove out to the building and there told Gibeau, the contractor, that plaintiff would.be absent until the building was supposed to be finished, told Gibeau about the loan and that defendant would make the payments as due. Plaintiff then returned to his summer teaching engagement at Dunbar forest. The next day, Gribeau went to defendant’s office and received $3,900 as moneys advanced by defendant on the mortgage given by plaintiffs and applied on the contract of' plaintiffs with Gribeau.
Whittemore, though in possession of the building-contract and specifications, did not even ask Gribeau whether the roof was on. In fact, not only was the-roof not on the garage part of the building but that part of the building was not even begun, and the-completion of the fireplace chimney was still necessary before the roof at the chimney could be finished. .There is no dispute that the payment of the $3,900' was not due.
Whittemore had. not been instructed by plaintiff to require releases by subcontractors and did not make such requirement of Gribeau. Defendant customarily makes construction loans.
The trial court among other things in his opinion said:
“The record shows that there was very little conversation between the plaintiffs and the defendant or that any explicit instructions were given as to the-payment of the $3,900. If there were any instructions they certainly were ambiguous and capable of different constructions. Mr, Whitmore [Whittemore] testified that Mr. Herbert told him on July 15th that the roof was about on the house and that Gribeau was in need of money and would be in the next day and instructed Whitmore to pay him.”
If the trial court accepted as accurate and reliable, Whittemore’s testimony that plaintiff told him to. pay Gribeau $3,900 the next day, the court could not very well find as the quoted excerpt seems to mean, that no explicit instructions were given as to the payment of the $3,900 because the court goes on to say that Whittemore testified that plaintiff told him the roof was about on the house and Gribeau would be in the. next day and (that plaintiff) instructed Whittemore to pay him. That would be explicit enough to answer the controlling question in this case, if such testimony by Whittemore had been accepted by the court.
The court evidently rejected such testimony of Whittemore and we think properly so, because it is improbable that plaintiff told Whittemore on July 15th that the roof was about on, for the garage part was not even begun to be built, the fireplace and chimney were only about two-thirds completed, and the roof, could not be finished until the chimney was completed at least through the roof. Plaintiff Herbert denies making the above-noted statement attributed to him by Whittemore (to pay Gribeau the next day).
Also, Mr. Whittemore is evidently incorrect in the following testimony:
“The figure of $3,900 was arrived at because it was a third of the loan, which was our policy.”
The figure of $3,900 was not so arrived at because it clearly appears that $3,900 was “arrived at” because it was the sum of $3,700, the third instalment (to be paid when the roof was on), plus the $200 remaining’ unpaid on the second instalment.
To an effect inconsistent with his own testimony that plaintiff told him to pay the $3,900 the next day, Mr. Whittemore testified on recross-examination, “Í think he [plaintiff Herbert] probably asked me if we would take care of the payments and make them as they became due.” (Italics supplied.) By that statement defendant conceded plaintiff’s claim that the payment of the $3,900 was only to be made when due, which accords with plaintiff’s testimony, “He [Whittemore] said he would make the payments as they became due.”
It is undisputed that the $3,900 payment was made before it became due. Clearly therefore defendant was without authority to make it. It never became due to Gibeau because Gibeau never progressed with the construction to the point where the roof was on.
On August 6th following, plaintiff at.the Soo heard df Gibeau’s bankruptcy. Plaintiff at once returned to East Lansing and was surprised to learn that "Whittemore had paid the $3,900 before it was due.
Plaintiffs were compelled, by reason of threatened action by Whittemore, to pay interest on the mortgage, which they did for a few months. Plaintiffs had paid to Gibeau before the mortgage was given to defendant, $7,200,' which with the $3,900 paid Gibeau by Whittemore would make a total of $11,100. Plaintiff estimated that Gibeau did between $4,000 and $5,000 worth of work on the building. Plaintiffs were paid nothing by the receiver for Gibeau. Plaintiffs therefore would lose the entire amount, $3,900, paid by Whittemore to Gibeau, if such amount, $3,900, were held a valid payment for plaintiffs under the mortgage.
Whittemore acting for defendant drew the papers covering the matter in question and assumed to act as the financial agent of plaintiffs. The construction contract and its terms had been fully discussed between Whittemore and plaintiffs.
Defendant East Lansing Building & Loan Association is not at liberty to question the acts of Whittemore as without the scope of the authority granted Whittemore by defendant because defendant relies on the mortgage as covering the $3,900 payment made by Whittemore.
There is no excuse for defendant paying the $3,900 before it was due when defendant well knew the arrangement authorized such payment only when due.
The mortgage to defendant is valid only to the extent of $165.66, representing payment of items mostly fees and taxes by defendant on behalf of plaintiffs. The decree appealed from is reversed. The decree of this Court will provide that defendant may foreclose its mortgage only for $165.66. No costs, neither party having prevailed in full.
Boyles, Butzel, Carr, Bushnell, and Si-iarpe, JJ., concurred with Reid, C. J. Dethmers, J., concurred in the result. North, J., did not sit. | [
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Reid, C. J.
This action based on claimed negligence was brought to recover for damages to an airplane resulting from a crash landing which occurred on April 3, 1948, near Salem, Oregon. Contributory negligence was waived by defendant. From a judgment on a jury’s verdict for plaintiff, defendant appeals.
About 2 months before the crash landing, plaintiff bought from Salem Air Service a new 2-seater Cessna model 140 aircraft, equipped with a 90 h.p. Continental engine manufactured by defendant.
Plaintiff lives in Salem and used the airplane in connection with the affairs of 2 corporations which produce hops in Oregon and British Columbia. At the time of the accident, the engine had run a total of about 80 hours flying time.
While plaintiff on April 3, 1948, was flying hack from British Columbia, he noticed a slight roughing of the engine when slightly south of Portland, but continued on for Salem. About 20 minutes later, the engine suddenly became very rough, there was a sharp noise, oil sprayed over the windshield and the engine became “frozen;” plaintiff attempted to glide to a farm field, but the plane struck the edge of a ditch and nosed over. Damages to the plane were shown at $2,163.24. Plaintiff paid $656.23 rental of another airplane pending repairs.
Plaintiff’s claim is based solely on negligence, respecting a connecting rod installed in the engine, hence our recent decision in Parsons Company v. Hall, 319 Mich 240 (2 Av 14491), involving only questions arising from violation of express warranty, is not of controlling importance.
Defendant bought the connecting rod in question' from Atlas Drop Forge Company óf Lansing, Michigan, hereinafter referred to as Atlas. Atlas bought the steel from Bethlehem Steel Company. Defendant incorporated in the engine in question, the connecting rod in question, sold the engine to Cessna Aircraft, and in accordance with the expectation of defendant the engine was to be incorporated into an aircraft. It was in fact incorporated into the aircraft in question which, through intermediate dealers, came into the hands of plaintiff.
While plaintiff charged in the declaration that the connecting rod, a controlling factor in plaintiff’s case, was of insufficient strength to withstand the normal and foreseeable stress and strain, yet in the actual presentation of the case plaintiff aimed his proof solely at the question of latent defect in the connecting rod, and defendant’s negligence relating to the claimed latent defect.
Plaintiff claims that defendant installed in the engine a connecting rod containing a latent defect and neglected to take reasonable care to discover the latent defect and failed to warn plaintiff of a latent defect and failed and neglected to make sufficient tests and inspection for the discovery of latent defect, all pertaining to the latent defect in the connecting rod in question. Plaintiff does not allege the defendant manufactured the connecting rod in a negligent manner.
Plaintiff claims that the connecting rod in question, because of the latent defect, broke during flight and that such break was the origin of the breakdown of the engine, causing the engine to “freeze.”
Defendant claims that due to improper readjustments of nuts upon a stud or bolt fastening the cylin-. der to the crankcase deck, undue fatigue was caused to the nuts and bolts and that during the flight a developing fatigue caused the bolt fastening to give way and ultimately caused the entire fastenings of the cylinder to Break and that on account of the breaking of the fastenings of the cylinder, the cylinder flew off and that the piston thrashing sidewise on the rapid movement of the connecting rod, pounded on the deck, made a distinct identifiable indentation on the deck, and caused the breaking off of part (piston end) of the connecting rod which was connected with the piston. Defendant therefore claims that the improper adjustment of the bolts or studs which occurred after the airplane had been in actual flights and at a time when defendant wms not in control of the airplane in question, was the actual cause of the “freezing” of the engine and therefore of the crash landing.
Plaintiff claims that the defects which caused the breaking of the end of the connecting rod consisted of inclusion pits, so-called, which in this case are claimed by plaintiff to be' nonmetallic matter included in the steel.
It is undisputed that all steel contains inclusion pits, the -weakening effect of which depends upon the concentration and size of such inclusion pits.
To detect the presence of such matter included in the steel, not apparent at the surface, there is in current use, according to the testimony shown on this trial, a test known as magnaflux, which was employed as a method of inspection followed by Continental Motors in making the parts in question and which method defendant’s witness, Yirgil Moser, aviation safety agent for Civil Aeronautics Administration, testified was a method which conformed to the standards required by the Civil Aeronautics Administration.
It must be considered that plaintiff because of the testimony he introduced recognized that the test by magnaflux is the standard and most efficient test to determine the presence or absence of inclusions such as plaintiff relies on.
No question was raised that the law of Oregon rather than of Michigan would control the question of liability. No Oregon case was cited to a different rule than what we arrive at. The engine in question was manufactured in Michigan and shipped from Michigan and out of defendant’s control; the magnaflux test of want of it was something that occurred in Michigan. The parties submitted their case on the trial and on this appeal, apparently on the proposition that the Michigan law on torts governs liability, if any, of defendant.
The critical question on this appeal is whether plaintiff made a sufficient showing of negligence on the part of defendant in regard to making the magnaflux test or failing to make an X-ray test. Professor O. Gr. Paasche, a witness produced by the plaintiff, testified as to his qualification as a metallurgist and to his opinion that the connecting rod in question would have performed satisfactorily had the metal been clean and further, free from inclusions. This witness further on cross-examination testified as follows:
“Q. The magnaflux testing is magnetic, is it not?
“A. That is correct.
“Q. Magnetic principles. Polarization, and so forth?
“A. It involves magnetizing the piece and flowing-some magnetic particles over the surface, and at any defect these magnetic particles will gather to work around the defect.
“Q. You get the 2 poles of the magnet?
“A. Yes, wherever there is a defect, you get 2 poles of a magnet.
“Q. Would that be likely to show inclusions such as the larger ones shown in the plaintiff’s exhibit C ?
“A. I doubt that it would show inclusions that small. The photomicrograph is 100 diameters and I doubt that it would — the magnaflux would indicate that.”
Professor Paasche’s opinion on cross-examination in which he doubts that the magnaflux test would indicate the inclusions in question, stands as uncontradicted testimony in the case.
Plaintiff relies for proof of the negligence in question upon the testimony of witness Louis J. Haga, who is engaged in the business of doing- general heat-treating, which is a process in “preparing metal” to do certain jobs. Pertaining- to his examination of the metal at the place of the break in the connecting-rod in question, he testified on direct examination as follows:
“When the part was examined under polarized light under somewhat more modern equipment, it indicated pretty definitely what looked like holes were definitely of a nonmetallic nature and was in the metal itself. In my opinion the spots in the metal were, nonmetallic inclusions. I distinguished them from the bakelite mounting. The reason is under polarized light it was definitely evident that particles were there that were not bakelite. I was not able to identify the particles with exact certainty except that they were definitely nonmetallic. I feel rather sure that those particles were oxide inclusions, and presumably iron oxide. Practically all the larger particles found were located right at or close to the edge, referred to as the fractured edge. I would consider that a defect in the metal. I should qualify that. I suppose it was a defect in the metal but possibly not inherent in the metal itself, possibly from adding something later. The effect of nonmetallic inclusions of almost any sort is where stress is applied externally to the piece, in time with repeated stress you start a break. I would say those are definitely weaker points in the. structure of the metal. Prom the appearance of these little spots, it didn’t seem as though the inclusions were inherent in the metal as produced, that is as melted. They were not hangovers from the melting process. The general appearance and shape would indicate they had been hammered in at a later date. Inclusions such as I found here most likely would be found near the surface. That would be because I feel rather surely these things had been added to or were hammered in at some fairly late stage in the manufacture.
“Q. Whether or not nonmetallic inclusions, if they are near the surface of the 'metal, pan be discovered by examination ?
“A. Yes, nonmetallic inclusions, if they are present in reasonable concentration, can be discovered by magnaflux examination and X-ray examination also.
“Q. Is there any possible test that can be performed?
“A. Yes, in reasonable concentration, and the hot etching procedure could be used to locate such inclusions reasonably close to the surface.
“Q. Is that similar to the test Professor Paasche spoke of in his testimony?
“A. Yes, that is the same.” (Italics supplied.)
On cross-examination the same witness testified as follows:
“Q. Do you know whereabouts this piece was táken from the connecting rod ?
“A. Yes.
“Q. Why do you say in your opinion you feel the inclusions were near the surface?
“A. Because of the location of that little sample in the bakelite. That was located very close to the surface.
Q. How far were the inclusions below the surface?
“A. Probably a thirty-second at the most.
“Q. How many inclusion pits of any significance did you find when you looked in this microscope ?
“A. Possibly 6 or 8.
“Q. 6 or 8?
“A. Yes.
“Q. That would be in a space how long?
“A. The space covered approximately that same area on that picture.
“Q. Less than a quarter of an inch?
“A. Yes.
“Q. You don’t know whether there were any inclusion pits on either side of this quarter inch that you took out?
“A. No.
“Q. Is it your opinion there were only 6 inclusion pits in that entire surface across there? Is it your opinion — you wouldn’t say the magnaflux could pick that up would you?
“A. If that small concentration was typical of the whole place, it would be difficult to pick it up with magnaflux.
“Q. You will have to assume it couldn’t have been any more than yon picked up here. That is all you saw, isn’t it?
“A. Yes, that is right.
“Q. As far as yon know there is [are] no more inclusion pits through the entire piece of metal than you have seen?
“A. That is right.” (Italics supplied.)
It will be noted that discovery of nonmetallic inclusions would be effective if the inclusions are ■present in reasonable concentration, according to Haga’s answer on direct examination, and that on cross-examination the witness said, “If that small concentration was typical of the whole place, it would be difficult to pick it up with magnaflux.” (Italics supplied.)
. Witness Haga nowhere undertook in his testimony to say that the inclusions in question were present in “reasonable concentration,” and moreover, he says that discovery of the inclusions in question in this case by the recognized test would be difficult.
There is no testimony given by any witness in the case that the test by magnaflux, the recognized standard, would have disclosed on reasonably exercised-diligence, the presence of the inclusion pits, the weakening consequence of which (under plaintiff’s theory) caused the breaking of the connecting rod.
The trial court was in error in supposing the testimony of witness Haga sufficient to prove the negligence of defendant, as showing want of diligence in examination of parts to go ijito the engine.
Plaintiff further argues that another method for discovering the flaws like that found in the connecting rod in question is by use of X-ray but failed to produce any competent testimony to show that the use of X-ray would have timely discovered the defect in question. On the contrary, plaintiff’s witness Paasche testified on redirect examination that the magnaflux test is more efficient and sensitive, in effect, than the X-ray test.
Plaintiff further claims in his brief on appeal that defendant was negligent in not running the engine in question, and afterwards taking the engine apart and using magnaflux on the various parts, and ascertaining their freedom from defects which may have been latent before running the engine. But plaintiff failed to make any showing that experience had proven the practicability or standardization of such test. Plaintiff did show that fatigue cracks might develop by such tests. Under the showing in the instant case, it would be pure guesswork to say at what point in number of revolutions or hours the test, if made, would have timely disclosed the defect in question.
While plaintiff failed to make a showing of lack of diligence on the part of defendant, the defendant showed its diligence. Virgil Moser, defendant’s witness, aviation safety agent for Civil Aeronautics Administration, testified after examination of defendant’s operations:
“The method of inspection followed by Continental Motors in making these parts complies and conforms with standards required by Civil Aeronautics Administration; likewise the method of manufacturing or producing the parts.”
It is unnecessary to consider the testimony as to whether the breaking of the connecting rod or the breaking of the stud or the stud nut, was the original cause of the breakdown of the engine. That was a disputed, jury question. Assuming, in view of the verdict, that the breaking of the connecting rod was the beginning of the breakdown of the engine, still plaintiff has not shown negligence on the part -of defendant respecting the installing of the connecting rod or testing it before or after installing it in the engine.
We do not overlook the testimony of plaintiff’s witness Stevens referring to the break of the piston end of the connecting rod in question, “It is a flaw in the forging. * * * Definitely it was not cheeked. It would have shown up.” But the witness further testified:
“Q. What test do they make? * * *
“A. Well, I don’t understand what they make, but I understood they run parts as critical as this through an X-ray machine on an assembly line to show up flawed parts. Whether they do on anything as small as this I am not sure, but they should.
“Q. Do you know anything about the magnaflux process?
“A. No, I don’t.”
It is apparent that his statement, “It would have shown up,” is the expression of an opinion which has no basis on any knowledge of the witness and is without evidentiary force.
The case of MacPherson v. Buick Motor Co., 217 NY 382 (111 NE 1050, LRA1916F 696, Ann Cas 1916C 440, 13 NCCA 1029), was brought to recover damages because of personal injuries caused by reason of a defective wheel of an automobile sold by defendant to a dealer by whom the automobile was sold to plaintiff. The wheel was the product of another manufacturer. The wheel was defective and the defect was the cause of the injury to plaintiff. The defect of the wheel could have been discovered by reasonable inspection, which inspection was omitted.
The opinion in the MacPherson Case among other things stated as follows (p 394):
“It .[defendant] was a manufacturer of automobiles. It was responsible for the finished product. It was not at liberty to put the finished product on the market without subjecting the component parts to ordinary and simple tests. Richmond & Danville R. Co. v. Elliott, 149 US 266, 272 (13 Sup Ct 837, 37 L ed 728). Under the charge of the trial judge nothing more was required of it. The obligation to inspect must vary with the nature of the thing to be inspected. The more probable the danger the greater the need of caution.”
In the instant case the testimony shows that the defect could not have been discovered by reasonable inspection, thus the instant case is differentiated from the MacPherson Case.
The New York court further ruled in Smith v. Peerless Glass Co., Inc., 259 NY 292 (181 NE 576), at page 296, “There was, therefore, a duty to use reasonable care. Reasonable care consists among other things in making such inspections and tests during the course of manufacture and after the article is completed as the manufacturer should recognize as reasonably necessary to secure the production of a safe article,” with which rule the defendant in the instant case is shown to have complied.
It is unnecessary in this case to review exhaustively the authorities as to liability of manufacturer when negligence is shown because the negligence counted on in the instant case was not shown.
For failure to prove the negligence which plaintiff counted on, plaintiff was without a sufficient case to go to the jury.
The judgment appealed from is reversed. The case is remanded to the trial court for entry of a judgment for the defendant of- no cause of action. Costs of both courts to defendant.
Boyles, North, Dethmers, Butzel, Carr, Btjshnell, and Sharpe, JJ., concurred. | [
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North, J.
This appeal, belatedly submitted ■ at the present term of this Court, is from an order of the trial court made more than 3 years ago (July 2, 1948) amending a decretal provision as to the custody of a daughter, Lois Elaine Conheim, born of the parties hereto on July 23, 1941. In a decree of divorce obtained by the plaintiff wife December 26, 1946, custody of Lois, then approximately 5| years of age, was given to her mother, the defendant father being decreed the' “privilege of seeing and visiting said minor child, and of having said minor child in his temporary custody, at all reasonable times and places,” he to pay $25 a. week for the support and maintenance of the child. The parties then lived in Wayne county, Michigan. Plaintiff still lives there, but defendant at the time the present proceedings were before the trial court resided in Providence, Rhode Island. Each of the parties has remarried. In his sworn petition (filed April 15, 1948) defendant seeks to have the decree amended “by granting to this defendant custody of the minor child during entire summer vacation periods in addition to all reasonable righlfe of visita-' tion both to himself and his mother.” Plaintiff, through her counsel, filed an answer, not under oath, in opposition to modification of the custody provision contained in the original decree.
On June 3, 1948, a report was filed by the friend of the court, to whom the matter had been referred. The showing in support of defendant’s petition was an unverified letter from him addressed to the investigator for the friend of the court, dated May 13, 1948; and a subsequent letter to the investigator, the contents of which were sworn to by defendant, May 15, 1948. This latter communication pertains to defendant’s “financial condition,” his occupation as a sales agent working on commission with resulting annual earnings “estimated” to be “from $25,000 to $50,000.” The report of the friend of the court which followed contains statements of some uncontroverted facts concerning the parties to this case, such as their respective ages, residence, their marriage and divorce, and further contains the following :
“The plaintiff wife objects to her former husband taking the child to his home because she believes the child is too young to be away from her mother for such a long period of time and also states her former husband is an improper person to have the child. * * * Visitation in this case is impractical except under the conditions desired by the defendant, and it is believed equitable that his petition be granted.
“It Is Recommended that the decree be modified to provide that the defendant shall have the custody of the minor child for a period of 3 iueek.s during the summer vacation providing he pays (as defendant had offered to do) all transportation costs and makes proper arrangements to take the child to his home and return her to Detroit.”
Plaintiff filed objections to the foregoing recommendations of the friend of the court, asserting as reasons.in-support thereof the following:
. -“1. That the child is too young at the present time to be taken away from her mother and placed in the custody of a stepmother who is over 50 years of age and is a complete stranger to the child.
“2. That defendant is not a proper person morally to have custody of the child.
■' “3. That no investigation of the defendant’s home life and home conditions has been made by the friend of court.
“4. That defendant is a traveling salesman and would be on the road traveling most of the time during the said 3 weeks’ period.
“5. That the only reason defendant seeks custody of the child is to annoy and harass plaintiff because of plaintiff’s insistence that defendant live up to the provisions of the decree with reference to alimony.
“6. That plaintiff has always permitted defendant to visit the child and to take the child while in Detroit, and has lived up the terms- of the decree and objects to any modification thereof.”
Defendant also filed objections to the recommendations as made by the friend of the court. These objections in the main were confined to defendant’s claim that the period of 3 weeks during which he might have Lois in his custody was too short, asserting that if he were put to the expense of her transportation going to and returning from defendant’s home in Rhode Island, and “the care and upkeep of said child during said period * * * that it would be in furtherance of equity and for the welfare of said child to permit her to remain with him during-the entire summer vacation.”
Subsequently the trial court made, a further reference to the friend of the court to take testimony concerning the matter pending and to report thereon to the court. Testimony was taken before an assistant to the friend of the court, as a referee, after which the previous recommendations of the friend of the court were renewed. Thereafter, and on July 2, 1948, the circuit judge entered an order amending the original decree of divorce, as follows:
“That the defendant, Stanley B. Conheim, shall have the custody of the minor child, Lois Elaine Conheim, for 6 weeks during the summer vacation, and that he pay all transportation costs and make proper arrangements to take child to his home and return her to Detroit, and that pending said period, he shall not be required to pay the sum of $25 per week for the support of said child, as heretofore ordered.”
At the hearing before the referee defendant offered no testimony, hut under date of June 30, 1948, he made an affidavit in support of his petition, which affidavit was submitted incident to this hearing. Therein defendant denied plaintiff’s assertion that his present petition was motivated by a desire to be relieved of the provision in the divorce decree requiring him to pay $25 per week for Lois’ support; stated his objection to the adoption of Lois by plaintiff and her present husband to which he asserted he had been requested to consent; reiterated his love and affection for Lois and asserted that.she “is not a weak or sick child, but is just an ordinary sweet child who will receive the best of care and attention while with him,” and that in his opinion “the child will not be upset nor harmed, emotionally or otherwise, if she be permitted to remain with deponent for a reasonable period of her summer vacation.” Other than the foregoing he rested on the showing previously made in his behalf, as noted hereinbefore, and the cross-examination by his counsel of plaintiff’s witnesses.
At no time was defendant present for cross-examination in these proceedings. It is true that his presence for cross-examination was not demanded nor even suggested.by plaintiff’s counsel; but in the exercise of reasonable care and caution, especially in view of the direct conflict in the claims of these respective parties, examination of defendant might well have been required, incident to investigation by the friend of the -court.
In a contrary showing at the hearing before the referee, while plaintiff did not testify, she produced ■3 witnesses, each of whom apparently was impartial. The first of these witnesses was Dr. Donald Barnes, a practicing physician for 28 years who specialized, in pediatrics. Briefly, his testimony was to the effect that some time prior to the hearing and for a considerable period he had treated Lois Conheim, whom he had found to be “rather highly emotional,” and who because of the domestic trouble between her parents was afflicted with a sense of insecurity. He further testified: “The child’s emotions have been tremendously disturbed. * * * I believe that it would be highly deleterious to the child, to be divided up between 2 households; I don’t care whether it is for 1 week or 3 months.” Incident to his care of Lois, Dr. Barnes had referred her to the Children’s Center in Detroit, where there is a clinic operated to deal with “psychological behavior problems in children.”
Elizabeth Herrington, another witness in behalf of plaintiff, who was associated with the Children’s Center in Detroit, testified that her occupation or profession was “child guidance,” and that she was designated as a “psychiatric classification worker.” She testified to Lois having been brought to the Children’s Center for treatment, where witness saw the child, who “showed signs of being quite tense and nervous.” Further testimony of this witness, which we will not detail, was in accord with the testimony given by Dr. Barnes.
Plaintiff’s third witness was a teacher in the school attended by Lois and had observed her from the time she was in the first grade, about a year prior to the hearing. He testified: “I have had occasion to interview or talk with the child * * * (and) when I saw her, when she came into the first grade, she was full of a lot of fears that other children usually don’t have, and she also was having quite a time adjusting herself with children. * * * I knew then that there was emotional upset. * * * I would not recommend to the court that Lois he separated from her mother for a period of 3, 6 or 8 weeks to go some place with her father at this time. I would say at the present time that it would be harmful to Lois to do that, because she is just getting over this emotional upset; she is just beginning to adjust to people and situations and feels secure, and I think it would he a severe blow to the child’s emotional security to do it at this time.” The testimony of the 2 witnesses, to whom reference has previously been made, in substance was in accord with that just above quoted.
"We are mindful that the record appears to disclose that at the time testimony was taken, Lois had in a large degree, if not wholly, recovered from her “emotional upset”; but there was also testimony of its probable recurrence if the decretal provision as to her custody was modified as sought by defendant. Our review of this record, only the general purport of which is noted herein, brings the conclusion that the order of the circuit judge amending the provision of the original decree touching the custody of the minor child, Lois Conheim, should be vacated.. A decree so providing may be entered .in tliis Court, with costs to appellant; and the .case will he remanded to the circuit court with .jurisdiction to hear and adjudicate any further proceedings therein. . ' .
Reid, C. J., and Bowles, Dethmers, Butzel, Carr,Bushnell, and Sharpe, JJ., concurred. | [
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Per Curiam.
Plaintiff appeals as of right from a directed verdict of no cause of action which was granted pursuant to defendant’s motion at the close of plaintiff’s proofs. Plaintiff filed a negligence and breach of warranty claim stemming from the death of Bruce Goldman who was killed while operating a forklift owned by defendant Phantom Freight, Incorporated. The forklift tipped over, crushing the decedent’s skull under the forklift’s overhead guard. Plaintiff’s complaint alleged that defendant was negligent in the following respects:
A. Furnishing a vehicle for use without ascertaining that it was safe to operate for the purposes for which it was intended to be used;
B. By failing to inspect and test the vehicle in question in order to determine that it was safe to operate for the purposes for which it was intended to be used;_
C. Failing to exercise due care in the premises;
D. Failing to exercise due care to warn the users and operators of said vehicle as to the hazards and dangers involved in the use of said vehicle and failing to provide necessary instructions as to its safe use.
Plaintiff also alleged that defendant breached implied and express warranties that the forklift was not defective and was reasonably safe for its intended use in that it lacked necessary safety devices, warnings and instructions.
At the time of the accident, the decedent’s employer Metro Lift Truck, which engaged in the repair and maintenance of forklift vehicles, shared warehouse space with defendant pursuant to a rental agreement. The respective owners also informally agreed to some mutual use of each other’s equipment and employees as needed. Accordingly, defendant’s forklift was often used by Metro’s employees to remove trash or perform tasks in the course of Metro’s business. The forklift was kept parked in the warehouse with the keys in it.
Although Metro had no formal training program, decedent was learning forklift mechanics by working along with Metro’s other employees. In the course of his employment, decedent received some instruction on the operation of forklifts and occasionally used defendant’s forklift to remove trash from the building. Although he had no forklift operator’s license, decedent was capable, in his employer’s opinion, of using a forklift for that purpose. There was no evidence that defendant’s president was ever made aware of such use by decedent. However, decisions regarding use of the forklift by Metro’s employees were apparently left entirely to the discretion of one of Metro’s partners, Dayton Ashby.
On December 4, 1980, decedent was instructed by defendant’s president, Frank Hardy, to remove a large piece of paint-saturated cardboard lying on the floor. Although there was some inconsistent testimony concerning the cardboard’s size and weight, it weighed at most fifty pounds. In Hardy’s opinion, there was no reason that anyone would need a forklift to pick it up. After giving these instructions, Hardy left the area. Decedent, apparently on his own initiative, proceeded to use defendant’s forklift to remove the cardboard. Although there were no witnesses to the accident, the vehicle tipped over as decedent was turning a corner outside the warehouse, killing him instantly. Representatives of decedent’s employer were not present at the time.
At trial, plaintiff offered proof of the forklift’s unfitness through the deposition testimony of an expert, John B. Sevart. In essence, Sevart’s testimony was to the effect that the forklift was unfit because it was equipped with an overhead guard without any concomitant restraining devices to prevent persons from being thrown under the guard in the event of a tip-over.
During opening arguments, there were objections by both attorneys to statements made in the course of the arguments. As a result, counsel and the trial judge met in chambers for an off-the-record discussion. Following opening arguments, plaintiff moved for a mistrial, based upon the discussion in chambers. The motion was denied.
At the close of plaintiff’s proofs, defendant moved for a directed verdict predicated upon the absence of any legal duty owed to decedent with respect to the design of the forklift and upon plaintiff’s failure to establish the existence of a design defect. The trial court granted the motion, essentially basing its opinion upon the absence of any legal duty on the strength of the proofs submitted. In response, plaintiffs counsel renewed his motion for a mistrial on the básis of bias. Plaintiffs motion was again denied. The propriety of these two rulings by the trial court constitute plaintiffs issues on appeal.
A defendant is entitled to a directed verdict where a plaintiff has failed to establish a prima facie case. However, directed verdicts, particularly in negligence cases, are viewed with disfavor. When a fact question is presented upon which reasonable persons could reach differing conclusions, the trial judge may not take the question from the jury. In deciding whether the trial court erred in entering a directed verdict, we review all the evidence presented to determine whether a question of fact existed. In so doing, we view the evidence in a light most favorable to the nonmoving party, granting him every reasonable inference and resolving any conflict in the evidence in his favor. If the evidence viewed in this manner establishes a prima facie case, we must reverse the trial court’s grant of a directed verdict. Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975). Cody v Marcel Electric, 71 Mich App 714, 717; 248 NW2d 663 (1976), lv den 399 Mich 851 (1977).
Factually, the court found that it was unreasonable for defendant to foresee decedent’s use of its forklift. The court also found that, at best, the agreement between defendant and Metro was only an implied permission to use defendant’s forklift in the course of Metro’s business. Under these circumstances, the court, therefore, concluded that, as a matter of law, defendant owed no duty to decedent in tort and that no implied warranty of fitness existed in contract.
The testimony provided no evidence that decedent’s use of the forklift was at defendant’s direc tion. Defendant’s president testified that he merely asked decedent too throw out a piece of cardboard. There is no evidence to suggest that defendant was aware that decedent would use the forklift to carry out this instruction or, indeed, aware that decedent had ever used the forklift for any purpose at all.
However, there was testimony of an agreement between defendant and decedent’s employer which allowed them to use each other’s equipment and employees as needed. Nonetheless, the trial court concluded that "the proofs do not come even close to establishing [a bailment] arrangement.” We disagree and find that plaintiff's proofs were sufficient to establish a prima facie case on the question of a relationship which might give rise to an implied warranty-of fitness for a particular purpose.
2 Restatement Torts, 2d, § 388, pp 300-301, concerning chattels known to be dangerous for their intended use, provides:
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Further, where a bailment for mutual benefit is established, 8 Am Jur 2d, Bailments, § 163, pp 895-896, provides the general rule where a chattel is let for hire:
While in bailments for gratuitous use the bailor is only liable for injuries due to his failure to disclose latent defects of which he was aware, it is otherwise where there is compensation for the use and the bailment is for the mutual benefit of both parties; in such a case his obligation is correspondingly enlarged. This distinction is fundamental and seems to be generally recognized.
There is no question that if a bailor for hire has actual knowledge of defects in, or dangerous qualities of, the subject of bailment that are not known to the bailee and may result in injury to him, he is bound to disclose such defects or dangerous qualities to the bailee and may be held liable to the latter for damages due to failure to make such disclosure. There is some support for the broad proposition that a bailor for hire has the duty to deliver the thing hired in proper condition to be used as contemplated by the parties, and that for failure to do so he will justly be held liable for damage directly resulting to the bailee from its unsafe condition. It may be stated generally,, however, that while a bailor for hire is not an insurer against injuries to his bailee from defects in the article bailed, whether discoverable or not, he is held to a high degree of care to make an examination of the chattel before letting it, and has frequently been regarded under the circumstances shown as impliedly warranting that it is fit for the purpose known to be intended, so that for personal injuries that result on account of a breach of such warranty he may be held liable.
"Bailment,” in its ordinary legal signification, imports the delivery of personal property by one person to another in trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully executed and the property returned or duly accounted for when the special purpose is accomplished. In re George L Nadell & Co, Inc, 294 Mich 150, 154; 292 NW 684 (1940); National Ben Franklin Ins Co v Bakhaus Contractors, Inc, 124 Mich App 510, 512, n 2; 335 NW2d 70 (1983). Phrased another way, it is a relationship wherein a person gives to another the temporary use and possession of property other than money, the latter agreeing to return the property to the former at a later time. Godfrey v City of Flint, 284 Mich 291, 295-296; 279 NW 516 (1938).
In this case, while the facts might, as defendant asserts, point not to the creation of a bailment but merely to a license to use defendant’s equipment, the question was one of fact for the jury to determine. We agree with defendant that neither Jones v Keetch, 388 Mich 164; 200 NW2d 227 (1972), nor Hill v Harbor Steel & Supply Corp, 374 Mich 194; 132 NW2d 54 (1965), cited by plaintiff, are squarely on point in support of plaintiff’s position. Still, we believe that the judge erroneously usurped the jury’s fact-finding function by determining that plaintiff’s proofs failed, as a matter of law, to establish a bailment. A factfinder could find that a bailment was created by these facts.
Additionally, contrary to defendant’s argument, if the relationship is found by the factfinder to be one of a bailment for hire, under the Restatement Torts 2d, defendant could be held liable for the alleged design defect in the forklift. Although there was testimony that the propensity of the forklift to tip over at low speeds in a turn was not something that would be recognized by a typical industrial laborer with no special training, and although Frank Hardy specifically testified that he did not consider the subject forklift dangerous, the decedent’s father testified that prior to decedent’s death he once saw Hardy almost tip over the same forklift while executing a turn. Thus, it was a question for the factfinder to determine whether Frank Hardy, as owner of defendant company, had actual knowledge of the alleged defect. If the factfinder determined that a bailment existed and that defendant had actual knowledge of the alleged design defect and had no reason to believe that the decedent would realize the propensity of the forklift to tip over while turning and failed to exercise reasonable care to inform the decedent of its dangerous condition, then the factfinder could find that defendant breached an implied warranty of fitness in so bailing the forklift.
Addressing plaintiffs negligence claim, the trial court focused on the element of duty:
Now as to this concept of duty owed to [sic] the Defendant to the deceased, the Court cannot recall any testimony which established any relationship between the Defendant and the deceased. In fact all matters considered there was no testimony that Plaintiff was in any way in such a relationship with the Defendant.
"Duty” is a question solely for the court to decide and comprehends whether a defendant is under any obligation to plaintiff to avoid negligent conduct. Moning v Alfono, 400 Mich 425, 436-437; 254 NW2d 759 (1977), reh den 401 Mich 951 (1977). "Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person.” Id. at 438-439. As such, it depends in part on foreseeability — whether it is foreseeable that the actor’s conduct may create a risk of harm to the victim. Id. at 439.
A review of the evidence presented convinces us that the trial court erred in concluding that defendant owed no duty to decedent. While it is true that defendant had no direct involvement in decedent’s use of the forklift, such use was not unforeseeable. Defendant’s president testified that his understanding of his agreement with Metro was that Metro’s employees could use the forklift at the discretion of Metro’s owners. Dayton Ashby, one of the owners, testified that decedent, in the course of his employment, had occasion to use defendant’s forklift to carry out trash. In Ashby’s opinion, decedent was qualified to use the forklift for that purpose. The evidence indicates that defendant’s president may have been unaware of decedent’s prior use or of Dayton Ashby’s assessment of decedent’s ability to use a forklift. However, given his professed understanding of the agreement, the potential for such use on this specific occasion was foreseeable under the circumstances and thus gave rise to a duty as a matter of law.
Defendant argues that, even if a duty existed, the court’s grant of a directed verdict was proper because plaintiff presented no data or other factual evidence concerning the magnitude of the risks involved, the utility or relative safety of plaintiffs expert’s proposed alternatives, or evidence otherwise concerning the unreasonableness of risks arising from defendant’s conduct. In this regard, defendant points to Owens v Allis-Chalmers Corp, 414 Mich 413; 326 NW2d 372 (1982), where our Supreme Court addressed the liability of a manufacturer in a forklift tip-over case that was very similar to the instant case. We think that Owens is distinguishable from the instant case.
The "expert” in Owens was an independent consulting physicist who had worked for General Motors for twelve years in the area of vehicle safety. Summarizing his qualifications, the Supreme Court said:
He had never designed a forklift, nor any part of one, and had not worked in conjunction with their manufacture. He had operated one during a summer about 30 years prior to trial, but not since. Apart from preparing for this litigation, the record is not clear concerning whether any of his work in the area of vehicle safety had related specifically to forklifts. He testified, however, that a forklift was just another type of vehicle to which much of his work on vehicles in general would be applicable. [414 Mich 418.]
In this case, by contrast, John Sevart, plaintiffs expert, a licensed professional engineer, had been involved with forklifts as a member of an industry standards committee. He testified that he had extensive experience in accident investigation involving forklifts and had investigated approximately ninety forklift accidents. He was active in development of operator protection devices or restraints that would protect operators in the event of upsets. Sevart testified that the forklift involved in the decedent’s death was defective and unreasonably dangerous for its foreseeable uses, as it had an overhead guard which created a very serious risk of injury and death to operators in foreseeable tip-over situations, since the vehicle was not equipped with restraints for the operator. He testified to various types of restraints such as seatbelts or captain’s chair-type seats that could be used to prevent serious injury but which were not used on the vehicle in question.
This testimony coupled with the testimony of decedent’s employer, Dayton Ashby, whose business was repairing forklifts and who stated that, subsequent to the accident, he repaired forklifts that were equipped with seatbelts, and the testimony of decedent’s father, suggesting that Frank Hardy was aware of the tip-over potential of the forklift, combined to set forth ample evidence to defeat the motion for a directed verdict. Plaintiffs expert’s testimony exhibits none of the deficiencies that the expert testimony in Owens did. Defendant’s argument to the contrary is without merit.
Accordingly, we conclude that the trial court erred in granting defendant’s motion for a directed verdict. Plaintiffs proofs established a prima facie case of negligence and breach of implied warranty. Because the trial judge has retired and is no longer on the bench, the new trial in this case will be before a different judge and we need not address plaintiff’s arguments on the bias and mistrial issue.
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Gribbs, J.
Defendant appeals from an order of the Wayne Circuit Court which reduced by fifty percent the child support arrearage which accrued while defendant was incarcerated.
On August 18, 1975, plaintiff filed for divorce in Wayne Circuit Court. The next day an ex parte interim order was entered giving plaintiff custody of the parties’ two minor children and ordering defendant to pay child support in the amount of $40.50 per week for each child.
On August 23, 1976, defendant, who had been a Detroit police officer, began serving a prison term for a plea-based conviction of second-degree murder. On October 22, 1976, while defendant was in prison, the judgment of divorce was entered. In the judgment, plaintiff was granted custody of the two children and defendant was ordered to pay child support in the amount of $35 per week for each child. The judgment credited defendant with an advance payment of $3,300 toward his child support obligation in lieu of his equity in the marital home. Defendant apparently had no other assets.
Defendant made no other payments and plaintiff supported the two children without the assistance of public funds while defendant was in prison. Defendant was released from prison on July 19, 1983, after serving a term of almost seven years. Defendant had no income while in prison. Almost immediately after his release from prison, defendant obtained employment and commenced making his child support payments.
On May 17, 1984, the Wayne County Friend of the Court issued a petition to show cause alleging that defendant had accumulated an arrearage of $24,555 in his support payments. On October 23, 1984, the friend of the court recommended that the arrearage that accumulated during defendant’s incarceration be cancelled. Defendant filed a petition on February 4, 1986, seeking to cancel the outstanding child support arrearage. After a hearing, the trial court, on March 12, 1986, ordered that the arrearage which had accumulated while defendant was in prison be reduced by fifty percent. It is from this order that defendant brings this appeal.
This is an issue of first impression in Michigan. Defendant contends that a parent who is imprisoned for a crime other than nonsupport (or for civil contempt for failure to pay the same) should not be required to pay a child support arrearage which accumulated while the parent was incarcerated unless it is affirmatively shown that he or she has the income or assets to make such payments. While plaintiff appears to concede that defendant had no assets or income with which to pay the arrearage while in prison, she contends that defendant’s incarceration was the result of a voluntary act for which he knew the consequences and thus to require defendant to pay less than fifty percent of the arrearage which accrued during his impris onment would allow defendant to benefit from his own wrongful acts.
Each party cites to conflicting authority in other jurisdictions. After giving careful consideration to this matter, we adopt the view expressed in In the Matter of the Marriage of Edmonds and Edmonds, 53 Or App 539; 633 P2d 4 (1981), that where a noncustodial parent is imprisoned for a crime other than nonsupport that parent is not liable for child support while incarcerated unless it is affirmatively shown that he or she has income or assets to make such payments. Id., 542. Accord, Foster v Foster, 99 AD2d 284; 471 NYS2d 867 (1984), Clemans v Collins, 679 P2d 1041 (Alas, 1984). See also Heilman v Heilman, 95 Mich App 728, 733; 291 NW2d 183 (1980), lv den 409 Mich 893 (1980). Cf. Ohler v Ohler, 220 Neb 272; 369 NW2d 615 (1985). We note that this rule would not apply where the parent is jailed for civil contempt for failure to pay child support. Edmonds, supra. See Cullimore v Laureto, 66 Mich App 463; 239 NW2d 409 (1976).
We find persuasive and quote with approval the well-reasoned dissent of the Chief Justice of the Nebraska Supreme Court in Ohler, supra. In urging his colleagues to adopt the reasoning of Edmonds, he stated:
We obviously recognize that the child support judgment will not be paid during the time that the parent is incarcerated, and therefore the judgment will simply accrue with interest. Such a situation provides little or no benefit to anyone. The children do not receive the benefit of the proceeds during the time they require the funds, and the parent is simply confronted with a large, nondischargeable judgment upon release from prison, at a time when the prospect of paying a large judgment with interest is extremely unlikely. At cur rent interest rates the judgment will double every 6 or 7 years. How this can be in the children’s best interest is difficult for me to imagine.
I am further persuaded by the reasoning of the Oregon court which concludes that a court should not be permitted to impose a judgment and itself make the payment of that judgment impossible. We would not permit such a result to exist in any other situation.
In dissenting I do not for a moment ignore the fact that the parent against whom the judgment runs has been convicted of violating a law and has brought the problem into being by reason of his own act. Nevertheless, the violation of the criminal law was a matter which the State addressed, and for which the individual is now paying the penalty. To impose an additional penalty is not appropriate. [Ohler, 277-278.]
As we indicated previously, if an incarcerated parent with an arrearage has assets or income while in prison, then those assets or the income may properly be applied against the outstanding child support obligation. We conclude that a noncustodial parent’s support arrearage which accrued while the parent was imprisoned should be discharged unless there is some showing that the parent became incarcerated in order to avoid his support obligation. Edmonds, supra, 542-543. There being no such showing in the case at bar, the trial court erred in not granting defendant’s motion to cancel his child support arrearage which had accrued while he was imprisoned.
Reversed. No costs. | [
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Per Curiam.
Plaintiff Jerry Killian appeals by leave granted from an order of summary disposition in favor of defendants. We affirm.
Plaintiff filed a complaint on November 13, 1984. In his amended complaint, plaintiff alleged that he was arrested on or about October 11, 1979, and charged with the criminal offense of delivery of a controlled substance. The arrest resulted from the efforts of defendant law enforcement officers, all of whom were employed by one of the following agencies: the Department of State Police, the United States Drug Enforcement Administration, the Flint Police Department, or the Saginaw County Police Department. In the ensuing criminal proceedings, the circuit court denied Killian’s motion raising an entrapment defense, and Killian was thereafter convicted after a guilty plea on January 20, 1981. On June 10, 1982, this Court reversed the conviction on the ground of entrapment. On November 10, 1982, the Supreme Court denied the prosecutor’s application for leave to appeal. See People v Killian, 117 Mich App 220; 323 NW2d 660 (1982), lv den 414 Mich 944 (1982).
The amended complaint stated two counts, which were entitled: (1) civil conspiracy and (2) infliction of emotional distress. Count i alleged that defendants acted jointly to entrap plaintiff, that defendants conspired to entrap plaintiff, that defendants manufactured or instigated the crime for which plaintiff was convicted, and that defendants’ acts were designed to accomplish either an unlawful purpose or a lawful purpose by unlawful means. As the basis for his damages, plaintiff alleged deprivation of his liberty and emotional, mental and financial injury. In Count ii, plaintiff alleged that the same acts by defendants constituted outrageous conduct that caused plaintiff severe emotional distress.
The circuit court dismissed the entire complaint. Count i was held not to state a claim upon which relief can be granted because its allegations were inadequate to raise the tort of malicious prosecution. The court denied plaintiff’s request to amend Count i because the untimeliness of the amendment would prejudice defendants. Count ii was deemed to be barred by the statute of limitations.
On appeal, plaintiff argues that the allegations of Count i were adequate to state a claim for malicious prosecution. Although not clearly indicated by the circuit court, we assume that the disposition of this count was pursuant to either GCR 1963, 117.2(1) or MCR 2.116(C)(8). Under either provision, the motion tests the legal basis of the complaint with reference to the pleadings alone. The allegations of the complaint and all fairly drawn inferences from those allegations are assumed to be true. The test is whether the claim is so unenforceable as a matter of law that no factual development could possibly justify recovery. See Kekel v Allstate Ins Co, 144 Mich App 379, 381; 375 NW2d 455 (1985), lv den 424 Mich 878 (1986). If it appears that a pleading deficiency can be cured by amendment of the complaint, then the court should grant the plaintiff leave to amend. GCR 1963, 117.3; MCR 2.116(I)(5).
The elements of a malicious prosecution claim are (1) a termination of prior proceedings (instigated by defendant) favorably to the plaintiff, (2) the absence of probable cause for the proceedings, and (3) malice on the part of the defendant. King v Arbic, 159 Mich App 452, 465; 406 NW2d 852 (1987). Our review of the complaint in the instant case indicates that the draftsman failed to plead the elements of either lack of probable cause or malice. Nevertheless, it appears that the pleading deficiency may have been amenable to cure by amendment.
However, we conclude that the claim of malicious prosecution is deficient for another reason— the facts pleaded by the complaint establish that it is legally impossible for plaintiff to prove that defendants lacked probable cause. More particularly, plaintiff’s guilty plea prior to his acquittal on the ground of entrapment establishes conclusively that defendants had probable cause for their role in plaintiff’s criminal prosecution.
In arriving at this conclusion, we note that the successful assertion of an entrapment defense neither negates nor establishes probable cause. Entrapment is entirely collateral to the issues of the defendant’s guilt or innocence. The entrapment defense reflects a judicial policy to deter overreaching governmental conduct. People v D’Angelo, 401 Mich 167; 257 NW2d 655 (1977). We wish to make clear that our holding is not based on the fact that defendant obtained an acquittal by means of the entrapment defense.
The general rule is that a guilty plea is conclusive evidence of probable cause unless that plea was induced by fraud or unfair means. Piechowiak v Bissell, 305 Mich 486; 9 NW2d 685 (1943). See also Nawrocki v Eberhard Foods, Inc, 24 Mich App 646, 650-651; 180 NW2d 849 (1970), lv den 389 Mich 753 (1972). In the instant case, plaintiffs complaint does not allege that his plea was in any way improperly obtained or induced. Presumably, the plea taking was conducted in accordance with GCR 1963, 785.7, now MCR 6.101(F), which contains procedural safeguards for the accuracy and voluntariness of the plea. Therefore, the dismissal of the malicious prosecution claim was proper because the claim failed to state a legal basis upon which relief can be granted. Although the circuit court order dismissing Count i did not reach this issue, it is well settled that this Court will not reverse a correct decision reached by the trial court for the wrong reason. Buckeye Union Fire Ins Co v Detroit Edison Co, 38 Mich App 325, 332; 196 NW2d 316 (1972).
With respect to Count ii, plaintiff argues that his claim for intentional infliction of emotional distress was not barred by the statute of limitations. Plaintiff argues that the period did not begin to run until the November 10, 1982, decision of the Supreme Court denying leave to appeal this Court’s decision reversing plaintiffs criminal conviction. The period of limitations applicable to a claim for intentional infliction of emotional distress is three years, as provided by MCL 600.5805(8); MSA 27A.5805(8). Mosley v Federal Department Stores, Inc, 85 Mich App 333, 338-340; 271 NW2d 224 (1978). The circuit court ruled that the period of limitations began to run at the time of plaintiffs October, 1979, arrest date and that the claim for intentional infliction of emotional distress, first filed more than five years thereafter, was untimely. We agree with the circuit court ruling that Count n was by the statute barred.
Generally, a cause of action does not accrue until all elements of the cause have occurred and can be pleaded in a proper complaint. Parisi v Michigan Townships Ass’n, 123 Mich App 512, 514; 332 NW2d 587 (1983), lv den 417 Mich 1100.16 (1983). The time of accrual triggers the running of the period of limitations. MCL 600.5827; MSA 27A.5827. The determination whether a motion for accelerated judgment asserting a statute of limitations should be granted requires the court to accept as true all well-pled allegations of the complaint and to construe those allegations favorably to the plaintiff. Arent v Hatch, 133 Mich App 700, 704; 349 NW2d 536 (1984), lv den 419 Mich 939 (1984).
The elements of a properly pled claim for intentional infliction of emotional distress are (1) extreme and outrageous conduct perpetrated by the defendant, (2) intent or recklessness on the part of the defendant, and (3) causation of (4) severe emotional distress sustained by the plaintiff. Roberts v Auto-Owners Ins Co, 422 Mich 594, 602; 374 NW2d 905 (1985). However, when a complaint alleges that a police officer’s conduct amounts to no more than an insistence on a "legal right in a permissible way,” the claim fails because the elements of outrageous conduct and a reckless or intentional state of mind are deficient. Cebulski v City of Belleville, 156 Mich App 190, 196; 401 NW2d 616 (1986), lv den 428 Mich 856 (1987). Therefore, in order to sustain plaintiff’s claim, it was necessary to show that defendants’ conduct giving rise to an entrapment defense exceeded the bounds of what the police could legally do.
We conclude that an actionable claim accrued in October of 1979 because the events relied upon to establish all elements of the emotional distress claim had already occurred at that time. Plaintiff’s claim that the unlawful nature of the arrest could only be established by the subsequent criminal proceedings is without merit. Assuming that the police conduct was in fact extreme, outrageous, and reckless or intentional, that conduct was in every way completed after plaintiff’s arrest. The subsequent criminal proceedings giving rise to plaintiff’s acquittal could not have altered or enhanced that conduct. Undoubtedly, the ultimate resolution of the entrapment issue would have had a significant bearing if this case had proceeded to trial, but the criminal proceedings did not form part of the basic transaction giving rise to plaintiff’s civil claim. Unlike a claim for malicious prosecution, the outcome of the criminal proceedings was not an element of a claim for intentional infliction of emotional distress. Cf. Parisi, supra. The question presented is more analogous to a claim for false imprisonment, which accrues at the time of the plaintiff’s release from detention. Nawrocki, supra, p 649.
Accordingly, the circuit court order dismissing both counts of plaintiff’s complaint was not in error.
Affirmed.
In Tomita v Tucker, 18 Mich App 559, 563; 171 NW2d 564 (1969), lv den 383 Mich 769 (1970), it was held that the assertion of an entrapment defense by the civil plaintiff requires as a matter of law the conclusion that the police defendants had probable cause. This holding is based on the theory that the entrapment defense assumes that the criminal defendant (the civil plaintiff) is guilty as charged. See Gedratis v Carroll, 247 Mich 141, 145; 225 NW 625 (1929). This theory is not in accord with more recent pronouncements of our Supreme Court. In D’Angelo, supra, p 179, the Court noted that the entrapment defense is "irrelevant” to "an assessment of guilt or innocence.” Accordingly, we decline to base our decision on the holding in Tomita. | [
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Weaver, J.
Following a bench trial, defendant was convicted of larceny from a person, MCL 750.357; MSA 28.589, and was sentenced to from three to ten years in prison. On appeal, this Court remanded to allow defendant to move for resentencing based on the limited issue of whether the trial court had adequately explained its reasons for departing from the sentencing guidelines. At the hearing on remand, the trial judge stated that he could not articulate any better his reasons for departing from the guidelines and, in order to obey the directive of this Court, resentenced defendant to five years’ probation subject to certain conditions, including the condition that defendant serve the first eleven months of his probation in the Wayne County Jail with credit for time served. From this new sentence defendant moves for peremptory reversal. We deny the motion to reverse, and affirm the trial court’s second sentence.
Under his first sentence of from three to ten years, defendant had already served 138 days and due to good behavior was scheduled to be sent to a half-way house where he could visit his family and secure employment. Therefore the new sentence effectively requires defendant to serve approximately six months more jail time than would have been required had the resentencing appeal not succeeded.
However, it is undisputed that defendant’s second sentence of five years’ probation with eleven months in jail was lighter than his first sentence. Even had the sentence been a harsher one, absent an affirmative showing of vindictiveness against the defendant, it was within the sentencing judge’s authority to impose a harsher sentence on resentencing following a successful appeal. See People v McNeal, 156 Mich App 379, 381-382; 401 NW2d 650 (1986). Defendant has not demonstrated an affirmative showing of vindictiveness on the part of the resentencing judge in this case.
Hence we find no additional punishment to flow from imposition of the second sentence and no violation of defendant’s due process rights for exercising a right to appeal. Merely that the sentence is not to defendant’s liking is insufficient reason to overturn the trial court’s sound judgment in following the order of the Court of Appeals on resentencing.
Affirmed. | [
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Per Curiam.
These cases are consolidated for purposes of appeal. Plaintiff instituted suit in Wayne Circuit Court against the City of Detroit and the City of Detroit Public Lighting Department for injuries he sustained while working on a light pole along Woodward Avenue in the City of Detroit. The circuit court granted defendant’s motion for summary disposition. Plaintiff also instituted suit for the same injuries in the Court of Claims against the Michigan Department of Transportation. The Court of Claims granted this defendant’s motion for summary disposition as well. Plaintiff now appeals both adverse decisions as of right.
The essential facts of this case are not in dispute. Plaintiff was injured on October 26, 1982, when the twenty-five- to thirty-foot metal light pole he was painting collapsed, causing him to fall approximately twenty-five feet to the pavement. At the time of the accident, plaintiff was an employee of Joe Rosenblum Painting and Decorating Company. Rosenblum was painting the light poles and fire hydrants in the Palmer Woods neighborhood under a contract with the Palmer Woods Civic Association. The City of Detroit gave its prior consent and approval to this project and provided them with some of the materials.
The light pole was located in the City of Detroit, on a grass berm between Woodward Avenue and a city-owned sidewalk. Woodward Avenue is under the jurisdiction of the Michigan Department of Transportation. The sidewalk is under the jurisdiction of the City of Detroit, which also owns the grass berm and maintains the light poles.
The metal light pole was twenty-five to thirty feet high and segmented. Plaintiff leaned a thirty-two-foot ladder against the pole, and tied the ladder to the top of the pole. He placed the foot of the ladder on the pavement on Woodward Avenue, and then climbed to the top of the pole and began painting. He then heard a crack as the pole broke at its base, throwing plaintiff to the ground. When he fell, he suffered severe injuries to his ankles, including the ruin of his right ankle joint, rendering him disabled.
Plaintiff’s first amended complaint against the lighting department alleges four counts, all principally concentrating on the claim that the light pole was weakened because of severe corrosion, thus presenting a hazard to persons traveling on Woodward Avenue or on the sidewalk. Plaintiff alleged that defendant was negligent in erecting, maintaining, and failing to inspect the corroded light pole. Specifically, plaintiff alleged negligence and breach of warranty counts, public nuisance, and breach of duty under the highway maintenance statute.
Defendant city moved for summary judgment pursuant to the former GCR 1963, 117, on the ground that plaintiff’s claim was barred by the governmental immunity statute, MCL 691.1407; MSA 3.996(107). Following a hearing, the court granted the city summary disposition on Counts i, ii, and iv, pursuant to MCR 2.116(C)(10), no genuine issue of material fact. The court concluded that plaintiff’s well-pled allegations, taken as true for purposes of the motion, did not come within MCL 691.1402; MSA 3.996(102), the defective highway exception to the governmental immunity statute. The court also granted summary disposition on Count hi, pursuant to MCR 2.116(C)(8), failure to state a claim upon which relief can be granted. The court found that plaintiff, as a matter of law, had failed to plead an intentional nuisance cause of action.
As stated above, plaintiff’s lawsuit in the Court of Claims was also dismissed on the basis of summary disposition. The allegations against the Michigan Department of Transportation, which is responsible for maintaining Woodward Avenue, a state trunk line highway, were similar to those made against the other defendants in Wayne Circuit Court. The court determined that the state had no legal duty to erect, install, repair, maintain or inspect street lighting poles along Woodward Avenue. The court thus held that plaintiff had failed to state a claim for which relief could be granted under MCL 691.1402; MSA 3.996(102) and MCL 247.651(b); MSA 9.1097(l)(b).
We first consider whether the Court of Claims erred in dismissing plaintiffs claims against mdot. Plaintiff has made no argument on appeal why the court’s determination that mdot had no duty regarding the light pole should be reversed. An issue is abandoned on appeal when the appellant has cited no statute, case law, or court rule to support its position. In re Futch, 144 Mich App 163, 166; 375 NW2d 375 (1984). Not only has plaintiff not cited any authority to question the ruling of the court, his argument on appeal is that the City of Detroit and its public lighting department are the only proper defendants. Since plaintiff and defendant mdot agree that mdot is not liable, we find no basis for review of this question.
We next consider whether the circuit court erred in determining that plaintiffs claim did not come within an exception to governmental immunity. It should be noted first of all that while plaintiffs complaint has named the City of Detroit Public Lighting Department as a defendant, as well as the City of Detroit, the department is not a separate legal entity against which a tort action can be directed. Davis v Chrysler Corp, 151 Mich App 463; 391 NW2d 376 (1986). Therefore, reference to the defendant in this analysis is to the City of Detroit.
When confronted with a motion for summary disposition based on governmental immunity, the burden is upon a plaintiff to plead facts in avoidance of immunity. Furness v Public Service Comm, 100 Mich App 365; 299 NW2d 35 (1980). Where a plaintiff has failed to plead such facts, the appropriate summary disposition is for a failure to state a claim upon which relief can be granted. Potes v Dep’t of State Highways, 128 Mich App 765, 770; 341 NW2d 210 (1983). However, where a plaintiff has pled facts in avoidance of immunity, as in the instant case, summary disposition is appropriate when there is no genuine issue of material fact. Id., 770. The latter was a test applied to three of plaintiffs counts here, as plaintiff alleged claims to come within the defective highway exception. The circuit court found as a mater of law, however, that defendant had no duty to maintain the light pole under the defective highway exception to the governmental immunity act. We find that this determination was erroneous.
In Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), the Michigan Supreme Court recognized four statutory exceptions to governmental immunity as set forth in the governmental immunity act. Id., 593-594. Three of these exceptions, as stated in MCL 691.1405; MSA 3.996(105), MCL 691.1406; MSA 3.996(106) and MCL 691.1413; MSA 3.996(113), are not at issue in the instant case. The fourth, the defective highway exception, MCL 691.1402; MSA 3.996(102), provides in pertinent part:
Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damage suffered by him from such governmental agency. . . . The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel.
"Highway” is defined to include
every public highway, road and street which is open for public travel and shall include bridges, sidewalks, crosswalks and culverts on any highway. The term "highway” shall not be deemed to include alleys. [MCL 691.1401(e); MSA 3.996(101)(e).]
It is undisputed here that the defective highway exception applies not only to the state and its counties, but also to municipal corporations, such as the City of Detroit, MCL 691.1401(a) and (d); MSA 3.996(101)(a) and (d). It is also undisputed that Woodward Avenue is a state trunk line highway. The circuit court correctly recognized that MCL 250.61; MSA 9.901 expressly relieves defendant of legal liability for state trunk line highways. See Beyer v Fraternal Order of Eagles, Aerie No 668, 123 Mich App 492, 497; 333 NW2d 314 (1983). The court therefore correctly determined that plaintiffs injury did not arise out of defendant’s failure to keep the highway maintained in that Woodward Avenue is not in defendant’s jurisdiction.
The circuit court also analyzed whether defendant’s activities with regard to the sidewalk fell within the immunity exception. Taking the allegations in a light most favorable to plaintiff, the court assumed that defendant had jurisdiction over the sidewalk. In so doing, the court correctly noted that Jones v City of Ypsilanti, 26 Mich App 574; 182 NW2d 795 (1970), stated that a city can have jurisdiction of a sidewalk where the state has jurisdiction of the street. The court distinguished Jones in the following terms:
However, the alleged facts in the instant case are unlike the facts in Jones, Id., where plaintiff tripped on a defective area of sidewalk which was open for public travel. Plaintiff Michonski’s injury is not alleged to have occurred on an area open for public travel, as required by §§ 1 and 2 of the act;. MCL 691.1401, 691.1402, respectively.
In his supplemental brief responsive to the instant motion, plaintiff has admitted that the lamp post was located on a berm. Nowhere is it alleged that the lamp post was on the sidewalk. Outside the area of a sidewalk open for public travel, the § 2 maintenance duty applies only to traffic signs which regulate the flow of traffic. Ovist v Dept of Highways, 119 Mich App 245 [326 NW2d 468] (1982); Tibor v State Highway Dept, 126 Mich App 159 [337 NW2d 44] (198[3]) (no liability for protruding spike from remains of bus stop sign post); Pate v Transportation Dept, 127 Mich App 130 [339 NW2d 3] (1983) (liability for protruding stake on grass strip remaining from traffic control sign).
The court then concluded:
The light post herein not being part of the sidewalk open for public travel, the § 2 immunity exception does not apply. The injury did not arise out of City and pld’s failure to maintain its sidewalk.
Therefore, an exception to governmental immunity pursuant to § 2 of the act, MCL 691.1402; MSA 3.996[10] [sic], does not apply to the instant case.
The recent case of Davis, supra, demonstrates that the circuit court’s analysis was in error in two respects. First, while noting that the state and its counties have no liability for placement and maintenance of utility poles under the defective highway exception unless they are "on the improved portion of a highway designed for vehicular traffic,” the Davis Court noted that this Court has recently suggested that the improved portion of a roadway may encompass light poles, thus exposing a county having jurisdiction over street lighting to liability for breaching its duty to repair and maintain the street lighting. See Zyskowski v Habelmann, 150 Mich App 230; 388 NW2d 315 (1986).
Here, defendant had jurisdiction over the sidewalk, the berm, and the light pole. MCL 247.651(1b); MSA 9.1097(1b) relieved the state of any responsibility for providing street lighting along Woodward Avenue. The city owned, constructed, and maintained the light pole. Additionally, and as recognized by the circuit court, for purposes of summary disposition it must be assumed that the city had jurisdiction and responsibility over the light pole. Moreover, the city does not dispute jurisdiction. The court found that the defective highway exception did not encompass a light pole located on a berm and not the sidewalk. As a matter of law, this determination was erroneous. As noted by the Court in Davis, supra, 469:
In contrast to the state and counties, the liability of municipalities under MCL 691.1402; MSA 3.996(102) is not limited to improved portions of highways designed for vehicular travel. Municipalities remain liable for defective construction or maintenance of public highways, roads and streets open for public travel, including bridges, sidewalks, crosswalks and culverts on the highway. See O’Hare v City of Detroit, 362 Mich 19, 24-25; 106 NW2d 538 (1960). Their duty encompasses the duty of maintenance and repair of electric street light poles as part of their duty to keep in reasonable repair streets, highways, sidewalks, etc. Mechay v City of Detroit, 364 Mich 576, 578; 111 NW2d 820 (1961), and cases cited therein. See also Cabana v City of Hart, 327 Mich 287; 42 NW2d 97; 19 ALR2d 333 (1950).
Plaintiff alleged that defendant City of Detroit, a municipality, breached its duty to properly maintain the light pole. It was also alleged that the city’s failure to inform, inspect and warn of the dangerous condition of the light pole was a breach of its duty. Since defendant had a duty, exempted from governmental immunity, to maintain and repair the light pole, summary disposition was improper.
The court’s finding, as quoted above, that plaintiffs injuries would have had to occur on an area open for public travel was also erroneous. While noting that the sidewalk is open to public travel, the court held that the light pole was on a berm, not the sidewalk, and that outside the area of a sidewalk open for public travel there is only a duty to maintain traffic signs. Thus, the court concluded that the defective highway exception did not apply because the light pole was not part of the sidewalk open for public travel.
It is clearly not required that a plaintiffs injuries occur while using the sidewalk. The Davis Court stated that liability for breach of the duty to repair and maintain light poles is not limited to sidewalk travelers. "Liability is imposed on a municipality in favor of any person injured by the municipality’s breach of its statutory duty. . . . Thus, municipalities can be held liable for any breach of their duty to maintain and repair street poles which proximately causes any person’s injuries.” Davis, supra, 469-470. Since plaintiff had alleged injuries resulting from a breach of a statutory duty exempted from governmental immunity, summary disposition as to Counts i, n, and iv on the basis of MCR 2.116(C)(10) was improper. While there was no genuine issue as to any material fact, defendant was not entitled to judgment as a matter of law. We therefore reverse on this ground.
We next consider whether plaintiff had properly alleged an intentional nuisance in avoidance of governmental immunity. When the basis for a motion for summary disposition is a failure to state a claim upon which relief can be granted, it is the burden of a plaintiff to plead facts in avoidance of immunity. Here, if plaintiff sufficiently alleged intentional nuisance in fact, and thereby established an exception to governmental immunity, then summary disposition of Count m was improper. However, we find that plaintiff’s allegations were not sufficient.
To be sufficient, it must be alleged that a party knew or must have known that the harm was substantially certain to follow as a result of a defendant’s conduct. Zyskowski, supra, 240. Here, we agree with the trial court that Count m sounds in negligence. Plaintiff has basically alleged that defendant failed to inspect and maintain the light pole. While it is true that plaintiff alleges that defendant knowingly and intentionally failed to do these acts, we do not find that these conclusory terms alter the fact that the underlying allegation is one of negligence. As noted by this Court in Furness, supra, 370:
This leaves the question of the nuisance allegations. The gravamen of these allegations is that defendants were negligent in failing to correct a known danger (nuisance). This alleged conduct is omissive rather than commissive and would therefore fall within the category of a negligent nuisance. As such it remains protected from suit by governmental immunity. See Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978).
Here, plaintiff has alleged that defendant failed to inspect the light pole. This is an omissive, rather than commissive, act. Plaintiff’s allegations do not rise to the level that defendant knew or was substantially certain that plaintiff’s injuries would result from its conduct. To expand upon this exception would render the distinction between negligent and intentional nuisances nonexistent.
Finally, we address the question whether the circuit court applied the correct standard in ruling on defendant’s motion for summary disposition. Plaintiff argues that the court made improper legal rulings in dismissing Counts i, n, and iv. We find no merit to this claim. The court’s opinion is replete with acknowledgments of the standard that plaintiff’s allegations must be viewed in a light most favorable to plaintiff.
On the counts which were dismissed for there being no genuine issue of material fact, plaintiff claims that the circuit court made improper legal rulings over the jurisdiction of the light pole and its location. The court did assume that the light pole was under the jurisdiction of the City of Detroit. This is what was in fact alleged by plaintiff. It is undisputed that the light pole was on a grass berm and not physically on a sidewalk. The court found as a matter of law that the defective highway exception did not encompass the light pole not physically located on the sidewalk. Although we have concluded that the legal determination was erroneous for the reasons given above, the court employed the correct procedure in reaching its conclusion.
Plaintiff also claims that the circuit court failed to view plaintiff’s allegations of intentional nuisance in a light most favorable to him. Plaintiff has not developed this argument on appeal, but rather reiterates that he pled sufficient facts in avoidance of governmental immunity. We found above that this was not the case.
The circuit court’s dismissal of Counts i, n, and iv on the basis of MCR 2.116(C)(10) is reversed and this case is remanded. The dismissal of Count in, intentional nuisance, on the basis of MCR 2.116(C)(8) is affirmed. | [
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] |
Per Curiam.
Plaintiff-appellant (hereinafter plaintiff) sued defendant claiming serious impairment of a body function, MCL 500.3135(1); MSA 24.13135(1). The trial court granted defendant’s motion for summary disposition. At the motion for summary disposition, plaintiff claimed that her complaint could be read as alleging an intentionally caused harm, MCL 500.3135(2)(a); MSA 14.13135(2)(a), thereby allowing her to recover in a tort action even though she had not met the no-fault threshold. The trial court rejected plaintiff’s argument. Thereafter plaintiff moved for rehearing on the no-fault threshold issue and also moved to amend her complaint to allege intentionally caused harm. The trial court denied both motions. Plaintiff now appeals as of right only from the trial court’s denial of her motion to amend. We affirm. We note that we need not address the effect of our Supreme Court’s recent decision in Di-Franco v Pickard, 427 Mich 32; 398 NW2d 896 (1986), because plaintiff has not raised a no-fault threshold issue on appeal.
MCL 500.3135(2)(a); MSA 24.13135(2)(a) provides:
Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance, or use within this state of a motor vehicle ... is abolished except as to:
(a) Intentionally caused harm to persons or property. Even though a person knows that harm to persons or property is substantially certain to be caused by his or her act or omission, the person does not cause or suffer such harm intentionally if he or she acts or refrains from acting for the purpose of averting injury to any person, including himself or herself, or for the purpose of averting damage to tangible property.
We agree with defendant’s claim that this statute unambiguously requires a person to intend to cause harm to a person or property and not merely, as plaintiff contends, intend to do the act which causes the harm. See and compare Frechen v Detroit Automobile Inter-Ins Exchange, 119 Mich App 578; 326 NW2d 566 (1982). Having read plaintiff’s complaint we agree with defendant’s contention that plaintiff failed to plead any facts which show that defendant intended to cause harm to plaintiff. We hold that the trial court did not abuse its discretion in denying plaintiff’s motion to amend because any such amendment would have been futile. See Rathbun v Starr Commonwealth for Boys, 145 Mich App 303, 316-317; 377 NW2d 872 (1985), lv den 424 Mich 908 (1986).
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Hood, P.J.
Plaintiffs appeal as of right from an order of summary disposition in favor of defendant. The issue presented is essentially a procedural one, but novel. It requires that we determine the proper method and timing for an appeal to circuit court from a decision of the Director of the Michigan Department of Natural Resources acting as the Supervisor of Wells. Our review persuades us that, under the circumstances present in this case, the oil and gas conservation act does not afford plaintiffs a basis for judicial review directly from defendant’s denial of their application. The circuit court correctly granted summary disposition in defendant’s favor because plaintiffs failed to pursue an appeal in a timely fashion, thereby depriving the circuit court of subject matter jurisdiction. MCR 2.116(C)(4).
On September 4, 1984, defendant Ronald O. Skoog, as Director of the Michigan Department of Natural Resources and acting as Supervisor of Wells, denied plaintiffs’ application for a drilling permit to drill a well in the Pigeon River Country State Forest under the authority of the oil and gas conservation act, MCL 319.1 et seq.; MSA 13.139(1) et seq., and under the authority of the Michigan Environmental Protection act, MCL 691.1201 et seq.; MSA 14.528(201) et seq. Plaintiffs allege that plaintiff Hobson Petroleum Corporation had also applied for a permit to drill a well on the individual plaintiffs’ privately owned lands within the forest on May 29, 1984, and that the application was denied on September 6, 1984.
Approximately six months later, on April 1, 1985, plaintiffs filed this action in circuit court. Plaintiffs alleged that defendant had no authority to deny the permit. They further alleged that the denial was arbitrary, capricious and without authority of law. Finally, they alleged that the wrongful denial prevented them from producing and marketing the oil and gas, all to the great financial damage and irreparable harm of plaintiffs. Plaintiffs asked the circuit court to issue an order compelling defendant to issue a drilling permit as had been originally requested by plaintiff Hobson Petroleum Corporation.
On June 28, 1985, defendant filed a motion for summary disposition on the basis that the circuit court was without jurisdiction because the complaint was an untimely appeal from an administrative decision. According to defendant’s motion, the challenged decision was not a final agency decision in a contested case as defined by the Administrative Procedures Act (apa), MCL 24.201 et seq.; MSA 3.560(101) et seq., and thus that act was not applicable. According to the motion, the sole jurisdictional basis for the lawsuit was § 631 of the Revised Judicature Act (rja), MCL 600.631; MSA 27A.631. That statute allows an appeal to the circuit court within twenty-one days from the challenged decision. According to defendant’s motion, the lawsuit was untimely since it was filed approximately 180 days after the challenged decision.
Plaintiffs agreed that the Administrative Procedures Act was not applicable. They claimed, however, that the lawsuit was not an appeal from the challenged decision. Instead, they contended that the oil and gas conservation act provided an independent basis for judicial review of defendant’s decision or, in the alternative, that the lawsuit sounded in mandamus under the rja, MCL 600.4401; MSA 27A.4401.
The circuit court felt compelled to grant the motion for lack of jurisdiction. The circuit court did not recall any reference to mandamus in the complaint or any reference to a violation of a clear legal duty. However, the circuit court gave plaintiffs approximately thirty days to file an amended complaint setting forth a cause of action in mandamus. The circuit court did not view the complaint as a request for injunctive relief since no allegation had been made that plaintiffs had no adequate remedy at law. The circuit court ruled that plaintiffs had a right of an appeal from the challenged decision, but that such right arose under the residual clause of the rja, § 631, and that §631 imposed a time limit which had not been met in this case.
Plaintiffs first reiterate their argument that the oil and gas conservation act allows judicial review directly from defendant’s denial of an application for a drilling permit. Const 1963, art 6, § 28 provides in pertinent part:
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.
Plaintiffs contend that judicial review of the challenged decision is authorized by § 3(8), § 3(9), and § 17 of the oil and gas conservation act, which respectively provide:
(8) The commission of natural resources shall act as an appeal board. When the advisory board or a producer or owner considers a rule, order, action, inaction, or procedure as proposed, initiated, or made by the supervisor to be burdensome, inequitable, unreasonable, or unwarranted, the board, producer, or owner may appeal to the appeal board for relief from the rule, order, action, inaction, or procedure, while giving notice to the supervisor. The chairperson of the commission shall set a date and place to hear the appeal, which may be at a regular or special meeting of the commission called for the purpose.
(9) The action of the appeal board shall be final with respect to an appeal by the advisory board. A person may seek relief in the courts as provided elsewhere in this act, and the taking of an appeal as provided in this act shall not be a prerequisite to seeking relief in the courts. [MCL 319.3(8) and (9); MSA 13.139(3)(8) and (9).]
The circuit court of Ingham county shall have exclusive jurisdiction of all suits brought against the commission, the supervisor, the board or any agent or employee thereof, by or on account of any matter or thing arising under the provisions of this act. No temporary restraining order or injunction shall be granted in any such suit except after due notice and for good cause shown. [MCL 319.17; MSA 13.139(17).]
According to plaintiffs, these sections make it abundantly clear that they have a right to judicial relief from defendant’s decision. Plaintiffs reason that the specific authorization for the judicial review granted under the oil and gas conservation act precludes the applicability of the rja. Plaintiffs contend that they elected to proceed to circuit court under § 3(9) and § 17 without first filing an appeal with the Natural Resources Commission because the nrc would have merely rubber-stamped defendant’s decision. Plaintiffs argue that defendant and the nrc have adopted a policy of not issuing drilling permits in the Pigeon River Country State Forest, which policy is not justified by any currently prevailing environmental conditions. Plaintiffs do not name the policy or further describe the policy and plaintiffs have not provided this Court with a copy of the policy if it is a written policy; however, they contend that they are prepared to demonstrate the unlawfulness of defendant’s decision in a de novo action in circuit court, and they ask this Court to reverse the order of summary disposition and to remand this case for trial.
Although § 3(9) states, "A person may seek relief in the courts as provided elsewhere in this act, and the taking of an appeal as provided in this act shall not be a prerequisite to seeking relief in the courts,” a careful review of the act does not reveal the relief referred to in the statute. The plain implication of the statute’s language is that other relief is specifically authorized elsewhere in the oil and gas conservation act. However, neither the parties nor the circuit court were able to identify this other relief. Our own efforts to do so have also proved fruitless.
Indeed, the only type of review specifically mentioned by the oil and gas conservation act is the administrative remedy provided in § 3(8). An appeal from a decision of defendant may be taken to the nrc, which shall act as an appeal board. According to the statute, the grounds for taking such an appeal include the arguments that the decision is "burdensome, inequitable, unreasonable, or unwarranted.”
Plaintiffs readily acknowledge that they decided against pursuing their administrative remedy in the belief that the nrc would have "rubber-stamped” defendant’s decision. In their view, they were not required to pursue that remedy before filing their complaint in circuit court. We have no precedent to assist in interpreting the statute as there are no cases to construe or interpret these provisions of the oil and gas conservation act.
We question whether the Legislature would have intended to allow a party to proceed directly to circuit court without first building a record before the administrative agency which has the expertise and resources with which to render factual findings. While both parties agree, albeit for different reasons, that the lawsuit does not come within the apa, we think that § 101, MCL 24.301; MSA 3.560(201), concerning exhaustion of administrative remedies, is at least instructive in resolving the question at bar. In Saginaw School Dist v United States Dep’t of Health, Education & Welfare, 431 F Supp 147, 154 (ED Mich, 1977), the court stated that "[Requiring exhaustion is preferred in order that the reviewing court may have the benefit of a factual record in which the issue is fully developed and clearly defined as opposed to being presented in a vacuum.” (Citations omitted.) Citing Saginaw School Dist, this Court, in Dickerson v Warden, Marquette Prison, 99 Mich App 630, 641; 298 NW2d 841 (1980), added:
By requiring exhaustion, resort to the courts in the face of available administrative procedures is precluded unless administrative procedures are incapable of providing relief. The exhaustion rule, however, does not apply where it is obvious that to pursue additional procedures would be a useless effort. Welfare Employees Union v Civil Service Comm, 28 Mich App 343; 184 NW2d 247 (1970).
Here, we have only the plaintiffs’ bare assertion that appeal to the appeal board would have been an exercise in futility and nothing more than a formal step on the way to the courthouse. To the extent that plaintiffs have failed to develop an administrative record, we hold that they have waived their challenge to the permit denial. In the absence of affirmative support by statute or case law for plaintiffs’ position, we conclude that the Legislature did not intend to provide an independent right to judicial review under the oil and gas conservation act.
Even assuming arguendo that plaintiffs’ position is the correct one, the Legislature failed to impose a statutory time limit within which an appeal would have to be taken. At the very least, it seems that the Legislature would have insisted upon a "reasonable” time limit within which to file a complaint for judicial review in the Ingham Circuit Court. Again, given the undeveloped record on appeal, we are unable to conclude whether the timeliness of plaintiffs’ complaint is "reasonable.”
Plaintiffs argued below and argue indirectly on appeal that § 23 of the oil and gas conservation act, MCL 319.23; MSA 13.139(23), required defendant to issue a drilling permit after he received and accepted plaintiffs’ written application and payment of the required fee. The statute provides in pertinent part:
A person shall not drill or begin the drilling of any well for oil or gas, for secondary recovery, or a well for the disposal of salt water, or brine produced in association with oil or gas operations or other oil field wastes, or wells for the development of reservoirs for the storage of liquid or gaseous hydrocarbons, until the owner directly or through his authorized representatives shall have first made a written application to drill any such well and filed with the supervisor a bond as provided in section 6, and received and posted in a conspicuous place at the location of the well a permit in accordance with the rules and requirements or orders made and promulgated by the supervisor. A fee of $100.00 shall be charged for a permit to drill a well subject to this act. Upon receiving and accepting a written application and payment of the fee required, the supervisor shall within 10 days thereafter issue to any owner or his authorized representative, a permit to drill. A permit to drill shall not be issued to any owner or his authorized representative who does not comply with the rules and requirements or orders made and promulgated by the supervisor. A permit shall not be issued to any owner or his authorized representative who has not complied with or is in violation of this act, or any of the rules, requirements or orders issued by the supervisor, or the department of natural resources.
Plaintiffs argue that defendant was without discretion to deny the permit so long as plaintiffs complied with the statute’s prerequisites for an application. In their view, defendant was required to perform a strictly ministerial act. On this basis, plaintiffs assert that their lawsuit did not constitute an appeal.
The interpretation given to § 23 of the oil and gas conservation act by plaintiffs is untenable. An administrative body is presumed to have performed its duties in accordance with the law and is presumed to have conducted its responsibilities with regularity. Traverse Oil Co v Chairman, Natural Resources Comm, 153 Mich App 679, 692; 396 NW2d 498 (1986). Further, this Court’s review of the defendant’s decision is limited to the information contained in the administrative record. Id., p 691. As already stated, plaintiffs have failed to develop an administrative record for our review. Moreover, we do not agree with their very literal interpretation of the statute.
In summary, the oil and gas conservation act does not afford plaintiffs a basis for judicial review directly from defendant’s denial of their application. There is simply no authority, either statutory or in the case law, which would support plaintiffs’ view. Accordingly, we conclude that the circuit court properly rejected their arguments.
The circuit court was also correct in deciding that RJA, § 631 governs plaintiffs’ complaint for judicial review and in dismissing the case because plaintiffs failed to pursue an appeal in a timely fashion. Section 631 of the rja provides:
An appeal shall lie from any order, decision, or opinion of any state board, commission, or agency, authorized under the laws of this state to promulgate rules from which an appeal or other judicial review has not otherwise been provided for by law, to the circuit court of the county of which the appellant is a resident or to the circuit court of Ingham county, which court shall have and exercise jurisdiction with respect thereto as in nonjury cases. Such appeals shall be made in accordance with the rules of the supreme court.
MCR 7.104(A) provides that an appeal to a circuit court under this statute is governed by MCR 7.101 and 7.103 with an exception that does not apply to this case. MCR 7.101(B)(1) provides in pertinent part:
Except when another time is prescribed by statute or court rule, an appeal of right must be taken within
(a) 21 days after the entry of the order or judgment appealed from;
In this case no other statute or court rule defines the time within which an appeal as of right to the circuit court has to be taken. Thus, the twenty-one-day limit applies if plaintiffs’ appeal is governed by § 631 of the rja.
The appeal by plaintiffs must proceed under § 631 of the rja. An appeal under this statute is not de novo, but is limited by the standards set out in Const 1963, art 6, § 28. Viculin v Dep’t of Civil Service, 386 Mich 375, 392; 192 NW2d 449 (1971); Michigan Waste Systems v Dep’t of Natural Resources, 147 Mich App 729, 735; 383 NW2d 112 (1985), lv den 424 Mich 900 (1986). Although the precise basis for the circuit court’s order is not plainly identified, in light of the circuit court’s remarks, it appears to be grounded on MCR 2.116(C)(4), a lack of subject matter jurisdiction. In view of the delay in filing the lawsuit after the expiration of the twenty-one days, we conclude that the complaint was untimely and the lawsuit could be dismissed on jurisdictional grounds.
The decision of the trial court is affirmed.
Plaintiffs reason that the apa does not apply because the oil and gas conservation act does not provide an evidentiary hearing to the parties and thus the administrative proceeding did not constitute a "contested case” as defined by the apa. MCL 24.203(3); MSA 3.560(103)(3). Defendant states that the apa does not apply because, although plaintiffs could have requested an evidentiary hearing, an appeal from which would have come under the apa's definition of "contested case,” plaintiffs did not follow that procedure. | [
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Per Curiam.
Appellants in this case are an attorney and his professional corporation which performed services on behalf of Bessie Irwin’s estate under two separate agreements signed by appellee Ophelia Mason, Bessie Irwin’s conservator. After paying $67,786.17 in attorney fees, Mason filed a petition with the probate court requesting its return. The probate court ordered appellants to repay $62,738.17. Appellants appeal that order as of right and Mason cross-appeals. We reverse and remand.
Appellant Fletcher J. Campbell is a Detroit attorney in general practice, who signed two contracts with Mason. The first contract was with appellant’s corporation and the second contract was with appellant personally. Throughout this opinion, both appellant personally and his corporation will be referred to as appellant.
Under the first contract, dated September 15, 1983, appellant was given a $600 retainer and was to receive $350 for every court appearance. Appellant defined court appearance very broadly, including occasions when he left his office to file papers with the court. Appellant also received court costs under the first agreement. Thereunder, Mason paid $1,357, including a $600 retainer, $700 for two court appearances, and $57 in costs.
On June 26, 1984, appellant and Mason executed a second contract entitled "Power of Attorney and Assignment.” Under this contract, appellant was to receive one-third of the estate’s assets. As partial payment under this contract, appellant received $66,836.17. The probate court did not approve these contracts or payments made thereunder.
Appellant claimed that he had performed various services on the estate’s behalf, including filing an unopposed petition in May of 1984 to have Mason appointed the estate’s conservator and guardian, obtaining a bond and letters of authority for Mason, talking with and writing to bank officials regarding the contents of a safe-deposit box, inventorying the safe-deposit box, opening a stock broker’s account, reviewing Bessie Irwin’s mail from 1976 to the present, and stopping the sale of Irwin’s home under a contract signed by Mason.
Two expert witnesses also testified concerning the normal attorney fee charged for probate work such as that rendered by appellant. Myles B. Hoffert testified that a normal hourly fee would be $100 per hour and that the fee charged by appellant of almost $68,000 was unreasonable and excessive. Sylvia Hart testified that a normal hourly fee would be between $75 and $125 per hour and that the fee charged by appellant for the work performed in this case, which she estimated required about sixteen hours, was highly excessive, outrageous, and unconscionable. She testified that the legal services performed by appellant were simple and that other services performed were nonlegal and could have been accomplished by the conservator. She estimated that a reasonable fee for appellant’s services would be approximately $1,500.
The probate court held that appellant had failed to obtain the consent of all affected parties and, therefore, he was not entitled to fees provided for by his agreements with Mason, but to reasonable attorney fees. The court concluded that $5,048 was a reasonable fee and ordered appellant to return $62,738.17. The $5,048 included $4,425 in reasonable attorney fees, $560 for fiduciary services, and $63 in out-of-court expenses. As noted above, appellant appeals this determination and Mason cross-appeals.
MCL 700.484(3)(w); MSA 27.5484(3)(w) empowers a conservator to hire an attorney to assist or advise her in the performance of her duties without court authorization or confirmation. Moreover, without obtaining a court order, a conservator may hire "counsel to perform necessary legal services in behalf of the estate.” MCL 700.5(1),(2)(a) and 700.543; MSA 27.5005(1),(2)(a) and 27.5543. Counsel so hired "shall Receive reasonable compensation for the legal services.” Id.
PCR 908 provides in part:
.3 Compensation, Summary of Services. An attorney is entitled to receive reasonable compensation for services rendered to the estate, in an amount consented to by all the parties affected or approved by the judge having jurisdiction over the estate. Except when compensation is consented to, the attorney must append to an accounting, schedule, petition or motion in which compensation is claimed a written description of services performed, a summary of the work done by the attorney and other information that may be helpful to the court in determining compensation.
.4 Claims Against Attorneys. Attorneys and counselors are officers of the courts of this state and as such are subject to the summary jurisdiction of such courts. The court has jurisdiction, on complaint of any client, and after reasonable notice and hearing, to make any order for the payment of money or for the performance of any act by the attorney which law and justice may require regarding matters arising in proceedings in such court. [Emphasis supplied. See also PCR 711.]
Appellant first claims that the probate court erred in determining attorney fees on the basis of reasonableness rather than enforcing appellant’s fee arrangements. We disagree. MCL 700.543; MSA 27.5543 and PCR 908.3 only entitle an attorney to reasonable compensation. While a fee agreement may be considered as one factor in determining the reasonableness of an attorney’s compensation, it is not by itself determinative. In re L'Esperance Estate, 131 Mich App 496, 502; 346 NW2d 578 (1984). Hence, although a conservator may hire an attorney and may agree to pay a certain fee, the attorney’s fee is clearly subject to the probate court’s scrutiny and may, in fact, be altered by the probate court. Id.
Appellant next claims that Mason, as the estate’s conservator, was the only party affected under PCR 908.3 and that he was entitled to receive the fee agreed upon. Again, we disagree. In In re L’Esperance Estate, supra, a guardian and an attorney entered into a contingent fee agreement allowing the attorney to receive one-third of any insurance benefits recovered. The hospital caring for the guardian’s ward intervened as an interested person on the ground that it would not be reimbursed for the care it had provided if the attorney received his contracted-for fee. This Court held that the probate court properly reduced the amount of attorney fees due despite the contingent fee arrangement. Both this Court and the probate court apparently assumed that not all the affected parties had consented to pay the attorney’s fee.
In In re Thacker Estate, 137 Mich App 253; 358 NW2d 342 (1984), the executor of a deceased’s estate hired legal counsel for assorted matters. The deceased’s daughters, primary takers under the will, objected to one attorney’s fee on the ground that it was unreasonable. The probate court reduced the attorney’s fee and this Court affirmed. Again, both courts impliedly ruled that absent the consent of the affected parties (i.e., daughters-beneficiaries), the probate court could set a reasonable fee.
MCL 700.7(3) and (4); MSA 27.5007(3) and (4) provide:
(3) "Interested party” means an heir, devisee, beneficiary, a fiduciary of a legally incapacitated person who is an heir, devisee, or beneficiary, a fiduciary or trustee named in an instrument involved, or a special party.
(4) "Interested person” means an interested party, creditor, surety, or any other person having a property right in a trust estate or the estate of a decedent or ward which may be affected by the proceeding. Interested person includes a person nominated as a personal representative and a fiduciary representing an interested person. The meaning may vary as it relates to a particular person and shall be determined according to the particular purpose of, and matter involved in, any proceeding. [Emphasis supplied.]
In this case, appellant filed a petition for appointment of a conservator on December 29, 1983. Therein, appellant listed two nieces and a nephew as presumptive heirs of Bessie Irwin. Moreover, in a petition for appointment of a guardian, filed by appellant, he listed Oakland Care Center in Royal Oak as an entity which provided care to and had custody of Bessie Irwin. Appellant clearly knew the names and addresses of these presumptive heirs and this physical custodian, but did not obtain their consent to the above-discussed fee arrangements. The probate court found that Bessie Irwin’s presumptive heirs and her physical custodian were affected parties under PCR 908.3. The probate court, in reaching this result, found that "parties affected” under PCR 908.3 was synonymous with "interested persons” under MCL 700.7(4); MSA 27.5007(4). We agree that Bessie Irwin’s presumptive heirs as well as Oakland Care Center were parties which would be affected by the fee agreement executed by Mason and appellant. In re Thacker Estate, supra; In re L’Esperance Estate, supra.
Appellant next claims that Mason failed to respond to his affirmative defenses and, therefore, they should be treated as admitted. Our review of the record reveals that Mason did file responses to appellant’s so-called affirmative defenses. Hence, this argument is without merit.
Appellant also contends that the probate court abused its discretion when it admitted expert testimony on the issue of normal hourly fees charged by a probate attorney. We believe that the probate court did not abuse its discretion when it allowed experts to testify as to the issue of reasonable fees charged in the probate area. MRE 401. See and compare In re Eddy Estate, 354 Mich 334, 351-352; 92 NW2d 458 (1958); Becht v Miller, 279 Mich 629, 641; 273 NW 294 (1937); Babbitt v Bumpus, 73 Mich 331; 41 NW 417 (1889).
We now turn to Mason’s, cross-appellant’s, arguments. Mason claims that, at most, appellant was entitled to $1,500 in attorney’s fees. As noted above, appellant claims he was entitled to recover the fees provided for in his contracts. This Court will not reverse the probate court’s decision on a reasonable amount of attorney fees absent an abuse of discretion. In re L’Esperance Estate, supra, 501. The burden of proof is on the person claiming compensation. See, e.g., In re Baird Estate, 137 Mich App 634, 637; 357 NW2d 912 (1984).
In this case, appellant submitted a forty-eight-page summary of services performed for the estate. Nowhere therein did appellant indicate the date, other than the year, the services were rendered, the time required to render the service, or the hourly rate he charged. The probate court then proceeded to make an estimate as to the time it took appellant to perform each service. We agree with Mason that, although the court could properly consider the time appellant had spent performing services in determining a reasonable amount of attorney fees, it could not estimate the time appellant took to perform the listed services absent evidence of the same. See and compare In re Humphrey Estate, 141 Mich App 412, 439-440; 367 NW2d 873 (1985), lv den 423 Mich 854 (1985), reconsideration den 423 Mich 854 (1986); In re Kiebler Estate, 131 Mich App 441, 444; 345 NW2d 713 (1984), lv den 419 Mich 935 (1984).
At the hearing, appellant merely testified that it took him three hours to inventory the jewelry in the safe-deposit box. Sylvia Hart, Mason’s expert witness, testified that the work appellant performed in his capacity as an attorney required approximately sixteen hours. Therefore, we find that appellant was entitled to receive $1,600 in attorney fees (i.e., sixteen hours multiplied by $100 per hour, the fee found to be reasonable by the probate court). We also note that the evidence showed that appellant incurred $57 in costs and not the $63 awarded him by the probate court. We further find that appellant was hired as an attorney to provide “necessary legal services.” MCL 700.543; MSA 27.5543. Any services for which appellant may have acted in a fiduciary capacity, such as inventorying the contents of the safe-deposit box, were not necessary legal services and, therefore, he was not entitled to compensation. Compare In re Kiebler Estate, supra. In sum, the evidence presented showed only that appellant was entitled to $1,657 in attorney fees and costs and, therefore, the probate judge abused his discretion when he found appellant was entitled to $5,048. In re L’Esperance Estate, supra, 501-502.
Mason next claims that appellant is liable for prejudgment interest on the amount which he received under the contracts. Interest on a judgment is purely a consequence of statute and, therefore, if it is to be allowed at all, some statutory authority must permit it. Dep’t of Civil Rights v Horizon Tube Fabricating, Inc, 148 Mich App 633, 640; 385 NW2d 685 (1986). MCL 600.6013; MSA 27A.6013 allows a party to obtain "interest on a money judgment recovered in a civil action.”
In In re Thacker Estate, supra, 263, this Court held that, under PCR 908.3, an attorney is entitled to receive reasonable compensation in an amount approved by the court; consequently, an attorney has no right to receive compensation absent court approval of his request. In In re Thacker Estate, supra, the executor, a bank, paid an attorney his fees before they were approved by the court. The executor petitioned the court to allow its filed accounts, including the attorney fees, but the decedent’s daughters objected to the executor’s fees, the attorney’s fees, and the payments made to the attorney before court approval. Following a hearing, the court assessed a surcharge (i.e., interest) against the executor for payments made without judicial approval on the entire amount paid to the attorney, even though the probate court ultimately awarded some attorney fees to the attorney.
In this case, unlike in In re Thacker Estate, supra, Mason specifically claims that Bessie Irwin’s estate is entitled to prejudgment interest pursuant to MCL 600.6013; MSA 27A.6013 for the amounts she erroneously paid to appellant, pursuant to his advice, prior to court approval of his fees. We agree. The purpose of MCL 600.6013; MSA 27A.6013 is to compensate the prevailing party for expenses incurred in bringing an action and for delay in receiving money damages. In re Cole Estate, 120 Mich App 539, 550; 328 NW2d 76 (1982). In this case, appellant was ordered to pay a money judgment. He was not ordered to do any further acts. Compare Stewart v Isbell, 155 Mich App 65, 80-82; 399 NW2d 440 (1986). We further note that ordering such interest would not reduce the estate’s assets. Compare In re Cole Estate, supra, 551. On remand, the probate court shall compute interest on the entire amount wrongfully paid to appellant from the date upon which Mason’s petition was filed. See Alpine Construction Co v Gilliland, 50 Mich App 568, 577; 213 NW2d 824 (1973). We believe that this result is appropriate because in reality the probate court found that appellant was not entitled to fees until they were approved by the probate court.
Reversed and remanded for proceedings consistent with this opinion. Costs to appellee-cross appellant.
Although the probate court determined that Mason paid appellant $67,786.17 (i.e., $66,836.17, under the second contract, added to $600, the retainer under the first contract, and $350, for one court appearance under the first contract), the evidence submitted at the hearing shows that Mason actually paid appellant $68,193.17 (i.e., $66,836.17, under the second contract, added to $600, the retainer under the first contract, and $700, for two court appearances, and $57, in court costs). On remand, this figure should be used.
MCR 8.303, formerly PCR 908.3, makes clear that the probate court must approve attorney fees in all cases.
Appellant’s constitutional challenges are not preserved for appeal. Butler v Detroit Automobile Inter-Ins Exchange, 121 Mich App 727, 737; 329 NW2d 781 (1982).
We note that a similar result may be reached under MCL 700.767; MSA 27.5767. | [
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Per Curiam.
Defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797, assault with intent to rob while armed, MCL 750.89; MSA 28.284, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He also pled guilty to being an habitual offender, fourth offense, MCL 769.12; MSA 28.1084. Defendant was sentenced to five to thirty years in prison as an habitual offender on the robbery and assault convictions. In addition, he was sentenced to a consecutive two-year sentence for the felony-firearm conviction.
Defendant raises one issue on appeal. He claims that he is entitled to disciplinary credits pursuant to MCL 800.33; MSA 28.1403 despite the habitual offender statute’s requirement that habitual offenders must serve the minimum sentence imposed by the sentencing judge prior to being eligible for parole. MCL 769.12; MSA 28.1084. Defendant argues that the two statutes are in conflict and that, under accepted rules of construction, the conflict must be resolved in his favor. People v Bergevin, 406 Mich 307; 279 NW2d 528 (1979).
Defendant’s argument is without merit. The Legislature enacted the habitual offender statutes to deter repeat offenders by augmenting their sentences. People v Curry, 142 Mich App 724; 371 NW2d 854 (1985). To allow disciplinary credits to an habitual offender would defeat the purpose of the legislation. Significantly, MCL 750.2; MSA 28.192 preempts the common-law rule that a penal statute is to be strictly construed in favor of a defendant and provides that the provisions of the penal code "shall be construed according to the fair import of their terms, to promote justice and to effect the objects of the law.” Accordingly, we conclude that the object of the habitual offender statutes is best effected by requiring the defendant to serve the minimum sentence imposed by the sentencing judge.
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Cynar, P. J.
Following a jury trial, on March 27, 1986, defendant was found guilty of two counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). Defendant was sentenced to a prison term of from thirty-five to seventy years. He appeals as of right. We affirm.
The charges against defendant stemmed out of the alleged sexual abuse of the eight-year-old complainant in February or March, 1985. The complainant’s mother, Vivian, was alleged to have aided defendant in the commission of these two offenses. Defendant’s theory of the case was that Gary, the complainant’s father, pressured the complainant and her younger sister to fabricate the allegations against defendant in order to break up defendant’s ongoing affair with his wife, Vivian.
Prior to the commencement of trial, defendant requested that his appointed counsel, George Bush, move to withdraw as counsel. At the hearing on the motion, defendant expressed his dissatisfaction with counsel’s performance at the preliminary examination. Defendant did not request substitute counsel but sought to proceed pro se. Following a lengthy caution from the trial judge regarding the need for an attorney in this matter, the judge granted the motion.
Defendant appeared pro se at the pretrial hearing. The trial judge advised defendant that, should he change his mind and request appointed counsel, the judge would reappoint attorney Bush. Defendant stated that he did not want Bush to represent him and the case was set for trial.
On February 10, 1986, defendant appeared before the court to request that another attorney be appointed. The trial judge reappointed Bush.
The trial commenced on March 25, 1986. Department of Social Services foster care worker Kim Bejcek testified that she interviewed the complainant and her younger sister in March or April, 1985, in connection with allegations of sexual abuse. The complainant displayed behavior typical of a sexually abused child in that she appeared afraid, nervous, fidgety and constantly wrung her hands. Both girls were "extremely frightened” of defendant and were very distant and hostile towards their mother.
Patricia Reiss, a dss protective services worker, testified that she interviewed the complainant with the use of anatomically correct dolls. The complainant was nervous, fearful and embarrassed; behavior typical of a sexually abused child.
The complainant’s testimony revealed that defendant engaged in sexual intercourse with her. Defendant also touched her in the genital area with his hands. She stated that something "yellow” came out of defendant’s penis. The complainant’s mother assisted defendant in these acts by spreading the girl’s legs apart. The complainant stated that these acts occurred more than one time.
The complainant’s sister stated that she saw defendant touch the complainant in her "private place” with his hands. Their mother, Vivian, assisted defendant by spreading the girl’s legs apart.
Lynn Butterfield, a family counselor at the Bay City Lutheran Child and Family Services, testified to seeing the complainant and her sister on a biweekly basis. She specialized in counseling sexually abused children. Such children are incapable of giving precise dates and sequence of events.
Psychologist Laura Patterson testified that she counsels sexually abused children. In order to determine whether the information of sexual abuse is coming from the child, she looks for common feelings or characteristics that a child may display. Most sexually abused girls feel guilty, angry and blame themselves. Patterson indicated that she gave the complainant a commonly used intelligence test, the Wechsler Intelligence Test. Over defense objection, and based on the test results, Patterson testified regarding the complainant’s memory skills and indicated that she would have no problem recalling and discussing recent traumatic events.
At the conclusion of the prosecutor’s proofs, defendant moved for a directed verdict alleging that the prosecutor had failed to prove penetration. The motion was denied. Defendant also moved to suppress evidence of his prior criminal record. The court denied the motion and ruled that defendant could be impeached with evidence of three prior misdemeanor convictions.
Gary, the complainant’s father, testified for the defense. He admitted telling the complainant to make up allegations and tell her mother that defendant was touching her and her sister in order to stop defendant’s ongoing affair with Vivian.
Defendant took the stand and denied the charges against him. The prosecution impeached defendant with evidence of his three prior convictions.
Following his convictions, defendant was scheduled for sentencing on April 28, 1986. Sentencing was adjourned in order for the prosecutor to present evidence that defendant had sexually abused the complainant’s sister. On April 30, 1986, the younger sister revealed that defendant had touched her "private place” with his hands. Subsequently, defendant was sentenced. He now appeals raising five issues.
First, defendant argues that he is entitled to a new trial because the trial judge refused defendant’s request for substitute counsel.
In People v Ginther, 390 Mich 436, 441-442; 212 NW2d 922 (1973), our Supreme Court set forth the standard for determining the circumstances under which an indigent defendant may be entitled to substitution of assigned counsel:
An indigent defendant, entitled to the appointment of a lawyer at public expense, is not entitled to choose his lawyer. He may, however, become entitled to have his assigned lawyer replaced upon a showing of adequate cause for a change in lawyers.
When a defendant asserts that his assigned lawyer is not adequate or diligent or asserts, as here, that his lawyer is disinterested, the judge should hear his claim and, if there is a factual dispute, take testimony and state his findings and conclusion.
A judge’s failure to explore a defendant’s claim that his assigned lawyer should be replaced does not necessarily require that a conviction following such error be set aside.
The trial court should elicit testimony from the attorney and defendant in order to assess any issues of fact. A full adversary proceeding, with counsel representing both the attorney and the defendant, is not required. People v Ceteways, 156 Mich App 108, 119; 401 NW2d 327 (1986). The decision regarding substitution is within the sound discretion of the trial court and will not be upset on appeal absent a showing of abuse of that discretion. People v Morgan, 144 Mich App 399, 401; 375 NW2d 757 (1985).
In this case, defendant argues that the trial judge abused his discretion by denying defendant’s request for substitute counsel without properly inquiring into defendant’s complaint. We disagree. A hearing was held on defense counsel’s motion to withdraw. At this hearing, counsel indicated that the motion to withdraw was based on defendant’s dissatisfaction with counsel’s representation at the preliminary examination. In addition, defendant wanted to proceed pro se. Afterwards, defendant requested the appointment of another attorney. The trial court reappointed Bush because the trial judge found no reason why Bush could not adequately represent defendant. We believe that the testimony elicited at the initial hearing was sufficient to ensure that defendant would be competently represented at trial. The trial judge not only questioned the attorney, but also questioned defendant regarding why he did not want appointed counsel to continue representing him. As we indicated earlier, an adversary hearing was not required. Ceteways, supra. Thus, defendant has not established error.
Next, defendant alleges several mistakes by defense counsel indicating that defendant was deprived of the effective assistance of counsel. In People v Garcia, 398 Mich 250, 264-266; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977), the Supreme Court established a bifurcated test for ineffective assistance of counsel claims. First, counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law. Second, even though the first test is satisfied, counsel must not make a serious mistake but for which the defendant would have a reasonably likely chance of acquittal.
Generally, a motion for a new trial or for an evidentiary hearing is a prerequisite for appellate review unless the error is apparent from the record so as to permit this Court to decide the issue. People v Stubli, 163 Mich App 376, 379; 413 NW2d 804 (1987). Trial counsel is presumed to have afforded effective assistance. This presumption can only be overcome by a showing of counsel’s failure to perform an essential duty, which failure was prejudicial to the defendant. The burden is on defendant. Id.; People v Carr, 141 Mich App 442; 367 NW2d 407 (1985). In this case, although defendant did not move for a new trial or for an evidentiary hearing, the record is sufficient to enable us to review his claims.
(a) counsel’s failure to object to the rebuttal TESTIMONY
Defendant contends that defense counsel failed to object to improper rebuttal testimony used to impeach defendant’s key witness, the complainant’s father. The father testified to telling the complainant and her sister to make up accusations of sexual abuse against defendant in order to break up defendant’s affair with the girls’ mother. On cross-examination, Gary denied speaking with his brother Douglas and his sister-in-law Donna regarding this incident. In rebuttal, the prosecutor called Douglas and Donna, both of whom testified to the effect that Gary did discuss this matter with them and that Gary told them that defendant liked playing with the complainant’s "private place.” There was no objection by defense counsel to the rebuttal testimony. In the absence of an objection, this Court will not review the issue unless there is manifest injustice. People v Amos, 163 Mich App 50, 53; 414 NW2d 147 (1987). We do not see any manifest injustice. However, we will briefly review this claim.
It should be noted that a claim of ineffective assistance of counsel based on counsel’s failure to object or make motions that could not have affected defendant’s chances for acquittal is without merit. People v Chinn, 141 Mich App 92, 98; 366 NW2d 83 (1985). The decision to admit evidence in rebuttal rests within the trial court’s discretion. People v Hubbard, 159 Mich App 321, 327; 406 NW2d 287 (1987). The rule regarding rebuttal evidence was stated in People v Utter, 217 Mich 74, 83; 185 NW 830 (1921):
Rebuttal evidence is broadly defined as that given by one party to contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same. In practical application the line of demarcation between rebuttal evidence and that which should properly be given in chief before the prosecution rests is frequently more or less obscure, and it is a general rule that whether evidence which could have been offered before resting may be given in rebuttal is a matter within the discretion of the trial court.
In this case, the rebuttal evidence offered through the testimony of Douglas and Donna was proper. It contradicted defendant’s evidence since Gary denied that he had discussed this matter with his brother and sister-in-law. Thus, counsel’s failure to object was not a serious mistake.
(b) counsel’s refusal to call five subpoenaed WITNESSES TO REHABILITATE THE IMPEACHED TESTIMONY OF THE COMPLAINANT’S FATHER, A DEFENSE WITNESS
In this claim of ineffective assistance of counsel, defendant alleges that, once Gary’s testimony had been impeached, defense counsel could have called surrebuttal witnesses in order to rehabilitate that testimony. These witnesses were expected to testify that Gary told them that he had told his daughters to fabricate the charges against defendant. At the initial sentencing hearing on April 30, 1986, defense counsel made the following comments regarding those witnesses:
Mr. Bush: The reason I subpoenaed the witnesses that I just named, other than Gary . . ., were that, in talking to them, I understood them, each of ’em, to be willing to testify that Gary . . . had made a statement in their presence that he had told the girls in this case [the complainant and her sister] . . . what to say. I mean, to bring these allegations up, and tell the authorities falsely that — that Mr. Reinhardt had committed acts of criminal sexual conduct in the first degree on ’em.
I subpoenaed [Gary] and produced him here in court, and it’s — as—as it’s my recollection of his testimony, that he admitted makin’ those statements. In fact, he made the same statement in open court. And that, therefore, the — the testimony of these other witnesses would — first of all, if it were admissible at that point, it would a [sic] been cumulative; secondly, I doubt that it was admissible ’cause it wouldn’t have impeached anything and it would a [sic] been hearsay. So I didn’t have — see any reason at that time to produce 'em. And I talked to Mr. Reinhardt about it, and he didn’t see any reason at that time either.
The decision to call a witness to testify is a matter of trial strategy. Defendant is entitled to relief only in those instances where counsel’s failure to call witnesses deprived defendant of a substantial defense. Stubli, supra, p 381; People v Wilson, 159 Mich App 345, 354; 406 NW2d 294 (1987). In this case, the decision not to call these witnesses, as explained by defense counsel, was premised on his strategic decision that the testimony would have been cumulative and constituted hearsay. While the latter impression was not correct, since a witness who has been impeached by a prior inconsistent statement may be rehabilitated by a prior consistent statement, Brown v Pointer, 390 Mich 346, 351-352; 212 NW2d 201 (1973), we cannot conclude that counsel rendered ineffective assistance. In point of fact, defendant agreed with counsel’s decision. A difference of opinion regard ing trial tactics does not amount to ineffective assistance of counsel. Stubli, supra, p 381.
(c) counsel’s failure to impeach the complainant with a prior inconsistent statement
At trial, the complainant testified that her mother assisted defendant in the sexual assault. At the preliminary examination, the complainant stated that she was alone with defendant during the assault and that her mother was in the kitchen at the time. However, the child also stated at the preliminary examination that her mother had assisted defendant in these acts. Counsel’s decision was based on trial strategy since the child also testified that these assaults occurred more than once. Thus, we cannot conclude that counsel rendered ineffective assistance.
(d) counsel’s failure to object to improper HEARSAY TESTIMONY
In this claim defendant alleges that, through a series of prosecution witnesses, the trial was filled with hearsay statements of the complainant. First of all, defendant points to the testimony of Kim Bejcek. He states that Bejcek repeated statements that the complainant had made during her interview with the child. In addition, defendant claims that Patricia Reiss also testified to out-of-court statements of the complainant involving allegations of sexual misconduct by defendant. Finally, defendant alleges that the complainant’s foster mother, Sandy Henkins, testified to hearsay statements by complainant which indicated fear and dislike of defendant and her mother.
Hearsay is defined as an out of court statement offered in evidence to prove the truth of the mat ter asserted. MRE 801(c). In this case, we find that the testimony of these witnesses did not constitute hearsay since it primarily consisted of a description of the child’s behavior during the interview. Even if we construe some of the testimony as constituting hearsay, counsel’s decision not to object was probably influenced by certain strategic factors such as the opportunity to cross-examine the witness who made the statement and the jury’s reaction to an objection. Moreover, even though this testimony may have been admitted erroneously, the error was harmless since the complainant testified as to her great fear and dislike of both defendant and her mother. The erroneous admission of hearsay testimony is harmless error where the same facts are shown by other competent testimony. People v Miller, 165 Mich App 32, 50; 418 NW2d 668 (1987).
(e) counsel’s failure to object to use of expert TESTIMONY TO VOUCH FOR THE COMPLAINANT’S CREDIBILITY
In this final claim of ineffective assistance of counsel, defendant alleges a serious mistake by counsel due to his failure to object to the testimony of Kim Bejcek, Patricia Reiss and Lynn Butterfield. These witnesses testified that the complainant’s conduct was "typical” of that of a sexually abused child. Defendant argues that this description of the complainant was offered as a means of vouching for her credibility. We disagree.
It is well established that an expert may not render an opinion or assessment as to a complainant’s veracity in a sexual misconduct case. People v Smith, 425 Mich 98, 112-113; 387 NW2d 814 (1986); People v McGillen #2, 392 Mich 278, 285; 220 NW2d 689 (1974); People v Izzo, 90 Mich App 727, 730; 282 NW2d 10 (1979), lv den 407 Mich 935 (1979). While expert testimony is prohibited regarding a complainant’s veracity, expert testimony is permissible on the profile of a sexually abused child. People v Beckley, 161 Mich App 120, 129; 409 NW2d 759 (1987). In People v Draper, 150 Mich App 481, 487-488; 389 NW2d 89 (1986), this Court stated:
Our review of the record in this case convinces us that the trial court did not abuse its discretion in admitting expert testimony on the matter of what indicators are used in the field of psychology to determine whether a child has been sexually abused. Both witnesses were questioned extensively about their training and experience, which was adequate to qualify them as experts in the field of psychology. 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).
In this case, we also find no error. Although Kim Bejcek, Patricia Reiss and Lynn Butterfield were not qualified as experts, they presented expert qualifications to the jury. Their testimony concerning the characteristics normally found in sexually abused children assisted the jury in understanding the evidence. Thus, we find no error.
Next, defendant alleges that his motion for a directed verdict should have been granted because there was insufficient evidence from which a reasonable person could infer penetration beyond a reasonable doubt.
In reviewing a claim alleging wrongful denial of a directed verdict motion, we view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980); People v Marks, 155 Mich App 203, 219; 399 NW2d 469 (1986). Sexual penetration is an element of the offense of first-degree criminal sexual conduct, MCL 750.520b(1l); MSA 28.788(2)(1). The testimony of a complainant that the defendant engaged in sexual penetration is sufficient evidence from which a jury could infer that penetration took place. People v Robideau, 94 Mich App 663, 674; 289 NW2d 846 (1980), aff'd 419 Mich 458; 355 NW2d 592 (1984).
In this case, there was sufficient evidence of penetration. The complainant and her sister testified to seeing defendant make physical contact with the complainant’s genital area. Further, the complainant stated that defendant’s penis and hand made contact with her genital area both on the outside and the inside. This evidence was sufficient and the trial court properly denied defendant’s motion.
Defendant also claims an abuse of discretion by the trial judge when he permitted the prosecutor to impeach defendant with evidence of three prior convictions. Recently, in People v Allen, 429 Mich 558; 420 NW2d 499 (1988), the Supreme Court resolved the different interpretations of the application of MRE 609(a) to the practice of impeaching criminal defendants with evidence of prior convictions. In Allen, the Court set forth a more specific procedure for the exercise of discretion under the then-present MRE 609(a). In addition, the Court promulgated an amendment to MRE 609(a) to apply to all cases tried after March 1, 1988. In Allen, the Supreme Court adopted the bright-line test for determining whether to allow impeachment by evidence of a prior conviction. Under the bright-line approach, evidence of crimes which contain elements of dishonesty or false statement is automatically admissible without further consideration. The trial judge must determine whether the crime contains an element of theft. If it is not a theft crime, evidence of it should be excluded without further consideration. If it is a theft crime and punishable by more than one year’s imprisonment, the trial judge should then exercise discretion in determining its admissibility by examining the degree of probativeness and prejudice inherent in its admission. In determining probativeness, the judge must engage in an objective analysis of the degree to which the crime is indicative of veracity while considering the age of the conviction, not either party’s need for the evidence. In evaluating the prejudice factor, only the similarity to the charged offense and the importance of the defendant’s testimony to the decisional process would be considered. If the probative nature of the evidence of the prior conviction does not outweigh its prejudicial effect, it must be excluded. Allen, supra, pp 605-606.
For purposes of our case, the clarification of the balancing test portion of the Allen opinion will be utilized in determining whether the trial court properly admitted evidence of defendant’s three prior convictions.
In this case, defendant’s three prior convictions were as follows: (1) a 1979 conviction for insufficient funds check under $50; (2) a 1984 conviction for larceny by conversion under $100; and (3) a 1986 conviction for larceny over $50 and under $200. We believe that evidence of the prior convictions was properly admitted since it was highly probative of defendant’s veracity and the convictions were not that old, other than the 1979 conviction. The level of prejudice was minimal since these offenses were dissimilar to the charged offense and defendant testified. We believe the highly probative nature of the evidence of these prior convictions outweighed any prejudicial effect. Moreover, even if it was error to admit evidence of the prior convictions, the error was harmless since there was overwhelming evidence of defendant’s guilt.
Finally, defendant argues that the trial court erred in departing from the sentencing guidelines in imposing the sentence. We disagree. Under the guidelines departure policy, sentencing courts in their discretion may go outside the guidelines where, due to special circumstances or characteristics of the defendant, justice requires a sentence different than the one suggested. People v Krauss, 156 Mich App 514, 517; 402 NW2d 49 (1986).
In this case, the court’s departure reasons were sufficient and were supported by the record. This sentence does not shock our collective judicial conscience. People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983).
Affirmed.
Revised MRE 609
Impeachment by evidence of conviction of crime
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross-examination, and
(1) the crime contained an element of dishonesty or false statement, or
(2) the crime contained an element of theft, and
(A) the crime was punishable by imprisonment in excess of one year or death under the law under which the witness was convicted, and
(B) the court determines that the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court further determines that the probative value of the evidence outweighs its prejudicial effect.
Os) Determining probative value and prejudicial effect. For purposes of the probative value determination required by subrule (a)(2)(B), the court shall consider only the age of the conviction and the degree to which a conviction of the crime is indicative of veracity. If a determination of prejudicial effect is required, the court shall consider only the conviction’s similarity to the charged offense and the possible effects on the decision process if admitting the evidence causes the defendant to elect not to testify. The court must articulate, on the record, the analysis of each factor.
(cHf) [(bMe) redesignated but otherwise unchanged.]
429 Mich 614.
The clarified balancing test was given limited retroactivity as follows:
1) to the instant cases; 2) all cases pending on initial and direct appeal in which the issue of impeachment by prior conviction under the then-existing MRE 609(a) has been raised and preserved; 3) currently pending appeals in which the appellant’s initial brief has not yet been filed, but the issue was raised and preserved in the trial court; and (4) cases in which the issue has been raised and preserved in the trial court, but no first appeal from the original judgment has yet been filed. [Allen, supra, p 609.] | [
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Per Curiam.
Plaintiff seeks a refund of $1,437,155 paid to the State of Michigan in single business tax (sbt) for the taxable years of 1976 and 1977. The Department of Treasury denied the claim alleging that plaintiffs right to a refund was barred by the statute of limitations. Plaintiff appeals as of right from a Court of Claims order affirming the department’s denial.
Plaintiff filed its sbt return for 1976 on January 3, 1978, and for 1977 on January 2, 1979. The return for 1976 included $24,465,202 in United States government obligations in its tax base. The 1977 return included $19,103,354 of like obligations in its tax base. All taxes were paid prior to filing the returns. The returns were challenged by the department over apportionment of income earned by a branch plaintiff operated in Nassau, Bahamas. In 1981, plaintiff and the department agreed to suspend the running of the period of limitations until March 31, 1982. The agreement was formalized in two documents executed in July and December of 1981. On February 22, 1982, the department gave notice of its final assessment for the years 1976 through 1979. Plaintiff responded by requesting a hearing. The referee essentially upheld the department and on March 14, 1983, the department entered an order of determination. This order was appealed to the Michigan Tax Tribunal which resulted in a consent judgment entered on June 10, 1984.
In January, 1983, the United States Supreme Court decided Memphis Bank & Trust Co v Garner, 459 US 392; 103 S Ct 692; 74 L Ed 2d 562 (1983). In that case, the Supreme Court held that a tax on net earnings which included in the tax base earnings from obligations of the United States government, but exempted interest earnings from obligations of the State of Tennessee and its political subdivisions, was impermissibly discriminatory against the federal government and thus unconstitutional and violative of the supremacy clause (US Const, art VI, § 2, and 31 USC 742, now 31 USC 3124). In August, 1984, the Court of Claims ruled that the Memphis decision was applicable to Michigan’s sbt and that, insofar as the tax required inclusion of United States obligations in its tax base and excluded obligations of the State of Michigan, the sbt was unconstitutional. The Department of Treasury did not appeal this decision and has granted refunds to financial institutions who have filed amended returns that the department has deemed timely.
On November 16, 1983, plaintiff filed its amended returns for 1976 and 1977 excluding the federal obligations from its tax base. On May 16, 1984, the department rejected the amended returns, citing the four-year period of limitations found in MCL 208.97(2); MSA 7.558(97)(2) as the reason for the rejection.
Plaintiff filed suit on October 31, 1984, in the Court of Claims. The facts were not in dispute and both sides moved for summary disposition. The trial court agreed with plaintiff that the tolling provisions of MCL 208.85; MSA 7.558(85) applied. The court supported its ruling by citing Clarke-Gravely Corp v Dep’t of Treasury, 412 Mich 484; 315 NW2d 517 (1982). The court, however, further decided that § 85 was only applicable as to the subject matter of the conferences and litigation and the tolling would not apply to unrelated refund claims. Accordingly, the court held in favor of the department as the matters in conference and litigation related to the Nassau apportionment dispute. We disagree and reverse.
Section 97 of the sbt act, now repealed, provided in relevant part:
(1) The department shall credit or refund all overpayments of taxes, all taxes erroneously or illegally assessed or collected, all penalties col lected without authority, and all taxes that are found unjustly assessed or excessive in amount, or wrongfully collected.
(2) A taxpayer who paid a tax which he claims was not due under this act may, on or before the expiration date of 4 years after the date set for the filing of the annual or final return for the year or the date the tax was paid, whichever is later, petition the department in writing to refund the amount so paid. If the annual return reflects an overpayment or credits in excess of the tax, the declaration thereof on the return constitutes a claim for refund. If the department agrees that the taxpayer’s claim is valid, the amount of overpayment, at the request of the taxpayer, shall be refunded to the taxpayer, or credited against any current or subsequent tax liability. [MCL 208.97; MSA 7.588(97).]
Plaintiff argues that the limitations period was tolled pursuant to § 85, MCL 208.85; MSA 7.558(85), now repealed, by the apportionment dispute.
This section provided:
(1) A deficiency, interest, or penalty shall not be assessed for any year after the expiration of 4 years after the date set for the filing of the annual return for each year or the date the return was filed whichever is later. If the person subject to tax under this act fraudulently conceals any liability for the tax or any part thereof, the department within 2 years of the discovery of the fraud shall assess the tax with interest and penalties as provided in this act, computed from the date on which the tax liability originally accrued, and the tax, penalties, and interest shall become due and payable after notice and conference as provided in this act.
(2) The limitation of action provision shall be suspended for the period pending final determination of litigation of or conference or waiver on a taxpayer’s federal income tax return or on the return required by this act, or if a notice is required under section 75, and for 1 year thereafter. The suspension shall apply to those items required to be reported under section 75(2) which may be the subject of assessment or refund.
(3) The limitation of action provision shall be suspended for the period for which the taxpayer and the commissioner consented in writing that the period be suspended. The period so extended may be further extended by subsequent consent in writing made before the expiration of the extended period.
(4) The limitation of action provision shall be suspended for any taxable year for which a return was not filed.
We agree with plaintiff. Section 85(2) is virtually identical to its predecessor, the tolling provision contained in § 411 of the Income Tax Act of 1967, MCL 206.411; MSA 7.557(1411), which was construed in Clarke-Gravely, supra, and found applicable not only to a deficiency claim, but to a taxpayer’s refund claim as well.
We are further persuaded that § 85(2) applies to a taxpayer’s refund claim, given the statutory language before us. Unlike the tolling provision construed in Clarke-Gravely, the statutory language in § 85(2) specifically refers to items which may be subject to refund. We find such language significant and a strong indication that taxpayers may take advantage of the tolling provisions of § 85(2).
We also agree that the four-year period of limitations in § 97 was tolled in this case by the conferences and administrative proceedings which commenced in 1982. Section 85(2) provides that the period of limitations shall be suspended pending final determination of litigation or conference on a return required by the act. Although the dispute in which plaintiff was involved concerned an unrelated issue, we find the dispute still tolled the period of limitations. Nowhere in the portion of § 85(2) which describes the first tolling event is there language requiring that the litigation or conference involve a related issue. See Clarke-Gravely, 412 Mich 489.
As plaintiff filed its amended returns for 1976 and 1977 before the final determination of its dispute with the department over the apportionment issue, we further find that plaintiff timely filed its amended returns for 1976 and 1977.
The Court of Claims order granting the department’s motion for summary disposition is reversed.
Bronson, J., did not participate. | [
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Per Curiam.
Plaintiff, B & M Die Company, filed suit against defendant, Ford Motor Company, in September, 1982, alleging in four counts breach of an oral contract, unjust enrichment and wrongful interference with its business. In its second amended complaint, plaintiff withdrew Count iv alleging wrongful interference with its business. During trial, b & m withdrew Count i — breach of an oral contract. The case proceeded to the jury on two separate counts based on a claim of unjust enrichment. The jury returned a special verdict for b & m, finding that defendant was unjustly enriched to the extent of $65,000 for services provided to it by plaintiff. Plaintiff was also awarded $10,000 for cancelled purchase orders. The $10,000 award is not contested by either party on appeal. Plaintiff appeals and defendant cross-appeals as of right from the $65,000 jury verdict.
At trial, the evidence revealed that b & m was a small die manufacturing and die cutting company, established in 1962 by brothers, F. Moses and Billy Smith. In 1974, Moses formed a second company, ida or Independent Die, which he ran without his brother’s involvement. Moses, however, continued to retain a fifty percent interest in b & m. B & m ceased operation as a company in 1981 and liquidated its assets. During the period of time relevant to this case, b & m was a supplier of dies and services to Ford.
The events which led to the present action took place in late 1977 and early 1978. Prior to 1976, all "headliners” were created by a technique called "cut and sew.” Headliners are the interior roof liners on passenger cars and light trucks. The cut and sew process consisted of hand cutting the ceiling material on tables and sewing it together on machines. It was then installed over metal bars attached to the roof.
In early 1976, Ford engineers commenced working on a new process and design for producing headliners. The process came to be known as "cut and score” headlining. This process involves two stages. First, there is the lamination stage in which various layers of material are stacked and glued together. The second stage, steel rule die cutting, involves several subparts which are the subject of this litigation. Ford believed that this new process would be cost-effective since headliners could be produced more quickly with the use of less labor and they would be more aesthetically pleasing.
Ford engineers began experiencing difficulty with all phases of the cut and score headlining process. At trial, the extent of Ford’s difficulty was heavily disputed. Plaintiff claimed that Ford was having serious problems in the cut and score phase of the process resulting in a fifty-eight percent scrap rate. Ford claimed that only normal "debugging” problems were encountered. As a result, Ford engineers enlisted b & m’s assistance along with that of another company, PCI-Inmont, which was also in the business of making headliners.
It is undisputed that b & m spent approximately eighty hours at defendant’s plant and that, together with pci, repaired defendant’s press. They installed new dies which were slightly off-center. They also installed some innovations which plaintiff had learned and developed through many years in the business. These additional technologies are at the crux of the parties’ dispute. They include: (1) "elevator crush pads,” which push the material out of the press so that it would not get caught and subsequently tear; (2) "balancing blocks,” which were installed in the dies rather than on the press; and (3) a "make-ready system” which involved the use of adhesive shim stock which was attached to the die. Defendant offered testimony that these concepts were available and in use in the industry and were, thus, not novel ideas. However, Ford admitted that b & m’s crush pads had a unique feature developed specifically for the problem experienced by Ford. In addition, the make-ready system was different from anything currently being used in the industry. Some of Ford’s witnesses indicated that the use of balancing blocks on this particular press was a new idea.
Plaintiff’s witnesses testified that, as a result of b & m’s assistance, the headliner project became much more efficient. The scrap rate was reduced considerably, resulting in substantial savings in assembly and labor. Plaintiff estimated that its technology caused Ford to realize a $2,000,000 profit. Ford disagreed and valued plaintiff’s contribution as saving defendant a few weeks of time in solving the die cutting problems. Ford claimed that it would have gone to pci for assistance if b & m had not been successful.
Between the time the headliner project became operational and July, 1980, b & m was the main source for die and repair services to Ford. In anticipation of much greater business, plaintiff expanded its operations by moving to a newer and larger location, purchasing new equipment and hiring new employees. In the interim, Moses Smith filed a patent infringement suit against Ford. After this suit was filed, b & m received no new business from defendant and many of the orders in progress were cancelled.
Following the presentation of evidence, the jury returned a verdict in favor of plaintiff and awarded b & m $65,000 for its unjust enrichment claim and $10,000 for the cancelled purchase orders.
The first issue disputed by the parties is whether the value of the benefit conferred upon defendant should be the proper measure of plaintiff’s damages for a claim of unjust enrichment. Specifically, plaintiff claims that it is entitled to the value of the benefit received by Ford for the technical information plaintiff supplied to Ford in regard to the headliner project. Ford, on the other hand, argues that plaintiff cannot recover under a theory of unjust enrichment for the technical information since the only properties entitled to protection are those commonly known as "trade secrets.” It argues that, because this information was admittedly not given in confidence and, thus, not a trade secret, plaintiffs damages must be limited to the reasonable value of the services it provided defendant.
A person who has been unjustly enriched at the expense of another is required to make restitution to the other. Restatement Restitution, § 1, p 12. The process of imposing a "contract-in-law” or a quasi-contract to prevent unjust enrichment is an activity which should be approached with some caution. The essential elements of such a claim are (1) receipt of a benefit by the defendant from the plaintiff, and (2) which benefit it is inequitable that the defendant retain. In re McCallum Estate, 153 Mich App 328, 335; 395 NW2d 258 (1986).
In this case, defendant benefitted from plaintiffs services since plaintiff successfully solved defendant’s problems with the headliner project. The only issue is whether plaintiff is entitled to recovery under a theory of unjust enrichment for the technical information provided to defendant. In support of its claim for compensation, plaintiff relies on several federal appeals court cases for the proposition that it is entitled to compensation under a theory of unjust enrichment for the technical information it provided to defendant. Plaintiff initially cites City Ice & Fuel Co v Bright, 73 F2d 461 (CA 6, 1934). In this case, Bright filed suit seeking compensation for information and data furnished to City Ice for the purchase of certain ice plants and businesses. The complaint sought relief under an express contract and, in the alternative, under a quantum meruit claim. The case was submitted to the jury under the alternative theory. The Sixth Circuit upheld the jury verdict which included an award for the reasonable value of the services rendered including the information supplied by Bright to City Ice. Id., p 464.
Next, plaintiff refers to General Paint Corp v Kramer, 68 F2d 40 (CA 10, 1933), and Matarese v Moore-McCormack Lines, Inc, 158 F2d 631 (CA 2, 1946), which held that one who voluntarily transferred property to another under a nonenforceable contract or with the reasonable expectation of compensation would be entitled to the reasonable value of his services which may be based upon cost savings to defendant. Both of these cases dealt with confidential relationships between an employer and an employee.
In the case at bar, the trial court ruled that the technical information provided by plaintiff was not property for which plaintiff had a right to recover damages per se since it did not comply with the requirements of Michigan trade secret law. On the other hand, the court ruled that it would allow the jury to consider the benefit received by Ford as a result of receipt of this technical information in determining the amount by which defendant may have been unjustly enriched. We find no error in the trial court’s ruling prohibiting plaintiff from seeking compensation for the technical information on the theory that it was "property” subject to compensation. As Ford indicates, plaintiffs technical information was not a "trade secret” under Michigan law. See Manos v Melton, 358 Mich 500, 508; 100 NW2d 235 (1960).
However, the jury could properly consider under a claim of unjust enrichment the value of the benefit received by Ford as a result of having this technical information. Ford benefitted from having this technical information since it utilized it in solving the problems associated with the headliner project. The jury did not award b & m compensation in the form of a patent or trade secret infringement as a result of the use of this information by Ford. Instead, in determining the value of the benefit received by Ford, the jury could consider the extent to which Ford benefitted by having this information. To this extent, we disagree with Ford’s claim in its cross-appeal that the trial court clearly erred by not instructing the jury that the furnishing of this technical information by plaintiff to defendant should not be considered by the jury in determining the value of the benefit received by Ford. Ford did not lodge any specific objections to the court’s instructions on this point. Thus, appellate review is foreclosed unless the complaining party has suffered manifest injustice. Strach v St John Hospital Corp, 160 Mich App 251, 281-282; 408 NW2d 441 (1987). We find no manifest injustice was suffered by Ford since the jury could properly consider the value of the benefit received by Ford as a result of this technical information. Hence, we find no error.
Moreover, the verdict is not so clearly or grossly inadequate or contrary to the great weight of the evidence as to shock our judicial conscience and warrant a new trial. See MCR 2.611(A)(1)(d) and (e).
In its cross-appeal, Ford raises several other alleged errors. First, Ford asserts that a claim for unjust enrichment is equitable and should be decided by the court rather than the jury. We disagree.
The parties have a constitutional right in Michi gan to have equity claims heard by a judge sitting as a chancellor in equity. Abner A Wolf, Inc v Walch, 385 Mich 253, 265-266; 188 NW2d 544 (1971). If a plaintiff seeks only equitable relief, he has no right to a trial by jury. Robair v Dahl, 80 Mich App 458, 460-462; 264 NW2d 27 (1978). However, in a case where plaintiff seeks both equitable relief and legal relief in the form of damages, a plaintiff has the right to have a jury hear his damage claim. Dutka v Sinai Hospital of Detroit, 143 Mich App 170, 173; 371 NW2d 901 (1985), lv den 424 Mich 891 (1986). In this case, since plaintiff was seeking money damages, it was entitled to a trial by jury. Defendant’s argument to the contrary is meritless.
Next, Ford alleges that the evidence does not support the $65,000 verdict for the value of plaintiff’s services, not including the value of the technical information. In making this argument, Ford asserts that the evidence established a maximum of eighty hours time expended by b & M, and that the services performed were assessed as having a market value of $45 per hour, so that plaintiff was solely entitled to $3,600 for the services rendered. Ford did not move for a new trial on the basis that the damage award was excessive or against the great weight of the evidence. Only where a party moves for a new trial before the trial court on the ground that the verdict is against the great weight of the evidence is this issue preserved for appellate review. Armstrong v Woodland Mutual Fire Ins Co, 342 Mich 666, 671-672; 70 NW2d 786 (1955). Defendant failed to make such a motion, and consequently we decline to review this claim.
Finally, Ford alleges that the proofs and arguments regarding the value of plaintiff’s technical information were prejudicial and inflammatory requiring reversal of the jury verdict. We disagree. As we noted earlier in this opinion, the jury could properly consider the value of the benefit resulting to defendant from the technical information in determining the value of the benefit provided by plaintiff to Ford. Moreover, this issue is not properly before the Court since defendant cited no authority in its brief other than trade secret cases which are not relevant. Accordingly, the verdict is affirmed.
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Per Curiam.
Plaintiff appeals as of right the December 1, 2000, order granting defendant’s petition to change custody of the two minor children from plaintiff, the children’s stepfather, to defendant, the children’s natural father. Defendant cross appeals by leave granted. We reverse and remand.
Defendant and Debra V. Alexander, the mother of the children, were married in 1988. Two daughters were bom of the marriage, Cassaundra in 1991 and Katherine in 1994. At some point during the marriage, the parties moved to Kentucky because defendant was unable to maintain steady work in Michigan. In 1994 or 1995, Debra and the children moved back to Michigan. Defendant was convicted of cocaine possession in Kentucky in 1994 and spent ninety days in jail and was sentenced to a three-year term of probation.
Debra obtained a divorce in October 1995. The judgment of divorce awarded Debra sole legal and physical custody of the children, and defendant was awarded supervised parenting time. The relevant provision of the judgment provided that “[d]ue to the tender age of the children and Defendant’s [Thomas Alexander’s] absence from the children, Defendant shall have supervised visitation” and that supervised visits were “to continue until such time as a bonding relationship between Defendant and minor children is shown to exist.”
In April 1998, Debra married plaintiff. One son was bom of the marriage in January 1999. In late March 1999 Debra died. Between the time of the divorce and Debra’s death, defendant visited the children only “two or three times” and was $15,000 in arrears in child support.
On April 1, 1999, plaintiff sought and was granted temporary guardianship over the children. After a hearing at which defendant was represented by counsel, the guardianship became permanent. Defendant did not appeal the order.
Thereafter, both plaintiff and defendant filed petitions for custody of the children. On November 29, 1999, a bench trial was conducted. The trial court found that an established custodial environment existed with plaintiff and that defendant had failed to meet his burden of proving by a preponderance of the evidence that a change in custody was in the children’s best interests. On December 22, 1999, the court entered an order modifying the judgment of divorce to award joint legal custody of the children to plaintiff and defendant, with physical custody awarded to plaintiff. Defendant was awarded parenting time, and the children’s maternal grandparents, Richard and Alice Vincent, were awarded visitation. Defendant did not appeal this decision.
Six months later, in June 2000, defendant filed a petition to change custody, and filed an amended petition in August 2000. Plaintiff moved to dismiss the petitions on the ground that no proper cause or changed circumstances were alleged to justify reopening the custody decision. The court denied the motion, and a hearing on the petition to change custody was held on October 30, 2000. In an oral ruling, the trial court found that the children’s established custodial environment was with plaintiff, but found that a presumption in favor of a natural parent existed and that plaintiff failed to show by even a preponderance of the evidence that it would not be in the best interests of the children to award custody to defendant. Despite expressing doubt whether the best interest factors were applicable in light of the statutory presumption in favor of the natural parent, the judge analyzed the factors anyway, finding that four factors favored plaintiff, that one factor favored defendant, and that the parties were equal on the remaining factors. The judge ordered physical custody to be changed to defendant, with provisions to ensure a continuing relationship between the children and plaintiff, their half-brother, and their maternal grandparents.
i
Initially, we note that defendant argues on cross appeal that the trial court’s decision in the first custody trial was wrongly based on the court’s finding that an established custodial environment existed with plaintiff and that plaintiff should have been required to overcome the statutory presumption in favor of defendant’s custody of the children, as their biological father, by clear and convincing evidence. However, the December 22, 1999, order was not appealed and, therefore, we do not have jurisdiction to review the trial court’s decision.
n
Plaintiff argues that the trial court applied an inappropriate legal standard in ruling on defendant’s petition for change of custody. Plaintiff relies on LaFleche v Ybarra, 242 Mich App 692; 619 NW2d 738 (2000), in arguing that the appropriate legal standards for this type of custody matter are as follows:
MCL 722.25(1); MSA 25.312(1) provides that when the dispute is between the parent or parents and an agency or a third person, it is presumed that the best interest of the child is served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence. Rummelt [v Anderson, 196 Mich App 491, 494; 493 NW2d 434 (1992)]. However, as above indicated, the established custodial environment presumption contained in MCL 722.27(1)(c); MSA 25.312(7)(1)(c) provides that courts are not to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. There is a conflict in these two presumptions in cases involving a natural parent seeking custody from a third party who has provided an established custodial environment. Rummelt, supra at 494. This Court has previously concluded that, “in instances in which both the parental presumption of § 5 and the established custodial environment presumption of § 7 are applicable, the burden of proof evolves into a preponderance of the evidence.” Glover v McRipley, 159 Mich App 130, 146; 406 NW2d 246 (1987). Each party bears the burden of proof vis-a-vis his own presumption but “the burden of persuasion rests with the parent challenging an established custodial environment in the home of a third party.” Id. at 147, see also Rummelt, supra at 496. [LaFleche v Ybarra, supra at 696-698.]
Thus, plaintiff contends that the trial court gave too much weight to the statutory presumption in favor of defendant as the natural parent, failed to place the burden of persuasion on defendant to challenge the established custodial environment existing with plaintiff, and failed to recognize the importance of determining whether a change of custody was ultimately in the best interests of the children.
However, defendant argues that the LaFleche standard’s placement on him of the burden of proving that a change of the children’s custody would serve the children’s best interests would infringe on defendant’s fundamental liberty interest in raising his children. In support of this argument, defendant cites Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 L Ed 2d 49 (2000), in which the Supreme Court emphasized the fundamental constitutional right of parents to raise their children and make decisions regarding visitation and, necessarily, custody.
Recently, in Heltzel v Heltzel, 248 Mich App 1, 21-24; 638 NW2d 123 (2001), this Court, faced with a custody dispute between a natural parent and a third party, examined Troxel and concluded:
In light of the recent Supreme Court decision emphasizing the fundamental constitutional right of parents to raise their children and make decisions regarding visitation, and necessarily custody, we find the instant trial court’s determination of the child’s custody, premised on Rummelt, supra, constitutionally infirm. Even though the trial court did not view defendant as an abusive or neglectful parent or a threat to the child, the court nonetheless in its analysis failed to accord defendant’s fundamental interest in raising the child any special weight. According to the Rummelt panel’s analysis of the interplay between the natural parent presumption, subsection 5(1), and the established custodial environment factor, subsection 7(l)(c), and as the Supreme Court in Troxel found constitutionally offensive, id. at 68-70, the trial court placed on defendant the ultimate burden of persuading the court that the child belonged in the custody of her natural mother. Furthermore, the trial court’s application of the simple preponderance of the evidence standard set forth in Rummelt for reaching a decision regarding the child’s best interests plainly and unconstitutionally invited the court to enforce its own judicial opinion regarding what custody situation best would serve the child’s interests, irrespective of the natural mother’s wishes. The Supreme Court in Troxel explicitly found unacceptable such enabling of a court, in a case involving “nothing more than a simple disagreement between the ... Court and [the parent] concerning [t]he[] children’s best interests,” to “make childrearing decisions simply because [the] state judge believes a ‘better’ decision could be made.” Troxel, supra at 72, 73.
“[I]f a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.” Troxel, supra at 70. We reject the Rummelt solution in this case because that Court’s analysis of the interplay between subsections 5(1) and 7(l)(c) accords the fit parent’s custody determination absolutely no deference whatsoever. To the contrary, the Rummelt solution unconstitutionally places on the natural parent the ultimate burden of persuasion that an award of custody to the parent would serve the child’s best interests. Rummelt, LaMeche, and Glover, the case on which the Rummelt Court premised its analysis, did not acknowledge or address any constitutional implications of their decisions when applying both subsection 5(1) and 7(l)(c). Because Rummelt did not consider the United States Supreme Court’s recent reminder of the importance of the fundamental parental liberty interest, we note that we are not bound to follow Rummelt. MCR 7.215®(1).
We therefore conclude that in this case involving a fit natural mother seeking a change of her child’s custody from an established custodial environment with third persons, the trial court’s application of the test set forth in Rummelt, for resolving cases involving tension between the natural parent and established custodial environment presumptions, constituted clear legal error because it violated defendant’s fundamental liberty interest in raising her children. Troxel, supra at 72-73. In light of the fact that the evidence presented at the hearing did not weigh strongly against an award of custody to defendant, the trial court’s unconstitutional application of an incorrect burden of proof cannot be considered harmless. Consequently, we must remand this case for the trial court’s reconsideration. The trial court on remand must give defendant’s fundamental liberty interest in childrearing appropriate consideration, and should consider up-to-date information. Fletcher v Fletcher, 447 Mich 871, 889 (Brickley, J.), 900 (Griffin, J.); 526 NW2d 889 (1994).
In providing some guidance for the court on remand when attempting to reapply subsections 5(1) and 7(l)(c), the Court stated:
We note that several panels of this Court, although not speaking in constitutional terms, addressed the concurrent application of subsections 5(1) and 7(l)(c) in a manner that we find more properly deferential to the fundamental nature of the parent’s interest in childrearing when determining whether to grant the natural parent custody, thus changing the child’s established custodial environment with a third party.
“This Court has struggled with the interaction between these two presumptions on many occasions, most recently in Glover v McRipley, 159 Mich App 130; 406 NW2d 246 (1987). But see also Deel v Deel [113 Mich App 556; 317 NW2d 685 (1982)]; Stevens v Stevens, 86 Mich App 258; 273 NW2d 490 (1978); Siwik v Siwik, 89 Mich App 603; 280 NW2d 610 (1979); Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975). Having examined these cases, we agree with the Deel panel’s recognition that the two presumptions are not to be considered equally.
“ ‘[T]he language used in the statutes suggests] that the presumptions are not, in fact, of equal weight. While the established custodial environment is to be favored unless there is clear and convincing evidence that a change is in the best interests of the child, it is presumed that the best interests of the child are served by granting custody to the natural parent.’ ” [Deel, supra, p 561.]
“We also agree with the following language cited favorably in both Deel and Bahr, supra:
“ The presumption that the best interests of the child would be served by granting custody to the natural parent] remains a presumption of the strongest order and it must be seriously considered and heavily weighted in favor of the parent. Nevertheless, if the “clear and convincing” evidence establishes that the best interest of the child is served by awarding custody to the third party, the presumption is rebutted.’ ” [Deel, supra, pp 561-562.]
* * *
“While it is true that in any child custody dispute the overriding concern is for the best interests of the child, it is also presumed that the best interests of a child are served by placing custody with the natural parent, unless otherwise shown by clear and convincing evidence. MCL 722.25 .... We agree that a showing that a parent is unfit is not required to overcome this presumption. Stevens v Stevens, supra, and Bahr v Bahr, supra. Nonetheless, we construe the ‘clear and convincing evidence’ standard to be a substantive standard rather than just an evidentiary standard. . . . Consequently, in order to overcome the natural parent presumption, the trial judge was required to find that, when all of the factors in MCL 722.23. . . were collectively considered, defendant [the third party providing an established custodial environment] clearly and convincingly established that the best interests of the children required maintaining custody with defendant. It is not sufficient that defendant may have established by clear and convincing evidence that a marginal, though distinct, benefit would be gained if the children were maintained with him. [Henrikson v Gable, 162 Mich App 248, 252-253; 412 NW2d 702 (1987) (emphasis added).]”
See also Deel, supra at 562 (explaining that “[recognition of both presumptions does not. . . remove the third party’s burden to show that custody in his or her favor is in the child’s best interests”); Stevens, supra at 267 (“The presumption in favor of the natural parent is rebutted if clear and convincing evidence establishes that the best interests of the child are served by awarding custody to the third party.”); Bahr, supra at 359 (recognizing that the Child Custody Act required that the natural parent presumption “must be seriously considered and heavily weighted in favor of the parent,” but that the presumption is rebutted “if the ‘clear and convincing evidence’ establishes that the best interest of the child is served by awarding custody to the third party”).
We agree with the foregoing analysis of the appropriate interplay between subsections 5(1) and 7(l)(c). In enacting the Child Custody Act, the Legislature plainly recognized the fundamental constitutional nature of a parent’s interest in childrearing when it enacted the presumption that in all custody disputes involving natural parents and third persons, absent clear and convincing evidence to the contrary, parental custody served the child’s best interests. Subsection 5(1). The Legislature also clearly recognized the importance of an established custodial environment to the development of children. Subsection 7(l)(c). We do not believe, however, that the Legislature intended that in every custody dispute between a noncustodial natural parent and a third-person custodian, the third-person custodian could eliminate the fundamental constitutional presumption favoring custody with the natural parent, and thus arrive on equal footing with the parent with respect to their claim of custody to the parent’s child, merely by showing that the child had an established custodial environment in the third person’s custody. This interpretation, employed in Rummelt, fails to take into proper account the parents’ fundamental due process liberty interest in childrearing.
The Legislature has decreed that in any custodial dispute the child’s best interests, described within MCL 722.23, must prevail. Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001). [Heltzel v Heltzel, supra at 24-27.]
The Heltzel Court then concluded:
In every custody dispute involving the natural parent of a child and a third-person custodian, the strong presumption exists, however, that parental custody serves the child’s best interests. We hold that, to properly recognize the fundamental constitutional nature of the parental liberty interest while at the same time maintaining the statutory focus on the decisive nature of an involved child’s best interests, custody of a child should be awarded to a third-party custodian instead of the child’s natural parent only when the third person proves that all relevant factors, including the existence of an established custodial environment and all legislatively mandated best interest concerns within § 3, taken together clearly and convincingly demonstrate that the child’s best interests require placement with the third person. Only when such a clear and convincing showing is made should a trial court infringe the parent’s fundamental constitutional rights by awarding custody of the parent’s child to a third person. We reiterate the Supreme Court’s warning that “the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made,” Troxel, supra at 72-73, and remind trial courts considering competing custody claims of a noncustodial natural parent and a third-person custodian that it is not sufficient that the third person may have established by clear and convincing evidence that a marginal, though distinct, benefit would be gained if the children were maintained with him. Henrikson, supra at 253. [Heltzel, supra at 27-28.]
Here, the trial court expressed doubts regarding the proper standard to be applied in deciding defendant’s petition for change of custody. In light of the pronouncement in Heltzel regarding the appropriate standard to be applied in custody disputes between a natural parent and a third-party custodian, we conclude that a remand for an evidentiary hearing wherein the trial court can apply the standard announced in Heltzel is warranted. On remand, the trial court should consider up-to-date information. Fletcher v Fletcher, 447 Mich 871, 889; 526 NW2d 889 (1994).
Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.
The court found that the catchall factor favored defendant because of the presumption in favor of the natural parent.
This Court granted plaintiff’s motion for stay pending appeal. | [
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Hooker, C. J.
The complainants were owners in fee as tenants in common with the Appleton Land & Iron Company, one of the defendants, of the lands described in ’ their bill, and executed to said company a mining lease of their interest, whereby the company was authorized to mine iron upon the premises on a royalty of six cents a ton. The company made a large investment, but the enterprise was not successful, and it began negotiations with the Illinois Steel Company with a view to selling its plant and turning over to it the right to conduct mining operations upon the lands. At this time Mr. Hyde, the president of the Appleton Company, sought and obtained from these complainants a reduction of the royalty to four cents. This was evidenced by writings signed by the respective complainants and forwarded to him. He was unable to conclude a deal with the Illinois Steel Company, but subsequently made an arrangement with the American Mining Company, whereby the Appleton Company sold its plant to said company, which succeeded to the lessee’s interest in a portion of the leased property through assignments. This company was to pay a royalty at the rate of six cents a ton. It began operations, and made its first payment of royalty by sending checks to the complainants at the rate of six cents. Afterwards it wrote them that it had been laboring under a misapprehension in regard to the royalty, and asked the return of the extra two cents a ton over and above the four cents which they had agreed with Hyde to accept. Soon after, this bill was filed for an account between the several parties, and to set aside the several writings by which the complainants agreed to accept four cents a ton, and to require payment to them at the rate of two cents a ton for all iron theretofore mined, and for a decree that the American Mining Company should thereafter make payments of royalty at the rate of six cents a ton to them. The bill alleged that the Appleton Land & Iron Company, through its agent, Hyde, had fraudulently induced the complainants to make such agreements reducing the rate of royalty by the representation that he could not dispose of the lease at a royalty of six cents. The proofs show that after the execution of the first writings, whereby the royalty was to be reduced, Mr. Hyde called upon the complainants, and requested them to make a second writing, upon the representation that the first writing had not been acknowledged, which was necessary. These writings were conditioned upon a prospective arrangement with the Illinois Steel Company, the Cundy Mining Company, or the American Steel & Wire Company, or their successors or assigns. Upon the hearing the bill was dismissed.
We find the case to be one largely of fact, and from the evidence we are satisfied that the complainants were induced to sign these writings upon the representation that it was necessary to the consummation of any arrangement whereby the mines could be worked, and with the understanding and expectation that the royalties to be paid thereafter by the prospective successor of the Appleton Company would be four cents, and not six cents. It appears that Hyde succeeded in obtaining a royalty of six cents, and that his company received a profit of two cents a ton. We find nothing in the case to indicate that he ever offered an assignment of his lease at less than six cents, but, whether he did or not, we think his contract was fraudulent as to these complainants, and that they should be entitled to receive from the Appleton Company their proportionate share of the amount heretofore received by it, and that hereafter the American Mining Company should be required to pay their proportionate share of the royalties paid by it to the complainants.
We consider it unnecessary to discuss at length the legal questions raised by the defendants’ counsel. We think the Appleton Company is bound to respond for the fraud of its president, Mr. Hyde, who acted as' its agent in the transaction; that it cannot escape its responsibility upon the ground that the contract between itself and the American Mining Company cannot be rescinded; and we see no difficulty in requiring the American Mining Company to pay the royalty which it has agreed to pay to the persons who are justly entitled to it.
The decree of the circuit court is reversed, and a decree will be entered here in conformity to the prayer of the complainants’ bill, and the cause remanded for such further proceedings as shall be necessary to determine the state of the account between the parties, and for the enforcement of the decree. The complainants will recover costs of both courts.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Montgomery, J.
This is certiorari to review proceedings of the circuit court in which a mandamus was issued requiring respondent to reduce its fare. It appears that the respondent was organized as a corporation on the loth of July, 1896, under the railway law then in force, which, in paragraph 9 of section 9(2 Comp. Laws,, § 6234), fixes the rate of fare of railroad companies whose passenger trains earn more than $2,000 per mile at 2£ cents per mile. The respondent comes within this provision. The respondent company was organized, however, by purchasers of the property of the Grand Rapids & Indiana Railroad Company, on foreclosure of a mortgage given on the 1st day of August, 1884. At the time-this mortgage was given, the only limitation on the power to fix rates of fare was that it should not exceed three cents per mile. It is the respondent’s contention that under 2 Comp. Laws, § 6224, being section 2 of the-railway act, it succeeded to all the rights and privileges of the Grand Rapids & Indiana Railroad Company. The-answer states that the rate of fare of 2-J- cents per mile is unreasonable and inadequate, and, as this statement is admitted by demurrer to the answer, it is the respondent’s-contention that such a provision would be invalid as against the original railroad company, and that, as the-respondent has succeeded to the rights of the railroad company, it is equally invalid as to it.
The contention that a statute fixing unreasonable rates-would constitute an impairment of the property rights of the old company, is based upon numerous decisions of the federal supreme court and of this court. The subject was discussed in Smith v. Railway Co., 114 Mich. 460 (72 N. W. 328), and the rule was recognized in both opinions in that case that legislation, the effect of which is to deprive a corporation of its property, cannot be sustained under the power to alter, amend, or repeal. See, also, Attorney General v. Looker, 111 Mich. 498 (69 N. W. 929); City of Detroit v. Plank-Road Co., 43 Mich. 140 ( 5 N. W. 275). And that the fixing of unreasonable rates is an infringement of the property rights of an existing corporation, within the meaning of the fourteenth amendment, appears to have been determined by the federal supreme court in Chicago, etc., R. Co. v. Wellman, 143 U. S. 339 (12 Sup. Ct. 400); Reagan v Trust Co., 154 U. S. 362 (14 Sup. Ct. 1047); Covington, etc., Turnpike Road Co. v. Sandford, 164 U. S. 578 (17 Sup. Ct. 198); Chicago, etc., R. Co. v. Minnesota, 134 U. S. 418 (10 Sup. Ct. 702); and Lake Shore, etc., R. Co. v. Smith, 173 U. S. 684 (19 Sup. Ct. 565). The question in this case, however, is whether the defendant corporation stands in the same position in this respect as would the original company have occupied had there been no foreclosure. The briefs contain an elaborate discussion of the question as to how far, and in what respect, a charter, or a law authorizing an incorporation, is a contract. We do not find it necessary to discuss this question at length, for, in our view, it cannot admit of doubt that corporations formed under an existing law will not be heard to question the rates fixed by the statute. They cannot avail themselves of the provisions of the law which give them the right to do business, and disregard those provisions which are onerous. This was the view taken by this court in Jackson & Suburban Traction Co. v. Commissioner of Railroads, 128 Mich. 164 (87 N. W. 133), and has the support of authority in other jurisdictions. See 4 Thomp. Corp. § 5257, and cases cited. The case turns upon the question of whether the respondent is in position to insist that it occupies precisely the same'ground that the former corporation would but for the foreclosure.
2 Comp. Laws, § 6224, provides that:
“In case of the foreclosure and sale of any railroad, or part of any railroad, under any trust deed or mortgage, * * * it shall be competent and lawful for the parties who may become the purchasers, and such others as they may associate with themselves, to organize a corporation for the management of the same, and issue stock in the same in shares of one hundred dollars each, to represent the property in said railroad; and such corporation, token organized, shall have the same rights, powers, and privileges as are or may be secured to the original company whose property may have been sold under and by virtue of such mortgage or trust deed.”
The section then provides for a declaration or certificate of the purchasers at the sale, setting forth the description of the property, etc., the amount paid, and the stockholders to whom stock is to be issued, which shall be addressed to the secretary of State, and proceeds:
“And, being filed and recorded in his office, the said corporation shall become complete, with all the powers and rights secured to railroad companies under this act, to all the provisions of which, and amendments thereto, it shall be subject.”
When the mortgage in question was given, the section fixing the rates contained no limitation except that they should not exceed three cents per mile. It is contended that the legislature could not, by the amendment of 1889, enacted after the mortgage was made, withdraw from the bondholders the right to reorganize except on condition of submitting to the rates fixed by the statute. This question would seem to depend upon whether the legislation affected the bondholders’ remedy simply, or affected the right of property. It may be urged with some force that, if the legislature might prohibit any incorporation except on the terms of acceptance of unreasonable rates, the bondholders would be remediless, and that the right to reorganize is, in effect, a part of the mortgage contract, and that the rights and franchises of the debtor corporation vest in the purchaser on reorganization. If this view be adopted, and particularly if it be said that the purchaser 'could not, except through the instrumentality of a corporation, conduct the business of the corporation, it would be difficult to say that the amendment affects the remedy merely. Its effect would be, under such construction, to cut off the remedy, pro tanto at least; and, if the rates are so far unreasonable as to make the operation of the road a burden, the effect would be to cut off the remedy wholly, thus rendering the franchise valueless. This would be beyond the power of the legislature. Mundy v. Monroe, 1 Mich. 68; Cargill v. Power, Id. 369.
But is this the effect of the amendment ? May it not be said that the rights and property of this corporation vested in the purchaser upon the foreclosure sale, and that, independent of any express statutory authority to operate, the purchaser was authorized to maintain his property rights, and to operate this railroad in accordance with the franchise of the original company, and under precisely the same conditions? If this be so, the authority to incorporate was not essentially a part of the property right, but was a privilege granted by the State, which might be withdrawn. This latter view is enforced by the fact that, under the Constitution, the legislature possessed the power to alter, amend, or repeal this statute; and by the further fact that under section 2, as it has always existed, the right to reorganize by the purchaser at a foreclosure sale was limited by the provision that the corporation should be vested with the powers and rights secured to railroad companies under the act, to all the provisions of which, and the amendments thereto, it should be subject. More than this, the legislature possessed the power, under the Constitution, to repeal the statute. It could do this one day before the reorganization, or the next day after. While, by this means, it could not cut off the mortgage, or devest the mortgagee of his property rights, it could deprive him of the power of reorganization.
We think the legislation was not. unconstitutional, and the order of the circuit court is affirmed, with costs.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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] |
Moore, J.
This is a quo warranto for the purpose of testing the title to the office of judge of probate for Leelanaw county. Mr. Campbell, for some years prior to January 1, 1901, was judge of probate. He was a candidate for re-election at the November election in 1900. Mr. Garthe was also a candidate for election. The board of county canvassers met November 13th, and were in session that and the following day. They canvassed the returns, and decided that the relator was elected to the office of judge of probate, and gave him a paper so stating, which he claims is a certificate of election. The respondent filed a petition for a recount under the statute. This petition was filed with the board of county canvassers on November 14th, before their adjournment, as provided by statute; and the fees necessary to secure a recanvass were deposited with the board at that time. November 26, 1900, was fixed by the board as the time for making the recount. The petition, together with notice of the time for making the recount, was served on the relator on November 20, 1900, — six days before the recount. The recount was had November 26th. At the recount the board of county canvassers 'found that the respondent had more votes, according to the recount, than had the' relator, and forwarded him a statement to that effect. The relator was present with his counsel at the time of the recount, and it does not appear that he took any exception to the notice which was served upon him, or to having a hearing at that time, or made any objection because of the time of the notice or of the hearing, though he protested against the recount, claiming some of the ballot boxes had been tampered with. The relator and the respondent each filed an oath of office, and each claims to be elected, and to have a certificate of election from the board of canvassers. The respondent refusing to surrender the office, this proceeding was instituted.
Upon the trial the relator introduced what he claimed was a certificate of his election, his oath of office, and a demand for the office, and the refusal of respondent to surrender it. On the part of the defendant, what he claimed was a certificate of election, given to him by the canvassers after the recount, was received in evidence; but as it was not read into the record, and is no part of the bill of exceptions, we are unable to say what it contained. For the purpose of showing the canvassers had jurisdiction to make the recount, the respondent offered in evidence his petition for a recount, attached to which was the notice to the relator of the hearing, and the return of service upon him. Objection was made to its admission. The circuit judge was of the opinion the respondent must give the relator 13 hours’ notice of the hearing before the filing of the petition, but, in any event, this 13 hours’ notice must at least follow immediately after filing the petition, and that the board of canvassers should proceed forthwith to make a recount, and that the board of canvassers could not adjourn the hearing for 13 days. The circuit judge sustained the objection, and directed a verdict in favor of the relator.
The question involved is the construction which shall be given to sections 3671, 3673, 1 Comp. Laws, which read, in part, as follows:
“(3671) Seo. 10. Any candidate voted for at any election at which State, county, or district officers are voted for, who conceives himself aggrieved on account of any fraud or mistake in the canvass of the votes by'the inspectors of election or the returns made by said inspectors, may, on or before the close of the last day upon which the board of county canvassers meet, present to and file with the clerk of such board a written petition, which shall be sworn to, setting forth, as near as may be, the nature of the mistakes or frauds complained of, and the township, ward, or district in which they occur, and asking for a correction thereof. * * *
“(3673) Seo. 11. Upon filing the petition and making the deposit required in the preceding section, and giving at least twelve hours written notice thereof to the opposing candidate, by handing to such candidate a copy thereof, or, if such candidate cannot be found, by leaving such copy at his last place of residence, it shall be the duty of such board of canvassers to investigate the facts set forth in said petition. For such purpose the said board shall have power to cause the ballot-boxes used in such election districts to be brought before them. The board shall thereupon, in some public place where such candidates and their counsel may be present if they so desire, proceed forthwith to open the ballot-boxes from such districts, townships, or wards, and to make a recount thereof as to such candidates.”
It is claimed the construction given to this statute by the circuit judge is in accord with the opinion in Pound v. Board of Canvassers of Wayne Co., 130 Mich. 181 (79 N. W. 114), as follows:
“Additional evidence that neither this act nor the act of 1887 was intended to apply to State officers is found in the fact that by section 11 notice is required to be served on the opposing candidate 12 hours before presenting the petition to the board, or, if the candidate cannot be found, by leaving a copy of the notice at his last place of residence. It can hardly be assumed that it was intended to require the attendance of a candidate for State office at a county distant from his residence on 12 hours’ notice. Much less can it be inferred that leaving a notice at his residence 12 hours in advance of a hearing at which his rights would be affected would be deemed adequate by the legislature.”
An inspection of that case will show the question involved was whether, by the terms of the statute, it was intended to give a candidate for the office of circuit judge the right to a recount, and it was held it was not; and, as illustrating the intention of the legislature in passing the act, the language quoted was used by Justice Montgomery. The question of the notice or its timeliness was not involved at all in the case, and was not intended to be passed upon.
It does not appear why the board of canvassers made the adjournment. The county was a large one, without railroad facilities. Nor does it appear the adjournment was had at the request of the respondent. It does appear that, on the day of the hearing, the relator and his counsel and the respondent were present and participated in the hearing. The case of McKenzie v. Board of Canvassers of Port Huron, 70 Mich. 147 (38 N. W. 11), is in point. In that case the statute under construction was like the one involved here. The relator petitioned for a recount. The canvassers, thinking it unnecessary to make it, adjourned April 5th without taking further action. May 3d this court handed down an opinion holding the party who felt aggrieved had a right to a recount. An order was made requiring the canvassers, within 10 days after service of the copy of the writ of mandamus, to meet and make the recount. In this case the petition for a recount was filed in time.. Without the fault, so far as it appears by the record, of the respondent, the board, instead of refusing to make a recount, adjourned 12 days for the purpose of making it. If the board had utterly refused to act, this court would have compelled them to do so, even though more than a month had intervened. This being so, will it be held that because the board adjourned 12 days, and then acted, their action must be set aside, and the respondent lose his right to a recount ? We think this question must be answered in the negative.
Judgment is reversed, and a new trial ordered.
Hooker, O. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
In this case a bill of exceptions was settled, and the case brought to this court by writ of error, for the sole purpose of reviewing the action of the circuit court in refusing to grant a new trial. - '
The right to review the order of the court in refusing a motion for a new trial is purely statutory. It can only, in my judgment, be reviewed when a bill of exceptions is settled for alleged errors during the progress of the trial. The statute reads as follows:
“ That in all cases hereafter taken to the Supreme Court on writ of error or appeal, where a motion for a new trial has been previously refused by the trial judge, the party appealing the same may incorporate in the bill of exceptions a record of all proceedings had on said motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial. Exceptions may be taken and error assigned on the decision of the circuit judge in refusing such motion, and the same shall'be reviewed by the Supreme Court.” 3 Comp. Laws, § 10504.
I do not think the statute authorizes an independent bill of exceptions and writ of error to review the orders q£ courts upon such motions.
My Brethren do not agree with me in the views above expressed, and are of the opinion that the statute authorizes a writ of error and bill of exceptions upon a decision of the court upon motion for new trial. It therefore be-' comes essential to determine the question raised upon the motion.
After the case was submitted to the jury, the court, in the absence of counsel, permitted, at the request of the jury, certain of the plaintiffs’ exhibits to be sent to them. This is the sole ground now urged for a reversal of the judgment. The finding of the court upon this point is as follows:
“In that connection, it is the conclusion of the court that the action referred to was further justified by the peculiar circumstances of the case. The matter of allowing the jury to take and examine papers in the case was first called to the attention of the court by counsel for the defendant. This was opposed by counsel for plaintiffs, and considerable discussion was had thereon. Finally, counsel for plaintiffs withdrew their opposition, and consented to any exhibits in the case being given to the jury during their deliberation, if they were desired. Much discussion was had during the canvassing of this question, as the result of which the impression was given to the court that it was the desire, or at least agreeable to both parties, that any exhibits in the case should be given to the jury if they asked for them. At the conclusion of this discussion the court said to the jury in the presence of both parties, £ Counsel has stated that you can have these exhibits, gentlemen, if you wish them.’ Counsel for defendant made no objection at that time, although in the presence and hearing of the court when this statement was made. Later on, and while the jury were in their jury-room deliberating upon their verdict, they sent for certain exhibits, which were given to the officer in charge and taken to the jury. While tips was being done, the court sent for counsel for the respective parties, informed them of what was taking place, and told them — both counsel for plaintiffs and counsel for defendant — that any exhibits which they desired sent to the jury-room would be sent now, if they would suggest them. At that time the court for the first time learned that counsel for defendant were opposed to ,the jury having the exhibits during their deliberation. Such being the situation, the conclusion of the court is that the court was justified, under the peculiar circumstances of this case, in sending to the jury-room the exhibits called for; and also it is the conclusion of the court that it was, under any circumstances, a discretionary matter, and within the power of the court to allow the exhibits which were sent to the jury-room to be given to the jury when called for.”
The finding of the court that counsel consented to the exhibits being taken to the jury-room is conclusive, and renders it unnecessary to determine whether, without consent, the exhibits were properly submitted.
The judgment is affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Per Curiam.
Defendant was convicted of and sentenced for assault with intent to rob while being armed (MCLA § 750.89 [Stat Ann 1962 Rev § 28.284]) upon his plea of guilty in the Genesee County Circuit Court. His motion to withdraw his plea was denied. This is an appeal of right.
Motions to withdraw guilty pleas rest in the trial judge’s sound discretion. People v. Vasquez (1942), 303 Mich 340; People v. Palma (1970), 25 Mich App 682. This Court will not reverse unless it finds a miscarriage of justice in the record. People v. Collins (1968), 380 Mich 131; People v. Wade (1970), 24 Mich App 518.
We have examined the record carefully. The trial judge made a careful inquiry into the defendant’s alleged intoxication defense. We find no abuse of discretion.
Affirmed. | [
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Hooker, C. J.
The plaintiff was one of several banks holding promissory notes made by John Torrent, and indorsed by H. O. Lange, upon November 3*, 1896. On the same day Torrent and wife gave a deed of lands to J. F. Baars, as trustee, for the purpose of securing all of these-notes, taking an agreement by Baars defining the trust. Subsequently other property was conveyed to the trustee for the same purpose. In 1897 the trustee commenced foreclosure in chancery, and a decree was taken, upon defendants’ default, on May 13, 1897, providing for a sale-on or after March 23, 1898. On March 21, 1898, upon petition filed by the trustee, the court found that the amount then due was $35,404.46, besides the sum of $24,590 of principal not then due, and ordered sale of the-property. The decree contained no personal liability clause, and no provision for collecting a possible deficiency.. The bill asked for no personal decree for a deficiency,, and no steps have been taken in the foreclosure case to-collect a deficiency. All of the property was sold to the trustee for $32,600, and this amount, less expenses, was indorsed upon the notes then due in their order. Of the plaintiff’s six notes two were paid in full, and the others are the subject of this controversy.
On November 19,1898, Baars made a contract with one-Erwin that all of the property sold under the foreclosure-proceedings should be put into the hands of Erwin for sale. It provided that, “whenever acceptable sales .of said property should amount to the sum of $50,000 within the period of two years, such of said property as should then remain unsold should be duly conveyed to Erwin or to his assigns, as and for their property, absolutely,” and “ that whatever should remain uncollected or unsecured of the debt and deficiency on said respective notes against John Torrent and Herman O. Lange at the expiration of said two years should also be duly assigned and transferred to Erwin or to his assigns absolutely.” On February 19, 1899, — being three months after said contract was made, — this action was brought upon the notes, and process in garnishment was served upon Patrick A. Ducey,' Ida M. Lange, and Caroline Torrent. On May 23, 1899, disclosures having been filed, demand for the examination of the garnishees, and for a trial of the statutory gar nishee issues, was served upon each garnishee. About February 6, 1900, Erwin completed his contract with the trustee, and on March 31, 1900, he assigned his rights under it to Montgomery. The trustee thereupon deeded the real estate to Montgomery, who, on November 20, 1900, assigned the contract, and all his interests under it, except the real estate, to Ducey.
In this action upon the notes the defendants sought to make four defenses, which, as no question is raised upon •the pleadings, may be stated briefly:
1. That the deeds of trust were foreclosed by arrangement between the defendants and the trustee for the purpose of getting rid of certain levies on behalf of other ■creditors upon the property, under an agreement between them that after sale on foreclosure, and purchase by the trustee, the lands should be sold at private sale and the proceeds should be indorsed upon the notes; that the sale was made to Erwin for $50,000, and that said sum should he applied upon the notes.
2. That the trustee and the defendants agreed that the trust deeds should be foreclosed, the liens of other creditors thus cut off, and that the lands should be bid in by the trustee in full of all demands; that such sale and purchase was had, and the notes were thereby satisfied.
Subsequently a second plea was filed, and under this defendants claim:
3. That the title to the notes in suit is now in Ducey, under the assignment which was made after this action was begun.
4. That plaintiff’s only remedy for the collection of the ■deficiency remaining after the foreclosure sale is under the •chancery decree.
The court directed a verdict for the defendants upon the theory that the title to these notes was in Ducey, holding that the garnishment proceedings were not such security as would preserve the title to the notes in the plaintiff. The plaintiff has brought erroi\
The right of the plaintiff to a judgment is said to rest upon the garnishee proceedings, because they furnish the only ground for claiming that it has obtained any further security within two years, under the contract. It is contended that, if it can be said that such proceedings are not “security,” within the meaning of the contract,' or if they are void because of a want of jurisdiction in the main cause, or if they must fail because the record shows that the plaintiff is not entitled to recover in the main case upon the merits, in either of these contingencies the judgment must be affirmed. It is necessary to consider each of these questions, for the reason that, if any one of them warranted the direction of a verdict in favor of the defendants, the judgment .must be affirmed.
The contract with Erwin bound the plaintiff to assign and transfer, upon the performance of certain conditions within two years, so much of its claim as should then be uncollected or unsecured. This provision indicates that plaintiff proposed to proceed with its attempt to collect its-claim, and as to amounts collected the contract would not apply. The same was true of any amount not collected if it should be secured. It is insisted by the defendants’' counsel that the service of garnishee process cannot be-called security, within the contract, and we infer from the brief that their contention is that anything that falls short of giving plaintiff a lien for its claim upon specific property cannot be such security. Many authorities are cited to-sustain the position that garnishment proceedings, like-creditors’ bills, do not create such liens. The difficulty -is-with the premise which assumes that liens upon property are the only kind of security contemplated. We have no-doubt that the language used was meant to include any kind of substantial security from which the debt might be made,' such as levies by execution or attachment, which would be as binding as mortgages. Again, had these defendants seen fit to give security by way of indorsers, it would have been within the fair meaning of the contract, by which this plaintiff reserved the right to collect or secure its claim for two years. Mr. Erwin’s own testimony indicates this, and the garnishment proceedings- were begun within three months after the contract was made. Many authorities are cited in plaintiff’s brief sustaining this interpretation of the word ‘ ‘ security '' among these 1 Rap. & L. Law Dict. pp. 320, 352; 2 Rap. & L. Law Dict. p. 1164; First Nat. Bank of Stewart v. Hollinsworth, 78 Iowa, 575 (43 N. W. 536, 6 L. R. A. 92); Buckingham v. McLean, 13 How. 150; Oliver v. Sterling, 20 Ohio St. 391; Field v. Holland, 6 Cranch, 8; Levy v. Lovell, 14 Ch. Div. 234; In re Stanhope Silkstone Collieries Co., 11 Ch. Div. 160; Storm v. Waddell, 2 Sandf. Ch. 494, 506; Rood, Garnish. § 7.
It is contended that the denials of liability by the garnishees through their disclosures is conclusive, and that, in view of them, there is no substance to the claim that the plaintiff has security. That would perhaps be so if the disclosures were conclusive. They are not, under our statute. The plaintiff has the right to an examination and a trial, upon which it may establish the garnishees’ liability over their denial. By its process it has subjected them to liability, and made them accountable for any property, etc., within their control. In a sense it has security on such property or fund, for the garnishee is legally bound to retain and produce it, and, while he may have the physical power to dispose of it, he incurs a personal liability thereby.
This brings us to the further question of plaintiff’s right to sue. Leaving out of the question the chancery proceedings, may the plaintiff sue ? Defendants’ theory seems to be that Ducey is the owner of these notes, and we may add, if this be so, it might be claimed that there is no way of determining that plaintiff has security in the garnishee matter, and is therefore not entitled to judgment in the main suit until judgments have been rendered therein, and, as there can be no such judgment until plaintiff obtains a judgment in this suit, the plaintiff’s proceedings are at a “dead-lock.” The vice in this contention is that Ducey never owned these notes. They have always belonged to the plaintiff. If it has refused to per form its contract by assigning the claim to Ducey according to its promise, it does not follow that he is the owner. Plaintiff made an executory contract with Erwin. Both parties have done something towards performance. Erwin has sold enough of the property to produce $50,000. The plaintiff has conveyed the remainder to Erwin’s assignee. It has not assigned its claim, because it maintains that Erwin is not entitled to it under the contract. It has retained the title to the notes and to the decree, and seeks to enforce its alleged claim. Title to neither has passed to Ducey, whatever the sequel may show him to be lawfully entitled to under his contract. Both parties must have contemplated that plaintiff would retain title so long as it had an interest, and therefore that it would only pass by an assignment, as provided for in the executory contract. Ball v. Silver, 17 Ind. 539; Scott v. Metcalf, 13 Smedes & M. 563. The plaintiff is entitled to a judgment upon the notes if they have not been paid, unless by reason of the trust agreement or subsequent chancery proceedings it has been deprived of such right. Ducey has his remedy upon his contract. If it is not clear upon this record that the purchase at foreclosure sale was not in full of plaintiff’s claim, and that the trustee was not under obligation to apply the sum of $50,000 upon the claims in his hands, these matters were certainly disputed questions of fact, and apparently the learned circuit judge so considered them.
It remains to discuss the effect of the chancery proceedings as an obstacle to this suit. The circuit court has jurisdiction of this case prima facie. If, by reason of the pendency of another suit, this action should be abated, it is elementary that a dilatory plea should have been interposed at the outset. But it was not. The general issue was pleaded, with a notice. Subsequently a further notice was filed and served, in which the point is raised, and all questions are tried together. It is claimed that, at the most, the bringing ®f this action is an irregularity, and that it has been waived; but we find it unnecessary to de cicle the question. The chancery proceeding was brought by the trustee to realize upon a security. There is nothing in the deed or declaration of trust that contemplated that he should go further than to realize upon the security in his hands, and apply it upon the debt. It is true that the agreement contains a promise by defendants to pay the amount of the claims in his hands, and this is followed by a power of sale; nothing more. It is possible that the statute should be so construed as to make it within the power of the trustee to proceed in chancery for a deficiency, but the trustee has not so construed this writing. He has made no claim for a deficiency. The decree determined the amount due, of necessity, but no attempt was made to declare or define the extent of any personal liability. We think that, under the circumstances, a court of chancery should not have refused leave to bring this suit had the privilege been asked, nor should the circuit court have stayed proceedings had a motion been made.
It is claimed that these notes were merged in the decree rendered in the foreclosure case, and that they cannot, therefore, be the foundation of a judgment in this case. The question is raised for the first time in this court. Had it been raised in the circuit court, the circuit judge would doubtless have permitted the addition of a proper count, if necessary. The decree was rendered in the case before the full amount of these notes was due, and, while it determined the amount of principal to become due on the aggregate of notes payable to several persons at some time or times not stated, it does not show how much was based upon the plaintiff’s notes. Whether, under such ■circumstances, it can be said that the notes are merged in the decree, we need not decide. The point is a technical ■one, and, not having been raised by counsel or considered by the court, we think it should be disregarded here. Plaintiff should be permitted to amend its declaration if it chooses to do so.
. The judgment is reversed, and a new trial ordered.
Moore, Grant, and Montgomery, JJ., concurred. Bong, J., did not sit. | [
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Moore, J.
This case was commenced by petition for mandamus from the circuit court of Grand Traverse county to the mayor and common council of the city of Traverse City, directing the mayor and common council to convene, and grant to the petitioner the right to lay its main gas pipes in certain streets of said city. The circuit judge refused to grant the relief prayed. The case is brought here by certiorari to review his action. The important question involved is, What are the rights of the respective parties under an ordinance granted in January, 1901? three sections of which read as follows: Section 1 provides:
“That H. B. Webber and E. F. Gallagher, of Ionia, Michigan, their associates, successors, or assigns, as individuals, or as a body corporate, under the name of the Traverse City Gas-Light Company, be and they are hereby authorized to use, ‘ for the term of thirty years from the passage of this ordinance, subject to the provisions of this ordinance and to such rules and regulations as the council of said city may from time to time prescribe, any and all of the streets, lanes, alleys, and public grounds in said city, including any territory that may hereafter be added to the same, for the purpose of constructing and maintaining a gas-light plant in said city, and to lay down and maintain in said streets, lanes, alleys, and public grounds, from time to time, as said company, its successors or assigns, may deem expedient, iron pipes for carrying gas for supplying said city and the inhabitants thereof with gas: ’ Provided, that said company shall not unnecessarily obstruct the passage of any street, lane, alley, or public ground, and shall, within a reasonable time after making an opening or excavation for the purpose aforesaid, repair the same, and leave it in as good condition in all respects as before such excavation was made.”
Section 7 provides:
“That said main pipes shall be laid in alleys whenever practicable, and when so ordered by the council. Said grantees, before laying any such pipes in the streets, alleys, highways, and public places in said city, must first obtain permission therefor from the council upon application in writing.”
Section 9 provides:
“That twenty-four hours before opening any street, alley, or public place, the said grantees shall give notice to the board of public works in writing of such intention, stating the place where and the object for which such opening is to be made, and shall obtain from the board of public works a permit therefor.”
In pursuance of the requirements of the ordinance, Webber and Gallagher made application to the common council for permission to lay main pipes on certain streets of said city, which was referred to the street committee, and the request granted upon their report. At the time of making the report granting the request referred to, the street committee, upon its own motion, granted permission to lay the main pipes on territory extending beyond that to which permission was asked, which system, as reported by the committee, may be called a “system through the alleys.” Webber and Gallagher refused to accept the permission so gratuitously extended, claiming they did not deem it expedient or practicable to lay the main pipes as designated and prescribed in said report, on account of the large and extra outlay in laying the pipes and in making connection with consumers.
On July 15, 1901, Webber and Gallagher asked for per.mission to lay the main pipes upon a number of streets in the said city beyond the permits already granted. The common council, upon receiving this application, laid the same on the table, and assigned as a reason that certain property owners and citizens living upon Union street and Sixth street had remonstrated because of the fear of the, citizens that escaping gas from the main pipes might kill the shade trees along said streets, and further claiming that it was practicable to lay pipes in the alleys; and said council insists upon petitioner laying its pipes according to the plan in the places so reported by the street committee to the common council, and adopted by it, claiming that, under section ? of the ordinance, said council has the right to require the pipes to be laid in the alleys, and that they are judges of whether it is practicable or not.
The petition alleges that before it was filed, and after the ordinance was granted, petitioner had made an investment of $35,000 to begin and erect its plant that was then in process of construction. It avers the. council has no right to compel the relator to put its pipes in the alleys, and that it will cost a good deal more to do so than in the streets.
The council answered this petition, and insisted it was practicable to use the alleys. It denied the relator had made application for the use of the streets described in its petition. It admitted a communication from the relator in reference thereto, and claimed that the council was ready to receive and entertain and act upon any and all proper petitions to lay pipes in the alleys or streets, but stated that “it was the intention of the council to require the main pipes to be laid in the alleys whenever practicable so to do, and when, in the exercise of the judgment and discretion of the council, it shall deem it advisable and expedient to do so.” It is claimed in the answer that the laying of the mains in the streets would kill the shade trees; that preparations are being made to pave the principal streets of the city in the immediate future with asphalt pavement, and, if the pipes are laid in the streets, it will prevent the use of that kind of pavement, because the escaping gas will disintegrate and destroy such pavement, and such has been the experience of cities where gas mains have been laid under asphalt pavement.
At the request of the relator certain questions were submitted to a jury. The jury made findings in relation to these questions. Those we deem material are as follows:
‘ ‘ The difference in expense in laying the main pipes to petitioner between the two plans was $2,723.50.
“ The difference in expense in connecting with consumers between the two plans was $4,330.
“That 104 more consumers could be reached under the city’s plan than the relator’s plan.
“That certain alleys were not as well adapted in their present condition for laying main pipes as the streets.
“That the alley between State street and Front street from Union street to Franklin street, the alley between State and Washington streets from Park street to Franklin, the alley between Sixth and Seventh from Bohemia to Oak, the alley between Eighth and Ninth from Bohemia to Oak, the alley between Ninth and Tenth from Bohemia to Oak, Bohemia street from Sixth to Twelfth, alley east of Union street from Seventh to Twelfth, alley between Eighth and Ninth, Ninth and Tenth, Tenth and Eleventh, Eleventh and Twelfth, to Lake avenue, being adjacent to the streets the use of which was demanded by the relator, were as well adapted for laying gas mains as the streets.
“That the extra expense in reaching consumers and laying main pipes under the city’s plan would deprive the relator of its profits for two and one-half years.”
It is insisted on the part of the respondent that mandamus is not the proper remedy; that, if it was, the writ is prematurely brought. We do not deem it necessary to pass upon these two questions.
In the brief, counsel for relator say:
“ When the city granted the franchise to relator by section 1, it invested the relator with the absolute right to lay its pipes in any of the streets, alleys, or public places in said city, whenever the relator might deem it expedient so to do. City of Kalamazoo v. Kalamazoo, Heat, Light & Power Co., 124 Mich. 74 (82 N. W. 811).”
We think counsel state the rule wrongly. A reference to the case will show that, in the franchise there granted, the city failed to reserve the right to say where the pipes should be laid, and it was said, in view of that situation:
“It is doubtless true the ordinance was not a wise one to make, but it was within the power of the council to make it, and the city is bound by its terms.”
It is not probable, had the city reserved the right to have the pipes laid in the alleys, the reservation would not have been upheld.
Section 7123, 2 Comp. Laws, which defines the general powers of these companies, among other things provides the pipes “ shall be laid with the consent of the municipal authorities of such cities, townships, or villages through which the same are laid, under such reasonable regulations as they may prescribe.” In People v. Gas-Light Co., 38 Mich. 154, it is said:
“The State has shown by the incorporating act that public policy is not opposed to, and is in favor of, allowing gas companies to exist, as they only can exist by having power to lay their pipes. The consent of the municipal corporation is required because the terms on which streets may be safely allowed to be occupied for the purposes of laying gas pipes can be best determined by leaving the regulation to be harmonized with all other exigencies by the authorities controlling their use. The law contemplates that permission will not be unreasonably refused or unreasonably burdened, but regards the municipality as competent to determine the proper conditions for itself.
“The exercise of the power of using streets for laying-gas pipes is rather an easement than a franchise, and a similar power is used as often for private drainage and other purposes as for more general purposes. It is a matter peculiarly local in its character, and which should always be, to a reasonable extent, under municipal supervision, to prevent clashing among the many convenient uses to which ways must necessarily be subjected for water, drainage, and other urban needs. ”
In Rapid Ry. Co. v. City of Mt. Clemens, 118 Mich. 133 (76 N. W. 318), it was held that a street-railway company which is authorized to put in a Y at a given street, with the proviso that the company shall, if so ordered by the common council, remove the Y within 60 days after service upon it of a copy of an order requiring the removal, is bound by the proviso, and must remove the Y. See, also, Citizens’ Electric Light & Power Co. v. Sands, 95 Mich. 562 (55 N. W. 452, 20 L. R. A. 411); Detroit Citizens’ St. Ry. Co. v. City of Detroit, 110 Mich. 384 68 N. W. 304, 35 L. R. A. 859, 64 Am. St. Rep. 350); City of Saginaw v. Swift Electric Light Co., 113 Mich. 660 (72 N. W. 6); Horner v. City of Eaton Rapids, 122 Mich. 117 (80 N. W. 1012). Ordinances conferring-grants are construed liberally in favor of the public. City of Detroit v. Railway Co., 95 Mich. 456 (54 N. W. 958, 20 L. R. A. 79, 35 Am. St. Rep. 580).
‘ ‘ In this case the council, unlike the council in City of Kalamazoo v. Kalamazoo Heat, Light & Power Co., supra, reserved to itself the right to say “ that said main pipes shall be laid in alleys whenever practicable, and when so ordered by the council,” and required the corporation, before laying pipes, to obtain the permission of the council. The first time permission was granted to lay any pipe the same committee which reported in favor of granting that permission reported out the present plan, which was adopted at the same time the permission was given. Before a foot of pipe was laid by the corporation, it knew what interpretation the council put upon the provisions of section 7. The provisions of this section are as much a part of the agreement the relator has with the city as any part of it. If the contention of the relator is to prevail, the attempts of common councils, when granting like franchises, to safeguard the interests of the city or village for which it is acting, will prove abortive, and, when the franchise is once granted, the control of the city or village over the streets is lost. It has not been made to appear that the laying of the pipes in the alleys as required by the council is not practicable.
The order of the circuit court is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long,' J., did not sit. | [
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McGregor, P. J.
This is an open-intersection automobile negligence case. On November 21,1967, at about 12:50 in the afternoon, an automobile collision occurred at the intersection of Sunset and Northlawn in Bast Lansing, Michigan. The plaintiff and his passenger were travelling east on North-lawn in a 1966 Volkswagen; defendant Daniel Miller, driving a 1968 Oldsmobile Cutlass owned by his father, defendant James P. Miller, was travelling north on Sunset, accompanied by a friend. The intersection of Northlawn and Sunset is not controlled by any traffic sign or signal; the speed limit for both streets was 25 miles per hour. At trial, neither plaintiff nor his passenger were able to recall any of the events of the accident. At the conclusion of the trial the jury returned a verdict in favor of plaintiff in the amount of $17,500 plus $1,190 to plaintiff’s insurance company as subrogee. Defendants moved for a new trial; the trial court, finding the jury’s verdict excessive, ordered that plaintiff file a remittitur of $5,000 or else the motion for a new trial would be granted. The remittitur was filed and defendants’ motion for a new trial was denied. Defendants appeal as of right, raising numerous allegations of error.
Defendants first contend that the trial court erred in granting plaintiff’s motion for an order preventing cross-examination of plaintiff regarding his prior traffic convictions. It appears that the admission of evidence of prior traffic convictions is proper when limited solely to testing credibility. See GCR 1963, 607; Taylor v Walter, 385 Mich 599 (1971), adopting on rehearing Justice Black’s opinion for reversal, Taylor v Walter, 384 Mich 114, 117-120 (1970); Sting v Davis, 384 Mich 608 (1971).
In Sting v Davis, supra, 613-614, the Supreme Court stated:
“GCR 1963, 607 was adopted by this Court in accordance with its rulemaking powers as to evidentiary matters. The central issue in practically every contested motor vehicle accident case is whether defendant-driver was guilty of negligence and, if the plaintiff was the driver of the other motor vehicle, whether he was free from, contributory negligence. As to the defendant, the question which confronts the jury is whether to believe the claim of the plaintiff that the defendant was negligent or the claim of the defendant that he was not negligent and, as to a plaintiff-driver, the issue is just the reverse. Almost invariably, as in this case, the defendant asserts, ‘I did not drive in a negligent fashion.’ If the plaintiff was also a motor vehicle driver, as in this case, he makes the same assertion as to his driving upon finding himself accused of being the responsible party because of negligent driving. On the issue of whom to believe, the driving record of a plaintiff or of a defendant can become a crucial evidentiary factor. That driving history, both before and after the accident, whether it be for serious or minor infractions of the vehicle code, can have a vital bearing in enabling a jury to determine the truth of a plaintiff’s or a defendant’s testimony as to the exerbise of due care.
“We conclude that under GCR 1963, 607, as presently adopted by this Court, a trial judge has no discretion to exclude cross-examination with regard to the driving history of a plaintiff-driver or of a defendant-driver, such cross-examination being proper to test the credibility of the witness’ testimony with regard to the central fact issue in the case.” (Emphasis added.)
In the instant case, plaintiff’s credibility regarding his exercise of due care was not at issue because, when plaintiff took the stand, he testified that he could not remember any of the circumstances of the accident, due to amnesia which resulted from the accident. Consequently, defendant had no right to impeach plaintiff’s credibility with regard to his exercise of due care as a result of plaintiff’s lack of testimony as to the circumstances surrounding the accident. Sting v Davis, supra, 613-614. Similarly, plaintiff’s driving record is not relevant with respect to the impeachment of plaintiff’s testimony that he had amnesia. Furthermore, plaintiff’s driving record is not admissible, independently, to establish whether or not plaintiff exercised due care.
Where plaintiff has not testified as to his exercise of due care, but has specifically denied remembering any of the circumstances of the accident in question, his past driving record may not be used to impeach his credibility for the simple reason that plaintiff has not made his exercise of due. care an issue by his testimony and, therefore, there is no issue of credibility which his driving record could impeach.
In the instant case, the trial court was of the opinion that the introduction by defendant of plaintiffs driving record would serve no purpose other than irreparably to prejudice plaintiff’s case. There is no issue of credibility which plaintiff’s driving record could impeach and this Court finds that the trial court’s ruling was not erroneous.
Defendants next contend that the trial court erred in allowing, over objection, plaintiff’s witness Marley Hart to express his opinion of the speed of defendant’s vehicle just prior to the collision. In Hicks v Bacon, 26 Mich App 487, 493-495 (1970), this Court stated:
_ “One need not qualify as an expert in order to testify as to matters one learns through ordinary observation such as the rate of speed at which a vehicle is going, provided a witness is. fully interrogated as to the knowledge upon which his judgment is based, so that a jury can determine what weight should be given to his statements. Stehouwer v. Lewis (1929), 249 Mich 76, 81. The competency of testimony as to speed of automobiles is not necessarily determined by specific distances or times but by causal connection with the accident. Bryant v. Brown (1937), 278 Mich 686.
“Several cases from our Supreme Court have dealt with observations of witnesses as to the speed of moving vehicles in relation to proximity of the vehicles to the accident when first observed. In Hinderer v. Ann Arbor Railroad Co. (1927), 237 Mich 232, a witness who first noticed a train two feet from an accident was incompetent to testify as to the velocity of the train. Wright v. Crane (1905), 142 Mich 508, held that a witness did not have an adequate opportunity to observe the speed of an automobile when it was first seen at night and without headlights 20 feet from the point of impact. In Harnau v. Haight (1915), 189 Mich 600, a witness who qualified as an expert was permitted to testify after observing an automobile for only 20 feet from the accident. In Jakubiec v. Hasty (1953), 337 Mich 205, a witness (who was a streetcar motorman and who probably should have qualified as an expert) was held incompetent to testify when it was clear he had seen the automobile for only 15 feet before the accident. Witnesses who were in positions to view automobiles 40 feet or more before the points of impact have consistently been held competent to estimate the speed of the vehicles. See Jones v. Detroit Taxicab & Transfer Co. (1922), 218 Mich 673 (40 feet); Zylstra v. Graham (1928), 244 Mich 319 (50 feet); Stehouwer v. Lewis, supra (200 feet); O’Brien v. Wahl (1953), 335 Mich 601 (107 paces). Any attempt to reconcile these cases is futile. Probably the better rule is that of the Stehouwer and Bryant decisions: i.e., that speed testimony should be admitted where the jury is made aware of the witness’ opportunity to observe so that the admission of such testimony is not made contingent upon specific times or distances and the weight to be given this testimony is for the jury to decide.
“While estimates of speed based solely on opinions of the force of impact are not admissible, Jackson v. Trogan (1961), 364 Mich 148, Hinderer v. Ann Arbor Railroad Co., supra, the witness in the instant case gave her estimate of speed based upon her observation of the Bacon car and the resulting force of the collision. The weight of her testimony was for the jury.”
The record shows that the jury was made aware of the witness’s opportunity to observe the accident between plaintiff and defendant, and the sole question here is what weight the jury was to give to this testimony. This is within the exclusive province of the jury and consequently the trial judge did not err in allowing the witness to testify as to his opinion as to the speed of defendant’s vehicle.
Defendants next allege that the trial court erred in admitting into evidence, as a part of plaintiff’s hospital record, the consultation report of Dr. Jakubiak. In Shinabarger v Phillips, 370 Mich 135, 141-142 (1963), the Supreme Court said:
“Appellant contends it was error to admit hospital records, made and kept in the regular course of business, concerning plaintiff’s treatment and the diagnosis which showed that he had suffered a concussion. CL 1948, § 617.53 (Stat Ann 1962 Rev § 27-.902), in effect when this case was tried made the records admissible in evidence. See Harrison v. Lorenz [1942], 303 Mich 382; Valenti v. Mayer [1942], 301 Mich 551; Harvey v. Silber [1942], 300 Mich 510; and Gile v. Hudnutt [1937] 279 Mich 358, The fact that one of the records contained a diagnosis by a physician not called as a witness does not render the record inadmissible. It was supported in its content by the testimony of another doctor. No prejudice to appellant occurred in this respect.” (Emphasis added.)
In the instant case there was medical testimony by one of the plaintiff’s witnesses, Dr. Trager, which supported the objected-to diagnostic evidence. Dr. Trager stated that “he [plaintiff] could not remember what happened.” There is also other evidence in the admitted hospital records which indicates plaintiff’s inability to remember things. It, therefore, appears that, in full compliance with the holding of Shinabarger, supra, the objected-to diagnostic report of Dr. Jakubiak was otherwise substantiated on the record and, as such, was properly admitted into evidence. There was no reversible error by the trial court.
Defendants further contend that the trial court erred in denying defendants’ motion to strike the testimony of plaintiff’s rebuttal witness, Lucille Dunabeck. The admission of rebuttal testimony is purely within the discretion of the trial court. See Gilchrist v Mystic Workers of the World, 196 Mich 247 (1917), and Blickley v Luce’s Estate, 148 Mich 233 (1907). The trial court did not abuse its discretion in allowing plaintiff’s rebuttal testimony.
The defendants also allege that the trial court erred in its instructions to the jury. Beading the trial court’s instructions as a whole, which we must do, we find the instructions were not erroneous.
Finally, defendants contend that the trial court erred in refusing to direct a verdict in defendants’ favor and in denying defendants’ motion for a new trial. In the instant case there were many disputed factual questions and, consequently, the case was properly submitted to the jury. Furthermore, there does not appear to be any abuse of discretion on the part of the trial court either in refusing defendants’ motion for directed verdict or in denying defendants’ motion for new trial. As there was no abuse of discretion on the part of the trial court, the trial court is affirmed. People v Mattison, 26 Mich App 453 (1970).
Affirmed.
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Pee Ctteiam.
The defendants pled guilty to armed robbery of a gas station attendant, MCLA § 750.529 (Stat Ann 1971 Cum Supp §28.797). They were represented by a retained, experienced criminal lawyer. On February 19, 1971, defendant Powell was sentenced to a term of five to ten years in prison and defendant Webber was sentenced to a term of six to ten years in prison. The maximum sentence for armed robbery is life imprisonment.
On appeal, appointed appellate defense counsel presents three questions, none of which are briefed or argued. Therefore, they are considered abandoned. People v. Williams (1971), 29 Mich App 420 and People v. Heard (1971), 31 Mich App 439. Appellate defense counsel’s argument, as opposed to the issues he states, concerns alleged error in sentencing the defendants without showing them or their attorney their presentence reports.
In People v. Malkowski (1971), 385 Mich 244, decided June 7, 1971, the Court held that on the facts of that case there was no miscarriage of justice in the refusal of the court to allow defense counsel to see the presentence report. However, the implication of the decision was that granting a defendant’s request to see his presentence report was not a matter of judicial discretion.
The sentencings in the present cases were before the Malkowski case was decided. The defendants have never asked to see their presentence reports, and there are no presentence reports before this Court for review as to a possible miscarriage of justice. The parties have notified the court that they do not request oral argument. Under these circumstances, we find the issue so unsubstantial as to require no formal submission.
The motions to affirm are granted. | [
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Per Curiam.
Plaintiff Carol Wilson obtained a default judgment granting her a divorce from defendant Raymond Wilson on August 21, 1970. Defendant’s motion to set aside the default judgment of divorce was denied by the trial court. He appeals as of right.
Defendant contends that the trial court’s distribution of the marital assets was unjust and constituted an abuse of discretion on the part of the circuit court judge.
In Isbey v. Isbey, 31 Mich App 185, 188 (1971), this Court in reviewing a default judgment divorce decree stated:
“Finally defendant complains that the court abused its discretion in the division of the marital property. Although our review is de novo, we give special weight to the trial judge’s findings. Guenin v. Guenin (1970), 28 Mich App 449; Westgate v. (1939), 291 Mich 18. We feel that the award made in the case gives due consideration to the standard set forth in Johnson v. Johnson (1956), 346 Mich 418, and we are unconvinced that we would have had to reach a different result had we occupied the position of the trial court. Paul v. Paul (1960), 362 Mich 43; Ross v. Ross (1970), 24 Mich App 19.”
In Johnson v. Johnson, 346 Mich 418, 431 (1956), the Michigan Supreme Court held that an award to the wife of 90% of the property accumulated during a 19-year marriage was not an inequitable distribution since all available factors involved were considered. These factors included: source of property, contribution toward its acquisition, the years of married life, the needs of the parties, their earning ability, the cause of the divorce, and even the needs of the children.
In the case at bar we do not find that the trial court abused its discretion in making the property settlement. The record indicates that the Johnson standard was complied with. Furthermore, the letter written by defendant to plaintiff, prior to this divorce, proposed the identical property settlement which the court authorized. While we agree with the defendant in his contention that the letter had no binding contractual effect, it is a strong indication that defendant felt such a property settlement equitable and just. The trial court’s decision was therefore proper under all of the circumstances of the case.
Affirmed. | [
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O’Hara, J.
Defendants, Lawrence Henry Horowitz and William Kozin, were charged in a six-count information with conspiracy to commit arson and substantive arson offenses. MCLA § 750.73 (Stat Ann 1962 Rev § 28.268); MCLA § 750.75 (Stat Ann 1962 Rev § 28.270); MCLA § 750.77 (Stat Ann 1962 Rev § 28.272).
The trial court directed verdicts for defendants on the conspiracy charges (counts 1-3) but allowed the arson charges to go to the jury which returned verdicts of guilty. They were placed on probation and fined $2,000 by the court. This appeal followed of right.
The specific charges upon which they were convicted were: (1) the wilful and malicious burning of the premises which they rented in their catering service, the premises not being a dwelling house or a building within the curtilage of a dwelling house; (2) the malicious and wilful burning of the previously described building which was insured, with intent to defraud the insurer; and (3) the unlawful placing of inflammable and combustible substance in the building with the intent eventually to burn the property.
Defendants allege that the people failed to establish the corpus delicti of the crime and that the proofs were insufficient to rebut the presumption that the fire was caused by accidental or natural means.
It is imprudent to discuss the corpus delicti of the crime of arson in a generic sense because of the statutory variations of the offense as it was known to the common law. Mr. Justice Fead, speaking for a unanimous Supreme Court, observed that in general terms, “The corpus delicti in arson includes not only the fact of a fire, but also that it was unlawfully caused by a person”. People v. Porter (1934), 269 Mich 284, 289. These requisite elements were established in part by direct testimony and in part by permissible inference from established facts.
There was expert testimony tending to show that the most intense burning took place in the south banquet hall of defendants’ business premises. Other testimony indicated that at the point of greatest destruction plastic remnants were discovered in which was found traces of a flammable liquid. It was the opinion testimony of a duly qualified expert witness that the fire was of an incendiary nature. That is to say, set by a person.
The record discloses that defendants had both the opportunity and the motive to set the fire. They had ready access to the premises. Their admittedly precarious financial condition furnished a plausible motive of recouping losses by insurance proceeds.
It is the nature of the offense of arson that it is usually committed surreptitiously. Rare is the occasion when eyewitnesses will be available. By necessity, proofs will normally be circumstantial.
We think that the evidence sufficiently established that the conflagration was of incendiary origin and not attributable to natural phenomena.
Objection is next made that the trial court erroneously permitted the prosecutor to prove his case by building inference upon inference. People v. Petro (1955), 342 Mich 299. It is claimed that an inference was initially drawn that the fire was of incendiary origin. It was then inferred that defendants set it.
In the law an important distinction obtains between the proscription in People v. Petro, supra, and the legitimate use of circumstantial evidence. As was observed in Dirring v. United States (CA 1, 1964)
“The defendant cautions us against ‘piling inference upon inference.’ As interpreted by the defendant this means that a conviction could rarely be justified by circumstantial evidence [citation omitted.] The rule is not that an inference, no matter how reasonable, is to be rejected if it, in turn, depends upon another reasonable inference; rather the question is merely whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt. [Citations omitted.] If enough pieces of a jigsaw puzzle fit together the subject may be identified even though some pieces are lacking. Reviewing the evidence in this case as a whole, we think the jury was warranted in finding beyond a reasonable doubt the picture of defendant Dirring.”
We think the same is true of the case at bar.
Thirdly, defendants allege that insufficient evidence was adduced at trial to support a. finding of guilty beyond a reasonable doubt. The record discloses evidence which, if believed, indicates the following:
Defendants operated a catering service on Wyoming Avenue in the City of Detroit. They rented two buildings which were adjacent to each other and which had a connecting structure between them. In the early morning hours of March 27, 1967, at approximately 3:40 a.m., a passerby observed the structures on fire and summoned the fire department. After the blaze was extinguished, the arson squad of the fire department conducted an investigation. Thereafter, charges were filed by the Wayne County Prosecutor.
At trial it was established that defendants had catered two parties the night preceding the fire. Both defendants and their hired help returned to the business offices on Wyoming Avenue. Not long thereafter, at approximately 2:20 a.m., Horowitz and Kozin secured the premises and left in the company of their employees. Horowitz departed in his own car. Kozin and his wife left in his automobile. Kozin loaned his wife’s vehicle to one of the employees to drive the other hired help home. The fire was discovered at about 3:40 a.m.
Mr. Roger LaCasse, a member of the Detroit Fire Department Arson Squad, testified that after the fire had been extinguished, he examined the south building. The interior was completely burned and the walls badly charred. He gathered two items from the ruins: a piece of what appeared to be molten plastic, removed from a table located in the south building, and a plastic container which apparently had melted from the top down with the base still intact. This, too, was discovered on a table in the same structure. The witness also related that he had detected the smell of flammable liquid in one of the exhibits. He concluded by giving his opinion that the fire could have been caused by placing flammable liquids in plastic containers found in the ruins.
Another member of the arson squad, William O’Brien, testified that an arson detection device revealed the presence of a flammable substance in an area of the south building where he had smelled a suspicious odor. O’Brien further stated that he found a circular object (allegedly a plastic container) near the west end of the building. What appeared to be a cord or rope was embedded in or around this object. Adjacent to this container he discovered an unindentified liquid on the floor. He was later advised by the fire department chemist that both of these exhibits contained volatile varnish makers’ and painters’ naphtha.
In the witness’s opinion two devices containing flammable liquid were strategically placed in the south building with a triggering device to ignite them. He reasoned that the rope was wrapped around the outside of this container for the purpose of holding a lid in place.
As evidence bearing upon the opportunity and motive of defendants to set the blaze, the prosecutor introduced the following facts: that the building was secured from the outside and there was no evidence of a breaking-in; that defendants were on the premises not long before the conflagration began; that it would have been easy for defendants to set the fire, although not physically present, by means of a timing device; that defendants owed three months rent; that they were indebted to the Michigan Department of Revenue for sales tax; that defendants owed $650 to the gas company; and that defendants carried $40,000 in fire insurance.
For their part, defendants sought to explain certain of the circumstantial evidence; namely, the piece of rope and the combustible liquid discovered following the fire by the fact that catering supplies required by their business were frequently delivered bound with rope or other wrappings; and. that waste materials would naturally be discarded in refuse containers on the premises.
A defense expert witness, a polymer chemist, attributed the discovery of flammable liquid at the scene of the fire to the melting* of plastic wastebaskets, asphalt tile covering the floor, and rubber moulding around the baseboards of affected rooms. These materials, he testified, would decompose when subject to. sufficient heat and yield a liquid with the properties of paint thinner, as opposed to the theory of the state.
The weight and credibility to be accorded the testimony of the various expert witnesses'was for the jury. We may not disturb it.
Next, defendants submit that they were denied a fair trial because the trial judge, it is alleged, made so-called “sarcastic” comments when ruling on an objection to one of the defendants’ theories of the case.
We have studied the record in this regard with extreme care. It is a sensitive area of review. If, indeed, a trial judge manifests a partiality toward either party litigant, a potential for grave injustice arises. Yet, we cannot expect that a trial judge can totally repress every reaction to the conduct of a trial by counsel whose techniques may invite a reproof or at least cautionary comment. Mayhap, in the case at bar, certain of the trial judge’s remarks might better have been left unsaid. Likewise, the form of certain of counsel’s objections invited, if not required, rephrasing and clarification by the court. We think the trial judge made clear in his charge that no untoward inference should be drawn from his observations from the bench, and we may not conclude that the jury did not follow the admonition to resolve the issues within his carefully worded charge. We do not find this assignment of error to support reversal.
Finally defendants complain that the trial court committed reversible error by admitting a candle into evidence on the apparent theory that a similar candle might have served as a delayed timing device.
The prosecutor admitted that this candle had been taken from a box containing other unused candles in the office of the burned building and that it was of the type ordinarily found in catering establishments. The fire department chemist testified, over objection, that he had burned part of the candle to determine the burning time per inch in order to ascertain the length of time it would take for the candle to consume itself. The candle was allowed to remain as an exhibit throughout the prosecutor’s case. It finally was ruled inadmissible, and the jury was so instructed. The initial error, if any, was cured.
On the basis of the whole record we conclude the defendants were accorded a fair trial in the constitutional sense. We find no reversible error. The conviction is affirmed.
All concurred.
328 F2d 512, 515, cert den (1964), 377 US 1003 (84 S Ct 1939, 12 L Ed 2d 1052), reh den (1964), 379 US 874 (85 S Ct 27, 13 L Ed 2d 83).
When subjected to examination by the fire department chemist, this exhibit yielded highly flammable varnish makers’ and painters’ naphtha.
During cross-examination, the witness conceded that there were other possible explanations for the fire. He admitted not having cheeked the gas lines or electrical wiring in the affected buildings.
A chemist particularly trained in the full synthetic chemical compounds,
Per contra, the fire department chemist testified that common plastics and rubber products yield only traces of flammable liquids on decomposition (which could not be detected under the circumstances). | [
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62,
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55
] |
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