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McDonald, C. J.
This is an appeal from an order of Edwin P. Saunders, chairman of the State tax commission, granting taxation exemption on certain lands in the township of Grosse He, "Wayne county, Michigan.
The Michigan naval reserve airport is a unit of the United States naval reserve. The State of Michigan acquired a five-acre strip of land on the southern tip of Grosse He, on which it expended $100,000, and the Federal government expended $500,000 to establish and equip an airport, which, with land containing about 379 acres subsequently leased from the receiver of the Aircraft Corporation, a private organization, and the Curtis Wright Plying Service, Inc., is used by the Michigan naval force as a United States naval reserve aviation base.
With the exception of the five-acre parcel, these lands, buildings, and equipment were placed on the assessment roll for the year 1932 by the assessor of Grosse He township. Richard T. Brodhead, commanding officer of the Michigan naval force, protested the assessment before the township board of review, on the ground that the property was being used for military purposes and was not legally assessable under the laws of the State of Michigan; but the board held that it was not exempt, and refused to strike it from the assessment roll. On appeal to the Michigan State tax commission, an exemption was granted, and the plaintiffs appealed.
The question is whether the real and personal property in question occupied for military purposes as a United States naval reserve aviation base is exempt from taxation under the provisions of 1 Comp. Laws 1929, §§ 692, 3395.
Section 692 reads:
“Armories erected by counties, cities, private corporations, corporations composed of national guard companies or private individuals, and used by organizations of the permanent organized militia,' shall be exempt from all taxes ordinary or extraordinary, whether levied by the State or by counties or municipalities the same as other State property is exempt. ’ ’
Section 3395 reads:
“The following real property shall be exempt from taxation: * * * Tenth: All land dedicated to the public, and actually used as a park and any monument ground or any armory belonging to any military organization, and not used for gain or any other purposes.”
It is the contention of the defendants that, upon leasing the properties in question, they became a part of the “armory” operated as the Michigan naval reserve aviation base for military purposes.
The stipulated facts show that the Michigan naval force is a unit of the United States naval reserve organized under the national defense act of 1925 (34 USCA, § 751 et seq.); that from the aviation bases established in various cities there operate 22 naval reserve squadrons, 15 naval squadrons, and 7 marine squadrons; that the Michigan base is responsible for the training squadron, a fighting squadron, and a service squadron, which are important units in our national defense; and that the lands in question are adaptable to such use and are necessary to carry out the purposes for which the Michigan base was established.
There is no doubt that these lands are used for military purposes; but the plaintiffs claim that they are, not armories within the meaning of 1 Comp. Laws 1929, § 692, and are, therefore, not exempt from taxation.
To give the word “armories” the narrow meaning contended for by the plaintiffs would defeat the purpose of the statute, which, as indicated by its title, was “To increase the efficiency of the military establishment of the State of Michigan.” In its strict sense, an armory is a building where arms, ammunition, and instruments of war are stored, but in connection therewith it has been the custom to maintain grounds for drilling purposes and target practice. Such grounds are as much a part of the armory as the building itself. Together they constitute' a military establishment. New inventions and modern methods have increased the use to which armories are adapted. They have increased the instruments of war and the military needs in the use of armories. It was the purpose of the legislature to exempt from taxation all such military establishments. The lands in question are a part of a military establishment, and as such were intended by the legislature to be included in “armories” as used in the statute. They are, therefore, exempt from taxation ‘ ‘ the same as other State property is exempt. ’ ’
But it is contended by the plaintiff that the lands were not exempt when the supervisor of Grosse lie made the assessment and the board of review approved it. We think this contention is correct as to the Detroit Airport Corporation land. The lease of this land from the receiver was not approved by the United States district court for the eastern district of Michigan, southern division, until July 15, 1932. Negotiations for the lease were pending when the hoard of review held its final session on June 14, 1932, but it had not been obtained when the board had power to strike the property from the assessment roll. It was subject to taxation for the 1932 taxes at that time, and though it became exempt thereafter, there was no one clothed with authority to correct the assessment roll. See Iron Mountain Public Schools v. O’Connor, 143 Mich. 35.
As to the land leased from the Curtis Wright Flying Service, Inc., by the defendants, the lease was obtained on May 25,1932. The land was not subject to assessment at the time the board of review met, and should have been stricken from the roll.
The assessment against the Detroit Airport Corporation land for the 1932 taxes is approved. It should not have been stricken from the assessment roll. With this modification, the order of the State tax commission is affirmed. Other questions have been considered, but we do not deem it necessary to discuss them.
Clark, Sharpe, Wiest, and Butzel, JJ., concurred with McDonald, C. J. | [
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Potter, J.
Plaintiffs, the owners of real estate in Detroit, sold and conveyed the same to defendants subject to two real estate mortgages. The deed conveying the premises from plaintiffs to defendants warranted the same to be free from all incumbrances whatever, except a certain real estate mortgage for $16,000 to the Midland Mutual Life Insur anee Company, and a second mortgage for $3,225 to Margaret E. Kuni, of record, and subject to paving assessments. Defendants did not make payments on the second mortgage as they accrued, and the holder thereof sued plaintiffs, who were compelled to pay it. Plaintiffs then sued defendants to recover the amount paid and interest thereon. Prom a judgment for plaintiffs against defendant Saul Sloan, plaintiffs appeal, claiming a judgment against both defendants, and defendant Saul Sloan appeals, claiming he is not liable. The declaration contains several counts, some of which are in assumpsit, and others in fraud. Defendants did not, in the deed accepted by them from plaintiffs, assume and agree to pay the mortgages or either of them, or any part thereof. Neither one nor both of them could be held liable for a deficiency in foreclosure proceedings of these mortgages under the rule established by .3 Comp. Laws 1929, § 14368; nor are either or both of them liable to a personal judgment for the amount plaintiffs were compelled to pay on the Kuni mortgage. Plaintiffs executed that mortgage and received the money on it. Payment of it was enforced against them. There was no assumption of that mortgage by defendants or either of them. There was no contract which could be made the basis of a judgment in assumpsit against defendants or either of them under the circumstances, and no basis for an action of fraud, which could be based only on defendants’ promise to pay the mortgages when they intended not to pay them, thereby obtaining the property. Laing v. McKee, 13 Mich. 124 (87 Am. Dec. 738); Wilson v. Eggleston, 27 Mich. 257; Munzer v. Stern, 105 Mich. 523 (29 L. R. A. 859, 55 Am. St. Rep. 468). An essential element of actionable fraud, the promise to pay upon the part of defendants, is lacking. There being no basis for a judgment either in assumpsit or for fraud, established against defendants or either of them, judgment is reversed as to defendant Saul Sloan, and affirmed as to defendant Hattie Sloan, with costs.
McDonald,, C. J., and Clark, Sharpe, North, Head, Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
{dissenting). Plaintiff alleges defendant Pneff was its employee, was a contract miner, and was injured in the course of his employment. Both plaintiff and defendant Pneff were subject to the workmen’s compensation act (2 Comp. Laws 1929, § 8407 et seq.). After defendant Pneff’s injury, an agreement was entered into whereby he was to receive $18 a week during the period of total dis ability. On October 15, 1930, it was reported to plaintiff, by the attending physician of defendant Pneff, that he was able to resume his former employment. He returned to work and continued to work until 1931, during which time plaintiff paid him $885.04. Defendant Pneff did not sign a settlement receipt and no steps were taken by plaintiff to stop compensation. Pneff subsequently obtained from the department of labor and industry a certified copy of its approval of the settlement made with defendant and recovered judgment in the circuit court for Gogebic county against plaintiff for $1,182. No credit was given for the amount which had been paid defendant for wages. After the recovery of this judgment execution was issued, whereupon plaintiff filed the bill in this case asking the levy under the execution be enjoined and the case be remanded to the department of labor and industry for further consideration. Prom a decree for defendants plaintiff appeals.
‘£ Claimant is entitled to receive, and his employer is obligated to pay, no more and no less than the statute compensation. We are not called upon to decide whether an agreed but a too large or a too small compensation having been paid by agreement and the period of payment having ended and all payments having been made, by commutation or otherwise, either party may have recourse against the other by action of the industrial accident board or otherwise. But so long as the matter is depending before the board we are of opinion that in the due administration of the law it has power to so limit payments, by its orders, that the statute sum, no more, no less, shall be paid and received, and to make such an order as was made in this'proceeding to bring about, so far as possible, such desired and lawful result.” Kirchiner v. Michigan Sugar Co., 206 Mich. 459, 465.
The department of labor and industry has no power to grant a rehearing*. Martilla v. Quincy Mining Co., 221 Mich. 525 (30 A. L. R. 1249); Luyk v. Hertel, 242 Mich. 445; Panozzo v. Ford Motor Co., 255 Mich. 149. The doctrine of res judicata is applicable to awards made by the department of labor and industry. American Life Ins. Co. v. Balmer, 238 Mich. 580. A court of equity may relieve against an award upon the ground of fraud. Smith v. Port Huron Gas & Electric Co., 217 Mich. 519 (21 N. C. C. A. 401); American Life Ins. Co. v. Balmer, supra; Panozzo v. Ford Motor Co., supra.
'“It is best, as a matter of public policy, that a judgment obtained in a court of law should stand, unless it is manifestly against conscience.” The Cleveland Iron Mining Co. v. Husby (syllabus), 72 Mich. 61.
“ Equity will not relieve a party against a judgment at law on the ground of its being contrary to justice, unless the defendant was ignorant of his defense pending the suit, or facts could not be received as a defense at law, or unless, without any neglect or default on his part, he was prevented by fraud or accident, or the act of the opposite party, ■from availing himself of his defense.” Gray v. Barton, 62 Mich. 186, 196.
“The fraud which warrants equity in interfering with such a solemn thing as a judgment must be fraud in obtaining the judgment, and must be such as prevents the losing* party from having an adversary trial of the issue.” 5 Pomeroy, Equity Jurisprudence (4th Ed.), §2077.
See, also, Columbia Casualty Co. v. Klettke, 259 Mich. 564.
The limitation in the statute to instances of fraud is plain. Luyk v. Hertel, supra. “Eelief will in no case be granted where the loss of the remedy at law was due to the party’s own negligence or fault or that of his counsel.” 34 C. J. p. 538.
This suit is a direct attack upon Pneff’s judgment. In order to render a valid judgment the circuit court of Gogebic county must have had jurisdiction. Without jurisdiction, any judgment rendered was void. The circuit court exercises judicial power. No other power is, or may be, under the Constitution of this State, reposed in it. 2 Comp. Laws 1929, § 8452, provides the court “shall, without notice, render a judgment.” Defendant recovered the judgment in question in accordance with the statute. No one may invoke the exercise of judicial power by a court except in accordance with the Constitution, which prescribes the fundamental procedural rule of due process of law, which makes notice and opportunity to be heard before judgment a prerequisite of judicial determination. No one is entitled to a judgment in a court of law without notice or summons, by which he is tendered his day in court with the right to frame an issue and be heard before judgment. Rouse, Hazard & Co. v. Wayne Circuit Judge, 104 Mich. 234 (27 L. R. A. 577, 53 Am. St. Rep. 457).
‘ ‘ Courts cannot function without the use of process. Unless waived by a general appearance or otherwise, and such waiver is permissible, process is necessary in order to acquire jurisdiction, proceed against a person named as a party defendant, call upon defendant to answer, warrant an adjudication by the court of the property rights of persons interested in the subject-matter of the controversy, authorize an order in summary proceedings in personam against a third person not a party to the suit, and to render a judgment valid and conclusive. ’ ’ 50 C. J. p. 446.
Though the statute provides for judgment without notice, the constitutional mandate of due process of law establishes the rule there can be no judgment without notice. We do not hold 2 Comp. Laws 1929, § 8452, unconstitutional, but it must be construed and administered in recognition of the constitutional prerequisite of due process of law. The judgment involved was rendered without notice. The court was without jurisdiction. It may be set aside upon condition defendant enter its appearance in such cause.
“A court may of its own motion, even though the question is not raised by the pleadings or is not suggested by counsel, recognize the want of jurisdiction, and it is its duty to act accordingly. ” 15 C. J. p. 852.
See, also, Allen v. Carpenter, 15 Mich. 25; Kirkwood v. Hoxie, 95 Mich. 62 (35 Am. St. Rep. 549); Hull v. Hull, 149 Mich. 500; Maslen v. Anderson, 163 Mich. 477; People v. Meloche, 186 Mich. 536; Carpenter v. Dennison, 208 Mich. 441; Attorney General, ex rel. Wolverine Fish Co., v. Booth & Co., 143 Mich. 89; Tromble v. Hoffman, 130 Mich. 676; Horton v. Howard, 79 Mich. 642 (19 Am. St. Rep. 198); Adams v. Hubbard, 30 Mich. 104; Attorney General, ex rel. Lockwood, v. Moliter, 26 Mich. 444; Farrand v. Bentley, 6 Mich. 281; 17 Am. & Eng. Enc. Law (2d Ed.), p. 1060; Mansfield, etc., R. Co. v. Swan, 111 U. S. 379 (4 Sup. Ct. 510); Morris v. Gilmer, 129 U. S. 315 (9 Sup. Ct. 289).
Decree should be reversed, without costs. Decree should be entered for plaintiff.
Fead, J., concurred with Potter, J.
Wiest, J. I cannot concur in the opinion of Mr. Justice Potter.
The award was for and during total disability. Defendant Pneff was not totally disabled during the 13 months he worked for plaintiff and received $885.04 for his services. This, of course, he knew, and it was a fraud on his part and an imposition on the court to take judgment on the certificate for total disability during the 13 months he worked and suffered no such disability.
“Fraud practiced in the very matter of obtaining the judgment is regarded as perpetrated upon the court, as well as upon the injured party, and will warrant a court of equity in enjoining the judgment. This may, for example, consist in deceit and imposition practiced upon the court as a means of obtaining a judgment which otherwise would not be rendered.” 34 C. J. p. 473.
The law affords the employer no opportunity to be heard in the circuit court upon filing the certificate and entry of judgment, and, therefore, the doctrines of waiver and estoppel have no application. Equity will not countenance the fraud and imposition here practiced by defendant Pneff, nor will it subject industry to such an arrant mulct.
It is true that.when the employee went back to work the employer should have asked the department of labor and industry to stop compensation, but the failure to do so offers no excuse to the employee to perpetrate fraud and imposition.
If defendant Pneff, within 10 days, files a remittitur of $885.04 in the circuit court and has the sum certified to the sheriff in reduction of the amount of the execution, then the judgment and execution for the remaining amount may stand, otherwise the execution will stand recalled and the judgment permanently stayed.
Plaintiff herein will recover costs. '
McDonald, C. J., and Clark, Sharpe, North, and Butzel, JJ., concurred with Wiest, J. | [
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] |
Butzel, J.
Johanna Bjorkstrand, plaintiff and appellant, a resident of Finland, appeals from the department of labor and industry’s order denying compensation. Appellant’s husband, Edward Bjork-strand, now deceased, left her and their two children in 1923 and came to this country in search of em ployment. On December 10, 1928, while employed by M. Klagstad and J. Nord in the lumber woods near Manistique, Michigan, he suffered a severe injury from which he died the following month. At the time he was hurt, he was receiving $12 per week and board, which was estimated to be the- equivalent of an additional $6 per week.
The sole questions on appeal are whether plaintiff is entitled to the conclusive presumption of total dependency, or, if not, was she, as a matter of fact, totally dependent for support upon the earnings of decedent, and if not, was partial dependency proven to such an extent as to justify an award. The testimony of plaintiff was taken by deposition in Finland. Pertinent interrogatories and answers are as follows:
“Q. How have you and your children been supported since Edward Bjorkstrand left Finland and came to America?
“A. With different handworks.
“Q. To what extent (give dates and months) has Edward Bjorkstrand supported you and your children ?
“A. Totally during the whole stay around 12.000 marks, viz. as previously stated 1.881: — , 1.881:- — -, 1.850: — , 1.900: — , 1.600: — , 1.400: — ■ and in ordinary letters, lost, amounts such as 20, 15 and 5 dollars, total 40 dollars. * * *
“1. Q. Do you own your home?
“A. Yes.
“2. Q. Do you own any land?
“A. Yes, 0.0347 standards of land (Mantal) of the farm Bjorkbacka No. 3, in the village Jussila of the parish of Munsala. The property is charged with a debt of 12.000 marks. •
“3. Q. What is your occupation?
“A. Farming.
“4. Q. How do you support yourself and your children since your husband died?
“A. By farming.
“5. Q. What work did you do before he died?
“A. Farming also.
“6. Q. Who helped support you and your children after your husband went to America?
“A. I myself, with my farming, assisted by the support I got from my husband in America.
“7. Q. What was the last date upon which your husband sent you any money; how much money was it; where was it sent from; how was it sent? If any letter accompanied it, present the letter to the court.
“A. As far as I can remember, I received in 1926, or possibly in 1927, in a registered letter from my husband in Manistique, Michigan, a sum of money which changed into Finnish currency, amounted to about 1.400: — , and just before Christmas, 1927, in an ordinary letter 800 marks. The letters have been lost.
“8. Q. State the number of times you received money from your husband during the last year of his life, from December 10, 1927, to December 9, 1928. Give the names of the places from which the money was sent and the dates and amounts of the several remittances. Give the court any and all letters you now have which contained such remittances.
“A.........
“9. Q. If your answers are not in harmony with your affidavit of June 18, 1930, please explain fully.
“A.........”
Plaintiff testified that she received from her husband an amount slightly in excess of 12.000 marks during the period of over five years after he came to this country. This included 800 marks received by her just before Christmas in 1927. When asked specifically the number of times she received money during the last year of his life, and the dates and amounts of these remittances, she failed to give any response.
In accordance with 2 Comp. Laws 1929, § 8451, we must adopt the findings of fact of the department of labor and industry as conclusive, unless there is no competent evidence to sustain .such findings. Meyers v. Railroad Co., 199 Mich. 134; Luyk v. Hertel, 242 Mich. 445; Solomon v. Railway, 221 Mich. 599. We may, however, determine whether there is any competent evidence to support such findings, or whether the inferences drawn are properly deducible from the testimony. Ginsberg v. Burroughs Adding Machine Co., 204 Mich. 130; Kirkley v. General Baking Co., 217 Mich. 307.
Under section 8422, questions of dependency, total or partial, are determined by the department of labor and industry in accordance with the facts at the time of the injury. Subsection (a) of section 8422 provides that a wife shall be conclusively presumed to be wholly dependent upon a deceased husband with whom she lives at the time of his death, or from whom, at the time of his death, the department of labor and industry shall find that she was living apart for justifiable cause or because he had deserted her. It has been held repeatedly that the words “justifiable cause,” as employed in the statute, have the meaning given them in separation and divorce cases. Kirkley v. General Baking Co., supra; Martilla v. Quincy Mining Co., 221 Mich. 525, 529 (30 A. L. R. 1249). See, also, Kalcic v. Newport Mining Co., 197 Mich. 364; Fierro’s Case, 223 Mass. 378 (111 N. E. 957); Weber’s Case, 224 Mass. 86 (112 N. E. 485). The department’s finding that appellant was not entitled to, the conclusive presumption of total dependency was a proper one.
The department also found that appellant was not totally dependent as a matter of fact. The correctness of this ruling is shown by plaintiff’s testimony that she supported herself with different handworks after her husband went to America; that she did farming to support herself and her children before and after her husband’s death; and that the total amount she received from her husband in over five years amounted to 12.000 marks plus $40 in American money, or approximately $340, an average of little more than $60 per year.
Plaintiff claims that she received 800 marks ($20) just before Christmas in 1927, but her failure to answer the interrogatories propounded to her on the cross-examination as to this point caused the department to find proof lacking as to any payments during the year preceding the death of the decedent. There is no evidence of any kind showing the annual earnings of deceased. Partial dependency must be determined under section 5, part 2, of the compensation act (2 Comp. Laws 1929, § 8421). Without a showing as to the amount of annual earnings, an award cannot be made for partial dependency. Eckman v. Davidson Ore Mining Co., 252 Mich. 73, 75.
The order of the department of labor and industry is affirmed.
McDonald, C. J., and Clark, Potter, Sharpe, North, Pead, and Wiest, JJ., concurred.
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] |
Fead, J.
This is appeal from decree dissolving the Stott Realty Company, a corporation.
In 1916, David Stott died, leaving a large estate, including controlling interests in several corporations. Among them was the Stott Realty Company, his stock in which he left in trust for his four daughters, Bertha, Eleanor, Ethel, and Julia, and his three sons, David, Ernest, and Arthur. After a time, the trust was closed and the corporate shares divided among the beneficiaries in practically equal amounts. They have all the stock except six shares belonging to Thomas Danahey, the general manager of the corporation.
The capital stock is $750,000. The corporation owns several business and office buildings, other real estate and land contracts. Rents constitute almost its whole income. At David Stott’s death the assets were worth $2,000,000. In 1929 their value was $8,000,000 or over. The properties were substantially the same, but with some remodeling of buildings. The enhancement in worth was due largely to increase in real estate values in Detroit. Management conserving the estate was also a factor. Dividends of 16 per cent, annually have been paid regularly until 1929, when, after payment of eight per cent., further dividends were suspended because of business conditions. In 10 years, earnings increased $175,000 per year. The figures are not definite, but it appears that in 1929 the corporation earned about $100,000, and probably more in 1930.
In 1928, the corporation began the erection of the 35-story David Stott building. It cost $2,400,000. It was mortgaged for $1,300,000. About $725,000 of the cost was borrowed from the Detroit Savings Bank, $150,000 secured by mortgage on the Arcadia property, and the balance unsecured. In 1929 the Detroit Savings Bank called the loans, commenced suit, and garnisheed the tenants of the corporation.
On November 1st a meeting of the stockholders of the Stott Realty Company was called, and various proposals of financing the bank claims discussed. Because of the condition of the real estate market, a majority favored a mortgage upon the Rayl property, which had been authorized by the board of directors in August. Julia, Ernest, and Arthur voted against a mortgage, thereby defeating it, because the statute requires approval of two-thirds of the stock. They presented no feasible plan of financing. November 29th, in the absence of Julia and Ernest, who were directors, but from whom the plan was concealed, the board of directors authorized commencement of this suit. The bill was for appointment of a temporary receiver, with hope of authority to execute a mortgage. Julia, Ernest, and Arthur filed cross-bills praying dissolution of the corporation. The court refused to appoint a temporary receiver.
The Detroit Savings Bank proceeded with its suits against the Stott Realty Company, finally had judgments and sold and bid in the Rayl property, worth $1,000,000, for $275,000; the Lincoln building, worth $650,000, for $140,000; the David Stott building, appraised at $1,000,000 over the mortgage, for $1; and the Arcadia property, worth $550,000 subject to the mortgage, for $135,000. The sales were had in March and July, 1930. The bank also foreclosed the Arcadia mortgage and bid in the property for $154,000 in April, 1930.
In January, 1931, the court appointed a temporary receiver to save the property sold on execution and mortgage sales. Ernest withdrew his cross-bill and expressed willingness to approve a mortgage. Negotiations for a mortgage loan were had but were not completed before expiration of the periods of redemption. David, Bertha, Eleanor, Ethel, and Ernest advanced $40,000 to secure from the bank an extension of 60 days to redeem. Julia and Arthur refused to pay or pledge their proportion of the cost of the option.
The mortgage was negotiated, and the property saved to the corporation. David, Bertha, Eleanor and Ethel are comakers with the corporation on the notes for $750,000. Plaintiffs then asked leaye to withdraw their bill of complaint and for discharge of the receiver. The court refused the prayer and proceeded to hearing on Julia’s and Arthur’s cross-bills for dissolution.
The testimony took a wide range, running back many years, and included the affairs of other corporations in which the parties were interested. The record contains 2,430 pages, but the briefs are exhaustive, counsel have made excellent digests of the testimony and logical division of the case into subjects, and have presented their contentions in a definite and readable form. We wish to express our appreciation of the briefs.
The record depicts a course of family controversy and dissension, beginning before the death of the father and continuing to the present, characterized by ill-will, accusations, recriminations, extensive and expensive litigation, and physical violence. So far as it affects the Stott Realty Company, much of the dissension has been between David E. Stott and Arthur, and has arisen out of David’s desire to keep the corporation intact and rule it and Arthur’s desire to divide it into individual ownership. In their differences, David usually has been supported by Bertha, Eleanor, and Ethel, Julia is often on the side of Arthur, and Ernest is rather independent.
"Were the suit between David and Arthur personally, much of the testimony would merit discussion. But if it were all reviewed, the conclusion necessarily would be that neither has shown himself entitled to special consideration of a court of equity. The details of the disputes would serve no good purpose. Perhaps, however, it needs to be emphasized that the controversy is between majority and minority stockholders as to dissolution of the corporation, and unapproved personal sins of contentious members are not to be visited upon their innocent associates nor used to destroy their property rights.
The applicable law of this State may be summed up in a quotation from the opinion of Mr. Justice Clark in Edison v. Fleckenstein Pump Co., 249 Mich. 234, in which the authorities are cited:
“There is no doubt that in certain exceptional cases, such as relieving from fraud, or breach of trust, a court of equity may in its inherent power wind up the affairs of a corporation as an incident to adequate relief. * * *
“But in the absence of all such exceptional circumstances the equity court, in its inherent power, may not dissolve a corporation, wind up its affairs, and, for that purpose alone, sequester corporate property.”
Dissolution is not a remedy to be lightly decreed. The court has ample power in other ways to give relief for substantially all corporate ills. See Turner v. Calumet & Hecla Mining Co., 187 Mich. 238. It may require an accounting for misappropriation of funds, secret profits, and the like. It may restrain or compel the corporation and its officers to lawful conduct, and, ordinarily, protect the stockholders in all their rights without dissolution. Dissolution is a last-resort remedy, to be applied when no other will give relief.
The ultimate test of dissolution is that, with any other remedy, the corporation cannot be made to function for the purpose of its creation. The test of failure of corporate purpose is whether ruin will inevitably follow continuance of the management. 43 A. L. R. 305, note.
Undoubtedly, the case presents some conduct by the majority stockholders for which a court of equity would provide a remedy, notably the failure to hold stockholders’ meetings in 1930 and 1931, prevented by the majority absenting themselves. Perhaps the court, on showing that the plan to institute this suit was concealed from some of the directors, would have dismissed the bill. It may be that some of David’s conduct would warrant proceedings against him personally. But the record discloses no act of the majority which, needing correction, could not be remedied by the ordinary processes of the court. And there are outstanding facts, most of which are undisputed, which preclude the remedy of dissolution.
Dissolution is opposed by six stockholders owning over five-sevenths of the stock. It is asked by two stockholders. The contrast between them, in respect of their regard for the corporate good, does not’incline a court of equity in favor of the minority. The minority complain of loans of $5,000 by the corporation to each of two of the majority, while each minority member owes the corporation over $100,000. The majority advanced $40,000 to save the corporate property from execution and mortgage sale. The minority refused to contribute, and would have permitted loss of most of the corporation property. To save the corporation for the benefit of the minority as well as themselves, four majority members obligated themselves personally for $750,000 on the corporation mortgage debt. The minority assumed nothing.
The majority oppose dissolution for the valid reasons that they consider the diversification of properties through corporate control more profitable and more likely to conserve the assets than individual ownership; and also because some of them feel unable or unwilling to manage separate properties. The minority are concerned with obtaining personal control and individual ownership.
In spite of all the family quarrels, the majority have shown no disposition to defraud the minority of their rights in the corporation. On the contrary, they have sought bases to buy the minority interests and have contracted with Julia for her stock. And Arthur attacked the contract as illegal in a suit decided in 261 Mich. 302.
It is not claimed that any member of the majority or any other officer or stockholder has misappropriated any property or funds of the corporation. The nearest to such claim ig complaint of David Stott’s salary of $6,000 per year as president, but it was regularly voted and has not been shown to be excessive. Complaint is also made of loans to other corporations in which all the parties are interested, but they were all sanctioned by all the parties.
The management has been selected and is supported by the majority of stockholders. It is not shown to be grossly incompetent, nor, indeed, incompetent at all.
The record of the corporation as to profits demonstrates competent management. Whether other persons could have produced more earnings over a period of years is not only not the test of competent management but must necessarily be largely or wholly speculative.
The specific instance of claimed incompetency which the minority stress is in the erection and financing of the David Stott Building. Because of the turn in business in 1929, the building may have been a mistake, although Danahey, whose ability and integrity are not questioned, denies it. In any event, it was no greater error than a multitude of shrewd business men made at the time. The testimony does not identify any person, anywhere, who sensed and appraised the coming depression and fully put his house in order.
It may have been a mistake to borrow $725,000 on short-time paper to complete the building, but, unless the management must be charged with knowledge that a depression was near, the loans were not out of proportion to the assets of the corporation. Moreover, it is common knowledge that a building costs more than the architect represents.
A striking feature of the case is that there is scant showing on the claim of incompetent management except through the opinion of minority members and on the groundMhat the policies of the minority did not prevail. Not only is it the law that the minority have not the right to determine policies as against the will of the majority, but the record indicates that the minority, in presenting policies, were more concerned with obstructing the will of the majority than they were in constructive regard for the corporation.
The corporate purpose has not failed. The Stott Realty Company is a going concern. When the cross-bills were filed, and afterwards, it was profitable. So far as the record shows, it is able to pay its current liabilities, at least as readily as most corporations. It has failed to perform only the one function of executing mortgages, and such failure has been temporary and due to the refusal of the minority to assent.
No one can surely prophesy what the present economic depression will bring to any concern. The corporation may lose all its property by foreclosure and execution. But “hard times” is not a cause for dissolution. And the view expressed by some of the witnesses seems sensible — that collective control of the properties by the corporation, so that one may aid another, is more likely to prevent ultimate loss than separate ownership of heavily-mortgaged par cels. In any event, ruin of the corporation or loss to the stockholders is not inevitable from the management of the corporation by the majority. If serious loss occurs, not due to the depression, the record indicates it is most likely to result from the dissension of the minority stockholders and unfounded litigation to be brought by them.
In our opinion, the case presents no right to the remedy of dissolution.
Decree will be reversed, and one will be entered dismissing the bill and cross-bills, providing for the discharge of the receiver, and remanding the case to the circuit court to settle accounts, with costs to plaintiffs against Arthur and Julia.
McDonald, C. J., and Clark, Potter, Sharpe, North, and Wiest, JJ., concurred. Butzel, J., did not sit. | [
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Sharpe, J.
There seems to be no dispute about the facts in this case. The plaintiff for more than 27 years has been engaged in the business of selling coal and other fuel in the city of Saginaw under the assumed name of “Genesee Coal Company.” The defendant, Genesee Coal & Ice Company, a corporation, was organized in 1929 under the laws of this State, with its principal place of business at the city of Flint, and was there engaged in the business indicated by its title.
In the spring of 1932 the defendant secured property in the city of Saginaw, and constructed a plant thereon. The plaintiff, when informed that defendant proposed to conduct its business in Saginaw under its corporate name, notified it that he objected to its so doing. Defendant admits that by reason thereof it caused a certificate of its doing business under the assumed name of the “Genesee Ice & Fuel Company” to be filed in the office of the county clerk of the county of Saginaw, and thereafter conducted its business under that name.
On filing his bill, plaintiff moved for a. temporary injunction restraining the defendant from the use of its corporate name or its assumed name in the conduct of its business in Saginaw. In its answer defendant denies that plaintiff is entitled to the relief sought. Some admissions were apparently made in open court and consent given that a final decision be rendered. The trial court said:
‘ ‘ The questions in this case are: Is the assumed name of defendant corporation so' similar to that of plaintiff as to mislead the public; so similar, in fact, as to lead a person of ordinary intelligence to believe he was dealing with plaintiff; so similar in effect as to cause confusion, consequential in amount; and does the use of the name Genesee Ice & Fuel Company by the defendant result in unfair competition and loss to the plaintiff by reason thereof?
“The court determines these questions in the affirmative.”
The defendant certainly had the right to use the words “ice” and “fuel” in its assumed name. It thereby informed the people of the city of Saginaw and surrounding territory that it was engaged in the sale of these products, and it had the right to compete with the plaintiff in that business.
The question here presented is whether the defendant by using the word ‘ ‘ Genesee ’ ’ in its assumed name thereby became engaged in unfair competition with plaintiff. It is a fact of which we may take judicial notice that many of the orders for coal would be given over the telephone, and, if a person who had been theretofore dealing with the plaintiff and knew that it had long been engaged in business as the “Genesee Coal Company,” desired to make such a purchase and consulted the directory for-the purpose of doing so and found therein the name “Genesee Ice & Fuel Company,” he might well assume that in placing an order therefor he was dealing with the plaintiff.
“It is the words of a name which the eye first catches or rests upon which fix it in our minds.” Grand Rapids Furniture Co. v. Grand Rapids Furniture Shops, 221 Mich. 548, 552.
If, as the defendant conceded, the use of its corporate name, “Genesee Coal & Ice Company,” was likely to be misleading and calculated to confuse the public, the change made to “Genesee Ice & Fuel Company” did not remove the similarity complained of.
There have been many cases in this and other courts in which a somewhat similar question was presented. They were reviewed at some length by Mr. Justice Steere in Clipper Belt Lacer Co. v. Detroit Belt Lacer Co., 223 Mich. 399. He quoted with approval the following:
“Unfair competition ordinarily consists in the simulation by one person, for the purpose of deceiving the public, of the name, symbols, or devices employed by a business rival, or the substitution of the goods or wares of one person for those of another, thus falsely inducing the purchase of his wares and thereby obtaining for himself the benefits properly belonging to his competitor. The rule is generally recognized that no one shall by imitation or unfair device induce the public to believe that the goods he offers for sale are the goods of another, and thereby appropriate to himself the value of the reputation which the other has acquired for his own product or merchandise.” 26 R. C. L. p. 875.
‘ ‘ The fundamental rule has been that no man has a right to palm off his own goods as the goods of a rival trader, and ‘he cannot, therefore,’ in the language of Lord Langdale in Perry v. Truefitt (6 Beavan, 66, 73 [49 Eng. Repr. 749] ), ‘be allowed to use names, marks, letters, or other indicia, by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person. ’ Referring to the above, Lord Herschell, in Reddaway v. Banham (21 App. Cas. 199, 209), said: ‘It is, in my opinion, this fundamental rule which governs all cases.’
“ ‘Irrespective of the technical question of trademark, the defendants have no right to dress their goods up in such manner as to deceive an intending purchaser, and induce him to believe he is buying those of the plaintiffs. Rival manufacturers may lawfully compete for the patronage of the public in the quality and price of their goods, in the beauty and tastefulness of their inclosed packages, in the extent of their advertising, and in the employment of agents, but they have no right, by imitative devices, to beguile the public into buying their wares under the impression they are buying those of their rivals.’ ” Fims on Unfair Competition (2d Ed.), p. 12; (3d Ed.), p. 16.
In McLean v. Fleming, 96 U. S. 245, where the question of a trade-mark was involved, the court said (p. 255):
“Where the similarity is sufficient to convey a false impression to the public mind, and is of a character to mislead and deceive the ordinary purchaser in the exercise of ordinary care and caution in such matters, it is sufficient to give the injured party a right to redress, if he has been guilty of no laches.”
In Coats v. Merrick Thread Co., 149 U. S. 562, 566 (13 Sup. Ct. 966), it was said:
“Rival manufacturers may lawfully compete for the patronage of the public in the quality and price of their goods, in the beauty and tastefulness of their enclosing packages, in the extent of their advertising, and in the employment of agents, but they have no right, by imitative devices, to beguile the public into buying their wares under the impression they are buying those of their rivals.”
See, also, Grand Rapids Furniture Co. v. Grand Rapids Furniture Shops, supra, and Sweet Sixteen Shops v. Goodman, 243 Mich. 72.
In discussing a similar question in Good Housekeeping Shop v. Smitter, 254 Mich. 592, 596, it was said:
“Each case is determined upon its own facts and relief is based upon the principles of common business integrity.”
We therefore refrain from citing or considering the many cases decided by this court in which a somewhat similar question was involved. We have here a plaintiff who has been engaged in the coal business on Genesee street in the city of Saginaw for 27 years. The defendant desires to compete with him therein, as it has a right to do. It conceded that the use of its corporate name would doubtless lead to confusion and result in unfair competition. It therefore assumed the. name “Genesee Ice & Fuel Company.” It needed not the word “Genesee” in its name to inform the people of the city of Saginaw and surrounding territory that it was engaged in the ice and fuel business. It seems apparent that its purpose and design in the use of this name was to secure to itself a part of the business theretofore enjoyed by the plaintiff, and, in the language above quoted, “they have no right, by imitative devices, to beguile the public into buying their wares under the impression they are buying those of their rivals.”
The decree is affirmed, with costs to appellee.
McDonald, C. J., and Clark, Potter, North, Fead, Wiest, and Btttzbl, JJ., concurred. | [
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] |
Butzel, J.
Defendant Enretta Hoaglin was charged with being the driver of a car involved in an accident resulting in injury and death to Charles Kreger, and with knowingly and wilfully failing to render him reasonable assistance, including the carrying of the deceased to a physician or surgeon for medical and surgical treatment, it being apparent that such treatment was necessary. Defendant Sam Daleo was charged with procuring, aiding, abetting, etc., in the commission of the crime, as defined in 1 Comp. Laws 1929, § 1722.
Upon the evening of October 6, 1931, defendant Hoaglin, 21 years of age, and in the 11th grade of the Albion high school, met a friend, Weltha Gettys, who was anxious to visit an injured brother at the Gettys home some distance from Albion. Miss Gettys made the acquaintance of one Jim Thompson as he was seated in the car of defendant Sam Daleo, and the latter agreed to transport the girls to the Gettys home in the country. Shortly after they started for their destination, Euretta was permitted to drive the car, Daleo seating himself beside her, while Miss Gettys and Thompson occupied the rear seat. Euretta drove the car at a rate between 10 and 15 miles an hour. At a point on the Duck Lake road about five miles from Albion, the car struck Kreger, who was walking in a northerly direction near the center of the hard-surfaced road. The car was brought to a stop and Daleo and Thompson went back to where Kreger was lying. Euretta remained seated in the car, and Miss Gettys stood outside, near the rear door. There were no eyewitnesses to the accident except the defendants and their companions. They testified that they stopped for some time, Weltha stating that it was from five to six minutes, and Euretta claiming it was “for ages. ’ ’ A farmer living nearby stated he heard the crash, and that about 10 minutes elapsed before he heard the car start up again.
Daleo testified that after he and Thompson examined Kreger’s body, as it lay in the highway, they carried it to the side of the road; that Thompson felt the injured man’s wrist and detected no pulse; and that Daleo bent down and put his ear close to the body, but found no signs of life. They concluded that Kreger was dead, and left him lying at the side of the road with his head turned towards the gravel. The car itself was damaged and showed that there had been a very severe impact. The glass in the headlights was broken, and large dents appeared in the radiator and mud guards.
A hasty consultation was held by the occupants of the car, with the result that they determined to leave the scene of the accident as rapidly as the car would take them. They drove to the G-ettys home and then to Eaton Rapids, where Daleo ’phoned his father for assistance, as they were having difficulty with the car. Daleo’s father and brother drove to Eaton Rapids and towed the car back to Albion. Daleo made an effort to hide the car until it was repaired, and the girls were cautioned to keep quiet about the entire affair. If asked about the damage to the car, they were to attribute it to a collision with a truck near Dimondale.
The following morning the body was found, and an investigation followed'-immediately. The coroner testified that the body showed very severe injuries, including a fracture of the occipital bone of the skull. Sufficient facts were discovered to reveal the participants in the accident. An officer went to the school Euretta attended and brought her to the police station, where she voluntarily made and signed a statement giving her version of the accident. Thompson disappeared immediately after the accident, and Daleo testified that he did not know where he had gone. Thompson was an acquaintance of Daleo, and conversed with him in. the Italian language immediately after the accident.
Defendant Hoaglin was charged with the offense set forth in the information, which also charged Daleo with being the owner of the car and being then and there present at the time of the accident and having then and there procured, counseled, aided, and abetted defendant Hoaglin in the commission of the offense.
Numerous errors are claimed; many of them do not even merit discussion. The court properly admitted defendant Hoaglin’s signed statement, made the day following the accident. He instructed the jury that, before giving it any consideration, they should determine that it was voluntary and not tainted with fraud, deceit, compulsion, etc. Defendant makes no claim that it had been obtained by actual coercion or fraud. She contends, however, that she should have had the benefit of counsel or friends at her side when she made and signed the statement. Her claim is insufficient to show either fraud or coercion. The statement was properly admitted, its value to be determined by the jury. People v. Barker, 60 Mich. 277 (1 Am. St. Rep. 501); People v. Swetland, 77 Mich. 53, 60; People v. Biossat, 206 Mich. 334; People v. Johnson, 215 Mich. 221; People v. Treichel, 229 Mich. 303; People v. Greeson, 230 Mich. 124.
There was no abuse of discretion by the court in its refusal to continue the case over the term on the motion of defendants, citing their inability to subpoena Thompson as a witness. Nine days elapsed after the motion was made before the trial began. The affidavit annexed to the motion did not show what efforts had been made to locate the witness or what he would swear to were he present. Court Rule No. 36 (1931) was not complied with. People v. Eamaus, 207 Mich. 442; People v. Burby, 218 Mich. 46; People v. Fillian, 243 Mich. 28. The correctness of the court’s decision is further shown by Daleo’s own testimony that Thompson disappeared immediately after the accident and that hé did not know what had become of him. The court also properly denied a continuance based on defendant’s claim that unfavorable publicity necessitated a delay until public excitement had died down. No proof was offered by defendant to substantiate this claim.
The judge charged the jury that it would be necessary to convict defendant Hoaglin in order to find defendant Daleo guilty. Inasmuch as 1 Comp. Laws 1929, § 4722, applies to drivers only, the instruction was correct, as Miss Hoaglin was the only possible principal, and Daleo was charged with aiding and abetting. State v. McFarland, 158 Wash. 652 (291 Pac. 719). There is ample testimony to show that Daleo not only aided and abetted in everything that was done, but also that he took an active part in directing the actions of the parties after the accident.
It is further claimed that defendants were not guilty of any offense because they could not render reasonable assistance to Kreger, who was dead, and it would have been futile to take him to a physician or surgeon for medical and surgical treatment, inasmuch as it was apparent that such treatment was unnecessary. Aside from the cruel and inhuman manner in which Kreger’s body was dragged across the highway and left exposed at the side of the road, it was not within the province of the driver or the others to determine whether or not Kreger was dead at the time the body was abandoned. There may have been a spark of life remaining. Defendants are not physicians, and it was their duty to carry him to a physician or surgeon for medical and surgical inspection and treatment. Under a similar statute, it was held that, even assuming the immediate death of the victim, there still remained a duty to care for his remains. People v. McKee, 80 Cal. App. 200 (251 Pac. 675).
Defendant Hoaglin claims that she performed the statutory duty incumbent upon her by instructing Daleo and Thompson to go back and take care of the injured mail. She did not leave the scene of the accident until after receiving their assurances that Kreger was dead. In People v. Curtis, 225 N. Y. 519 (122 N. E. 623), a prosecution brought under a similar statute, the defense was interposed that the defendant did not drive away until his companion had left the car, examined the injured party, and declared that he was all right. The court there held that his obligation could not be discharged by delegation to another party. Such a delegation of duty leaves defendant responsible for any dereliction on the part of those to whom she has intrusted the performance of her duties. The record in the present case shows that the defendants were principally interested in driving from the scene of the accident as rapidly as possible so as to avoid detection.
Defendant Hoaglin was sentenced to imprisonment for a term of one to five years, and defendant Daleo for not less nor more than five years. Some time after the sentence was rendered, and while the case was in process of being appealed to this court, the opinion of People v. Thompson, 259 Mich. 109, was handed down. In a manner deserving of the highest commendation, the prosecuting attorney, of Ms own volition, has called the attention of the court to the question of whether the sentences imposed upon defendants are correct, in view of the provisions of 1 Comp. Laws 1929, §§ 4722, 4745, 4748, and their proper construction as set forth in People v. Thompson, supra.
Defendants were charged with a violation of that part of subdivision (c) of section 30 of the uniform motor vehicle act (1 Comp. Laws 1929, § 4722), requiring that the driver of a motor vehicle involved in an accident resulting in injury or death to any' person “shall render to any person injured in such accident reasonable assistance, including the carrying of such person to a physician or surgeon for medical or surgical treatment if it is apparent that such treatment is necessary or is requested by the injured person.” Section 4722, supra, provides as follows:
“Duty to stop and report in event of accident.
“(a) The driver of any vehicle involved in an accident resulting in injury or death of any person shall immediately stop such vehicle at the scene of such accident and any person violating this provision shall upon conviction be punished as provided in section fifty-six of this act.
“(b) The driver of any vehicle involved in an accident resulting in damage to property shall immediately stop such vehicle at the scene of such accident and any person violating this provision shall upon conviction be punished as provided in section fifty-three-a of this act.
“(c) The driver of any vehicle involved in any accident resulting in injury or death to any person or damage to property shall also give his name, address, and the registration number of his veMcle, also the name and address of the owner, and exhibit his operator’s or chauffeur’s license to the person struck or the driver or occupants of any vehicle collided with and shall render to any person injured in such accident reasonable assistance including the carrying of such person to a physician or surgeon for medical or surgical treatment if it is apparent that such treatment is necessary or is requested by the injured person.
“ (d) The driver of every motor vehicle involved in an accident resulting in a vehicle or vehicles becoming so disabled as to be incapable of being* propelled in the usual manner, or resulting in personal injury or death of any person shall report such accident to the nearest or most convenient police station or police officer within forty-eight hours after such accident. The officer receiving such report shall forthwith forward the same to the commissioner of public safety on forms to be prescribed by him. Such report shall not be available for use in any court action, but it shall be for the purpose of furnishing statistical information as to the number and cause of accidents.”
Section 56 of the motor vehicle act (1 Comp. Laws 1929, § 4748) is entitled: “Penalty for failure to stop in event of accident involving injury or death to a person.” The section makes the violation of “section thirty of this act relative to the duty to stop,” a felony. Section 53 of the same act (1 Comp. Laws 1929, § 4745) provides that any other violation, unless designated as a felony, constitutes a misdemeanor, the punishment of which, if a first offense, is a maximum term of 10 days of imprisonment in the county jail, or a fine of not more than $100. Defendants were not charged with a failure to stop. It is quite conclusive that they did stop.' They, therefore, are charged with a failure to give assistance under subdivision (c), section 30, supra. This is a.misdemeanor. People v. Thompson, supra. The prosecuting attorney has attempted to tie up subdivision (a) with subdivision (c) of section 30, supra. He shows that, under the construction adopted in People v. Thompson, supra, if a driver does not stop after causing the slightest injury to another, he is guilty of a felony. If, however, the driver does stop, after causing a most severe injury which may prove fatal if the injured person is not cared for, and he refuses or neglects to give proper assistance, he is guilty of a misdemeanor only. No matter how necessary the change of statute law may be, it must be brought about by legislative enactment. Even assuming merit in the State’s claim that section 56 applied to all of section 30, except section 30 (b), the legislative intent is not at all clear. If any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of two penalties administered. People v. Lockhart, 242 Mich. 491. The conviction was proper, but the sentences improper.
Defendant Daleo claims that inasmuch as defendant Hoaglin has only been found guilty of misdemeanor, he cannot be convicted of aiding and abetting in the violation of the statute, as charged in the indictment. It is proper to charge one with aiding and abetting in the commission of a misdemeanor. The rule is fully set forth in the learned opinion of Justice Christiancy, in Shannon v. People, 5 Mich. 71, on pages 86 and 87. See, also, Commonwealth v. Stevens, 10 Mass. 181; United States v. Gooding, 12 Wheat. (25 U. S.) 460; Brannan v. State, 43 Gra. App. 473 (159 S. E. 296); United States v. Snyder, 14 Fed. 554. It was proper, therefore, to charge Daleo with aiding and abetting in the commission of the misdemeanor, and, found guilty, he is subject to the same punishment as the principal under the common law as well as under 3 Comp. Laws 1929, § 17253.
The judgments of conviction are affirmed, the sentences are set aside, and the cases remanded to the trial court for the imposition of new sentences.
McDonald, C. J., and Clark, Sharpe, and Wiest, JJ., concurred with Btjtzel, J. Potter and Fear, JJ., concurred in the result. North, J., did not sit. | [
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] |
Potter, J.
Plaintiff, May 19, 1932, filed a bill against defendants to foreclose a land contract, and for deficiency. Plaintiff had decree of foreclosure and for deficiency against defendant De Clark. 'From the decree entered, plaintiff appeals, claiming a decree for deficiency against defendants Van Maele. .October 1, 1924, William Endert and wife, owners of the property in question, sold it on land contract to Sylvester Onyskow and Peter Soduski. April 22, 1926, Soduski assigned his interest in the contract to Sylvester Onyskow. June 8, 1926, Onyskow and wife assigned their interest in the contract to Albert Van Maele and Mary Van Maele, his wife. January 3, 1931, Van Maele and wife assigned their interest in the land contract to Morris De Clark. February 28, 1925, William Endert and wife sold their interest in the premises to plaintiff. Default having been made in the contract, plaintiff filed this bill.
The assignment from Onyskow and wife to Van Maele and wife was in writing. It assigns the contract :
“together with all sums due and to become due thereon and covenants that there is now owing thereon $10,816.95, with interest from May 28, 1926. Said assignee covenants to perform the obligations of the seller in said contract, the lands therein described having been this day conveyed to the assignee by deed of even date.”
When Albert Van Maele and Mary Van Maele assigned the contract to defendant De Clark, the assignment recited there was “a balance owing upon said contract of $8,446.37, with interest from July 1, 1930, which said assignee and g’rantee assumes and agrees to pay.”
The trial court found a decree providing for a deficiency against defendant De Clark. He has not appealed. No decree providing for a deficiency against defendants Van Maele was entered, for the obvious reason there was no assumption and agreement to pay upon their part.
Decree affirmed, with costs to appellees.
McDonald, C. J., and Clark, North, and Wiest, JJ., concurred with Potter, J. | [
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Per Curiam.
On May 16, 1984, the Genesee County Election Commission found certain peti tions for recall of plaintiff, James A. Sharp, from the office of Mayor of Flint to be sufficiently clear to be circulated for signatures under MCL 168.23; MSA 6.1023. On May 17, 1984, the plaintiff filed separate actions in the Genesee County Circuit Court to prevent the defendants from issuing and circulating recall petitions for his removal from office. The matter in docket no. 82340 was brought as an original action seeking to enjoin the Genesee County Clerk from issuing recall petitions and to enjoin Ronald Parker from circulating the petitions. The action in docket no. 83006 sought identical relief but was captioned as an appeal from the decision of the Genesee County Election Commission, which found the language of the petitions sufficiently clear.
On May 22, 1984, the parties, stipulated to a preliminary injunction that would enjoin the Genesee County Clerk from processing any petitions for the recall of Mayor Sharp and on May 23, 1984, the Genesee County Circuit Court issued the submitted order granting a preliminary injunction. On May 31, 1984, the trial judge filed an opinion explaining his order and the status of the case at that time. On August 17, 1984, the plaintiff filed a motion for summary judgment and a brief on the issues. The defendants filed responsive briefs which accepted the plaintiff’s characterization of the facts. On December 26, 1984, the trial court granted summary judgment for the defendants and dissolved the preliminary injunction. The court also affirmed the election commission’s finding of clarity. On January 3, 1985, the trial judge filed a brief opinion stating his reasons for granting summary judgment for the defendants.
The plaintiffs characterization of the facts for the purposes of summary judgment is also accepted by all parties as the facts for this appeal. The plaintiff appeals as of right in docket no. 83006 and by leave granted in docket no. 82340. On February 27, 1985, by-pass was denied by the Supreme Court on grounds that the question presented should first be reviewed by the Court of Appeals.
One issue is raised on appeal, viz.: Do §§ 23 and 952 of the Michigan Election Law, MCL 168.23, 168.952; MSA 6.1023, 6.1952, violate art 3, § 2 of the Michigan Constitution by requiring a member of the judicial branch of government to exercise powers properly belonging to the executive branch of government? The relevant provisions of the statutes in question read as follows:
Sec 23(1) "The chief or only judge of probate of the county or probate court district, the county clerk, and the county treasurer shall constitute a board of county election commissioners for each county, 2 of whom shall be a quorum for the transaction of business. The chief or only judge of probate of the county or probate court district and the county clerk shall act respectively as chairperson and secretary of the board. In the absence or disqualification of the county clerk from any meeting of the board of election commissioners, the board may select 1 of the county clerk’s deputies to act in the county clerk’s place. In the absence or disqualification of any member of the board of election commissioners other than the county clerk, the members of the board who are present shall appoint some other county officer in the absent or disqualified member’s place, and the appointed county officer, on being notified, shall attend without delay and act as a member of the board.” MCL 168.23(1); MSA 6.1023(1).
Sec 952(3) "The board of county election commissioners, not less than 10 days nor more than 20 days after submission to it of a petition for recall, shall meet and shall determine whether the reasons for recall stated in the petition are or are not of sufficient clarity to enable the officer whose recall is sought and the electors to identify the course of conduct which is the basis for the recall. Failure of the board of county election commissioners to comply with this subsection shall constitute a determination that the reasons for recall stated in the petition are of sufficient clarity to enable the officer whose recall is being sought and the electors to identify the course of conduct which is the basis for the recall.” MCL 168.952(3); MSA 6.1952(3).
The plaintiff argues that these statutes confer powers belonging to the executive branch of state government on a member of the judicial branch of state government in contravention of the Michigan Constitution, art 3, § 2, which states:
"Sec. 2. The powers of government are divided into three branches; legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.”
We begin our analysis by first deciding to which branch of government the Genesee County Elections Commission belongs. Upon reading the duties conferred upon it by statute, we are persuaded that the commission is part of the executive branch. Its principal function is to review recall petitions prior to their circulation to determine whether the language of the petitions is sufficiently clear to apprise the electors and the elected official who may be recalled of the conduct which is the basis of the recall. MCL 168.952(3); MSA 6.1952(3). The county election commission is also responsible for giving notice to the elected official and holding a hearing on the clarity of the petition if the official requests a hearing. MCL 168.952, subds (4) and (5); MSA 6.1952, subds (4) and (5).
Our opinion in this regard is supported by Sec’y of State v Berrien County Bd of Elections Comm’rs, 373 Mich 526; 129 NW2d 864 (1964). In that case the question raised was whether the Secretary of State could order the county elections commission to use voting machines. The Supreme Court held that it was the election commission’s duty to follow the instructions of the Secretary of State. 373 Mich 531. The Michigan Constitution categorizes the Secretary of State as a member of the executive branch. Const 1963, art 5, §21. Therefore, since our Supreme Court has given the executive branch control over the actions of a county election commission, our Supreme Court must regard the county election commissions as part of the executive branch.
Having determined that the board of county election commissioners is part of the executive branch of government, and assuming, arguendo, that the board does not fall within the "except as expressly provided in this constitution” language in art 3, § 2 of the constitution, we now inquire whether § 23 and § 952 of the Michigan election law violate the separation of power clause.
Plaintiff argues that under the language and decision in Dearborn Twp v Dearborn Twp Clerk, 334 Mich 673; 55 NW2d 201 (1952), a probate judge may not serve as a member of a county election commission. Plaintiff has a point. In that case plaintiff contended that a statute which established five-member township boards containing four justices of the peace violated the separation of powers. The Supreme Court agreed with plaintiff, stating:
"Our government is one whose powers have been carefully apportioned between 3 distinct departments, which emanate alike from the people, have their powers alike limited and defined by the Constitution, are of equal dignity, and within their respective spheres of action equally independent. One makes the laws, another applies the laws in contested cases, while the third must see that the laws are executed. This division is accepted as a necessity in all free governments, and the very apportionment of power to one department is understood to be a prohibition of its exercise by either of the others. The executive is forbidden to exercise judicial power by the same implication which forbids the courts to take upon themselves his duties.” 334 Mich 682.
Our Supreme Court stated further:
"We agree with defendant that the township board can in no sense be held to have any connection with the judicial department of the government and that it is vested with legislative, as well as certain administrative, powers which justices of the peace as judicial officers by the constitutional provisions herinbefore referred to, may not exercise.” 334 Mich 686.
If Dearborn Twp were the only case on point, we would be constrained to hold for plaintiff in the instant suit. However, the Supreme Court has not taken a consistent position on whether the separation of powers clause should be construed so strictly. Only six months prior to Dearborn Twp a less strict interpretation of the separation of powers clause was handed down. In People v Piasecki, 333 Mich 122; 52 NW2d 626 (1952), a defendant who had been found guilty of rape was committed to a state hospital rather than sentenced to prison. The prosecutor appealed, claiming that the statute invaded the separation of powers doctrine. The Supreme Court disagreed. Quoting from In re Southard, 298 Mich 75; 298 NW 457 (1941), the Court said:
" 'The constitutional provision that the powers of government are divided into 3 great departments and that no person belonging to one department shall exercise powers properly belonging to another does not mean they must be kept wholly and entirely separate and distinct and have no common link of connection or dependence but rather that the whole power of one department shall not be exercised by the same hands which possess the whole power of either of the other departments and whether the exercise of some of the power which, strictly speaking, belongs to one department may be exercised by persons belonging to another department is for the determination of the State and its determination one way or the other cannot be an element in the inquiry whether due process of law has been observed when dealing with matters involving life or liberty (US Const, Am XIV; Const 1908, art 4).’ (syllabus, par 7)” (Emphasis added.) 333 Mich 146.
More recently our Supreme Court appears to be following the less strict interpretation of the separation of powers clause. In Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728; 330 NW2d 346 (1982), the plaintiff claimed that a separation of powers violation occurred when the governor transferred rule-making authority from the Water Resources Commission (WRC) to the Natural Resources Commission (NRC). The plaintiff claimed that, since the WRC received its regualatory power from the Legislature, the governor had no authority to transfer that regulatory power to the NRC.
Justice (now Chief Justice) Williams analysed the doctrine of the separation of powers, stating:
"The doctrine of separation of powers is generally attributed to Montesquieu who pinpointed the fault with the vesting of both legislative and executive functions in one branch of the government.
" 'When the legislative and executive powers are united in the same person or body* * *there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.’ (Emphasis added.)
Madison, in The Federalist No. 47, clarifies Montesquieu, explaining that he did not mean there could be no overlapping of functions between branches, or no control over the acts of the other. Rather,
" '[h]is meaning* * *can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.’ The Federalist No. 47 (J. Madison).
These principles have been adopted in Michigan. Thus, while art 3, § 2, of the constitution provides for strict separation of power, this has not been interpreted to mean that the branches must be kept wholly separate. People v Piasecki, 333 Mich 122, 146; 52 NW2d 626 (1952); In re Southard, 298 Mich 75, 83; 298 NW 457 (1941).” 415 Mich 751-752.
Although Soap & Detergent Ass’n concerns separation of the legislative branch from the executive branch, we perceive no reason why the same interpretation of the separation of powers clause should not equally apply to the executive and judiciary branches.
In the instant case, the whole power of the judicial branch is not exercised by the same hands which possess the whole power of the executive branch. That is to say — the whole power of the county elections commission is not being exercised by the chief probate judge. Rather, the chief probate judge is only one member of a three-member panel. Acting alone, he cannot constitute a quo rum or in any way exercise any power of the county election commission. Furthermore, the instant situation is distinguishable from the situation in Dearborn Twp, supra. There, four justices of the peace served as members of a seven-member township board. As a majority of the board the justices could exercise the whole legislative and administrative powers given to townships by law.
Under the doctrine of the separation of powers as interpreted by Madison and reinterpreted in Piasecki and Soap & Detergent Ass’n, supra, the functions of the three branches of government need not be kept wholly separate. Some overlapping is permissible provided the area of one branch’s exercise of another branch’s power is very limited and specific. Accordingly, we find that the trial court correctly ruled that the statute in question was constitutional.
Affirmed. No costs, a question of public importance being involved.
Defendants argue that art 6, § 15 of the constitution expressly provides that probate courts may exercise nonjudicial powers. Defendants refer to the language reading "The jurisdiction, powers and duties of the probate court and of the judges therein shall be provided by law.” We find it unnecessary to decide whether art 6, § 15 expressly exempts probate courts from the separation of powers clause. Even if it does not, the question remains whether the seperation of powers clause extends to and bars the Legislature from designating a judge of probate as a member of a county elections commission. | [
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] |
Beasley, P.J.
Plaintiffs, Donald B. Swartz and Gwen M. Swartz, husband and wife, appeal from orders for summary judgment in favor of defendants Red Lobster Inns of America, Inc., and Huffmaster Alarms Systems, Inc., under GCR 1963, 117.2(1), now MCR 2.116(C)(8). Since Gwen’s claim is a derivative one for loss of consortium, for convenience on appeal we use the word plaintiff in the singular to refer only to Donald’s claim.
After having dinner at the Red Lobster Inn on the east side of Telegraph Road in Taylor, plaintiff Donald B. Swartz left the restaurant and was struck by a southbound automobile driven by defendant Richard E. Taylor as he walked across Telegraph Road. When struck, plaintiff had crossed the northbound lanes, the center median and had entered the southbound lanes. The trial court granted defendants Red Lobster’s and Huff-master’s motions for summary judgment on the ground that neither owed a duty to plaintiff to prevent or restrain him from leaving the restaurant.
On appeal, plaintiff claims that defendants each owed a duty to an impaired person to protect him from dangers he might encounter on well-traveled public roads adjacent to the business. Plaintiff says his impairment was a result of his intoxication, legal blindness and anxiety. The determination of whether a legal duty exists is essentially a question of whether the relationship between the actor and the plaintiff gives rise to any legal obligation on the actor’s part to act for the benefit of the subsequently-injured person.
Thus, a legal duty is essentially an obligation recognized by law which requires an actor to conform to a certain standard of conduct for the protection of others against unreasonable risk. The determination of whether a duty should be imposed upon a defendant is based on a balancing of the societal interest involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence and the relationship between the parties.
Under the common law, there was not any duty to protect an individual who was endangered by the conduct of others. In Michigan, the general rule regarding the duty of a business establishment to its invitees is that when it invites others onto its premises it must exercise ordinary care and prudence to keep the premises reasonably safe.
When, as a business invitee, plaintiff entered defendant Red Lobster Restaurant for the purpose of dining, defendant Red Lobster owed plaintiff a duty to exercise ordinary care for his safety while in the establishment. Ordinary care is defined as that care which a reasonably prudent person would exercise in similar circumstances. When plaintiff left the restaurant and was no longer on property owned or controlled by defendant Red Lobster, the duty ended. In this case, there is no question that plaintiff had left defendant Red Lobster’s property and had crossed several lanes of automobile traffic and a median before he was hit by a car. Plaintiff was not on property owned or controlled by defendant Red Lobster. Plaintiff admits these facts, but argues that while he was on the premises and while defendants owed him a duty of due care defendants breached their duty and that their breach was one proximate cause of his injuries. Plaintiff reasons: (1) that defendants knew, or should have known, that he was "impaired” before he left the premises, (2) that his impairment arose from alcoholic intoxication, legal blindness and "anxiety”, and (3) that, confronted with knowledge of his impairment, defendants had a duty (a) to restrain him from leaving the premises, except in the care of a keeper or guardian, or (b) to communicate to him that he was "impaired” and, therefore, should not leave the premises, or (c) to take some other precautionary step for his safety. We do not agree. Before plaintiff was struck by the car in the southbound lanes of Telegraph Road, defendants’ duty to him had ended.
Plaintiff specifically denies claiming under the dramshop act. Other than under the dramshop act, defendants did not owe a duty to plaintiff to take special steps for his safety because he was alcoholically impaired. We do not look upon this as a "foreseeability” issue. It may well be foreseeable that an intoxicated person will wander into traffic and be hit by a car. This does not mean that a person who has had nothing to do with causing the intoxication, but who merely observes the drunkeness, has a duty to take some affirmative action to protect the drunk. As a matter of public policy, there is no such duty. In the circumstances of this case, we do not entrust to a jury that public policy question of whether there should be such a duty.
In this case, plaintiff made a belated effort to add the allegation that he was legally blind as a basis for expanding defendants’ duty. Plaintiff did not plead that he was legally blind. No reference was made to MCL 393.351; MSA 17.581(1), which defines a "blind person”, nor did plaintiff ever claim to have been carrying a white cane or that he possessed the statutory identification card issued for the legally blind. Neither did he seek to amend his pleadings to allege that he was, as he now says, "legally blind”. Plaintiff did, however, claim on oral argument that he was "legally blind”. However, even if he had raised the question in a proper and timely fashion, we do not believe that this claim would make a difference in the result here. Even in oral argument, plaintiff did not claim that he was absolutely blind (as distinguished from an impairment of vision that may or may not be correctable with glasses) and that such fact was known or should have been known to defendants, so as to give rise to a special duty under the Michigan Handicappers’ Civil Rights Act or otherwise. In short, plaintiff has not here asserted the existence of special facts which would give rise to a special duty owed to handicapped persons.
Plaintiff also claims that a factor causing his "impairment” was his "anxiety”. We are not clear whether plaintiff speaks of a generalized worry or apprehension or whether he speaks of a specialized psychiatric condition. In either event, we do not believe that it causes a duty to be imposed upon defendants. Noticeably, Michigan law has not extended this duty of business establishments beyond the premises in a situation where the resultant injury is not based on the fault of the business invitor in maintaining its premises and/or the means of access to its establishment.
The within case is readily distinguishable from and not controlled by the recent case of Langen v Rushton, where a panel of this Court stretched the duty concept to its outer limit in a case involving an issue of whether a shopping mall was negligently designed. Here, plaintiff does not allege that defendants were negligent in the design or development of the Red Lobster premises in connection with the public highway. Rather, plaintiff claims that his injuries, which occurred after he attempted to cross Telegraph Road, were the result of defendants’ failure to take affirmative action to keep him on the premises. We have not recognized a duty to affirmatively prevent accidents which are not the fault of the actor or the result of any condition which he has created._
Even in Farwell v Keaton, where the Michigan Supreme Court recognized a duty on the part of a social companion to come to the aid of the other, the decision appeared to rest heavily upon defendant’s initial attempt to come to the aid of his companion and the ultimate abandonment of that rescue attempt.
Under the circumstances of this case, we are satisfied that the trial court was correct in granting the summary judgments.
Affirmed.
Moning v Alfono, 400 Mich 425, 438-439; 254 NW2d 759 (1977), reh den 401 Mich 951 (1977).
Duvall v Goldin, 139 Mich App 342, 350-351; 362 NW2d 275 (1984).
Preston v Sleziak, 383 Mich 442, 447; 175 NW2d 759 (1970).
See SJI2d 19.03.
MCL 436.22; MSA 18.993.
MCL 37.1101 et seq.; MSA 3.550(101) et seq.
McKnight v Carter, 144 Mich App 623; 376 NW2d 170 (1985); Langen v Rushton, 138 Mich App 672; 360 NW2d 270 (1984), app for lv pending.
Langen, supra.
396 Mich 281; 240 NW2d 217 (1976), reh den 397 Mich 958 (1976). | [
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Per Curian.
Plaintiff’s ten-year-old son, Todd Gerald Francisco, died as the result of injuries suffered in a fall from a three-meter diving stand at the Kuehn-Haven Middle School in Montrose, Michigan. Defendant was the architectural firm that designed the swimming facility at the school. In this action for architectural malpractice, a verdict for plaintiff was returned after a jury trial. Plaintiff’s damages were assessed at $980,328, but were reduced by 15% to reflect comparative negligence. A judgment was entered for plaintiff for $788,278.80 plus interest, and defendant’ appeals as of right.
Defendant argues that the trial court erred by permitting an expert witness called by plaintiff, Dr. M. A. Gabrielson, to read from certain safety standards for diving stands promulgated by the Council for National Cooperation in Aquatics. The witness was the chairman of the committee of the council which formulated the standards at issue, and he prepared the first draft of the standards himself.
Ordinarily, use of learned treatises is limited to impeachment. Bivens v Detroit Osteopathic Hospital, 403 Mich 820; 282 NW2d 926 (1978), rev’g 77 Mich App 478; 258 NW2d 527 (1977). The admissibility of safety publications drafted by safety organizations is governed by the rules applicable to learned treatises. Fletcher v Ford Motor Co, 128 Mich App 823, 826-827; 342 NW2d 285 (1983). In Stachowiak v Subczynski, 411 Mich 459, 463-465; 307 NW2d 677 (1981), the Court held that learned treatises and other professional literature were admissible for any nonhearsay purpose if the trial court determined in the exercise of its sound discretion that their probative value was not substantially outweighed by their prejudicial effect. See also Fletcher v Ford Motor Co, supra, pp 828-829.
The witness here was one of the authors of the standards and was available for cross-examination. One of the theories advanced by defendant at trial was that it had acted in compliance with applicable nongovernmental safety standards and was therefore not negligent. Plaintiff could have introduced the safety standards at issue here to rebut this theory; any error, therefore, involved not whether evidence of the safety standards should have been admitted at all, but whether the evidence should have been saved for a rebuttal rather than introduced in plaintiff’s case in chief. Any error in admitting this evidence was harmless.
Defendant also complains that an expert witness called by plaintiff, Ronald Reno, was permitted to use the pronoun "I” in discussing the applicable standard of care. Expert testimony in a malpractice case should be based on how a reasonable similarly-situated practitioner would act, not on how the witness himself would act. See Rytkonen v Lojacono, 269 Mich 270, 274; 257 NW 703 (1934), and Carbonell v Bluhm, 114 Mich App 216, 224; 318 NW2d 659 (1982). Defendant, however, made no objection to the admission of this testimony at trial, and under such circumstances an appellate court will not afford the defendant any relief absent manifest injustice. See, for example, Deeb v Berri, 118 Mich App 556, 562; 325 NW2d 493 (1982). Examination of the testimony of this witness in context shows that, despite the occasional use of the pronoun "I”, the witness was testifying as to the applicable standard of care, not merely his personal practices. No manifest injustice is presented.
Defendant also argues that plaintiff failed to produce expert testimony to establish a breach of the applicable standard of care. This argument, however, is without merit, because it is premised on the erroneous assumption that Ronald Reno gave no admissible testimony concerning the applicable standard of care. The record shows that, even if testimony by Reno containing the pronoun "I” is disregarded, Reno’s testimony supports an inference that the applicable standard of care was breached.
Defendant points to Owens v Allis-Chalmers Corp, 414 Mich 413, 429-431; 326 NW2d 372 (1982), and argues that plaintiff failed to establish a prima facie case by failing to produce sufficient evidence of alternatives to the diving board and stand selected by defendant. In Owens, the Court held that plaintiff had failed to present a prima facie case showing that the design of a forklift was unreasonably dangerous in light of the foreseeable risk because the plaintiff presented no evidence concerning the magnitude of the risk involved and the reasonableness of the proposed alternative designs. Application of Owens to this case is unwarranted because this case involves architectural malpractice, while Owens was a products liability case. Moreover, plaintiff produced evidence satisfying the requirements of Owens. Plaintiffs expert, Dr. Gabrielson, explained that a 3-meter board and stand like that at issue here was an unacceptable risk for use in a facility where middle-school-aged children engaged in recreational swimming. Dr. Gabrielson pointed to various feasible design changes that would have increased the safety of the board and stand, including adding a bed under the springboard, changing the diameter and position of the guardrails, changing the materials of which the guardrails were made to a less slippery material, changing the height and rise of the steps, and adding a plexiglass or canvas enclosure at the top of the board. No error in this connection is presented.
Defendant argues that it owed no duty to the school district running to the benefit of plaintiffs decedent to warn of the risks involved in the use of the diving board and stand. The existence of the legal duty is a question of law for resolution by the court. Moning v Alfono, 400 Mich 425, 436-437; 254 NW2d 759 (1977). An architect owes a duty of care similar to that owed by other professionals like attorneys or physicians. Ambassador Baptist Church v Seabreeze Heating & Cooling Co, 28 Mich App 424, 426; 184 NW2d 568 (1970). The duty of the architect is owed to any person lawfully on the premises; privity of contract is not required. Estate of Clark, 33 Mich App 395, 401; 190 NW2d 373 (1971). rev’d on other grounds sub nom Smith v Detroit 388 Mich 637; 202 NW2d 300 (1972). See also Anno: Architect’s Liability for Personal Injury of Death Allegedly Caused by Improper or Defective Plans or Design, 97 ALR3d 455.
Defendant argues that the danger of a fall from the diving board or stand was open and obvious and that it therefore had no duty to warn of such danger. This argument really relates to the applicable standard of care rather than to the existence of a legal duty. See Moning v Alfono, supra, pp 437-438. In the products liability case of Owens v Allis-Chalmers Corp, supra, p 425, the Court explained that the obviousness of the risks that inhere in some simple tools or products is a factor contributing to a conclusion that such tools or products are not unreasonably dangerous, but that the test is not whether the risks were obvious, but whether they were unreasonable in light of the foreseeable injuries.
Defendant’s argument fails to focus on the precise theory of liability advanced by plaintiff. Plaintiff claimed, and evidence introduced by the parties showed, that the diving board and stand at issue were appropriate for use in high-level competitive diving but were unreasonably dangerous when used for recreational swimming by middle-school-aged children. Defendant knew that the board and stand would be installed in a middle school pool and that the pool’s intended uses included recreational swimming. Defendant did not warn of a potential danger and did not inquire into any possible alternate less dangerous designs.
The risk at issue was not simply open and obvious danger of a fall from the diving board or stand, but, rather, the risk of using one particular type of board and stand rather than various alternatives. The latter risk was not open and obvious and, on this record, we have no hesitation in characterizing the risk of using the board and stand at issue as unreasonable in light of the foreseeable injuries.
Defendant’s reliance on Antcliff v State Employees Credit Union, 414 Mich 624; 327 NW2d 814 (1982), is misplaced. In Antcliff, the Court held that a scaffold manufacturer did not breach the applicable standard of care by failing to provide instructions on use of the scaffold. The Court noted that the manufacturer designed his product for use by professionals who, the manufacturer could presume, had mastered basic operations involving use of the product. 414 Mich 640. Defendant here was not a manufacturer selling to professionals, but instead was a professional dealing with nonprofessionals who hired defendant to advise them about the very matter at issue.
Defendant also argues that it should be relieved from liability due to intervening negligence by the school district. Whether an intervening negligent act of a third party constitutes a superseding proximate cause so as to relieve the defendant from liability is ordinarily a question of fact for the jury. See, for example, Young v E W Bliss Co, 130 Mich App 363, 369; 343 NW2d 553 (1983). Intervening negligence by a third party will not relieve the defendant from liability if the intervening event was foreseeable. Davis v Lhim, 124 Mich App 291, 307; 335 NW2d 481 (1983); Gorelick v Dep’t of State Highways, 127 Mich App 324, 334; 339 NW2d 635 (1983).
Defendant was retained as a professional architect to advise the school district about matters including the selection of an appropriate diving board and stand. It was highly foreseeable that the school district would follow defendant’s advice under the circumstances, and we cannot see how the district’s failure to disregard defendant’s advice could constitute intervening negligence suffi cient to relieve defendant from liability under these circumstance. The trial court did not err by declining to direct a verdict for defendant on this issue.
Defendant argues that the trial court erred by declining to give a requested instruction on vicarious liability. The trial court instructed the jury that defendant could not be liable except for negligence by defendant’s employee, Herbert Iverson, at the time and during the course of his employment. Defendant has failed to explain why it claims this instruction was inadequate to convey the applicable legal concepts to the jury. No error in this connection is presented.
Defendant also argues that the trial court erred by declinging to instruct the jury that it could consider compliance with governmental and industrial standards in determining whether defendant was negligent. Compliance with governmental and industrial standards does not necessarily prevent a finding of negligence. Owens v Allis-Chalmers Corp, supra, p 422. Extensive evidence and argument was presented here concerning compliance with governmental and industrial standards; nothing at trial could have suggested that the jury could not consider compliance with governmental and industrial standards. Defendant’s requested instructions contained misleading language focusing on the manufacture and design of the diving board and stand rather than on whether the board and stand were appropriate for use under the circumstances. No error in this connection is presented.
Defendant argues that the damages awarded were excessive and that the trial court committed an abuse of discretion by denying its motion for a new trial or remittitur. Where there are no other errors at trial, remittitur can be ordered only if the verdict was so excessive as to shock the judicial conscience. Burnett v Mackworth G Rees, Inc, 109 Mich App 547, 552; 311 NW2d 417 (1981); May v Grosse Pointe Park, 122 Mich App 295, 297; 332 NW2d 411 (1982). We cannot say that the valuation placed by the jury here on the life of a child was so excessive as to shock our consciences.
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On Remand
Before: Danhof, C.J., and T. M. Burns and Cynar, JJ.
Danhof, C.J.
The facts of this case are set forth in In re Dissolution of Esquire Products International, Inc, 136 Mich App 492; 357 NW2d 77 (1984), and are not recited here. We revisit this case by virtue of a remand from the Supreme Court "for reconsideration in light of MCR 3.611(E)”. 422 Mich 926 (1985). At issue here is the propriety of the lower court’s injunction prohibiting T.A.S. from continuing its lawsuit against Esquire after Esquire’s majority stockholder, Gerald Kalen, initiated voluntary dissolution proceedings pursuant to MCL 600.3510 et seq.; MSA 27A.3501 et seq.; GCR 1963, 778 (presently MCR 3.611). While neither party addressed this court rule in its brief to this Court, our express consideration of MCR 3.611(E) does not mandate a different result and, accordingly (as before), we affirm the decision of the lower court.
MCR 3.611 specifies its applicability to voluntary dissolution proceedings brought under MCL 600.3501 et seq.; MSA 27A.3501 et seq., and prescribes the contents of a complaint seeking such dissolution. MCR 3.611(C), (D) and (E) then provide as follows:
"(C) Notice of Action. Process may be served as in other actions, or, on the filing of the complaint, the court may order all persons interested in the corporation to show cause why the corporation should not be dissolved, at a time and place to be specified in the order, but at least 28 days after the date of the order. Notice of the contents of the order must be served by mail on all creditors and stockholders at least 28 days before the hearing date, and must be published once each week for 3 successive weeks in a newspaper designated by the court.
"(D) Hearing. At a hearing ordered under subrule (C), the court shall hear the allegations and proofs of the parties and take testimony relating to the property, debts, credits, engagements, and condition of the corporation. After the hearing, the court may dismiss the action, order the corporation dissolved, appoint a receiver, schedule further proceedings, or enter another appropriate order.
"(E) Suits by Receiver. An action may be brought by the receiver in his or her own name and may be continued by the receiver’s successor or coreceiver. An action commenced by or against the corporation before the Sling of the complaint for dissolution is not abated by the complaint or by the judgment of dissolution, but may be prosecuted or defended by the receiver. The court in which an action is pending may on motion order substitution of parties or enter another necessary order.” (Emphasis added.)
Subrule (E) of this part parallels MCL 450.1834(f); MSA 21.200(834)(f), which states that "[a]n action brought against the corporation before its dissolution does not abate because of the dissolution”. MCL 450.1801 et seq.; MSA 21.200(801) et seq., the dissolution provisions of the Business Corporation Act, which set forth grounds for dissolution in addition to those provided in MCL 600.3501 et seq.; MSA 27A.3501 et seq. and prescribe the appropriate procedures, are also applicable in this case.
Rules of practice and procedure are governed by principles of statutory construction when ascertaining the intent of the Supreme Court in promulgating such rules. Issa v Garlinghouse, 133 Mich App 579, 581; 349 NW2d 527 (1984). Indeed, because the Supreme Court is "truly cognizant of these doctrines” of statutory construction we are especially guided by them in this instance. People v Lange, 105 Mich App 263, 266-267; 306 NW2d 514 (1981). Moreover, these rules are to be interpreted in light of, and consistent with, the general purpose sought to be served thereby. Issa, supra, p 582. Inasmuch as MCR 3.611 was expressly designed to apply to dissolution proceedings, the general purpose of the statutory provisions relating to dissolution must also be examined.
To begin, neither the language of the court rule nor the statute mandates that a pending action be continued. The language that, "an action * * * is not abated” (or "does not abate”) merely instructs that the action may survive. Generally, "a dissolved corporation is a dead person, so much so that, in the absence of statute and revival, even pending actions by or against it would abate.” US Truck Co v Pennsylvania Surety Corp, 259 Mich 422, 426; 243 NW 311 (1932). See, also, 16A Fletcher Cyclopedia Corporations, § 8147, p 366; Walder v Paramount Publix Corp, 132 F Supp 912, 917 (SD NY, 1955); In re International Reinsurance Corp, 29 Del Ch 34; 48 A2d 529, 541 (1946); Esquire, supra, p 498. Thus, § 834 of the Business Corporation Act and MCR 3.611 are necessary to permit an action to continue. In their absence, abatement would follow as a matter of course (and as a matter of law). MCR 3.611 must be read in context. We do not believe that a provision negating automatic abatement can be extrapolated so as to require continuance of the action.
That these provisions are permissive in the sense that they allow (without requiring) continuance is further borne out in the language of MCR 3.611 that a pending action "may be prosecuted or defended by the receiver”. (Emphasis added.) The Supreme Court, being cognizant of the principles of construction, employed the permissive "may” in providing for the continuance of an action pending at the time of dissolution. Additionally, the final sentence of MCR 3.611(E) serves to bolster this conclusion in that it provides that the court "in which an action is pending may on motion order substitution of parties or enter another necessary order”. Along these same lines, MCL 600.3501(1); MSA 27A.3501(1) states that "[s]uch actions (for voluntary dissolution) are equitable in nature”. The power of injunction is wholly consistent with this notion, as well as with the "necessary order” language of MCR 3.611. Consequently, MCR 3.611 does not preclude the enjoining of the pending action. The question of the propriety of the lower court’s action in this regard is not resolved by resort to this rule. Having concluded that MCR 3.611 does not change our previous disposition of this case, we take this opportunity to clarify our prior decision.
Chapter 8 of the Business Corporation Act, MCL 450.1801 et seq.; MSA 21.200(801) et seq., is patterned substantially after the statutory scheme prevailing in New Jersey. Compare NJ Rev Stats § 14A:12-1 et seq.; see also Michigan Law Revisions Commission (1970), 5th Annual Report, Business Corporation Act Supplement. In this connection, the New Jersey courts have stated that the primary purpose of the provisions relating to dissolution is to protect the rights of all creditors by providing for the payment of debts "ratably”, and to prevent individual creditors from procuring a preferment by pursuing independent action to the detriment of other creditors. Indeed, the New Jersey courts have recognized the propriety of enjoining a separate action under circumstances similar to the instant case. See Trustees of Sea Isle City Realty Co v First National Bank of Ocean City, 87 NJ Eq 84; 99 A 929 (1917); Camden Mortgage Guaranty & Title Co v Haines, 110 NJ Eq 461; 160 A 413 (1932). These decisions were based on the court’s equitable powers in such matters.
Furthermore, MCL 600.3501(2); MSA 27A.3501(2) contemplates that all creditors be involved in the dissolution proceedings, as does MCL 450.1841(2); MSA 21.200(841X2), which defines "creditor” to include all persons to whom the corporation is indebted, including secured and unsecured creditors. These provisions evince an intent to compel all creditors to pursue their claims as provided in the Business Corporation Act and to discourage preferment of claims by allowing separate suits which may exhaust the corporation’s assets to the detriment of other creditors.
Finally, we noted in our previous decision that § 842(2) evinced a like intent by providing that failure to file a claim pursuant to the act "barred [all creditors] from suing on the claim”. We stated that "filing a claim under § 842 of the Business Corporation Act would seem to be the exclusive remedy for a creditor of a corporation seeking dissolution”. 136 Mich App 498. By this we do not mean to imply that all pending suits must be enjoined and claims must then be made pursuant to that section. Rather, where such action is enjoined, the creditor must follow the provisions of the act. Similarly, § 842 is the exclusive remedy for creditors who have no claims pending at the time of dissolution. But to the extent that a claim is pending at the time of dissolution and the action is permitted pursuant to MCR 3.611(E), or to the extent that good cause may be shown under § 851 (discussed below), § 842 is not the exclusive remedy. Its purpose is, however, "to compel all creditors who may reasonably be expected to file their claims to do so within the prescribed time and to * * * [bar] * * * the claim upon failure to do so”. Commissioner’s Comment, 1972 Amendments to NJ Rev Stats § 14A:12-13.
We also stated that the language in § 842(2), that "this section does not apply to a claim in litigation”, referred to notice only. This conclusion is compelled by the fact that § 842(2) states that this section, (not subsection), which thus includes §842(1), does not apply to claims in litigation. Since § 842(1) refers to notice, while § 842(2) refers to the presentment of claims following such notice, we conclude that this language was not intended to except claims in litigation from the operation of the Busines Corporation Act, i.e., this section does not operate to automatically allow a suit already pending to proceed independently of the dissolution proceedings. Our conclusion might be different if § 842(2) stated that "this subsection does not apply to a claim in litigation”, since it would then apply only to the § 842(2) presentment-of-claims provision. Instead, the language employed obviates the need to follow the notice and claim provisions where the corporation obviously has notice of the claim. This is consistent with the changes to § 841(1) wrought by 1973 PA 98, discussed in Esquire, supra, p 497, fn 1, which abrogated the mandatory nature of the notice provisions in circumstances where, as a practical matter, notice was not needed. We believe that the exception in § 842(2) refers to notice (and a creditor’s response thereto) and does not intimate that pending actions are necessarily outside the scope of Chapter 8.
This construction is in harmony with § 851 of the Business Corporation Act. Section 851 envisions additional claims by allowing such in "an action pending under this section or otherwise”. This section manifests an intent to repose considerable discretion in the court to control the determination of claims by creditors. A logical corollary to the authority to permit a creditor to make claims under §851 in an action pending "under this section or otherwise”, especially where the action is equitable in nature, is to enjoin (or stay) the independent action and allow the filing of a § 851 claim.
In the case sub judice, we find no abuse of discretion by the lower court. Esquire was indebted to various creditors in the amount of $83,-418. Its assets totaled approximately $24,000. T.A.S. was Esquire’s largest creditor, holding a claim which exceeded $24,000. Thus, payment to T.A.S. would have prejudiced the other creditors, and none of the debts, including that to T.A.S., was secured. Under the circumstances, with approximately 15 other creditors in the same position as T.A.S. and with T.A.S.’s claim being adequately protected by § 851, we adhere to our prior holding that there was no abuse of discretion in the granting of injunctive relief below.
In summary, there is sufficient manifestation in the Business Corporation Act and MCR 3.611 of an intent to allow independent actions. Obviously, the enjoining of such action is not required, since the action is not automatically abated, but may be prosecuted or continued. By the same token, however, these provisions are discretionary, so that an injunction is not precluded. The Business Corporation Act provides adequate protection for a creditor whose independent action is enjoined by allowing a § 851 suit. And an action pursuant to the procedures outlined in §§ 842 and 843 may also be available. For these reasons we affirm the decision of the lower court.
We note that, generally, where a conflict exists between a general court rule and a statute, the court rule prevails. Jackovich v General Adjustment Bureau, Inc, 119 Mich App 221, 232; 326 NW2d 458 (1982), lv den 417 Mich 1071 (1983); Pelley v Peterbilt Motors Co, 133 Mich App 664, 668; 350 NW2d 787 (1984). Here, however, no conflict exists; the provisions are complementary. Thus, the intended purpose of the statute provides guidance as to the court rule.
We further note that GCR 1963, 778.4, which was applicable at the time this suit was commenced, provided that a pending suit "shall not abate”. Because that language was followed by the provision that the pending suit "may be prosecuted or defended”, we believe that the former court rule also intended merely to permit continuance rather than require such. Despite the "shall not abate” language, the portion of the rule addressing the continuance of an action was couched in permissive language. In fact, we find our conclusion in this regard even more compelling in light of the language found in the new rule, MCR 3.611(E), that an action "is not abated”. This language more clearly indicates that the rule was and is merely permissive, i.e., an action is not automatically abated, but may be continued. The note following MCR 3.611 recites no substantive change intended by the new language, so that it may be viewed as clarifying what was intended all along. Kelvinator, Inc v Dep’t of Treasury, 136 Mich App 218, 227; 355 NW2d 889 (1984).
As but one example that the Legislature, as well as the Supreme Court, knows how to require continuance when such is its intention, we point to MCL 257.403(a); MSA 9.2103(a) as additional support for our conclusion. MCL 257.403(a); MSA 9.2103(a) provides long-arm jurisdiction for a plaintiff injured in an automobile accident in this state by a person residing outside the state at the time the complaint is filed. It further provides that "[a]ny action or proceeding pending * ** * shall not abate by reason of the death of such nonresident * * As noted above, dissolution is viewed as "corporate death” in the absence of a statute to the contrary. US Truck Co, supra. Thus, this provision parallels § 834 and MCR 3.611 in that it establishes survival of the action. However, MCL 257.403(a); MSA 9.2103(a) states that the executor of the deceased defendant "shall * * * be brought in and substituted in the place of the decedent, and the action or proceeding shall continue”. (Emphasis added.) In contrast to § 834 and MCR 3.611, this provision is clearly mandatory.
MCL 600.3501(2); MSA 27A.3501(2) states that "[a]U stockholders and creditors shall be made parties defendant”. | [
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Per Curiam.
Defendant appeals as of right from a jury conviction of possession of a weapon by an inmate, MCL 800.283; MSA 28.1623. He was sentenced to serve from three to five years’ imprisonment, said sentence to be served consecutively to his current sentence.
Defendant was charged with possessing a pipe, which he allegedly used to attack another inmate. At trial, defendant testified that he was attacked by the other inmate and that, in the struggle, he managed to pull the pipe from his attacker’s hand. When the guards arrived on the scene, defendant was holding the pipe. In connection with this testimony, defendant requested that the trial court give the following instruction to the jury:
"I instruct you that the defendant has a right to defend himself whether in prison or not. The right of self defense extends to and permits the taking of a weapon from another who would use that weapon offensively.
"If you believe that the defendant obtained possession of the pipe by taking it from an aggressor, and thereafter possessed the weapon in order to keep it away from an aggressor, without using it for offensive purposes, then the defendant must be found not guilty.”
The trial court declined to do so, reasoning (as did the prosecutor) that, if the jury believed defendant’s story, the jury would not convict him of possession, even without the requested instruction.
During closing arguments, the prosecutor made the following arguments to the jury:
"The question arises, if it’s even relevant, arises about whether or not Mr. Perry was okay in having it [the pipe]. Should you let him have it in that circumstance. Are you going to disregard the instructions that the Court gives you and say, ’Well, gee, if it happened like Perry said it happened, it was okay, because the other guy was going to hit him with it. ’
"So what did we expect him to do? Well, you have to look at this from two different points of view. One is, okay, it happened the way Perry said. So what? You’ve promised you’re going to follow the law, you’ve indicated to me the judge — in your voir dire questions, the law will be read to you, the instructions will be given, if you Énd that the facts ñt that law, then you have a duty, because Fve done what I said I would do, to come back with a verdict of guilty.
"I haven’t failed in any one of those elements. I’ve shown identity, I’ve shown that he had a hold of it, that he had it in his hand, possession, I’ve shown that he was a prisoner, and I’ve shown that he was at the institution, and for that matter, you might hear that if the warden says it’s okay for prisoners to have weapons, then it’s not illegal, but basically, you heard from the guard that this man wasn’t authorized to be lugging this piece of pipe around.
"And the Judge is going to tell you what possession [means], and he’s not going to tell you it means it’s okay to have it if you’re going to ñght or if one fought another one, then that doesn’t matter, he’s going to tell you it means to have or to hold, knowing what you had, and he knew that he had a pipe. And he knew, and he told you that he wasn’t to have a pipe.
"Ladies and gentlemen, please listen to the facts. Go into that court — into that jury room, see what was proven here today. The man had it, he held it, he didn’t want anyone else to have it, he didn’t want the guards to have it, and Mr. Scroggins wasn’t hanging around to see what he intended on doing with it, and I don’t want you to go in there and feel sorry for Mr. Scroggins either, I don’t want you to go in there and feel sorry for anyone. I want you to listen as the Judge gives you the instructions. See if that defense is made out. Apply the facts as we have proven them to the law, and do what you’re sworn to do.” (Emphasis added.)
Following closing arguments, the trial court instructed the jury on the offense of inmate in possession of a weapon:
"Turning our attention now to the offense charged. [T]he statute of the written law of the State of Michigan provide[s] as follows: Unless authorized by the chief administrator of the correctional facility, a prisoner shall not have in his or her possession or under his or her control a weapon or other implement which may be used to injure a prisoner or other person. That’s the simple statement of the law from the statute.
"As in every criminal offense, there are certain elements which you must find to have been satisifed by the evidence and that you must be convinced have been shown beyond a reasonable doubt. The elements in this offense, I will review those with you in a moment.
"The elements of this offense must all be shown, and if you find that any one of them have not been shown beyond a reasonable doubt, then you would find the defendant not guilty.
"In this case, you must find from the evidence that the defendant, Randal Perry — or Randy Perry was a prisoner of a correctional facility. You must find that he possessed an object or the object in question, and you must find that the object in question was a weapon or an implement which can be used to injure a person— injure a prisoner or another person.
"Now, in the absence of any evidence of authorization for him to possess this object, you may infer that the defendant did not have authorization to possess this object.
"To possess means to have or hold the property or a thing, in this case, under one’s control while knowing the nature of the object or thing. The evidence must also convince you beyond a reasonable doubt that the crime occurred in Ionia County in the State of Michigan, and that occurred on or about August 24th, 1983.”
Thirty-eight minutes after receiving these instructions, the jury returned a guilty verdict.
On appeal, defendant argues that he was denied his right to a properly instructed jury by the court’s refusal to give his requested instruction. The prosecution responds to this claim by arguing that:
"[T]he offense charged was possession of a weapon. Consequently, the jury could have found (if they chose to accept the testimony of defendant-appellant) that he did not 'possess’ the lead pipe but had merely removed it from the possession of inmate Scroggins in order to prevent any harm to himself.
"It is also clear that had the jury decided to give any credence to defendant-appellant’s theory (to the effect that he was merely relieving inmate Scroggins of a dangerous weapon in order to protect himself) they were free to find that he did not possess a weapon in contravention of the statute. Thus, the instructions as given by the judge accommodated both the theory propounded by the prosecution as well as that of the defense.”
We are unable to agree that the jury might have ignored the trial court’s instructions on the elements of the offense as well as the prosecutor’s explicit and repeated admonitions to "do what you’re sworn to do” and "follow the law” as provided by the court’s instructions. Nothing in the instructions given the jury even suggested that, if defendant had "possessed” the pipe merely by removing it from the hand of his attacker, he was not guilty of the crime of possession of a weapon. Instead, the entire thrust of those instructions, especially when augmented by the prosecutor’s arguments at trial, was that "mere possession” was a sufficient basis for conviction. Therefore, if defendant was entitled to the instruction, his conviction must be reversed.
We believe that defendant was entitled to have the jury instructed that, if the jury believed that defendant had acquired the pipe purely in self-defense and had intended to give it to the guards at the first opportunity, defendant was not guilty of "possessing” the weapon. The statute, MCL 800.283; MSA 28.1623, does not expressly provide for such an instruction. However, without such an instruction, the statute would, in effect, impose strict liability upon any prisoner found holding a weapon. As a general rule, strict liability will not be presumed in a criminal penal statute:
"The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.
"Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil. As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation.” Morissette v United States, 342 US 246, 250-252; 72 S Ct 240; 96 L Ed 288 (1952)(footnotes omitted), quoted in United States v Commodore Club, Inc, 418 F Supp 311, 319 (ED Mich, 1976).
This is particularly true when dealing with a possessory offense:
" 'Possession’ is an ambiguous term derived from the Roman law. It has variant connotations; but on well-settled principle the word is to be given a strict construction in statutes defining criminal and penal offenses. It signifies an intentional control and dominion. Bergedorff v United States, 10 Cir., 37 F 2d 248 (1929). Animus possidendi is of the essence of possession. Such was its primary meaning under Roman law. 'Possession is the occupation of anything with the intention of exercising the rights of ownership in respect to it.’ Hunter, Rom. Law 209. Under the cited statutes, 'possession’ imports 'corporeal possession in fact. * * * The elements of this possession are: First, the mental attitude of the claimant, the intent to possess, to appropriate to oneself; and, second, the effective realization of this attitude. Effective realization involves the relation of the claimant to other persons, amounting to a security for their noninterference, and the relation of the claimant to the material thing itself, amounting to a security for exclusive use at will. All the authorities agree that an intent to exclude others must coexist with the external facts, and must be fulfilled in the external physical facts, in order to consitute possession. It is this requirement which prevents the man in whose building, or automobile, or traveling bag, or pocket, liquor is found, which was surreptitiously placed there by another, from being a violator of the law.’ ” State v Labato, 7 NJ 137; 80 A2d 617 (1951).
We conclude that defendant’s conviction must be reversed and that, on retrial, the jury should be instructed in accordance with this opinion.
Defendant next challenges the sufficiency of the evidence presented at the preliminary examination. Defendant moved prior to trial to quash the information on this ground. We find that sufficient evidence of both defendant’s lawful assignment to the Michigan Reformatory and of his lack of authorization to have a weapon was presented. Defendant was identified as an inmate of the reformatory by one of the guards. In addition, while the statute refers to a prisoner possessing a weapon "without authorization”, this does not establish the lack of authorization as an element of the crime but instead acknowledges that a prisoner might be authorized to possess a weapon. In the absence of any indication by defendant that he was authorized to possess the pipe, the prosecution had no burden to prove the absence of authorization. See People v Henderson, 391 Mich 612; 218 NW2d 2 (1974).
Defendant’s final argument on appeal is that the trial court lost jurisdiction over his case because he was tried 184 days after the issuance of the complaint, thus violating MCL 780.131; MSA 28.969(1). We disagree. The record shows continued good-faith action by the prosecutor to proceed promptly to trial; the only uncommon delays were those caused by two adjournments of the preliminary examination at defendant’s request.
Reversed and remanded for a new trial. | [
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Per Curiam.
Facts
Defendant appeals from his jury conviction of two counts of assault on a prison employee, MCL 750.197c; MSA 28.394(3). As a result of these convictions and a subsequent conviction as a habitual offender pursuant to MCL 769.10; MSA 28.1082, defendant was sentenced to two concurrent terms of from 3 to 6 years imprisonment to run consecutively to his prior sentence.
Defendant’s convictions stem from an incident occurring on February 14, 1983, at the Marquette Branch Prison. On that date, defendant, a Marquette prisoner, became involved in an altercation with two prison guards. Defendant claimed at trial that he was acting in self-defense.
According to defendant, he had learned through another inmate that one of the prison guards, Officer Richard Smith, had placed a contract on his life. At the time of the incident, defendant was returning from the yard when a scuffle broke out between Officer Smith and two other inmates. Then the defendant felt someone hitting him from behind. Defendant perceived this as the predicted assault on his life and began to fight. He then realized he was fighting two prison guards. Defendant stopped fighting when more prison guards responded to the scene.
Officer Martin testified for the prosecution that as he was escorting several inmates to their cells he was jumped from behind and assaulted by an unknown number of inmates. Martin identified defendant as one of his assailants. Officer Bellhorn testified that he saw defendant hitting Martin and, when he tried to stop defendant, defendant assaulted him.
Defendant raises several points of claimed error on appeal.
I
Defendant first contends that he was denied his right to a fair trial because the prosecutor failed to endorse certain res gestae witnesses, specifically, Officer Richard Smith, inmates John Brown and Eddie Julian, and other prison inmates who may have witnessed the incident.
A res gestae witness has been described as " 'an eyewitness to some event in the continuum of a criminal transaction and [one] whose testimony will aid in developing a full disclosure of the facts surrounding the alleged commission of the charged offense’ People v Carter, 415 Mich 558, 591; 330 NW2d 315 (1982), quoting People v Hadley, 67 Mich App 688, 690; 242 NW2d 32 (1976). One need not be an actual eyewitness in order to be a res gestae witness if his or her testimony would assist in developing a full disclosure of the facts. People v Buschard, 109 Mich App 306, 312; 311 NW2d 759 (1981); People v Abdo, 81 Mich App 635, 643-644; 265 NW2d 779 (1978), lv den 405 Mich 805 (1979). An affirmative duty resides in the people to endorse and produce at trial all res gestae witnesses. MCL 767.40; MSA 28.980. If the prosecutor does not comply, however, it is incumbent upon the defendant to move for an evidentiary hearing before, during, or after a new trial, in order to perfect the issue for appeal. People v Robinson, 390 Mich 629, 634; 213 NW2d 106 (1973); People v Pearson, 404 Mich 698, 723; 273 NW2d 856 (1979).
Defendant requested the production of these witnesses before trial and also requested a jury instruction concerning the prosecutor’s failure to endorse the requested res gestae witnesses. The trial court ruled that Officer Smith was not a res gestae witness and denied defendant’s requests. The trial court also decided that the prosecution’s failure to produce those prison inmates who may have been res gestae witnesses was excused by its diligent but futile efforts to locate and produce them. We discuss the merits of each decision separately.
Officer Richard Smith
The decision of a trial court concerning the status of an alleged res gestae witness will not be overturned unless clearly erroneous. People v Abrego, 72 Mich App 176; 249 NW2d 345 (1976); People v Harrison, 44 Mich App 578; 205 NW2d 900 (1973). In this case, the basis for the court’s decision that Officer Smith was not a res gestae witness was its finding that Smith did not see the assault as it happened because Smith was around the corner and was rendered semi-conscious if not unconscious at the time as a result of the beating that he took from another inmate. We find this decision clearly erroneous and unsupported by the record.
All three prison guards involved in this case testified at the preliminary examination that, at the time of the incident, the inmates and the three guards were on the first gallery of the cellblock. Officer Smith was located approximately three-fourths of the way down the gallery toward the far east end, Officer Martin was in the middle and Officer Bellhorn was at the west end. Officer Smith was not around the corner as the trial court indicated. Further, Smith testified that he was not rendered unconscious until 2 or 3 minutes after the assault on him began. Therefore, Smith did have some ability to observe the incident prior to being rendered unconscious.
John Brown and Eddie Julian
While defendant does not contend that John Brown and Eddie Julian were eyewitnesses to the assault at issue, he does contend that their involvement with this incident qualifies them as res gestae witnesses. Both individuals were called by the defense. Eddie Julian testified that Officer Smith had offered him a contract to kill defendant and two other inmates. Julian testified that he asked John Brown to do it instead. John Brown testified that two days before the assault in question, he sent a note to another inmate, Kenny Smith, informing Smith that Officer Smith had entered into a contract to kill Smith and defendant.
On various occasions, this Court has classified a witness as a res gestae witness even though the witness did not personally observe the act in question. See e.g., People v Harrison, supra, p 592; People v Williams #2, 45 Mich App 630, 635; 207 NW2d 180 (1973). The res gestae rule encompasses not only eyewitnesses but witnesses whose testimony may aid the making of a fair presentation of the res gestae of the crime charged and may be necessary to protect the accused from being victimized by false accusations. People v Fudge, 66 Mich App 625, 629; 239 NW2d 686 (1976).
Here, neither Brown nor Julian witnessed the assault. Nor did they have any contact with the defendant which was reasonably contemporaneous with the crime or which tended to show the state. of mind with which the criminal act was done. Cf., People v Williams #2, supra. Indeed, defendant does not argue that Brown and Julian knew that defendant had knowledge of the alleged contract. At most, Brown and Julian could testify as to the existence of the contract and Brown could corroborate the existence of the letter he worte to Smith. But this evidence does not go to the actual res gestae of the crime. Therefore, the prosecutor was not required to produce them at trial.
Cohen, Paige and the Other Non-Accomplice Inmates
Defendant further argues that the failure to endorse those other inmates who were housed in Block B and allegedly observed the incident was also error. When defense counsel raised this issue prior to trial, the prosecutor agreed to deliver a box of form letters to the prison requesting inmates to contact the prosecutor’s office if they had any information about the incident. While the prosecutor fulfilled this agreement, no inmates came forth.
Subsequently, defense counsel brought another motion to endorse these alleged res gestae witnesses. At that time, the trial court declined to order the prosecutor to interview each inmate to substantiate who was or was not a res gestae witness, stating that the delivery of the form letters constituted a sufficiently reasonable effort in light of the generalization that inmates "dummy up” and in this case refused to cooperate with the prosecutor. The trial court did, however, order the prosecutor to provide defense counsel with a list of those inmates housed in the cellblock at that time so that defense counsel might contact the inmates to determine who among them were res gestae witnesses and then make a motion to endorse them
After both sides had entered their proofs at trial, defense counsel requested that a "missing witness” instruction be given to the jury concerning the prosecutor’s failure to produce inmates Paige, Cohen, Jones and those unidentified inmates who witnessed the incident. The trial judge refused to give the instruction because defendant never requested the endorsement of additional witnesses after the prosecutor had supplied defense counsel with the list of those inmates housed in the cellblock at the time.
In essence, the trial judge ruled that the prosecution had used due diligence in its efforts to determine which inmates were res gestae witness and, therefore, was excused from having these witnesses endorsed. This Court will not overturn a trial judge’s findings of due diligence on appeal unless an abuse of discretion is shown. People v Castaneda, 81 Mich App 453, 460; 265 NW2d 367 (1978). We find that an abuse of discretion has been shown here.
The purposes of requiring the production of res gestae witnesses include: (1) protecting the defendant against false accusation; (2) preventing suppression of testimony favorable to the accused; and (3) ensuring the disclosure of all the circumstances. People v Norwood, 123 Mich App 287, 294; 333 NW2d 255 (1983), lv den 417 Mich 1006 (1983). While the people are not under an obligation to endorse and produce unknown witnesses, the people are required to exercise due diligence in seeking to ascertain the identities of any witnesses. People v Harris, 127 Mich App 538, 543; 339 NW2d 45 (1983). "Due diligence is defined as doing everything reasonable, not everything possible.” People v LeFlore (After Remand). 122 Mich App 314, 319; 333 NW2d 47 (1983); People v Moreno, 112 Mich App 631, 637; 317 NW2d 201 (1981).
We believe the trial court impermissibly shifted the burden of identifying those inmates who were res gestae witnesses to the defendant. The trial court’s reasoning that "inmates generally 'dummy’ up and don’t say anything” to the prosecutor’s office is insufficient in the absence of any evidence suggesting that personal interviews ended in such a result.
While we note that originally defendant’s request encompassed the entire number of inmates housed in Block B, a hundred or so, the request was modified to include only approximately 30 inmates housed on the gallery at the time when the incident occurred. These inmates most probably did see something. Because a rebuttable presumption exists that persons present at the time and place of a crime are res gestae witnesses, People v Abrego, 72 Mich App 176, 179; 249 NW2d 345 (1976), in lieu of conducting personal inter views with each inmate, we believe the more prudent practice would be for the prosecutor to conditionally endorse those inmates housed at the time near the scene of the incident. The witness may then tye subject to voir dire and the question of whether or not he is a res gestae witness ruled on more knowingly. See People v Harrison, supra.
Nor does the fact that defendant himself called some inmates of this category obviate the error. An exception to the rule placing the burden of producing res gestae witnesses on the prosecution is when the witness’s identity is known only to the defendant. People v Norwood, supra, p 294, citing People v Gillam, 93 Mich App 548; 286 NW2d 890 (1979). Here, the record reveals that the prosecutor was or should have been aware of the identities of these witnesses through the testimony of Daniel Slee given at the preliminary examination.
We further note that adherence to the res gestae rule is important not only to secure defendant the benefit of cross-examination but also because the credibility of a witness may be detracted from or enhanced, depending on which party calls the witness. People v Harrison, supra. Where as here the testimony is essentially the words of the prison guards against the words of the prisoners, credibility is a paramount factor.
The Remedy
According to the Supreme Court in People v Pearson, 404 Mich 698, 724; 273 NW2d 856 (1979), the key issue in determining the proper remedy when the prosecutor has failed to fulfill his responsibilities in endorsing and producing res gestae witnesses is whether the defendant has been prejudiced. The defendant is presumed prejudiced until the prosecutor can establish the contrary. Because we reverse and remand for a new trial on other grounds, see Issue VI, infra, we no not specify any steps to be taken prior to a new trial.
II
Defendant also contends that the trial court abused its discretion by denying defendant’s request for discovery of Officer Smith’s personnel file. We agree that defendant’s discovery request should have been granted subject to certain conditions.
At first, defendant’s discovery request was broadly phrased to seek all personnel files, memos or records pertaining to Officer Richard Smith and any other prison guard who was directly involved in the incident. However, defense counsel amended this request to include complaints by inmates and internal memos regarding any violence or threat of violence by those officers toward inmates, specifically black inmates. Defendant contended that this information would assist in preparation of his self-defense argument.
The trial judge denied defendant’s amended discovery request, ruling that the request lacked sufficient specificity and that information in the file could not be relevant to defendant’s defense. We reverse this decision.
In People v Walton, 71 Mich App 478, 481-482; 247 NW2d 378 (1976), this Court wrote:
"Traditionally, information sought by a defendant is discoverable when, in the sound discretion of the trial court, the object sought is admissible into evidence and the suppression of it might result in a failure of justice. People v Maranian, 359 Mich 361; 102 NW2d 568 (1960), People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969). But, discovery has not been limited exclusively to whether the information sought was admissible at trial. Rather, the focus has shifted to whether fundamental fairness to the defendant, in preparing his defense, requires that he have access to the requested information.”
While this Court has noted that "[t]he trend in Michigan and other states is toward broader criminal discovery”, People v Browning (On Reh), 108 Mich App 281, 307; 310 NW2d 365 (1981), the burden still remains on the defense to establish specific facts "indicating that such information is necessary to a preparation of its defense and in the interests of a fair trial, and not simply a part of a fishing expedition”. People v Maranian, 359 Mich 361, 368; 102 NW2d 568 (1960). Thus, where it had been determined through an in camera inspection of the information in the records sought that the same information could have been obtained on cross-examination, the discovery request was denied on the basis of an insufficient showing of need. People v Maranian, supra.
In the case at bar, no in camera inspection of the files sought was conducted by the trial court before it made its decision to deny defendant’s discovery request. We find this to constitute an abuse of discretion. The defendant amended his request to make it as specific as possible under the circumstances. We also believe that the file might have yielded information that would have been helpful to defendant’s defense. Further, it is doubtful that this information could have been obtained on cross-examination.
"[FJairness to the defendant and an adequate opportunity to prepare a defense, including preparation for cross-examination of witnesses, requires that the defendant be given access to all relevant information.” People v Walton, supra, p 484. Without an in camera inspection of the records sought, we find it difficult to be certain that the inspection would yield no relevant information. Therefore, on remand we order the trial court to conduct an in camera hearing to determine what portion, if any, of this file is relevant to the defendant’s defense.
Ill
Defendant was convicted of assault on an employee of a place of confinement, MCL 750.197c; MSA 28.394(3). His sentence was then enhanced under the habitual offender statute due to the fact that he had a prior felony conviction. MCL 769.10; MSA 28.2082. Defendant now contends that his convictions placed him in double jeopardy.
The Double Jeopardy Clauses in both the United States and Michigan Constitutions protect against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. People v Robideau, 419 Mich 458, 468; 355 NW2d 592 (1984), citing North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). The issue in the case at bar concerns the third category of protections.
In determining whether a defendant’s punishment violates the protection against double jeopardy because it constitutes multiple punishments for the same crime, our Supreme Court has held that legislative intent is determinative. People v Robideau, supra, p 485.
As an aid in determining legislative intent, the Supreme Court developed a test in Gavieres v United States, 220 US 338, 342; 31 S Ct 421; 55 L Ed 489 (1911), now known as the Blockburger test because of its employment in Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932):
"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”
However, in People v Robideau, supra, p 486, the Michigan Supreme Court rejected the Blockburger test in favor of a more traditional test for determining the intent of the Legislature, that is, by looking to the subject, language and history of the statutes.
Defendant argues that because the Legislature elevated the conduct of assault on a prison guard to a felony, it must not have intended to allow the crime to be again supplemented under the habitual offender statute. Therefore, defendant contends, the imposition of the harsher sentence upon defendant violated legislative intent and the double jeopardy clause.
In People v Shotwell, 352 Mich 42, 45-46; 88 NW2d 313 (1958), a similar argument was advanced in connection with a conviction under the habitual offender statute stemming from a conviction for escaping from prison. The Supreme Court rejected the argument, however, on the following basis:
"[W]e further note that substantive crimes are created and defined in our penal code whereas the statutory provisions for second and subsequent offenders are found in our code of criminal procedure. This is some indication, we think, that the Legislature did not intend to make a separate substantive crime out of being a habitual criminal but rather, for deterrent purposes, intended to augment the punishment for second or subsequent felonies. Since the Legislature did not except escaping prison from our second offender statute we can only infer that it intended the latter statute to apply to all felonies. This we held with little if any discussion in In re Wilson, 295 Mich 179 [294 NW 145 (1940)].” 352 Mich 46.
We find this reasoning dispositive of the issue at bar. Hence, we find no violation of the double jeopardy clause under this analysis.
IV
Defendant also contends that the trial judge erred in refusing to instruct the jury on the lesser included misdemeanor of assault and battery because sufficient evidence was presented at trial to establish that defendant did not intend or did not know that he was striking a prison guard at the time he committed the assault in question. We disagree.
The decision to grant or deny a requested instruction on a lesser included offense will be reversed on appeal only upon a finding of a clear abuse of discretion. People v Stephens, 416 Mich 252, 265; 330 NW2d 675 (1982). In general, "[wjhenever an adequate request for an appropri ate misdemeanor instruction is supported by a rational view of the evidence adduced at trial, the trial judge shall give the requested instruction unless to do so would result in a violation of due process, undue confusion, or some other injustice”. People v Stephens, supra, p 255.
The following conditions must be presented for the instruction on a misdemeanor to be appropriate: (1) there must be a proper request; (2) there must be an appropriate relationship between the charged offense and the requested misdemeanor; (3) the requested misdemeanor instruction must be supported by a rational view of the evidence adduced at trial; (4) if the prosecutor requests the instruction, the defendant must have adequate notice of it; and (5) requested instructions must not result in undue confusion or some other injustice. People v Stephens, supra, pp 261-265.
The trial court in the case at bar refused to give the requested instruction for two reasons: (1) the two crimes did not relate to the protection of the same interests and, therefore, were not appropriately related; and (2) a rational view of the evidence did not support defendant’s contention that he did not know he was assaulting a prison employee at the time.
Regarding the first reason offered by the trial court for rejecting the instruction, we are guided by the test set forth in People v Stephens, supra, p 262, for determining when an appropriate relationship exists between the charged offense and the misdemeanor:
" 'there must also be an "inherent” relationship between the greater and lesser offense, i.e., they must relate to the protection of the same interests, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense.’ ” (Citations omitted.)
We agree with defendant that the crime of assault and battery is a cognate lesser offense of assault of a prison employee, given the overlapping elements of an assault on a person. See People v Boyd, 102 Mich App 112, 117; 300 NW2d 760 (1980), lv den 412 Mich 927 (1982). We also agree with defendant that a broad interpretation of the two statutes indicates that the societal purposes are identical: the statutes were established to deter assaults on individuals. While the statute regarding assaults on prison employees affords more protection to a particular subset of individuals, the statute protects against only those assaults made upon an employee of a place of confinement by a defendant who knows the person to be an employee of the place of confinement. MCL 750.197c; MSA 28.394(3). Thus, if the evidence established that defendant was involved in an assault upon a prison employee without knowing that the individual was a prison employee, then the requested instruction on the assault and battery charge must be given. Contrary to the trial court’s ruling, therefore, we find there is an inherent relationship between the two offenses which could justify the giving of the instruction on the lesser included offense.
In People v Stephens, supra, p 263, the Court explained that not only must there be some evidence which would justify conviction of the lesser offense but also:
" 'proof on the element or elements differentiating the two crimes must be sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.’ ” (Citations and footnote omitted.)
The defendant testified that the fight began when someone jumped him from behind. While at that point defendant did not know whether the person was an inmate or guard, he did become aware soon after that he was fighting two guards and he continued to fight. We find that the question of whether defendant knew he was assaulting two prison guards cannot be considered seriously disputed. Therefore, the trial court did not err in refusing to give the requested instruction.
V
Defendant’s next argument is that his right to be present at trial was violated as a result of in-chamber conferences held by the trial court without the defendant’s presence. Specifically, defendant points to those conferences concerning the jury instructions to be given and an objection to the prosecutor’s closing arguments.
A criminal defendant has a specific statutory right to be present at his or her trial. MCL 768.3; MSA 28.1026. Further, this right is impliedly guaranteed by the federal and state confrontation clauses. US Const, Am VI; Const 1963, art 1, § 20; People v Mallory, 421 Mich 229, 246, fn 10; 365 NW2d 673 (1984).
A defendant’s presence at a conference is required only where his substantial rights might be affected. People v Mallory, supra, p 247; People v Clyburn, 55 Mich App 454, 460; 222 NW2d 775 (1974). See also People v Plozai, 50 Mich App 131, 134; 212 NW2d 721 (1973). However, we have also stated:
"An in-chambers conference to discuss matters of proce dure or law attended by his counsel to which the defendant raises no objection, does not violate defendant’s right to be present during his trial and does not constitute reversible error. People v Bowman, 36 Mich App 502; 194 NW2d 36 (1971), Iv den 386 Mich 783 (1972); People v Carroll, 49 Mich App 44; 211 NW2d 233 (1973) .” People v Clyburn, supra, p 460.
Here, we note that defendant did not object to being excluded from these conferences and that defendant’s counsel was present. Therefore, we find no reversible error.
VI
Defendant’s final contention is that he was deprived of a fair trial because he was shackled while in the presence of the jury. Defendant’s argument has merit.
In general, " '[freedom from shackling and manacling of a defendant during the trial of a criminal case has long been recognized as an important component of a fair and impartial trial’ ”. People v Duplissey, 380 Mich 100, 103; 155 NW2d 850 (1968). Further, such a procedure should be permitted only to prevent the escape of the defendant or to prevent him from injuring those in the courtroom or to secure a quiet and peaceable trial. Id., 103-104.
In the case at bar, we note that the trial court ordered the defendant to be shackled out of concern for the safety of those present in the courtroom. Yet we find no compelling reason that justifies this concern.
Unlike the situation in People v Jankowski, 130 Mich App 143, 146-147; 342 NW2d 911 (1983), there was no evidence that the defendant had ever indicated he would not cooperate with the proceedings, no indication that defendant would attempt to escape, and no indication that the courtroom where the trial was conducted presented any more of a security risk than other courtrooms. In fact, the trial court admitted that in all the proceedings where defendant had appeared before him, defendant "certainly conducted himself in the appropriate way”. Therefore, we find that in ordering the defendant to be shackled during the jury trial the trial court abused its discretion.
Further, we are not convinced that this error was harmless beyond a reasonable doubt such that, had the error been absent, no juror would have voted for acquittal. Nor do we believe an instruction, had one been requested, would have cured the error. This is a situation where actions speak louder than words. The mere shackling of the defendant in this case impinged upon defendant’s credibility by indicating that defendant was not to be trusted and prejudiced his right to a fair trial.
Reversed and remanded for proceedings not inconsistent with this decision.
US Const, AM V.
Const, 1963, art 1, § 15.
On appeal, defendant also offers a "factual” analysis of this issue. In People v Wakeford, 418 Mich 95, 105-106, fn 9; 341 NW2d 68 (1983), the Supreme Court explained the difference between "legal” and "factual” double jeopardy:
"The expression 'legal’ double jeopardy is used * * * to distinguish it * * * from 'factual’ double jeopardy * * *. 'Legal’ double jeopardy is recognized under both the federal and state constitutions, while the notion of 'factual’ double jeopardy, while not denominated as such, is a concept created by this Court in construing the Michigan Constitution in People v Martin, 398 Mich 303; 247 NW2d 303 (1976). 'Legal’ double jeopardy ascertains whether two offenses are the 'same offense’. 'Factual’ double jeopardy determines whether, despite the violation of two separate and distinct statutes, the Legislature nevertheless intended that only a single conviction result. * * * [T]he doctrines are not really separate or distinct, since both ultimately require ascertaining and enforcing the intent of the Legislature.”
However, the Supreme Court in People v Robideau, supra, p 485, disavowed the factual test, ruling that the intent of the Legislature is determinative. Therefore, we decline to apply defendant’s "factual analysis” to this issue. | [
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Per Curiam.
Acting in pro per, plaintiff’s father, as her next friend, filed a complaint in the St. Clair County Circuit Court on November 9, 1983, alleging that the Macomb County Friend of the Court, Robert I. Coulon, had abdicated his statutory responsibility to investigate plaintiff’s home life during contested custody proceedings between her parents, and that this resulted in permanent mental, physical and emotional injuries to plaintiff. Venue was changed to Macomb County after plaintiff obtained counsel.
Defendant moved for summary judgment on March 16, 1984. In an order dated April 26, 1984, the motion was granted, apparently under GCR 1963, 117.2(1), on the grounds that the claim was barred by judicial or quasi-judicial immunity and by plaintiff’s failure to exhaust her administrative remedies. We affirm the order granting summary judgment, but for a different reason.
In the complaint filed in this cause, plaintiff asserted that the defendant friend of the court violated certain duties imposed by MCL 552.252; MSA 25.172 and MCL 552.253; MSA 25.173, which were in effect at the time of the 1976 custody battle, but have since been repealed by 1982 PA 294, §33, which became effective July 1, 1983. Section 252 provided that "[i]t shall be the duty of the 'Friend of the Court’ ” to ascertain whether dependent minor children subject to the court’s jurisdiction "are receiving the proper care, maintenance and education and whether they are liable to become a public charge”. Section 253 placed upon the friend of the court the duty to ascertain and report to the circuit court the moral and general conditions surrounding the dependent minor children. Plaintiff also cited a violation of GCR 1963, 721.1, which imposed the duty to investigate the financial ability, occupation and earning capac ity of the parties and the care given to and living conditions of the minor children and file a report of said investigation containing recommendations on custody and visitation rights. The complaint alleged that the above-cited statutes and court rule were violated in that the defendant:
"A. Never investigated home conditions;
"B. Never investigated proper care;
"C. Never investigated home where child may be staying;
"D. Never investigated the moral conditions existing in the home;
"E. Never investigated childs environment.”
As a result of the alleged failure of the defendant to perform his duties, plaintiff alleged resulting "mental, physical and emotional damages” and prayed for judgment in the amount of $13,000,000.
As stated above, the trial court based its grant of defendant’s motion for summary judgment upon an application of the exhaustion of administrative remedies and governmental immunity doctrines. We need not reach the issues raised by its reliance upon these doctrines since we find the motion for summary judgment was properly granted for a more fundamental reason; namely, that the remedy sought by plaintiff was not available for any violation of the statutes and court rule relied upon to form the basis of her lawsuit.
Pursuant to MCL 552.526; MSA 25.176(26), an administrative remedy is provided for grievances by the public against the friend of the court office or its employees. The statute provides:
"(1) A party to a domestic relations matter who has a grievance concerning office operations or employees shall utilize the following grievance procedure:
"(a) File the grievance, in writing, with the appropriate friend of the court office. The office shall cause the grievance to be investigated and decided as soon as practicable.
"(b) A party who is not satisfied with the decision of the office under subdivision (a), may file a further grievance, in writing, with the chief judge. The chief judge shall cause the grievance to be investigated and decided as soon as practicable.
"(2) Each office shall maintain a record of grievances received and a record of whether the grievance is decided or outstanding. The record shall be transmitted not less than biannually to the bureau. Each office shall provide public access to the report of grievances prepared by the bureau under section 19.”
It is a well-settled rule of law in Michigan that, when a statute creates a new right or imposes a new duty having no counterpart in the common law, the remedies provided in the statute for its violation are exclusive and not cumulative. Ohlsen v DST Industries, Inc, 111 Mich App 580, 583; 314 NW2d 699 (1981); Burland, Reiss, Murphy & Mosher, Inc v Schmidt, 78 Mich App 670, 675; 261 NW2d 540 (1977). Obviously, common law did not provide a remedy for the inaction of which plaintiff claims defendant was guilty. Therefore, the administrative remedies outlined in MCL 552.526; MSA 25.176(26) are the plaintiffs sole recourse; a judgment for monetary damages was not contemplated by the Legislature for the failure to perform the investigative and reporting duties imposed by the Friend of the Court Act. Summary judgment pursuant to GCR 1963, 117.2(1) for failure to state a claim upon which relief could be granted was therefore proper.
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Butzel, J.
Florence Clark recovered a judgment of $2,000 against John J. Roen, in an action for seduction. The declaration, as filed, did not allege that plaintiff was an unmarried woman. In Greenman v. O’Rily, 144 Mich. 534, 538 (115 Am. St. Rep. 466), we held that the definition of seduction is the same in criminal and civil actions. 3 Comp. Laws 1929, § 16823, provides that the prosecutrix in a criminal action for seduction must be unmarried. After plaintiff, as the first witness in her behalf, had answered but a few preliminary questions, the court permitted the declaration to be amended by the addition of a statement that plaintiff was an unmarried woman. The amendment was proper. See M. M. Gantz Co. v. Alexander, 258 Mich. 695, 697.
Defendant claims that the damages allowed plaintiff were excessive. She claims pain, suffering, humiliation, etc. It is extremely difficult to evaluate mental suffering and humiliation, and unless the damages suffered thereby were so unreasonably and excessively assessed as to shock the conscience of the court, we will not interfere. Damages in a case -of this character cannot be figured with any' degree of exactitude. The problem of measuring the recovery is somewhat similar to that in a negligence case, where we have frequently experienced difficulties in fixing the amount of damages by any rule of thumb. Sebring v. Mawby, 251. Mich. 628; Palmer v. Security Trust Co., 242 Mich. 163 (60 A. L. R. 1392). There is no doubt but that plaintiff was entitled to more than nominal damages as contended for by defendant. Her humiliation and disgrace, pain and suffering, were of such a nature that we cannot say that the sum of $2,000 awarded her was excessive. See Bennett v. Beam, 42 Mich. 346, 351 (36 Am. Rep. 442).
It is claimed that the judgment is against the great weight of the testimony. This claim might appeal to us more strongly were we primarily a'fact-finding body and possessed of the opportunity of seeing the witnesses. The trial judge expressed doubt at the conclusion of her testimony as to whether she had made out a prima facie case. Her testimony was neither clear nor definite, possibly due to the embarrassing and difficult position in which she was placed. She first alleged that the seduction had taken place in the year 1930, but later corrected the date by an assertion that it occurred in 1929. The court admonished her attorney, and stated that he was not making’ out a case.
Plaintiff was recalled to give rebuttal testimony, however, and at this time she cleared up all doubts arising out of the vagueness of her entire testimony by making positive statements that established her right of recovery. There was no jury, and, although the testimony should have been introduced in proper order, we cannot hold that there was an abuse of discretion in permitting the testimony in rebuttal. Meade v. Bowles, 123 Mich. 696; Harnau v. Haight, 189 Mich. 600 (13 N. C. C. A. 566); Gilchrist v. Mystic Workers of the World, 196 Mich. 247. In permitting the testimony, the court intimated that he would give defendant full opportunity to introduce further testimony in reply if he desired. Defendant does not assert, as a ground for appeal, improper introduction of the rebuttal testimony, unless such an objection may be inferred from his general statement that the judgment is against the great weight of the testimony. After a very careful reading of the record, we are constrained to hold that the judgment is not against the great weight of the testimony. We have only considered the questions raised by appellant.
The judgment is affirmed, with costs to plaintiff.
McDonald, C. J., and Clark, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred.
See Act No. 328, Pub. Acts 1931, § 532. | [
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] |
Clark, J.
Etta -Bailey and John E. Bailey, her son, as E. R. Bailey & Son, owned and operated a summer hotel on Mullet Lake, in the county of Cheboygan. John E. Bailey died in October, 1930. His widow, the plaintiff, is a chief beneficiary under his will. During* the season of 1930’ the loss in conducting the hotel business was nearly $5,000. The property, then valued at $100,000, is mortgaged to Union Trust Company, trustee, to secure an issue of bonds in the sum of $37,500. Fire insurance premiums, taxes, and interest were unpaid. Sums were due on title-retaining contracts covering some fixtures or equipment of the hotel. There were liabilities to general creditors for nearly $15,000. The surviving partner was not able to manage the hotel. In December, 1930, plaintiff, the widow, filed this bill for appointment of receiver, naming Etta Bailey as defendant, apparently a friendly suit. Etta Bailey answered, admitting the bill and in effect consenting to receivership. It is not disputed that before filing the bill the trustee was consulted and consented to and advised the receivership. William B. Heath was appointed receiver. In January, 1931, he prayed an order authorizing him to borrow money and to issue receiver’s certificates in the sum of $5,000, to be first liens, subject only to prior valid liens. By order he was given authority to borrow the sum on receiver’s certificates to pay taxes, insurance, expense, etc. The order is otherwise silent as to lien and priority. He borrowed $4,000 on such certificates, and used the money as ordered. At this point it appears that the bondholders under the trust mortgage became active, and were thereafter considered and treated as the mortgagees under the mortgage. General creditors proved their claims. All parties, it appears, desired the hotel to be operated during the season of 1931. The receiver refused unless the mortgagees would consent to his borrowing money and issuing certain receiver’s certificates to be a first lien and prior to the mortgage and unless the possible loss of such operation be treated as an expense to be preferred over the mortgage. The mortgagees agreed with the receiver. Accordingly, and on petition and on showing the agreement, it was so ordered. The receiver issued certificates in the total sum of $2,125. The hotel was operated during the season of 1931, and a net profit of nearly $7,000 made. Certificates in' the total sum of $5,125 were.retired.
In and after 1931, due to collapse of real estate values, it was apparent there was nothing for general creditors, nothing for the Baileys, and insufficient to pay the mortgage debt. The mortgagees were given notice of the hearing’, and were represented at hearing of the receiver’s account and were heard and made objections. Later they were permitted to intervene formally. An account of the costs and expenses of receiver’s administration of sums paid in satisfaction of the title-retaining contracts, and of sums paid for taxes, insurance, etc., showed a deficiency of nearly $4,000, which was ordered paid and made a first lien over the mortgage. There has been no proceeding to foreclose the mortgage. It is a fair inference, at least, that mortgagees co-operated in an attempt to sell the property at receiver’s sale, but bids were not acceptable. The mortgagees have appealed.
The receivership is not auxiliary to any other action or proceeding. It is the end and aim of this litigation. 53 C. J. p. 21. But all parties of record, by participation and conduct in the matter, are es-topped to question validity, and no point in that regard is urged seriously. However, the character of the receivership is to be noted in respect of expenses of administration and of preserving assets.
We consider first administration expenses. If the mortgagees had kept out of this matter, except perhaps in respect of contest of the receiver’s account, there might be force in their contention that they are liable for no part of the administration costs and expenses of the receivership. 53 C. J. p. 307. But, as stated, the bill was filed by consent. The mortgagees dealt with the receiver promptly and in an effort to save loss to themselves by keeping the hotel a going concern, and receivership was used in an attempt to effect sale of the property. As they availed themselves of any possible advantage of the receivership, they will not be heard to say that the property in the hands of the receiver is not chargeable with the receiver’s expense and administration costs, even though it may result practically in a cor responding loss to them. Administration expenses are incurred on the theory that they benefit the parties ultimately entitled to the property. Ciavatta v. Munn Realty Corp., 106 N. J. Eq. 21 (149 Atl. 809). From Knickerbocker v. McKindley Coal & Mining Co., 172 Ill. 535 (50 N. E. 330, 64 Am. St. Rep. 54):
“When it becomes the duty of a court of equity to take property under its own charge, through a receiver, the property becomes chargeable with the necessary expenses incurred in taking care of and saving it, including the allowance to the receiver for his services. He is “the officer and agent of the court, and not of the parties; and it is a right of the court, essential to its own efficiency in the protection of things so situated, to keep them under its control, until such expenses and allowances are paid or secured to be paid. ’ ’
See, also, 53 C. J. pp. 301-307; 1 Clark on Receivers (2d Ed.), §§ 637, 639; 23 R. C. L. p. 139; In re Smith Floral Co., 260 Mich. 299; International Harvester Co. v. Union Irr. Co., 150 La. 405 (90 South. 741).
Costs and expenses of administration were allowed properly. Appellants argue:
“Distinction between power possessed by court of chancery to displace prior mortgage liens in case of receivership of railroad or public service corporation and that possessed in receivership of private corporation or individuals.”
This is conceded. 23 R. C. L. p. 88.
Assuming a general rule that receiver’s certificates cannot be given priority in case of a purely private corporation (40 A. L. R. 247), yet the exception to the rule is stated in note, 40 A. L. R. 251:
“According to the weight of authority the receiver of a private corporation may be authorized to issue receivers ’ certificates which shall displace prior liens, where it is necessary to raise money to preserve the property.”
And in Lockport Felt Co. v. United Box, Board & Paper Co., 74 N. J. Eq. 686 (70 Atl. 980):
“The rule may be deduced that, in case of private corporations, the court may authorize its receiver to borrow money upon the faith and credit of all the property of the corporation, and authorize the issuing of securities which shall displace all prior liens and incumbrances, but only for one purpose, viz., the preservation of the property and the expenses of realizing* upon it by a sale. This necessity should be imperative and paramount, and under no other circumstances can a court justify itself in attempting to undermine prior liens.”
See, also, 1 Clark on Receivers (2d Ed.), § 640.
The remainder of the receiver’s account was allowed as expenses of preserving and protecting the property, and we consider the matter in so far as it is questioned by brief, concluding in accordance with the exception to the rule, as above quoted, that expense, if of the particular character, was properly allowed and given priority.
Appellants contend that, as the hotel business was conducted by the receiver during the season of 1931 virtually under a contract with them by which they were responsible for loss, they should have profits applied to satisfy obligations of such operation, and this relates, as briefed, to remainder of receiver’s certificates unpaid. Assuming the contention to be equitable, it does not affect the result. If the certificates of the second issue, $2,125, be regarded as paid, there would be $1,000 of the first issue unpaid. The order for such certificates did not expressly make them subject to prior liens. Had it been so ordered, it may well be doubted that the court could by a subsequent order “confer upon the certificates gratuitously a priority of lien upon which they were neither originally authorized nor acquired.” Mercantile Trust Co. v. Railroad Co., 291 Fed. 462, 469. The order is silent except as stated in respect of priority. We think, therefore, the question of priority was left to be determined under the law and the facts, and in view of the purpose for which the money was raised and used. Acts of a receiver in preserving and protecting property are discussed in 1 Clark on Receivers (2d Ed.), § 378. Payments for fire insurance and of taxes were properly so classed. Satisfaction of the title-retaining contracts, by which property covered by the mortgage, as alleged in the bill of complaint and not denied, was saved and freed to the mortgagees is also within the class. One item of nearly $500 for increased fire insurance is criticized. Fire insurance was increased from $46,000 to $75,000. We find no opposition made by appellants to this item in the trial court. Nor are any facts developed in regard to it. It was upon the receiver to use his best judgment, and the court approved his action. On this bare record, we must decline to find the expense improper. No other matters demand discussion.
Affirmed, with costs.
McDonald, C. J., and Potter, Sharpe, North, Fead, Wiest, and Btjtzel, JJ., concurred. | [
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Per Curiam.
On April 17, 1984, defendant was convicted by a jury of extortion, MCL 750.213; MSA 28.410, and of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279. She was sentenced to from 3 to 20 years’ imprisonment on the extortion conviction and to from 3 to 10 years’ imprisonment on the assault conviction, both sentences to run concurrently. She now appeals as of right, claiming that there was insufficient evidence to convict her of extortion and, if there was sufficient evidence, the convictions for both extortion and assault with intent to commit great bodily harm less than murder constituted double jeopardy. We reverse defendant’s extortion conviction and affirm her assault conviction.
On November 17, 1983, defendant telephoned Trudy Hallisy, the property manager for Charles Lane Apartments in Pontiac, and complained bitterly that Hallisy had been spreading lies about defendant. Ms. Hallisy hung up on defendant and defendant telephoned a second time, this time asserting that defendant was going to sue Ms. Hallisy for $21,000. Again Hallisy hung up. Thereafter, Hallisy locked the office door and went to the rest room area in the office to dry her hair which was still wet from a recent haircut. As she was doing so, she heard the front door crack and break open. Ms. Hallisy then found herself being charged by defendant. Defendant attacked Hallisy first by choking her and then by beating her with Hallisy’s hairdryer. During this attack, defendant ordered Hallisy to draft and sign a note stating that Hallisy had reported lies about defendant. Hallisy complied with defendant’s directions because of the beating she was receiving from defendant.
The evidence in this case fully supports the conviction for assault with intent to do great bodily harm less than murder and that conviction is affirmed.
The defendant was also convicted of extortion pursuant to MCL 750.213; MSA 28.410, which reads as follows:
"Any person who shall, either orally or by a written or printed communication, maliciously threaten to accuse another of any crime or offense, or shall orally or by any written or printed communication maliciously threaten any injury to the person or property or mother, father, husband, wife or child of another with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do or refrain from doing any act against his will, shall be guilty of a felony, punishable by imprisonment in the state prison not more than twenty years or by a fine of not more than ten thousand dollars.”
This Court decided the case of People v Krist, 97 Mich App 669; 296 NW2d 139 (1980), lv den 409 Mich 936 (1980). The factual situation therein was similar to that in this case. The Court analyzed the extortion statute quoted above and concluded that the crime of extortion as defined in that statute contemplates only threats of future harm and does not apply to present harm being inflicted.
The Court said at 676:
"Prosecutions for statutory extortion have generally been characterized by threats of future harm if the victim does not comply with the extortionist’s wishes. See People v Percin, supra [330 Mich 94; 47 NW2d 29 (1951)], People v Garcia, 81 Mich App 260; 265 NW2d 115 (1978), People v Jones, 75 Mich App 261; 254 NW2d 863 (1977), People v Atcher, 65 Mich App 734; 238 NW2d 389 (1975), and People v Curry, 58 Mich App 212; 227 NW2d 254 (1975). The victims in those cases were not confronted with the threat of immediate harm; the threatened injury was delayed, usually for hours or days, pending the victim’s failure to act upon the extortionist’s demands.”
Based on the fact that the defendant in Krist was presently assaulting, harassing and threatening the complainant, the Court found that the crime would not lie under the extortion statute. We would disagree with that analysis. We do not, after study of the cases cited, believe that those cases support the proposition that only threats of future harm are envisioned by the statute. We believe that threats of imminent injury or of continuation of injury presently being inflicted will support a conviction for extortion. We perceive the elements of the extortion statute, MCL 750.213; MSA 28.410, to be as follows:
1. An oral or written communication maliciously encompassing a threat.
2. The threat must be to:
a. Accuse the person threatened of a crime or offense, the truth of such accusation being immaterial; or
b. Injure the person or property of the person threatened; or
c. Injure the mother, father, husband, wife or child of the person threatened.
3. The threat must be:
a. With intent to extort money or to obtain a pecuniary advantage to the threatener; or
b. To compel the person threatened to do, or refrain from doing, an act against his or her will.
The malice required by the statute does not contemplate a feeling of ill will towards the person threatened, but is satisfied by the wilful doing of an act with an illegal intent. People v Whittemore, 102 Mich 519; 61 NW 13 (1894).
In the present case the note was obtained against the victim’s will. It gave the defendant no apparent pecuniary advantage, nor did the note seem to have any rationale or importance. It seemed to have been obtained merely to satisfy some unexplained whimsy on the part of the defendant.
On the other hand, the inclusion of the extortion count doubled the penalty which could be imposed.
The defendant raises the objection of double jeopardy in that evidence supporting both the assault and the extortion emanated from the same transaction.
In People v Carter, 415 Mich 558; 330 NW2d 314 (1982), the Supreme Court explained the application of the Blockburger rule by stating that if one offense is a lesser included offense of the other, it is the same offense and cannot be additionally punished.
Assault with intent to do great bodily harm less than murder is certainly a different crime than extortion. They share no common elements. There was, accordingly, no double jeopardy question in connection with this conviction.
The difficulty that we find with the defendant’s extortion conviction is that the act required of the victim was minor with no serious consequences to the victim. The note the victim was forced to write was erratic, quixotic and was not used to the victim’s detriment or defendant’s advantage.
The Legislature did not intend punishment for every minor threat. There is a paucity of law on the subject. 86 CJS, Threats and Unlawful Communications, § 4, p 795, cites an old Tennessee case, People v Morgan, 50 Tenn 262 (1871), as authority for this point. That case, in spite of its vintage, is well reasoned. In construing the statute then in existence, the court said:
"The section of the Code under which this indictment is drawn, is 4633: 'If any person, either verbally or by written or printed communication, maliciously threaten to accuse another of a crime or offense, or to do any injury to the person or property of another, with intent thereby to extort any money, property or pecuniary advantage whatever, or to compel the person so threatened to do any act against his will, he shall, on conviction, be punished by imprisonment in the penitentiary, not less than two, nor more than five years.’ ” 50 Tenn 264.
The Court then went on to say:
"The statute is a highly penal one, and we deem it proper to say, was not intended to apply to every idle threat, but such as are evidence of serious purpose to do the injury threatened, and that, some serious injury, such as is alleged in this indictment. Nor would it apply to a threat to compel a man to do any minor act, of no great injury, or serious importance; but only such serious threats of injury as should be used to compel a party to do some act materially and seriously affecting his interest — as is shown by the enumerated cases — to extort money, property or pecuniary advantage.” 50 Tenn 265.
In 1961 in the case of Furlotte v State, 209 Tenn 122; 350 SW2d 72 (1961), the court recognized People v Morgan, supra, but distinguished it in a case where the victim was held at gunpoint by the defendant and forced to sign a statement acknowledging an affair with the defendant’s wife.
It is noted that Michigan cases brought under the "against his will” section of the extortion statutes have been for serious demands. People v Whittemore, 102 Mich 519; 61 NW 13 (1894) (to require execution of a deed), People v Garcia, 81 Mich App 260; 265 NW2d 115 (1978) (to persuade a witness to testify untruthfully), People v Jones, 75 Mich App 261; 254 NW2d 863 (1977) (to dissuade a victim from reporting defendant’s sexual misconduct), People v Atcher, 65 Mich App 734; 238 NW2d 389 (1975) (to dissuade a witness from testifying).
We conclude that the demand by the defendant that the victim execute a useless note was not an offense such as was contemplated by the extortion statute as no pecuniary advantage was obtained nor was the act demanded of such consequence or seriousness as to apply that statute. The principal purpose of the addition of this count was sentence enhancement.
The conviction and sentence for assault with intent to do great bodily harm less than murder is affirmed. The conviction and sentence for extortion is reversed.
Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932). | [
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J. P. O’Brien, J.
Defendant was convicted by a jury of criminal sexual conduct in the first degree, MCL 750.520b; MSA 28.788(2), and sentenced to a prison term of from 10 to 50 years. He now appeals as of right.
The victim was a six-year-old girl who was cared for at a day care center operated by defendant’s mother. Upon arriving home from the day care center on October 24, 1983, at approximately 6:30 p.m., the victim went straight to the kitchen and burst into tears. She was very upset and had blood on her underwear. She told her mother three times that Allen had done it. The victim was taken to the hospital where she was examined by a physician. Based on the examination the physician concluded that there had been vaginal penetration. At trial, the victim stated that she was taking a nap when defendant, who had a big knife, pulled up her dress and pulled down her panties. She stated she screamed when defendant assaulted her but that defendant covered her mouth and threatened to flush her head down the toilet.
The victim’s father stated that, since the assault, the victim had been afraid to answer the telephone and had trouble sleeping. A therapist testified that the victim’s behavior since the incident was consistent with that of a rape victim.
Defendant denied assaulting the complainant and testified he had been with a friend at the time the assault occurred. This alibi was corroborated by defendant’s mother.
Although defendant has raised several allegations of error, we find one dispositive and reverse defendant’s conviction and remand for a new trial. At trial, defendant twice moved for short continuances so that two witnesses could be present in person to testify. Both times, the trial court refused. We find it did so erroneously.
The trial court erred in refusing to grant a continuance to permit an alibi witness to testify. Defendant denied committing the assault and claimed he was with Billy Potts at the time the assault was alleged to have occurred. Potts was listed on the notice of alibi and had been interviewed by the police. For unspecified reasons, Potts was unavailable to testify on July 31, 1984, but was scheduled to return home that evening and would be available to testify the next day. There is nothing in the record to indicate that defendant was responsible for Potts’s absence or that it was a delay tactic. The defendant moved to adjourn so that Potts’s testimony could be secured. The trial court refused.
While the matter of a continuance is within the sound discretion of the trial judge. People v Charles O Williams, 386 Mich 565, 575; 194 NW2d 337 (1972); People v Merritt, 396 Mich 67, 80-81; 238 NW2d 31 (1976), reh den 396 Mich 977 (1976), a defendant also has a right to call witnesses in his defense, and a constitutional right to compulsory process to obtain witnesses in his favor. US Const Am VI; Const 1963, art 1, §20. When the inconvenience of defendant’s request (a continuance to the next day) is balanced against defendant’s rights (to a fair trial and for compulsory process for witnesses in his favor), we can only conclude that the trial court abused its discretion. Potts would have been the only witness unrelated to defendant to testify for the defense. If Potts’s testimony corroborated defendant’s story, it may have established a reasonable doubt as to defendant’s guilt. The interest of the state in complete discovery and a fair trial for the defendant outweighs the minor negative effect such a delay would have had on the trial process here. People v Merritt, supra. Potts’s testimony was imperative to defendant’s defense and could not be considered cumulative. We find defendant was denied his rights to a fair trial and to compulsory process.
We also find error in allowing the preliminary examination testimony of a res gestae witness, the examining physician, to be read into the record when the witness could have, in all likelihood, been present at trial to testify in person. Soon after the victim arrived home she was taken to the hospital where she was examined by Dr. Kalavadhy Srinivasan. On July 30, 1984, the first day of trial, the prosecutor revealed that Dr. Srinivasan was on vacation and would not return until August 1, 1984. The prosecutor moved to use the physician’s preliminary examination testimony at trial in lieu of her actual presence. Defendant objected, arguing that Dr. Srinivasan was a res gestae witness. The next day, the court ruled that the doctor was not a res gestae witness and allowed her previous testimony to be read to the jury. The examining physician of the victim in a prosecution for sexual misconduct is a res gestae witness. People v Kirtdoll, 391 Mich 370, 395; 217 NW2d 37 (1974); People v Hearn, 100 Mich App 749, 755; 300 NW2d 396 (1980). The court’s ruling that Dr. Srinivasan was not a res gestae witness was clearly erroneous.
Testimony taken at a preliminary examination may be used in evidence by the prosecutor whenever the witness who gave the testimony cannot, for any reason, be produced at trial. MCL 768.26; MSA 28.1049; People v Starr, 89 Mich App 342, 345; 280 NW2d 519 (1979). MRE 804(b)(1) states that prior testimony of a witness unavailable for trial may be read into evidence provided the opposing party had an opportunity and motive to develop the testimony by examining the witness at the prior proceeding. People v Gross, 123 Mich App 467, 470; 332 NW2d 576 (1983), lv den 417 Mich 1100.36 (1983). However, MCL 768.26; MSA 28.1049 gives way to the defendant’s constitutional right of confrontation where the witness’s absence from trial stems from the prosecutor’s lack of good faith effort or failure to exercise due diligence in attempting to secure the witness’s presence. The determination of due diligence is a matter for the trial court and that determination will not be overturned on appeal unless a clear abuse of discretion is shown. People v Starr, supra. The trial court found that Dr. Srinivasan was not a res gestae witness and therefore never reached the due-diligence question.
In this case, Dr. Srinivasan was scheduled to return from her vacation the day following the court’s ruling permitting her preliminary examination testimony to be used at trial. Thus she was not "unavailable” under MRE 804(a). Defendant’s right to confront witnesses against him, particularly res gestae witnesses, should not be cast aside so readily in order to save such a short period of time. We find that the trial court abused its discretion in excusing Dr. Srinivasan’s presence and in permitting her preliminary examination testimony to be read to the jury. People v Starr, supra.
We will address other issues raised by defendant because they may occur at retrial.
We find admission of the therapist’s testimony concerning "rape trauma syndrome” to be erroneous. The therapist, who had been seeing the victim weekly, testified that the victim’s symptoms were consistent with those of a person who had been raped. Rape trauma syndrome refers to a constel lation of symptoms experienced by the victims of sexual assault. The term "rape trauma syndrome” was coined in 1974 in an article describing the recurring pattern of emotional distress in rape victims. Burgess & Holmstrom, Rape Trauma Syndrome, 131 AM J of Psychiatry 981 (1974). See also Comment, Expert Testimony on Rape Trauma Syndrome: Admissibility and Effective Use in Criminal Rape Prosecution, 33 Am U L Rev 417 (1984). Michigan adheres to the traditional test governing the admissibility of scientific evidence as originally set forth in Frye v United States, 54 US App DC 46, 47; 293 F 1013 (1923):
"[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”
The use of rape trauma syndrome to establish that criminal sexual conduct in fact occurred is an issue of first impression in Michigan, but the issue has been addressed by the highest courts of six other states.
In State v Marks, 231 Kan 645; 647 P2d 1292 (1982), the Kansas Supreme Court, applying the Frye test, concluded that rape trauma syndrome was generally accepted to be a common reaction to sexual assault and that it is relevant and admissible where the defense is consent. 231 Kan 654. Similar conclusions were reached in State v Liddell, 685 P2d 918 (Mont, 1984); State v Huey, 145 Ariz 59; 699 P2d 1290 (1985), although neither court applied the Frye test in its analysis. In both Lid-dell and Huey, evidence that the victim was suffering from rape trauma syndrome was admitted to rebut the defense of consent.
On the other hand, in People v Bledsoe, 36 Cal 3d 236; 203 Cal Rptr 450; 681 P2d 291 (1984); State v Saldana, 324 NW2d 227 (Minn, 1982), and State v Taylor, 663 SW2d 235 (Mo, 1984), the courts, applying the Frye test, concluded that rape trauma syndrome was not the type of scientific test that accurately and reliably indicates whether a rape has occurred. These courts held such evidence inadmissible for that purpose. The Bledsoe court further stated that rape trauma syndrome was developed by professional rape counselors as a therapeutic tool, to help predict, identify, and treat emotional problems experienced by rape victims. The court concluded:
"Given the history, purpose and nature of the rape trauma syndrome concept, we conclude that expert testimony that a complaining witness suffers from rape trauma syndrome is not admissible to prove that the witness was raped. We emphasize that our conclusion in this regard is not intended to suggest that rape trauma syndrome is not generally recognized or used in the general scientific community from which it arose, but only that it is not relied on in that community for the purpose for which the prosecution sought to use it in this case, namely, to prove that a rape in fact occurred. Because the literature does not even purport to claim that the syndrome is a scientifically reliable means of proving that a rape occurred, we conclude that it may not properly be used for that purpose in a criminal trial.” 36 Cal 3d 251.
We agree with the reasoning of the Bledsoe court and hold that evidence of rape trauma syndrome is not admissible, in the context of this case, to prove that a rape in fact occurred. However, we do not mean to imply that evidence of emotional and psychological trauma suffered by a complaining witness in a rape case is inadmissible. Such evidence is relevant and jurors are fully competent to consider such evidence in determining whether a rape occurred, but it should not be presented with an aura of scientific reliability unless the Frye test is met. We also express no opinion as to the propriety of admitting evidence about rape trauma syndrome when consent is the defense.
We next address the admission at trial of hearsay statements made by the victim and testified to by her mother. Over defense objection, the statements were admitted pursuant to the excited utterance exception to the hearsay rule, MRE 803(2). People v Gee, 406 Mich 279, 282; 278 NW2d 304 (1979). While the victim was still upset and nervous when she spoke with her mother at 1 a.m., a considerable period of time had passed since the assault. Also, some of the statements appear to have been made as the result of the mother’s questioning and thus lack the requisite spontaneity. See People v McConell, 420 Mich 852; 358 NW2d 895 (1984). It was, therefore, incumbent on the trial judge to determine whether an adequate foundation existed to permit admission of the statements. Instead, that decision was left to the jury when it was instructed to determine whether or not the victim had a sufficient opportunity to fabricate. Upon retrial, the judge must either find a more adequate foundation to admit the statements under the excited utterance exception to the hearsay rule or they must be excluded.
During his closing argument the prosecutor came dangerously close to giving an impermissible "civic duty” argument. People v Boles, 127 Mich App 759, 769; 339 NW2d 249 (1983). We advise caution at retrial. Also we admonish the prosecutor not to equate defendant with Sirhan Sirhan and James (sic) Manson when discussing the pre sumption of innocence. Taylor v Kentucky, 436 US 478, 486; 98 S Ct 1930; 56 L Ed 2d 468 (1978).
Finally, defendant alleges that other children who were napping in the same room as the victim at the time the alleged sexual asault took place should have been indorsed and called as res gestae witnesses. Upon retrial, the defendant will have ample opportunity to raise this issue if the prosecutor does not indorse the children.
Reversed and remanded. | [
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Wiest, J.
A plat of land was so located that a bridge across a creek or the establishment of a way to a public road was essential, and defendant, vendor in a land contract dated June 18, 1926, covenanted with Joseph McDonald, the purchaser of two lots at the price of $2,000, as follows:
“It is understood and agreed that first party will either build a bridge across Green creek or will provide a right of way out to Memorial Drive.”
The land contract was the usual printed short form, and the mentioned covenant was inserted after the clause binding the heirs, executors, administrators, and assigns of the parties. A bridge was built in 1926 and in use in March, 1927, when the vendee assigned the contract to plaintiff herein. June 24, 1927, plaintiff paid the balance due on the contract and received a warranty deed. In the spring of 1928 one approach to the bridge was washed out by high water, and in the spring of 1929 high water carried the bridge away. In April, 1931, plaintiffs brought this action to recover damages arising out of defendant’s failure to construct a suitable bridge, and, upon trial before the court, was awarded $625, as interest on her investment for five years, $297.22, loss of expenditure on shrubbery and trees, and $131.16 for taxes paid. Defendant appealed.
The land contract was assigned by the vendee contrary to its provisions, and defendant urges want of privity. When defendant accepted performance of the contract by the assignee and deeded to the assignee, it recognized the validity of the assignment and cannot now urge what it then waived. Did the covenant to bnild a bridge pass to plaintiff under the assignment of the contract? The -answer depends upon whether the covenant ran with the land or was personal to the vendee. The bridge was located wholly apart from the lots, but the covenant related to an essential to enjoyment and use of the lots, and, therefore, entered materially into the agreed consideration to be paid. This benefit to the lots attached to the land, was not collateral to or independent thereof, and ran with the land.
In Keogh v. Peck, 316 Ill. 318 (147 N. E. 266, 38 A. L. R. 1151), the rule on this subject was stated as follows:
‘ ‘ The test as to whether a covenant runs with the land or is merely personal, is whether the covenant concerns the thing granted and the occupation or enjoyment of it, or is a collateral and personal covenant not immediately concerning the thing granted. If a covenant concerns the land and the enjoyment of it, its benefit or obligation passes with the ownership, but to have that effect the covenant must respect the thing’ granted or demised and the act to be done or permitted must concern the land or the estate conveyed. In order that a covenant may run with the land its performance or non-performance must affect the nature, quality or value of the property demised, independent of collateral circumstances, or must affect the mode of enjoyment.”
The fact that the covenant was inserted in the contract after, instead of before, the provision binding the heirs and assigns of the parties is significant only of the fact that, in the printed form used, there was no other place to put it. There is no merit in the claim that such place of the covenant in the contract limited it to the vendee and not as well to an assign.
When the executory contract merged in the deed, without equivalent covenant carried forward, was the land contract and all of its covenants at an end?
Defendant invokes the general rule, stated in Blake-McFall Co. v. Wilson, 98 Ore. 626 (193 Pac. 902, 14 A. L. R. 1275):
“Stated broadly, the general rule is that a contract to convey land is merged in a-deed executed in performance of such contract and the deed operates as a satisfaction and discharge of the executory contract: 2 Devlin on Real Estate (3d Ed.), § 850a; 27 R. C. L. p. 529.”
This general rule is well established. Coleman v. Coleman, 239 Mich. 139; Crane v. Smith, 243 Mich. 447; Joseph v. Rottschafer, 248 Mich. 606. But, as pointed out in Blake-McFall Co. v. Wilson, supra:
“There is a class of cases, however, where it is held that, if the preliminary contract contains a stipulation of which the conveyance is not a performance, such stipulation survives and is not merged in the deed: 27 R. C. L. p. 532; 2 Devlin on Real Estate (3d Ed.), § 850b. In other words, the deed effects a merger to the extent that it is contemplated that a deed 'shall be a performance of the contract. ’ ’
In Goodspeed v. Nichols, 231 Mich. 308, we noted the general rule and the exception thereto, stating:
“As to plaintiff’s claim of merger, it may be conceded that a deed made in full execution of a contract for the sale of land is presumed to merge the provisions of a preceding contract pursuant to which it is made, including all prior negotiations and agree ments leading up to execution of the deed, with the long recognized exception that—
“ 'Where, however, the deed constitutes only a part performance of the preceding contract, other distinct and unperformed provisions of the contract are not merged in it. And where a contract of sale provides for the performance of acts other than the conveyance, it remains in force as to such other acts until full performance.’ 18 C. J. p. 271.”
The covenant was collateral to the contract for the deed and an obligation independent of conveyance of title, possession, quantity, and emblements. The deed did not extinguish the covenant to build the bridge.
“Did the plaintiff, by accepting the deed, accept the bridge then built and in existence as sufficient?”
The trial judge found that the bridge was not such a bridge as the contract called for. The bridge was unsubstantial, approaches thereto were mere earth fill, the structure was but three feet above low water, rested upon piles driven down but a short distance, had no element of durability or desirability, and soon after the execution of the deed one approach washed away and left a space where row boats passed through, and the next year.the whole flimsy structure, erected at a cost of $265, was swept away by high water. Surely the parties never would have agreed upon such a bridge, and we experience no hesitation in joining in the holding of the circuit judge. The covenant to build a bridge needed no specification that it should be suitable and have some degree of permanency. The plaintiff, by accepting the deed conveying title to the lots, did not thereby, without more, accept the bridge in fulfillment of the covenant.
Damages. Without establishing the rule of damages employed by the circuit judge, we think, under the circumstances, the defendant is in no position to complain. Plaintiff had planned to build on the premises and establish thereon a commercial tea garden, but, with access to the premises cut off, she was prevented from doing so.
Defendant received $2,000 for the lots. The lots, inclusive of $500 paid her assignor, have cost plaintiff $2,500, and the circuit judge awarded interest on that sum to plaintiff. Plaintiff has been out the use of that sum, but defendant has not' had the use .of more than the contract price of $2,000, and interest on that sum only was proper.
Shrubbery and trees were planted on the lots at the expense of $150, and two-thirds thereof died, and the court awarded $297.22, for loss of such expenditure. Trees and shrubs transplanted carried no guaranty of life, and we think this item was unconnected with the covenant to build the bridge and so problematical as to afford no element of damages.
Taxes paid, without use of the property because of no bridge, as covenanted, may be recovered.
We find no error in the case, except in the computation of damages. The case is remanded to the circuit court with direction to enter judgment for plaintiff in the sum of $631.16. No costs in this court to either party.
McDonald, C. J., and Clark, Potter, Sharpe, North, Pead, and Butzel, JJ., concurred. | [
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North, J.
This case was before us on a former appeal and is reported in 253 Mich. 685. Except as hereinafter noted, the facts and issues involved are there stated. Upon retrial in the circuit, plaintiffs had verdict. Judgment was entered thereon, from which defendant has appealed.
At the conclusion of the proofs, defendant moved for a directed verdict. Decision was withheld until hearing of defendant’s motion for judgment non obstante, which was denied. In these motions defendant asserted that plaintiffs are estopped by election of remedies from recovering in this suit. This issue has been brought into the case by amendment to pleadings since the former review by this court.
Prior to commencing this suit, plaintiffs instituted an attachment proceeding in the district court of the United States for the western district of Michigan, southern division, against F. M. Gray, Jr., Inc., in which the recovery sought included money plaintiffs claim they had paid F. M. Gray, Jr., Inc., for the same casings which defendant herein is charged with having converted. Briefly, the Federal case was instituted on the theory that title to these casings was not in plaintiffs, while the instant suit is necessarily grounded on the theory that plaintiffs were vested with title. Appellant asserts that the two positions are inconsistent, and by having instituted, the first suit on the one theory plaintiffs are estopped from maintaining this suit on the other and inconsistent theory. This contention is not tenable. Upon stipulation the Federal suit was dismissed by plaintiffs. They recovered nothing by having instituted it. On the former appeal to this court there was final adjudication that title to these casings was in plaintiffs. It logically follows that the case in the Federal court was instituted on a mistaken theory; and, if prosecuted, it would necessarily have terminated adversely to plaintiffs. We are not confronted with a situation wherein plaintiffs had a choice and made an election of remedies. Instead they erroneously sought in the Federal court to exercise or enforce a right which they did not possess. Defendant herein was not a party to the Federal suit, and was in no way prejudiced thereby. Under the circumstances, it cannot successfully urge estoppel.
‘ ‘ There is a difference between an election of remedies and a mistake of remedy, and the law has not gone so far as to deprive parties of meritorious claims merely because of attempts to collect them by inappropriate actions, upon which recovery could not be had.” McLaughlin v. Austin, 104 Mich. 489, 491.
“The fact that a party, through mistake, attempts to exercise a right to which he is not entitled, does not prevent his afterwards exercising* one which he had and still has unless barred by the previous attempt.” William W. Bierce, Ltd., v. Hutchins, 205 U. S. 340, 347 (27 Sup. Ct. 524).
See, also, Bryant v. Kenyon, 123 Mich. 151; Lewis J. Selznick Enterprises v. Harry I. Garson Productions, 202 Mich. 111.
The judgment entered in the circuit court is affirmed, with'costs to appellees.
McDonald, C. J., and Clark, Potter, Sharpe, Pead, Wiest, and Butzel, JJ., concurred. | [
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] |
Clark, J.
On December 16,1927, plaintiff brought • replevin, and certain household furniture was taken on the writ. On December 22, 1927, defendant Jay executed a redelivery bond (3 Comp. Laws 1929, § 14823), with defendant Detroit Fidelity & Surety Company as surety. Declaration and plea were filed during the same month.
On February 3, 1930, the cause was dismissed without prejudice as one in which no progress had' been made for more than one year. 3 Comp. Laws 1929, § 14253.
On November 21, 1931, plaintiff made motion to reinstate the cause, alleging inadvertence, and appealing to the grace of the court. A stipulation for reinstatement signed by counsel for plaintiff and counsel for defendants in the trial court (not present counsel) was filed. On and because of the stipulation the cause was reinstated.
In the period between dismissal and reinstatement, the surety, treating the matter as terminated, surrendered to its principal, defendant Jay, the collateral security it had taken when becoming- surety. The trial court refused judgment against the surety. Plaintiff has appealed.
The dismissal of the cause “terminated all proceedings therein.” Miller v. Davis, 241 Mich. 544; 18 C. J. p. 1207. “A dismissal without prejudice leaves the parties as if no action had been instituted.” 8 Words and Phrases (1st Ser.), p. 7508, citing Taylor v. Slater, 21 R. I. 104 (41 Atl. 1001); Scheinman v. Baker, 250 Mich. 668; 54 C. J. p. 639.
Hence the surety here is discharged.
But plaintiff argues that the dismissal was without jurisdiction and void. The trial judge who ordered dismissal states that it was granted “in pursuance of the statute governing dismissal, of ‘no progress’ cases,” and in pursuance of a local court rule. Plaintiff recognized the dismissal as valid when petitioning for reinstatement. In any event, on this record, we are in accord with the following by the trial judge:
“You haven’t established there was a lack of jurisdiction. There is no showing here there was no rule under which the case could be properly dismissed and I don’t think I will trouble with this case any longer. * * * I am going to dismiss the case on the theory that the presumption * * * of regularity of action justifies the court in assuming that the case was-dismissed in accordance with the rule. ’ ’
As this disposes of the case, we need not consider the question that plaintiff is estopped, on this record, to ask judgment against the surety by reason of delay of nearly 21 months in seeking reinstatement; nor need we discuss asserted invalidity in order of reinstatement that signature of then counsel for defendant to the stipulation was unauthorized and made at a time when his client had secured return of his collateral and was not collectible.
Affirmed.
McDonald, C. J., and Potter, Sharpe, North, Pead, Wiest, and Btitzel, JJ., concurred. | [
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Fead, J.
The suit is on two promissory notes. After appearance and plea by defendants, plaintiff had summary judgment. The judgment was set aside on the application of defendants Wuerth and Conlin, and Wuerth and Baumgartner filed amended pleas and notices, claiming fraud in securing their signatures. On trial, verdict was directed against defendant Conlin, and the jury found in favor of the other defendants. Plaintiff’s motions for directed verdict and judgment non obstante were denied.
Plaintiff contends (1) it was entitled to direction of verdict and judgment non obstante, and (2) the verdict was against-the great weight of the evidence. The second contention would he plainly tenable if the first were not determinative.
In 1930 John Lundgren, substantially sole owner of the Ann Arbor Floral Company, and defendant Baumgartner, a realtor, entered upon a project to organize a new corporation, the Huron Holding Company, to take over the business of the floral company and to sell stock to the public. They engaged defendant Conlin, an attorney, to incorporate the company and secure permission from the State securities commission to sell stock. Lundgren gave information regarding the. business to both Baumgartner and Conlin. They prepared a financial statement, including profit and loss account and inventory and appraisal, showing earnings for 1929 of $22,000, assets of $260,000, and liabilities of $104,000, the significant item of the latter being accounts payable of $6,300. It listed obligations to Frank Stivers of $23,000.
Frank Stivers, an attorney and a director of plaintiff bank, became interested in the floral company upon its organization in 1922, but had sold his stock to Lundgren in 1926. However, he held two chattel mortgages for $13,000 on the property, and was a creditor of both the company and Lundgren for considerable sums, directly and as indorser.
Baumgartner approached Wuerth, a wealthy man of varied business experience, to interest him in the project. Wuerth said he was not interested, because he recently had sold a large clothing establishment, did not want to engage in business, and desired to take a trip to Europe. However, he talked with Baumgartner and Conlin several times, and approved the Huron Holding Company plan except that he did not care to have stock sold to the public, as he would rather furnish or procure the desired money himself. He learned that Stivers, as a creditor, would not sanction the project unless the obligations to him were taken care of. Stivers had expressed his proposition to Conlin, Conlin told Wuerth, and the latter wanted a statement in writing from Stivers. Stivers wrote a letter to Wuerth on May 20th and delivered it to Conlin, in which he stated that payment of the obligations of the floral company to the Interstate Credit Company, Ltd., ydiich he represented, could be deferred to November 1st, and that he would continue to indorse renewal notes of the floral company until the same time in case Lundgren’s note for $13,734.75 to plaintiff should be indorsed by Wuerth and accepted by the bank and the proceeds applied to pay Lundgren’s obligations to Stivers, the credit company, and notes to plaintiff, upon which Stivers was indorser.
Conlin delivered the letter to Wuerth with a copy of the financial statement and other documents, making a remark which counsel intimates caused Wuerth to think that the whole had come from Stivers. Wuerth looked them over, and noticed the claimed earnings and accounts payable and total obligations, but said he was satisfied that the statements were incorrect. The next day the three defendants, Lundgren and Stivers met in Conlin’s office. Defendants claim George E. Paul, president of plaintiff bank, was also present. We will assume he was, although he and others deny it. Wuerth testified he was still uninterested in the proposition, although it is evident the only purpose of the meeting was to arrange affairs until he could return from Europe. Stivers made it plain to defendants that he was anxious to get his obligations to the bank reduced, and said the bank would be lenient in the ‘way of renewals of the Lundgren note in order to aid the floral company, to which Paul acquiesced. Paul took no other part in the discussion except that Wuerth, late in his testimony, said Paul stated that he wanted Stivers ’ obligations reduced and it would be a good thing. Counsel contend Wuerth meant that Paul meant the floral company was a good thing, but, if so, Wuerth did not rely at all on Paul’s opinion.
The only fraud claimed is that Stivers said to defendants that the floral company was a wonderful proposition, that it had only $6,300 accounts payable and had made a profit of over $20,000 the preceding year. Wuerth and Baumgartner testified that they relied solely upon Stivers’ oral statement so made and not at all upon their own investigation, upon any of the financial statements, upon what others told them, nor anything else. Instead of a profit, there had been a loss the preceding year, and accounts payable were in excess of $30,000.
Wuerth and Stivers arranged that Stivers should pay the taxes and accounts payable out of collections during Wuerth’s absence. Thereupon Paul went out, returned with a note, which Lundgren signed as maker and defendants as indorsers. The bank disposed of the proceeds by applying them to Lundgren’s and Stivers’ notes held by it, discharging them and returning them to the makers, in accordance with Stivers’ letter to Wuerth and the agreement of the parties.
Defendants executed the note to obtain an interest in the floral company, and on the same day they took part in a meeting of the stockholders and became directors and officers. Lundgren was the manager. Wuerth left for Europe June 26th and returned September 21st. Shortly thereafter he and Baumgartner made an investigation, discovered that things were not well with the floral company, and, on October 3d, Lundgren was deposed as manager and Wuertb was put in full control. Some time before October 25th a new 90-day note was given in renewal of the first, which had expired September 20th. Lundgren was not a party to the new note, but defendants executed as makers. Wuerth and Baumgartner said they had not discovered the falsity of Stivers’ representations at that time.
October 20th defendants borrowed $500 from plaintiff on their own note and used the proceeds to pay labor for the floral company. One hundred dollars was paid on this note a few days later. Defendants said they had not yet discovered the falsity of Stivers’ representations. November 13th a receiver was appointed for the floral company, and later it became a bankrupt.
Defendants do not charge plaintiff with knowledge of Stivers’ fraud on the ground that he was director of the bank. They recognize the rule that, as Stivers was acting- in his personal interest, the bank was not responsible for his acts or knowledge. They charge knowledge of fraud on the part of the bank on the ground that Paul knew of the fraud and participated in it. Accepting the finding that Paul was present and heard the statements, the question is whether he is charged with knowledge of their falsity.
Although payee of the notes, plaintiff could be a holder in due course or its equivalent. Price v. Klett, 255 Mich. 354. To prevent recovery, the bank (Paul) must have had actual knowledge of the fraud or knowledge of such facts as constituted the act of taking the note bad faith (Lincoln Investment Co. v. Metros, 257 Mich. 215; Merchants National Bank v. Detroit Trust Co., 258 Mich. 526; 2 Comp. Laws 1929, § 9305); such as facts which would operate to create a belief in bis mind that there was fraud. Title & Trust Co. v. Jaster, 241 Mich. 416, 419.
The record contains nearly 2,000 pages. We assume that defendants have collected in their briefs all facts which indicate Paul’s knowledge of the fraud. The briefs fail to reveal any statement of facts or testimony which defendants claim show that Paul knew the falsity of Stivers’ representations or was chargeable with the knowledge except the assertion that he must have known it from the records of the bank. They argue that the bank records show that the floral company was in a hopeless condition financially; that the bank held its notes for large sums upon which nothing had been paid for several years; that the notes had not been met except by renewals; that loans were made only when indorsed by responsible parties, like Stivers; and that without indorsers it had no credit at the bank. Aside from the fact that the argument consists.of conclusions, and does not demonstrate Paul’s knowledge of the falsity of the specific representations upon which defendants testified they relied, it is not justified by the testimony.
Paul became connected with the bank on March 31st, less than two months before the note was given, He had spent his time getting acquainted with customers. He knew the floral company only in a general way, as a borrower and depositor. He knew nothing of the details of its business. He came into conference, if he was there, interested merely in getting Stivers’ obligations to the bank reduced. The adjustment of the various obligations was a primary purpose of the meeting, and it was openly discussed. At the conference Paul met men of affairs, known to each other but comparative strangers to him, two of them lawyers, armed with financial statements which they diseusse'd, considering a busi ness proposition. The situation contained nothing which would raise a suspicion of fraud.
Had he consulted the records of the bank, as disclosed by the testimony here, he would have found the floral company had á small but active checking account, and that it owed notes indorsed by Stivers or Lundgren or both in varying amounts, ranging between $6,600 and $10,200 in 1929 and 1930, the loan account disclosing many substantial and small payments, renewals, and new loans. Neither the circumstances under which the note was given nor the bank records would impute to Paul the knowledge, belief, or even suspicion that the claimed fraudulent statements -of Stivers, upon which defendants said they relied, were not true. See World Manfg. Co. v. Hamilton-Kenwood Cycle Co., 123 Mich. 620. We find in the record no basis for a claim that plaintiff (Paul) acted in bad faith in taldng the note.
The balance of the $500 note is recoverable by plaintiff on the same finding, although, regardless of fraud, plaintiff was entitled to a judgment thereon.
Defendants also contend that, as plaintiff knew of the fraud before bringing suit, it ratified and adopted the fraud by bringing suit, and, therefore, cannot recover. The rule counsel evidently have in mind would be applicable had Paul acted without authority in taking the note and had he known of the fraud so that the bank, by adopting his acts., would have been chargeable with his knowledge. It is not applicable here.
Judgment reversed, and cause remanded for entry of judgment in favor of plaintiff and against defendants for the balance on both notes, with costs.
McDonald, C. J., and Clark, Potter, Sharpe, North, Wiest, and Btjtzel, JJ., concurred. | [
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Wiest, J.
Plaintiff school district had a high school building, and, early in 1924, completed an addition thereto. In January, 1931, fire destroyed the old part of the building and damaged the new part. The total loss and damage amounted to $54,342.95, of which $3,448.90 was to the new part. The total insurance on the whole building was $91,000, and carried by 31 insurance companies. The insurance companies, outside of the five appealing defendants, paid $41,706.43, which constituted their proportionate shares, assuming that all insurance covered the entire building. Three of the appealing-defendants claimed that their risks were on the new part of the building, and the other two claimed that their risks were on the old part only. This suit was brought on the equity side of the court for reformation of the contracts, if necessary, and to compel the five insurance companies to pay their proportionate shares of the total loss, under a construction that all of the policies covered the building- as a whole, or, in the alternative, have a determination of the liability of the companies with recovery of the full loss. The court decreed reformation, and apportioned liability for the total loss. The five insurance companies, herein designated defendants, urge want of equity in the bill and contend against need of reformation.
We do not think reformation necessary in order to sustain the decree. It would entail useless ex-pense to remit plaintiff to actions at law, and it was proper to bring all of the insurance companies before the court so they might be heard upon the questions affecting- all of them, and, besides, we think the problems presented can all be solved upon the record made.
The old part of the school building was solid brick, two stories in height, with a slate roof. The new part was added to the old without a fire wall, with connection openings unprotected by fire doors, and was also solid brick, two stories in height, but had a composition roof. We now state the coverage in each policy here involved:
Security Insurance Company:
“On the two-story composition roof solid brick school building, including foundations, * * * situated on North street between Allegan and Orleans streets, known as the gym building.”
Firemen’s Insurance Company:
“On the one-story gravel roof new brick school building and gymnasium school building*, including foundations * * * situated bn North street between Allegan and Orleans streets, city of Otsego, State of Michigan. ’ ’
American Insurance Company, two policies:
(1) “Two-story composition roof solid brick school building, including foundations, * * * situated on North street between Allegan and Orleans streets (known as the high school building), city of Otsego, State of Michigan.”
(2) “On the two-story composition brick school building including foundations * * * situated southwest corner of W. Allegan street and North street, city of Otsego, high school, State of Michigan. ’ ’
Girard Fire & Marine Insurance Company:
“On a two-story slate roof, solid brick school building, including foundations, * * * situated on the south side of West Allegan street, high school, city of Otsego, State of Michigan.”
Northwestern National Insurance Company:
“On the two-story and basement, slate roof brick high school building, including foundations * * * on the south side of West Allegan street.”
-Defendants Security Insurance Company, Firemen’s Insurance Company, and American Insurance Company claim that their policies covered only the addition, which had a composition or gravel roof, and defendants Girard Fire .& Marine Insurance Company and Northwestern National Insurance Company claim that their policies covered only the original building, which had a slate roof.
The fire found and burned one building, having a single owner, and occupied solely for school purposes. One building, constructed in part at different times, is not divided into separate units by character of roofing or by designating the kind of roof on a part thereof. In case of a fire wall, parts of buildings so separated and protected are in some instances rated as separate risks, but in the absence of a fire wall separating the units a common risk and coverage designation in the policy should be applied to the actual situation and the single use of the property.
The policies in this suit were issued by insurance companies, members of and operating under a rating bureau authorized by statute (3 Comp. Laws 1929, § 12272 et seq.), and that bureau, by a previous survey, had scheduled the building as a two-story, brick high school and gymnasium, and fixed the premium rate thereon as a unit, and fixed no separate rate on the gymnasium section. Defendants, in their policies, adopted the rate so fixed, and sent the same to the audit department of the rating bureau to have them checked with the bureau regulations, inclusive of coverage and rate of premium charged. In adopting the rate fixed by the bureau defendants necessarily adopted the survey and scheduled basis for such rate. The statute (3 Comp. Laws 1929, § 12274) establishing fire insurance rating bureaus provides for voluntary membership therein and submission to rates fixed by the bureau for fire insurance upon surveyed and designated risks and estimated hazards; imposes a penalty upon any bureau rater operating without a license; requires the bureau, in making rates, to—
“inspect every risk specifically rated by it upon schedule, and make a written survey of such risks which shall be filed as a permanent record in the office of such bureau.” (3 Comp. Laws 1929, § 12279.)
This obviates the need of application for insurance in instances where the risk is specifically rated, for it furnishes the subject-matter of the risk and the rate for guidance and control of the insurer and protection of the insured.
As said in Richards, Law of Insurance (4th Ed.), p. 22:
“For use in the larger cities they (insurers) have prepared elaborate and accurate insurance maps and surveys showing the character of the risk involved in every building.”
After the fire, two adjusters, one of whom duly represented the five defendants, met, determined the loss on the building as a unit, apportioned liability on such basis, and all of the insurers, except the five defendants, accepted the adjustment and paid their proportions. Such adjustment is quite persuasive of the idea that the contention now made is an afterthought. The adjusters necessarily determined the coverage. Without a fire wall and separate rating and with the rate exacted by the insurers as fixed by the bureau on the building as a whole, we think the policies covered the building as a unit, and the adjusters very properly so determined..
For the reasons stated, the decree in the circuit is affirmed, with costs to plaintiff.
McDonald, C. J., and Clark, Potter, Sharpe, North, Fead, and Bhtzel, JJ., concurred. | [
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Clark, J.
This suit is brought to recover damages for loss by fire of household goods which plaintiffs had stored-.in defendant’s warehouse.
A count of the declaration is • in fraud, that defendant falsely, represented the warehouse to be fireproof, and in reliance thereon plaintiffs entered into a contract of storage. The averments were supported by testi. mny. - '
The defense is a denial of such representation, and that obligations and rights were fixed by the warehouse receipt, the contract, which recited that there would be no liability for loss or damage by fire. The plaintiffs were advised by postcard that defendant did not insure goods in storage, and to procure insurance. The warehouse was not fireproof.
Plaintiffs had verdict, and on decision of a reserved motion to direct, judgment was ordered and entered for defendant. Plaintiffs ’ appeal challenges such order. Clearly the question of fraud was an-issue of fact for the jury, and there is no evidence sufficient to raise question of waiver of the fraud. If it be conceded that the written contract was complete, and that oral testimony was not admissible to vary it, we have not touched the issue here, which is, that plaintiffs were induced to enter into the contract by defendant’s fraud, on which issue plaintiffs’ evidence of false representation was admissible. Of such evidence it was said in a like case, Fox v. John F. Ivory Storage Co., Inc., 261 Mich. 358:
“It was offered to show that plaintiff was induced to enter into the written contract because of the defendant’s fraud in falsely representing that the warehouse was of fireproof construction. Believing that it was fireproof, he was willing to consent to all of the terms of the written contract and to .take the risk of loss by fire. ’ ’
Whether plaintiffs had fire insurance or not ,iS' of no importance here. Liability of defendant', would not have been affected if plaintiffs had insured the property. Right' of action for the loss would never-. theless be in plaintiffs or their assignees. As was said in the Fox Case, plaintiffs, relying on the representation, might take the risk of loss ]5y fire. 17 C. J. p. 929.
The fraud, it is urged, was not the proximate cause of the loss, rather the fire, which was not occasioned by any fault of defendant, citing McLane, Swift & Co. v. Botsford Elevator Co., 136 Mich. 664. In that case, oats were shipped by plaintiff to defendant to be clipped at its elevator and reshipped on the original bills of lading. While the oats were in defendant’s elevator they were accidentally destroyed by fire. Assuming delay in reshipping, it was held that fire was the remote, not the proximate, cause of the loss.
But the case at bar has an important and distinguishing element — the loss grew out of the very subject-matter of the fraud, the misrepresentation that the building was fireproof. It was recognized' by the parties that fire is an ordinary and frequent agency of destruction, and safety as against it was within the contemplation of the parties. Because of this element, we think the cited case not controlling. Two cases illustrate the point:
In Mortimer v. Otto, 206 N. Y. 89 (99 N. E. 189, Ann. Cas. 1914A, 1121)., defendants agreed to store household goods in a designated building, but in violation off that agreement stored the articles in another building which, with the articles, was destroyed by fire. In a holding favoring plaintiffs it was said:
“The plaintiff and her assignor were depositing their property with the defendants and a regard for its safety and security while in the keeping of the defendants was obviously within their contemplation and, it may justly be assumed, known to the defendants. For the purpose of making effective that regard, they, with the permission and concurrence of the defendants, selected the precise place of storing*. Fire is an ordinary and frequent agency of destruction or injury, and safety as against it was in the contemplation of the parties when they agreed that the property should be stored in the specified room. Had the property been there stored, the plaintiff and her assignor would have assumed all the risks of injury to it except those ordinarily imposed by law upon the defendants as bailees. When, however, the property was burned in the building in which the defendants in fact placed it, the consequent loss and damage was that which the parties apprehended and sought to avoid through the agreement that the property should not be there, and the defendants must indemnify the plaintiff therefor. ’ ’
In The Normannia, 62 Fed. 469, a passenger had purchased passage on defendant’s ship, but had determined to forfeit it on subsequent outbreak of cholera, and was induced to take the passage on false representation of defendant’s agents that no steerage passengers would be carried. It was held he could recover damages resulting from the ship being in quarantine at destination because of cholera on board, and the court said:
“I do not think the mere circumstance that he would ‘not have been on board’ but for the false representations, would be sufficient to make the defendant liable for whatsoever might happen to the libelant’s injury while on the ship on which the representations had induced him to embark, if the injury was not proximately related to, and did not naturally grow out of, the subject-matter of the misrepresentations. Had the libelant, in this instance, suffered no detention through cholera, or quarantine, but had been injured through a collision with another ship, or by some accident on the N'ormannia itself, in no way connected with the presence of steerage passengers, it surely would not have been claimed that the defendant, if not otherwise in fault, would have been responsible to the libelant for such damages, merely because steerage passengers were on board, and because the libelant would not have embarked on the Normannia had he known of their presence; since neither the cause of the injury nor the damage would, in the case supposed, have had any connection with the presence or the absence of steerage passengers. ’ ’
The damages occasioned by the • fire are proximately connected with and flowing from the fraud, were within the contemplation of the parties and a natural consequence of the wrongful act.
Reversed, with costs, and remanded for judgment on verdict.
McDonald, C. J., and Potter, Sharpe, North, Fead, Wiest, and Btttzel, JJ., concurred. | [
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] |
Fead, J.
Plaintiff had decree compelling defendant and its receiver to discharge and deliver to her two notes and real estate mortgages.
Defendant was organized in October, 1925, all policies were canceled as of May 1, 1931, unearned premiums returned to policyholders, and a receiver appointed in December, 1931. Plaintiff's son, Arthur, was secretary of the company during its whole life.
December 11, .1926, plaintiff executed and deposited with defendant a note for $3,000, secured by mortgage, under an agreement which provided that defendant should pay her interest at seven per cent, per annum, and—
“Said deposit to be considered as capital stock in the above-named company and such principal and interest as specified to be repaid from the surplus earnings of said Empire Mutual Fire Insurance Company. ’ ’
December 26, 1928, plaintiff executed and deposited with defendant another note and mortgage, for $10,000, under similar agreement, except that the words “an unearned premium reserve” appeared in.it in place of “capital stock.” The deposit was made in accordance with 3 Comp. Laws 1929, § 12661:
“Any director, officer, or member of any sncb company, or any other person, may advance to such company any sum or sums of money necessary for the purpose of its business or to enable it to comply with any of the requirements of the law", and such moneys and such interest thereon as may have been agreed upon, not exceeding seven per cent, per annum, shall not bé a liability or claim against the company or any of its assets, except as herein provided, and shall be repaid only out of the surplus earnings of such company. No commission nor promotion expenses shall be paid in connection with the advance of any such money to the company and the amount of such advance shall be reported in each annual statement.”
The company had no “capital stock.” What, then, was the purpose of the first note and mortgage?
. Arthur Whitaker testified that they were deposited to guarantee the unearned premiums. He pointed to no writing, bookkeeping entry, or official report to substantiate the claim. The contemporaneous evidence, in the form of correspondence with the insurance commissioner, is to the contrary. The commissioner had called attention to the fact that the admitted assets of the company were inadequate. The deficit had been occasioned by failure of banks in which defendant’s funds were deposited. Whitaker, on the day of plaintiff’s execution of the note and mortgage, reported to the commissioner that the officers and directors had arranged for deposit of mortgages and cash to the credit of the company to take care of the deficit caused by the bank failures. It is clear that the deposit was made to the general assets.
The books were not produced, but it may be assumed that, as liabilities, the company carried sepa rately certain reserve accounts required by 3 Comp. Laws 1929, § 12662. There was no showing that any of the assets were earmarked to specific liability accounts. The fact that the deposits were partly in cash negatives the idea of a special appropriation to a particular fund. “Capital stock” evidently was used in the sense of general assets or working capital.
The case presents no equities in favor of plaintiff. If the deficit had not been cured by voluntary contributions, it would have been chargeable to the then policyholders. Present policyholders, becoming members upon the basis that the note and mortgage were assets of the company, should not be charged with the deficit.
The $3,000 note and mortgage are assets of defendant, and the decree will be reversed as to them.
The $10,000 note and mortgage occupy a different position. The circumstances of their deposit were not shown. The agreement of deposit is not ambiguous. By its express terms they were deposited as unearned premium reserve. The unearned premiums have been paid in full. They now secure nothing. The court cannot remake the contract. Plaintiff is entitled to discharge of this note and mortgage.
The decree will be modified accordingly, without costs.
McDonald, C. J., and Clark, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
Plaintiff sued defendant to recover damages in the sum of $25,000 for defendant’s negligence in carelessly and wilfully performing its work in making gas connections to paintiff’s house, in this, that it sent an unskilled and incompetent workman to make the connection and turn on the gas; sent a man who failed to carefully perform the work, in that he failed to use reasonable precaution to ascertain whether the pipes and equipment used in conjunction with-the gas on the premises were in proper condition to be used without injury to plaintifffailed to keep the gas pipes used to supply gas to plaintiff’s house in reasonable and proper repair, and did not use that degree of care commensurate to the danger of escaping gas which it was its duty to avoid. Plaintiff alleges she was injured by being overcome or asphyxiated by escaping gas, became extremely nervous and run down, her heart was affected, she has frequent sinking or fainting spells, her eyesight has been seriously impaired, she has severe and painful headaches, and was compelled to be away from her business a great deal, causing irreparable loss of business, and has incurred expenses for nurses, doctors, and medicines.
Defendant denies due care on the part of plaintiff; admits it was requested to turn on gas at her premises, and did so; denies all negligence charged; denies plaintiff was injured by its negligent acts; alleges if she was injured it was not in any way due to defendant’s negligence nor to escaping gas from defendant’s pipes. The case was tried before the court without a jury. The trial court found the testimony showed by a preponderance there were leaky gas-jets on the second floor of plaintiff’s house, and those leaky gas-jets furnished the gas which overcame plaintiff. This finding, if sustained at all by the declaration, must be by paragraph nine, which alleges defendant herein and its agent failed to ascertain and to use reasonable precaution to ascertain whether or not the pipes and equipment used in conjunction with the gas on the premises in question were in such condition that gas would flow into the same or through the same without injury to the person or persons occupying the premises. There was judgment for plaintiff for $6,879.50. A motion for a new trial was made on behalf of defendant, on the ground the findings of the trial court were against the great weight of the evidence, against the pre ponderance of the evidence, and the judgment was excessive. This motion was granted, unless plaintiff filed a remittitur within 10 days, which she elected to do, and the judgment stood at $5,879.50 and costs, from which judgment defendant appeals.
Appellant claims the judgment entered is erroneous, in that the court’s findings were against the preponderance of the evidence, because plaintiff was guilty of negligence which was the proximate cause of her injury and of contributory negligence, and that the judgment, as entered, was excessive. Appellee accepts appellant’s statement of the questions involved, but insists the judgment of the trial court be affirmed.
Plaintiff called Clayton Gahring, an employee of defendant, as a witness, under the statute, and he was fully examined as to what he did in turning on the gas at the premises. The statute, 3 Comp. Laws 1929, § 14220, provides:
“Hereafter in any suit or proceeding in any court of law or equity in this State, either party, if he shall call as a witness in his behalf, the opposite party, employee or agent of said opposite party, or any person who at the time of the happening of the transaction out of which such suit or proceeding grew, was an employee or agent of the opposite party, shall have the right to cross-examine such witness the same as if he were called by the opposite party; and the answers of such witness shall not interfere with the right of such party to introduce evidence upon any issue involved in such suit or proceeding, and the party so calling and examining such witness shall not be bound to accept such answers as true.”
Under the law as it existed prior to the enactment of this statute, one who placed a witness on the stand vouched for his credibility, was bound by his answers, and barred from impeaching him. Under this statute, an employee of the opposite party may be called and cross-examined’ without the party calling him being bound by his answers, or prevented from impeaching* him; but Gahring was a witness for the plaintiff, not for defendant (Jones v. Railroad Co., 168 Mich. 1); and his testimony,- being in the case, must be weighed and considered the same as that of any other witness (City of Kalamazoo v. Standard Paper Co., 182 Mich. 476); and though plaintiff was at liberty to contradict his testimony (Cook v. Railroad Co., 189 Mich. 456), she was bound thereby (Aphoresmenos v.McIntosh, 189 Mich. 680), except so far as such testimony was contradicted (Swank v. Croff, 245 Mich. 657).
Gahring testified to facts showing he complied with the rule established by the Michigan public utilities commission in testing the piping and appliances of defendant company; that he went further, and, after he turned on the meter, went through the house to see whether or not any of the gas jets were open, but none of- them were open and the gas-pipe in the kitchen was capped. No one directly disputes this testimony. Plaintiff relies, to recover, upon the testimony of plaintiff, who testified she was familiar with the odor of illuminating gas and it was illuminating gas that overcame her; of Lillian Edgar, who said she was acquainted with the odor of illuminating gas, and the gas which overcame plaintiff smelled like illuminating gas, though she would not swear it was; Arthur Edgar, who was in the house afterward, who said he could detect the odor of illuminating gas; of Evelyn Lang, who cared for plaintiff after she was removed from the- house to her home, and. who said she was familiar with the odor of illuminating gas, could smell the odor on plaintiff’s •breath as clearly as she could detect the odor of illuminating gas when standing over a gas stove with the gas turned on; of Peter Archambault, who removed plaintiff from the house, who said he was familiar with the odor of illuminating gas, and it was illuminating gas he smelled in the house; of Dr. Brasie, who said if one is overcome by illuminating gas, the odor may be detected on the breath; and this testimony, it is claimed, shows plaintiff was overcome by illuminating gas; that the gas escaped and was in the house, and the fact that it was there indicates it came there by reason of defendant’s failure to inspect the pipes, openings, jets, and appliances in the house at the time it caused the gas to be turned on.
Defendant claims it complied with the rule established in this State through the Michigan public utilities commission, and hence is not liable. It claims it did more. It contends plaintiff and her companion were not overcome by illuminating gas from defendant’s pipes, but by a super-heated hot air furnace, which had been lighted after it had been standing-unused for some time in a cold house, the smoke (flues of which were partially filled with soot, the furnace having been fired with coke, and to sustain this claim it contends the odor of illuminating gas is well understood and easily detected; that neither plaintiff nor her coworker, on the day in question, which was a cold, bright, winter day, when they entered the house from outdoors, discovered or recognized any odor of illuminating gas; that they went upstairs and began to work, and later detected an odor which “smelled like dust in the beginning.” “It smelled like gas or a sort of dust smell. It penetrated my lungs, I knew that it was something on fire. * * * I * * * first thought there might be something in the attic afire. * * * It might be smoke burning, yon know, some place in the vicinity, in the attic. ’’ Mrs. Edgar, who was with plaintiff, says, “We thought it was dust * * * or something. * * * I could smell a fumiy odor.” Mrs. Edgar says she was familiar with the smell of illuminating gas, and would not swear the odor was that of such gas. Defendant also relies upon the testimony of plaintiff’s witness Gahring, defendant’s employee, who testified that when he turned on the gas he not only complied with the rule established by the Michigan public utilities commission, but inspected the premises for gas openings and found them closed; and the testimony of Joseph C. Nichols, general foreman of the distributing department of defendant’s gas works in Flint who, after the accident, as first aid man of defendant, went to plaintiff’s home, and, after the doctor came, went to Mrs. Edgar’s house, and from there to the scene of the accident, who says he detected no odor of illuminating gas in the house; that he searched all rooms, smelling, trying* to detect some odor of gas, but he could not smell anything; and who says there was no odor of illuminating gas therein. He testified the gas pipe which came into the kitchen, which Archambault says was open, was closed, and which pipe Gahring, Davison, and Dr. Jefferson, as well as Nichols, say was closed; that on opening the furnace in the basement he could smell fumes, but not of illuminating gas; the testimony of Floyd Davison, shop foreman of defendant, who 'also visited the house in question and examined and tested the gas pipes, but discovered no defects therein, but did detect fumes from the furnace but not the odor of illuminating gas; of Dr. Jefferson, who went to the house in the afternoon of the injury, examined the furnace, found the flues partially filled with soot, went through the rooms in the house, searched for gas leaks but could find none, and who concluded plaintiff’s gassing was the result of carbon monoxide g*as from the furnace; and it claims plaintiff’s injury did not come from illuminating gas but from gas generated by the furnace; that even if illuminating gas escaped, it performed all and more than all its duty of inspection when the gas was turned on, and was not negligent. That if illuminating gas was escaping and present in the. building when plaintiff and Mrs. Edgar entered it from the outside they should and would have detected its odor and presence, and if present in sufficient quantities to overcome plaintiff and her companion, they were guilty of contributory negligence in remaining in the house until they were overcame thereby, and under- any circumstances, plaintiff is not entitled to recover; and in addition it claims that the amount of recovery was excessive.
A gas company, since it is dealing with a highly dangerous substance, i's bound to use a degree of care commensurate with the danger of its gas escaping and causing injury or damage to the person .or property of others. 29 A. L. R. 1250.
Defendant gas company, to ascertain the amount of gas delivered for which it is entitled to pay, installed a meter which belonged to it to measure such gas. When gas is measured and delivered to a customer, he ordinarily may use it for such purposes as he sees fit. The piping and conduits which he uses belong to him and are ordinarily under his control, and it is his duty to keep them in repair. Ordinarily, a gas company which does not install pipes in the customers’ building has no control over them and is not responsible for their condition, maintenance, or defective installation, nor for injuries caused by gas escaping from a leak therein, of. which it has no knowledge. 25 A. L. R. 272. As in other negligence cases, if a person is injured by escaping gas by reason of his own contributory negligence, he cannot recover against the company. 25 A. L. R. 274. These principles are the bases of the' rule promulgated by the Michigan public utilities commission, which provides:
“No utility shall establish gas service to any applicant ■ until such -utility has made a test of all supply piping and gas appliances by observing the meter when all appliances are shut off .and gas pressure is on such piping and appliances, and finds, that no gas passes the meter under such conditions. * * * Nothing in this rule , shall be •'construed to make the utility liable for the installation, maintenance, or use of piping or appliances owned by the consumer beyond the making of the test above required, nor shall the utility be held liable for any continuing duty of inspection of piping of appliances. ’ ’
There is no testimony to show, and no claim, any of the gas lines of defendant outside the house or between the meter in the basement and the main were defective, nor that illuminating gas escaped therefrom and penetrated plaintiff’s house. It is clear if such gas was in the house it escaped, as found by the trial court, from the gas pipe or fixtures in the house.
If defendant was negligent, it must have failed to observe, for the protection of the interests of plaintiff, that degree of care, caution, and vigilance which the circumstances justly demanded. Brown v. Railway Co., 49 Mich. 153 (4 Am. Neg. Cas. 32). Negligence cannot he presumed, but must be affirmatively proved. G. R. & I. R. Co. v. Judson, 34 Mich. 506; G. R. & I. R. Co. v. Huntley, 38 Mich. 537 (31 Am. Rep. 321); Brown v. Railway Co., supra.
Did plaintiff establish negligence? She did not rest her case upon inferences which might be drawn from the claimed presence of illuminating gas in the house. She went further and affirmatively proved and established by her witness Gahring, who was not impeached except by Archambault, and who was corroborated by several other credible witnesses, not only that defendant complied with the rule established by the Michigan public utilities commission as to meter test but that it made an inspection of the piping and fixtures inside the house and found them closed. In view of plaintiff's showing by this witness whose testimony is not impeached, we cannot find plaintiff has established by a preponderance of evidence defendant was negligent.
Judgment reversed, with costs. New trial granted.
McDonald, C. J., and Clark, Sharpe, North, Fead,' Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
This is a suit by Bessie Camp, widow of George Camp, deceased, to set aside a deed alleged to have been given by George Camp in his lifetime to his mother, Nettie Camp, for injunction against the Guaranty Trust Company, administrator of the estate of Nettie Camp, and against the heirs of Nettie Camp, deceased.
May 13, 1924, George Camp acquired the real estate in question by deed. May 12, 1927, it is claimed he executed the deed in question to Nettie Camp; June 16, 1928, George Camp married Bessie Camp, plaintiff heréin. August 3, 1930, Nettie Camp died. August 6, 1930, George Camp died. August 12, 1930, the deed in question was delivered to the register of deeds of Wayne county for.recording. The important question in this case is whether the deed in question was delivered to the grantee. Neither the plaintiff, widow of George Camp, deceased, nor the children of Nettie Camp, nor the wives of the male members of her children, would have been competent witnesses to any material fact bearing on the delivery of the deed, had appropriate objections been made thereto on the ground such testimony was equally within the knowledge of the deceased. No objection was made to the introduction of the testimony, and the opposite parties in this case, without objection, were examined and cross-examined. George Camp continued to occupy the premises after the execution of the deed. It is claimed he kept his papers in his desk. Clarence Camp says his mother had the deed and gave it to Obediah Camp to keep for her. There is no proof that Nettie Camp directed the deed to be recorded. It was not recorded at her request or at her direction. It was recorded after the death of George Camp and the death of Nettie Camp, on the advice of an attorney. Nettié ■ Camp and the balance of the Camp family did not like plaintiff, Bessie Camp. Sarah Badgett and Bessie Camp say that George Camp’s papers were in a desk in the house where he lived. After his death the defendants had access to these papers. Sarah Badgett says that after George’s death, Obediah Camp came to, her and tried to get her to sign a statement that all of George’s papers were left in his hands, but she refused. Treating this testimony as competent, it does not establish the delivery of the deed. It indicates the heirs of Nettie Camp were trying to bolster up a showing that the deed in question came lawfully into the possession of Obediah Camp, and negatives delivery rather than sustains it. It is not claimed there was any consideration paid by Nettie Camp for the deed. Its recording at the advice of an attorney after the death of both parties thereto, rebuts any presumption of delivery which might arise from its recording. To constitute delivery, George Camp must have parted with the deed to Nettie Camp and with the right to retain it. Younge v. Guilbeau, 3 Wall. (70 U. S.) 636; and even if he had executed it and placed it on record, that alone would not have constituted' delivery.
“The execution and registration of a deed, and delivery of it to the register for that purpose, does not vest the title in the grantee. ’ ’ Parmelee v. Simpson, 5 Wall. (72 U. S.) 81.
To constitute a valid delivery, there must have been a conveyance of a present interest in the land. Pollock v. McCarty, 198 Mich. 66.
In Barras v. Barras, 192 Mich. 584, it is said:
“The burden of proving delivery by a preponderance of evidence, like proving any other act necessary to the effectiveness of a deed, is ordinarily upon the party relying upon the deed, and was upon the defendant in this case throughout the trial. Manistee Natl. Bank v. Seymour, 64 Mich. 59; Brown v. King, 5 Metc. (46 Mass.) 173, 181; Boyd v. Slayback, 63 Cal. 493, 494.”
Instead of the burden being upon plaintiff to prove nondelivery of the deed, it was upon defendants to show its delivery. They have not done so. Decree reversed, with costs. Decree for plaintiff.
McDonald, C. J., and Clark, Sharpe, North, Dead, Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
Defendant was indicted jointly with Fred J. Mertz, Lottie S. Thibos, and John H. Parsons for embezzlement; on trial convicted, and appeals. Having been indicted by a grand jury, the names of the witnesses were indorsed on the indictment, filed April 10, 1931. The case was brought on for trial May 11, 1931, at which time motion was made on behalf of the people to indorse the names of John H. Parsons, Lottie S. Thibos, and Fred J. Mertz on the indictment as witnesses. Defendant objected thereto, claimed surprise, and asked adjournment, claiming he had not had time to prepare for trial. A bill of particulars ordered by the court was not filed until the day of trial. Defendant’s objections to the indorsement of these names on the information, and his request for a continuance, were overruled by the trial court, and the names of the witnesses indorsed. The names of other witnesses were indorsed against defendant’s objection, on motion of the prosecuting attorney. The objections of defendant to this action by the trial court were also raised by motion for new trial made and denied.
In People v. Hall, 48 Mich. 482 (42 Am. Rep. 477), it is said:
“The court allowed the names of several witnesses to be added to the information during the trial, under objection, without any showing'that they were not known earlier and in time to give defendant notice in season to anticipate their presence before trial. The statute is explicit that this shall be done before trial where witnesses are known. * * * This is not a mere formality; and wherever it has been provided for by statute it has been treated as a substantial right.”
In People v. Moran, 48 Mich. 639, the prosecuting attorney indorsed the names of additional witnesses on the information when the case came on for trial without application to or permission from the trial court. For this error a judgment of conviction was reversed, and new trial granted.
The purpose of the rule is thus stated in People v. Quick, 58 Mich. 321:
“The object of this is not merely to advise a respondent what witnesses will be produced on the main charge. It is to guard him against the production of persons who are unknown, and whose character he should have an opportunity to canvass. It is as important to impeach a rebutting witness as any other.”
See, also, People v. Howes, 81 Mich. 396; People v. Casey, 124 Mich. 279.
Section 40, chap. 7, Act No. 175, Pub. Acts 1927, as amended by Act No. 24, Pub. Acts 1929 (3 Comp. Laws 1929, § 17254), provides:
“All information shall be filed during term in the court having jurisdiction of the offense specified therein, after the proper return is filed by the examining magistrate by the prosecuting attorney of the county as informant; he shall subscribe his name thereto, and indorse thereon the names of the witnesses known to him at the time of filing the same. Names of other witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine.”
In People v. Tamosaitis, 244 Mich. 258, decided since the enactment of this statute, it was said:
£ £ rppe ñg-pf 0f the defendant to know the witnesses to be called against him is a substantial one, and the statutory requirement should be faithfully observed by the prosecuting attorney. ’ ’
In People v. Smith, 257 Mich. 319, involving a related offense, it was held error to swear - Lottie Thibos as a rebutting witness without her name being indorsed on the information. Though the court had .authority to indorse the names of these witnesses upon the information, defendant was entitled to a reasonable opportunity to prepare for trial.
The witness John H. Parsons, a'joint indictee with defendant, turned State’s evidence. His name was indorsed on the indictment filed against defendant against objection, and Parsons was sworn and examined as a witness for the people. When he was on the stand, on cross-examination, the trial court sáid:
“I suppose I should advise him and have the right to say to him that he is not obliged to convict himself of perjury in this case or say anything here that would convict him of perjury in some other trial. * * * I want you to testify according to your own wish and desire, but you have the right to know this, you are being asked a question now, * * * I will say in reference to that question, you are now asked whether or not you did perjure yourself before the grand jury; you are not obliged to answer that question here and now unless you wish to, providing you say your answer to that question might tend to incriminate you. In other words, you have the right here and now to refuse to answer any questions that would tend to incriminate yourself on any other offense, so you can answer that question or not now, as you see fit.”
Whereupon the witness refused to answer further questions. This was prejudicial error.
‘ ‘ The credibility of an accomplice, like that of any other witness, is exclusively a question for the jury; and it is well settled that a jury may convict on such testimony alone without confirmation. There is no good sense in always applying the same considerations in every case to every witness who may stand in the relation of particeps criminis. We think it is the duty of a judge to comment upon the nature of such testimony, as the circumstances of the case may require; to point out the various grounds of suspicion which may attach to it; to call their attention to the various temptations under which such witness may be placed, and the motives by which he may be actuated; and any other circumstances which go to discredit or confirm the witness, all of which must vary with the nature and circumstances of each particular case.” People v. Jenness, 5 Mich. 305, 330.
The same rule was adhered to in People v. Hare, 57 Mich. 505, and People v. Schweitzer, 23 Mich. 301.
“The rule is well settled that the credibility of an accomplice, like that of any other witness, is exclusively a question for the jury, and that the jury ■may convict upon the testimony of an accomplice alone. But it has also been frequently stated that it is in many cases important that the court should comment upon the nature of such testimony, and point out the grounds of suspicion which may attach to it, calling the attention of the jury to the situation and the temptation under which such witnesses may be placed, and especially if there is testimony tending to show that they have been induced to take the stand in a particular case under a promise of immunity.” People v. Considine, 105 Mich. 149, 163.
Where one under indictment takes the witness stand, he waives his constitutional privilege against self-incrimination, and is subject to the same rule of cross-examination as any other witness, and cannot shield himself from making a full and fair disclosure of all the facts of which he has knowledge upon the ground his answers may tend to incriminate him. People v. Dupounce, 133 Mich. 1 (103 Am. St. Rep. 435, 2 Ann. Cas. 246).
In People v. Gray, 135 Mich. 542, defendant was cross-examined, and testimony elicited tending to show he had been guilty of perjury. The testimony was objected to, and it was insisted the credibility of respondent as a witness in his own behalf could not be attacked by proving from his own lips on cross-examination that he had committed other offenses than that for which he was being tried, but it was held “that the respondent in a criminal case who becomes a witness in his own behalf is subject to all the rules of cross-examination to test veracity applicable to ordinary witnesses.”
“An accomplice who consents to becoming a witness for the people on the trial of his associates for the offense charged, must disclose all he and his associates may, have said or done in relation to such offense, and cannot be excused from testifying to statements made by him to his attorney, on the ground of their being privileged.” Alderman v. People (syllabus), 4 Mich. 414 (69 Am. Dec. 321).
The same rule that applies to a defendant when he takes the witness stand in his own behalf applies to an accomplice who has turned State’s evidence.
“It would certainly lead to most startling results if an accomplice, who has made out a clear showing of a prisoner’s guilt, and has, in doing so, criminated himself to an equal degree, could refuse to have his veracity, or fairness, or bias, or corruption, tested by a cross-examination, and yet be allowed to stand before court and jury on the same footing with any other witness who has been perfectly candid, but who may have been convicted of a similar felony. It is perfectly evident that where a witness who has undertaken to give .a full account of a transaction, and has not spared himself from conclusive accusation, then turns round and refuses to answer further, his motive must be something more than to save himself from the criminal exposure, and it is of great importance to learn why such a course is adopted. If, in those cases where cross-examination is most desirable, to test the credit of a man who is seeking to save his own liberty, by swearing away that of another, it can be completely prevented at the option of the witness himself, it would be difficult to justify the rule which allows codefendants to be used by the prosecution at all, when they cannot be received for the defense. I cannot conceive that the law will tolerate such a state of things. When a man has voluntarily admitted his guilt, he has done all that he can to criminate himself, and his protection from further disclosure on the same subject is no protection whatever, because it cannot undo what makes the whole mischief. * * *
“The law does not endeavor to preserve any vain privileges, and such a privilege as would allow a witness to answer a principal criminating question, and refuse to answer as to its incidents, would be worse than vain; for, while it could not help the witness, it must inevitably injure the party, who is thus deprived of the power of cross-examination to test the credibility of a person who may, by avoiding it, indulge his vindictiveness or corrupt passions with impunity. # * *
“When accomplices are allowed to testify for the purpose of furnishing evidence against a prisoner, they not only know that they are expected to criminate themselves, but they do it with the prospect of an advantage, which, if not absolutely promised, is substantially pledged to them, if they make full disclosures. If they see fit to furnish criminating proof, there is every reason to compel them to submit to the fullest and most searching inquiry. They expressly waive their privilege by giving such proof, •for they could not be sworn at all without their consent, while under a joint indictment; and, if not indicted, they could still refuse to furnish evidence of joint misconduct. But there is neither reason nor show of authority which can, in any case, allow to them any privilege whatever, when they have gone so far already, as to any matters in which they and the prisoner on trial have been connected.” Foster v. People, 18 Mich. 266, 273, 275, 276.
“When a codefendant in a criminal case turns State’s evidence, and has attempted to convict others by proof also convicting himself, he has no right to claim any privilege concerning any of the facts bearing upon the issue. He has waived all privileges which would permit him to withhold anything.” Hamilton v. People, 29 Mich. 173, 184.
• “We are satisfied that in the case of one who has admitted his connection with a crime, testifying against another as his accomplice, noE only the people, but the defense, are entitled to the whole story, and to all that the witness has said or done in relation to the offense up to the time of the giving of his testimony, including confidential communications to his attorney. As far as the crime in question is concerned, he has, by going upon the stand and acknowledging his participation in it, waived all privilege as regards it, as the reason of the privilege has been removed by his own act.” People v. Gallagher, 75 Mich. 512, 516.
Defendant was entitled to searching cross-examination of the witness Parsons who by taking the witness stand and testifying for the people (a) waived his immunity as a coindictee, and (b) his constitutional privilege against self-incrimination. Other errors are assigned. They are not likely to arise on a new trial.
Conviction reversed. New trial granted.
McDonald, C. J., and Clark, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Potter, J.
Plaintiff recovered judgment against defendant Adolph Kolowich, November 29, 1930, for $19,608 and $22 costs; caused an execution to be issued which was returned unsatisfied, whereupon a second execution' was issued and levied upon the real estate here involved. Plaintiff then filed a bill in aid of execution, it being claimed that deeds from Adolph Kolowich to Irvin Kolowich and from Irvin Kolowich to Adolph Kolowich and Katie Kolowich, his wife, amounted to fraudulent conveyances of such real estate. There was decree for plaintiff. Defendants appeal.
Adolph Kolowich, at the time he originally borrowed the money from the State Bank of America, of which plaintiff is receiver, and for which he recovered judgment, was a director and vice-president of such bank. March 8, 1919, before any suspicion arose as -to the insolvency of the State Bank of America, defendant Adolph Kolowich and wife, Katie Kolowich, acquired the real estate in question from John Jaskulski, which deed was not recorded until January 13, 1922. On February 2, 1924, Adolph Kolowich and Katie Kolowich, his wife, deeded the premises in question to Joanna Kolowich, and she deeded them to Adolph Kolowich. Title of record was vested in Adolph Kolowich from February 7,1924, until July 30,1930, when the deeds of January 16, 1930, were recorded. Defendant Adolph Kolowich made to the State Bank of America a statement of his financial condition as of August 18, 1925, in which he listed total assets of $333,450, stating, however, that real estate owned jointly with his wife made up $232,500 of this property. In the statement of real estate filed with the bank, the property in question was listed at $75,000. In his statement to the bank, defendant Adolph Kolowich agreed to notify the bank promptly of any material change in his financial condition. No further statement seems to have been filed with the bank. His son, George Kolowich, became president of the bank. December 31, 1926, defendant Adolph Kolowich borrowed from the State Bank of America $24,000 upon his promissory note. The capital stock of the bank, at the time this loan was made, was $100,000, and the amount borrowed was greater than defendant Adolph Kolowich was entitled to under the banking law, except upon an approval by a two-thirds vote of the directors of the bank, and then only when defendant furnished collateral or indorsement satisfactory to the directors, “or files' with the bank a sworn statement of assets and liabilities showing a net worth of sufficient amount to be entitled to such credit.” 3 Comp. Laws 1929, § 11922.
The State Bank of America, organized under the State banking law, was under State supervision, and defendant Adolph Kolowich, as a director of that bank, is charged with knowledge of the law under which it was created, and must be presumed to have made the financial statement in question for the purpose of complying with the banking law. Defendant Adolph Kolowich also owned 100 shares of stock in the State Bank of America, which was valued at $12,000. January 16, 1930, Adolph Kolowich and wife, Katie Kolowich, deeded the land in question to Irvin Kolowich, and he redeeded it to Adolph Kolowich and Katie Kolowich, his wife, by deed recorded July 30, 1930, some time after the State Bank of America closed. At the time the deeds attacked in this case were made, defendant Adolph Kolowich owed the bank more than $19,000, and had $10,000 in par amount of the stock of the bank upon which he was liable to an assessment in the sum of $10,000 in case it became insolvent. The bank examiner visited the bank oil January 30, 1930, and shortly thereafter the bank was closed and a receiver appointed. The defendant claims this real estate, which was originally acquired by Adolph Kolowich and wife in 1919, was acquired as a result of the joint efforts of Adolph Kolowich and wife, Katie Kolowich; that the same was deeded, so far as the interest of Katie Kolowich is concerned, by the deeds of 1924 to him to enable him to qualify upon a bond, and with the express agreement and understanding the property was to be deeded back, so as to place the title in defendant Adolph Kolowich and wife, Katie Kolowich, as tenants by the entirety. There is no evidence in the case to indicate what bond defendant Adolph Kolowich signed or was to sign; no proof that if he signed a bond his liability thereon had ceased; nothing to show his wife, Katie Kolowich, was a creditor whom he had a right to prefer; and no proof of any antecedent debt owed by him to her. Plaintiff, under the law of this State, was clearly a creditor (3 Comp. Laws 1929, § 13392); and defendant Adolph Kolowich', at the time of the levy of the execution to aid which this bill is filed, was insolvent. 3 Comp. Laws 1929, § 13393. There is no proof defendant Adolph Kolowich owed his wife, Katie Kolowich, an antecedent debt which constituted the consideration for the deeds attacked. 3 Comp. Laws 1929, § 13394. The conveyances in question must be held to be fraudulent as to plaintiff, who has a right to have them set aside to the extent necessary to satisfy his claim. 3 Comp. Laws 1929, § 13400.
We agree with the conclusions of the trial court, whose decree is affirmed, with costs.
McDonald, C. J., and Clark, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Clark, J.
On October 18, 1927, defendant, a physician and surgeon, removed plaintiff’s tonsils. There was general anesthetic. Because of the bleeding, small pieces of absorbent material, known as sponges, were used. The manner of use, as defendant testified, was to insert a sponge in a hemostat, apply it, and, when saturated,' remove it, repeating the applications until bleeding had stopped sufficiently. Defendant testified the sponges were of gauze, while plaintiff had testimony they were of batting, about one inch in length and of smaller diameter. After the operation, plaintiff had a severe cough, pain in the left chest, peculiar expectoration, and fever. Near January 1, 1928, she consulted another physician, who found lung abscess. Among other efforts to be cured, plaintiff went to a clinic in Philadelphia, where, by successive operations, a hole was burned with a cautery through the pleura and into the lower lobe of the lung for purpose of draining the abscess. On February 2, 1930, during a sort of lung hemorrhage, plaintiff coughed up a batting sponge. In the opération in Philadelphia, gauze was used, and if any batting was used in treatment to swab the wound and was left in the wound, it would normally be discharged by way of the wound, and would not be coughed up. In removing tonsils there is danger of foreign and infected matter getting into air passages of the lungs, especially by gasping and heavy breathing of patient, and a natural result thereof is lung abscess.
On motion, a verdict was directed for defendant, and, from judgment thereon, plaintiff has appealed.
On the question of whether verdict was properly directed against plaintiff, the evidence must be viewed in the light most favorable to her. The record is that plaintiff coughed from the lung or its passages, a batting sponge. How did it get into the lung? There is evidence negativing its getting there by way of the operation in Philadelphia, and a jury would be justified in so finding on this record, and a jury might find the remaining opportunity to be in the operation done by defendant. And this finding might have support in the element of time, for the lung abscess, a natural result of the entry of the foreign matter into the lung, followed defendant’s oper ating. If this be the finding, then it should be noted that it is not a case where losing the sponge was observed and prompt and proper effort made toward correction, but a case where the sponge was lost unobserved and negligently, and it stands on a par, as regards .negligence, with those cases where sponges have been left in incisions. The rule in such cases is stated in 21 R. C. L. p. 388:
“Probably the most common instance of malpractice which is brought into the courts arises out of surgical cases where the physician or attendant has left a sponge in the wound after the incision has been closed. That this is plainly negligence there is no doubt at all, and it matters not at all that many physicians testify that the best of surgeons sometimes leave a sponge or some other foreign substance in the bodies of their patients, for this is testimony merely to the effect that almost everyone is at times negligent. Whether the particular act was negligent is for the jury to decide after considering the circumstances of the case.”
And see note 65 A. L. R. 1023.
The question of negligence was for the jury. As to opinion evidence, see DeGroot v. Winter, 261 Mich. 660.
Reversed, with costs to appellant. New trial granted.
McDonald, C. J., and Potter, Sharpe, North, Pead, Wiest, and Btttzel, JJ., concurred. | [
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Wiest, J.
A highway construction contract was let by the State highway commissioner to defendants Pickett & Goodwin Brothers; they sublet to Arthur Chaney, who sublet a part of his contract to Williams & Splitstone, copartners. Plaintiff and his assignors were laborers employed by Williams & Splitstone, and this suit was brought against Pickett & Groodwin Brothers, original contractors, and the surety on their bond, to recover for labor performed for Williams • & Splitstone. The principal contractors gave two bonds with defendant Michigan Surety Company surety; one called construction bond and the other lien bond, and each for $20,600. Plaintiff plants right to recover upon the following condition of the lien bond:
“Now, therefore, the condition of this obligation is such that if there shall he paid as the same may become due and payable all indebtedness which may arise from said contractor to a subcontractor, or to any person, firm or corporation on account of any labor, material, equipment rental, equipment depreciation or camp or equipment supplies furnished and actually used in the prosecution of said contract, or to any person entitled thereto under the provisions of the ‘workmen’s compensation act,’ so-called, then this obligation to he void, otherwise to remain in full force and virtue.”
Plaintiff had judgment against defendants Pickett & Groodwin Brothers, Michigan Surety Company, and Williams & Splitstone. Review, by appeal, is prosecuted by the principal contractors and the surety on their lien bond.
The question is whether labor employees of a subcontractor of a subcontractor can recover from the principal contractors and their surety.
This was a public work construction contract, and, to insure the payment by the principal contractors of subcontractors and laborers and for materials and certain supplies furnished and used, the law required the bond. 3 Comp. Laws 1929, §§ 13132, 13134. The principal contractors and the surety were aware of the statutory obligation, and they are in no position to object to reading into the bond every essential statutory condition.
In August v. Collins, 260 Mich. 232, we quoted, with approval, tbe following terse statement of tbe well-established rule from Chambers v. Cline (syllabus), 60 W. Va. 588 (55 S. E. 999):
“Where a bond is given under the authority of a statute, that which is not expressed' but should have been incorporated, is included in the bond. ’ ’
Counsel for defendants concede that:
“If the bond had contained the condition specified in 3 Comp. Laws 1929, § 13134, we do not question but what liability for indebtedness arising’ to laborers employed by remote subcontractors would be imposed upon the principal.”
They claim, however, that the bond, as executed, restricted liability to indebtedness arising from the principal contractor. The question is not new. It has been repeatedly passed upon by the courts, and the great weight of authority is to the effect that the provisions of the statute are read into the bond.
In Guaranteed Gravel & Sand Co. v. Ætna Casualty & Surety Co., 174 Minn. 366 (219 N. W. 546), the point was presented that the bond and contract did not embrace all the terms and elements of the statute. The court stated (p. 375):
“But the parties intended to comply with the statute. The contract and bond were made in reference to the statute. The purpose of the parties being established to be the' same as the purpose of the statute, the joint purpose cannot be defeated by a failure to write into the contract and bond one of the provisions of the statute whether such omission is due to the voluntary act of the parties or is attributable to their oversight or inadvertence. Under such circumstances the law imputes such provisions to the contract whether written therein or not. In such a situation the contract is made in reference to the law which is read into the contract and out of which the liability arises. * * * The statute is a part of such contract whether embraced within the written language thereof or not; and its faithful performance means that the requirements of the law must be met. ’ ’
In Baumann v. City of West Allis, 187 Wis. 506, 526 (204 N. W. 907), it was stated:
“It is the contention of appellants that the liability sought to be imposed by the statute does not arise unless the provision required by the statute is actually inserted in the contract. If this construction is correct, then the relief which the legislature attempted to afford subcontractors and materialmen is very much like sounding brass. The remedy which the legislature intended to extend may under such a construction be defeated if the parties to the contract do not insert the prescribed provision, and whether the remedy is available to subcontractors and materialmen depends not upon the law but upon the parties to the contract. If this be the proper construction of the law, then the statute might just as well not have been passed, because such was the law before. Such a statute will be construed in the light of the conditions and circumstances which gave rise to the law and to effectuate the purpose which the legislature sought to accomplish. Having discovered that purpose, the law should be construed to give effect thereto. We entertain no doubt that it was the purpose of the legislature to afford a remedy, in the nature of an action against the surety, to all subcontractors furnishing labor or material entering into the construction of public buildings and public works mentioned in the section of the statute. This purpose may not be defeated by the voluntary act or by the oversight of the parties in failing to insert such a provision in the contract. The law imputes such provision to the contract whether written therein or not.”
In Reiff v. Redfield School Board, 126 Ark. 474, 478 (191 S. W. 16), it was said:
“In the absence of a statute the right to sue on a public contractor’s bond given to the owner of the property for labor and material furnished is dependent entirely on the terms of the bond. Without some provision promising to pay the laborers and materialmen, an action cannot be maintained. * * * On the other hand where a bond is executed pursuant to the statute providing that a contractor’s bond given thereunder for the faithful performance of public work shall inure to the benefit of those furnishing labor and materials, it is well settled that an action may be maintained thereon by one of such persons to recover for services rendered or material supplied in the fulfillment of the contract.”
The statute (3 Comp. Laws 1929, § 13135), giving laborers the right to have recovery on the bond would be meaningless if statutory provisions did not enter the bond, whether so written in or not.
Counsel for defendants cite Eau Claire-St. Louis Lumber Co. v. Banks, 136 Mo. App. 44 (117 S. W. 611), in support of their contention. We cite Fogarty v. Davis, 305 Mo. 288, 293 (264 S. W. 879):
‘ ‘ The rule in this. State is that in construing a statutory bond the provisions of the statutes must be read into it and construed as a part of it. ‘When parties execute a statutory bond they are chargeable with notice of all provisions of the statute relating to their obligation, and those provisions are to be read into the bond as its terms and conditions. * * * These provisions are a part of the bond of which both principal and surety must take notice.’ ”
See, also, Globe Indemnity Co. v. Barnes (Tex. Com. of App.), 288 S. W. 121; Trinity Portland Cement Co. v. Lion Bonding & Surety Co. (Tex. Com. of App.), 229 S. W. 483; Philip Carey Co. v. Maryland Casualty Co., 201 Iowa, 1063 (206 N. W. 808, 47 A. L. R. 495); Multnomah County v. United States Fidelity & Guaranty Co., 92 Ore. 146 (180 Pac. 104).
Defendants contend that the original contractors and their surety are not “liable * # * for an amount in excess of the sum required from their subcontractor under the latter’s contract with his subcontractor who employed the laborers.” The subcontractor Chaney paid out an amount in excess of the sum he had contracted to pay his subcontractors Williams & Splitstone for, the portion of his subcontract let to them. Defendants invoke 3 Comp. Laws 1929, § 13133.
This is not a suit by a subcontractor. If it were it would require an allegation and proof that he had paid to all parties the full sums due them for labor, contracted for by .him.
We had occasion in Davy Fuel & Supply Co. v. S. R. Ratcliffe Plastering Co., 260 Mich. 276, to construe this statute, and we held that it does not—
“restrict the rights of laborers and materialmen when asserted by themselves, but constitutes merely a limitation upon the recovery of the subcontractor, with special reference to his rights acquired by subrogation. This construction is made more plain by the language following; which preserves the integrity of the contract as between the subcontractor and contractor, but forbids infringement of the statutory rights of laborers and materialmen by such contract. ’ ’
We also there held that:
“All unpaid laborers and materialmen of a subcontractor on public buildings are entitled to full benefit of the bond furnished by the principal contractor,'although the subcontract price may be exceeded thereby. ’ ’
We agree with the trial judge that board furnished the laborers by Mrs. Caroline Williams, and not paid for, is due her from the boarders and does not at all figure in reduction of wages due the laborers from Williams & Splitstone, their employers. Mrs. Williams was the wife of George Williams, but the board she furnished was her own venture, and her husband' could not, by book entry, deduct the board from wages of the employees of Williams & Splitstone, and, without payment of the board, release the obligation of the boarders to pay, or the right of Mrs. Williams to look £o the boarders for pay in the absence of an agreement to such effect. We do not find such an agreement. The laborers were not working for a daily wage and board.
Oscar T. Splitstone, father of Joseph Splitstone and one of plaintiff’s assignors, performed labor for Williams & Splitstone and was a surety on the bond given by Williams & Splitstone, as subcontractors, to Arthur Chaney, and it is claimed that when Williams & Splitstone failed in performance of their contract Mr. Chaney took charge, and, by a writing, released Oscar T. Splitstone as surety, and that satisfaction of his claim for labor was part of the consideration. The writing does not so state, the testimony on the question was in sharp dispute, the circuit judge found no such agreed satisfaction, and his finding, having credible support, we think it should stand.
Affirmed, with costs.
McDonald, C. J., and Clark, Potter, Sharpe, North, Fead, and Btjtzel, JJ., concurred. | [
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] |
Sharpe, J.
In this proceeding, the relator, Harry W. Y. Lumley, by quo warranto, tests the right of the respondent, Christian Schulz, to hold the office of county road commissioner of the county of Macomb. This county adopted the county road system in 1912. The provisions of law relating thereto .appear in 1 Comp. Laws 1929, § 3976 et seq. Section 3981 provides for the election of three commissioners. The boards of supervisors may make temporary appointments, but the appointees hold office only until the first day of January in the year in which the next regular session of the legislature is held, their successors having been elected at the general election preceding such session. A special election for that purpose may be called by the board of supervisors. These provisions apply to the first board elected or appointed after the system has been adopted. The election of commissioners in counties containing more than 12 surveyed townships is declared not to be mandatory, and the board of supervisors in any such county may, by a majority vote of its members-elect, appoint such commissioners.
In November, 1922, John R. Taylor was elected a commissioner. He was re-elected in November, 1928, to serve for six years from and after January 1, 1929, but died on December 5th, without qualifying. At the December meeting of the board of supervisors, a resolution, pursuant to a request for applications theretofore made, was adopted on December 28,1928, reading as follows:
“That the names of the applicants, who filed as candidates for the office of county road commissioner, which office is to be filled by this board on account of the vacancy in said office caused by the death of John R. Taylor, who was elected to the said office at the general election held November 6, 1928, for a term of six years commencing January 1,1929, and ending December 31,1934, be read and presented to the board.”
The relator was an applicant for the position, and, on a vote taken therefor, was elected. He duly qualified as such, but, some uncertainty existing as to whether his appointment was only for the three remaining days of December, 1928, or for the term beginning on January 1, 1929, the board of supervisors, on January 10, 1929, adopted a resolution reading as follows:
“Move that we confirm our action taken December 28, 1928, and at this time appoint Harry W. Y. Lumley to fill the vacancy of Macomb county road commissioner created by the death of John R. Taylor for the term of office from January 1, 1929, to December 31, 1934.”
Lumley again qualified for the balance of the six-year term, and thereafter discharged the duties of said office. On May 19, 1932, the board of supervisors, in the exercise of the power which it claims is conferred upon it by section 3981, declared the office to be an appointive one, and, at a meeting held on October 10th of that year, appointed the respond ent as county road commissioner for .the balance of the term ending December 31, 1934. He at once qualified and entered upon the duties of tbe office, and this proceeding, as before stated, is brought to test his right to hold the same.
It is urged by the respondent that the only vacancy existing on December 28th, when the resolution appointing relator was adopted, was for the three days between that date and December 31st, when Taylor’s term to which he had been elected in 1922 would expire. But it was then apparent to the board of supervisors that, by reason of the death of Taylor, a vacancy would exist on January 1, 1929. In our opinion it was not required to reassemble on that day and fill such vacancy. It might anticipate the event and make provision therefor. It was advised by the prosecuting attorney that it had such power, and-his opinion was fortified by a letter from the attorney general so holding. That it intended to fill the vacancy occurring on January 1st is apparent from the resolution adopted on January 10th confirming the action taken on December 28th.
In Mechem on Public Officers, § 133, it is said:
“A prospective appointment to fill an anticipated vacancy in a public office, made by the person or body which, as then constituted, is empowered to fill the vacancy when it arises, is, in the absence of express law forbidding it, a legal appointment, and vests title to the office in the appointee.”-
Supervisors in this State are elected in April of each year and hold office until their successors are elected and qualified.
Was such appointment terminated by the action of the board in declaring the office to be an appointive one and its appointment of respondent for the unexpired portion of the term?
The legislature, acting under the power conferred on it by the Constitution (Art. 8, §§ 7 and 8), provided that counties might adopt a county road system, and made provision for the election or appointment of commissioners.
Section 3983 reads, in part, as follows:
“In case a vacancy shall occur in the office of county road commissioner, the board of supervisors may appoint a commissioner to fill such vacancy, who shall hold office for the unexpired portion of the term in which the vacancy occurs. Each commissioner shall hold his office until his successor is elected and qualified. ’ ’
In Attorney General, ex rel. Owen, v. Joyce, 233 Mich. 619, it was held, that appointments to fill such vacancies should be made under this section, and not under section 5 of Act No. 199, Pub. Acts 1923 (1 Comp. Laws 1929, § 3369). There are provisions in the statute for the appointment of officials to fill vacancies in State, county, city and township offices. Sections 3365, 3369, 3370, 3381, 13530, 16370. Unless specially provided for therein (section 1130), the appointees hold during the unexpired portion of the term, except in the case of judicial officers, who hold only until their successors are elected and qualified.
Section 3983 specifically provides that the person appointed to fill a vacancy in the office of county road commissioner “shall hold office for the unexpired portion of the term in which the vacancy occurs.” Mr. Lumley was appointed to fill such vacancy, and the action of the board in appointing Mr. Schulz was unauthorized.
In view of the conclusion reached, we are not called upon to decide whether section 3981 confers upon the board the power to take unto itself the appointment of commissioners after they have been theretofore selected by election. There may be a question as to whether it was not intended thereby to permit the board, at the time the law became effective, to determine whether the commissioners should be elected or appointed, and whether the determination once made in this respect is not final. This question was not discussed by counsel, and what has been heretofore said may not be regarded as expressive of any opinion upon it.
On the record presented, we find that the respondent is guilty of intruding into and unlawfully holding the office of county road commissioner of the county of Macomb, and that, pursuant to the statute (3 Comp. Laws 1929, § 15289), he be ousted and altogether excluded from such office, and that relator do recover his costs against him.
McDonald, C. J., and Clark, Potter, North, Fead, Wiest, and Btjtzel, JJ., concurred. | [
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] |
Allen, P.J.
Respondent, Michigan Department of Treasury, appeals as of right from a December 8, 1983, judgment of the Michigan Tax Tribunal canceling an income tax assessment against petitioner, Detroit Bank & Trust Company. We affirm.
The issue in this appeal concerns the treatment for income tax purposes of petitioner’s losses from participating in out-of-state partnerships trusts. In 1974, petitioner, a Michigan banking corporation, agreed to become an equity lender in a leveraged-lease transaction involving the National Railroad Passenger Corporation (Amtrak). Amtrak wished to purchase 110 diesel locomotives manufactured by General Motors Corporation. Since no single bank would want to handle this $50 to $60 million deal, Amtrak arranged with ITEL Leasing Corporation for leveraged-lease financing. In this arrangement, petitioner and eight other financial institutions agreed to contribute 27% of the financing, with the remainder to come from secured long-term lenders. Petitioner’s share was 15% to 17% of the 27%.
On January 1 and May 1, 1974, petitioner and the other banks executed two trust agreements involving purchase and leaseback arrangements. Two trusts were established because the locomotives were not available for delivery at the same time. Both trusts were leveraged leases in which the trusts purchased, as owners, the locomotives and leased them to Amtrak. The leases were for 15-year terms, apparently representing the useful lives of the locomotives.
The trusts were under the trusteeship of the First Security Bank of Utah, as arranged by ITEL. The trusts were administered in Utah and had no offices, property, payroll or receipts in Michigan.
Before petitioner entered into the leveraged leases, First Security Bank of Utah obtained a letter ruling from the Internal Revenue Service on behalf of petitioner and the other owner-participants and Amtrak. The ruling provided that for federal tax purposes the participants were viewed as "owners” of the lease equipment. In addition, the trusts created by the owner-participants were considered "partnerships” and not taxable "corporations” for federal income tax purposes. The partners/owners-participants each had to take into account their proportionate shares of the income, gain, loss, deductions and credit of the partnerships. Each owner-participant would be entitled to deductions for accelerated depreciation, interest expense and investment tax credits in determining federal taxable income.
In computing their informational federal partnership income tax returns, the partnership trusts deducted depreciation, interest expenses and other fees from the gross income from renting the locomotives to Amtrak. Both partnership trusts had separate employer identification numbers, which were different from petitioner’s employer identification number. The principal business activity of the partnership trusts, as indicated on the federal informational returns, was "equipment leasing”.
Petitioner’s distributive share of partnership losses was $1,313,865 in 1974, and $960,273 in 1975. For the tax years 1974 and 1975, petitioner deducted these losses in arriving at its taxable income for its Michigan financial institutions tax returns (MI-1120 FIN). On each MI-1120 FIN return, petitioner designated its principal business activity as "finance”.
Since petitioner maintained an office in London, England, as well as its Michigan offices, petitioner followed § 151 of the Michigan Income Tax Act of 1967, MCL 206.151; MSA 7.557(1151), and apportioned 94.635% (1974) and 94.4575% (1975) of its federal taxable income to Michigan, as otherwise adjusted by MCL 206.34; MSA 7.557(134). Petitioner attributed the remainder of its taxable income to its London office. Petitioner did not attribute any of its income to Utah or any other state.
Respondent disagreed with petitioner’s treatment of the partnership losses and contended that these losses should have been allocated entirely to Utah. Respondent conducted an audit of petitioner’s 1974 and 1975 returns. In June 1978, respondent issued a notice of intent to assess tax and interest. In June 1979, respondent afforded petitioner an informal conference with a hearing referee, and on November 26, 1980, respondent issued a decision assessing a tax of $208,591 plus $88,832.79 interest.
Petitioner appealed to the Michigan Tax Tribunal. The tribunal held a hearing on May 24 and 25, 1982. At the hearing petitioner presented two witnesses, Robert Olsen, petitioner’s vice-president and director of corporate taxes, and Donald Mann, assistant director of the bank and trust division of the Michigan Department of Commerce, Financial Institutions Bureau. These witnesses testified that a leveraged-lease transaction, where a Michigan bank acts as a partner in a multi-bank partnership trust to purchase equipment, is an activity in the regular course of the bank’s Michigan banking business.
According to Olsen, petitioner had previously been involved as a single investor in out-of-state leveraged-lease transactions with a grantor trust. In addition, approximately 25% of petitioner’s commercial loans were made to customers outside Michigan. Such loans were often handled by a number of banks joining together in participation-loan agreements. However, the Utah trust agreements represented the first time that petitioner had engaged in an out-of-state leveraged-lease transaction with a number of banks acting as partners in a partnerhsip trust.
Petitioner called as adverse witnesses, Frederick Lynch, an administrator of the single business tax for the Department of Treasury, and Francis Gould, an administrator of respondent’s inheritance tax division and previously an administrator of the financial institutions tax. These witnesses opined that petitioner’s share of the partnership losses should have been attributed to Utah, not Michigan. Both saw the partnership trusts as separate legal entities distinct from petitioner bank.
In Lynch’s view, the trusts were separate "persons” and "taxpayers” under the Michigan Income Tax Act of 1967. The department took the position it did because partnerships were involved; previously, the department had taken no exception to other similar activities undertaken by petitioner bank without the existence of partnerships. Witness Lynch acknowledged that the activities of the Utah trusts were a single trade or business with petitioner’s other banking activities.
The Michigan Tax Tribunal hearing officer found that petitioner, in determining its Michigan taxable income, had properly attributed to Michi gan its distributive share of the partnership trust losses. The hearing officer concluded that although the trusts had been designated "partnerships” by the IRS, in no other particulars had they taken on a partnership entity form of identification. They could not properly be viewed as "persons” or "taxpayers” under the Michigan act. Insofar as the partnership trusts were organized to conduct leveraged-leasing activities in which petitioner was a "partner” or equity lender, the hearing officer found that the trusts were nothing more than an extension of petitioner’s regular trade or business of investing and financing.
In an opinion and judgment issued December 8, 1983, the Tax Tribunal adopted the hearing officer’s findings of fact and conclusions of law. The tribunal ordered the assessment canceled.
On appeal respondent argues that the assessment was valid because the partnership trusts constituted business entities separate and distinct from their individual partners. Respondent maintains that none of the income or loss from the trusts’ business activities was attributable to Michigan, since the trusts were based in Utah and had no property, payroll or sales in Michigan. Respondent relies on Grunewald v Dep’t of Treasury, 104 Mich App 601; 305 NW2d 269 (1981), lv den 412 Mich 875 (1981).
We find respondent’s arguments unpersuasive. To begin with, we note the following well-settled principles governing construction of tax laws:
"In the interpretation of statutes levying taxes, it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the govern ment, and in favor of the citizen.” Hart v Dep’t of Revenue, 333 Mich 248, 252; 52 NW2d 685 (1952), quoting Gould v Gould, 245 US 151, 153; 38 S Ct 53; 62 L Ed 211 (1917).
In reviewing a decision of the Tax Tribunal, not related to valuation or allocation of property tax, this Court is limited to determining whether the decision is authorized by law and whether it is supported by competent, material and substantial evidence on the whole record. Terco, Inc v Dep’t of Treasury, 127 Mich App 220, 223; 339 NW2d 17 (1983); Kalamazoo Aviation History Museum v Kalamazoo, 131 Mich App 709, 713; 346 NW2d 862 (1984) , lv den 419 Mich 936 (1984). After carefully reviewing the briefs and record in the present case, we find that this standard is satisfied.
Under the provisions of the Michigan Income Tax Act of 1967 as they existed during the tax years 1974 and 1975, petitioner was a "financial organization” as defined in MCL 206.10(3); MSA 7.557(110)(3). As such, petitioner could not employ the apportionment provisions of § 115, MCL 206.115; MSA 7.557(1115):
"All business income, other than income from trans portation services, domestic insurers and fínancial organizations, shall be apportioned to this state by multiplying the income by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator of which is 3.” (Emphasis added.)
Since § 115 does not apply to income of a "financial organization”, respondent’s argument that this provision is applicable here is clearly lacking in merit.
The Tax Tribunal found that petitioner properly utilized MCL 206.103 and 206.105; MSA 7.557(1103) and 7.557(1105) — provisions dealing with allocation and apportionment where, as here, petitioner’s income was attributable to activities in Michigan and London — in conjunction with MCL 206.151; MSA 7.557(1151), dealing with taxable income of a financial organization. We agree. Contrary to the testimony of witness Gould, petitioner could not use § 102, MCL 206.102; MSA 7.557(1102), because that section dealt solely with "taxable income of a taxpayer whose income-producing activities are confined solely to this state”. The existence of petitioner’s London office required it to begin with §§ 103 and 105. These sections stated as follows:
"Sec 103. Any taxpayer having income from business activity which is taxable both within and without this state, other than the rendering of purely personal services by an individual, shall allocate and apportion his net income as provided in this act.” MCL 206.103; MSA 7.557(1103).
"Sec 105. For purposes of allocation and apportionment of income from business activity under this act, a taxpayer is taxable in another state if (a) in that state he is subject to a net income tax, a franchise tax measured by net income, a franchise tax for the privilege of doing business or a corporate stock tax, or (b) that state has jurisdiction to subject the taxpayer to a net income tax regardless of whether, in fact, the state does or does not.” MCL 206.105; MSA 7.557(1105).
Section 71(1) of the Income Tax Act of 1967 imposed a 9.7% income tax on petitioner as follows:
"(1) There is levied and imposed upon every financial institution a tax measured by 9.7% of taxable income as defined in section 34 subject to the applicable source and attribution rules contained in this act.” MCL 206.71(1); MSA 7.557(171)(1), as amended by 1972 PA 181.
This section was applicable because petitioner, in addition to being a "financial organization” under MCL 206.10(3), was also a "financial institution” as defined in MCL 206.10(2); MSA 7.557(110)(2). Taxable income of a financial institution was governed by § 34 of the act, which stated in pertinent part:
"(1) 'Taxable income’ in the case of a financial institution means federal taxable income subject to the following adjustments:
"(g) Any adjustments resulting from the allocation and apportionment provisions of chapter 3.” MCL 206.34; MSA 7.557(134), as amended by 1970 PA 140.
The allocation and apportionment provisions of chapter 3, referred to in § 34, included §§ 103 and 105, quoted above, and also § 151, the provision specifically applicable to financial organizations. During the tax years 1974 and 1975 this section provided in pertinent part:
"Sec 151. The taxable income of a financial organization attributable to Michigan sources shall be taken to be:
* * *
"(b) In the case of taxable income of a taxpayer who conducts income-producing activities as a financial organization partially within and partially without this state, that portion of its net income as its gross business in this state is to its gross business everywhere during the period covered by its return, which portion shall be determined as the sum of:
"(i) Fees, commissions or other compensation for financial services rendered within this state;
* * *
"(v) Any other gross income resulting from the operation as a financial organization within this state, divided by the aggregate amount of such items of the taxpayer everywhere.” MCL 206.151; MSA 7.557(1151).
Further, § 195 of the act stated that if the allocation and apportionment provisions did not fairly represent the extent of the taxpayer’s business activity in this state, the commissioner could approve an alternative method or require the use of different factors than those specified in the act. MCL 206.195; MSA 7.557(1195). See Donovan Construction Co v Dep’t of Treasury, 126 Mich App 11; 337 NW2d 297 (1983), lv den 419 Mich 894 (1984). In the present case, the commissioner did not approve any alternate method, and respondent has made no claim that it was acting under § 195. Therefore, the attribution of petitioner’s income must be determined under the other sections of the act.
Section 115 of the act, MCL 206.115, provided the usual method for apportioning business income. However, § 115 excepted the income of a financial organization from its provisions. Section 151, MCL 206.151, then set forth the only rule for attribution of the taxable income of a financial organization. Thus, even though all of a financial organization’s income would be business income, the apportionment formula of § 115 would not control. Sections 115 and 151 are mutually exclusive provisions. The only possible way that a financial organization’s income might be apportionable under § 115 would be if it conducted activity in some capacity other than as a financial organization. This it is not legally permitted to do. Here, the great weight of the evidence clearly indicated that petitioner’s participation in the subject leveraged-lease transaction was undertaken in the normal, regular course of its banking business. Thus, § 151 is the applicable provision to determine the proper attribution of petitioner’s taxable income.
In applying § 151, we note that there was no evidence of any fees, commissions or other compensation for financial services rendered in Utah. Nor was there any evidence of gross income resulting from the petitioner’s operation as a financial organization in Utah. Rather, the bank’s activities of considering, studying and arranging participation in the leveraged-lease transaction took place in Michigan. In addition, the evidence indicated that petitioner had engaged in a number of transactions in which customers and property were located in different states, and that the banking activity in those transactions was considered to have taken place within Michigan. Thus, the business due to petitioner’s London branch was the only business conducted elsewhere than in this state. The apportionment percentages applied in petitioner’s tax returns were proper.
Respondent argues that Grünewald, supra, requires a different result. We do not agree. We find, as did the Tax Tribunal, that Grünewald is clearly distinguishable. In Grünewald two Michigan attorneys purchased shares in a limited partnership organized in Pennsylvania to acquire and operate an apartment project in that state. The project sustained losses, and the taxpayers deducted their distributive shares in determining adjusted gross income on their federal returns. In computing taxable income on their Michigan returns, the taxpayers carried over the federal figures without adjusting for the limited partnership losses. The Department of Treasury claimed that such losses were attributable to Pennsylvania and could not be used to reduce income subject to Michigan tax. The Board of Tax Appeals and the Court of Claims agreed.
On appeal the Court of Appeals affirmed in Grünewald, finding that the limited partnership income was income from business activity taxable both within and without this state. MCL 206.103. The Court noted that Pennsylvania had jurisdiction to tax the limited partnership income earned in that state. MCL 206.105; Shaffer v Carter, 252 US 37; 40 S Ct 221; 64 L Ed 445 (1920). Then, applying § 115 of the act, MCL 206.115, the Grünewald panel found that the property, payroll and sales factors were all zero. Thus, none of the taxpayers’ income from the limited partnership was attributable to Michigan._
Respondent argues that Grünewald is identical to this case and requires us to reverse the Tax Tribunal’s decision. We cannot agree. Grünewald is different from this case in several respects. First, MCL 206.115, the section relied on in Grünewald, applied to the income of individuals, but not to the income of a financial organization. Here, the taxpayer bank was required to use § 151, MCL 206.151. Second, Grünewald involved individual taxpayers who were taxable under a different tax rate and a different section of the act. Third, the federal moratorium of PL 93-100 was not a factor in Grünewald, where the Court specifically pointed out that Pennsylvania could tax the partnership’s income. Finally, in Grünewald, the individual taxpayers were unquestionably engaged in two separate business activities — their law practice in Michigan and their apartment project in Pennsylvania. In the present case, the evidence showed that petitioner’s activities in the leveraged-lease transaction were a part of petitioner’s regular banking business. The existence of the partnership trusts as separate legal entities was not relevant in determining petitioner’s taxable income.
Respondent’s argument that Grünewald applies depends on a view of the partnership trusts as taxpayers. At the hearing, witness Lynch saw the partnership trusts as separate "persons” and "taxpayers”. However, under the Income Tax Act of 1967, partnerships were not taxed as business entites. See MCL 206.16, 206.26; MSA 7.557(116), 7.557(126). Compare § 6(1) of the Single Business Tax Act which expressly includes partnerships in the definition of "person”. MCL 208.6(1); MSA 7.558(6)(1). In the instant case it is the petitioner bank which is the "taxpayer” — not the partnership trusts in which petitioner participated.
Further, in response to respondent’s argument that a taxpayer "is free to organize his affairs as he chooses, nevertheless, once having done so, he must accept the tax consequences of his choice”, we note that petitioner specifically conditioned its participation in the transaction on obtaining a ruling from the IRS indicating that the tax consequences would be favorable. Section 2(3) of the Income Tax Act of 1967 stated, "It is the intention of this act that the income subject to tax be the same as taxable income as defined and applicable to the subject taxpayer in the internal revenue code, except as otherwise provided in this act”. MCL 206.2(3); MSA 7.557(102X3). Thus, petitioner had no reason to expect that respondent would require a different treatment of petitioner’s partnership losses for state tax purposes.
Finally, it appears that the department’s position was at odds with the opinion of the department’s hearing referee who presided at the informal conference on June 20, 1979. The hearing referee concluded his summary of the conference as follows, with reference to a then-pending case which was later settled:
"Although I personally find that the taxpayer’s arguments, both to the matter at hand and the old kent financial matter, are more persuasive and more properly founded on sound doctrines of statutory construction, I must recommend that the above intent [to assess issued June 10, 1978] be finalized without adjustment of the tax because the matter at hand is so factually identical to the old kent financial matter * * *. Taxpayers who present identical facts and raise identical questions of law must be treated uniformly and with consistency.”
Here we find that the Tax Tribunal properly analyzed the provisions of the income tax act, made findings of fact which were supported by the evidence and correctly rejected the arguments made by the respondent. Hence we must affirm the Tax Tribunal’s decision.
Affirmed.
These and other pertinent provisions of the Michigan Income Tax Act of 1967, 1967 PA 281; MCL 206.1 et seq.; MSA 7.557(101) et seq., were repealed by 1975 PA 233 and replaced by the Single Business Tax Act, MCL 208.1 et seq.; MSA 7.558(1) et seq.
MCL 206.10(3); MSA 7.557(110)(3) provided:
" 'Financial organization’ means a bank, national banking association, ■ industrial bank, trust company, .savings and loan association, savings and loan holding company as defined in section 1730a, chapter 13, title 12 of the laws of the United States which pursuant to that section controls a savings and loam subsidiary located in this state, incorporated bank holding company as defined in section 1841, chapter 17, title 12 of the laws of the United States which pursuant to that section controls a bank, national banking association, trust company, or industrial bank subsidiary located in this state, credit union, safety and collateral deposit company, regulated investment company as defined in section 851 and the following sections of the internal revenue code, under whatever authority organized, and any other association, joint stock company or corporation at least 90% of whose assets consist of intangible personal property and at least 90% of whose gross income consists of dividends or interest or other charges resulting from the use of money or credit.”
MCL 206.10(2); MSA 7.557(110)(2) provided:
"(2) 'Financial institution’ means a bank, national banking association, trust company, savings and loan association, savings and loan holding company as defined in section 1730a, chapter 13, title 12 of the laws of the United States which pursuant to that section controls a savings and loan subsidiary located in this state, industrial bank or incorporated bank holding company as defined in section 1841, chapter 17, title 12 of the laws of the United States which pursuant to that section controls a bank, national banking association, trust company, or industrial bank susidiary located in this state.”
In the case at bar, Utah could not have taxed the income from the partnership trusts. During the tax years at issue, a federal law declared a moratorium on imposing any tax measured by income, receipts, or any other "doing business” tax by any state other than that in which a federally insured depository had its principal office, PL 93-100; 87 Stat 347; 12 USC 548. This moratorium precluded Utah from taxing petitioner, a Michigan-domiciled bank.
Comm’r of Internal Revenue v National Alfalfa Dehydrating & Milling Co, 417 US 134, 149; 94 S Ct 2129; 40 L Ed 2d 717 (1974). | [
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] |
Per Curiam.
On September 24, 1982, Governor Milliken appointed William S. Ballenger, III, Racing Commissioner "for a four-year term beginning September 24, 1982 and expiring September 23, 1986”. In 1984, Governor James J. Blanchard requested from the Attorney General an opinion as to when Mr. Ballenger’s term as Racing Commissioner expired. The Attorney General, in Opinion No. 6257 issued on November 21, 1984, concluded that the term of office would expire on December 31,1984.
On August 26, 1985, Governor Blanchard appointed William L. Cahalan Racing Commissioner for a term beginning September 1, 1985, and ending December 31, 1988. On August 27, 1985, Mr. Ballenger requested that the Attorney General file a complaint for quo warranto in this Court to determine who was the rightful occupant of the Office of Racing Commissioner after September 1, 1985. Without waiting for a response from the Attorney General, Mr. Ballenger at the same time filed in this Court a complaint for quo warranto naming as defendants the Governor of the State of Michigan and William L. Cahalan. He also filed a motion for a preliminary injunction, to enjoin Mr. Cahalan from taking office, and a motion for immediate consideration. The Attorney General filed answers in opposition to the complaint and motions. This complaint was docketed as No. 87057.
On September 3, 1985, the Attorney General filed a complaint for quo warranto and a motion for immediate consideration, naming Mr. Ballenger as a party defendant. That complaint was docketed as No. 87190. Mr. Ballenger filed answers in opposition to the complaint and motion and filed a motion to consolidate the two cases. On September 9, 1985, this Court issued an order in Docket No. 87057 which granted immediate consideration, dismissed the complaint for quo warranto for lack of standing and denied the motion for a preliminary injunction. On the same date, the Court issued an order in Docket No. 87190, granting immediate consideration and, by peremptory order, granting the complaint for quo warranto, holding that Mr. Ballenger’s term of office as Racing Commissioner expired on December 31, 1984, and that Mr. Cahalan was entitled to hold and exercise the Office of Racing Commissioner from September 1, 1985, for the remainder of the term expiring December 31, 1988. The motion to consolidate was denied as moot.
On. September 13, 1985, the Supreme Court issued the following order, concerning both docket cases:
"On order of the Court, the motion for immediate consideration is considered, and it is GRANTED. The application for leave to appeal is also considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we VACATE the September 9, 1985, orders of the Court of Appeals and we REMAND these cases to the Court of Appeals. On remand, the Court of Appeals shall, not later than September 23, 1985, issue an opinion or opinions explaining its decisions in these cases. Following issuance of such opinion or opinions, the Court of Appeals shall enter such order or judgments as are appropriate. The motions for injunctive relief and for consolidation are DENIED as moot.
"We do not retain jurisdiction.”
On remand, Mr. Ballenger again moved to consolidate the two cases and requested oral argument. We consider that the schedule imposed by the remand order does not require or provide time for further briefing or oral argument, and the request for oral argument is denied. The motion to consolidate is denied as moot. We will explain our prior decisions in these two cases in order.
The complaint for quo warranto filed by Mr. Ballenger was filed before the Attorney General was given an opportunity to file, or to refuse to file, such a complaint. The statute, MCL 600.4501; MSA 27A.4501, provides:
"The attorney general shall bring an action for quo warranto when the facts clearly warrant the bringing of that action. If the attorney general receives informa tion from a private party and refuses to act, that private party may bring the action upon leave of court.” (Emphasis added.)
MCR 3.306 provides:
"(A) Jurisdiction.
"(1) An action for quo warranto against a person who usurps, intrudes into, or unlawfully holds or exercises a state office, or against a state officer who does or suffers an act that by law works a forfeiture of the office, must be brought in the Court of Appeals.
"(B) Parties.
"(1) Actions by Attorney General. An action for quo warranto is to be brought by the Attorney General when the action is against:
"(a) a person speciñed in subrule (A)(1);
"(b) a person who usurps, intrudes into, or wrongfully holds or exercises an office in a public corporation created by this state’s authority;
"(c) an association, or number of persons, acting as a corporation in Michigan without being legally incorporated;
"(d) a corporation that is in violation of a provision of the act or acts creating, offering, or renewing the corporation;
"(e) a corporation that has violated the provisions of a law under which the corporation forfeits its charter by misuse;
"(f) a corporation that has forfeited its privileges and franchises by nonuse;
"(g) a corporation that has committed or omitted acts that amount to a surrender of its corporate rights, privileges, and franchises, or has exercised a franchise or privilege not conferred on it by law.
"(2) Actions by Prosecutor or Citizen. Other actions for quo warranto may be brought by the prosecuting attorney of the proper county, without leave of court, or by a citizen of the county by special leave of the court.
"(3) Application to Attorney General.
"(a) A person may apply to the Attorney General to have the Attorney General bring an action specified in subrule (B)(1). The Attorney General may require the person to give security to indemnify the state against all costs and expenses of the action. The person making the application, and any other person having the proper interest, may be joined as parties plaintiff.
"(b) If, on proper application and offer of security, the Attorney General refuses to bring the action, the person may apply to the appropriate court for leave to bring the action himself or herself.” (Emphasis added.)
We find that under these provisions the Attorney General is the proper party to commence an action for quo warranto in these circumstances. A private citizen, even one claiming title to the contested office, has no standing until a proper request has been made to the Attorney General and he has refused. Grand Rapids v Harper, 32 Mich App 324, 329; 188 NW2d 668, lv den 385 Mich 761 (1971); Oleksy v Sisters of Mercy of Lansing, Michigan, 74 Mich App 374, 380-381; 253 NW2d 772 (1977), and 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Rule 715, p 237. We believe that the clear intent of this requirement is to give the Attorney General control of the litigation. People ex rel Chapman v Pratt, 14 Mich 332 (1866), and People ex rel Crawford v Molitor, 23 Mich 340 (1871).
The Attorney General, after being requested to do so, has filed a complaint for quo warranto. The complaint for quo warranto filed by Mr. Ballenger is dismissed for lack of standing. MCR 3.306.
We granted peremptory relief of ouster on the Attorney General’s complaint for the following reasons.
MCL 431.33; MSA 18.966(3), prior to December 18, 1980, provided in part:
"The commissioner shall be appointed by and hold office at the pleasure of the governor subject to the advice and consent of the senate.”
That statute was repealed and replaced by MCL 431.63(1); MSA 18.966(33)(1), which provides:
"The racing commissioner shall be appointed by the governor by and with the advice and consent of the senate for a term of 4 years, except that the term of a racing commissioner appointed by the governor under former Act No. 27 of the Public Acts of 1959, with the advice and consent of the senate serving at the effective date of this act shall expire December 31, 1984.”
MCL 201.31; MSA 6.711 provides:
"Whenever a vacancy shall occur in any elective or appointive state office, other than the office of senator or representative in the state legislature or representative or senator in congress or a judge of a court of record, the governor shall fill such vacancy by appointment for the remainder of the unexpired term of such office.”
This case concerns the interplay of these three statutory sections. Frederick S. Van Tiem was appointed Racing Commissioner on October 13, 1980, for a period of time to begin November 17, 1980. He filed his oath of office on October 17, 1980, and the Governor sent a message to the Senate announcing the appointment, made subject to the advice and consent of the Senate. He served as commissioner from November 17, 1980, until he died August 12, 1982.
On September 24, 1982, then Governor Milliken appointed William S. Ballenger, III, Racing Commissioner "for a four-year term beginning September 24, 1982 and expiring September 23, 1986”.
In 1984, Governor James J. Blanchard requested from the Attorney General an opinion as to when Ballenger’s term expired. On November 21, 1984, in Opinion No: 6257, Attorney General Kelley offered the opinion that the term of office expired on December 31, 1984. His opinion reads, in part, as follows:
"The primary rule of statutory construction is to ascertain and give effect to the intent of the Legislature. Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich 184, 187; 253 NW2d 646, 648, reh den 400 Mich 1029 (1977). Where a statute is plain in its terms, a common sense reading of the statute suffices. Karl v Bryant Air Conditioning Co, 416 Mich 558, 567; 331 NW2d 456, 461 (1982). Such a reading of 1980 PA 327, § 3(1), [MCL 431.63(1)] supra, reveals that the racing commissioner shall be appointed by the Governor by and with the consent of the Senate for a four-year term. The authority of the Legislature to fix the term of four years for such statutory office is not open to question. Attorney General, ex rel Dust v Oakman, 126 Mich 717, 720; 86 NW 151, 152 (1901). The Legislature also provided that the term of the racing commissioner appointed by the Governor by and with the advice and consent of the Senate under 1959 PA 27 serving on the effective date of 1980 PA 327, supra, would expire on December 31, 1984.
"Mr. Frederick S. Van Tiem was appointed to the office of racing commissioner on October 13, 1980, for a term of office at the pleasure of the Governor to commence on November 17, 1980. 2 SJ 2710 (1980). Mr. Van Tiem filed his oath of office on October 17, 1980. The message to the Senate containing notice of the appointment stated that the appointment was made subject to the advice and consent of the Senate. The records of the Department of Agriculture, in which the office of racing commissioner was transferred by a Type I transfer by 1965 PA 380, § 184; MCL 16.284; MSA 3.29(184), indicate that Racing Commissioner Van Tiem was paid a state salary for that office commencing November 17, 1980, through August 12, 1982, the date of his death. Thus, Racing Commissioner Van Tiem was serving in that office on December 18, 1980, the effective date of 1980 PA 327, supra.
"Although the full 60-session day period for disapproval by the Senate in the exercise of its advice and consent authority to the Van Tiem appointment pursuant to Const 1963, art 5, § 6 had not expired, Mr. Van Tiem assumed his office on November 17, 1980 and was the lawful occupant of that office on December 18, 1980. OAG, 1965-1966, No 4531, pp 393, 411 (December 27, 1966), construed Const 1963, art 5, § 6 to permit a person appointed to a state office subject to advice and consent of the Senate to enter immediately upon his or her duties of the office upon taking the requisite oath. It follows that Racing Commissioner Van Tiem was serving in that office on December 18, 1980. OAG, 1983-1984, No 6120, p 7 (January 13, 1983).
"By operation of law, the term of Racing Commissioner Van Tiem became a fixed term on December 18, 1980, with an expiration date of December 31, 1984.
"Upon the death of Racing Commissioner Van Tiem, a vacancy was created in such office. The manner of filling vacancies in state elective and appointive offices is prescribed by 1923 PA 199, § 1, MCL 201.31; MSA 6.711, which provides:
" 'Whenever a vacancy shall occur in any elective or appointive state office, other than the office of senator or representative in the state legislature or representative or senator in congress or a judge of a court of record, the governor shall fill such vacancy by appointment for the remainder of the unexpired term of such office.’
"The appointed position of racing commissioner is created by statute. As such, the racing commissioner is a public officer of the state. People v Freedland, 308 Mich 449; 14 NW2d 62 (1944); People v Leve, 309 Mich 557; 16 NW2d 72 (1944). Thus, 1923 PA 199, § 1, supra, applies when a vacancy occurs in the office of racing commissioner. When a vacancy in such office occurs, the Governor, pursuant to legislative mandate, 'shall fill the vacancy by appointment for the remainder of the unexpired term of such office.’
"It is noted that when the word 'shall’ is used in a command to a public official, it excludes the idea of discretion. People v De La Mater, 213 Mich 167, 171; 182 NW 57 (1921); Ladies of the Maccabees v Comm’r of Ins, 235 Mich 459, 465; 209 NW 581 (1926).
"While the appointment of Racing Commissioner William S. Ballenger recited that it was for a term expiring September 23, 1986, the authority of the Governor to fill the vacancy with an unexpired term was limited by 1923 PA 199, § 1, supra, to the appointment for the unexpired term of such office, which was December 31, 1984. As the individual appointed by the Governor to fill the vacancy in the office of racing commissioner resulting from the death of Mr. Van Tiem, Mr. Ballenger may only serve for the remainder of the unexpired term of his predecessor.
"It is my opinion, therefore, that Racing Commissioner William S. Ballenger’s present term as racing commissioner expires December 31, 1984.” (Emphasis in original.)
We agree with the Attorney General’s reasoning. "The fundamental goal of statutory construction is to identify and give effect to the intent of the Legislature. Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich 184; 253 NW2d 646 (1977).” Spears v City of Hazel Park, 131 Mich App 457, 461; 346 NW2d 340 (1984).
"Because legislative intent has primacy, the spirit and purpose of the statute should prevail over its strict letter. Nash v Detroit Automobile Inter-Ins Exchange, 120 Mich App 568, 571; 327 NW2d 521 (1982), lv den 417 Mich 1088 (1983).” Spears v City of Hazel Park, supra, p 462.
"Statutes must be read in their entirety and, if possible, all sections are to be harmonized to create a consistent whole. Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956); Bannan v Saginaw, 120 Mich App 307; 328 NW2d 35 (1982).” Spears v City of Hazel Park, supra, p 463.
If the current statutory sections and the repealed section are considered together with the legislative history of the sections, the intent of the Legislature becomes clear. The intent was to give the Office of Racing Commissioner a regular term of four years, beginning January 1, 1985, and for each four years thereafter. The incumbent Van Tiem was given special treatment in that his term would run to December 31, 1984.
The section, MCL 431.63(1); MSA 18.966(33X1), does not speak to the problem of what would happen if Van Tiem were unable for any reason to complete his term. That question is answered by MCL 201.31; MSA 6.711. Such an appointment is for the remainder of the term. Thus Commissioner Cahalan will serve his term only to December 31, 1988.
We reject the argument of defendant Ballenger that Racing Commissioner Van Tiem was not "serving” in that office on December 18, 1980, the effective date of 1980 PA 327, because the 60-day period within which the Senate could take action to accept or reject his appointment had not yet expired. Commissioner Van Tiem assumed the office on November 17, 1980, and was paid a state salary for performing the duties of the office commencing on that date. We conclude that he was "serving” in the Office of Racing Commissioner on December 18, 1980.
For these reasons we rule that defendant William S. Ballenger is not entitled to the Office of Racing Commissioner subsequent to August 31, 1985, that his term of office expired on December 31, 1984, and that William L. Cahalan is of right entitled to hold and exercise said offfice from and after September 1, 1985, for the term expiring December 31, 1988.
No costs; a public question was presented. | [
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Per Curiam.
Defendant Stanley R. Van Reken appeals from an order granting summary judgment in favor of plaintiff, City of Detroit, GCR 1963, 117.1(3), and ordering foreclosure on certain residential property located within the city. In this action, the city sued for judicial confirmation of an administrative tax sale of property for failure to pay city real estate taxes and public school tax assessments. Defendant did not deny liability but challenged the city’s foreclosure procedure contending that the city is without authority to foreclose for delinquent taxes.
In Detroit v Collateral Liquidation, Inc, 295 Mich 440; 295 NW 218 (1940), our Supreme Court upheld the validity of city charter provisions permitting property tax foreclosures for nonpayment of both city and school taxes. Defendant claims this case is not controlling precedent because the Court did not specifically address the issue of whether delinquent school taxes were within a municipality’s jurisdiction. We disagree. In Collateral Liquidation, the Court stated:
"The record before us is silent as to the provisions, if any, in the charter of the city of Detroit in regard to the collection of school taxes. Recourse to the brief for plaintiff (appellee) indicates that the budget for the board of education of the city of Detroit is prepared in the same manner and at the same time as the city’s budget; that the budget of the board is then submitted to the appropriating body of the city and so much of the same as shall be allowed is 'levied and collected the same as city taxes.’ This is in conformity with section 16 of chapter 8 of part 1 of the general State school code (2 Comp. Laws 1929, § 7281 [Stat. Ann. § 15.2691]).
"The home rule act for cities (1 Comp. Laws 1929, § 2230 [Stat. Ann. § 5.2073]) requires:
" 'Each city charter shall provide: * * *
" '(f) That the subjects of taxation for municipal purposes shall be the same as for State, county and school purposes under the general law; * * *
" '(i) For the levy, collection and return of State, county and school taxes in conformity with the general laws of the State, except that the preparation of the assessment roll, the meeting of the board of review, and the confirmation of the assessment roll may be at such times as shall be provided in the city charter.’
"This leads to the question whether the collection of city taxes by the city of Detroit is in conformity with the general laws of the State. If so, the collection of school taxes, being a part of the same procedure as the collection of city taxes, ipso facto conforms to State law. The fact that both city and school taxes are collected in the same manner answers the question. The legality of the charter provisions under this procedure was decided in the Safety Investment Case, [Detroit v Safety Investment Corp, 288 Mich 511; 285 NW 42 (1939)].” 295 Mich 441-442.
Michigan law permits a city to act as collection agent for the city’s portion of its school district taxes if approved by the city’s governing body. MCL 380.1611; MSA 15.41611. In Detroit, such approval has been granted in § 8-403 of the city charter. _
Defendant would have us read the statute narrowly and find a distinction between the "collection” and "enforcement” of taxes. According to defendant, the city is limited to attempting to collect currently due school taxes and may not enforce delinquent school taxes. We reject this interpretation. The power to tax contemplates the power to make all reasonable provisions for the collection of taxes. Detroit v Safety Investment Corp, 288 Mich 511, 515; 285 NW 42 (1939).
We affirm the trial court’s grant of summary judgment. No costs, a public question._
"1. Except as otherwise provided by this charter or ordinance, the rights, duties, powers, immunities and procedures established by state law shall apply in the collection and enforcement of City property taxes.
"2. City property taxes shall become a debt of the persons liable for them on the date provided by state law and shall become payable, and a lien upon the property, on the 1st day of the City’s fiscal year or such other date as may be provided by ordinance.
"3. Property taxes shall become delinquent if they remain unpaid on September 1. However, when any person shall pay 1/2 of the City taxes on any property on or before the 15th day of August, the remaining 1/2 shall not become delinquent until the 16th day of January. The City may, by ordinance, provide interest and penalties for delinquent City property taxes.
"4. State, county and school taxes shall be collected and returned by the City treasurer in accordance with state law. However, except as otherwise provided by law or ordinance, city property- taxes shall not be returned to the Wayne County treasurer under state law.
"5. Before the end of the City’s fiscal year, the treasurer shall give reasonable notice to all persons who are liable for delinquent real property taxes that, on the last day of the fiscal year, the City’s lien on real property for delinquent City real property taxes shall be deemed 'sold’ to the finance director.
"6. Two years after such a sale of the lien on any real property, the City may bring a civil action to foreclose its lien.
"If the City prevails in the action, the judgment, which may not be entered before 120 days have expired from the filing of the complaint, shall provide that possession of the real property to which the lien attached shall be given to the City, unless the judgment and all costs are paid within 60 days. There shall be no redemption period under the judgment beyond the 60 days. The judgment when final shall be conclusive evidence of the City’s title in fee simple, subject only to unextinguished interests or encumbrances.” | [
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S. T. Finch, J.
The instant appeal involves two separate actions which were consolidated in the circuit court. Plaintiff Eyde Brothers Development Company appeals by leave granted from a circuit court order granting summary judgment, GCR 1963, 117.2(1), in favor of defendant Eaton County Drain Commissioner. The circuit court held that plaintiff had failed to state a claim for a writ of mandamus. Plaintiff also appeals as of right from the circuit court’s order modifying a previously issued temporary restraining order and issuing a permanent injunction. Intervenor Blue Cross and Blue Shield of Michigan (BCBS) cross appeals from the circuit court’s order issuing the permanent injunction.
Plaintiff Eyde Brothers Development Company owns five separate parcels of property located in the Charter Township of Delta in Eaton County. These parcels of property are located on either side of Mt. Hope Highway and their legal description includes the property on which the highway is located, up to the center line of the highway. Plaintiff claims a property interest in all property up to the paved surface of Mt. Hope Highway and all property under the highway. The parties agree that Mt. Hope Highway, a section line road, is a public road by prescriptive use and is statutorily deemed a public highway. MCL 221.20; MSA 9.21. The Eaton County Road Commission has jurisdiction over the maintenance of the highway.
The dispute in the present case concerns BCBS’s right to construct a sanitary sewer and a storm sewer pursuant to utility agreements with defendants Charter Township of Delta and Eaton County. The proposed sewers would be constructed along the center line of Mt. Hope Highway and in the subsurface of the paved portion of the highway.
In 1983, BCBS constructed a multi-million dollar health facility. The Charter Township of Delta entered into a utility agreement with BCBS whereby BCBS would construct a sanitary sewer under or along Mt. Hope Highway. The sewer would service the BCBS health center and become the property of the township. In 1984, the township authorized construction of the sanitary sewer. Additionally, the Eaton County Drain Commissioner entered into an agreement with BCBS for the construction of a storm sewer. The agreement granted BCBS the authority to install a storm sewer system along or under Mt. Hope Highway. On completion, the system would become part of the Eaton County Drain System. The agreement recognized the drain commissioner’s statutory duty to obtain an easement or release of right-of-way from the subsurface owner, see MCL 280.321; MSA 11.1321 and MCL 235.1; MSA 9.431, and delegated this duty to BCBS.
In March and April of 1984, the Eaton County Drain Commissioner authorized construction of the storm sewer and Delta Township authorized construction of the sanitary sewer within a 2,400-foot length of Mt. Hope Highway. After Delta Township and the drain commissioner issued the necessary permits and agreements to construct the sewers, plaintiff commenced two lawsuits in Eaton County Circuit Court. In the first, plaintiff brought suit against the Eaton County Road Commission, and the Eaton County Board of Road Commissioners seeking declaratory and injunctive relief. This suit involved the use of Mt. Hope Highway for the construction of the sanitary sewer. Plaintiff sought a declaration of its rights in the Mt. Hope Highway property and an injunction preventing the road commission from interfering with plaintiffs property absent compliance with MCL 213.21 et seq.; MSA 8.11 et seq. (condemnation of private property).
The second action involved the construction of the storm sewer. Plaintiff brought suit against the Eaton County Drain Commissioner, Eaton County, and the Eaton County Board of Commissioners seeking a writ of mandamus requiring the drain commissioner to fulfill her statutory duty to obtain a release of plaintiffs rights in the Mt. Hope Highway property pursuant to MCL 280.321; MSA 11.1321 and MCL 235.1; MSA 9.431.
On March 28, 1984, plaintiff obtained a temporary restraining order preventing the commencement of construction of the sewers. On April 6, 1984, the trial court granted the drain commissioner’s motion for summary judgment, GCR 1963, 117.2(1). The trial court found that plaintiff had failed to state a claim for mandamus based on Gunn v Delhi Twp, 8 Mich App 278; 154 NW2d 598 (1967).
The trial court ordered an evidentiary hearing on plaintiff’s action for declaratory and injunctive relief. The court directed the parties to file supplemental briefs and appear at an expedited trial on April 11, 1984, to resolve the question of the width of the Mt. Hope Highway and that portion which could be used for the installation of public sewers under MCL 221.20; MSA 9.21. On April 12, 1984, the trial court held that Mt. Hope Highway was a public highway within the exclusive control and jurisdiction of the Eaton County Road Commission. The court found that the highway was 66 feet wide (33 feet on either side from the center line), with the exception of two parcels located directly in front of plaintiff’s rental residence, where the testimony showed that the lawn had been mowed. At those points, the circuit court held that the highway was a total of 47-1/2 feet wide. On April 12, 1984, the court issued a final injunctive order protecting the two front lawn areas of plaintiff’s rental dwellings, but otherwise dismissed plaintiff’s complaint as to any other claim of title or right in Mt. Hope Highway. The court ordered that the previously issued temporary restraining orders be dissolved.
Plaintiff appealed by leave granted from the April 6, 1984, order of the trial court granting summary judgment in favor of the drain commissioner and appealed as of right from the April 12, 1984, order of the trial court. Intervening defendant BCBS cross-appealed the April 12, 1984, order. This Court reinstated the temporary restraining order and granted plaintiff’s application for leave from the April 6, 1984, order.
I
Initially, BCBS argues that, by failing to address the issue of the lawfulness of the proposed sani tary sewer construction, plaintiff has abandoned that issue. Defendant suggests that, at a minimum, this Court must lift that portion of the injunction which prevents defendants from constructing sanitary sewers. We disagree. Plaintiff’s action for a writ of mandamus against the drain commissioner and plaintiff’s action against the Road Commission were consolidated below. The issue raised by plaintiff is whether defendants may construct any sewer system, storm or sanitary, without instituting condemnation proceedings, MCL 213.21 et seq.; MSA 8.11 et seq., or providing plaintiff with just compensation, as provided by the federal and state constitutions. Const 1963, art 10, § 2; US Const, Am V and Am XIV. Plaintiff also argues that if Eaton County does not have title in fee simple to the highway, the drain commissioner must obtain a release of the right-of-way, either by purchase or condemnation. MCL 280.321; MSA 11.1321, MCL 235.1; MSA 9.431.
II
Defendants argue that they have the right to construct sewers under Mt. Hope Highway because the public has acquired title to the highway by prescription or "highway by user”. Under this doctrine, the public acquires title to a road where the road is used and worked on by public authorities for ten consecutive years without interruption and the public’s possession is open, notorious, and exclusive. Rigoni v Michigan Power Co, 131 Mich App 336, 343-344; 345 NW2d 918 (1984). If these elements are established, MCL 221.20; MSA 9.21 operates to raise a rebuttable presumption that the road is four rods wide, or 66 feet. Eager v State Hwy Comm’r, 376 Mich 148, 151-152, 154; 136 NW2d 16 (1965); Rigoni, supra, p 344.
However, neither MCL 221.20; MSA 9.21 nor the cases interpreting it define the scope of a highway easement which is established by prescription or user. Defendants do not want to use the highway itself. Rather, they seek to install sewers under the highway. The question is whether such a subsurface use falls within the scope of a highway easement.
The common law rule is that a highway easement gives the public a right-of-way for travel. The abutting land owner, however, owns the fee to the middle of the highway, subject only to the easement in the public to use the same for highway or street purposes. Hall v Wantz, 336 Mich 112, 117; 57 NW2d 462 (1953); People, ex rel Director of Dep’t of Conservation v LaDuc, 329 Mich 716, 719-720; 46 NW2d 442 (1951); Loud v Brooks, 241 Mich 452, 456; 217 NW 34 (1928). See generally 39 Am Jur 2d, Highways, Streets, and Bridges, §§ 163-164, pp 538-541.
In LaDuc, supra, the defendants contended they had a right to operate a boat livery on state land because the location where the business was carried out was at the end of a public highway. The circuit court held that the defendants and the general public had the right to use the public highway. The Supreme Court stated the general rule that:
" 'By the common law, the fee in the soil remains in the original owner, where a public road is established over it; but the use of the road is in the public. The owner parts with this use only.’ Barclay v Howell’s Lessee, 6 Pet (31 US) 498, 513 (8 L ed 477).” 329 Mich 719.
The Supreme Court concluded that the plaintiff, as abutting owner on both sides of the highway, was owner in fee of the soil over which the highway was established and was entitled to injunctive relief restraining defendants’ activities. This holding was predicated on the Court’s finding that defendants were not merely making use of the highway as the public in general was entitled to, but rather were using it to carry on a private enterprise. LaDuc, supra, p 720. Here, the sewers which defendants seek to install may not be solely to the benefit of the BCBS health center, inasmuch as they will revert to public ownership in the Eaton County Drain Commission after construction. This will save the expense of such construction to the public, in the event such sewers ever become necessary for anyone’s use other than BCBS. When such other use might become necessary is not a part of the record.
Generally, a highway easement includes the right to use the subsurface to facilitate travel, such as maintenance and improvement of the highway itself. Sewers, ditches, or underground installations fall within the easement if essential to make the highway easement effective. 39A CJS, Highways, § 139, pp 863-865. In Minot Sand & Gravel Co v Hjelle, 231 NW2d 716 (ND, 1975), for example, it was held that the state could only use the commercially valuable aggregate underlying a highway for lateral and subjacent support or for construction and repair. Any other use would be beyond the scope of the easement and the owner would be entitled to just compensation. 231 NW2d 724. Other jurisdictions have broadened the scope of a highway easement, many by statute, to include use for any public purpose. Under this analysis, an -underground installation, which is to benefit the public at large and does not impair the use of the highway, falls within the highway easement. See Hale County v Davis, 572 SW2d 63 (Tex Civ App, 1978); Chicago Title & Trust Co v Village of Burr Ridge, 41 Ill App 3d 112; 354 NE2d 61 (1976).
We cannot conclude, however, that the scope of a highway easement should be interpreted so broadly. The abutting owner owns the fee to the middle of the highway and has the right to use the subsurface for any purpose not detrimental to the highway easement. We believe that, under the common law, a highway easement is limited to the right to travel. That is, a subsurface use falls within a highway easement only when essential to make the highway easement effective. Consequently, defendants’ proposed sewers are not within the scope of the Mt. Hope Highway easement unless they are, in fact, beneficial to the highway itself or the public’s right to travel. Once a subsurface use falls within the highway easement, MCL 221.20; MSA 9.21 then defines the width of the easement. Since defendants’ appellate counsel have maintained in this Court that the proposed sewers are to be constructed in the middle of the highway, it is unnecessary to discuss the parties’ arguments concerning the width of the easement under MCL 221.20; MSA 9.21. A reasonable interpretation of the record indicates that construction of the sewers in question will not benefit the highway use or the public’s right to travel, since there is no showing that the highway has any need of additional drainage by storm sewer or otherwise.
Ill
Defendants, however, claim that the general highway law, MCL 220.1 et seq.; MSA 9.1 et seq., gives them the statutory right to construct the sewers. We disagree. Defendants rely on MCL 247.183; MSA 9.263, which provides:
"Sec. 13. Telegraph, telephone, power, and other public utility companies, and cable television companies and municipalities are authorized to enter upon, construct and maintain telegraph, telephone or power lines, pipe lines, wires, cables, poles, conduits, sewers and like structures upon, over, across, or under any public road, bridge, street or public place and across or under any of the waters in this state, with all necessary erections and fixtures therefor. Every such telegraph, telephone, power, and other public utility company, cable television company and municipality, before any of the work of such construction and erection shall be commenced, shall first obtain the consent of the duly constituted authorities of the city, village, or township through or along which said lines and poles are to be constructed and erected.” (Emphasis added.)
Defendants in this case contend they are either a public utility company or a municipality. However, MCL 247.185; MSA 9.265 provides in part:
"Nor shall anything in this section or sections 13 [MCL 247.183; MSA 9.263] and 14 be construed to grant any rights whatsoever to any public utilities or cable television companies whatsoever, nor to impair anywise any existing rights granted in accordance with the constitution or laws of this state, but shall be construed as a regulation of the exercise of all such rights.”
In the present case, the public has acquired rights to the highway by prescription. Under this doctrine, plaintiff still retains title to the soil under the highway. LaDuc, supra. Thus, we cannot conclude that in a case such as this, where the highway is established by prescription or user, that the Legislature intended to give the public rights greater than plaintiffs common-law property rights and constitutional rights not to be deprived of property without due process of law.
Defendants also rely on Gunn, supra, where a panel of this Court held that when the public has acquired title to a public road by common-law dedication, a public utility company or municipality may construct a sewer line under the public road. Gunn is distinguishable from the present case because BCBS is a private corporation and not a public utility or municipality constructing a sewer for the public benefit. However, to the extent that Gunn may be interpreted as construing MCL 221.20; MSA 9.21 as divesting the abutting owner of its subsurface property rights, we decline to follow it. Cf. Eager v State Hwy Comm’r, supra, pp 154-155.
IV
Defendants also rely on the Drain Code of 1956, MCL 280.1 et seq.; MSA 11.1001 et seq., for the statutory authority to construct the sewers. The Drain Code defines "drain” as including sanitary and storm sewers, MCL 280.3; MSA 11.1003, and provides that:
"Drains may be laid within or across the right of way of any highway, provided it shall be necessary for the county drain commissioner to obtain first a permit from the highway authority having jurisdiction. If title in fee simple be not in the highway authority, said commissioner shall also obtain a release of right of way for the purposes of such drain from the owner of the land, as provided in sections 73, 74 and 75 of this act.” MCL 280.321; MSA 11.1321.
Plaintiff argues that since the highway authority (Eaton County) does not have title in fee simple, the drain commissioner must obtain a release of the right-of-way, presumably by purchase or condemnation. Section 74, however, provides in part:
"Whenever a portion of a drain shall be located within any street, highway or public place, then a resolution adopted by a majority vote of the governing body having jurisdiction over such street, highway, or public place granting leave to construct such drain therein, designating the place to be traversed by said drain, shall be a sufficient release of the right of way, and shall be deemed a sufficient conveyance under this act, and said governing body may permit the construction of an open drain if such consent be set forth in such resolution.” MCL 280.74; MSA 11.1074.
Defendants argue that, since a resolution from the county road commission exercising control over a highway is deemed a sufficient conveyance, the Legislature has provided that the ownership and control of public roads is vested in public agencies. We disagree with this interpretation as applied to this fact situation where the public has acquired a highway easement by prescriptive use.
MCL 280.321; MSA 11.1321 recognizes that drains may not be installed upon private property without securing a right-of-way from the property owner. If the highway authority holds title in fee simple or a right-of-way which includes the laying of utility lines, then the appropriate governmental authority could proceed. However, to construe MCL 280.74; MSA 11.1074 to allow a governmental agency to make use of property, to which it has neither title in fee simple nor an appropriate right-of-way, for the laying of a sewer line without purchasing the necessary right-of-way or condemning the property, would be to authorize a taking of private property without just compensation in violation of Const 1963, art 10, § 2, and US Const, Am V and Am XIV. Well-recognized rules of statutory construction prevent us from interpreting legislation to allow a taking of private property without just compensation in violation of § 2 of article 10 of our constitution. Pigorsh v Fahner, 386 Mich 508, 514; 194 NW2d 343 (1972). Consequently, we conclude that the above-cited portion of MCL 280.74; MSA 11.1074 was not intended to apply to a highway acquired by prescription or user.
We also agree with plaintiff that under MCL 280.321; MSA 11.1321 the drain commissioner is required to obtain a release of right-of-way before the sewers may be installed. We do not agree with defendants’ argument that abutting landowners may not claim any property interest in land within or under a public road (see section II, supra) and that, therefore, the Drain Code may be interpreted as only requiring the drain commissioner to obtain a release for the construction of drainage ditches outside the pavement and shoulders of a highway.
V
We conclude that neither the general highway law nor the Drain Code of 1956 authorizes defendants to construct the sewers without first obtaining releases from plaintiff. The proposed sewers are not within the scope of the Mt. Hope Highway easement. The circuit court orders of April 8 and April 12, 1984, are reversed. This case is remanded to the circuit court for:
(1) the issuance of a writ of mandamus against the Drain Commissioner requiring her not to allow the sewer construction to proceed unless and until she obtains the statutorily required releases from plaintiff, or defendants otherwise obtain title to the property or a right-of-way for the laying of the sewers, and
(2) the issuance of a permanent injunction against all defendants prohibiting them from proceeding with the sewer project or otherwise interfering with plaintiff’s property rights in conjunction therewith unless and until the same conditions are satisfied.
The trial court’s temporary restraining order shall continue until further order of the circuit court. We retain no jurisdiction.
Reversed and remanded.
Defendants apparently assume that the road commission’s and drain commissioner’s duties have been properly delegated to BCBS, and it therefore has somehow become a municipality. Defendants cite no authority for such proposition and we question the ability of a municipality to delegate the decision to construct a sewer to a private corporation. However, even if such delegation is proper, BCBS’s authority could not exceed that of the road commission or drain commissioner, Cuming v Prang, 24 Mich 514 (1872), and in any case, the construction remains a private undertaking and not the work of the municipality for benefit of the general public. | [
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] |
M. F. Sapala, J.
In this action, plaintiff sought to recover damages for noneconomic losses from an alleged serious impairment of body function, MCL 500.3135; MSA 24.13135. The circuit judge granted an accelerated judgment for defendants pursuant to GCR 1963,116.1(5), holding that plaintiff’s claim was barred by the applicable statute of limitations, MCL 600.5805(8); MSA 27A.5805(8). Plaintiff appeals as of right.
MCL 600.5805(8); MSA 27A.5805(8) provides:
”The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property.”
MCL 600.5827; MSA 27A.5827 provides:
"Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.”
In Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146, 150-151; 200 NW2d 70 (1972), the Court interpreted MCL 600.5827; MSA 27A.5827 as follows:
"In the case of an action for damages arising out of tortious injury to a person, the cause of action accrues when all of the elements of the cause of action have occurred and can be alleged in a proper complaint.
"Those elements are four in number.
"(1) The existence of a legal duty by defendant toward plaintiff.
"(2) The breach of such duty.
"(3) A proximate causal relationship between the breach of such duty and an injury to the plaintiff.
"(4) The plaintiff must have suffered damages.
"It is quite common in personal injury actions to allege and prove future loss of earning capacity, future medical expenses, future pain and suffering. Indeed all of these elements must be alleged and proved in a single cause of action. Once all of the elements of an action for personal injury, including the element of damage, are present, the claim accrues and the statute of limitations begins to run. Later damages may result, but they give rise to no new cause of action, nor does the statute of limitations begin to run anew as each item of damage is incurred.”
Plaintiff was injured in an automobile accident on August 19, 1977. Plaintiffs alleged serious impairment of body function, epilepsy, first manifested itself on May 3, 1982, when plaintiff had a convulsive seizure. Plaintiff claims that medical evidence will show that his epilepsy developed as a result of post-traumatic scarring on the brain caused by the automobile accident.
Plaintiffs complaint was filed on November 22, 1983. It is clear that plaintiffs claim was barred if his cause of action accrued on August 19, 1977, but not if it accrued on May 3, 1982. The circuit judge explained his reasoning as follows:
"In this case the plaintiff suffered damages immediately upon the occurrence of the accident in August of 1977. Whether such damages were sufficient to institute an action under the no-fault statute is not material. Plaintiff’s action accrued on August 19, 1977, and the fact that further damages arose in May of 1982 resulting from the accident does not toll the statute of limitation.”
We do not agree. Serious impairment of body function is a threshold established by MCL 500.3135; MSA 24.13135 for tort liability caused by ownership, maintenance, or use of a motor vehicle. See Byer v Smith, 419 Mich 541; 357 NW2d 644 (1984). The serious impairment of body function is an essential element of the plaintiffs cause of action, not merely a later additional item of damages. In an action like that presented here, an additional element must be added to the four essential elements specified in Connelly for an action for damages arising out of tortious injury to a person: (5) The plaintiff must have suffered a serious impairment of body function. A cause of action for damages for noneconomic losses from a serious impairment of body function cannot have accrued before the alleged serious impairment occurred.
Moreover, Connelly held that a cause of action does not accrue until all the essential elements of the cause of action have not only occurred but also "can be alleged in a proper complaint”. In Williams v Polgar, 391 Mich 6, 25; 215 NW2d 149 (1974), the Court applied the Connelly standards to an action for negligent misrepresentation by a title abstracter:
"Under these standards, is there a tort cause of action accruing before plaintiff has knowledge, or should have knowledge, of the negligent misrepresentation? We think not.
"General tort law principles in Michigan as discussed supra, support our determination that the statute of limitations does not begin running until the point where plaintiff knows or should have known of this negligent misrepresentation. At that point, the four elements in Connelly, supra, are satisfied: a legal duty exists, such duty is breached, a proximate causal relation is established (if plaintiff can show reliance on the abstract), and the plaintiff then is, or should be, aware of any resultant damages.” (footnotes omitted).
See also Mays v Three Rivers Rubber Corp, 135 Mich App 42, 49; 352 NW2d 339 (1984), Filcek v Utica Building Co, 131 Mich App 396, 399; 345 NW2d 707 (1984), and Bonney v The Upjohn Co, 129 Mich App 18, 23-24; 342 NW2d 551 (1983).
Because plaintiffs cause of action did not accrue until he could allege all of the essential elements of the cause of action in a proper complaint, plaintiffs cause of action did not accrue until he discovered or should have discovered the serious impairment of body function. Plaintiffs cause of action therefore accrued on May 3,1982.
Reversed and remanded for further proceedings consistent with this opinion. We retain no jurisdiction. | [
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Mackenzie, J.
Respondent, Patricia Nye, appeals as of right from an order of the Wayne County Probate Court terminating her parental rights pursuant to MCL 712A.19a(c); MSA 27.3178(598.19a)(c).
Respondent is the mother of Iris Nye, born November 16, 1979, and Michael Nye, born December 29, 1980. Following her birth, Iris remained in respondent’s care for approximately eight months until she was voluntarily taken to the police station. Iris was made a temporary ward of the court on November 7, 1980; shortly thereafter, Michael was born. He was removed from respondent’s care immediately after birth and was made a temporary ward of the court on January 13, 1982. Both children have remained in foster care continously since they were removed from their mother. A permanent custody petition concerning both children was filed by the Department of Social Servies in December of 1982.
Dispositional hearings were held on the custody petition in January and February of 1984. At the conclusion of these hearings, the court ordered that the case remain open for six additional months and that overnight visits be instituted in respondent’s home. The final dispositional hearing was held on August 21, 1984. In its decision dated September 4, 1984, the court found by clear and convincing evidence that respondent was chronically schizophrenic and unable to provide a proper home for the children or to plan realistically for them in the foreseeable future. Accordingly, respondent’s parental rights were terminated on September 4, 1984, and the children were committed to the Michigan Children’s Institute for adoption planning.
MCL 712A.19a(c); MSA 27.3178(598.19a)(c) provides that the parental rights of a parent or guardian whose child is in the temporary custody of the court may be terminated if the court finds that the parent is:
"unable to provide proper care and custody for a period in excess of 2 years because of a mental deficiency or mental illness, without a reasonable expectation that the parent will be able to assume care and custody of the child within a reasonable length of time considering the age of the child”.
Respondent contends on appeal that there was an absence of clear and convincing evidence to show that she was unable to provide proper care for her children as she was never given a legitimate chance to do so.
On appeal, a reviewing court will not reverse an order terminating parental rights unless the trial court’s findings are clearly erroneous. In the Matter of Irving, 134 Mich App 678; 352 NW2d 295 (1984); In the Matter of Kenyatta Brown, 139 Mich App 17, 20-21; 360 NW2d 327 (1984). We find that the trial court’s findings are not clearly erroneous.
It is not disputed that respondent made efforts to regain custody of her children. The record shows that respondent willingly complied with every DSS suggestion and request and, on her own initiative, attended parenting classes. She regularly visited with the children after they were pláced in foster homes, both at her own apartment and the DSS office. She demonstrated her love and concern for Iris and Michael.
Despite respondent’s best-faith efforts and her repeated desire to establish a relationship with her children, the findings of the trial court that respondent is and would be unable to provide proper care and custody are supported by clear and convincing evidence.
Substantial and persuasive testimony by two psychiatrists was introduced in support of termination. Both doctors diagnosed respondent as suffering from chronic, undifferentiated schizophrenia. Dr. Schornstein testified that there is no cure for respondent’s illness. He further testified that respondent was unable to provide continuity of care and that the only way she could properly care for the children would be to have an "on-site surrogate parent”. Dr. Schornstein also testified that no other types of counseling or treatment would benefit respondent.
Dr. Chan, respondent’s treating psychiatrist, testified that respondent would be unable to maintain a "stable, personal or social adjustment” with the children and that the children were at an emotional risk from respondent’s mental condition. He further testified that in 1983 he had hospitalized respondent three times for from three- to four-week intervals for depression, suicidal ideas and auditory hallucinations. Both doctors agreed that respondent’s past history of hospitalization would be repeated in the future. Both doctors also concluded that respondent was and would remain unable to become a functional parent regardless of therapy or counseling. Respondent herself testified that she would require assistance in raising her children:
"Q. Do you believe that you can care for them?
"A. Yes, I do, but with some assistance.
"Q. Now, what kind of assistance do you think you would need?
"A. Possibly a housekeeper or even a close friend or a neighbor or relative, or whatever it would take.
"Q. You feel that you need some assistance in caring for your children?
"A. I’m sure I do.”
Further testimony by two of respondent’s case workers at DSS also supported termination. Both testified that Michael and, at times, Iris, were reluctant to visit with respondent and that anticipation of the visits produced anxiety and negative emotions in the children.
Additionally, the trial court pointed out the uncleanliness of the home, the fact that Iris has speech problems and requires special care, and the effect on the children should respondent attempt suicide again in the future.
In light of the above evidence, we conclude that the trial court’s order terminating respondent’s parental rights was not clearly erroneous.
Affirmed.
M. J. Kelly, P.J., concurred. | [
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Per Curiam.
Defendant General Motors Corporation appeals from a decision of the Workers’ Compensation Appeal Board which awarded compensation to plaintiff Joe Kirby. The case is before this Court upon remand from the Supreme Court for consideration as on leave granted.
Plaintiff’s petition with the Bureau of Workers’ Disability Compensation alleged that he suffered a work-caused aggravated and/or accelerated heart condition, causing a heart attack. A hearing was subsequently held before a hearing officer.
Plaintiff worked as a final repair painter, buffing and spray painting Cadillac limousines at the rate of about 14 cars per 8-hour shift. Some of the buffers he used weighed 20 pounds, while others weighed 40 pounds. After he finished buffing and spraying the cars, Kirby had to push them to the next part of the conveyor belt. The cars weighed an estimated 5000 to 7000 pounds each, and he sometimes had to push them unassisted. Plaintiff indicated that when he pushed a car without assistance, he would get "heated up”.
The evidence at the hearing revealed that during his employment plaintiff started experiencing chest pains and "heating up”. He had pains at work after pushing or buffing cars, and he also had pain at home. Sometimes the pain would last 30 minutes, sometimes as long as 3 or 4 hours. When he experienced these pains at work, he would lie on a bench until he felt better or go to defendant’s first aid station, then go back to work. He said he had to go to first aid two or three times weekly during his last six months or year of employment. He told his foreman that the pain got increasingly worse.
In June of 1977, plaintiff was laid off for a model changeover. During June and July, while home, plaintiff would have pain at no particular times. At the end of July, the pain got so bad that plaintiff went to a hospital for help. It was determined that plaintiff sustained a myocardial infarction on August 1, 1977. Hospital records were admitted at the hearing indicating this and showing plaintiff’s subsequent course of treatment. Plaintiff required bypass surgery, had another heart attack subsequently, and was in and out of the hospital from that time to the time of the hearing. He was unable to return to work. Plaintiff’s foreman confirmed that during the last six or seven months plaintiff worked plaintiff would get "ill” periodically at work and recalled his going to first aid "once or twice”.
The hearing officer considered deposition evidence from two medical experts, William U. Reidt, M. D., for defendant and Hershel E. Mozen, M. D., for plaintiff.
Dr. Reidt opined that plaintiff’s 1977 heart attack was not related to or aggravated by work. He pointed to numerous risk factors, such as plaintiff’s history of diabetes, hypertension, obesity and smoking, as causing his arteriosclerosis and heart attack. He also noted that the heart attack occurred a month after plaintiff’s last day of work. Dr. Reidt did concede on cross-examination that at the time he formed his opinion he was not aware of all of plaintiff’s job tasks, such as pushing limousines off the line. He indicated that it was possible but not necessarily true that plaintiff could have sustained heart damage as a result of pushing cars and using a heavy buffer and experiencing pain lasing 30 minutes or more.
Dr. Mozen noted that plaintiff had a history of diabetes, heart trouble and high blood pressure and that he had smoked for 35 years and drank two pints of alcohol each weekend for the 50 years preceding 1977. He also noted a family history of high blood pressure.
Dr. Mozen also noted, however, that plaintiffs job involved strenuous heavy labor and exposure to atmospheric pollutants. He opined that the work activities and exposures were probable factors in the aggravation or progression of plaintiffs heart problems. Dr. Mozen indicated that prolonged periods of angina pectoris suffered by plaintiff indicated prolonged episodes of diminished blood flow and diminished oxygen to the myocardium and probably resulted in muscle damage to microscopic or subclinical areas of the heart. He explained that angina pectoris is a symptom of the pain experienced in the chest when there is a lack of blood supply and oxygen to the heart muscle caused by the arteriosclerotic condition.
The hearing officer found that plaintiff was disabled due to arteriosclerotic heart disease and that his employment contributed to the development, aggravation and/or progression of his heart problems. Defendant appealed to the WCAB, which also decided, in a 2-1 decision, that plaintiff was entitled to compensation.
In its appeal of the WCAB opinion, defendant argues that the WCAB committed errors of law in awarding plaintiff compensation for a cardiac- based disability. While defendant’s argument is multifaceted, the gist of it is that the WCAB utilized an improper causation standard by determining that plaintiff was entitled to compensation where (1) the heart damage plaintiff sustained was not sustained separately and apart from arteriosclerosis, a noncompensable ordinary disease of life, and (2) speciñc work events were not linked to plaintiff’s heart damage.
Fact-findings made by the WCAB are conclusive in the absence of fraud if there is competent evidence in the record which supports them. Const 1963, art 6, § 28; MCL 418.861; MSA 17.237(861); DeGeer v DeGeer Farm Equipment Co, 391 Mich 96; 214 NW2d 794 (1974). The WCAB found in this case that plaintiff’s stressful employment duties produced his immediate cardiac episodes and were specifically linked to his myocardial infarction by stressful acceleration of the underlying arteriosclerotic heart disease. There is evidence in the record supportive of that finding. Dr. Mozen testified that plaintiff’s work activities created prolonged episodes of diminished blood flow and oxygen to the myocardium which resulted in minute heart muscle damage and accelerated or aggravated the arteriosclerotic process which resulted in a myocardial infarction in August, 1977. Although it can be argued that Member Powell’s findings in dissent may more accurately reflect the testimony at trial (i.e., that the arteriosclerotic process was caused by other risk factors, not work), the WCAB majority’s findings, if supported by competent evidence, are binding.
Although findings of fact by the WCAB are not lightly set aside, this Court will reverse where the WCAB has operated within the wrong legal framework or has employed incorrect legal standards in reaching its decision. Schaefer v Williamston Com munity Schools, 117 Mich App 26; 323 NW2d 577 (1982), lv den 417 Mich 928 (1983).
At the time of plaintiffs injury in 1977, MCL 418.401(c); MSA 17.237(401)(c) provided that "Ordinary diseases of life to which the public is generally exposed outside of the employment shall not be compensable.” Defendant argues that plaintiffs heart condition is such a noncompensable ordinary disease of life, relying on Kostamo v Marquette Iron Mining Co, 405 Mich 105; 274 NW2d 411 (1979), and Miklik v Michigan Special Machine Co, 415 Mich 364; 329 NW2d 713 (1982).
In Miklik, the claimant, who suffered from a variety of health problems, sought and received workers’ compensation on the basis that stress, anxiety and other incidents of employment caused hypertension and aggravated and accelerated preexisting arteriosclerosis and rheumatic heart disease. The Supreme Court reversed the WCAB’s award of benefits, holding:
"In all successful workers’ compensation cases, the claimant must establish by a preponderance of the evidence both a personal injury and a relationship between the injury and the workplace. In heart cases, the first question is whether there is heart damage. The second is whether the heart damage can be linked by sufficient proof to the employment. Only if the first question is answered affirmatively need the second be asked.
"The existence of heart damage is, of course, a matter of medical proof. The factfinder in a workers’ compensation case ordinarily is free to accept the most persuasive medical testimony. However, should the medical testimony advance a theory which conflicts with the law, the factfinder would be precluded from adopting that testimony._
"In assessing heart cases, the factfinder is controlled by the syllogistic analysis of the Kostamo majority: The Legislature has determined that ordinary diseases of life are not compensable. Arteriosclerosis is an ordinary disease of life. Therefore, arteriosclerosis is not compensable.
"Thus, it would be an abuse of a factfinder’s legal discretion to accept medical testimony that a worker with arteriosclerosis and nothing more is a worker with compensable heart damage. Arteriosclerosis is by legal definition an ordinary disease of life; it follows, therefore, that arteriosclerosis is not compensable heart damage.
"However; even though arteriosclerosis alone does not justify compensation, neither does it bar compensation. Heart damage, such as would result from a heart attack, is compensable if linked by sufficient evidence to the workplace. The availability or unavailability of compensation does not hinge on whether the claimant previously was in excellent health or had a health problem. With respect to eligibility for compensation, the employee with arteriosclerosis, even though more susceptible to a heart attack, stands on equal footing with the employee who had no earlier cardiovascular difficulties.
"The WCAB, upon remand, accepted medical testimony that Miklik’s health problems were job-related, and then found them to be compensable. The board failed to follow Kostamo’s direction that in order for there to be compensation there first must be an injury. It is impossible to turn arteriosclerosis into compensable heart damage merely by labeling it so. The board’s opinion, worded in conclusory terms, ignored this premise of Kostamo. Testimony, at most, showed the progressive effects of arteriosclerosis, not separate heart damage.” Miklik, supra, pp 367-369. (Emphasis added.)
We do not interpret the language of Miklik as barring compensation in this case. Arteriosclerosis, with nothing more, is not compensable. The Court specifically held, however, that the presence of arteriosclerosis does not bar recovery if the heart damage is linked by sufficient evidence to the workplace.
The link between damage and workplace must be shown by connecting specific incidents or events at work with the heart damage. General conclusions of stress, anxiety, and exertion over a period of time are not sufficient. The claimant must show a reasonable relationship of cause and effect between work and the heart damage, showing that employment is a cause of the damage. In deciding whether the causal link is established, the fact-finder should consider and evaluate the "discrete factors of employment which are connected to the damage” such as the time gap between the work experience and the "cardiac episodes” and whether there are hot and dusty conditions, mental stress, and repeated returns to work after "cardiac episodes”. Miklik, supra, p 370.
As indicated, arteriosclerosis by itself is not compensable, even if caused by the employment. However, if an employee, including an employee with arteriosclerosis, sustains heart damage linked to employment factors, benefits are available. Hence, when work factors exacerbate an arteriosclerotic condition and heart damage, e.g., from a heart attack, results, compensation should be awarded. Thus, the claimant is not required to demonstrate heart damage "separate and apart from” arteriosclerosis, as defendant maintains, but only that he had heart damage which was caused, in part or in whole, by the employment.
We therefore conclude that where, as here, heart damage is linked to work factors, the WCAB may appropriately order compensation, even though the employee suffered arteriosclerosis and even though the causal link between work and heart damage exists via exacerbation of the arteriosclerotic process. See Young v Kmart Corp, 124 Mich App 789, 794; 333 NW2d 359 (1983), lv den 417 Mich 1100.30 (1983).
We also disagree with defendant’s argument that there were no speciñc work events or incidents linked to plaintiff’s heart damage. The WCAB pointed to the testimony of plaintiff and plaintiff’s foreman which showed that on numerous occasions, due to pain, plaintiff had to stop work to rest or to seek help at defendant’s first aid station. The incidents and events of plaintiff’s employment were not simply "generalized conclusions of stress, anxiety and exertion” which the Miklik Court indicated would be inadequate to show work caused the heart damage.
We conclude that the WCAB’s factual finding that plaintiff’s myocardial infarction resulted, in part, from work factors is supported by evidence in the record and is therefore conclusive. The WCAB did not err, as matter of law, by awarding compensation to plaintiff, who suffered from arteriosclerosis, where it found that specific work events or incidents were causally connected to plaintiff’s heart damage.
Affirmed.
We note that the time period is unlikely since Mr. Kirby was born in 1921.
The statute has since been amended to provide that "heart and cardiovascular conditions * * * shall be compensable if contributed to or aggravated or accelerated by the employment in a significant manner”. 1981 PA 199, effective January 1, 1982. | [
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Per Curiam.
Defendant pled guilty to unlawful use of a motor vehicle, MCL 750.414; MSA 28.646, and was sentenced to four years probation. The probation was conditional on defendant’s serving the first 30 days in the Bay County Jail and, upon his release from jail, residing at Bay Fresh Start, a residential treatment facility. Subsequently, defendant violated his probation by not complying with the Bay Fresh Start program rules. He pled guilty to probation violation and was continued on probation but, as a condition of the probation, was sentenced to a one-year jail term, with credit given for time already served. He now appeals as of right.
Defendant first alleges that he should be given credit against his one-year jail sentence for the time he previously spent at Bay Fresh Start.
The prosecutor’s argument that defendant should receive no credit because he had already been sentenced to probation for the period in question lacks merit. In People v Sturdivant, 412 Mich 92; 312 NW2d 622 (1981), the Court held, as a matter of constitutional law, that time spent in confinement as a condition of probation must be subtracted from the sentence imposed after a probation violation. We find People v Chamberlain, 136 Mich App 642; 358 NW2d 572 (1984), on which the lower court relied, to be distinguishable because Chamberlain rested on the statute governing conditions of probation, MCL 771.3; MSA 28.1133, and had nothing to do with the sentence credit statute, MCL 769.11b; MSA 28.1083(2).
In this case, the fact that the defendant was sentenced to jail, as a condition of his probation, is inconsequential to our analysis. The real issue is the sentence credit statute. As the Court noted in Chamberlain, supra, pp 647-648, the sentence credit statute is to be liberally construed. The same liberal construction is not applicable to the statute governing the conditions of probation.
We find this case to be somewhat analogous to People v Strange, 91 Mich App 596; 283 NW2d 806 (1979), in which the lower court invoked the de layed sentencing statute, MCL 771.1; MSA 28.1131, and directed defendant to a drug rehabilitation center. When defendant left the center early, he was sentenced to from 6 to 15 years in prison with no time given for the 170 days he spent at the center. This Court reversed, citing People v Gravlin, 52 Mich App 467, 469; 217 NW2d 404 (1974), which held that: "A defendant must be given credit against his sentence for time spent in confinement pursuant to governmental authority, regardless of the place of confinement.”
A review of the record shows that Bay Fresh Start is funded by the Department of Corrections. The program is designed to strictly regiment and control the residents’ activities. We feel that such a restrictive environment is tantamount to confinement, and, as such, defendant is entitled to credit for time served at Bay Fresh Start.
Finally, we note that two other panels of this Court have recently reached the same conclusion we do with respect to an almost identical issue. People v Winchell, 143 Mich App 164; 371 NW2d 514 (1985); People v Burton Smith, 143 Mich App 782; 372 NW2d 660 (1985). Winchell also dealt with the Bay Fresh Start program and the Court found it restrictive enough to constitute confinement. Although in both Winchell and Smith the defendants were sentenced to prison after violating their probation, as opposed to being continued on probation but sent to jail, we do not feel the distinction mandates a different result. The defendant here was given credit for time served in the county jail and, since we hold that time spent at Bay Fresh Start is tantamount to confinement, he should also be given sentence credit for that time as well.
We disagree with defendant, however, as to his second allegation of error. He argues that the offense for which he was convicted is a misdemeanor and thus, pursuant to MCL 771.2; MSA 28.1132, he cannot be sentenced to more than two years probation. In the Penal Code, the unlawful use of a motor vehicle is classified as a misdemeanor. However, the Code of Criminal Procedure, MCL 761.1(g); MSA 28.843(g), defines a felony as an offense for which the offender may be imprisoned for more than one year. The statutes governing length of probation and defining a felony are both found in the Code of Criminal Procedure, which was enacted after the Penal Code. The Legislature, when enacting a statute, is presumed to have knowledge of existing statutes. People v Rosecrants, 88 Mich App 667, 670; 278 NW2d 713 (1979).
Also, our Supreme Court has recently decided that an offense is a felony "so long as the statutory maximum is for more than one year”. People v Blyth, 417 Mich 430, 437; 339 NW2d 399 (1983). Since the statutory maximum sentence for unlawful use of a motor vehicle is two years, the offense is a felony and a probation sentence of up to five years may be imposed. See People v Hathcox, 135 Mich App 82, 86; 351 NW2d 903 (1984), and People v Reuther, 107 Mich App 349, 352-353; 309 NW2d 256 (1981).
Defendant’s conviction is affirmed, and the case is remanded for computation of the sentence credit in light of this opinion. | [
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Per Curiam.
This is an appeal as of right from an order of the probate court affirming an administrative order of the Department of Social Services (Department). The administrative order limits the petitioners’ right to obtain payment of medical expenses incurred in the psychological treatment of their adopted son, Christopher Dembek. Although the Department issued its order after a full evidentiary hearing, we have not been provided a transcript of that administrative hearing in the record on appeal. Since the relevant facts are not in dispute as set forth in the administrative order and in the probate court file we find that we can resolve the issues of law presented without benefit of the administrative transcript. We reverse.
In April of 1980, petitioners became the adoptive parents of Christopher Dembek, born May 18, 1971. Christopher had been neglected and abused by his biological mother and had been in the Dembeks’ foster care for approximately 15 months preceding the adoption. While Christopher was in foster care awaiting disposition of the Dembeks’ adoption petition, the Department drafted a report and filed it with the probate court. The Department determined that Christopher needed "regular ongoing therapy” and recommended that his adoptive parents be granted their request for a medical subsidy "to cover any ongoing expenses related to Christopher’s emotional problems”. By order of April 7, 1980, the probate court granted a medical subsidy for "100% of the cost of psychological testing and regular and continuous therapy”.
Christopher’s medical subsidy was authorized under the adoption subsidy act which, prior to October of 1980, provided:
"(1) When a petition has been filed to adopt a child, the court may pay to the adopting parent or parents, without respect to the income of the adopting parent or parents, either or both of the following subsidies:
"(a) For support of the child who was in foster care for not less than 4 months prior to petition for adoption, a subsidy not to exceed the established foster care rate that could have been paid for the same child by the department.
"(b) For medical, surgical, hospital, and related expenses due to a physical, mental, or emotional condition of the child which existed before the adoption, a subsidy, which may be ordered at any time.
"(2) The court shall enter an order:
"(a) Fixing the amount in the event of a support subsidy under subsection (l)(a).
"(b) Identifying the physical, mental, or emotional condition which existed before the adoption that is to be covered by subsidy under subsection (l)(b) without fixing an amount unless known with certainty.
"(c) Requiring that all other available public moneys be used before authorization of a subsidy under subsection (l)(b).
"(d) Containing a finding by the court that placement with the petitioner is the only placement in the best interests of the child or that after taking testimony from the social agency responsible for placing the child for adoption, efforts have been made to place the child and it does not have notice of any other persons who are presently willing and qualified to adopt the child without a subsidy.
"(3) A subsidy shall continue until the child becomes 18 years of age, becomes emancipated, or dies, or until the further order of the court, whichever occurs first. A subsidy shall continue even if the adopting parent or parents leave the state. As a condition for continuation of a subsidy, the court shall require the adopting parent or parents to file a sworn report with the court at least once each year as to the location of the child and other matters relating to the child as the court determines, but not including the financial condition of the parent or parents. On the basis of the report or information received by the court at any time indicating changed conditions, other than financial conditions, a subsidy may be discontinued by order of the court. A subsidy shall not affect the legal status of the child, nor the rights and responsibilities of the adoptive parent or parents as provided by law.” MCL 710.48; MSA 27.3178(555.48).
Soon after the adoption and subsidy orders were entered in this case, the Michigan Legislature repealed MCL 710.48; MSA 27.3178(555.48) by enacting 1980 PA 288, effective October 17, 1980. A new adoption subsidy act was passed under 1980 PA 292, now codified at MCL 400.115f; MSA 16.490(25f). The new act transferred the administration of the adoption subsidy program from the probate court to the Department and introduced several substantive changes. It is not disputed, however, that the subsidy order entered in this case was authorized under the former act.
The probate file reveals that, for several years after the Dembeks’ adoption of Christopher, bills incurred for psychological testing and therapy were paid by the Department pursuant to the subsidy order. In May of 1983, however, Christopher’s condition worsened and he required full-time residential treatment at Arnell Engstrom Children’s Center in the Michigan Department of Medical Health Facility at Traverse City, at the cost of $271 per day. The Department does not challenge the need for residential treatment in this case.
Shortly after Christopher was hospitalized, the Department notified petitioners that it would provide a medical subsidy of only $75 per month under the 1980 subsidy order because it had determined that the balance of Christopher’s medical costs at the Children’s Center would be covered through private and public insurance benefits. Donald Dembek receives private insurance coverage for his family as a benefit of his employment, although the exact terms of coverage for Christopher’s psychological treatment have not been developed below. In any event, petitioners refused to submit Christopher’s bills to their private insurer, relying instead on the 100% subsidy order. The Department thereafter withdrew any medical subsidy on the ground that the petitioners had refused to exhaust all available public and private insurance benefits.
Petitioners obtained an administrative hearing on March 23, 1984, at which they challenged the authority of the Department to require the exhaustion of private insurance benefits. In an order dated May 2, 1984, the hearing officer concluded that both the former and current adoption subsidy acts authorize the Department to require exhaustion of private insurance benefits as a prerequisite to obtaining medical subsidy payments.
Petitioners then appealed to the probate court, which affirmed in a decision rendered August 29, 1984. The probate court concluded that the subsidy order authorized subsidy payments only for "those expenses not covered by medical insurance”. The court noted that for at least 14 years, the Genesee County Probate Court had routinely required bills to be submitted to private insurance carriers prior to authorizing adoption subsidy payments. The court further opined that to do otherwise would be contrary to the interests of Michigan taxpayers. We cannot agree.
Petitioners’ rights and obligations in obtaining reimbursement for Christopher Dembek’s mental health expenses are the judicial creations of the probate court. Since a court speaks only through its orders, Tiedman v Tiedman, 400 Mich 571, 576; 255 NW2d 632 (1977), we must look to the adoption subsidy order of April 7, 1980, to determine whether petitioners are required to exhaust their private insurance benefits prior to obtaining subsidy payments from the Department for the cost of Christopher’s residential treatment at Arnell Engstrom Children’s Center.
The probate court’s subsidy order contains no reference to the use of available private insurance benefits for the mental health treatment of Christopher Dembek. The order initially sets forth, as required by statute, certain findings regarding Christopher’s foster care history, his adoption prospects and his need for "regular ongoing therapy”. The order then grants to petitioners a subsidy:
"for medical, surgical, hospital and related expenses due to a physical, mental or emotional condition of the child which existed before the adoption, namely 100% of the cost of psychological testing and regular and continuous therapy, and for similar expenses hereafter incurred upon presentation to the Court by petitioners of properly documented expenses, the necessity and reasonableness of which have been approved by the Court or the Department of Social Services prior to the incurring of such expenses, said payments to be payable upon proper documentation commencing with the date of placement of the child with the petitioners and to continue thereafter until the child becomes 18 years of age, becomes emancipated or dies, or until the further order of the Court, whichever first occurs.” (Emphasis added).
The only conditions imposed upon petitioners in qualifying for subsidy payments are (1) the filing of an annual report and (2) use of "all other available public moneys”.
Clearly, the adoption subsidy order in this case does not expressly require petitioners to exhaust their insurance benefits as a condition precedent to subsidy payment. Nor can we infer such a condition from our reading of the order in its entirety. To the contrary, we are persuaded that the probate court intended to completely relieve petitioners of the financial burden of providing for Christopher’s mental health care. Had the court otherwise intended, it could have easily included in the order a provision requiring petitioners to exhaust available private insurance benefits similar to the statutory provision which requires petitioners to exhaust all available public benefits.
We further note that the order requires petitioners to notify the court of "any change in conditions on which the subsidy is based” but expressly excludes from the reporting requirement any changes in the financial condition of the adoptive parents. We interpret this as additional evidence of an intent on the part of the probate judge to grant a 100% medical subsidy regardless of the financial resources available to petitioners. There is no evidentiary record of a pattern of practice of the Genesee County Probate Court with regard to medical adoption subsidies under the old subsidy act. Our task in this case is simply to interpret the plain language of the subsidy order issued and we find nothing in that order which requires petitioners to exhaust private insurance benefits prior to obtaining subsidy payments from the Department for expenses incurred in Christopher’s mental health care.
The only significant question remaining is whether the subsidy order, as we construe it, constitutes a proper exercise of the probate court’s authority under the adoption subsidy act then in effect. MCL 710.48; MSA 27.3178(555.48). We find the order valid as entered despite respondent’s arguments to the contrary.
In construing MCL 710.48; MSA 27.3178(555.48), we must ascertain and give effect to the intent of the Legislature in enacting that statute. In re Condemnation of Lands, 133 Mich App 207, 210-211; 349 NW2d 261 (1984). We are bound by its plain and unambiguous language. Cole v DAIIE, 137 Mich App 603, 608; 357 NW2d 898 (1984).
The adoption subsidy act in effect in April of 1980 did not expressly mandate the exhaustion of all available private insurance benefits as a condition for payment of subsidized costs. Nor is there language in the statute expressly permitting the probate court to require exhaustion of private insurance benefits in certain cases. In other words, the statute is completely silent on this subject.
Respondent argues that we should, nevertheless, infer from the overall language and purpose of the statute an intent on the part of the Legislature to require adoptive parents with medical subsidies to first resort to private insurance. Our review of the statute and its brief appellate history leads us to the opposite conclusion. MCL 710.48; MSA 27.3178(555.48) expressly authorizes the probate court to grant a subsidy "without respect to the income of the adopting parent or parents”. Clearly, the adoptive parents’ private financial resources were not to be considered by the probate court in considering whether to grant an adoption subsidy. The Legislature must have known that adoptive parents often have available to them private insurance benefits which would cover, duplicate, or overlap the same expenses covered un der a subsidy order. Yet, the Legislature failed to require the exhaustion of these benefits. We find that this omission was intentional, particularly in light of the provision which requires adoptive parents to exhaust any available public benefits prior to obtaining payment under the subsidy order. MCL 710.48(2)(c); MSA 27.3178(555.48)(2)(c).
We believe, furthermore, that a legislative decision to disregard the adoptive parents’ insurance benefits comports with the purpose of the subsidy act, which is to encourage the adoption of children that are "hard to place”. In the Matter of Klaus, 108 Mich App 394; 310 NW2d 394 (1981). See also In the Matter of Richard P, 403 Mich 173; 267 NW2d 911 (1978). In our view, the alleviation of financial burdens associated with the adoption of children in need of special care is one responsible method of promoting permanent placement of older or handicapped children while simultaneously reducing the taxpayers’ overall burden in providing for their care. In the instant case, for example, the Dembeks have provided Christopher with a permanent home and have relieved the taxpayers of the financial obligation of providing for all but the mental health cost of Christopher’s care. The Legislature’s reluctance to impose a private insurance exhaustion requirement under the subsidy act is understandable. There is always the danger that adoptive parents might refrain from adopting a child with special medical needs for fear that, under their insurance policy, benefits will be depleted in caring for a child’s pre-existing condition, thus leaving them liable and uninsured for any medical costs related to "post-adoption” conditions.
We conclude that the probate court’s subsidy order in this case does not require petitioners to exhaust their private insurance benefits before qualifying for subsidy for the cost of Christopher’s medical care at Arnell Engstrom Children’s Center. We further hold that the order is valid under the adoption subsidy act in effect at the time it was issued. We decline to consider arguments made by the parties with regard to the new adoption subsidy act, MCL 400.115f; MSA 16.490(25f), since that act did not become effective until after the entry of the order in this case. We note only that the new subsidy act provides that "parents receiving a subsidy under [MCL 710.48; MSA 27.3178(555.48)] shall continue to receive a subsidy for which they qualified” under that act. We thus express no opinion regarding the Department’s issuance and administration of subsidy orders pursuant to 1980 PA 292.
Finally, we reject the Department’s arguments regarding the availability of other public funds but for petitioners’ refusal to submit Christopher’s bills to their insurance carrier. The Department’s scenario begins with the undisputed premise that petitioners must exhaust all available public benefits in order to qualify for the subsidy. The Department then points out that: (1) Christopher’s status as a resident of a state facility qualifies him for public benefits administered through the Department of Mental Health, and (2) Christopher qualifies for benefits under Medicaid. However, in order to qualify for benefits through either of these two sources, petitioners must involve their private insurance carrier, which they have consistently refused to do. The Department thus concludes that petitioners have failed to exhaust available public benefits and are disqualified under the terms of the subsidy order and under MCL 710.48; MSA 27.3178(555.48).
In our view, the Department’s position in this regard is nothing more than a side-long attempt to accomplish indirectly what it cannot directly accomplish through the subsidy order or adoption subsidy statute. We decline to impose this bureaucratic interpretation on adoptive parents who, unaware of the plethora of state benefit programs and attendant qualifications, take the difficult step of adopting a hard to place child in reliance on some would-be illusory promise of assistance from the state. The Legislature could not have intended such a result when it enacted the adoption subsidy act.
We realize that our decision does not provide the Department with any formula or rule for administering the adoption subsidy act in light of these other benefit programs. That task is best left to the agencies charged with the responsibility of dispensing benefits. We point out, however, that, with regard to public benefits available through the Department of Mental Health, use of private insurance benefits is not required under the Mental Health Code, MCL 330.1800 et seq.; MSA 14.800(800) et seq. Rather, the amount of money available through private insurance is used to compute the parents’ ability to pay. MCL 330.1814; MSA 24.800(814). Perhaps this "parent-pay” amount would be a standard for measurement of the amount for which the Department is liable under the subsidy order. We further note that the Medicaid program is administered by this Department, MCL 400.105(1); MSA 16.490(15X1), and it thus should not be too difficult for the Department to promulgate rules which give effect to both the Medicaid and adoption subsidy acts.
Reversed and remanded. Jurisdiction is not retained. No costs, a public question being involved. | [
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Per Curiam.
Plaintiff commenced this subrogation action on March 21, 1984, seeking to recover uninsured motorist benefits paid to the estate of its insured following an accident which occurred on August 31, 1979. The trial court granted accelerated judgment in favor of defendants on the ground that the three-year period of limitation had expired.
On August 31, 1979, Deloss Martin Domine, plaintiffs insured, was killed in an automobile accident involving a vehicle driven by defendant Rick E. Isaacson and owned by defendant Janel Stuhr. Stuhr’s vehicle was not covered by any automobile insurance. Ginger A. Domine, personal representative of the estate of the deceased, filed an action in Genesee County Circuit Court on August 27, 1981, against several parties, including defendant Rick E. Isaacson, but not including defendant Janel Stuhr. That lawsuit was ultimately settled and the case was dismissed. Defendant Isaacson apparently paid nothing toward the settlement and the dismissal as to him was without prejudice. Plaintiff alleges that in September, 1983, which was after the settlement, it paid the estate $20,000 in uninsured motorist benefits pursuant to an endorsement in its policy issued to the deceased. Ginger Domine then executed a "Release and Trust Agreement” which plaintiff contends conveyed to it the rights of a successor-in-interest to the estate in the original action. Plaintiff subsequently filed this subrogation action seeking to recover the $20,000 in uninsured motorist benefits.
Personal service was effected upon defendant Stuhr on March 28, 1984, and upon defendant Isaacson on April 27, 1984. Defendant Stuhr failed to answer and a default was entered against her on June 26, 1984. Defendant Stuhr’s motion to set aside the default was granted by order of August 24, 1984.
Following a hearing, the trial court granted defendants’ motion for accelerated judgment based on the running of the period of limitation. Plaintiff appeals as of right from the final order entered September 6,1984.
This case involves a tort action outside the scope of the no-fault insurance act, MCL 500.3101 et seq.; MSA 24.13101 et seq., so that the general three-year statute of limitations applies. MCL 600.5805(8); MSA 27A.5805(8). Plaintiff contends that, as subrogee of the estate, it became the estate’s successor-in-interest in the original action and therefore the period of limitation was tolled during the pendency of that lawsuit. Plaintiff relies on MCL 600.5856; MSA 27A.5856, which states:
"The statutes of limitations are tolled when
"(1) the complaint is filed and a copy of the summons and complaint are served on the defendant, or when
"(2) jurisdiction over the defendant is otherwise acquired, or when,
"(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.”
Plaintiff’s claim of tolling, insofar as it relates to defendant Janel Stuhr, clearly lacks merit. Stuhr was never named as a defendant in the original action and therefore the tolling statute does not apply to her.
We now turn to plaintiff’s tolling claim as it relates to defendant Isaacson. Defendant Isaacson does not contest plaintiff’s assertion that it is a subrogee of the estate to the extent of the uninsured motorist benefits paid, and therefore we do not address that question.
As subrogee, plaintiff stands in the shoes of the subrogor and acquires no greater rights than those possessed by the subrogor. Federal Kemper Ins Co v The Western Ins Co, 97 Mich App 204, 210; 293 NW2d 765 (1980), quoting Northwestern Mutual Ins Co v Jackson Vibrators, 402 F2d 37, 40 (CA 6, 1968). Black’s Law Dictionary (4th ed) defines subrogation as "[t]he substitution of one person in the place of another with reference to a lawful claim, demand or right, * * * so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities”.
The general rule, absent a statute providing otherwise, is that the statutory period of limitation during which a subrogated insurer may bring an action against a third-party tortfeasor begins to run at the time the period would have begun to run on the insured’s action, or that of the insured’s personal representative, against the tortfeasor. See Anno: When does statute of limitations begin to run upon an action by subrogated insurer against third-party tortfeasor, 91 ALR3d 844. In this case the statutory three-year period of limitation commenced to run on the date of the accident, some four years and seven months prior to the date service was effected upon defendant Isaacson.
We, however, agree with plaintiff that, pursuant to RJA § 5856, the running of the period of limitation was tolled from the time service was effected upon defendant Isaacson in the prior suit brought by the estate to the time the suit against Isaacson was dismissed without prejudice. The tolling statute applies to prior lawsuits between the parties which have not been adjudicated on the merits. Buscaino v Rhodes, 385 Mich 474, 482; 189 NW2d 202 (1971); Stewart v Michigan Bell Telephone Co, 39 Mich App 360; 197 NW2d 465 (1971). A dismissal without prejudice is not considered to be an adjudication on the merits, and therefore the tolling statute applies. Stewart, supra.
Where a prior action has ended without an adjudication on the merits, the tolling statute is applicable to a renewed action by a different plaintiff who represents the same interest as the original plaintiff. Affiliated Bank of Middleton v American Ins Co, 77 Mich App 376, 379; 258 NW2d 232 (1977). As subrogee of the estate, plaintiff stands in the same position, with all the same rights, as its subrogor with respect to the action brought against defendant Isaacson. Since RJA § 5856 would clearly have tolled the running of the period of limitation had a subsequent suit been brought by the estate, we hold that the tolling statute does apply to the present case.
Accordingly, we vacate the order of accelerated judgment as to defendant Isaacson and remand the case to the trial court to determine the precise period during which the period of limitation was tolled pursuant to RJA § 5856. If, taking into account the tolled period, the present action was commenced within the three-year period of limitation, plaintiff may proceed with its action against defendant Isaacson. Otherwise, accelerated judgment may properly be entered.
Finally, we hold that the trial court did not abuse its discretion in setting aside the default against defendant Stuhr pursuant to GCR 1963, 520.4, now MCR 2.603(D). See Cramer v Metropolitan Savings Ass’n (Amended Opinion), 136 Mich App 387, 400; 357 NW2d 51 (1984).
Accelerated judgment as to defendant Stuhr is affirmed; accelerated judgment as to defendant Isaacson is vacated and the case is remanded for further proceedings. | [
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R. R. Lamb, J.
Petitioner, Helen Kehrwecker, appeals from the Ottawa County Probate Court’s order denying admission of a will and a codicil of Raymond N. Smith. The probate court found that the presumption of revocation applied to the decedent’s October 20, 1980, will and precluded its admission to probate. The court also held the presumption applicable to the November 22, 1980, codicil, finding that the codicil was wholly dependent on the prior will and had no significance in its own right. We hold that the codicil was a valid testamentary instrument and that the court erred in denying its admission to probate.
The decedent died on April 27, 1981, at the age of 81. He is survived by a son, Donald Smith, and a stepson, Donald Mochel. Petitioner and the decedent were close friends prior to decedent’s death. She visited him frequently and took him to the doctor for treatment of his diabetes. When the decedent was discharged from a stay in the hospital in February, 1980, he moved into petitioner’s home and resided there until his death. A close relationship developed and the two planned to marry on March 17, 1980, but decedent’s illness prevented the marriage. During the course of their relationship, decedent purchased several items for petitioner and also gave her substantial real and personal property.
Decedent executed several wills during the latter years of his life. On March 10, 1980, he executed a new will, revoking a 1977 will, under which he bequeathed his entire estate to petitioner, with the exception of four lots of real estate. On October 20, 1980, a new will was exe cuted under which petitioner was to receive one-half of the residual estate. On November 22, 1980, decedent executed a codicil which made a change in a minor bequest and expressly ratified the remaining provisions contained in the October 20, 1980, will.
A search of the decedent’s personal effects following his death failed to produce the original October 20, 1980, will. A copy of the will was found, along with the original November 22, 1980, codicil. Petitioner’s petition to admit both documents to probate was denied. She appeals as of right.
The probate court correctly recognized the common-law presumption of revocation which states, "that where a will cannot be found at the death of the testator upon proper search being made, and especially where the will is not traced out of the possession of the testator, it is to be presumed that it was destroyed by him animo revocando" In re Taylor’s Estate, 323 Mich 101, 107; 34 NW2d 474 (1948). The burden is upon the proponent of the lost will to show facts or circumstances which overcome the presumption of revocation. In re Estate of Bernard Thomas, 274 Mich 10, 14; 263 NW 891 (1935). The presumption can be met by declarations of the testator, and whether or not the presumption is rebutted is a question of fact. Taylor, supra, p 108.
The probate court found that petitioner failed to overcome the presumption as to the October 20, 1980, will. We find that conclusion erroneous because, effective November 22, 1980, the codicil replaced the October 20, 1980, instrument and became the testator’s only valid will.
The Revised Probate Code defines a "will” to include a "codicil and any testamentary instrument which merely appoints an executor or re- yokes or revises another will”. MCL 700.12; MSA 27.5012. The code also provides for incorporation by reference, in MCL 700.130; MSA 27.5130, which states:
"A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.”
In this case the codicil expressly incorporated by reference the dispositive provisions of the October 20, 1980, will. Under the statute, the codicil is a separate and independent testamentary instrument, the terms of which may be established by reference to the copy of the prior will. Since the original codicil is, by itself, a valid will under the statute, we hold that the probate court erred in applying the presumption of revocation to the original codicil.
We conclude that both documents must be admitted to probate: the codicil as a valid testamentary instrument, and the copy of the prior will for the purpose of proving the dispositive provisions of the codicil.
Reversed and remanded.
Mackenzie, J., concurred. | [
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] |
McDonald, C. J.
The defendant is a surgeon engaged in the practice of his profession in the city of Detroit. He operated on the plaintiff for appendicitis on the 8th day of August, 1928. For many months after the operation the plaintiff was troubled with a soreness and pain in his side. He consulted defendant, who gave him internal medicine, advised him to wear an abdominal belt, and have his tonsils removed. The condition of the plaintiff did not improve. He was unable to do the work 'at which he was employed prior to the operation. He went to Canada on a visit to his parents. While there, his condition having grown worse, he con- suited a physician, who took an X-ray, which revealed the presence of a curved surgical needle imbedded in the region about the appendectomy scar. The needle-was removed on September 4,1929, since which time the plaintiff has suffered no pain or discomfort. The plaintiff returned to the city of Detroit and brought this suit to recover damages for pain and suffering and loss of wages which he claims to have sustained by reason of the defendant’s negligence in failing to remove the needle before he closed the incision which he made in performing the operation. The issue was tried by the court without a jury. At the close of the plaintiff’s proofs, the defendant moved for a directed verdict on the ground that the plaintiff had not made a prima facie case of negligence. The motion was-denied, and defendant rested without submitting any proofs. Judgment was entered in favor of plaintiff for $1,000. Subsequently, on motion of the plaintiff, there was a reassessment of the damages, and an amended judgment entered for $1,250.
The defendant filed a motion to vacate the judgment and for the entry of a judgment in his favor or for a new trial. On the denial of this motion he appealed.
It is urged as cause for appeal that the court erred in refusing to direct a verdict and enter judgment in favor of the defendant, on the ground that there was no evidence of negligence.
It is contended by the defendant that the conclusion of the trial court is based on conjectures and inferences; that there is no evidence as to how the needle got into the plaintiff’s body; that there is no evidence by physicians or surgeons that defendant’s acts were not in accordance with the recognized standards of practice by the profession, and that in malpractice cases such evidence is necessary to establish negligence.
In the majority of snch cases the professional standard of practice is necessarily involved and requires testimony of competent experts. But in this case there is no question of skill or judgment, no question of practice beyond the knowledge of lay7 men. So it was not necessary for the plaintiff to show that it was not good practice among surgeons in performing operations to sew up the incision without removing a needle or other surgical instruments. As said by Mr. Justice Wiest in Ballance v. Dunnington, 241 Mich. 383, 387 (57 A. L. R. 262), even the merest tyro would know this was improper.
The finding of the court as to when and how the needle got into the plaintiff’s body does not rest on conjecture. On the trial, counsel for the defendant made the following concession:
“We can agree on the record that plaintiff’s abdomen had not been operated on prior to the appendectomy by Dr. Asselin, and it is not our claim that the needle entered plaintiff’s body from any other source.”
Apart from this concession, the only possible inference from the proven facts is that the needle was left in the wound by the defendant. In the absence of some explanation by him, sewing up the incision without removing the needle was negligence. The trial court did not err in refusing to direct a verdict for the defendant, or to enter a judgment in his favor, or to grant a new trial on the ground that there was no evidence of negligence.
It is further contended by the defendant that the trial court erred in reassessing the damages and amending the judgment.
In his motion for reassessment of the damages, the plaintiff called the attention of the court to the fact that the damages awarded were less than his pecuniary loss as shown by the evidence, and that no damages had been allowed for pain and suffering. On the hearing an additional amount of $250 was awarded. We think the amount of the judgment is reasonably modest and is in line with the evidence.
We find no error. The judgment is affirmed, with costs to the plaintiff.
Clark, Potter, Sharpe, North, Fead, Wiest, and Btjtxel, JJ., concurred. | [
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W. R. Peterson, J.
Plaintiff is in the business of transmitting signals through coaxial cables and offers a service commonly known as cable television for which it has a nonexclusive franchise to operate within certain areas. Unlike public UHF or VHF television broadcasters, whose transmissions may be received without charge by any member of the public who owns a television set, plaintiff’s programming cannot be received by the owner of a television set without paying for plaintiff’s coaxial cable service and a converter.
Plaintiff provides various program services at various prices to television set owners who wish to subscribe thereto, i.e., "basic” cable service and "premium” cable services. To prevent subscribers to the basic cable service from receiving the premium services for which they have not subscribed and paid, plaintiff scrambles (distorts) the picture transmitted for premium services by a coding process.
This case involves the sale by defendant of a decoding device which enables the owner of a television set who has subscribed only to plaintiff’s basic cable service to receive (steal) the programming of plaintiff’s premium cable services without paying therefor. Plaintiff took offense at such conduct, sought a permanent restraining order against defendant’s sale of the decoder and prevailed.
The parties submitted the matter to the trial judge on an agreed statement of facts, stipulating that the constitutionality of MCL 750.540c; MSA 28.808(3) was the sole issue, i.e., did 1982 PA 287 amending the act violate the legislative intent of the act as originally enacted, and does the act as amended deny defendant due process? It provides as follows, the second paragraph being the pertinent addition of 1982 PA 287:
"Any person who (1) makes, possesses, uses, or knowingly participates in the use by another of any instrument, apparatus, equipment, or device designed or adapted for use (a) to fraudulently avoid the lawful charge for any telecommunications service in violation of this section or (b) to conceal the existence or place of origin or destination of any telecommunications service or to interconnect to 2 telephone lines so as to permit a person calling to 1 telephone line from or through a third telephone line to communicate with a person calling to the other telephone line from or through a fourth telephone line if that interconnection is not authorized by the supplier of the telephone service, or (2) sells, gives, or otherwise transfers to another, or offers or advertises to sell, give, or otherwise transfer any instrument, apparatus, equipment, or device described in clause (1), or instructions or plans for making or assembling the same, is guilty of a misdemeanor, punishable by a fine of not more than $500.00, or imprisonment for not more than 1 year, or both, if the person engages in that conduct under circumstances evidencing an intent to use or employ the instrument, apparatus, equipment, or device, or to allow the same to be used or employed for a purpose described in clause (l)(a) or (l)(b) or knowing or having reason to believe that the same is intended to be so used, or that the plans or instructions are intended to be used for making or assembling that instrument, apparatus, equipment, or device.
"As used in this section and section 540d, 'telecommunications service’ means any service, transmission, emission, or reception of signs, signals, writings, images, and sound or intelligence of any nature by wire, cable television system, closed circuit coaxial cable communications system.”
Defendant characterizes the act as an "eavesdropping statute”, intended by the Legislature in its "original” enactment in 1931 PA 328 solely to protect personal privacy. In support of this argument he cites People v Warner, 401 Mich 186; 258 NW2d 385 (1977), and Navarra v Bache Halsey Stuart Shields, Inc, 510 F Supp 831 (ED Mich, 1981). The 1982 amendment, he says, is not in furtherance of privacy, renders the meaning of the act ambiguous and is unconstitutional.
His efforts to overcome the presumed constitutionality of the act are without merit, beginning with his description of § 540c as originating in 1931. 1931 PA 328 was a codification of the state’s criminal laws, Chapter LXXXII of which dealt with offenses pertaining to telephone and telegraph systems and contained only two sections, §§ 539 and 540. Section 539 originated in 1853 PA 68, was amended by 1901 PA 187, and was further amended by 1966 PA 319. It was a portion thereof which was characterized in Warner and Navarra as being Michigan’s eavesdropping statute.
Section 540 of the 1931 codification originated as 1893 PA 113, the title to which read:
"An act to provide a penalty for malicious injury to or use of telegraph and telephone instruments and the unauthorized reading or copying messages therefrom.”
The content of 1893 PA 113 (later § 540) dealt not only with personal privacy but also with "business, sporting, commercial or other news reports”, barring their reading, copying or unauthorized use. The 1982 amendment to § 540c was thus a continuation of the original intent of 1893 PA 113 and merely insured its application to modern technology. As the trial judge noted in speaking of the amendment, " 'telecommunications’ is germane, broadly speaking to 'telephone and telegraph’, being another form of communication by electrical transmission via wire or cable”.
Neither do we find merit in defendant’s claim that the statute is so vague as to render its application uncertain and to deny due process. It cannot be better stated than it was in the excellent opinion of the trial judge:
"The plain common sense meaning of the prohibition 'to fraudulently avoid the lawful charge for any telecommunications service’ as used in the statute is to prohibit the very conduct engaged in by defendant. Applied to the facts of this case, the phrases challenged mean that it is a misdemeanor to sell a decoder to be used to receive 'premium’ cable service without paying the fee charged by the cable system to receive such service in a viewable condition. Plain meaning indicates that selling a device so another can receive the signal without paying the fee charged to a customer who honestly orders and receives the service is prohibited.”
Affirmed.
Defendant does not here pursue the claim made in the trial court that the act violates the Commerce Clause, US Const, art I, § 8. He attempts to argue here that the statute creates a monopoly and results in an unfair restraint of trade in violation of his constitutional right to engage in trade. That question was not raised below and is not properly before us. It is, in any event, a frivolous claim, see Meridian Twp v Roberts, 114 Mich App 803; 319 NW2d 678 (1982), White v Ann Arbor, 406 Mich 554; 281 NW2d 283 (1979), and cases arising under the Federal Communications Act, 47 USC 605, e.g., Ciminelli v Cablevision, 583 F Supp 144 (ED NY, 1984), and National Subscription Television v S & H TV, 644 F2d 820 (CA 9, 1981).
Const 1963, art 4, § 24 provides:
"No law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title.”
People v Yeo, 103 Mich App 418; 302 NW2d 883 (1981).
The codes are viewed under Const 1963, art 4, § 24, by their codifying purpose and not by the multiple objects of the various sections, see Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 463; 208 NW2d 469 (1973):
"Emphasis is given to the fact that the subject matter constitutes a code and that inherently the scope of a code must be broad enough to encompass the various facets necessary to the drafting of a unified law. If we fail to permit such a design codes may not be enacted in Michigan so long as the 'one object’ limitation is present in the constitution.” | [
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D. E. Holbrook, Jr., J.
Plaintiffs, Booth Newspapers, Inc., Midland Publishing Company and the Michigan Press Association, seek an order of superintending control directing the Midland Circuit Court to grant their demand for intervention in a pending case between Dow Chemical Company and Consumers Power Company which will thereby permit plaintiffs full access to pretrial discovery information in the Dow-Consumers case.
The instant action arises out of litigation concerning the construction of the Midland Nuclear Plant. Dow, upset with the slow pace of construction, announced it was withdrawing from participation in the project and brought suit in Midland Circuit Court against Consumers for reimbursement of monies previously advanced. Consumers counterclaimed, alleging wrongful renunciation of the contract. That case is still pending. Dow Chem ical Co v Consumers Power Co, Midland County Circuit Court No. 83-002232-CK-D.
The general contractor, Bechtel Power Corporation, has released many documents to the parties, relying on protective orders of the trial court to keep such information confidential. Bechtel is not a party to the main suit but, in its participation in the discovery, has delivered about a half million pages of information to Dow and Consumers.
Following the trial court’s refual of plaintiffs’ access to court-protected information, plaintiffs filed a complaint for superintending control. This Court then issued a show cause order on September 21, 1984, directing Dow, Consumers and Bechtel to show cause why the relief requested in the complaint, i.e. an order directing the Midland Circuit Court to vacate the protective orders and to allow plaintiffs to intervene, should not be granted. Pursuant to such order, the instant case is presently before us for plenary consideration.
The issues before us for determination are: (1) whether plaintiffs have the right, either constitutionally or via common law, to access to the pretrial discovery information that is now subjected to protective orders; (2) whether the trial court abused its discretion in the issuance of the protective orders; (3) whether the trial court erred in its denial of intervention by the plaintiffs; and (4) whether superintending control is the appropriate remedy for plaintiffs to seek in this cause.
Our review of the record reveals that the documents plaintiffs seek to have released are in two different locations. Some of the documents are on file with the court, while other documents have merely been exchanged between the parties and have not yet been filed with the court and may never become a part of the court record. We find it necessary to separately discuss and analyze the propriety of the protective orders as they relate to the documents which have not been filed with the court and the propriety of the protective orders as they relate to documents which have been filed with the court.
I. Documents not a part of the court file.
We hold that plaintiffs lack standing as to these documents and dismiss the complaint for superintending control to the extent that it relates to such documents. Plaintiffs’ claim of standing is predicated on its First Amendment right to gather information, and they allege that were it not for the protective orders, the parties would be free to disseminate the information. While this may be sufficient to constitute an injury in fact, we fail to find that plaintiffs’ alleged injury can be fairly traced to the action of the court or that it would likely be redressed by a favorable decision. Oklahoma Hospital Ass’n v Oklahoma Publishing Co, 748 F 2d 1421 (CA 10, 1984).
Even if we were to lift the protective orders, it does not follow that plaintiffs can compel defendants to disseminate documents in their possession. The real parties in interest have not appealed from the imposition of the protective orders. In fact, such orders were imposed only after the real parties had agreed and stipulated to the terms and conditions of production of documents.
II. Documents on file with the court.
It is clear that the press does not have any special access to information not available to the public generally. Zemel v Rusk, 381 US 1, 16-17; 85 S Ct 1271; 14 L Ed 2d 179 (1965), and Branzburg v Hayes, 408 US 665, 684; 92 S Ct 2646; 33 L Ed 2d 626 (1972). Nor does the press have a greater right to gather information for the sake of news than does the general public. Pell v Procurer, 417 US 817, 833-835; 94 S Ct 2800; 41 L Ed 2d 495 (1974).
Plaintiffs cite Seattle Times Co v Rhinehart, — US —; 104 S Ct 2199; 81 L Ed 2d 17 (1984), for the proposition that a trial court may restrict public access to pretrial discovery materials not yet admitted into evidence only upon a showing of "good cause”. See, GCR 1963, 306.2. Plaintiffs have interpreted Rhinehart too broadly. The issue in Rhine-hart was "whether a litigant’s freedom comprehends the right to disseminate information that he has obtained pursuant to a court order that both granted him access to that information and placed restraints on the way in which the information might be used”. 81 L Ed 2d 26 (emphasis supplied). In this case, we are concerned with the rights of the public, not those of the parties to the underlying litigation.
"Moreover, pretrial depositions and interrogatories are not public components of a civil trial. * * * Much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.” Rhinehart, 81 L Ed 2d 27.
Chief Justice Burger, concurring in Gannett Co v DePasqure, 443 US 368, 396-397; 99 S Ct 2898; 61 L Ed 2d 608 (1979), said:
"[D]uring the last 40 years in which the pretrial processes have been enormously expanded, it has never occurred to anyone, so far as I am aware, that a pretrial deposition or pretrial interrogatories were other than wholly private to the litigants. A pretrial deposition does not become a part of a 'trial’ until and unless the contents of the deposition are offered in evidence. * * *
"For me, the essence of all of this is that by definition 'pretrial proceedings’ are exactly that.” (Emphases supplied.) Quoted with approval in Houston Chronicle Publishing Co v Hardy, 678 SW2d 495 (Tex App, 1984), cert den — US —; 105 S Ct 1754; 84 L Ed 2d 817 (1985).
Additionally, "to the extent that courthouse records could serve as a source of public information, access to that source customarily is subject to the control of the trial court”. Rhinehart, 81 L Ed 2d 27, fn 19.
In Nixon v Warner Communications, Inc, 435 US 589; 98 S Ct 1306; 55 L Ed 2d 570 (1978), the Court held that neither the First Amendment nor the Sixth Amendment guaranty of a public trial required public access to tapes, even after the tapes were admitted as evidence at trial. See also, In re Midland Publishing Co, Inc, 113 Mich App 55; 317 NW2d 284 (1982), aff'd 420 Mich 148; 362 NW2d 580 (1984). In Nixon, the Court noted there had been no restriction on "any information in the public domain”, since the press was permitted to listen to and was furnished transcripts of the tapes. 435 US 609. There was, therefore, "no question of a truncated flow of information to the public”. Id. The Court emphatically rejected the claim that the First Amendment guarantees the right to copy and publish exhibits and other materials displayed in open court.
Michigan has long held that the public is not entitled to access of courthouse records until after the trial has at least commenced in open court. Park v Detroit Free Press Co, 72 Mich 560; 40 NW 731 (1888); Schmedding v Wayne County Clerk, 85 Mich 1; 48 NW 201 (1891). The protective order issued in this case does not extend to matters which will be admitted at trial, thus plaintiffs are not denied their right to be present at trial or to report on all evidence admitted at that time. Estes v Texas, 381 US 532, 541-542; 85 S Ct 1628; 14 L Ed 2d 543 (1965); and Cox Broadcasting Corp v Cohen, 420 US 469, 492-493; 95 S Ct 1029; 43 L Ed 2d 328 (1975). At the conclusion of the proceedings, the records become public property and there is no longer any reason to withhold the information unless good cause is shown.
Under MCR 2.302(H) discovery materials are only required to be filed if they are to be used at trial or in connection with a motion or as an exhibit. Only those discovery materials will be considered a part of the record on appeal. Accordingly, even after the proceedings are concluded, any materials that contain a trade secret or other confidential research, MCR 2.302(C)(8), or taken only for discovery purposes and agreed upon not to be admitted into open court, MCR 2.302 (C)(7), may still not be available for public perusal.
While the litigation is pending, the media does not have an absolute right of access to the court file. Such pretrial publicity may result in a litigant’s being unable to have a fair trial, Houston Chronicle, supra. Additionally, while a matter is before the court, whether it be the circuit court or an appellate court, the record will often be in the direct custody of a judge rather than on file in the clerk’s office. To require the judge who has immediate control of the record to respond to demands for copies or inspection of the materials in the record could pose a substantial burden on the decisional process. As the Michigan Supreme Court indicated in Schmedding, supra, p 4, public access to the records of pending litigation could be denied until a "final determination” of the action was reached. We adopt this rule and extend it until the conclusion of proceedings on appeal, and the return of the record to the circuit court clerk. MCR 7.210(1).
Accordingly, during the pendency of the action the plaintiffs as well as the general public have access to the court file if it is in the possession of the court clerk, subject to the limitations discussed herein relating to protective orders. Plaintiffs have no right to any documents which were not filed with the court but were merely exchanged between the parties.
By this decision we do not place any restraints on the media to publish any information or document they acquire from any source. We have simply defined the extent to which the media and the general public have a right to obtain documents which have been either filed with the court or exchanged between the parties during the pendency of a case.
Further, we find that the trial court did not abuse its discretion in denying plaintiffs’ intervention. GCR 1963, 309.1(3) requires an applicant for intervention to be bound by a judgment in the cause. We fail to see how plaintiffs will be affected in any way by the outcome of the contract suit between defendants.
Therefore, the complaint for superintending control is dismissed. Costs to defendants.
This point was acknowledged by counsel for the media plaintiffs at oral argument.
As to the Sixth Amendment question the Court stated:
"The requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed”. 435 US 610. | [
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Per Curiam.
Defendant was convicted upon his plea of guilty of murder in the second degree, MCL 750.317; MSA 28.549, and felony-firearm, MCL 750.227b; MSA 28.424(2). Pursuant to a sentencing agreement, he was sentenced to from 7-1/2 to 15 years’ imprisonment on the murder charge, plus 2 years’ imprisonment on the felony-firearm charge. One count of murder in the first-degree and a second count of assault with intent to murder were dismissed in exchange for defendant’s plea. Defendant appeals as of right.
Defendant first argues that resentencing is required because the trial court failed to articulate on the record its reasons for imposing the sentence recommended by the prosecutor. We find this argument to be without merit.
In People v Coles, 417 Mich 523, 549; 339 NW2d 440 (1983), the Supreme Court held that, in order to facilitate appellate review of the sentencing process, the trial court must articulate on the record its reasons for imposing the sentence given. In the case at bar, we find the record sufficient to afford appellate review.
Initially we note that defendant received a substantial bargain in exchange for his guilty pleas. As originally charged, defendant faced mandatory life imprisonment under the murder count, MCL 750.316; MSA 28.548, and a possible life sentence under the count of assault with intent to murder, MCI 750.83; MSA 28.278. Pursuant to the plea bargain arranged by defendant’s retained counsel, defendant received a term of imprisonment of from 7-1/2 to 15 years for second-degree murder, plus the mandatory 2-year term of imprisonment for felony-firearm.
The record reveals that the trial court reviewed the presentence report and indicated that based upon the information in the presentence report he would impose the sentence recommended by the prosecutor. We find no evidence of prejudice to the defendant. Therefore, we find a remand for resentencing under Coles unnecessary.
Defendant notes that the record is silent on the utilization of the sentencing guidelines, the use of which has been made mandatory by Michigan Supreme Court Administrative Order No. 1984-1, 418 Mich lxxx (1984). Defendant does not set this forth as ground for reversal, however, and understandably so: the sentence imposed is considerably less than the recommended guideline minimum and defendant can hardly claim prejudice.
No remand for resentencing is warranted under the circumstances in this case. See People v Good, 141 Mich App 351; 367 NW2d 863 (1985).
Defendant next argues that he was denied his constitutional right to a speedy trial because 13 months elapsed between the time of his arrest and his conviction.
Currently, there is a split in this Court concerning whether a plea of guilty waives this claim. Following federal authority this Court in People v Parshay, 104 Mich App 411, 414; 304 NW2d 593 (1981), lv den 411 Mich 1081 (1981), held that a defendant’s plea of guilty waives for purposes of appeal all nonjurisdictional defects in the court below including a claim of denial of the right to a speedy trial. In People v Davis, 123 Mich App 553, 558-559; 332 NW2d 606 (1983), another panel of this Court reasoned that a speedy trial claim is a complete and therefore jurisdictional defense which is not waived by a guilty plea.
We are inclined to follow the Parshay Court but find that under either view, the defendant’s argument is without merit.
In People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972), the Michigan Supreme Court adopted the four factor test set forth in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972), for evaluating a claim of deprivation of the right to a speedy trial. The factors to be considered are: (1) length of delay; (2) reason for delay; (3) whether the defendant asserted his right to a speedy trial below; and (4) prejudice to the defendant.
According to the record, defendant was arraigned on April 12, 1983, and pled guilty on May 15,1984. All pretrial motions were completed as of September 14, 1983. On October 19, 1983, a final conference was held wherein May 14, 1984, was established as the trial date. On May 10, 1984, trial was delayed until May 15, 1984, because the court was in trial on another matter. Thus, the record establishes an approximate 13-month delay between the time defendant was arrested and his guilty plea.
Concerning the length of delay factor, this Court has held that a delay between arrest and trial of over 18 months is presumptively prejudicial. People v Bennett, 84 Mich App 408, 411; 269 NW2d 618 (1978). However, a delay of six months is insufficient to trigger further investigation. People v Kilgore, 103 Mich App 812, 815; 304 NW2d 7 (1981). Because the delay in the present case was approximately 13 months, our inquiry will press further.
As to the reason for the delay, we note that defense motions were conducted during the first six months of the delay. Therefore, the first six months of the 13-month period can be reasonably attributed to defendant.
The prosecutor asserts the clogged condition of the court’s dockets as the reason for the additional seven-month delay. This Court has held that "[w]hile delay of this nature is attributable to the prosecution, it has a neutral tint and should be given only minimal weight in determining whether defendant’s speedy trial right has been violated.” People v Ewing, 101 Mich App 51, 55; 301 NW2d 8 (1980).
Further, we find that defendant did not assert his right to a speedy trial in the proceedings below. While the failure to assert this right is not an automatic waiver of the right, it does weigh heavily against a finding that the right has been violated. Kilgore, supra; People v Collins, 388 Mich 680, 688; 202 NW2d 769 (1972).
Finally, we find that defendant has failed to establish how this delay prejudiced his cause. Defendant contends that his oppressive pretrial incarceration caused him to lose his will to engage in adversary proceedings and to involuntarily plead guilty. We find this contention to be totally unsupported by the record.
Because the reason for the delay attributable to the state was not of a bad faith nature and because defendant failed to assert his right to a speedy trial below and, on appeal, has failed to demonstrate how the delay prejudiced his case, we hold that defendant was not denied his right to a speedy trial.
Defendant’s convictions are affirmed.
R. M. Maher, J., concurred in the result only. | [
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Steere, C. J.
Respondent was convicted in the circuit court of Lapeer county on October 21,1912, of having engaged in the business of selling intoxicating liquors at the village of Clifford on May 1st to the 15th, 1912, in violation of the provisions of Act No. 313, Pub. Acts of 1887, as amended. He has removed the case to this court on exceptions after conviction and before sentence.
The moral turpitude in this case, if any, appears to rest primarily with the trustees of said village, who, either through ignorance or design, laid the foundation for trouble and litigation by attempting to simultaneously authorize two saloons in their municipality where only one could be legally licensed, according to the population. Clifford is an incorporated village of 308 inhabitants, located in Lapeer county, which county adopted local option, prohibiting the sale of intoxicating liquor within its boundaries, at the spring election of 1910, and on resubmission of the question to its electors in the spring of 1912 returned to the license system. Section 39 of Act No. 291, Pub. Acts 1909, concludes as follows:
“It is understood that in counties that have adopted local option or may hereafter adopt the same and after-wards vote to return to the license system, there may be established saloons not to exceed one to every five hundred inhabitants of any township, village or city in said counties.”
Shortly after the result of the spring election of 1912 was known, respondent and a man named Jacob Yerden became spirited rivals for a license to engage in the saloon business in said village. On April 8, 1912, each filed an application with the village council for a license, each therefor using an old form of blank not complying with the requirements of the liquor law then in force. The council, however, assumed to act on them tentatively, laying Yerden’s on the table and accepting respondent’s contingently, providing that various things should be done and promised by him before his bond should be accepted. Various proceedings were had by and before the council while the first defective applications were pending, .and favorable action was ultimately attempted on both; but, the county treasurer refusing to issue licenses on them, they were then abandoned and new applications, complying with requirements of the statute, each sworn to by the applicant on April 25th, were presented to the council and accepted at a meeting held April 26th, together with the accompanying bonds, which seem to have been the same ones presented with former applications. The village clerk, who produced the records of the council and verified them, testified, under objection, that the record of the proceedings of said meeting of April 26th correctly indicated what occurred and the order of business then transacted; that, in fact, Yerden’s application and bond were acted on first, just as the entry thereof appears in the record. The application and bond of both Yerden and respondent were accepted and approved at this meeting. Both filed the same with the county treasurer, paid the license fee, received the receipt and notice provided for, posted the same up in their respective barrooms, and opened their saloons for business on May 1, 1912.
When arraigned, respondent declined to plead, and a plea of not guilty was entered in his behalf. Thereupon his counsel moved the court to quash the information for various reasons, which amounted, in effect, to a demurrer to the same. This motion was overruled, and the trial proceeded. Objection was first made to the introduction of any testimony under the information and during the trial seasonable objections were made, and exceptions taken, to properly preserve respondent’s rights.
There was little dispute as to the facts; the principal contention being over their admissibility and sufficiency under the information. The population of the village of Clifford and its corporate organization were admitted. It was proved, and not denied, that respondent ran a bar in his hotel and sold intoxicating liquor there during the time charged. The records of the village council were introduced and proof made of the proceedings before and by that tribunal, followed by proof of issuing the two licenses as before stated. After having rested, the prosecution was permitted, against objection, to reopen the case, and introduce certain records to show “that the so-called local-option law went into effect on May 1, 1910, and out of force April 30, 1912.” To this counsel for respondent further objected specifically, for the reason that the information did not charge that local option was ever adopted in the county, or that the county ever returned to the license system, being two things necessary to prove in order to make out a prima facie case and therefore necessary to allege in the information. No testimony was introduced by respondent and a motion for a directed verdict in his favor was denied. The case was submitted without argument to the jury.
In his charge, after briefly reviewing the testimony; the court said, amongst other things:
“So I say to you, gentlemen, that for the purposes of this record, as a matter of law, the respondent is guilty as charged, and, while I cannot oblige you to render a verdict convicting him, I say to you it is your duty after you have entered your jury room to return a verdict of guilty in this case.”
The first portion of the information filed against respondent charges him in the usual and familiar form with engaging in the sale of intoxicating liquor—
“ Without first having his application for a license to engage in said business accepted and approved by the village council of the said village of Clifford, and without having a bond approved by said village council, and without having paid to the county treasurer of the said county of Lapeer the annual tax required by law to be paid, to wit, five hundred dollars, and without having a receipt and notice of the payment of such tax posted up in the place where said liquors were kept for sale, he, the said Thomas Edwards, not being then and there a druggist,” etc.
With nothing further to qualify this portion of the allegations, a violation of the statute is charged. But, inasmuch as the proof would show without controversy that respondent had made application to the village council and presented a bond, that said council had approved the same, that he had paid the annual tax and posted up a receipt and notice thereof in his place of business, the information proceeds with an allegation of these facts and an averment of their invalidity, charging that the incorporated village of Clifford contained but 308 inhabitants; that on April 26, 1912, the council of said village approved the application, and accepted the bonds of Jacob Yerden before those of respondent; that the action of said council in approving the application and bond of respondent and the issuing of a license to him by the county treasurer were “illegal and contrary to the provisions of Act No. 313 of the Public Acts of the State of Michigan for the year 1887, as amended.” The particulars in which and the reason why the same is contrary to the provisions of said act are not stated. The reasons claimed at the trial, and sought to be proved, are that Lapeer county had at one time been under the local-option law and returned to the license system. The information is silent upon that subject. It does not aver facts sufficient to negative the valid ity of the official action through which respondent obtained his license, and it shows that he had a license, in obtaining which his personal conduct was in compliance with law. The case would necessarily turn on the unlawful conduct of the village council, which would furnish respondent no protection if properly alleged and proven to be unlawful.
Were it not for the claimed, but not alleged, facts that local option was once adopted and the license system again resumed in Lapeer county, the information in its latter part states a complete defense to its earlier charge that respondent was selling in violation of the statute. The allegation that the population of the village was less than 500, standing alone, imputes no illegality to the proceedings under which respondent’s license was issued.
It is generally held that courts cannot, unless required by statute, take judicial notice of the local adoption of a general law by the votes of cities, counties, or villages, unless the statute particularly relates to functions of government, and in harmony with that rule the adoption of local option has been so treated, and we think so held, in this State. People v. Adams, 95 Mich. 541 (55 N. W. 461); People v. Keefer, 97 Mich. 15 (56 N. W. 105); People v. Bennett, 107 Mich. 430 (65 N. W. 280); Paul v. Benzie Circuit Judge, 169 Mich. 452 (135 N. W. 283); People v. Murphy, 93 Mich. 41 (52 N. W. 1042). In the latter case it is said:
“ It is contended by the prosecution that the court was authorized to take judicial notice that prohibition was in force in Yan Burén county. Without passing upon the question of whether it would be competent for the legislature to provide that the resolution or enactment of the board of supervisors be treated as a general law, of which courts may take judicial cognizance, it is sufficient to say that by the very clear provisions of the act in question the legislature negatived any such purpose, but has prescribed what’ shall constitute the evidence of the fact that the provisions of the law are in force in a particular county.”
The information as framed renders the former existence of local option in Lapeer county a material fact necessary to constitute the offense, and therefore necessary to be set forth with certainty in the information before it can be proven at the trial. The rule on that proposition is elementary and citation of authorities superfluous.
Counsel for the prosecution contend that this was a matter of defense, to be shown by the accused, citing numerous authorities holding that in pleading a statute it is not required to negative exceptions not within the enacting clause. We do not regard that rule as applicable to the situation presented by this information. Here acts complying with the statute are shown which negative the previous allegation of its violation, and then, by way of avoidance of those acts which purport compliance, it is claimed, and necessarily must be proven to convict, that extraneous facts exist from which the invalidity of such acts necessarily follows.
We conclude that the motion to quash the information, should have been granted. The conviction must therefore be set aside, and respondent discharged.
McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. Moore, J., did not sit. | [
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] |
Brooke, J.
(after stating the facts). It is the contention of defendant that the instrument under consideration conveys to it the fee; and that complainants reserved only the right to cultivate during their lives, for an agreed rental (payment of taxes), such portion of the land described in the deed as should not be used by the defendant. For an interference with this right of cultivation, if is urged that the law affords an adequate remedy. Complainants’ position is that the deed conveys to defendant only the gravel lying between the top soil and a point down to which, this land could be drained, as specified in the deed; that after the gravel has been removed the defendant has no further title to or interest in the premises. This contention involves the further proposition that the fee remains in the complainants; and that the alleged unlawful removal of the top soil constitutes such an injury to the inheritance as to warrant interference by a court of equity.
The language of this instrument is peculiar and ambiguous; but a careful perusal of the whole paper convinces us that it was the intention of the grantors to sell, and of the grantee to buy, only the gravel lying between the top soil and the point fixed in the deed. Several considerations lead to this conclusion. In the first place, the deed recites that “the above-described property is purchased as and for a gravel pit.”
While the granting clause conveys “all gravel, sand, stone and earth ” upon the description, the instrument recites that in removing the gravel “the top soil not fit for its [grantee’s] use shall be thrown off in the cut last made and leveled off reasonably level so it can be plowed ”; and, further, that “ the excavation in said gravel pit is not to be so low as to prevent its drainage into the ditch southwesterly of said gravel pit.” The habendum clause is significant. The grantee is to have and to hold “ the said gravel, sand, stone and earth, as above described.”
It seems to us that the conclusion is irresistible that the parties intended that, as fast as the gravel was removed, the grantors should have the right to resume possession and cultivation of that portion of the premises denuded of its gravel; and when all the gravel (within the limits fixed by the deed) had been removed the interest of the grantee in the property should cease. It is to be noted and again emphasized that the grantee takes to itself, its successors and assigns forever, not the premises above described, but “ the said gravel, sand, stone, and earth, as above described.”
In the construction of deeds or other contracts, the primary end to be attained is, if possible, to ascertain clearly the intention of the parties. Smith v. Smith, 71 Mich. 633 (40 N. W. 21). Mr. Justice Cooley, speaking for the court in McConnell v. Rathbun, 46 Mich. 305 (9 N. W. 426), said,
“All grants must be construed reasonably and in the light of the surrounding circumstances.”
While the general rule is well settled that, when the habendum is repugnant and contrary to the granting clause, it is void (see cases cited in Smith v. Smith, supra), that rule is subject to qualifications, and is not always to be invoked. In Powers v. Hibbard, 114 Mich. 533, at page 552 (72 N. W. 346), it is said:
“But these rules must be understood and taken in connection with other rules of construction, as, where the grant is uncertain or indefinite concerning the estate intended to be vested in the grantee, the habendum performs the office of defining, qualifying, or controlling. Sumner v. Williams, 8 Mass. 162 [5 Am. Dec. 83]. Again, where it is impossible to determine from the deed and the surrounding circumstances that the grantor intended the habendum to control, the granting words will govern; but, if it clearly appears that it was the intention of the grantor to enlarge or restrict the granting clause by the habendum, the latter must control.”
This court, speaking through Justice Montgomery, again announced its policy in the case of Mullreed v. Thumb, 116 Mich. 440 (74 N. W. 710), in the following language:
“ The general rule is that the intention of the parties to an instrument is to be ascertained from a reading of the entire instrument. * * * Another rule is that a repugnancy between different clauses of the deed must be resolved in favor of the first. This latter rule is usually invoked when there has been an attempt to limit the grant ing clause by the habendum, or where there is an attempt to except something specifically granted. This rule should be acted on only as a last resort, and generally the first inquiry is: What was the intention of the parties as expressed by the instrument? Bassett v. Budlong, 77 Mich. 338 [43 N. W. 984, 18 Am. St. Rep. 404]. It is true that courts have in some cases subordinated this rule of construction to that which gives preference to the first expression of the grantor, and have done so in some cases at the expense of sacrificing the intent of the parties as plainly expressed. * * * This court has, however, not so applied this latter rule as to subvert the intent of the parties, when plainly expressed ” — citing cases.
See, also, Moran v. Lezotte, 54 Mich. 83 (19 N. W. 757); Waldron v. Railway Co., 55 Mich. 420 (21 N. W. 870); Martin v. Cook, 102 Mich. 267 (60 N. W. 679); Wilson v. Terry, 130 Mich. 73 (89 N. W. 566); Bolio v. Marvin, 130 Mich. 82 (89 N. W. 563); Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264 (96 N. W. 468); Sharp v. Sharp, 148 Mich. 278 (111 N. W. 767); 18 Cyc. p. 618, and notes.
Assuming, then, that complainants are still the owners of the fee, has equity jurisdiction of the matter ?
The averment in the bill is, in effect that the defendant, by wrongfully removing the rich top soil, and by wrongfully refusing to transfer it to the cut last made and level it off fit for husbandry, as required by the terms of the deed, is inflicting a permanent injury to the freehold. We think the bill states a case for equitable relief under the following decisions: Rhoadesv. McNamara, 135 Mich. 644 (98 N. W. 392), and cases there cited; Harbor Springs Lumber Co. v. Emmet Circuit Judge, 160 Mich. 497 (125 N. W. 390); 22 Cyc. p. 825 et seq.
It is contended by the defendant that the bill does not aver that the defendant is removing top soil not fit for its use; that it is only such soil that it, by the terms of the instrument, is compelled to throw off into the cut last made; and therefore that no breach is alleged. We think the instrument is open to the construction that it was agreed at the time of its execution that the top soil was not fit for grantee’s use; but whether this be true or not there can be no doubt that the bill, in effect, avers, in section 3, that the taking of the top soil by defendant is contrary to the contract. Upon the coming in of the answer and the taking of proofs, this question can be determined.
The order overruling the demurrer is affirmed, with costs.
Steere, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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] |
Mo Alva Y, J.
Plaintiff brought an action in ejectment against defendant to recover possession of two certain descriptions of land situated in Detroit. It will not be necessary to give these descriptions at length. They are referred to in the briefs as the Delray description and the Gladstone description, and will be so designated in this opinion. The right and title of plaintiff in and to said lands is based upon certain tax deeds issued by the auditor general of the State to him, under which deeds he gave the statutory notice to the defendant within the proper time to repurchase said lands; and the six months having expired, and no repurchase having been made by any person, this suit was instituted.
The Delray description for delinquent taxes assessed for the year 1905 was sold to the State in May, 1906, and the Gladstone description for delinquent taxes for the year 1904 was sold the State in May, 1907. In September, 1909, more than one year later, plaintiff purchased both descriptions from the State, and deeds were issued to him. On February 6, 1906, the original owner of the Delray description, by quitclaim deed, conveyed it to the village of Delray for the purpose of exclusive use as a street. This land was accepted by the village of Delray as a part of the public street known as Posen street, and has been so used and occupied up to the present time. The deed from Gaukler was recorded with the register of deeds for Wayne county March 6, 1906. The limits of the city of Detroit in the meantime were extended to include the village of Delray. Defendant, the city of Detroit, on March 28, 1908, first filed its petition in the recorder’s court of the city of Detroit for the purpose of taking the description known as the Gladstone description by condemnation for street purposes. On June 29th a jury, which had been impaneled, filed its findings of necessity for taking such land for street purposes and its award to the owners thereof. This verdict was confirmed July 9, 1904, and defendant city immediately took possession of the land for street purposes, and ever since that time it has been used exclusively for public travel and known as a public street, Third avenue. All the facts in the case were stipulated upon the trial.
At the close of the case defendant moved the court to direct a verdict in its favor, for the reason that it appeared from the undisputed facts that these descriptions in the plaintiff’s declaration are used by the public as public highways, and the public has only an easement in said lands for that purpose, and the action of ejectment will not lie against defendant to determine the right of the public to such use; that such easements for highway purposes in this State belong to the people at large, and not to any political subdivision to determine such rights; that, before the lands in question were bid off by the State at tax sales, these easements to use these lands as public highways had already been acquired, and the result of such tax sales to the State was to cancel and discharge the payment of the taxes in question, and the tax deeds to the plaintiff conveyed no interest in the lands to him.
Plaintiff requésted the court to charge the jury that the claim and right to possession in this ejectment suit under said tax land deeds, the proceedings being regular under the tax law culminated in this sale to him, established an unincumbered fee in the land, and he having taken all the statutory steps after the sale to him in time and manner as provided by law, and no repurchase having been made, the defendant was guilty of unlawfully withholding from him possession thereof; that any defense interposed in an action of ejectment to lessen the estate conveyed by such deeds by taking away the right of possession is a collateral attack upon the decree and proceedings upon which such deeds are based and is not permissible. This amounts to a request for a directed verdict for plaintiff. The court refused these requests, and granted defendant’s motion. A verdict was accordingly directed, and upon this verdict judgment was entered in favor of defendant. The case is brought here upon a writ of error. Errors are assigned by appellant upon the refusal of the court to direct a verdict in his favor, and because a verdict was directed in favor of defendant.
The declaration filed in this case was the ordinary declaration in ejectment. Defendant gave notice under the plea of the general issue that it did not own or claim to own the lands in question, but, on the contrary, only claimed an easement therein for the purpose of public travel, and that both descriptions were used by the public for such purposes as parts of public highways; that the right of the public to use the lands could not be determined in ejectment.
In the brief of appellant it is claimed that defendant in the stipulation of facts admits—
** That the decree of the circuit court for the county of Wayne decreeing that the taxes involved were a valid lien against the lands, and that the lands should be sold to satisfy such lien, was a valid decree.”
Defendant denies that the stipulation of facts warrants such claim, and insists that it is only a deduction of the appellant from the stipulation of facts filed in the case. It is apparent that this is so from the plea and notice of defendant, above stated, and also from the statement of facts in the record, which is a recitation of the proceedings taken under the statute providing for the sale of delinquent tax lands, and it is recited that the court decreed—
“ That the said tax assessments thereon * * * were a valid lien upon the said lands, and that the lands were sold to satisfy such lien.”
This is not an admission as claimed, but is a statement contained in every decree made pursuant to the auditor general’s petition and the statute, nor was it an admission that the said tax deeds were regularly and properly issued by the auditor general to the plaintiff.
The contention of the defendant is that in this State the public does not own the fee to the lands used by it for public highways and streets, but only an easement in such lands, which is only the right to use them for the purpose of public travel; that such an interest is not subject to ejectment, for the reason that it is intangible and incorporeal. City of Grand Rapids v. Whittlesey, 33 Mich. 109; Bay County v. Bradley, 39 Mich. 163 (33 Am. Rep. 367); Taylor v. Gladwin, 40 Mich. 232, 234; Detroit v. Railway, 172 Mich. 136 (137 N. W. 645); Lynch v. Town of Rutland, 66 Vt. 573 (29 Atl. 1015). (See Harrington v. City of Port Huron, 86 Mich. 46, 51 (48 N. W. 641, 13 L. R. A. 664).
The Delray description was bid in by the State of Michigan for delinquent taxes of 1905 in May, 1908, for $2.97, and the Gladstone description was bid in by the State of Michigan for the delinquent taxes of 1904 in May, 1907,. for $4.79. In September, 1909, plaintiff purchased each of the descriptions from the State at the prices above named, upon which tax deeds were issued by the auditor general under which he claims title.
The Delray description was acquired by defendant to be used exclusively for highway purposes in February, 1906, and the Gladstone description obtained by condemnation for the same purposes in July, 1904. The ease ment in the lands in question for the purposes of public travel belonged to the State at the time it purchased such lands at the tax sales. A municipality in its control of these highways acts for the State, and has no right to the possession or use of these easements other than the public generally. It takes the burden of maintaining such easements fit for public travel. Lynch v. Town of Rutland, supra. These easements belong to the State, and were in use as public highways at the time they were bid in to the State for delinquent taxes.
The defense that plaintiff acquired no title to these lands through the State tax deed issued by the auditor general is not a collateral attack upon the decree in the tax proceedings. It challenges the power and authority of the auditor general in the name of the State to issue deeds to lands in which the State had already acquired easements for the public use as part of its public highways.
The court was therefore not in error in refusing to grant the request of plaintiff and in instructing a verdict for defendant.
The judgment of the circuit court is affirmed.
Steere, C. J., and Moore, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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] |
Bibd, J.
The petitioners question the right of the election commissioners of Kent county to place the names of the Democratic and Progressive candidates for county road commissioners on the ballot for the coming spring election on the ground that such action would be in violation of section 37 of Act No. 281 of the Public Acts of 1909, as amended by Act No. 279 of the Public Acts of 1911, in that neither of such parties cast at the primary 15 per cent, of the vote cast for secretary of State at the preceding election. The material part of the section reads:
“ Provided, that no candidate for any city, county, district or State office shall be deemed nominated and no certificate of nomination shall be given to any person whose political party with which he is enrolled casts at such primary election less than fifteen per centum of the vote cast by such political party for secretary of State at the last preceding biennial or November election; and in such case such political party shall not be entitled to have the names of any candidates printed upon the official election ballot.” (1 How. Stat. [2d Ed.] § 541.)
The respondent makes reply that:
“The provisions of said section are unjust and unreasonable, and were not passed for the purpose of protecting the purity of elections, and do unjustly deprive an elector of his right of franchise, and are therefore unconstitutional and void.”
At the outset attention is called to the fact that neither the Democratic nor the Progressive candidates received certificates of nomination by the board of canvassers, and that, when the board of election commissioners threatened to place the names of these candidates on the ballot, they had no prima facie nor other evidence before them entitling the candidates to a place thereon. We are of the opinion that, before placing the name of a candidate upon the ballot, some showing of his right to be placed thereon should be in the possession of the board. See De Foe v. Board of Election Commissioners, ante, 472 (140 N. W. 641).
If this provision of the primary law is unconstitutional and void, the reason for its being so must be found in the Constitution itself. The only limitation upon the power of the Michigan legislature to enact laws is our own Constitution and the Federal Constitution. It follows, then, that this legislation must stand, unless it can be pointed out that it infringes some provision of the State or Federal Constitution. Article 3 of the State Constitution is devoted to the elective franchise. Sections 1, 7, and 8 are the important ones bearing upon this inquiry. Section 1 provides who shall be an elector, and that the legislature may provide the way in which his vote may be cast. Section 7 provides that all votes shall be by ballot. Section 8 provides that laws shall be passed to preserve the purity of elections and guard against abuse of the elective franchise. This court has on several occasions considered the limiting force of these provisions upon legislative enactments, and the conclusion reached was that the legislature may regulate, but cannot destroy, the enjoyment of the elective franchise. Common Council of City of Detroit v. Rush, 82 Mich. 532 (46 N. W. 951, 10 L. R. A. 171); Attorney General v. City of Detroit, 78 Mich. 545 (44 N. W. 388, 7 L. R. A. 99, 18 Am. St. Rep. 458); Todd v. Election Commissioner, 104 Mich. 474(62 N. W. 564, 64 N. W. 496, 29 L. R. A. 330); Attorney General v. May, 99 Mich. 538 (58 N. W. 483, 25 L. R. A. 325). In commenting upon the degree of restraint of these constitutional provisions upon the power of the legislature in Common Council of City of Detroit v. Rush, supra, Mr. Justice Grant said:
“ Under these broad provisions, it has been frequently held to be the exclusive province of the legislature to enact laws providing for the registration of voters, and the time, place, and manner of conducting elections. It may regulate, but cannot destroy, the enjoyment of the elective franchise. Whether such regulation be reasonable or unreasonable is for the determination of the legislature, and not for the courts, so long as such regulation does not become destruction. Attorney General v. City of Detroit, 78 Mich. 545 [44 N. W. 388, 7 L. R. A. 99, 18 Am. St. Rep. 458]. Courts will not declare the law invalid because its enforcement might result in the restriction of the right to vote, else the registry laws would have been held void. Yet these laws have been universally sustained, on the ground of wise and necessary regulation. In 1882 Chief Justice Shaw sustained them, on the ground that they tended to—
“ ‘ Promote peace, order, and celerity in the conduct of elections, and as such to facilitate and secure this most precious right to those who are by the Constitution entitled to enjoy it.’ Capen v. Foster, 12 Pick. [Mass.] 485 [23 Am. Dec. 632],
“The principles then enunciated have been adopted by this court in numerous cases. People v. Blodgett, 13 Mich. 127; People v. Kopplekom, 16 Mich. 342; Attorney General v. Detroit Common Council, 58 Mich. 213, 24 N. W. 887 [55 Am. Rep. 675]. When power is conferred upon the legislature to provide instrumentalities by which certain objects are to be accomplished, the sole right to choose the means accompanies the power, in the absence of any constitutional provisions prescribing the means. The finding by this court that the law impeded, hampered, or restricted the right to vote, and is therefore void, would be a clear assumption of, and encroachment upon, legislative power — a substitution of our judgment for that of the legislature. It can only be declared void when it destroys the right. Its unconstitutionality can be determined by no other rule.”
The test is, then, whether section 37 destroys the elective franchise or simply regulates it. If it destroys, it is our duty to declare it void. If it merely regulates, our duty is to declare it valid and relief from its effects must be found in the legislature. An examination of section 37 will disclose that it is aimed at the voter’s right to have his name placed upon the ballot, and not at his right to vote. The right to vote is protected by the Constitution. The right to have his name placed upon the ballot is one which is under the control of the legislature. But it. is argued that it interferes with the exercise of the franchise in that the names of the candidates for commissioners will not be printed upon the ballot. This does not destroy the right of franchise because the voter may write the names on the ballot. It may render his voting less convenient, but it does not destroy or take away the right.
It is said that the 15 per cent, requirement is an unreasonable requirement, and, if, adhered to, will in many cases deprive the party ticket of a candidate for some particular office. This may be so. It is possible that the percentage is too high, and it may be unwise to require any percentage. It is certain, however, that, if we are to have a primary law, somebody must be invested with the power to prescribe the rules and regulations under which a primary election shall be conducted. That power resides in the legislature. If the legislature has exercised that power, and while acting within the range of its authority has prescribed an unreasonable regulation, it must be remedied by it, and not by the courts. City of Detroit v. Election Inspectors, 139 Mich. 548 (102 N. W. 1029, 69 L. R. A. 184, 111 Am. St. Rep. 430, 5 Am. & Eng. Ann. Cas. 861). The same question has been many times before other State courts and with few exceptions it has been held that it is a legislative question. Some of the exceptions have been based upon constitutional provisions unlike our own. See Miner v. Olin, 159 Mass. 487 (34 N. E. 721); Ransom v. Black, 54 N. J. Law, 446 (24 Atl. 489, 1021, 16 L. R. A. 769); DeWalt v. Bartley, 146 Pa. 529 (24 Atl. 185, 15 L. R. A. 771, 28 Am. St. Rep. 814); State v. Poston, 58 Ohio St. 620 (51 N. E. 150, 42 L. R. A. 237); State v. Felton, 77 Ohio St. 554 (84 N. E. 85, 12 Am. & Eng. Ann. Cas. 65); People v. Williamson, 185 Ill. 106 (56 N. E. 1127); State v. Jensen, 86 Minn. 19 (89 N. W. 1126); State v. Drexel, 74 Neb. 776 (105 N. W. 178); Riter v. Douglass, 32 Nev. 400 (109 Pac. 444); Socialist Party v. Uhl, 155 Cal. 776 (103 Pac. 181); Ledgerwood v. Pitts, 122 Tenn. 570 (125 S. W. 1036); State v. Nichols, 50 Wash. 508 (97 Pac. 728); State v. Michel, 121 La. 374 (46 South. 430); Ladd v. Holmes, 40 Or. 167 (66 Pac. 714, 91 Am. St. Rep. 457); Healy v. Wipf, 22 S. D. 343 (117 N. W. 521).
The urgent demand on the court for an immediate decision in this proceeding has limited our investigation, but we have found no constitutional restraint, nor has any been called to our attention which would render the provisions of section 37 void.
We are therefore of the opinion that the holding of the trial court should be reversed and the writ of mandamus granted. No costs will be allowed either party.
Kuhn, Stone, and Ostrander, JJ., concurred with Bird, J. | [
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Moore, J.
This is a replevin case begun in justice’s court and appealed to the circuit court. The case involves the ownership of a pony. The plaintiff claims the pony was given to him hy the defendant on condition that he should not part with her, and that when she died she was to be given a decent burial. The defendant claims the plaintiff was to take the pony and keep her until the defendant needed her, and that when defendant needed her plaintiff should return her to defendant as freely as plaintiff took her. Upon this issue the case was tried and a verdict rendered in favor of the plaintiff. The case is brought to this court by writ of error.
The appellant relies upon the following:
(1) Prejudicial questions asked by counsel and improper remarks made by counsel.
(2) The refusal of the court to grant the defendant a new trial.
(3) Errors committed in the charge of the court given sua sponte.
(4) Errors committed in refusing the defendant’s requests.
These subjects will be discussed in their order.
1. Under this head counsel say that the questions were attempts to “get before jury by innuendo the fact that said cause had been tried in the justice’s court and a verdict rendered adversely to the defendant, and to lead the jury to believe that the question of demand had been squarely passed upon by that court and was in effect permitting the lawyer to testify without being under oath, in his client’s behalf,” and we are referred to page 33 of the record. A reference to the record shows that the objection made by counsel for appellant to the question was sustained. There was a full examination by counsel for both parties before this court in relation to what occurred in justice’s court. One cannot read the record without reaching the conclusion that counsel for both sides were very zealous for their clients, making it difficult for the judge to keep them within the rules; but we think the court did not err in his rulings as to the admission of testimony.
2. As to the new trial; the motion alleged: (a) Because the verdict of the jury was contrary to the evidence in the case. (6) Because the verdict of the jury was against the weight of the evidence in the case, (c) Because the verdict was contrary to the law. The trial judge was of the opinion that none of these reasons were well taken. An examination of the record does not convince us he was wrong in this conclusion.
3 and 4 may be considered together. The questions involved were simple, and the law applicable thereto was not complicated. The trial judge in his general charge fully covered the case.
Judgment is affirmed.
Steere, C. J., and Me Alva y, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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] |
Moore, J.
The plaintiff, Clarence Rothschild, brought suit to recover the sum of $470.53 as the assignee of the Gray Lithograph Company, J. B. Carroll, and the Sullivan Printing Works. He obtained judgment for the full amount in justice’s court, and, on appeal to the circuit court, a verdict of no cause of action was directed. The case is brought here by writ of error.
In December, 1909, the plaintiff was engaged in selling advertising specialties as the representative of the above-named parties. Defendant, whose home office is in Caro, Mich., was engaged, among other things, in making a boiler cleaner called Success Boiler Compound. The defendant made an arrangement with one Cunningham to sell its goods on commission. He opened an office in Detroit.
The claim of counsel for appellant is summed up in his brief as follows:
“We contend, therefore, that the trial judge should have submitted to a jury the question whether or not the defendant has authorized Cunningham to make these purchases, or at any rate that the question should have been submitted as to whether or not they were estopped from denying this authority.”
The record is not long, and the facts are not very much in dispute.
Mr. Cunningham’s office was opened a little time before the orders for goods were placed. The time when they were placed is important. The Cray Lithographing order was placed on December 1, 1909; the Sullivan order about December 5, 1909; and the Carroll order on the 9th of the same month. When Mr. Cunningham opened his office, he was furnished with letter heads having printed matter as follows:
Sugar Beet Products Co.
Boiler Preservatives.
Caro, Michigan, U. S. A.
New York.
Chicago.
St. Louis
Buffalo.
Detroit.
New Orleans.
Indianapolis.
Grand Rapids.
London, Eng.
Tokyo, Japan.
Shortly thereafter Mr. Cunningham had printed on these letter heads, under the line “Caro, Michigan, U. S. A.,” the following:
“Detroit Branch, 801 Breitmeyer Bldg., F. L. Cunningham, Mgr. Phones, Main 4340, City 4340.”
Mr. Cunningham also put a sign on his office door reading:
“The Sugar Beet Products Company, Success Boiler Compound, F. L. Cunningham* Manager.”
Mr. Robert Montague was called by the plaintiff as a witness. Among other things he testified:
“ The Sugar Beet Products Company was organized in the spring or summer of 1909, succeeding my father, H. E. French, and myself, who were the ones interested in the company at the time of its organization. Mr. French was president, my father vice-president, and I was secretary and treasurer. We were practically in the jobbing business. My father took no active part in the management of it; it being left to Mr. French and myself. The same officers continued until May, 1910. During all that time Mr. Cunningham was engaged by the defendant and was given permission to sell our goods down here (in Detroit) on commission. I usually did business with him for the company. We made a written contract with him. I first met him about the middle of November. He was engaged to sell our goods in Wayne county. He would sell to manufacturers and any person using steam power. We usually shipped the goods directly to the person he sold to, and he took the orders in the name of the Sugar Beet Products Company, and the people would pay the Sugar Beet Products Company, and, after payment, we would pay him his commission. Shortly after being engaged (about a week or two) he opened an office in the Breitmeyer Building without consultation with us. I frequently came to Detroit on the business of the company and usually called on Cunningham. I saw him when I engaged him, which was along about the middle of November, and one time prior to the first of December, when he came to Caro. About the middle of December I first called on him at Detroit at his office and saw the sign on his door and spoke about taking it down. It was not removed by January.”
He also testified that he first saw the stationery the last of November or middle of December, and he denied that Mr. Cunningham had any authority to buy for the defendant the things for which this suit is brought.
Mr. Rothschild testified in part:
“ I saw Mr. Cunningham the first day of December at his office when I took an order from him for the Gray Lithograph Company. I took the Sullivan order about the 5th and the Carroll order the 9th. I did not inquire before taking these orders as to what authority Cunningham had to order goods. I did not see either of the Montagues prior to the first of January, 1910; nor had I any dealings with Cunningham before this date when he claimed to represent defendant. I wrote no letters to the defendant prior to December 9th to find out what authority Cunningham had. About the middle of January I saw Mr. (Robert) Montague in the city, and gave him a leather purse and asked him for some business. * * * I knew that Mr. Cunningham was selling the boiler com-; pound to the trade and manufacturers, and I understood this at the time I sold the goods.”
Re-direct examination:
“Q. What was the idea you had as to what he was doing for the company ?
“A. Selling boiler compound.”
Mr. Langer was called as a witness. It was sought to show by him a conversation had at the Preston Inn in Detroit with Charles Montague in relation to Cunningham’s connection with the defendant. This was the third week in January, and Mr. Rothschild was not present at the conversation. This testimony was excluded.
There was correspondence introduced in evidence on the part of the defendant which occurred after the 1st of January, 1910, which tends to show that the credit was extended to Mr. Cunningham and not to the defendant company.
Complaint is made as to the exclusion of the testimony of Mr. Langer. It will be noticed that there is an entire absence of testimony showing that Mr. Montague was authorized to bind by admissions the defendant company.
It also appears that the goods were sold long before this, and the conversation was not in the presence of Mr. Rothschild. We think there was no error in excluding this conversation.
The most that can be said of the case as made is that it shows Mr. Cunningham was authorized to make sales for defendant for which he was paid a commission; and it fails to show that he was authorized to incur debts for which defendant is liable; and it also fails to show such a state of affairs as estops defendant from denying liability. See 1 Am. & Eng. Enc. Law (2d Ed.), p. 990, and the many cases there cited; Cowan v. Manufacturing Co., 141 Mich. 87 (104 N. W. 377), and cases there cited.
Judgment is affirmed.
Steere, C. J., and McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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Moore, J.
On the 8th of January, 1910, plaintiff was driving a team of horses, attached to a large express wagon, north on Beaubien street, in the city of Detroit. It had rained early in the day, and later had frozen. The streets were slippery. This was the first trip plaintiff had made on this route. He testified that, as he approached the corner of Beaubien and Clinton streets, he pulled up his horses, and stopped, looked, and listened; that he heard nothing; that he saw no cars after looking both ways; that he was standing in the front part of his wagon, back of the seat, and from where he stood he could see that the way was clear for a distance of 10 or 12 feet to the east of the building on the southeast corner of Clinton and Beaubien streets; that from where he stood in the wagon to the end of the pole was a distance of from 18 to 20 feet; that after stopping, looking, and listening he started his team slowly, and as he got near the track, the car rushed out of Clinton street and upon him; that the gong was not rung until the car was in the line of Beaubien street; that the car struck the wagon pole, throwing the wagon against the car, and the plaintiff against the side of the wagon and car; that he was severely hurt.
Upon completion of the direct examination of plaintiff, counsel for defendant moved the court to direct a verdict in favor of the defendant, which motion was granted over the objection of plaintiff’s counsel. Plaintiff desired to produce additional testimony, by other witnesses, to show the speed at which the car was being run and certain measurements; that no gong was rung or warning given of the approach of the car; that plaintiff stopped, looked, and listened before he crossed the track. He offered the testimony of a witness who saw the entire collision, and such other testimony and matters which counsel for plaintiff considered essential for the purpose of preparing a record. The court refused to admit any testimony, except the measurements as to the width of Clinton street between the south rail of the street car track and the curbstone, and also the distance from the curbstone to the building on the southeast corner of Clinton and Beaubien streets. This testimony showed it was 8 feet from the car track to the curb, and 9 feet from the curb to the building. The judge then directed a verdict for the defendant. The case is brought here by writ of error.
We think the plaintiff should have been allowed to put in his testimony and make his record. See Field v. Clippert, 78 Mich. 26 (43 N. W. 1084); Smalley v. McGraw, 148 Mich. 384 (111 N. W. 1093, 112 N. W. 915); Barto v. Steel Co., 155 Mich. 94 (118 N. W. 738); Haynes v. Maybury, 166 Mich. 498 (131 N. W. 1110); Minkstimas v. Pantlind, 170 Mich. 468 (136 N. W. 377).
Judgment is reversed, and a new trial ordered.
Steere, O. J., and McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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Brooke, J.
The will is contested upon the ground of undue influence only.
In February, 1908, Nathan Ganun, the testator, being then 71 years of age, made a will which was made operative by his death in October, 1910. He left surviving him a widow and four children. At the time the will was executed, Frank, the eldest son, was 50 years of age, Addison was 48, Newman 46, and Melvina 44. All were married and had children, most of whom had reached maturity at the time of the death of testator. The estate amounted to some $28,000. By his will testator gave to his widow during her life the income from the entire estate; to his daughter, Melvina, $4,000. To each of his two sons, Addison and Newman, he gave the income during life from $5,000, with remainder over to five of Frank’s children — to Oliver (Frank’s son) 40 acres of land, to Cecil (Frank’s son) $2,000, to Raymond (Frank’s son) $2,000. The residue of the estate he gave to his son Frank, and appointed him executor. Three other children of Frank’s were not mentioned in the will, and no bequest was made to any of the other grandchildren. Addison left home when about 21 years of age, and Newman at about the age of 26. Frank lived with his father until his marriage, and' thereafter upon a farm very close to that of his father. Up to the time of the death of the testator, he continued to work with his father upon his father’s farm as well as upon his own. Two of Frank’s daughters were practically reared in the testator’s home, and the relations between the testator and his Wife and Frank and his family were very intimate. During the last 15 years of testator’s life, Newman and Addison lived in Toledo, Ohio, and the daughter, Melvina, in a western State. These children visited their father, the testator, at comparatively rare intervals, though they as well as their children were upon friendly terms with him. Testator was a man much opposed to the use of intoxicating liquor as a beverage. There is testimony in the record tending to show that the son Addison was somewhat addicted to such indulgence, and that his father disapproved of his course. The record likewise shows that testator assisted Newman to start a mercantile business which after two or three years proved to be unremunerative. Newman quit the business. The testator was held as a partner, and was obliged to pay the debts of the concern to a considerable sum — probably about $3,000. Newman worked as a bartender for about six months, and for a short time owned and operated a saloon.
The following testimony was admitted over the objection of proponents: Lydia J. Bancroft, mother of Addison’s wife, testified:
ee Q. Just tell the jury what conversation you heard between Frank and your daughter ?
“A. I heard him tell Addision that he would see that he didn’t have any of his property to spend.”
Clara Ganun (Addison’s wife) testified:
ilQ. State as nearly as you can the exact language used by Frank and by Addison that day.
“A. Frank said that he would see to it that the two boys didn’t have any of that property to spend.”
The date of this conversation is fixed as of January, 1908; the will being executed in February, 1908. Alfred Hart testified:
“A. She (Jane Ann Ganun, testator’s widow) at one time said that Newman or Addison wouldn’t get any of the property as long as she and Mr. Ganun lived. * * * She said something about Newman wanting the farm down there, or the boys wanting the property, and she said they wouldn’t get it until they got done with it.”
Newman Ganun testified:
“Q. What did she (Jane Ann Ganun) say at that time ?
“A. Well, she said she would see that it was fixed so they wouldn’t get any of it. * * *
“Q. I ask you if you and Frank did have a talk about property matters in the barn at your father’s homestead. * * *
“A. The conversation in the barn, well, I drove into the barn, and he came in there. Of course, this was after the will was probated, and the first question he says to me, he says, ‘ I don’t want you boys to think that I have taken advantage of you here;’ and he wanted me to come up there and frame up some kind of a settlement, and he went on and we talked about that. Then we went over there to the house, and talked there some, and, of course, in this talk that day there was nothing much brought out only he didn’t take advantage of us, and he wouldn’t make the settlement and give us or buy us a farm. Of course, he had lots of provisions in this agreement, and one thing and another, and I told him I couldn’t agree to anything of that kind under the condition that was, but, of course, he wouldn’t make it unless my brother Addison would do the same thing as me. At that conversation Frank said that the first he knew there was a will was either on the day or the next day after father’s death. Mother came to him, and told him that she found a receipt for a will, and that is the first that he ever knew there was a will. There was no further talk between us about the will. I told him that it was the most damnable piece of business that I ever saw gotten up. I have told all I remember about the conversation with Frank in the barn. I had another conversation with him in the house. Mother, Frank, and I were talking, and I said to Frank, * You told me in going to Blissfield a couple of weeks before that, or three weeks before that, a couple of weeks before father died, that Ollie was going to get that 40 acres, and, if I had stayed on the 120, I would have had something, and you claimed you were worried because you would have Addie’s money to look after;’ and I says, ‘ How did you know these things if you didn’t know there was a will P and him and mother both spoke at the same instant, ‘We surmised it.’ ”
Proponents’ rights were duly preserved by timely objection or motion to strike out.
It is the contention of appellants that all the foregoing testimony was improperly admitted, for the reason that by making proof of statements or admissions made by Frank and his mother, Jane Ann, having a tendency to defeat the will, the rights of other legatees under the will who were not jointly interested with Frank or his mother were swept away. Assuming, for the moment, that the evidence quoted was such as to support an inference of undue influence, was it admissible ? The question was first passed upon in this State in the case of O’ Connor v. Madison, 98 Mich. 183 (57 N. W. 105), where it is said:
“The question was referred to by this court in Re Estate of Lambie, 97 Mich. 49 [56 N. W. 223], where the declarations of one who was devisee of the entire estate were held admissible. But we think that the rule does not extend to cases where there are several interested in sustaining the will, as in this case.”
An examination of the original record in this case shows that the legatees, evidence of whose declarations was held to have been properly excluded, were neither of them named as executors, and were therefore not formal parties in the suit. O'Connor v. Madison was followed as settled law in Re Estate of Lefevre, 102 Mich. 568 (61 N. W. 3). It was again followed in Roberts v. Bidwell, 136 Mich. 191 (98 N. W. 1000), and in that case it was held that evidence of the declarations of Brant Roberts was not admissible. Brant Roberts was one of the executors named in the will, himself filed the petition for its probate, and was a formal party in the proceeding. In the case of In re Loree's Estate, 158 Mich. 372 (122 N. W. 623), a verdict was directed for the proponent at the conclusion of the testimony, upon the ground that no evidence of undue influence had been produced. The evidence was examined in this court, and it was said:
“A consideration of all of the evidence in the case does not support the conclusion of the court.” A re-examination of the record in that case convinces us that this conclusion was warranted, based upon the evidence which was admitted by the trial court. In that case Catharine Loree was one of many legatees, and was executrix and proponent of the will. We there said:
“ Statements (declarations) made by her at other times, whether in testator’s presence or absence, were material upon the question of undue influence., and her attitude towards these contestants.”
The admissibility of evidence of declarations of Frank and Jane Ann Ganun in the case at bar is predicated upon this language. It will be noted that in the Loree Case there is no discussion.of the authorities upon the question. It is clear, under all the authorities, that evidence of declarations or admissions of Jane Ann Ganun, she being neither executrix nor proponent, were inadmissible. Does the fact that Frank Granun is both executor and proponent make such evidence admissible as to his declarations ? We think not. As we have seen, such evidence was excluded in the case of Roberts v. Bidwell, supra. In the early case of Shailer v. Bumstead, 99 Mass. 112, cited with approval in O’Connor v. Madison, supra, it is said:
“ In connection with the evidence thus offered and rejected, the contestants offered also the declarations and conduct of Hayden and Shailer, named executors, subsequent to the date of the will. And this brings us to another important question in the case. The' evidence, for the purpose for which it was offered, was, we think, properly excluded. It was not proposed thereby to contradict their testimony. The admissions of a party to the record against his interest are, as a general rule, competent against him; and this rule applies to all cases where there is an interest in the suit, although other joint parties in interest may be injuriously affected. But it does not apply to cases where there are other parties to be affected who have not a joint interest, or do not stand in some relation of privity to the party whose admission is relied upon. A mere community of interest is not sufficient. Devisees or legatees have not that joint interest in the will which will make the admissions of one, though he be a party appellant or appellee from the decree of the probate court allowing the will, admissible against the other legatees. * * * Before the death of the testatrix, the interest of all these parties in a will, liable at any time to be revoked, was not such a direct interest as should render their admissions competent against other parties. The separate admissions of each, made after the act, that the will was procured by their joint acts of fraud or undue influence, cannot be permitted to prejudice the other ” — citing many cases.
The identical question was passed upon in the case of McMillan v. McDill, 110 Ill. 47, where evidence of declarations of Robert McMillan, the executor of the will, was held to have been improperly admitted, although the trial court received the evidence as against him alone, and not against his codefendants. See cases cited. See, also, Gardner on Wills, p. 201, and cases cited in note, and on page 142; Schouler on Wills and Administration, p. 120, and note. Upon principle we think it is clear that the mere fact that one of several legatees is named as executor, and thereby burdened with the duty of proposing the will for probate, should not make evidence of his declarations admissible as against his colegatees when otherwise such evidence would be incompetent. Instances, may readily be imagined where an executor with a negligible interest under the will would be largely benefited by having the will set aside and the estate distributed under the statute of descent. In such a case the temptation to make declarations as to mental incompetence or undue influence is evident, and proof of such declarations might not only greatly advantage the declarant, but sweep away the rights of the other legatees under the will. It should be noted that twice since the Loree Case was decided this court has distinctly reaffirmed the principle of O’Connor v. Madison. In re Hewitt’s Estate, 161 Mich. 536 (126 N W. 848, 21 Am. & Eng. Ann. Cas. 47); In re Mc-Master’s Estate, 163 Mich. 210 (128 N. W. 259). In the latter case, upon the facts, it was held that the case was outside the rule. So far as the language used in the Loree Case can be construed as questioning or changing the rule, it must be disregarded. As before pointed out, it was not necessary to the decision.
We have discussed this question somewhat at length in order that there may be no doubt among the profession as to the true rule in such cases, and we have assumed in the discussion that the testimony in question had a legitimate tendency to establish undue influence upon the part of Frank Ganun or his mother. We think it doubtful whether the evidence (even if admissible) has any such probative force. Nathan Ganun was a man of strong mental and unusual physical equipment. He was hard-headed, frugal, and industrious. He was a man of affairs in a limited way, careful of his business, and jealously retained full control thereof until more than two years after the will was executed. Jane Ann, his wife, and Frank, his eldest son, were his closest and most intimate associates. It may be said that both had abundant opportunity to practice fraud or to exercise undue or unlawful influence upon the testator.
But, under the law, opportunity alone for wrongdoing is not sufficient. Outside of such opportunity, there must be evidence of acts or circumstances from which the jury may find that the fraud was perpetrated — the undue influence exercised. We have read the record with care, and are unable to find any testimony which even remotely indicates that either Frank or his mother influenced or sought to influence the making of the will.
Both had a perfect legal right to persuade the testator to leave his property as he did, and, if they had done so, the will would still stand as testator’s will, if at the time of its execution he was of sound mind and the instrument represented his own desires in the premises. The record shows that the testator consulted two reputable lawyers before the will was drawn; that some time elapsed after such consultations before he gave final instructions for its preparation; that he went alone in each instance; and (excluding the testimony improperly admitted) that no one except the lawyer who drew the will knew of its existence until after the death of the testator. Considering the character of the testator for thrift and industry and his principles (or prejudices) as to the use of intoxicating liquors, the disposition he made of his estate should create no unfavorable comment. At any rate, it was his estate, and he had the unquestioned right to make such disposition of it as he saw fit. He made his will and lived for two years and eight months thereafter, during all of which time he was in full possession of his mental faculties and transacted his business, but made no change in his will. We are of opinion that the motion to direct a verdict for proponents at the close of contestants’ case should have been granted. Many errors are assigned upon the refusal of the court to give proponents’ requests to charge and upon the charge as given. Our conclusion upon the principal question renders discussion of those assignments unnecessary, though some of them are not without merit.
• The judgment is reversed, and a new trial ordered.
Steere, O. J., and Moore,' Kuhn, Stone, and Ostrander, JJ., concurred. McAlvat, J., concurred in the result. Bird, J., did not sit. | [
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Brooke, J.
(after stating the facts). The history of this legislation is too well known to require much comment. The old or ad valorem system of taxation of mortgages was believed to be unsound economically as well as inefficient in operation. It seemed to result in many instances in the imposition of a double tax upon the same property. While doubtless intended as a relief to the borrower, its tendency seemed to be to increase his burden, and it placed domestic lenders of money upon real estate security at a distinct disadvantage when compared with the nonresident lender, in whose hands the mortgage escaped taxation.
Primarily the legislation was doubtless enacted to correct an alleged economic fallacy, and secondarily to place foreign and domestic loaners of money upon an equal footing. There can be no doubt that, if relator and the Harris Trust & Savings Bank (the mortgagee-trustee) choose to rest their respective rights upon the original instrument and the record thereof in the three counties named, they have a right under section 6 of the statute to do so. The mortgage would then remain under the ad valorem system of taxation, and, the mortgagee-trustee being a foreign corporation, no tax of any nature could be imposed or collected thereon. This, however, it seems is impracticable. The original mortgage contemplates the acquisition by the mortgagor of real estate and franchises outside the three counties named, but within the State. It further contemplates the subjection of such after acquired property to the lien of the mortgage and the issuance of additional bonds upon the faith of such added security. While the amount of bonds to be issued under the mortgage is presently limited to $5,500,000, this amount can be indefinitely increased by the joint action of the mortgagor and the bondholders. So that, if we understand the contention of relator, we have here an instrument which, at the time of its record, and up to January 1, 1912, stood as security for $1,250,000 only, but which through the acquisition of other property and the issuance of further bonds may in the future be enlarged to any indefinite amount without the payment of the tax imposed by the statute.
We are clearly of the opinion that this position is not tenable. To so* hold would be to enable this relator to acquire real estate and other property without limit, to borrow money thereon and escape the payment, while all others in performing the same acts since January 1,1912, would be subjected to the payment of the impost. Every such act of the relator is in effect the making of a new loan. It acquires property by purchase and borrows money thereon. The fact that the original mortgage was recorded prior to the passage of the act can surely produce no such anomalous situation. Whenever (after January 1, 1912) it becomes necessary for relator, in order to subject newly-acquired property to the lien of the mortgage, and to give notice thereof to the world through registration, we are of opinion that such registration may be had only upon compliance with the terms of the act. This would certainly compel the payment of the specified tax upon all issues subsequent to that date. The contention of relator that it is, in any event, entitled to the registration of the supplemental instrument, we think unsound. The recital in that instrument describing the original mortgage and the record thereof, if recorded in Calhoun county, would (probably) be sufficient notice to the world of the character and extent of the lien imposed by the original instrument.
Upon this point relator’s contention is based upon the language found in section 3, which provides:
“Such certificate shall not be required with any mortgage made to indemnify the mortgagee as surety, or to secure the performance by the mortgagor of any contract which does not require the payment of a specified sum of money, nor with any mortgage made to correct or perfect a mortgage previously recorded, on which the charges imposed by this act have been paid, if no new or additional indebtedness is created thereby.”
Two answers present themselves to this contention. First, the supplemental instrument cannot be construed as in any true sense correcting or perfecting the original mortgage; and, second, by means of the second instrument a new or additional indebtedness is created. But why should relator be entitled to record upon payment of the tax upon the amount of the bond issue since January 1, 1912, only ? By withholding the instrument from all further record, it is entitled to issue bonds thereunder, and in accordance with its terms, and as to such issues no tax can be demanded. But if it, for any reason, desires to record the same in a new county, why should it not com ply with the terms of the statute, and pay the tax upon the whole amount issued at the timé the instrument is presented for record ? It may he said that as to the $1,-250,000 issued prior to January 1, 1912, the relator, not having paid the tax, has indicated an intention to kéep the mortgage under the ad valorem system, and that, as to that amount, it should be relieved of the tax. It cannot be denied that such a result would be equitable, for it may be supposed that, when the original mortgage was executed, relator made its financial engagements upon the basis of the law as it then stood, but' the State in the exercise of its sovereign powers may, at will, change its methods of taxation. Moreover, the statute will be searched in vain for any authority for such action. Section 2 of the act imposes the tax, without exception, upon all mortgages recorded on or after the 1st day of January, 1912. The instruments here tendered for record come clearly and literally within the designation. Even though one of them has been heretofore recorded, they are now to be recorded, and it is that act which under the statute imposes the tax. Relator is not obliged to tender the instruments for record; it does so voluntarily.
A further reason for this view is presented in the fact that the newly-acquired property sought to be subjected to the lien becomes by virtue of the supplemental instrument (and perhaps by the original mortgage as well) security for the whole debt, as well that portion incurred prior to January 1,1912, as the portion incurred subsequent to that date.
The writ is dismissed.
Steers, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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Moore, J.
In this case the question is: Who of the parties has the superior right in ten shares of the capital stock of defendant company ? Complainant asserts that he is the owner; while defendant contends it has a lien upon the stock which is superior to and takes precedence over the right claimed by complainant.
Defendant is a banking corporation. On December 31, 1910, Frank G. Jones, the then owner of ten shares of its capital stock, became indebted to defendant, which debt was evidenced by the following writing:
“Muskegon, Michigan, Dec. 31,1910.
“ On demand after date I promise to pay to the order of Muskegon Savings Bank, at its banking office in Muskegon, Mich., five thousand dollars, $5,000.00, for value received, with interest at the rate of six per cent, per annum after date, and I herewith deposit with said bank as collateral security for the payment of this note, or of any other indebtedness by me to said bank, one hundred shares of American Electric Fuse Company as evidenced by certificate number 17, and I hereby give to said bank or its assigns full authority and power to sell, transfer and convey the said collateral security, or any part thereof, on the maturity of this note or any time thereafter, or before maturity of this note, in'ttya event of said securities depreciating in value, at public or private sale, at its discretion, without advertising the same, or giving me any notice, with the right of said bank or its assigns themselves to be the purchasers, and to apply the proceeds of such sale or sales, first, to the payment of the expense of such sale or sales, and the balance to the payment of this note including interest thereon; and in case the proceeds of the sale of thesaid collateral security shall not cover the said expense of sale, and principal and interest of this note, I promise to pay the deficiency forthwith after such sale.
[Signed] “Frank G. Jones.
“No. 115. Due — Demand.”
Payment of this note at maturity, or on demand at any time thereafter, was guaranteed by the American Electric Fuse Company upon the back of the instrument. No demand for payment of this obligation was made until the afternoon of June 10, 1911.
On the 8th of June, 1911, Mr. Jones, then the owner of the stock, indorsed it in blank and delivered it to the Union National Bank of Muskegon as collateral security for a loan of $1,250. This debt became due July 8, 1911, and on December 5, 1911, in pursuance of a proper notice, the stock was sold to complainant for the consideration of $1,250.
On December 13, 1911, complainant presented to defendant this certificate indorsed in blank by Mr. Jones, with evidence of sale to complainant, and demanded that a new certificate be issued to him, offering to surrender to defendant the old certificate No. 288 for that purpose. Defendant refused to comply with this demand, claiming that Mr. Jones was indebted to it in the sum of $5,000 on account of the note given December 31, 1910, and that said note had matured on June 10, 1911, by reason of demand of payment that day made upon Jones, and further claiming that at the time of the making of such demand of payment defendant had no knowledge or information that Mr. Jones had pledged the stock to the Union National Bank.
The court below rendered a decree that the defendant has a valid lien on the stock, whish takes precedence over the right claimed by complainant, and directed the surrender of the certificate to defendant for the enforcement of its lien. From this decree complainant has appealed.
Counsel say the questions involved are:
(1) When did the obligation of Frank G. Jones to defendant mature, so that the statutory lien attached ?
(2) Is complainant’s ownership of the stock superior to defendant’ statutory lien ?
Under the banking laws of the State of Michigan, a bank’s lien on its stockholders’ stock is provided for by section 6098, 2 Comp. Laws (3 How. Stat. [2d Ed.] § 6404). We content ourselves with referring to the statute.
Counsel concede that, if the note of December 31,1910, is a demand note, then complainant is without remedy; but it is insisted that it is not a demand note. Their contention is stated as follows:
“We have no quarrel with the doctrine that the holder of a demand note may consider it due from the moment it is given, and may bring suit thereon without first making formal demand for payment. But in the instant case the paper writing is something more than ‘ a demand note, pure and simple.’ Nor is it necessary to resort to evidence aliunde to gather the intention of the parties. The instrument speaks for itself, and, in a voice that is unmistakable, proclaims that the parties elect to treat the words ‘ on demand ’ as of controlling significance; that they shall mean precisely what the language imports, viz., that the note shall not mature until ‘ demand.’ That such is the plain meaning of the contract is evidenced by the instrument as a whole, and particularly by that portion - thereof wherein is conferred upon defendant the following grant of power respecting the 100 shares of stock of American Electric Fuse Company pledged to defendant as collateral security, viz.:
“ ‘ And I hereby give to said bank or its assigns full authority and power to sell, transfer and convey the said collateral security, or any part thereof, on the maturity of this note or any time thereafter, or before the maturity of this note, in the event of said securities depreciating in value, at public or private sale, at its discretion,’ etc.
“We are not seeking to change the plain terms of the contract. On the contrary, we are asking for such an interpretation of the contract as will give force and effect to every provision thereof. * * * We think there can be no doubt of the meaning of the paper writing now under consideration. Construing the instrument as a whole, the conclusion cannot be avoided that the agreement of the parties was that the note should not mature until demand for payment was made. Otherwise, why provide that the stock of the American Electric Fuse Company pledged as collateral security, might be sold ‘ before the maturity of this note, in the event of said securities depreciating in value’ ? It is not reasonable to suppose that the parties intended the obligation to be a demand note, pure and simple, due from the moment it was given, when the plain language of the instrument contemplates that sufficient time might elapse before the maturity of the note to allow the collateral security to depreciate.”
We do not place the same construction upon the instrument as do counsel. The note was written upon a blank in common use by the bank when it took collateral security for its debt, and was worded to meet the actual situation growing out of debts evidenced by demand paper or time paper, as the debt happened to be. There is nothing that indicates an intention to change the rule governing the time when demand paper becomes due. The collateral was given, not only to secure the debt evidenced by the note, but “ any other indebtedness by me to said bank.”
We think that the rule stated in Citizens’ Sav. Bank v. Vaughan, 115 Mich. 156 (73 N. W. 143), and the cases cited therein, apply here. See, also, Bronson Electric Co. v. Rheubottom, 122 Mich. 608 (81 N. W. 563).
The decree of the court below is affirmed, with costs.
Steers, C. J., and McAlvay, Brooke, Kuhn, Stone, and Bird, JJ., concurred. Ostrander, J., did not sit. | [
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] |
McAlvay, J.
This is an appeal by defendants from the judgment of the circuit court for the county of Kent, in chancery, overruling their demurrer to the bill of complaint.
The sole ground of the demurrer is that the complainant has a full, adequate, and complete remedy at law. Defendants contend that the principal purpose for which this suit was instituted is to collect from the defendants money claimed to be due to the complainant for the construction and maintenance of the interlocking switch at Kalkaska. To determine this, an analysis of the bill of complaint is necessary. This pleading avers that complainant owned a railroad right of way extending from Ft. Wayne, Ind., to Mackinaw City. Mich., upon which it had operated its road for a term of years before the defendant the Kalkaska Company, a Michigan corporation, was organized; that this defendant, in order to construct its proposed road according to the map required by law filed with the railroad crossing board, would be required to make a crossing over complainant’s right of way and tracks in the village of Kalkaska in Kalkaska county; that, before any action was taken by the crossing board, this defendant applied to complainant for permission to make such crossing over its right of way and tracks, and in consideration thereof, so long as this defendant’s railroad was maintained and operated, it would pay the entire expense of making the crossing and all future protection thereof, to which offer complainant consented and a parol agreement was entered into to that effect, which need not be here set forth more at length.
The State crossing board approved the map of this defendant October 23, 1897, and ordered a crossing at grade, requiring that this defendant, at its own expense, furnish and maintain suitable crossing frogs and to erect a half interlocking switch, with derailing rails, on its tracks; that under this verbal agreement, without condemnation or other right or license, this defendant, in January, 1898, constructed its railroad across the right of way and tracks of complainant, over which it has since continued to be maintained and operated, and also in accordance with the order of the crossing board constructed and maintained at its own expense a half interlocker until August, 1908; that, during all the time after this defendant’s road was constructed, the defendant Pere Marquette Railroad Company, or its predecessors, was the lessee of defendant the Kalkaska Company’s road, and has operated the same up to the present time; that on June 3, 1907, an order was made by the commissioner of railroads (afterwards amended July 31, 1907) because the half interlocker switch provided for had become unsatisfactory and inadequate, requiring a full interlocker and derailing switch and signal system to be constructed and maintained at this crossing at Kalkaska, by complainant and the Kalkaska Company, the expense thereof to be borne one-half by each, its grantees, lessees, and operators, which order further provided as follows: “ Nothing in this order shall be construed so as tp conflict or interfere with any private contract or agreement heretofore made or now existing, or which may hereafter be entered into between the companies in interest regarding the cost and expense of construction, maintenance and operation of said appliance at the said crossing ” — that after notifying both of these defendants that it was ready to proceed to carry out said last order, and that it relied upon the verbal agreement made with defendant the Kalkaska Company already stated, and that it waived none of its rights thereunder, complainant proceeded and constructed such full interlocking derailing system as required at its own expense, and has continued so to maintain the same up to the present time. Complainant avers that the defendants, by such agreement, are obligated to pay it according to the terms thereof for all cost and expense of the construction, installation, and maintenance thereof, and asks this court to take jurisdiction of this controversy and determine once for all its rights against defendants jointly or severally and the rights of defendants as between themselves, and to take an accounting to ascertain the amount due complainant from them or either of them, and decree payment thereof, and thereby prevent a multiplicity of suits respecting the matter set forth.
Upon these allegations contained in the bill, complainant prays for a decree determining that the verbal contract between complainant and defendant the Kalkaska Company was made upon a valuable and sufficient consideration, and that it is in full force and binding upon said defendant, its successors, assigns, lessees, and operators, so long as this crossing upon and over its right of way and tracks shall be maintained. The bill prays for an accounting that the defendants pay the amount due from them, and each of them, in the premises according to the terms of said verbal agreement. There is also a prayer that, independent of any contract obligation, the defendant the Kalkaska Company should, as a reasonable and equitable compensation to complainant for the use of its right of way by said defendants for the construction and maintenance of its road thereon, pay the full expense of protection at said crossing by whatever method was required by proper authority or agreed upon between the parties, including the cost of purchase, installation, maintenance, and operation; and it also contained a paragraph in the prayer as to the time when such payments should be decreed to be made.
From this résumé of the bill of complaint it appears that primarily its purpose is to have the verbal agreement relied upon established by a decree, and its binding force upon the defendants and all others who may become interested therein, in whatever capacity, determined and decreed; that under such contract an accounting be had with the defendants to determine their status and their liability.
The sole ground of demurrer is that the complainant has a full, adequate, and complete remedy at law. A demurrer in equity operates as an admission that all material averments in a bill, which are properly pleaded, are true. Applying this rule to the instant case, it is apparent that complainant by its bill has stated a cause of action for which a court of law would not furnish a full, adequate, and complete remedy, adapted to the particular exigencies thereof, and therefore it is cognizable in a court of equity. Such court, having assumed jurisdiction, will retain it to determine all matters in controversy and the rights and liabilities of all the parties and make a final disposition of the case.
The order of the circuit court overruling the demurrer is affirmed, with costs.
Steere, C. J., and Moore, Brooke, and Stone, JJ., concurred with McAlvay, J.
Bird, J. I am of the opinion that there is an adequate remedy at law.
Ostrander, J., concurred with Bird, J. | [
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] |
McAlvay, J.
Complainant filed her complaint before a justice of the peace of the township of Ecorse, Wayne county, under the statute authorizing summary proceedings for such purpose to obtain possession of certain premises, consisting of a farm of 100 acres, held by defendants under a written lease from complainant, averring that they were unlawfully holding the premises, contrary to the terms of said lease, and that she was entitled to possession. Upon this petition the usual summons was issued, and the case was heard before the justice’s court June 7, 1910, and a judgment rendered in favor of complainant against the defendants. On June 11th following, defendants appealed from such judgment, as provided by statute, and furnished the statutory bond in the penal sum of $1,000, which said appeal, together with said bond, was duly returned by said justice and filed in said circuit court June 25, 1910. An appearance for complainant was not filed and entered in the circuit court until March 21,1911, and on the 31st day of the same month the cause was listed for trial by defendants. ' Between that date and April 15th following (the exact date does not appear), a motion in the nature of a petition was filed by complainant, which was not sworn to, to dismiss the appeal for want of prosecution. No affidavits were filed in support of this motion. The motion was resisted by defendants upon the affidavit of one of their attorneys in the case, showing, among other things, that on June 10,1910, after judgment in justice’s court and before the appeal was returned to the circuit court, complainant filed her bill of complaint in the circuit court for the county of Wayne, in chancery, against defendants, wherein she prayed as part of the relief sought that the court declare defendants to have forfeited the lease of the premises in question, which is involved in the instant case; that defendants demurred to such bill of complaint, and the demurrer was sustained in so far as the prayer for cancellation of the lease was concerned, and the bill allowed to stand as an injunction bill. Thereupon defendants’ attorneys listed the instant case for trial.
On the hearing of such motion, over the objection of defendants, complainant was allowed to testify at length relative to the land, what property defendants had there, that they had vacated the farm, and that she, with a small boy 10 years old, looked after and cared for the premises, to which the court allowed no cross-examination. Her testimony contradicted the statement in her petition that defendants continued in possession of the premises. The result of such hearing was an order and judgment dismissing the appeal for want of prosecution, and the court held that they had abandoned the land and violated the terms of the lease, and remanded the case to the justice’s court for further proceedings. From this judgment the defendants have, by writ of error, removed the case to this court.
Although several errors are assigned, the appellants confine themselves to the proposition that the court erred in dismissing the appeal, and that the final order and judgment of the court is not in accordance with the law.
The defendants had perfected their appeal from justice’s court, and filed the bond required by statute in the penal sum of $1,000. No claim is made that in making such appeal there were any defects or irregularities affecting the jurisdiction of the circuit court. The only ground for the motion of which this court will take cognizance is the claimed failure to prosecute said appeal. In the petition of complainant and her testimony, which the court admitted, but upon which no cross-examination was allowed, and also in the opinion and order and judgment much matter appears which has been presented, but, as it is entirely foreign to the question involved, it requires no consideration.
The question has been passed upon by this court, and it has been held that since the adoption of Circuit Court Rule 13, authorizing both parties to notice cases for trial, the reason for dismissing a case for want of notice no longer exists. Abe Stein Co. v. Wood, 151 Mich. 657 (115 N. W. 1046). See, also, Detroit, etc., R. Co. v. Eaton Circuit Judge, 128 Mich. 495 (87 N. W. 641).
Upon the merits of the motion, it appears that whatever delay occurred is chargeable to complainant by her proceedings on the chancery side of the court. After the demurrer was sustained relative to the cancellation of the lease, and she caused her appearance to be entered, defendants immediately noticed the case for trial. The motion was entirely without merit. The court was therefore in error in dismissing the appeal.
The order and judgment of the circuit court is reversed, and said appeal reinstated.
Steere, O. J., and Moore, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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] |
McAlvay, J.
The plaintiff, a foreign corporation, brought suit in justice’s court in the city of Detroit and recovered a judgment against defendant, a Michigan corporation. Defendant appealed to the circuit court, where the result of the trial was an instructed verdict by the court for plaintiff, upon which verdict a judgment was entered.
The facts of the case are as follows:
Plaintiff, in the year 1908, sold defendant certain nonskid chains for use upon automobiles, for which defendant gave an order, as follows:
Fee-Vinoent Electric Car Co.
344-346 Jefferson Ave.
Mail invoice to this office.
Detroit, Mioh., May 35, 1908.
D. W. Henry:
Please enter our order for the following, and deliver to freight
Fee-Vinoent Electric Car Co.
Per K. A. C.
No. 576.
This Number MUST APPEAR on Invoice 50 set chain 34-34.
Grips as per Sample Showed 6.50 per sett, f. o. b. factory.
Fee Electric Car Co.,
By Robt. L. Fee.
H-6
No allowance for Cartage or Packing.
This order was received June 27, 1908, and accepted in the following form:
The Steering Wheel Company,
Sidney, Ohio.
Order mailed. Order received.
6-27-08.
Customer, Fee Electric Co.
Ship to 344 Jefferson Ave., Detroit, Mich.
Your order No. 576.
Via freight.
Can ship about
Quantity. Description.
50 Set 2J" Henry Non-Skid Chains.
COPY.
If any correspondence is necessary regarding this order, kindly refer to our No. H-6.
IMPORTANT. — This is an exact copy of your order as entered and -will be so filled and shipped. If any errors, please notify us immediately.
The Steering Wheel Company,
Sidney, Ohio.
The goods were shipped to defendant July 10,1908, and were received in due time. Afterwards plaintiff asked for payment of these chains by letter, as follows:
The Steering Wheel Company.
Sidney, Ohio, Sept. 15th, ’ 08.
Fee Electric! Car Co.,
Detroit, Mich.
Dear Sirs:
As per inclosed statement, wo beg to call your attention to your account with us, represented by invoice of July 9th, and amounting to 8325.00, which is now past due.
In accordance with our usual custom, we would make draft on you for the amount on this date, however, not being familiar with your manner of settlement, we hesitate to take this action and trust you will favor us with remittance by return mail. In absence of settlement by the 22d instant, however, we will understand that it is agreeable to you for us to make draft and thanking you for your attention, we remain,
Yours very truly,
The Steering Wheel Co.
To this letter defendant replied, asking for an extension, as follows:
Woods Electric).
Robert L. Fee, Prest. & Gen. Mgr.
Louis Rothschild, Vice Prest.
W. W. Bock, Sect. & Treas..
• Fee Electric Car Co.,
344-346 Jefferson Avenue.
Phone Main 786. Detroit, Mich., Sept. 17,1908.
The Steering Wheel Company,
Sidney, Ohio.
Gentlemen:
Your esteemed favor of the 15th inst. received; replying will say: we would much rather you would not draw on us for our account of 8325.00 until Oct. 10th, as you must admit these chains were ordered out of season when there was absolutely no sale for them, we still have every one of them on hand and would appreciate it if you would let the matter rest until after Oct. 10th.
Trusting you will oblige us as above, we remain,
Yours truly,
Fee Electric Car Co.,
Per W. F. Doyle,
Later this request was granted by letter from plaintiff, dated September 18th.
On October 27th plaintiff wrote to defendant, calling attention to the fact, and asking for a remittance of the account.
On November 12th, defendant shipped the chains back to plaintiff, with the following letter of explanation:
Nov. 12, 1908.
Steering Wheel Co.,
Sidney, Ohio.
Gentlemen:
W.e are returning to you the 50 set Henry non-skid chains sent us some time ago for the reason that our customers will not use them, because the chain cuts the tires very badly and what few we have sold have been thrown back on our hands, and they say they won’t use them under any circumstances. We do not think they will do at all for solid tires. On the car we tried them on they cut large pieces out of the tire and almost ruined them. In fact, we bad to repair two tires on account of it. We are very sorry to be compelled to do this, but we certainly cannot use them.
Yours truly,
Fee Eleotrio Car Co.
On November 25th plaintiff acknowledged that they had notice that the skid chains had been received at Sidney, Ohio, by the railroad company, and refused to accept them, giving reasons therefor in the following letter:
The Steering Wheel Company.
Sidney, Ohio.
Nov. 25th, ’08.
Fee Eleotrio Car Co.,
Detroit,' Mich.
Dear Sirs:
We have just received notice from local railroad station to the ■effect that they have on hand, consigned by you, a box of auto ■chains, for our account. However, in view of the fact that this sale was made by Mr. Henry, who is personally responsible, we are refusing the shipment, pending instructions from him.
We are advised by Mr. Henry that he is taking up the matter direct with you, and trusting that you can arrive at satisfactory’ adjustment, we remain,
Yours very truly,
The Steering Wheel Co.
Not long after this was written,-Mr. J. B. Tucker, the president of the plaintiff company, while in Detroit, had an interview with Mr. Fee in the presence of Mr. Jones, which resulted, as defendant claims, in a new agreement between them relative to these skid chains; that they were to be held by defendant for plaintiff, to be disposed of as fast as possible, the proceeds to be sent to plaintiff. Plaintiff disputes this claim, and Mr. Tucker denies that any new agreement was made. After this interview in Detroit, Mr. Tucker returned to Sidney, Ohio, and wrote defendant as follows:
The Steering Wheel Company,
Sidney, Ohio.
Deo. 17, 1908.
Fee Eleotrio Car Co.,
Detroit, Mich.
Dear Sirs:
Agreeable to and in accordance with verbal conversation between Mr. Fee and the writer Tuesday morning last, please be bind enough to mail us an order authorizing the return of the Henry non-skid chains to you. While this may not really be necessary yet the R. R. Co. requests some authority for their files.
Thanking you for immediate attention to this matter, and trusting that you will be successful in disposing of the chains, believe us to be,
Yours .verv truly,
The Steering Wheel Co.
J B T — G
The goods were reshipped to defendant, and an attempt was made to sell the parts to certain dealers, as defendant claims, as was suggested by Mr. Tucker; but no purchasers could be found.
At the close of the testimony of both sides, counsel for each moved for a directed verdict. The court denied the motion of defendant, and instructed a verdict for the plaintiff for the sum of $378.94. The case is before us for review upon writ of error. The errors relied upon by appellant are: First, that the court was in ferror in not submitting the question of warranty to the jury; second, that the court erred in not submitting to the jury the question of the new arrangement made between the parties in this case.
In all cases where a verdict is directed against the appellant, the case made by him upon the trial will be considered in the light most favorable to appellant which may be given it.
The court, in directing a verdict upon the contract between the parties, did so upon the theory that this was a sale of goods, by sample, upon an order given by defendant, accepted by plaintiff, and the goods shipped and delivered under it. Both parties in their briefs have accepted the theory that this was a sale by sample, defendant making no claim that the acceptance of this order, which is given in the statement of facts, which states the terms upon which the goods were shipped by plaintiff, might throw doubt upon such construction, but conceding that it was a sale by sample.
The court, in delivering his charge to the jury in directing a verdict for plaintiff, held that this was a contract of purchase and sale by sample, complete in itself, and that oral testimony could not be introduced to vary its terms, and that there was no dispute that the goods furnished were not up to that sample, and that any representations of warranty given by plaintiff’s agent not contained in the writing cannot be considered.
Defendant contends that if no express warranty can be shown, these non-skid chains were represented by the salesman, who was the inventor, as fit for the use for which they were sold, which was to prevent automobiles from skidding upon wet or icy highways, and that in any event plaintiff was the manufacturer of these goods and selling them for the purpose of use as non-skid chains; that in such case of a sale by sample the law implies a warranty that the goods were reasonably fit for the use for which they were designed. There is no dispute in the case but that these'articles were manufactured and sold by plaintiff, to be used for the purpose stated. In fact, it appears from the record that they were not and could not be adapted to any other use. The general rule of law in sales by sample is, as stated by Mr. Mechem, as follows:
“ The warranty arising in these cases is that the bulk of the goods is fairly equal to the sample in nature, kind and quality, and if the bulk does so correspond the warranty is satisfied.” 2 Mechem on Sales, § 1328.
Where, however, a manufacturer sells goods by sample for a special purpose, there is an implied warranty that the bulk and the sample shall be reasonably fit for the contemplated use. 2 Mechem on Sales, §§ 1331, 1343. This is a recognized implied warranty coexistent with the warranty arising in general rule above stated.
The circumstances in the instant case when this sale was made were that the plaintiff’s agent came to defendant’s place of business with an article for sale known as the “Henry Non-Skid Chains,” of which this agent was the inventor. At the time these chains were not known to the trade and were being introduced. Plaintiff was the manufacturer. This article could only be used for the purpose for which it was sold to defendant, as both parties to the transaction well knew.
There seems to be in the authorities no disagreement that the rule in such cases is that there is an implied warranty of the reasonable fitness of the article for the use intended, and from a careful examination of the cases upon the subject it is apparent that no distinction can be made in the application of this rule between cases of this class and cases where machinery or other articles are ordered from manufacturers for a certain specified purpose, where reliance is had upon the skill and judgment of such manufacturer. An early English case of this last class, decided in 1829, was Jones v. Bright, 5 Bing. p. 533.
In the notes to Mr. Mechem’s valuable work, under the sections above cited, are many English and American cases to the same effect. In the case of Leavitt v. Fiberloid Co., 196 Mass. 440 (82 N. E. 682), reported in 15 L. R. A. (N. S.) 855, a valuable case note upon this question of implied warranty will be found. Reference is also had to Hallock v. Cutler, 71 Ill. App. 471. In the examination of the many cases of the sale of food products by sample we have discovered no authority which holds against the rule above given, that there is an implied warranty on the part of the seller that such products shall be fit for use, and many of these cases are founded upon the rule of such implied warranty first established by the English courts.
We find, from an examination of the decisions of this court, such holding in the first case involving this question, where the- sale involved an article of food, and the authorities relied upon to sustain the implied warranty of fitness for use, are the line of English authorities to which reference has already been made. Hoover v. Peters, 18 Mich. 51. In a recent case-this court has treated this implied warranty as a well-settled doctrine, where property is bought for a particular purpose and where the articles are for consumption. Cook v. Darling, 160 Mich. 475, 481 (125 N. W. 411), and cases cited.
We hold, therefore, that in the instant case, without reference to the claim at the trial on the part of defendant that there was an express warranty relative to the fitness of these goods for the purpose intended, as a matter of law, there was an implied warranty on the part of plaintiff that these goods were reasonably fit for the use for which they were purchased and sold. It follows that the trial court was in error upon this branch of the case in holding to the contrary and should have submitted the question of fact as to such fitness to the jury.
Upon the second branch of the case the contention of the defendant is that a new agreement was entered into between these parties relative to these non-skid chains, as already stated, and need not be here repeated; against this contention the court charged the jury that there was no consideration for that contract and because none of these chains were sold thereafter by defendant, and because the supplementary contract was not performed, therefore the original contract was in full force and effect and the defendant was liable. Upon this question we think that the trial court was also in error.
A reference to the statement of facts will show that it is admitted that plaintiff’s president, representing his company, came to Detroit and had an interview with defendant’s president. What occurred or what was agreed upon at that interview is not for us to determine.
The contention of defendant is that the consideration for the new agreement was that the plaintiff recognized that the goods could not be used for the purpose intended and the endeavor on the part of defendant to sell them for the plaintiff. The question involved is one well established upon authority, and one upon which this court has several times passed.
The contention of defendant is that such a verbal agreement, although at variance with the original contract between these parties, might be shown to have been made and acted upon by both parties, and the testimony on behalf of defendant tended to show such fact. This new agreement was denied absolutely by Mr. Tucker, plaintiff’s president.
As already stated, we are considering this case in the most favorable light for defendant, and, taking this testimony on its part as true, the question should have been submitted to the jury. 9 Cyc. p. 597, and cases cited; Cook v. Darling, supra, citing all the earlier decisions of this court.
The judgment of the circuit court is reversed, and a new trial granted.
Steere, C. J., and Moore, Brooke, Stone, Ostrander, and Bird, JJ,, concurred. | [
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Kuhn, J.
Clara O. Russell and Etta C. Boltwood were the owners in fee simple of certain real estate in the city of Grand Rapids, which is involved in this controversy, which property is located just west of Canal street, south of Mason street, and extending west to the center of Grand river.
On December 11, 1901, the said Clara C. Russell and Etta C. Boltwood conveyed, by an instrument in writing, to Marshall F. Buttars, trustee, of Ludington, Mich., a right of way 50 feet in width across the said real estate. This instrument provided:
_ “ That the said parties of the first part, for and in consideration of the future construction, continued maintenance and operation of a first-class, standard-gauge steam railroad (over which shall be transported passengers and freight) within the time, limits and conditions hereinafter to be defined, and for the expected benefits to be derived therefrom by the parties of the first part, their heirs, successors or assigns, and for other good, and sufficient consideration that may come to the parties of the first part, their heirs, successors or assigns by reason of the construction, maintenance and operation of said railroad by the party of the second part, his successors, or assigns, which benefits and considerations are hereby fully acknowledged as being ample and sufficient, have granted, bargained, sold and conveyed and by these presents do grant, bargain, sell, convey and quitclaim unto the party of the second part, his successors or assigns, for a right of way for a railroad forever, upon the following conditions: That the construction of said railroad shall be on, along and within the limits of this grant as hereinafter defined; that it shall be constructed across and over the pieces or descriptions of property as hereinafter described, and no deviation therefrom shall be made by the party of the second part, his successors or assigns, without first obtaining the consent and approval in writing of the parties of the first part, their heirs, successors or assigns; (that the construction of said railroad shall be fully completed and be in operation for the transportation of passengers and freight on or before three years from the date of this instrument), and when so completed, shall have full and direct connection with one or more of the steam railroads now in operation in, to and from the city of Grand Rapids, located south of what is known as the Sixth street bridge in said city, in default thereof this grant shall be void, and the said right of way herein conveyed shall revert to, and the title thereto revest in, the parties of the first part, their heirs, successors or assigns ; that this grant or conveyance of a right of way for a railroad shall at the option of the parties of the first part, their heirs, successors or assigns, be null and void and the title thereto revest to the parties of the first part, their heirs, successors or assigns, if the party of the second part shall fail in process of construction, within the limits of the city of Grand Rapids, of the roadbed for the railroad herein contemplated before the expiration of two years from the date of this instrument. The parties of the first part reserve to themselves, their heirs, successors and assigns, within the limits of this grant, the right of sewage and drainage under the tracks of the party of the second part, or those holding from and under him, his successors or assigns; said right of sewage and drainage, if made use of, to be at the cost of the parties of the first part, their heirs, successors or assigns, without damage or loss to the rights of business of the party of the second part, his successors or assigns. It is further provided and conditioned that if, after the construction of said railroad, the party of the second part, or his successors or assigns, shall at any time in the future cease to maintain and operate said railroad for the transportation of passengers and freight, for a continuous period of one year, then, in such case, this grant and conveyance shall be void and the premises herein described shall revert to and revest in the parties of the first part, their successors or assigns, the same as if this conveyance had not been made. The hereinafter-described premises, embracing both land and water, are granted and conveyed to be used solely for a right of way for a railroad and its usual requirements.”
On November 1, 1902, said Clara C. Russell and Etta C. Boltwood sold the land described in the bill of complaint to the complainant on contract, and later, on May 6, 1904, gave him a warranty deed of said property. Both the contract and the deed, in the description of the land, excepted therefrom the right of way, as follows:
“Excepting the conditional right of way heretofore granted to the Ludington Railroad Company.”
After the execution of the contract, and in the summer of 1903, the complainant filled in his lot and removed a large building 50x100 feet in size, thereon, which he thereafter occupied as a factory. In the latter part of 1903, or early in 1904, the defendant, having become the assignee of the rights of Mr. Buttars, caused a preliminary survey to be made of the proposed railroad, and later, in the fall of 1904, completed a flood wall along the river. Nothing further was done by the defendant towards building said railroad until May 5,1905, when the grading for the same was commenced, and grading was commenced on the property of the complainant in August, 1905. It is undisputed that the road was not completed nor freight or passenger trains run in 1905. It is the claim of the complainant that when the defendant company started to grade for the railroad he protested against it and thereafter consulted his attorney; that negotiations were entered upon with representatives of the railroad company looking to the possible settlement of the controversy, but no settlement was arrived at, and a stipulation was entered into by the parties to submit the whole matter to the Kent circuit court, in chancery.
The complainant occupied the building on the premises for a rug and carpet manufactory, and the right of way occupied by the defendant runs within seven feet of the rear of complainant’s building. It is the claim of the complainant that the right of way prevents him from having access to his building in the rear with teams and rigs, and cuts off his access to the river and the use of the river bank. The dirt, soot, and sparks emitted from the locomotives of the defendant are also claimed to have done damage to his business of cleaning and manufacturing carpets and rugs. It is also claimed by complainant that he intended to build a barn and storage warehouse on the land in the rear of the building now occupied by the railroad, but that he has been deprived of this right by the defendant; and that he has been obliged to go to the expense of renting barn room elsewhere, and has lost the advantages and profits he could have had from a storage warehouse in connection with his business.
The first question, and, as it seems to us, the all-important one in this litigation, is to determine the legal effect of the instrument of December 11,1901. It is claimed by the defendant that it was a conveyance in fee with a condition subsequent. Complainant insists that it simply created an easement, and that the fee remained in the grantors, subject to the easement granted therein. A careful study of the instrument itself satisfies us that it was the intention of the grantors simply to grant a right of way across the premises in question, and not to convey the fee to the land. This intention, we think, can be gathered from the express language of the instrument itself; in the granting clause this language being used, “ for a right of way for a railroad.” Again:
5‘This grant shall be void and the said right of way herein conveyed shall revert to and the title thereto revest in the parties of the first part.”
Again:
“ This grant or conveyance of a right of way for a railroad shall at the option of the parties of the first part, their heirs, successors, or assigns, be null and void and the title thereto revest to the parties of the first part, their heirs, successors or assigns.”
The instrument further provides that no deviation shall be made by the party of the second part without first obtaining the consent and approval, in writing, of the parties of the first part, and also reserves to the parties of the first part the right of sewage and drainage across the premises. The language in the instrument brings it within the rule laid down in the case of Pinkum v. City of Eau Claire, 81 Wis. 307 (51 N. W. 552), in which the court said:
“The deed set forth in the complaint undoubtedly granted to the city an easement over the lands described in the deed for the purposes set forth therein. It was an easement in gross, because it does not appear to be appurtenant to any estate in the land, and it was upon condition. Whether the condition was precedent or subsequent is not necessary to be decided upon this appeal, and is not decided. The easement was also in perpetuity.
“ That an easement may be created in fee is well settled. The fee of land may be in one person, and the fee of an easement upon such land in another. 2 Bl. Com. chap. 7, pp. 106, 107; Story v. Railroad Co., 90 N. Y. 122, 158 [43 Am. Rep. 146]; Child v. Chappel, 9 N. Y. 255; Nellis v. Munson, 108 N. Y. 453 (15 N. E. 739). Technically, an easement in fee must be appurtenant to land; and consequently, the easement here created, being in gross, is not strictly an easement in fee, but, being granted to the city, ‘ its successors and assigns,’ it is capable of assignment, and is therefore undoubtedly in perpetuity, through not technically in fee. Poull v. Mockley, 33 Wis. 482. The difference is purely technical, and does not affect any substantial right in this case. Therefore, when this deed was executed and delivered, the fee of the land remained in the grantors, Mead and Bolles, subject to the conditional easement in perpetuity created by the deed. Being the owners in fee of the land, they could, of course, convey it to another; and their grantee would stand in their shoes. Why, then, cannot such grantee bring an action against one claiming an easement on condition to take advantage of condition broken or enforce its performance ? It is said that he cannot because of the long-settlecj) common-law principle that a condition in a deed can only be reserved to the grantor or his heirs, and not to a stranger. This rule applies to land conveyed upon condition subsequent, and the reason of the rule is that the estate is not defeated, though the condition be broken, until entry by the grantor or his heirs, and there is nothing to assign, save a mere right of entry, which at common law is not assignable. Nicoll v. Railroad Co., 12 Barb. [N. Y.] 460; Id., 12 N. Y. 121; 1 Greenl. Cruise, tit. 13, chap. 1, § 15.
“No such rule can apply here, because the reason does not exist. In this case the plaintiff does not claim as the assignee of a mere right of action or right of entry on land, but he claims as owner in fee of land burdened with an easement granted upon condition, which condition is alleged to have been broken. It would be a singular rule of law which would forever prevent the owner in fee of lands from questioning the right of another to maintain an easement upon his land, when there existed a violation of the express condition upon which the easement was granted. No such rule exists.”
See, also, Reichenbach v. Railway Co., 10 Wash. 357 (38 Pac. 1126).
Numerous authorities are cited in support of the proposition that the right to take advantage of the breach is neither assignable nor severable, and the leading case of Nicoll v. Railroad Co., 12 N. Y. 121, is relied upon. In this line of cases, however, the court in each instance held the conveyance to be a granting of the fee in the land, with a condition subsequent; but, as outlined in the decision quoted, supra, the rule in case of an easement is different, as the title to the land has never been divested, and the owner of the land, whoever he may be, can take advantage of the breach. It is further contended by the defendant that the language used in the conveyance to com plainant, “ excepting the conditional right of way heretofore granted to the Ludington Railroad Company,” created an exception of the land described in the conveyance of the right of way, and that the complainant never purchased the land upon which the right of way is situated. If such had been the intention of the parties, it would have been easy to so have expressed themselves in the deed. As this court said in the case of Bolio v. Marvin, 130 Mich. 82 (89 N. W. 563):
“ There was not the sligntest occasion to include this land in the deed, unless some interest was intended to be vested in the grantee.”
The case of Reynolds v. Gaertner, 117 Mich. 532 (76 N. W. 3), is called to our attention, but in that case the exception expressly provided for the exemption of a certain specified amount of land; the following language being used, “except two and forty-six hundredths acres to the Chicago & Canada Southern Railroad.”
In the instant case the language used in this conveyance, it seems to us, is very significant, and clearly indicates that the grantors did not claim to except or reserve a fee in the land. We think the rule is well established in Michigan that the assignee or grantee has been held to be the proper person to enforce the forfeiture of an easement, and is entitled to all the rights his or her grantor might be, or have been, entitled to. In this connection the language in the instrument of December 11, 1901, is significant:
“The grant shall be void and said right of way shall revert to, and the title thereto revest in, the parties of the first part, their heirs, successors or assigns.”
French v. Lumber Co., 135 Mich. 424 (97 N. W. 961); Williams v. Flood, 63 Mich. 487 (30 N. W. 93); Gamble v. Gates, 92 Mich. 510, 514 (52 N. W. 941); Monroe v. Bowen, 26 Mich. 523; Johnson v. Moore, 28 Mich. 3; Haskell v. Ayres, 32 Mich. 93; Macomber v. Railroad Co., 108 Mich. 491 (66 N. W. 376, 32 L. R. A. 102, 62 Am. St. Rep. 713); City of Detroit v. Railroad Co., 33 Mich. 173, 314, 315.
It is urged that the principle of equitable estoppel should be applied, because complainant waited until expensive improvements, which were a great benefit to his property, were made; and that he stood by without objection and allowed defendant to expend large sums on the right of way.
Complainant testified that some time in 1905, when the construction was begun, he protested to the men in charge of the work, and that he ordered them off his property, and that when’they failed to do so he placed the matter in the hands of his attorney, and that no further steps were taken, because immediately negotiations were entered upon with a view of leading to a settlement. Thése negotiations could amount, at the most, only to a parol license to the defendant to build its road. We do not think that it can be said, under these circumstances, that complainant has estopped himself from asserting his rights. Wood v. Railroad Co., 90 Mich. 334 (51 N. W. 363).
To hold that the complainant, in this case, is estopped from asserting his alleged rights would, in view of the fact that the instrument of date December 11, 1901, simply granted an easement, operate as a transfer of the title to real estate; and title cannot be obtained in that way. Nowlin Lumber Co. v. Wilson, 119 Mich. 406 (78 N. W. 338); Minneapolis, etc., R. Co. v. Marble, 113 Mich. 4, 10 (70 N. W. 319); Harlow v. Railroad Co., 41 Mich. 336 (3 N. W. 48); Nims v. Sherman, 43 Mich. 45, 53 (4 N. W. 434); Stevens v. City of Muskegon, 111 Mich. 73, 83 (69 N. W. 337); Petit v. Railroad Co., 119 Mich. 493, 493 (78 N. W. 554, 75 Am. St. Rep. 417); Stewart v. McLaughlin's Estate, 136 Mich. 1, 5 (85 N. W. 366, 87 N. W. 218); Moore v. Pear, 129 Mich. 513, 515 (89 N. W. 347).
The judge, in his decree, provided—
“ That said defendant, within 30 days of the date of this decree, may commence proceedings under the statute to condemn said property now occupied by it and described in the fifth paragraph of this decree, and in default thereof that complainant, within 10 days of the expiration of said 30-day period, shall execute, acknowledge, and deliver to said defendant a deed of said premises described in the fifth paragraph of this decree, upon the payment to complainant by defendant the sum of eight hundred and fifty dollars ($850), which sum is hereby adjudged and decreed tb be the value of said property, together with such other damages as complainant has sustained by reason of the acts and possession of defendant, as aforesaid, and also pay the costs of this suit to be taxed.”
The stipulation by which this cause was brought into court provided that the court should determine the value of the premises and damages, past, present, or prospective, suffered by the complainant. An examination of the record satisfies us that the court was justified in fixing the amount of damages that he did, and his determination with reference thereto will not be disturbed.
The decree is affirmed, with costs.
Steers, C. J., and Moore,' McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred. | [
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Stone, J.
On July 11, 1912, the Michigan State Telephone Company, the Home Telephone Company of Michigan, the Detroit River Telephone Company, the Wayne County Telephone Company, the Macomb County Telephone Company, and the Interstate Long Distance Telephone Company, filed a petition with the Michigan railroad commission praying that certain contracts (a copy of each being attached to said petition) be authorized by said railroad commission to be consummated. The said contracts were in effect a sale of the properties of each of the defendant telephone companies (other than the Michigan State Telephone Company) to the Michigan State Telephone Company, claiming authority therefor under and by virtue of Act No. 138 of the Public Acts of 1911 (3 How. Stat. [2d Ed.] §§ 7222 et seq.). Certain other companies asked and obtained leave to intervene, and a hearing was had. By reason of its connection with the Michigan Independent Telephone & Traffic Association, one of the interveners, complainant company was heard in the matter and was mentioned in the order granted by the commission, and it is claimed by the complainant that it thereby became a party to the record. On the 9th day of August, 1912, defendant the Michigan railroad commission, after a hearing, made an order authorizing the consummation of said contracts, thereby authorizing a merger of all the defendant telephone companies as prayed for in the petition; said order to become effective August 15, 1912. On August 14, 1912, complainant filed its bill of complaint in the circuit court for the county of Ingham, in chancery, praying, among other things, that said order of said Michigan railroad commission be set aside and vacated, and that it be enjoined from issuing said order, and the defendants telephone companies be enjoined from consummating such merger. On August 16, 1912, complainant caused to be served on the defendants a copy of the bill of complaint, with a notice that application for an injunction would be made to the said circuit court, in chancery, on August 21,1912. On the last-named date, and in pursuance of said notice, all parties appeared and were represented by counsel, and defendants interposed and argued their respective demurrers, hereinafter referred to. On September 9, 1913, the circuit court sustained the demurrers and entered a decree dismissing the bill of complaint. Whereupon complainant appealed from such decree to this court.
Appellant alleges and claims that Act No. 138 of the Public Acts of 1911 (3 How. Stat. [3d Ed.] §§ 7333 et seq.) is unconstitutional so far as authorizing a merger of competing telephone companies is concerned, and also that the order of the said Michigan railroad commission should be vacated and set aside, for the reason that it enlarges the scope of the said act, even if constitutional, by creating a legalized monopoly in the Michigan State Telephone Company in certain territory of this State therein defined; and that the circuit court erred in sustaining the demurrer and dismissing the complainant’s bill.
The eighth and ninth paragraphs of complainant’s bill are as follows:
“ (8) Your orator avers that while said order of the Michigan railroad commission attempts to protect the rights of your orator as to present existing contracts for service over other lines, yet it avers that at the expiration of said existing contracts there is no provision for renewal thereof, and only existing contracts with companies doing business in the State of Michigan are attempted to be protected, all of which is contrary to public policy, and public convenience, and detrimental to your orator’s best interests.
“ (9) Your orator avers that it is informed and believes it to be true that said Michigan State Telephone Company is about to consummate said proposed merger of the properties, rights, and franchises of the said Home Telephone Company of Michigan (and the other companies named) with its own properties, and said Michigan railroad commission will permit said unlawful merger or consolidation to be made unless restrained by order of this honorable court, and your orator avers that such merger and consolidation of said companies will give the said Michigan State Telephone Company a monopoly of the telephone business to the exclusion of the independent telephone companies within a portion of the State of Michigan, to the great damage and irreparable injury of your orator and the public generally.”
Without setting forth in full the .demurrers of the defendants, it may be sufficient to state that the fourth ground of the joint demurrer of all the defendants, except the Michigan railroad commission, is as follows:
(4) “ The bill is filed to redress an alleged injury to the complainant and ‘ to the public generally ’ as shown on the face of the bill. A private relator may not maintain an action in this form, but it must be brought through the attorney general.”
(5) “ Under the provisions of Public Acts of 1911, Act No. 138, the Michigan railroad commission have authority to make the order they did.”
The first ground of the demurrer of the Michigan railroad commission is as follows:
(1) “The court has no jurisdiction, at the suit of said complainant, to entertain the said bill of complaint and grant relief or any part thereof prayed for therein.”
(2) “ Act 138 of the Public Acts of 1911 is not violative of section 21, article 5, of the Constitution of the State of Michigan.”
(5) “Act 138 of the Public Acts of 1911, authorizing the consolidation, merger, and purchase of telephone companies, is valid and constitutional.”
1. The first ground of the demurrer urged by defendants is that the attorney general is a necessary party to these proceedings, and a private individual may not maintain this form of action.
While paragraph 6 of the bill of complaint indicates that it is claimed that the order of the commission violates the Sherman.anti-trust law (Act July 2, 1890, chap. 647, 26 U. S. Stat. 209 [U. S. Comp. Stat. 1901,' p. 3200]), yet, as previously pointed out in the bill, the averments thereof expressly show that this cannot be true. As the bill distinctly states that the several defendants are all corporations operating lines or exchanges doing a telephone busi ness within the State of Michigan, we shall therefore not discuss or consider any Federal questions, as there is no averment or intimation in the bill that any of the companies involved are doing or contemplating an interstate commerce business. There is no allegation in the bill of complaint that the complainant is affected in any way or manner other or different than is the public generally. Act No. 138, Public Acts of 1911, bears intrinsic evidence of legislative intent to confine its provisions to intrastate telephone business. Such intention is fairly inferable from the language of both the title and the act.
We think it is well settled in this State that grievances which afflict the community must be redressed by those to whom the law has intrusted the duty of interference. Such has been the rule of law in this State for many years. Miller v. Grandy, 13 Mich. 540. It was there held that private persons could not assume to themselves the right to institute proceedings in chancery to redress grievances on behalf of the public. They can only proceed where their individual grievances are distinct from those of the public at large, and such as give them a private right to redress. In that case Justice Campbell said:
“ This bill can only be sustained by holding that every private citizen has the right to call public officers to account for their official misconduct, affecting the body politic, and not specially one man more than another. There were a few cases decided in the Supreme Court of New York, which recognized such a right; but they have been overruled repeatedly, and the doctrine is now well settled that a private taxpayer, suffering under no special grievance, is not even a proper party to a bill filed to restrain threatened misconduct. * * * And grievances which afflict, the community must be redressed by those to whom the law has intrusted the duty of interference.”
In Steffes v. Moran, 68 Mich. 291 (36 N. W. 76), it was held that public wrongs must, in this State, be redressed by the people’s public agents, and not by private intervention; and that the case of Miller v. Grandy, supra, laid down the Michigan doctrine on this subject, with its reasons, and has been adhered to.
In Sweet v. Smith, 153 Mich. 674 (117 N W. 59), this court was asked to review an order of the circuit court for the county of Wayne denying a mandamus, prayed for by the relator and others, compelling the respondent “to execute and enforce all the laws pertaining to the preservation of the Sabbath, or the first day of the week, at the baseball park of the Detroit club.” The purpose of the proceeding was to prohibit Sunday baseball playing in the city of Detroit. In a per curiam opinion this court said:
“ It does not appear that the grievance of the petitioners is any other than that sustained by other citizens of the city of Detroit. Neither does it appear that the attorney general of the State has refused to take action in the matter. Under these circumstances, petitioners have no right to relief. The grievance complained of is purely a public grievance, and redress should have been sought by the people’s public agents, and not by private intervention. See People, ex rel. Bussell, v. Inspector and Agent of State Prison, 4 Mich. 187; Miller v. Grandy, 13 Mich. 540; People, ex rel. Delbridge, v. Green, 29 Mich. 121; People, ex rel. McBride, v. Board of Sup’rs of Kent County, 38 Mich. 422; Steffes v. Moran, 68 Mich. 291 (38 N. W. 76); Smith v. City of Saginaw, 81 Mich. 123 (45 N. W. 964).
“ The decision of the circuit court was clearly correct, and we decline to review it in this court.”
This subject was fully discussed and many cases cited in the recent case of International Harvester Co. v. Eaton Circuit Judge, 163 Mich. 55, at pages 66 and 67 (127 N. W. 695, 30 L. R. A. [N. S.] 580, Ann. Cas. 1912A, 1022). Under the provisions of Act No. 255, Public Acts of 1899, and the supplementary act of 1905, relating to trusts and monopolies, the attorney general is directed to institute quo warranto proceedings, or proceedings by injunction or otherwise, in so far as a corporation is con cerned, and no such right of action is given, as is claimed here.
In our opinion this ground of the demurrer was well taken and should be sustained.
2. The other grounds of demurrer above referred to maybe disposed of together, in answer to the claim of the complainant that the last clause of section 6 of Act No. 138, Public Acts of 1911, is unconstitutional because not within the title of the act; it being the claim of complainant that such provision is void under section 21 of article 5 of the Constitution of the State of Michigan, which provides:
“No law shall embrace more than one object, which shall be expressed in its title.”
The title of the act is as follows:
“An act to declare telephone lines and telephone companies within the State of Michigan to be common carriers, to regulate the same and prescribing a penalty for the violation of this act.”
It is the argument of the complainant that that part of the act authorizing a merger of competing companies cannot be said to be expressed in the title; that there is nothing contained in the title that would indicate any authority to consolidate or merge competing companies; and that the title of an act should indicate the object to be attained. It is the further claim of the complainant that the only power sought to be given by the act to the railroad commission to authorize a merger is contained in the clause of section 6, reading as follows:
“ Provided, that the provisions of this section in regard to switching charges shall not apply when two or more competing companies in any locality shall merge or consolidate their property and business in such locality under the direction of the said railroad commission of this State, or when one competing company shall sell or lease its plant, property and business to another company in the same locality, such merger, consolidation, sale or lease, if with the approval of the said railroad commission, being hereby declared lawful.”
It is well that we add the final clause of this section, which is as follows:
“ The Michigan railroad commission may make all such reasonable rules or orders as may be reasonable or necessary to carry out the intent of the provisions of this section, and refusal to obey such rules, orders or provisions of this section shall be unlawful.”
The act gives the railroad commission general control over telephone companies, refers to the subjects of the service, facilities, and use of lines, and the title of the act is “to regulate the same.” It does not read to simply regulate the rates, etc.; it must mean to regulate the operation of telephone lines and telephone companies. This certainly must mean regulation of the business, and regulation embraces both government and restriction, as we have frequently held.
We think that it cannot be reasonably urged that the only power given to the railroad commission to authorize a merger or purchase by one company from another is contained in the clause quoted in section 6. A careful reading of the act discloses that it is provided in section 2 of the act that the Michigan railroad commission shall have the general control of all telephones, telephone lines, and telephone companies within the State. This it seems to us has to do with regulation, and falls within the title of the act. Section 3 requires telephone companies to furnish reasonably adequate service, at reasonable rates, and gives to the commission the power to act upon the rates fixed, and to regulate by rules or order any service or facility. Section 4= is the anti-rebate section, which is cleariy a regulation against unjust discrimination, etc. Section 5 relates to the same subject. The first part of section 6 provides for physical connections on the order of the commission, interchange of service, division of expense, switching service, compensation, settlement with terminal companies, subscribers to pay fee, and switching point to be designated by railroad commission. All of these matters are provided for before we reach the proviso above set forth. All these matters have to do with regulation. Then comes the clause providing that the provisions of the section in regard to switching charges shall not apply when two or more competing companies in any locality shall merge or consolidate their property and business in such locality under the direction of the said railroad commission of this State, or when one competing company shall sell or lease its plant, property, and business to another company in the same locality, with the approval of the railroad commission, which is thereby declared lawful. May it not be said that there is a restriction on the power of the railroad commission ? It was given general control by section 2.
This court held, in Westgate v. Adrian Township, 161 Mich. 333 (126 N. W. 422), that by the term “regulate,” in the title of an act, both government and restriction are intended. That case reviews and discusses most of the decisions of this State upon the subject, and may be cited as covering the entire question of title. It was there held that any provision germane to the subject expressed in a title may properly be included in the act; that it is sufficient if the title fairly expresses the subject, or is sufficiently comprehensive to include the several provisions relating to or connected with that subject,, citing Cooley on Constitutional Limitations (6th Ed.), p. 172; People v. Mahaney, 13 Mich. 481; People v. Kelly, 99 Mich. 82 (57 N. W. 1090); Soukup v. Van Dyke, 109 Mich. 679 (67 N. W. 911); Fortin v. Electric Co., 154 Mich. 316 (117 N. W. 741). An examination of the following cases cited in that opinion, holding that the word “regulate ” means both government and restriction, is enlightening upon this subject: Dillon v. Railroad Co., 19 Misc. Rep. 116, 43 N. Y. Supp. 320; City of Rochester v. West, 164 N. Y. 510 (58 N. E. 673, 53 L. R. A. 548, 79 Am. St. Rep. 659); McWethy v. Power Co., 202 Ill. 218 (67 N. E. 9). The following authorities also may be examined upon the point that this prohibition of the Constitution should receive a reasonable and not a technical construction, and that none of the provisions of a statute should be regarded as unconstitutional where they all relate, directly or indirectly, to the same subject having natural connection and not foreign to the subject expressed in its title. Phillips v. Bridge Co., 2 Metc. (Ky.) 219; State, ex rel. Stuart, v. Kinsella, 14 Minn. 524 (Gil. 395).
We think the title in question is clearly broad enough to comprehend the subject-matter of this statute, including the provisions of section 6. All the rest of the act deals with matters of regulation, pure and simple.
It may be well to call attention to the fact that our statute (section 8572, 8 Comp. Laws, 4 How. Stat. [2d Ed.] § 9605), by a provision which has been upon the statute books for many years (being “An act to authorize any corporation organized under the laws of this State, to sell its property, franchise, rights and privileges to any other corporation organized under the same or any similar laws of this State for the same corporate purpose”), has been held by this court to be applicable to telephone companies. Michigan Telephone Co. v. City of St. Joseph, 121 Mich. 502 (80 N. W. 383, 47 L. R. A. 87, 80 Am. St. Rep. 520). This act provides that any corporation formed under any general law of this State may, at any general or special meeting of its stockholders, with the consent of three-fourths of its capital stock, sell and convey all of its property and franchises, rights, and privileges, or any portion of its real property or franchises, to any other corporation formed under the same or any similar law for corporate purposes of the same character.
It appears by this record that the different companies were authorized to act by their stockholders. We quote the following language, which is common to all the contracts, at the close of the contract by the Michigan State ■ Telephone Company, with the Wayne County Telephone Company, to wit:
“In witness whereof, the Michigan State Telephone Company, the party of the first part, has caused this contract to be executed by Its president and secretary, being formally authorized so to do at a meeting of the directors of that company regularly called, and the Wayne County Telephone Company, party of the second part, has caused this contract to be executed by its president and secretary by greater than a three-fourths vote of all of its stockholders at a meeting duly and regularly called for the purpose of passing upon this contract.”
By said Act No. 138 the railroad commission has general control over such companies. The telephone law, so-called (section 6691, 2 Comp. Laws, 3 How. Stat. [2d Ed.] § 7214), permits a telephone company to purchase and hold stock in any corporation owning or controlling by patent, or otherwise, the use of any instrument or device necessary or convenient for use, in the transmission or reception of telephonic messages, and to purchase and hold all real property necessary to carry out the purposes of its organization. Under the averments of this bill, and certainly under the facts as found by the railroad commission, no restraint of trade is made out, because the only effect upon the business is to increase and improve it. To that extent one corporation, when properly regulated and controlled, is preferable to a number of distinct corporations, acting independently.
We think the circuit court reached the correct conclusion in sustaining the demurrers and dismissing complainant’s bill.
The decree of the circuit court is affirmed, but without costs to either party.
Steers, C. J., and Moore and Ostrander, JJ., concurred with Stone, J.
Brooke, J., concurred upon the first ground discussed.
McAlvay and Bird, JJ., concurred with Brooke, J.
Kuhn, J., did not sit. | [
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Bird, J.
The bill of complaint in this cause was filed to aid in the enforcement of an execution for $231.69 against the defendant Clinton McGahen. After a hearing the complainant was denied relief, and his bill dismissed.
It appears that in the years 1903 and 1904, when Clinton McGahen became indebted to complainant, he was the owner of an 80-acre farm in Oceana county, upon, which he lived with his wife and son, Monroe. In November, 1905, he conveyed 40 acres of the farm to the son. It is charged that this was done to defraud complainant out of his claim. The defendants deny any fraudulent intent on their part, and insist that the sale was made in good faith for a consideration of $800; and that the consideration was actually paid by the son.
There are several suspicious circumstances attending the sale and transfer of the 40 acres to the son, which tend to characterize the transaction as a fraudulent one, and it is our purpose to advert to some of them: (a) The elder McGahen knew, when he made the conveyance, that he was indebted to the complainant; and that he was conveying away the only property which he possessed that was not exempt from levy and sale upon execution. (6) Complainant called upon Clinton McGahen at his home on November 15, 1905, and urged him to make payment of his note. On the following day McGahen made the conveyance to his son. (c) The consideration named in the deed of the land was $800. This was shown to be double its market value, (d) The vendee of the land was a member of the family, and had little or no means with which, to purchase it.
While these circumstances are not conclusive of the-question they are very suggestive of fraud upon the part of those participating in the transfer. The defendant Monroe McGahen professed a lack of knowledge that his father was indebted to complainant, notwithstanding he had lived at home and had been present at least on one occasion when complainant called and requested payment of his note. A close reading of his cross-examination, leads to the belief that he was fully informed of the transactions between his father and the complainant.
The chancellor who heard the case observed and commented upon the suspicious features of the transfer, but was of the opinion that defendants had overcome them by their proof; and he expressed the opinion that complain ant should be denied relief because of his laches in waiting nearly four years before attempting to enforce his claim. The debt seems to have been contracted in 1903 and 1904. The transfer was made in November, 1905. Attachment proceedings were begun and the land attached in September, 1907. The doctrine of laches could be invoked only in behalf of the son, who had made improvements upon the land transferred. Under our view of the case, he was an active party to the fraud, and there was no such delay as would entitle him to have that doctrine applied in his behalf.
The denials and explanations of the defendants have failed to convince us that no wrong was intended to the complainant. The case made by the complainant, aided as it is by the statute (3 Comp. Laws, § 10203, 5 How. Stat. [2d Ed.] § 12864), clearly entitles him to the relief which he seeks. The decree of the trial court, dismissing the bill, will be reversed, and the conveyance of the 40 acres will be vacated and set aside as to complainant’s judgment with directions to the sheriff to proceed with the execution of his writ.
By stipulation of the parties, the decree in the trial court corrected the spelling of the names of the parties to the deed. As to this part of the decree, it will be affirmed.
The complainant will recover his costs in both courts.
Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Ostrander, JJ., concurred. | [
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MoAlvay, J.
Respondent in this case was prosecuted before the circuit court for the county of Hillsdale and by a jury was convicted of the common-law offense of ob structing the administration of justice. The case is before this court on exceptions before judgment.
At the time of the commission of the alleged offense, there was a case pending against the respondent in the circuit court, aforesaid, upon an information filed therein against him, which case was upon the October, 1911, calendar of said court, which court convened October 9, 1911, and when the cause was reached upon the calendar the prosecutor answered that he was ready; that a motion for a continuance was filed by respondent, and the case was. put at the foot of the calendar for further showing to be made on October 23d. Upon the said information therein the name of Nuel Craig was indorsed as a witness, and he was subpoenaed to appear and testify October 23d.
In the instant case the respondent is charged in the information (omitting the formal parts) as follows:
“ On the 18th day of October, in the year one thousand nine hundred eleven, at the township of Cambria, in the said county of Hillsdale, one William J. Boyd, of said city of Hillsdale, having on the 9th day of October, A. D. 1911, been duly arraigned in the circuit court for the county of Hillsdale, on an information charging him with having kept a place where intoxicating liquors were kept for sale, sold, and furnished, in violation of Act No. 207 of the Public Acts of Michigan for the year 1889, as amended, and his plea thereto of not guilty having been entered by order of said court, and said cause having been set for trial at the October, 1911, term of said court, and one Nuel Craig having been duly summoned as a witness for the people on the trial of said cause to appear in said court on the 23d day of October, 1911, to testify in said cause, yet the said William J. Boyd, well knowing the premises, and with intent to obstruct and hinder the due course of justice, then and there wilfully and unlawfully dissuaded, hindered, bribed, hired, carried, and spirited away the said Nuel Craig, for the purpose of preventing him from appearing to testify as a witness on the trial of said cause, as aforesaid, to the obstruction and hindrance of public justice.”
Upon the trial evidence was introduced tending to show that respondent knew that Craig was the principal witness on the preliminary examination of the case in which he had been subpoenaed in the circuit court to testify; that respondent, having made arrangements and agreed to pay Craig $50 to leave the State and not be present to testify, took him in an automobile, with the driver of the car, on the night of October 18, 1911, from Hillsdale county to Pioneer, Ohio; that after lunch, paid for by respondent, they went to Montpelier, Ohio, where respondent left Craig at the Wabash depot, handing him $50, and then respondent, with the driver, returned to Hillsdale in the car. No evidence was introduced on the part of respondent.
The assignments of error which are relied upon by respondent relate to rulings of the court upon objections, and will be discussed in the order presented.
The respondent objected to receiving any testimony in the case under the information, for the reason that it alleged no offense known to the law. This was overruled and exception taken. At the close of the testimony on the part of the people, a motion was made on his part to strike out all the testimony in the case for the same reason, which was also denied.
The contention of the respondent is that this information contained no allegation showing that the court in the original case against respondent had any jurisdiction, for the reason, among others, that it did not show that the local-option law was in force in Hillsdale county.
The question presented is one of first impression in this court. At the common law, to dissuade or prevent, or to attempt to dissuade or prevent, a witness from attending or testifying upon the trial of a cause is an indictable offense. 29 Cyc. p. 1333, and cases cited. In Canada it is made an offense by the Code. Can. Or. Code, § 180. By United States statute it is made an offense to impede or obstruct the due administration of justice by certain acts done with reference to a cause pending or contemplated to be brought in some Federal court.
Some of the United States have also enacted statutes of like character. We have no statute in this State upon the subject. The case is therefore prosecuted as a common-law offense, and in case of a conviction is punishable under section 11795, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14987), which reads as follows:
“Every person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this State, shall be punished by imprisonment in the county jail not more than two years, or fine not exceeding two thousand dollars, or both, in the discretion of the court.”
It appears to be well settled upon authority that—
“Where dissuasion of or interference with a witness in a criminal proceeding is the basis of the charge, it is not necessary to allege that an indictment was found in the original case, the sufficiency of such indictment, or the guilt or innocence of the person therein charged.” 15 Enc. PI. & Prac. p. 27.
The question in the instant case is not the guilt or innocence of the respondent in the main case, nor the sufficiency of the information or the jurisdiction of the court, but whether the respondent is guilty of obstructing or interfering with the administration of justice. In an examination of the authorities we find none in conflict with the authority above cited. In one of the earliest authorities, where the exact question was before the Supreme Court of the State of Vermont (in 1847), that court said:
“Much of the argument at the bar has been expended upon supposed irregularities in the original proceedings against Goodale & Poor, and insufficiencies in the indictment against them prepared and laid before the grand jury. That indictment is not recited, and need not be in the present; it is not, consequently, before us. In offenses of this kind guilt or innocence does not depend upon the guilt or innocence of the original party, against whom the witness may be subpoenaed, or recognized, to appear; nor upon the sufficiency or insufficiency of the original indictment. To thwart or obstruct the due administration of justice by violence, bribery, threats, or other unlawful means, whether in preventing the attendance of witnesses, jurymen, or other officers of court, is a high-handed offense, which strikes at the vitals of judicial proceedings, and subjects to severe animadversion in every well-ordered community. The attempt to commit such an act, it is well settled, is itself a substantive offense, punishable by the common law.
“In this instance, the attempt was unsuccessful; the witness, Warren, attended court and testified before the grand jury, as he had bound himself by recognizance to do. Moreover, the parties against whom he appeared must be taken to have been innocent of the crime imputed to them; and, in addition to this, the indictment against them, if in the description of the offense it followed the complaint filed before the magistrate, I am inclined to think was fatally defective. Still, all these circumstances are entirely consistent with the respondent’s guilt. Since the case of State v. Keyes, 8 Vt. 57 [30 Am. Dec. 450] (1836), it is quite unnecessary to pursue this subject at any length.” State v. Carpenter, 20 Vt. 9, 12.
See, also, 3 Bishop’s New Criminal Procedure, § 897; 2 Wharton’s Criminal Law (11th Ed.), § 1597. See, also, State v. Holt, 84 Me. 509 (24 Atl. 951); Commonwealth v. Berry, 141 Ky. 477 (133 S. W. 212, 33 L. R. A. [N. S.] 976, Ann. Cas. 1912C, 516), and notes.
The court was not in error in admitting the testimony under the information, for the reason that the information sufficiently charged an offense.
It is further contended that the record shows that there was no obstruction to the due course of justice by the acts of respondent, if he committed them; and that, at most, these acts could only be charged as an “attempt.” The charge in the information is that respondent, “well knowing the premises,” and “with intent to obstruct and hinder the due course of justice, then and there wilfully and unlawfully dissuaded, hindered, hired, carried, and spirited away the said Nuel Craig, for the purpose of preventing him from appearing to testify as a witness on the trial of said cause.”
There was evidence in the case tending to show that re spondent had carried and spirited away this witness, for the purpose of preventing him from appearing and testifying. This charges a substantive offense; that respondent did this with intent to obstruct and hinder the due course of justice; therefore, when the acts charged were committed, the offense charged was complete. As will be seen from some of the cases already cited supra, only an “attempt ” was charged. Respondents in these cases were charged with “endeavoring to dissuade, hinder, and prevent witness from appearing and testifying,” and were held guilty, although the witness was not thereby prevailed upon to leave the jurisdiction. This objection was included in the motion to strike out the testimony and direct a verdict for respondent, on the ground that the offense proved was not the offense charged in the information. We determine that the court properly overruled the motion and submitted the facts to the jury.
Error is also assigned upon the refusal of the court to charge as follows:
“ If Craig absented himself because he wanted to avoid being a witness, and not because of any act of the defendant, then the defendant is entitled to your verdict of ‘Not guilty.’ ”
We do not think that the request, in the form presented, was warranted by the testimony of this witness, as appears from the colloquy between the court and counsel, where attention was drawn by the court to the fact that the witness Craig did not testify as claimed, but testified that he had made up his mind that he did not want to be a witness; and, further, the charge of the court fairly submitted the question in charging the jury upon the facts they must find beyond a reasonable doubt, in order to return a verdict of “ Guilty;” also that, unless they did so find, they must return a verdict of “ Not guilty.”
The last assignment of error relates to remarks of the prosecutor in his opening and in his final argument to the jury. The remarks in his opening argument related only to the service of the subpoena on Craig, and do not require discussion. The objection requiring consideration is to the last words of a long paragraph of the final argument of the prosecutor, as follows:
“Any explanation of why Mr. Boyd, in the automobile with Mr. Craig, was at the Wabash in the city of Montpelier, Ohio, at midnight on the 18th of October ? Any reason ? I haven’t heard it advanced. Have you ?”
This paragraph began as follows:
“ I listened for an explanation from my brothers as to the reason that Mr. Boyd, on that night, should stop down there at Pioneer, Craig in his automobile, paid for by Boyd, buying a midnight lunch for Craig and Mr. Harmon [the driver].”
The claim is made that these words, objected to, were prejudicial and ground for reversible error. As appears from our quotation from the beginning of this paragraph, the prosecutor makes it in answer to the argument of opposing counsel, not for the purpose of calling attention to the fact that respondent did not testify in the case; and any inference to that effect is not the natural inference to be drawn from this argument. The case is not within the cases relied upon by respondent. This argument was not of that class which has been held by this court to constitute prejudicial error.
We find no error in the record of this case. The conviction is affirmed, and the case will be remanded to the circuit court, with directions to proceed to judgment.
Steers, C. J., and Moore, Brooke, Stone, Ostrander, and Bird, JJ., concurred. Kuhn, J., did not sit. | [
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McAlvay, J.
This case is controlled by the decision in Soule v. City of Grand Haven, ante, 276. The decree is reversed, and a decree will be entered in this court granting the relief prayed.
Complainant will recover costs of both courts.
Steers, C. J., and Moore, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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Steere, C. J.
This action is brought to recover damages for breach of a land contract given by defendant on February 20, 1908, agreeing to sell and convey to George Way, son of plaintiff, for the sum of $300, a tract of land, containing three and a fraction acres, situate in S. W. i of section 34, in Pine Grove township, Van Burén county. The contract was in writing, and signed by both said Root and Way. By its terms a payment of one-half was to be made at once and $50 per year for three successive years, with interest, at 6 per cent, per annum, defendant to give a deed of the premises when Way had fully performed on his part. The contract was silent as to possession. There was a small house on the property, in which Way was residing with his family as a tenant of Root at the time of the purchase. He continued his residence there, and kept possession of the property until after the payments were completed. He made the first payment of $150 on receiving the contract, and the subsequent payments on or before the time they fell due, until the purchase price was fully paid. Root accepted them all, and indorsed them on the contract.
Soon after the last payment, Root promised to give Way a deed as soon as he could see a man named Kingsley, who lived in the township, and have him write out the deed. Some time later, in a conversation on the subject, he admitted Way had fully performed, but stated it was impossible to give him a deed owing to Mrs. Root’s refusal to join in the conveyance. Various interviews and negotiations were had, during which the parties together interviewed an attorney, who advised them to try to persuade Mrs. Root to sign, and to get together and fix it up amongst themselves. All attempts in that direction failed, and no deed was ever given. It appears, undisputed, that the property was part of a 60-acre farm, the title to which rested in Root and his wife as tenants by entirety. This fact was first learned by Way during the negotiations after he had made full payment on his contract. On September 11, 1911, George Way and wife assigned their interest in said contract to his father, the plaintiff, and moved onto a 40 acres across the road which the father had sold to George, leaving the house they had formerly occupied vacant, though some of their furniture remained there until later.
Plaintiff having received an assignment of the contract, demanded a deed of the premises, and, being refused, began this suit September 26,1911. November 3,1911, he served written notice on defendant that he had not been in possession of the property since obtaining assignment of the contract, and claimed no right of possession. November 17, 1911, defendant tendered and paid into court $244.61 to cover damages and costs, which tender was refused as insufficient. Plaintiff’s declaration contained both the common counts and special counts on the contract. A demurrer to the declaration was overruled, and defendant then pleaded the general issue, giving notice of special defenses, including tender. ' The case was fried before a jury, resulting in a verdict and judgment in favor of plaintiff for $650, and defendant has removed the case to this court for review upon writ of error.
At the trial, after counsel for plaintiff had made his opening statement to the jury, counsel for defendant moved the court to require plaintiff to make an election of counts, saying:
“Now, they must either go to trial upon the contract, or they must go to trial upon the common counts in assumpsit. They cannot do both.”
This motion was overruled, and error is assigned on such ruling; it being defendant’s claim that the counts are inconsistent, and the case was submitted to the jury on a “ double-barreled proposition.” Where counts in a declaration are inconsistent and contradictory, the theory and facts of one conflicting with those of another, plaintiff should be required to elect and not be allowed to take repugnant positions. Neither can a plaintiff abandon the theory on which he has tried his case under one count and recover under a conflicting one. Numerous cases are cited by defendant fully sustaining these well-recognized principles, but we are unable to find that such repugnancy or misjoinder of counts exists here.
Counsel for plaintiff in his opening statement said:
“ The plaintiff relies on his contract. This is not a suit brought on the theory of rescission. This is a suit brought on the theory of full and complete performance on our part and failure to perform on the part of the defendant, and for damages by reason of his failure to perform.”
This claim was consistently adhered to during the trial. We think the practice (and ruling of the court) are in harmony with the import of Doty v. Nixon, 109 Mich. 266 (67 N. W. 116), Glover v. Radford, 120 Mich. 542 (79 N. W. 803), and certain language found in Wyatt v. Herring, 90 Mich. 581 (51 N. W. 684), which is cited by defendant, and holds, as that case was presented, plaintiff could not abandon the theory on which he tried the case under a special count on contract and recover on a quantum meruit for the value of services under the common counts. The court there said:
“ It is undoubtedly true that, had the plaintiff upon the trial given testimony -under his common counts showing what his services were worth for the work and labor performed by him for the defendant in procuring a sale of the property, he would have had a right to submit that question to the jury, but his whole case was based upon his special count and all of his testimony directed to the contract as claimed by him.”
The counts in this case cover the same cause of action and recovery could be had under either on the same testimony according as the jury found the facts to be. The special count sets up the contract, full performance by George Way, failure to perform by defendant Root, and assignment of the contract to plaintiff. If the jury found from the testimony that defendant acted in bad faith, the measure of damages would be, under this count, the value of the property contracted to be conveyed at the time of the breach, if in good faith, the money paid with interest, and recovery would be limited to the latter amount under the' common counts. Where the testimony is along the same lines and a portion of the facts in relation to which there is testimony would justify one verdict, and all the facts claimed would, if found by the jury, justify a larger verdict, the plaintiff is not required to prejudge what he will be able to convince the jury of, but may plead to meet the contingency, so long as his position is not inconsistent and misleading. In such case an election of counts is usually discretionary. Cook v. Perry, 43 Mich. 623 (5’ N. W. 1054); McLennan v. McDermid, 50 Mich. 379 (15 N. W. 518).
It is contended in behalf of defendant that possession of the premises had not been restored or tendered to him at the time this action was begun; that it was incumbent on plaintiff, before recovery could be had, to allege in his declaration and prove on the trial whether or not the vendee went into possession under his contract, and, if so, that he had tendered repossession. This objection could be urged with more force had the contract of purchase provided for possession. Possession prior to full performance is not a part of the estate bargained for according to the instrument of purchase. George Way was occupying as a tenant of defendant when the contract was made, but was not residing on the premises when suit was brought. That some of his effects still remained in the house might raise a material question as to his yet technically being in possession, if the contract had given him possession, but it was silent on that subject. He being in possession as a tenant when the contract of purchase was made, it would not necessarily change the nature of his occupancy. The contract for a deed containing no stipulation as to the time when the vendee might occupy the premises, it is construed as entitling him to possession only on full performance by him and receipt of his deed. Druse v. Wheeler, 22 Mich. 439; Gault v. Stormont, 51 Mich. 636 (17 N. W. 214).
Plaintiff’s action for damages in this case is not, properly speaking, based upon a rescission of the contract, but upon and in affirmance of it on plaintiff’s part, and because of a breach by defendant. Where the vendor is guilty of a failure to perform, and the vendee has made full performance, the latter may proceed in equity for specific performance where performance is possible, or by an action at law for damages. In such case it is not necessary that the purchaser should rescind the contract, restore possession, or otherwise place the vendor in statu quo in order to maintain the action. Miller v. Roberts, 169 Mass. 134 (47 N. E. 585); Fletcher v. Button, 4 N. Y. 396; 39 Cyc. p. 2088; Stockham v. Cheney, 62 Mich. 10 (28 N. W. 692).
It is contended in behalf of defendant that the contract was void from its inception, and therefore cannot be made the basis of a cause of action, for the reason that the land described in it was owned by defendant and his wife together as tenants by entirety, and she did not join in executing the instrument. That the contract is invalid in so far as it is powerless to affect her interests in, or the title to, the property it describes is undoubtedly true. Neither a husband nor wife can alone convey or incumber the estate vested in them as tenants by entirety. In that light and for such purpose such an instrument has been held void by this court. Counsel for defendant cite numerous cases to that effect and especially refer to Naylor v. Minock, 96 Mich. 182 (55 N. W. 664, 35 Am. St. Rep. 595), wherein it is said in substance:
“ Neither the husband nor the wife could convey the estate vested in them in the entirety, unless both joined, and any instrument by which either attempted to make such conveyance would be void.”
“ The term ‘ void ’ is perhaps seldom, unless in a very-clear case, to be regarded as implying a complete nullity; but it is, in a legal sense, subject to large qualifications, in view of all the circumstances calling for its application and the rights and interests to be affected in a given case.” Brown v. Brown, 50 N. H. 538.
This rule is recognized in Lawrence v. Vinkemulder, 157 Mich. 294 (122 N. W. 88), as applicable to the decisions of this court where the term is used in holding conveyances void as an attempt to convey; it being there said:
“The statements of the court in these cases that such contracts were ‘ wholly invalid,’ ‘ a nullity,’ ‘ absolutely void,’ etc., must be considered as made with reference to the question involved.”
It was there held by a divided court that a contract to convey the defendant’s homestead, not executed by his wife, was invalid to create a right of action for damages, but the opinion sustaining that principle as to homesteads, which are specially guarded by constitutional provision, recognized the distinction, and says:
“Thecase of Dikeman v. Arnold, 78 Mich. 456[44 N. W. 407], is not inconsistent with this conclusion. That case differs from this in that the contract covered lands not embraced within the homestead.”
In the case at bar none of the land covered by the contract was embraced within a homestead.
There is no limit on the amount or value of the realty which husband and wife may hold as tenants by entirety as in case of a homestead, and they are not therefore analogous. Such a holding is not protected by any constitutional . provision, and is not regarded by the courts with the same tender consideration as homestead rights, involving a home and shelter for the family.' It is a species of title which may, and sometimes does, afford opportunity to sequester substantial assets from just liabilities. When land is so held, neither can affect the other’s or his or her own rights in the property by a separate transfer. An agreement to convey, though invalid to affect the title to real estate, in whole or in part, may yet be valid between the parties as a basis for the recovery of damages by reason of its breach. In Miller v. Smith, 140 Mich. 524 (103 N. W. 872), where defendants, having only a partial interest as heirs in certain real estate, contracted to sell the same and give perfect title, this court said:
“The fact that specific performance could not be enforced would not bar plaintiff from his right of action at law to recover damages for such failure.”
This rule is too well settled to call for further discussion or citation of authorities. The fact that the relation of husband and wife is involved, and she has an interest in the property, does not necessarily militate against that rule. In the case of Dikeman v. Arnold, supra, defendant made a contract, not signed by the wife, for the sale of certain land, a part of which was their homesteád. The wife would have a dower interest in all. The contract was held void as to the homestead and valid as to the rest in an action for nonperformance; this court saying:
“We think the contract was good between Arnold and the plaintiffs. He knew when he made it that he could not perform it without the signature of his wife to the deed. He, in effect, bound himself to propure such signature. It in no wise differs in this respect from a contract to sell lands which one does not own at the time he makes such contract. The fact that one did not have the legal title at the time he made the contract, and could not procure it afterwards, has never been recognized as a legal defense to an action for breach of the contract.”
The instrument under consideration was not, properly speaking, an attempt to convey the title to the property described in it,- but an agreement that the vendor would convey a good title at a stated future time, should the vendee perform on his part. When the time to convey arrived, it was not a case of inability on the part- of Root to perform by reason of the subsequent discovery of a previ ous hidden and unsuspected defect in his title. The title was clear and without complications in himself and wife. There was nothing secret or hidden from him as to its condition. He knew, or is presumed to have known, how it was held. But, if he did not in fact clearly understand the nature of his wife’s interests and rights, he at least knew he was a married man, and that to convey a complete title to this real estate his wife must join him. He testifies:
“I knew that when I came to make a deed my wife would have to sign it to make a good title.”
With knowledge that his power of performance was contingent on her assent and co-operation, he contracted to convey this land, of which he was in possession and' control, which involved no homestead rights, in which he had an interest and of which he claimed ownership, but which by reason of his wife’s interest and the condition of its title he was powerless to convey, and therefore the Tendee powerless to enforce specific performance.
Titles by entireties, as known under the common law, are virtually abolished in this State and survive only as to husband and wife, who at common law were one person, and as to whom it was, and is, held that when title to real estate passed to them together, during coverture, they as one person took but one estate seised by them singly per tout, and not per my etper tout as in ease of joint tenancy. It is in most essentials like a joint tenancy, the owners holding the estate together and the survivor taking the whole, but modified by the common-law doctrine that the married pair is one person, and that neither half of that person in law can transfer or affect the title alone, but both halves must act together as a whole, while joint tenants may alien their interests individually at pleasure. This anomalous and sui generis species of tenancy remains, and is the well-settled law of this State under a clear line of decisions, and cannot be questioned. When the husband and wife have thus together acquired an unincum bered title to real estate they have laid up treasures, where, without their concerted action, neither moth, nor rust, nor thieves, nor creditors, nor anything else but death or the tax gatherer can divest them. But beyond that we see no reason and know no authority for extending personal protection to the husband when he assumes to deal singly with property so held, and makes contracts in relation to it which he cannot perform. We think that the husband’s contract to sell realty held by himself and wife under a tenancy by entirety,'though not susceptible of specific performance, nor valid to affect in any way either her or his title, has validity between him and the party to whom he contracts to sell as foundation for an action to recover damages for his breach of it.
As to the measure of damages, the' trial court charged the jury that, in case it was found the defendant had not acted in good faith, it would be a fair market value of the land in the open market, as it then lay, taking into consideration the soil, the improvements, and uses for the purposes it was reasonably susceptible of under conditions as they then existed; but, if he acted in good faith, the measure would be the payments plaintiff had made, with interest, evidently being guided in giving such instructions by the rule stated in Hammond v. Hannin, 21 Mich. 374 (4 Am. Rep. 490). Defendant excepts to this, and urges the equity rule stated in Warvelle on Vendors (2d Ed.) p. 229, that, in case of rescission, where the vendee has paid and been put into possession—
“The decree should in general restore the money to the purchaser without interest and the land to the vendor without rents and profits.”
This is not a case of rescission by the vendee and a suit to recover the purchase money paid. Therefore the latter rule is not controlling. In commenting on Hammond v. Hannin, supra, counsel for defendant say it has not since been recognized by this court and the doctrine of good or bad faith has been repudiated by the Federal courts and a large majority of the State courts of last resort:
“That the good or bad faith of a vendor should not enter into the matter at all. The vendee should not have his damages measured by any such standard.”
Assuming, without admitting, that this view is correct, the defendant was not prejudiced by the instructions upon that point. The court submitted the question of good or bad faith to the jury with the instruction that, if the vendor did not act in good faith, the measure of damages would be the market value at the time of the breach, which is the general rule, with those elements eliminated, where the vendee is entitled to his bargain, and seeks to recover damages for wrongfully being deprived of it. That general rule has been recognized by this court, where the question of good or bad faith was apparently not involved (Dikeman v. Arnold, supra), and in Allen v. Atkinson, 21 Mich. 351, found in the same volume as the Hammond Case, Justice Cooley, who wrote both opinions, sustains that rule. We find no prejudicial error in the charge of the court in that particular.
The court did, however, contrary to the request of defendant’s counsel, distinctly instruct the jury that no offset could be allowed for rental or use of the premises by George Way during the time that he was in possession, for the reason that title to the property was in Root and his wife, and recovery for its use could only be had in a concerted action brought by them in their joint names. In this we think the court was in error. Dealing with the use and usufruct of the property is not the same as dealing with its title.
The rights of husband and wife in such an estate are purely common-law rights, to be tested and interpreted by the rules of that law as they existed before the wife was emancipated as to her individual property interests. By the common law the husband controlled his wife’s estate, and had the usufruct, not only of real estate standing in both their names, but of that sole seised by his wife, whether in fee simple, fee tail or for life. It remains the law that, while coverture continues, the husband has the control, use, rents, and profits of arl estate by entirety. In this State, contrary to the general doctrine, as stated by some authorities (21 Cyc. p. 1201), it is held that growing crops on the land cannot be seized on execution by his personal creditors, but otherwise the general rule as to entireties remains as stated. Morrill v. Morrill, 138 Mich. 112 (101 N. W. 209, 110 Am. St. Rep. 306, 4 Am. &Eng. Ann. Cas. 1100). Under this law defendant had the possession, use, and control of the property. He was entitled to the income from it. While outside creditors might not reach it, he was empowered to take, deal with, and dispose of what it produced. He had a right to rent the property to others and collect the rent. He rented it to George Way, and put him in possession. His possession during the time in question was that of a tenant at will, or from month to month, defendant having no right to sell him the property and the contract of sale which he gave being silent as to possession. But he could lawfully collect rent from Way, and evict him in case of default, and Way could enforce a lease of the property given him by defendant alone. Pray v. Stebbins, 141 Mass. 219 (4 N. E. 824, 55 Am. Rep. 462). We are well satisfied that defendant, being entitled to the rent, could maintain an action in his own name to collect it, and we think he is entitled to recover it as a counterclaim when sued by the party owing it, or his assign.
Both George Way and defendant testified as to the rental value of the premises, but that issue was not submitted to the jury, and consequently the same was not allowed. George testified that up to the time of making the contract he was paying $4 per month. Defendant, who was manifestly interested in depreciating the value of the property for purpose of the trial, testified that he had rented the house and garden for 50c a week at one time, that George Way paid $1.75 per month, that the rental value was perhaps $30 per year, and he presumed he had said it was worth $40 per year.
The contract was entered into February 30,1908. This suit was begun September 36, 1911, shortly after George Way moved from the premises. Should plaintiff see fit to remit $175 from the judgment in this case, as a proper offset for rent, it will stand affirmed, without costs to either party, otherwise it is reversed and a new trial granted, with costs.
Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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] |
Bird, J.
The complainant filed her bill of complaint against the defendant to obtain a decree of divorce from him upon the ground of extreme cruelty. The defendant denied the allegations of cruelty, but made no defense to them. The contest centered around the question of alimony. The chancellor granted complainant a decree of divorce, gave her the custody of the children, and awarded her the sum of $3,500 as permanent alimony, and the further sum of $25 per month to be paid for the support of the children. The defendant appeals from this part of the decree, claiming that the allowance is too large, and out of proportion to the means which he actually possesses.
The record shows that defendant is engaged in a growing and prosperous wholesale and retail meat business in the city of St. Joseph, and that he is the owner of real and personal property. The complainant’s proofs show that a fair value of his property is $12,000 over and above the good will of the business. The testimony offered on. behalf of defendant shows that he is not worth in excess of $7,000. The chancellor, after hearing the witnesses on the question of value, inspected the properties himself, and came to the conclusion that defendant’s net worth was $9,000. We have examined all of the testimony in the record bearing upon these estimates, and we are of the opinion that the chancellor did the defendant no injustice in the conclusion which he reached on the question of value. If any error as to value was made, it was in fixing it too low, rather than too high. The good will of the business was not taken into account, and the record shows that it is a valuable asset. Had this been the only asset defendant possessed, it would have been given serious consideration in fixing the alimony.
But it is urged with much earnestness that, if the chancellor was right in the conclusion he reached as to value, the sum awarded to complainant is much too large. In support of this contention, it is pointed out that these parties were married only about 10 years, that complainant had no means when she came to him, that the net value of his property has not increased during the years they have lived together, and that she ought not to be permitted to go away with upwards of a third of his property. It appears that complainant is now 43 years of age, and that, when she married and went into defendant’s home, she assisted in caring for some of his children by a previous marriage. As a result of her marriage with defendant, two children were born to them, one of whom is now six years and the other seven years of age. There is no testimony in the record from which we may conclude that complainant has been other than a good wife and discharged her duties as such. She may not have helped to increase defendant’s worldly possessions during their married life, but defendant has helped to increase her burdens by the eare and attention she will have to bestow upon the children for several years to come. And then, too, it must not be overlooked, that the defendant’s cruel treatment of complainant has made possible this division of the property. A six per cent, income on the award would amount to $210. This, added to the $300 awarded to the children, will make an annual income of $510. To live on this annual income will compel complainant and her children to live economically. This sum is probably very much less than it cost defendant to support them before they left his home. Under all the circumstances of the case, we are not disposed to view the award as excessive.
The decree of the lower court will be affirmed. Complainant’s application for an allowance to cover counsel fees and printing brief in this court has been considered, and an allowance of $150 will be made therefor, in lieu of all taxable costs.
Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Ostrander, JJ., concurred. | [
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Stone, J.
This case arises out of injuries sustained by the plaintiff in a collision between a wagon and team, driven by her husband, in which she was riding, and a passenger train of the defendant company, known as train No. 420, at the intersection of McKinley avenue, or Eighth street, and Jefferson street, in the city of Bay City, on the 10th day of July, 1911. The place and sur roundings involved, and referred to in the testimony, are shown on the blueprint appended to the record.
The claim of the plaintiff is substantially as follows: That on the day named she was riding in a wagon drawn by two horses, with her husband, Charles Fike, and her child, then six years of age; that Charles Fike was driving east on McKinley avenue, or Eighth street, in the city of Bay City; that McKinley avenue was intersected by Jefferson street at right angles; that the tracks of the defendant company run north and south along the center of Jefferson street; that on reaching the crosswalk of said street she looked and saw a train approaching from the north; that the train was then in the neighborhood of Seventh street, one block to the north of the intersection, which was about 300 feet distant; that the horses’ heads were then within a few feet of the track; that the horses suddenly became frightened by the blowing off of steam from the engine of the train, and jumped forward onto the track; that they became unmanageable and the wagon cramped on the track; that she and those with her were thereby placed in a position of peril, and remained there for a period of at least ten seconds; that during all this time they were in plain view of the engineer of the train in question; that the engineer had his head out of the cab, and was looking directly at the wagon and its occupants; that the engineer knew that the plaintiff was in a position of danger, and would be injured if the train were not stopped or its speed slackened; that after discovering her peril the engineer could have stopped his train by the exercise of ordinary care, or slackened its speed and avoided the accident; that he did not do so; that a collision resulted; and that the plaintiff was injured to the extent that necessitated the amputation of her left hand between the wrist and elbow, and the amputation of her left foot; also, that she received injury to her head, and other injuries.
On the other hand, it is the claim of the defendant that, at the time and place in question, the defendant was not at any time or under any circumstances guilty of any negligence; that it was not guilty of any negligence in the first instance, and it was not guilty of any subsequent negligence in respect to the transaction; that the plaintiff by her contributory negligence put herself in a place of danger; that at all times, and under all circumstances, the defendant was free from negligence, and it is its claim that the accident is what would be known as an unavoidable accident, or, at least, one where the defendant was not in any way to blame for its occurrence.
The accident occurred soon after 8:40 o’clock in the afternoon of a bright, clear day. The train was a passenger train which had just left the depot some 1,700 feet north of the place of the injury; the said depot being located between Third and Fifth streets. That the blocks between Fifth and Ninth streets on Jefferson street áre 300 feet long. That the streets between and including Fifth and Ninth, and exclusive of Center street, which is also an intervening street north, were 60 feet wide; Center street being 99 feet wide. Jefferson street runs practically north and south, and McKinley avenue east and west. Both streets are straight at the point of intersection. The railroad track is in the center of Jefferson street, and it is 30 feet from the center of the track to the lot lines. The sidewalk, both on McKinley avenue and Jefferson street, is 6 feet wide, and the inside edge of the sidewalk is about l-§- feet from the lot line. On Jefferson street there are 7C feet between the outer edge of the walk and the curb of the pavement. On McKinley avenue there are 9 feet of grass plot between the curb and the walk. The McKinley avenue pavement, which is asphalt, was 24 feet wide, and that of Jefferson street, which was of brick, was 30 feet wide. From the west line of the railroad track to the curb on Jefferson street was 12C feet. From the west rail of the tracks to the west side of Jefferson street within the line of McKinley avenue it is 27C feet. The track is of standard gauge, 4 feet Sc-inches. The brick pavement on Jefferson street was put in before McKinley avenue was paved. It had been the custom for many years to pave the wings down from the edge of the pavement the full width of the street. The pavement on Jefferson street at said intersections was put in the full width of the street from lot line to lot line all the way down. McKinley avenue, when paved subsequently, was paved with asphalt up to the wings of the Jefferson street pavement. The undisputed evidence shows that the rails of the railroad track were laid flush with the pavement in Jefferson street, in accordance with the requirements of the city. The evidence is also undisputed that any one approaching Jefferson street on McKinley avenue can see the rails of the track for some distance before reaching the crossing; many of the witnesses testifying that the track could be seen as far back as the alley, half the width of the block.
The undisputed evidence shows the make-up of the train to have been as follows: The engine, No. 59, and tender were 55 feet 4 inches in length; baggage car, No. 474, was 69 feet long, and was next the engine; followed by combination mail and baggage car, No. 424, 53 feet long; the smoker, being car No. 705, was 60 feet long; and day coach, No. 914, was 77 feet 10 inches long. These measurements are from bumper to bumper. The total length of the train would thus be 315 feet 2 inches. This accident occurred in the residence portion of the city, and the evidence shows that there was considerable traffic upon McKinley avenue by reason of its having been a paved street.
The case was submitted to the jury solely upon the theory that it was a question of fact for them to determine as to whether or not the defendant company was guilty of any gross or subsequent negligence which might permit the plaintiff to recover, notwithstanding the contributory negligence of her husband and herself. The court refused to direct a verdict for the defendant at the close of the plaintiff’s proofs, and also at the close of the case, to which ruling defendant’s counsel duly excepted. Among the grounds upon which the motions to direct a verdict were based were that the defendant was not guilty of any negligence, either wilful, gross, or subsequent; that the plaintiff was guilty of contributory negligence; and that even if the defendant might be said to have been guilty of any negligence, whether gross, or subsequent or not, the plaintiff was guilty of concurrent negligence. The jury rendered a verdict in favor of the plaintiff for $35,000, and a judgment accordingly followed.
A motion for a new trial was made upon 16 enumerated grounds, among which are set forth the claims that the verdict was against the weight of the evidence and that it was excessive. The motion for a new trial was denied, and the court assigned reasons therefor in writing, which reasons were duly excepted to by defendant.
Including the plaintiff, there were 11 eyewitnesses to the injury sworn upon the trial, 9 for the plaintiff and 3 for the defendant, including the fireman, who, while present, claims he did not see the actual collision. We cannot undertake to quote and analyze the entire testimony in this opinion. The record is a large one, and there are 17 counts in the declaration. The case was submitted to the jury, however, upon the last 3 counts of the declaration alleging subsequent negligence on the part of the defendant.
The evidence is undisputed that at the time of the accident the train was running from six to ten miles an hour. It is also undisputed that the automatic bell was ringing upon the engine, and that the noise of the approaching train was clearly discernible to the eyewitnesses of the injury. The circuit judge charged the jury that they must find that the bell was ringing at the time of the collision, and for some time prior thereto. He also charged them that, as matter of law, there was no evidence in the case that the defendant’s train was running at an undue, improper, illegal, or excessive rate of speed, and that there was no evidence in the case that the emission of steam from the engine was improper or negligent. He also charged the jury that Charles Fike, the plaintiff’s husband, who was driving the team, was, as matter of law, guilty of contributory negligence in failing to exercise the care which the law requires in approaching the railroad crossing, and that the negligence of Charles Fike was imputable to plaintiff, as matter of law.
Robert Lang, the conductor in charge of the train at the time of the collision, and a . witness called on behalf of the plaintiff, after testifying that the train had been inspected and was in good condition, including the engine, and the number of cars there was in the train, testified that, as they approached the intersection of McKinley avenue and Jefferson street, he was at the fifth or sixth seat on the left-hand side of the smoking car from the head end, and did not personally witness the collision; that just before the accident he judged the train was running at the rate of six miles per hour. On cross-examination this witness testified that the air was applied in emergency on the day of the accident, when about a hundred feet south of Seventh street, and said:
“ When I say that, I mean that where I sat in the train would be about 100 feet south of Seventh street. I was in the head end of the smoking car, and the smoking car was between the baggage car and the day car and was the third car from the engine.”
That the bell was ringing automatically from the time they left the depot to the time of the collision. He testified that he did not know exactly how long it was from the time the air was applied until the train came to a stop, but presumed it to be about ten seconds or so after the application of the air.
Charles F. Rutterbush, a witness for the plaintiff, testified that he was a witness to the accident; that he was on the east side of Jefferson street on McKinley near the intersection at the time of the collision, had turned his horse around facing the west and was delivering ice; that he noticed the Hart team and also Mr. Fike’s team approaching from the west; that Mr. Fike’s team was north of Hart’s and a little behind as they approached Jefferson street; that Mr. Fike had a two-horse team and a lumber wagon; that there were a man, woman, and child in the wagon, and the man was driving, the child was in the center, and the woman was on the north side of the wagon; that, as Mr. Fike’s team reached the crosswalk where McKinley and Jefferson avenues intersect, the horses were apparently prancing, which commenced when they were just about on the crosswalk and about 10 or 15 feet from the track; that they went forward onto the track; that at this time he noticed a train was coming from the north; that at the time the horses got upon the track he would judge that the engine was about the south crosswalk of Seventh street, one block away; that the track was straight; that about that time there was a sudden outburst of steam from the engine, that from the time the horses were first prancing upon the track to the time of the collision the witness could not state whether or not the engine slackened its speed at all; that after striking the horses it ran the width of about three lots, which were shown to be 50-foot lots; that the horses at the time were on the track, but the wagon was not. On. cross-examination this witness testified that when he saw the Fike team crossing it was trotting or prancing, and that the Hart team was on what the witness calls a trot, and that the Fike team was coming right along with it; that the Hart team was a little south of the Fike team, and that the Hart team turned south down Jefferson on the west side of the track; that both teams had gotten up to the crosswalk when he first saw them; that the Fike team was acting as though the horses were scared; that he saw the Fike team endeavoring to make the turn; that it looked to the witness as though Mr. Fike was making an effort to stop his team and let the other man get ahead of him in order to clear himself and that his (Fike’s) team was prancing and unmanageable; that at that time the engine was just at Seventh street.
“Q. Asa matter of fact, wasn’t the engine right at the north crosswalk of Eighth street ?
“A. I couldn’t say it was.
*'Q. You wouldn’t say it wasn’t, would you ?
“A. Yes, sir; I would.
e(Q. Is it not a matter of fact, when you saw the Pike team coming up, it was trotting, and the engine got there practically at the same time that the Pike team got to the crossing ?
“A. No, sir; I couldn’t say so.”
He then testified he made a motion to the teams because he thought they were going to head directly into him.
It appeared that this witness had been a witness at an inquest held on July 17th, and had testified upon this identical subject. The following occurred:
“Qo You were sworn at the coroner’s inquest, and I ask you now if you were asked this question, and did you give this answer:
“ ‘Q. Just tell the jury what you saw or know about this. A. Why, I didn’t see very much. I had occasion to stop on the corner house, the southeast corner of Jefferson, to deliver 25 pounds of ice. I came out and turned my horse and wagon to the west and waited for the train. Just as I got turned around, I noticed Mr. Hart’s team and this other team coming ahead for Jefferson at a fair gait. I motioned my hand like that (illustrating) for them to stop. Whether they seen me or not I cannot tell. Then Hart’s team tried to make the turn, and Mr. Pike’s team went right along by the side of the front wheel of Hart’s wagon. He, also, tried to make the turn. He couldn’t, but Hart’s did; Mr. Hart’s team being to the south. I knew there was going to be an accident, because the train was right at the crossing at the time they came up, and then Mr. Pike’s team was kind of cornering across the rails in this way (illustrating). I seen the cowcatcher strike the horse, throwing him to the pavement, until it took him out of view.’
(lQ. Were you asked that question, and did you give that answer ?
“A. I gave that answer except that engine being so close; I don’t remember saying that part at all.
“Q. Is your recollection of the facts of the accident better now than it was at the date of the coroner’s inquest ?
“A. Yes, sir; I dare say it is.
“Q. You think it is better now?
“A. I think so, because that day I was pretty excited and for a week afterwards yet.
“Q. I ask you if at the coroner’s inquest, which was held July 17th, one week after the accident, you were asked this question, and did you give this answer: ‘Q. Mr. Rutterbush, when you first saw the teams coming east on McKinley, how far were they from the crossing? A. Just about directly on the crosswalk. A. That is when I first saw them, yes, sir. Q. It was apparent to you that they were going to come together, and you signaled to the drivers of the teams ? A. Yes, sir.’
“A. I don’t remember that question.
“Q. Will you say you did not give that testimony ?
“A. I will not; I don’t remember the question.
“Q. Were you asked this question, and did you give this answer: lQ. As they came down McKinley back towards the east, did they stop at all before going on the crossing ? A. It looked to me as though they both tried their best to stop. Q. As it looked to you after they saw the train was there. A. Yes, sir.’
“Q. Were you asked these questions and did you give these answers ?
“A. I think I did. * * *
“Q. Were you asked this question and did you give this answer: eQ. When the horses were about the center of the rails on McKinley and the engine was about at the north crosswalk ? A.' Yes; when the horses were about on the south crosswalk. Q. No, when they were in the middle of McKinley, the front of the engine was right near the crosswalk on McKinley ? A. Yes, sir.’
“ Did you answer those questions in that way ?
“A. I was asked that question, and that answer is wrong.
“Q. You say you didn’t give it ?
“A. I did not.
“Q. Were you asked this question: iQ. You could hear the train ? A. I could, I made a special effort to hear it. Q. You heard it at the station ? A. No, sir. Q. Did you look up and down there ? A. No, sir. Q. When did you first hear it ? A. When I first came out of the house.’
“ Were you asked those questions and did you give those answers ?
“A. I was asked those questions; yes, sir. But when I came out of the house I did not hear the train, yet that answer is written there.
“Q. Immediately following that, were you asked these questions, and did you give these answers: ‘Q. Where was it then, do you know F A. I couldn’t tell. Q. Would you say it was halfway when you saw it ? A. No, sir; I didn’t see the train until I saw the others, and I saw the train and this team right there together.’ Were you asked that question and did you give that answer.
“A. I can’t recollect answering the question there.
“Q. Will you say you did not give that testimony ?
“A. I will not. * * *
”Q. Were you asked these questions and did you give these answers? ‘Q. As they came down McKinley towards the east, did they stop at all before going on the crossing ? A. It looked to me as though both pulled, tried their best to stop. Q. As it looked to you after they saw the train was there ? A. Yes, sir. Q. Prior to that was there any slowing down by the team ? A. I didn’t see them pull up till then.’
“A. I gave that answer; yes, sir. But I didn’t see the team prior, until they were on the crosswalk. * * *
“Q. Referring to the train at that time, were you asked these questions and did you give these answers: ‘Q. What was done to stop it ? A. It seems from the engineer, it looked as if the engineer made every effort to get things under control. Q. You did see him working, as you thought, to stop the train ? A. It looked to me as though he was making all efforts. Q. When he passed you, or before ? A. After it struck the horses. Q. You didn’t notice him before that time as to whether he was doing anything ? A. No, sir. Q. When you did look at him he was busy ? A. Yes, sir; I happened to take an interest in that because I am an engineer myself.’ Were you asked those questions and did you give those answers ?
“A. Yes, sir.
“Q. Were you asked these and did you answer as I read: (Q. What did you see the engineer do to try to stop ? A. He was at the big lever, though the motions he went through trying to jerk it back. Q. Reverse ? A. X think so.’
“A. Yes, sir. * * * Mr. Fike had the lines in his hands all the time I saw him. It looked as if the Hart team tried to slow up and let the other team go by. Mr. Fike’s team was prancing and dancing. You can’t tell much about a horse whether it is slowing up or not, going that way.
(‘Q. You could not say whether he stopped or not from the time you saw him on the west sidewalk on Jefferson street until the last time you saw him, which was, as I understand it, on the south sidewalk of McKinley avenue. You don’t know whether he made a stop or not ?
“A. His horses were practically standing right still when he was on the south walk of McKinley avenue.
“ Q. That was when the train struck him ?
“A. That was when the train struck him.
“Q. Up to that time he had moved from the west sidewalk of Jefferson street down to the south walk of McKinley street ?
“A. Yes, sir.
“Q. And you didn’t see the horses stop until they stopped over the south crosswalk of McKinley street, when the engine was on top of them ?
“A. They stopped with their front feet on the track.”
Marcell Machelski, a witness for the plaintiff, testified: That he was a witness to the injury to the plaintiff, and at that time he was on the west side of Jefferson and the north side of McKinley, and was going south. That he saw the train on Fifth street when he made the turn into Jefferson at Sixth, and that as he walked along he heard it puffing pretty strong coming along behind him. That he saw the two teams. First he saw a team coming down McKinley and turn on Jefferson south. Then he saw the Fike team. That they appeared to be crossing Jefferson going east, headed that way. Before they got to the tracks, he saw the driver raising up and sawing away at the horses trying to stop them, but the horses were frightened and they kept right on going. When they got on the tracks, the man was trying to turn the horses to go the same direction the other wagon went. That the horses were prancing all the time and frightened, and the wagon was cramped in such shape he could not turn or go ahead very well.
“Q. How long did that last before the collision, to the best of your judgment ?
“A. I couldn’t really recollect how long it lasted; maybe — it didn’t last very long — maybe 10 or 13 seconds. I don’t think it lasted very much longer than that.
“ Q. When you first saw the team commencing to jump, as you have described, on the tracks, when they first commenced, do you know, as near as you can tell, where the engine was ?
“A. Why the engine was behind me then yet.
“Q. About how far from the intersection of McKinley avenue were you at the time ?
“A. Why, it was about 10 feet from the gutter line of the north side of McKinley avenue.
“Q. Did you see the engine strike him ?
“A. I saw the engine strike him, yes.
“Q. Just describe what you saw there; tell how it struck and what it struck.
“A. The engine struck the front wheel as the wagon was cramped. It struck the front wheel, cut the horses off from the wagop, and throwed the lady off the wagon right on the side, and the little girl fell off, and the old man disappeared. I don’t know where he went or what became of him.
“Q. What did the engine do ?
“A. The engine kept right on going.
“Q. How far did the engine run after striking the wagon before it came to a stop, to the best of your judgment and recollection ?
“A. Why, I don’t know, it looks to me, I couldn’t say for sure, but pretty near 300 feet, I should think.”
On cross-examination this witness testified: That he heard the train leaving the station when he turned into Jefferson from Sixth. That Sixth street is two blocks north of McKinley. That when he was walking south on the west side of Jefferson, and that when he got between Seventh and Eighth streets, he heard the train coming back of him again. That he did not pay much attention to the train anyway. That when he got 50 feet from the corner of Eighth and Jefferson he saw that wagon turn the street. That he says was the first team. That before he saw the second team at all he was within 10 to 20 feet of the northwest corner of McKinley and Jefferson. That when he was at this point the second team drove up from McKinley going east. That was the first time he saw the team.
“Q. Where was the train at that time ?
“A. I don’t know whether it was behind me; I didn’t look for the train.
“Q. When you walked that ten feet and got to the north crosswalk of McKinley avenue, where was the train ?
“A. The train was behind me; I didn’t look for the train.
“Q. When you got to the corner, the northwest corner of McKinley and Jefferson, is it not a fact that the train was just crossing the north sidewalk line of McKinley avenue ?
“A. I didn’t get to the corner.
“Q. The train passed you?
“A. No, when I got within about 10 feet from the corner I stopped.
ilQ. Where did the train go then ?
“JL The train was behind me then, pretty near opposite to me when Is topped, because that team was on the crossing then, and I says: ‘ My God! If that fellow don’t get off the track he is going to get killed.’
“Q. The train was alongside of you then ?
“JL The train was about alongside of me then.
“Q. You were about 10 feet from the northwest corner of McKinley and Jefferson ?
“A. Yes, sir; somewhere along there.
ieQ. When you first saw the Fike team driving from behind the McDonald house going east on McKinley ?
“A. Going east on McKinley.
“Q. From the time you first saw them, did they make any stop until they got on the track ?
“A. Well, he kept on jerking, sawing on the lines; but the team kept sprinting, jumping, and going. .
“Q. He couldn’t stop them ?
“JL He made attempts, but was frightened or something, but he didn’t stop them until he got that wagon on that crossing cramped, and then he stopped them.
“ Q. At that time the train was practically alongside of you ?
“A. Somewhere behind; I didn’t look for the train; it was puffing right behind me somewhere.
“Q. As soon as you saw Mr. Fike come out, you saw at once there was going to be an accident at that crossing ?
“A. When he was crossing, I said: ‘ My God ! That man will be killed if he don’t get off.’
ilQ. You know that the train was right alongside of you or just a little back of you at that time ?
“A. ’Somewhere along there, yes.
“Q. What do you mean by somewhere ?
“A. I didn’t see the engine then; it was behind me somewhere right close; by the noise of the engine, I thought it was pretty close to me.
“Q. You knew it was alongside of you, within 10 or 15 feet back of you ?
“A. It might have been five feet for all I know; I didn’t measure.
“Q. How far back of you was the train when you turned into Jefferson street and first looked north, intending to go north, and then turned south at the time you say you saw-the train coming, where was the train then when you saw it ?
“A. I kind of think it was right by the Bay City Club House somewhere.
“Q. That would be the block between Fifth street and Center street ?
“A. Yes, sir.
tlQ. And Sixth street would be the block next on Jefferson street where you came east on Sixth street looking north and saw the train in this block here between Fifth and Center ?
“A. Yes, sir.
“Q. Then you turned and walked south ?
“A. Yes.
“Q. And by the time you walked from Sixth to Eighth the train had come from, some point in this block here between Fifth and Center to this point up near McKinley avenue where you have described it, was right alongside of you ?
“A. Yes, sir.
“Q. How fast was the Fike team going?
“A. I couldn’t say that.
“Q. Did it go from the point where you first saw it pretty fast ?
“A. Well, they were frightened or jumping or something; I couldn’t say how fast, not really fast.
“Q. The whole thing happened pretty quickly ?
“A. It took about 10 or 12 seconds from the time he got on the track, that the train hit him I testified yesterday.
iCQ. .From the time you first saw them and they got to the track and the whole thing happened, it wouldn’t be 10 seconds?
C‘A. He kept sawing away, but I don’t know how much time it took. I seen him raising up and falling down in the seat from pulling that way.
“Q. He was evidently making an attempt to stop the horses?
“A. Yes, he did; he tried and raised up and kept sawing on the lines.
“Q. He could not do that, apparently?
“A. No.
“Q. Then he tried to turn them south?
“A. Then he tried to turn them south, to turn the same way as the other teams ahead of him.
i(Q. And he couldn’t make the turn short enough?
“A. He couldn’t make the turn because he got on the track and cramped that wagon so short the boards on one side raised up, one side of the box, the 2x4’s in the bottom was altogether raised up.
“Q. A sort of sand wagon, was it?
“A. A sort of sand wagon, yes.
“ Q. It does not cramp very short?
“A. Well, no. * * *
“Q. From the point standing on the sidewalk where you first saw the Fike team come up, are you able to say how far away the engineer was at the time so that he could see him coming out?
“A. No, I couldn’t say that.
ieQ. Were you sworn at the coroner’s inquest?
“A. Yes, sir; a very little, not much. * * *
“Q. Were you asked this question by one of the jurors at the inquest: ‘A Juror: How far had the engineer ought to be able to see that team? A. Why, he ought to be able to see that team 80 or 40 feet away.’ Were you asked that question, and did you give that answer?
“A. Yes, sir; on the track he ought to.
“<3. And that was true?
"A. Yes, sir. * * *
“Q. Let me see if you remember being asked this question and giving this answer: SQ. Where did the train pass you? A. About pretty near at the crossing at the north side of the sidewalk. ’ Were you asked that question and did you give that answer?
“A. Yes, sir. •
“Q. That was true?
“A. Yes, the train passed me there after I stood there; yes.
“Q. And the nest question in the same connection: (Q. On the McKinley street crossing? A. Yes, sir; I kept on, walking pretty fast.’ Were you asked that question, and did you give that answer?
“A. I was asked that question, but I didn’t give that answer.
“Q. That was true?
“A. Well, I don’t say that.
“Q. I don’t mean by that you crossed McKinley street?
“A. No, I didn’t walk fast because I couldn’t; it was too hot. I don’t think I made any stop until I saw the team, and then I stopped. I stopped just about 10 feet from the crossing, I should^ judge, about 10 or 15 feet; I don’t know; I wouldn’t be sure. After the team got down the track, he did succeed in partially turning south. He had the horses off, pretty near clear of the track; both front wheels were on the track at the time the train got on the crossing.
“Q. I mean at the time of the collision?
“A. Yes, about the .time of the collision both front wheels were on the track.
ilQ. Are you sure about that?
“A. Well, both were cut off, so they must have been on the track.
“Q. As to whether only the left wheel was broken?
“A. They were cramped in that way. Both wheels were on the track. The north wheel of that wagon was pretty well to the east rail, and the other was pretty well to the west rail, the way that wagon was cramped.”
The witness further testified that the horses, at the instant the engine hit the wagon, were on the east side of the track, and that he saw the engine strike the wagon; that the accident happened within about 30 feet from him, and he could not see what was done with the horses; that the engine was between the witness and the horses. On recross-examination the witness was asked:
“ Q. Were you asked this question and did you give this answer at the coroner’s inquest: ‘ Q. What part of the locomotive struck the wheels, could you tell? A. I guess the cowcatcher to the beam.’
“A. No, that .question was not put to me at all. The beam could not hit it if the cowcatcher hit it.
“Q. Were you asked this question, and did you give this answer: ‘ Q. The engine struck one of the horses first? A. No, struck the front wheel.’
“A. Yes, sir.”
Mrs. Bessie May McDonald, a witness on behalf of the plaintiff, testified: That at the time of the collision she was in the house of her sister-in-law, Mrs. Eliza McDonald, in what was known as the McDonald house, on the northwest corner of Jefferson street and McKinley avenue. That she was sitting in the parlor in the front part of the house, which fronts on McKinley avenue. That the room has two windows facing south, and one east on the porch. The first that she heard was a woman cry out on the street, and she heard the clicking of the hoofs of the horses on the brick pavement about the same time. She testified that the train stood almost in front of the window; that she got up and looked to the southeast; the window being open; she saw the wagon and team on the brick pavement at first. The horses, she thinks, were unmanageable.
“ It appeared that way, and the man was trying to turn them south off the track, and he didn’t succeed very quickly, and the train — he had the wagon cramped — and the train hit the wagon.”
That just at that time the man threw the child over on the lawn, and the engine struck right away after that. She testified that in her judgment the horses and wagon were upon the track a few seconds before the engine struck; she thinks perhaps 10 or 12 seconds. She testified that the engine, when she went out to the door, had passed down south on Jefferson in front of Mr. Harding’s house, being the third house south from the intersection of McKinley avenue. On cross-examination she testified that she first saw the Fike team through the front window driving along on the asphalt pavement on McKinley avenue about 50 feet from the railroad track. When she first saw the Fike team it was pretty near the Smith house, which is the next house, west of the one she was in. After this she did not notice the team again until she heard the commotion and noise. The horses were trotting along just at an ordinary gait; she did not see the Hart team at all. When she first saw the Fike team in the neighborhood of the Smith house, she testified that she knew the train was coming and could hear it, and believed she heard the bell ring. In fact, she knew the train was coming, but did not know how close the train was; did not pay any attention to it at first; and she thinks she saw the train a second perhaps before it hit the wagon. She was not able to state whether the engine was not practically alongside of her house as the Fike team was approaching the crossing; at least, it was very near, and the collision happened quite suddenly; and by that she means it may have been more than 5 seconds, but she could not be more positive. She saw the driver apparently trying to stop the horses or turn. She thought he was trying to turn them south, and that at that time the train was very near, very close to McKinley avenue; she does not think it was to exceed 30 or 40 feet away. She testified that the wagon was cramped so that the engine struck the left wheel, and that was the only wheel that was broken; the other wheel was still on the wagon. The wagon stood there two or three days after the collision, and the left front wheel was broken off. She further testified that the track on Jefferson street could be seen by one walking east along McKinley avenue from the alley. On redirect examination the witness testified that she thinks that looking out of the window toward the east she would not be able to see the engine until opposite the porch, she thinks it would be about 50 feet or more that she would be able to see the engine from the time it came into her view until the time it struck the wagon; that she did not pay any particular attention to the engine, as she was more interested in the people; and that she was not able to accurately state how far the engine was away at the time she saw the team on the track.
Eliza McDonald, the sister-in-law of the last witness, testified on behalf of the plaintiff that she was in the same room with the last witness at the time of the collision; that she was first attracted to the street by the sound of the horses’ feet on the pavement and the lady screaming; that she went to the south window, the one nearest the west side of the house, and looked out and saw two teams on the street, one directly in front of the other; that the team driven by Mr. Fike was prancing on the pavement, and she noticed the man and woman in the wagon. She testified further that the horses appeared to be frightened and were prancing and jumping first to one side and then to the other, just a little, they were not going ahead to any extent, nor were they backing, they were almost in the same place; that Mr. Pike was driving them; he was apparently trying to hold them still; that she saw the engine strike; that just before it struck, the man threw the child out on the ground; that it fell on the grass plot between the walk leading up to Mr. Williams’ residence and the street sidewalk, being upon the south side of McKinley avenue; that to the best of her judgment and recollection, from the time she saw the horses prancing, as she has described above, up to the time the engine struck, she believes some 10 or 12 seconds elapsed; that before the engine came to a stop it went as far south as Chief Harding’s residence, the third house from the corner, and the lots are 50 feet in width. On cross-examination this witness testified that she did not notice either team pass by her front window on the asphalt pavement because her back was rather toward the west as she was seated on a couch there; that the first thing she saw of the Fike team was when she was attracted by the team striking the brick pavement and she then looked out the window. The horses were prancing at that time, and Mr. Fike was making an effort to pull them back or turn them in some way. That at that particular time the train had not yet got to the crossing. That when she first saw the teams the Hart team was directly in front of the Fike team; both facing south on Jefferson. The Hart team had succeeded in making the turn and was turned straight on Jefferson street. That the Fike team had succeeded in making the turn also. That the Hart team was directly ahead of the Fike team, and she thought the Fike team was about the middle of the pavement. That there was not room enough between the west rail of the railroad track and the west curb for the two teams to go abreast. She testified that when she first looked out it appeared as though Mr. Fike was trying to hold his horses; that he was upon the brick pavement before she saw him at all; that the wagon was between the end of the crosswalk and the railroad track, and the horses had not yet reached the track; that it was at that point that she saw him try to pull the horses back. He did not succeed in pulling them back to any extent. Her attention was called to her testimony before the coroner’s inquest, and she was examined at length as to her testimony there. This witness further testified that from the time her attention was directed to the horses prancing she heard the train coming and heard the bell ringing; that coming east on McKinley avenue one can see the rails of the track from the middle of the alley between Jefferson and Adams street on the west. This witness was also asked whether at the inquest she had not testified as follows:
“ Q. When you first saw these horses, what, in your judgment, was the distance between the west rail of the track and the horses ?
“ A. Oh, well, perhaps 6 feet.”
She said she so testified. And she further testified that the horses were about the middle of the pavement, which would be six feet away from the track, or in that neighborhood. This witness testified also to the extent of travel on this street.
Robert Bassett, a witness called on behalf of the plaintiff, testified: That he witnessed the collision. That he was on the west side of Jefferson street at the time of the collision going north about 200 feet south of McKinley avenue. That the first he noticed was a team apparently stalled on the track that appeared to be excitable and unmanageable. It was a lumber wagon, sand box. A man was driving the team, and a woman and child also were in the wagon. About that time he noticed the train coming south. The train at that time was just south of Seventh street. That he continued to watch the engine and team on the track. The man was apparently trying to control the team. At that time he noticed the engineer. His head and shoulders were out the cab window, and he was looking straight ahead, apparently at the teams and people. As the engine approached, it appeared to be running about 8 miles an hour. There was some steam escaping from the engine. As the train approached, witness noticed the engineer wave his hand; he made a motion crossways and indicated somebody was on the track. At the time the engineer did that, the engine was about midway between Seventh and Eighth streets. From the time he first saw the engine up to the time it struck the wagon, he did not notice any change in the speed of the engine. After the engine struck the wagon it ran about 200 feet. He noticed the man throw the child. He noticed the horse and wagon on the west side of the track on McKinley street; the horse facing the west. From the time he first noticed the horses on the track up to the time the engine struck, he judges it was about one-quarter of a minute; it was a warm, bright day, very dry. On cross- examination he reiterated as to the place where he first saw the engine. He saw the Hart team turn south into Jefferson street.
“ The Hart team made the turn all right; that team was somewhat in advance of the Fike team.”
He testified that the Hart team was just about making the turn when he first saw the Fike team. The Hart team was on the south side of McKinley avenue, and the Fike team was in the center, or to the north side of the street as they came east. Witness was walking during all the time, and the train was coming on during the time he walked. When he first saw the Fike team, it was about 6 feet from the track, and the horses were plunging a little from side to side. What first attracted his attention was the team, and when he saw the team prancing he happened to look and saw the locomotive coming. He further testified that there was no change in the speed of the engine from the time he first saw it, until it stopped; that he was not paying particular attention to that feature of the operation of the train; that, when he spoke of observing the engineer looking out of the cab, witness was not paying any particular attention to the train any more than he had in mind that a train was coming; he could see the engineer outside of the cab before the engine reached the crossing of McKinley avenue, and saw him make the motion about the middle of the block between Seventh and McKinley avenue; that it was a good 150 feet away from McKinley avenue when he'saw the engineer make the motion. He saw the team prancing about 6 feet from the track.
Charles E. Williams, another witness called on behalf of the plaintiff, testified that he witnessed the collision. That he was a few feet south of Sixth Btreet and had started to go across Jefferson street. He was on the west side of Jefferson street. That he saw the team prancing, and it seemed to be unmanageable at the corner of Jefferson and McKinley avenue. That the team appeared to be on the railroad track. That the man seemed to be trying to get the horses across or turn them, or do something in view of getting them off the track. About that time he noticed the engine and train. The engine was then just a few feet beyond Mr. Forsythe’s house. It was going along at a pretty fair gait, about the way it ordinarily runs along that street. From the time he first noticed the horses prancing on the railroad tracks, up to the time the train or engine struck the wagon, he judges it was from 12 to 16 seconds. He observed the engineer on the engine as it ran along there. The engineer was on the right side leaning out and looking ahead, seemed to be looking straight ahead.
“ After he got along a little ways, he made some kind of a motion like that (indicating). He moved his hand out in the direction to the right, and with a sweeping motion.”
In the witness’ judgment the train was 150 to 200 feet from the wagon when that occurred. He noticed that the engine let off some steam. He ran to the place where the collision occurred and found Mrs. Fike sitting there in distress. He noticed the train after it came to a stop. The head of the engine was then about middle way of the block between McKinley avenue and Ninth street; that Mr. Forsythe’s house, as here alluded to, was at the corner of Seventh and Jefferson. The first thing he saw was this team on the track; he did not notice the Hart team. The horses were on the west side of the track when the engine cleared them of the wreck. Witness could not say whether the horses were knocked down or not. He did not remember whether Mr. Fike kept hold of the lines when he threw the child or not; he did not see anybody else touch the lines.
William Thompson, a witness called on behalf of plaintiff, testified: That he was the driver of the Hart team. That he came down McKinley avenue driving east. That he was on the south side of McKinley and saw the Fike team just before the accident. It was alongside of the witness’team; witness partly in the lead. Witness was driving about four miles an hour. When the witness came up close to the crosswalk of Jefferson street, he started to swing around the corner south, and made the turn south on Jefferson street. That when he got to the corner of Jefferson street he looked up the street and saw the train coming up to Seventh street. About that time he saw Mr. Fike driving east. The last he saw of Mr. Fike before the collision he was on the track. The horses were prancing and jumping around there, and he was trying to hold them. That the horses appeared to be prancing and dancing because of steam from the engine. He could hear the steam blowing off. From the time that he first saw Fike’s horses turn on the crossing on the track, up to the time that the engine struck, he judges it was from 18 to 20 seconds. The engine came to a stop down at the house the other side of Tom Harding’s, four houses from the corner. On cross-examination this witness stated that he saw the train coming at Seventh street; that that was what he turned for; that he was about 50 feet west of the railroad track when he started to walk his horses, and the horses continued to walk until they turned around the corner; that just as he was going to start to make the swing he looked north up Jefferson street and observed the train at Seventh street; that when the collision occurred he was about 50 or 60 feet south on Jefferson street. He repeated that the engine was at Seventh street when he saw Fike’s team on the track; that Fike had not been on the crossing before witness heard the train. Witness testified that the train as it came down the street was making 8 or 10 miles an hour, in his judgment.
The plaintiff was sworn and testified generally in the case as to her injury and the circumstances leading up to it. She testified that just before the accident they were driving east on McKinley avenue; that they had a wide tire wagon with a sand box and two horses hitched to it; that the wagon was empty, excepting the child, Mr. Fike, and the witness; that Mr. Fike was seated on the right-hand side of the wagon and witness on the left, and the little girl was between them; that Mr. Fike drove along there at a moderate trot, probably covering four or five miles an hour; that he had the reins in his hands and his feet against the front sandboard or dashboard; that he was looking straight ahead of his team; that she noticed a wagon a little to the south of them and a little in advance. It was a heavy team with a truck. When that team reached the corner of Jefferson and McKinley it turned south. When her team reached the crosswalk on the intersection of the two streets Mr. Fike pulled up on the reins and slacked the horses down, so that they were practically walking. As they reached the crosswalk she looked south and noticed Mr. Fike looking at the north, and she turned her head to the north and saw the train approaching. That the train was then about at the next street crossing north. That at that time their horses’ heads were right near the west rail of the railroad track. That she did not know they were approaching a railroad track as they drove up. About the time she looked and saw the train, the engine gave off a puff of steam, and at that moment their horses became frightened and jumped forward and landed directly on the track. That they commenced to step around and became unmanageable, and Mr. Fike tried to either turn them or make them do something, and the wheel caught. The wheel got cramped under the edge of the wagon. That from that time up to the time of the collision the team was unmanageable and did not move away. Mr. Fike was trying to get the team off the track. He was jerking on the lines and trying to control the horses. They were prancing around and appeared to be frightened.
“Q. As the train came towards you, will you state whether or not — well, will you state how it ran, that is, as to the speed, the way it appeared to you, if there was any change in the spaed from the time you saw it up to the time of the collision ?
“A. I didn’t notice any change in the speed of the train.
“ Q. Did you notice anybody in connection with the engine on that train ?
“A. I noticed the engineer looking out of the cab.
“Q. Was that on the engineer’s side ?
“A. Presumably so, it is on the west side of the engine coming this way.
“Q. Did you notice his head, and did you notice in which direction he was looking ?
“A. He was looking in our direction.
“Q. State whether or not that continued all the time you observed him ?
“A. He was looking in our direction.
“Q. And what, if anything else, did you notice in regard to him or his action before the collision ?
“ A. I noticed him raise his hand and wave it at us.
“ Q. How many times did he wave ?
“A. Well, I couldn’t state about the amount of times, but it was more than once; twice or three times, for us to get out of the way.
“Q. How far away was it at that time that he did this, to the best of your judgment and recollection ?
“A. Well, I couldn’t say, he had got — well, I wouldn’t say; the center of the block, either north or south of it; I wouldn’t say just exactly. I couldn’t give the exact distance. * * *
“ Q. Will you state what the position, as near as you can remember, just before the collision, were the front wheels of your wagon with relation to the track ?
“A. Well, I think the left front wheel was a trifle over the rail.
"Q. And which wheel was it that was cramped, if you know, as you have described ?
“A. Why, the wheel on the right-hand side of the wagon was cramped under the wagon box. * * *
“ Q. And the collision, when the engine struck, what part of the wagon did it strike ?
“A. It struck the front wheel first, the left front wheel.
“Q. Prom the time that your horses first jumped onto the track, as you have described, up to the time that the collision happened, between those two points of time, to the best of your judgment and recollection, about how long a time passed ?
“A. Well, I couldn’t give the time, but it was between a quarter and a half minute.
l‘Q. When the engine struck, what happened to you?
“A. I fell from the wagon. The train passed over my left leg and left arm. I didn’t see what happened to my husband or child. The first thing that I can distinctly remember after the collision took place is that I was in the hospital, and they told me they had amputated my arm and limb. It was the second day in the hospital that I discovered the amputation. My left arm was amputated just below the elbow and my left leg above the ankle. I was taken to Mercy Hospital in Bay City and remained there four weeks. I was in bed for several weeks after they took me home from the hospital. My head was cut open on the left side, and my body bruised from my head to my feet. My left shoulder was bruised. During that time I suffered very great pain. I was very weak and nervous when I was first able to leave my bed. I was 37 on August 19, 1911.”
Witness then stated: That she had been married about eight or nine years before the accident, during which time she had kept house for her husband and did all the work; worked in the garden whenever she had time from her household duties. That before the injury she was not a nervous person, and the general condition of her health was good. That since the injury she could not sleep well. That her rest was very poor, and she had severe headaches and severe pain in the head, and that she suffered from these headaches practically all the time; and that since the accident she had experienced a great deal of trouble with her back, across the small of the back, and up and down the back, and that it hurt her to move. On cross-examination she stated that her husband pulled the team to a walk when they were near the street crossing, almost on it; that she did not notice the railroad track until she looked up and saw the train coming; that she and her husband were sitting on a board across the box, not on a spring seat; that, when she first saw the train in the neighborhood of Seventh street, the horses were not yet right on the track, but were perhaps five or six feet from it; but that they immediately jumped forward onto the track, and when they jumped onto the track the train was near the next street crossing; that she noticed the explosion of steam from the engine, and the horses then made the lunge forward; that the horses kept jumping around until they slewed or cramped the wagon. She was interrogated on cross-examination minutely as to whether, as the train was approaching, it occurred to her there was going to be a collision. She answered that she did not know or could not tell what she thought at the time, or that she had any thought about it. She reiterated that, at the time the horses took the plunge upon the railroad track, the engine was probably 150 or 200 feet away, north of them. She was interrogated as to why she did not jump out of the wagon. She answered that she did not think of it for one thing, and another thing was that the wagon was cramped in such a shape it did not place her in a very good position to get over that way; that the horses when the wagon was cramped were turned to the south. She does not know whether they turned far enough so that they were entirely off the track. She knows that the engine struck the front wheel, but she could not state just where the horses were then standing, and she does not know whether either of the horses was hit by the engine. It is very evident from her testimony that she was very much frightened and excited at the time, as would be natural under the circumstances.
De Witt Forsythe, another witness produced by the plaintiff, testified: That he saw the collision, and that at the time he was on the west corner of Seventh and Jefferson, and that he first noticed the Fike team on the center of the railroad track. That at that time he saw the engine of the train about the fourth lot north of McKinley avenue. That he noticed the engineer.
“Q. Just tell, if you know, what he was doing?
“A. He was leaning out of the window and let out steam.
“Q. Did you notice anything in regard to any steam coming from the engine at that time ?
“A. Yes, sir.
“Q. In which direction, if you know, was the engineer looking ?
(‘A. He was looking to the south.
“Q. Well, as to whether he was looking straight ahead or not, what do you say ?
“A. He was looking straight ahead.
“ Q. From the time you first saw the engine up to the time it struck, will you tell how it ran, as to whether it slowed up or not ? State whether it slowed up or not.
“A. I didn’t see any slacking of speed, didn’t notice.
“ Q. Did you see it strike ?
“A. Yes sir.
“ Q. And what did you notice then, if anything?
“A. I noticed the child going out of the wagon.
Q. And what did you do when it struck ?
A. I ran up to the scene of the accident.”
Witness then testified that he saw the plaintiff lying on the pavement between the railroad track and the side, the curb; and the engine was then near Chief Harding’s house. On cross-examination the witness testified that he did not see the team until he saw them right in the center of the track, and that the horses were headed south over the south crosswalk; that he thinks the east half of the wagon was on the track; it was kind of diagonal across the track.
The defendant called as a witness James E. Jennings, who testified that he was the engineer in charge of the engine at the time of the collision. He described what occurred substantially as follows:
“Q. Where was the engine with reference to Eighth street when you first saw the Fike team that day ?
“A. The head end of the engine was at the north crosswalk in McKinley avenue.
“Q. Where was the Fike team ?
“A. In the middle of McKinley avenue, driving east.
“Q. Where had you first seen the Fike team when you were a little north, as you say, of the north crossing of McKinley avenue; where did you first see the Fike team when you were a little north of the crossing ?
“A. Why, the front end of my engine was right at the north crosswalk of McKinley avenue.
“Q. When your engine was there, where was the Pike team?
“A. They were very near on the track, or very close to it.
“ Q. How far west of the west rail of the track was the Pike team when you first saw it coming in on Jefferson street ?.
,(A. Well, they wasn’t very far; I couldn’t say as to the feet. I never made no measurement of it.
“Q. Where with reference to' the west crosswalk on Jefferson street ?
“A. They were between the east side of the crosswalk and the tracks somewhere.
“Q. Well, what did you do when you saw them ?
“A. Why, I shut the engine off and applied the emergency brakes.
“Q. How quickly did you do that ?
“A. Just as quick as I could do it.
“ Q. Did you feel your emergency go on ?
“A. Yes, sir.
“Q. Do you know which part of the rig as it stood, whether it was the horses or wagon, that you struck ?
“A. I struck the horses, I think, first.
(‘Q, What part of the wagon do you know that you struck?
”A.. I don’t know of striking the wagon at all.
“Q. Prom the time you first saw that team until the collision, how quick a time elapsed?
“A. Probably some second or two.
“<9. Was there anything with respect to the application of the emergency brake that you could have done that you did not do to avoid the collision? Just describe exactly what you did do to get the emergency brake on.
“A. Why, I had to shut the engine off.
“Q. Was that done?
“A. Yes, sir.
“<9. What was the next thing you did
“A. Get hold of the brake valve and put it into the emergency position.
“Q. Was that done?
“A. Yes, sir. * * *
‘ ‘ Q. With those actions was the brake put in emergency, or was anything else to be done?
“A. No, sir; I didn’t have time to do anything else.
tlQ. Was there anything else you could do with the air that you did not do to stop that train?
“A. No, sir.
“Q. Where was your train when it finally stopped after the collision, when it became stopped after the collision, do you remember ?
“A. It was two cars and the engine by the south curb of the McKinley street sidewalk; that is, the south side of the sidewalk, the south sidewalk.
“<9- Between Seventh and Eighth, Mr. Jennings, were you leaning out of the cab window at the time in question?
“A. No, sir.
“<9. Something has been said about your waving your hands about the middle of the block between Seventh and Eighth; did you wave your hands ?
“A. No, sir.
“ Q. Did you see another team there as well as the Eike team ?
“A. Yes, sir.
“<9. Where was that team with reference to the Eike team when you got up towards the north crossing of McKinley avenue, as you have described ?
“A. The Hart team made the crossing there at Jefferson and McKinley, and the Eike team drove straight out.”
The witness further testified, on his direct examination, that he discovered, when he reached the Columbia avenue stop farther south, that he did not have any driver brake on the engine. He also testified that at the time of leaving the depot the safety valve was set to blow off at a pressure of 160 pounds, and that at no time before the collision had the steam worked up to the exhausting point of the safety valve; therefore it could not have blown off. Upon cross-examination this witness testified very fully in regard to the defect in the emergency appliance, and that by reason of the defect the brakes did not work upon the driving wheel of the engine, but did operate upon the remainder of the train. There was considerable testimony upon both sides as to the effect this defect would have upon the stopping of the train, and there was considerable conflict in such testimony.
Edward L. Swayze, a witness sworn on behalf of the defendant, testified that he was the fireman upon engine No. 59 at the time of the collision. He testified that there was no opportunity for the engine emitting steam that day, because they did not have to exceed 150 pounds when they left the depot. He further testified in regard to the collision as follows:
“As the engine approached the corner of Seventh and Jefferson street that day, I was on the seat box and was on it after crossing Seventh street until the accident. I was there for the purpose of keeping a watch on my side of the engine. Seated in my proper position as a lookout, I should judge I would be about 30 feet back of the pilot of the engine. I would have to get to about 10 feet from the intersection of Jefferson and McKinley before my view to the west would be cut off by the front of the engine, I should think. I kept the lookout during all the time until the engine got to a point 10 feet from the north crossing. There was no conveyance of any kind on the track from the time I left Seventh and Jefferson street until I got to McKinley avenue crossing that I saw. During the time we were passing from Seventh to McKinley street I was watching for conveyances that might be coming onto the track. I didn’t see the Fike team at all before the accident. During the time I was keeping a lookout from Seventh street to a point 10 feet north of the crossing of Jefferson and Eighth street, if the team of horses and wagon were on the railroad crossing I would be able to see it. I didn’t see any team ahead at all, and I was looking that way; by that I mean horses or wagon either. The first thing I knew of a team being in collision with the engine was by the emergency brakes being applied. The cab window of the engine was just about on the north crosswalk of McKinley crossing Jefferson, when the emergency brakes were applied; I mean the window of the cab where I was sitting, the seat box. I didn’t see the engineer apply the emergency, but I felt the sudden stoppage of the engine. I judged by the feeling of the brakes. It would take a little while to have them applied so that I would feel it. I don’t know at what point previous to the time the brakes took effect they were applied. The application that is described that I felt near the crosswalk was the emergency application. There is a difference in feel ing between the application at service, and the application of emergency of air; it is such a condition that trainmen recognize it and can tell. When the train stopped I got off at the right-hand, or engineer’s, side of the engine. I didn’t notice particularly where the engine was when it stopped. I saw Mr. Fike when I got on the ground and assisted in taking him off the engine. I took him over and laid him on the grass between the sidewalk and the pavement. I saw where the wheel of the wagon was. There wasn’t anything left of the wheel but the rim and the tire. It was hanging on the step of the tank between the tender and the engine. I noticed the wagon and that the other wheels were on it; there was just one wheel off. I noticed the horses. When I first noticed them after the train stopped, they were about 50 feet south of the south crosswalk of McKinley and Jefferson. They were standing along the curbstone and seemed to be standing quietly. I didn’t notice anything in connection with the air brake at that stop. The engineer operates that.”
The defendant has brought the case here for review, and there are 213 assignments of error. Most of these assignments of error are discussed by appellant’s counsel under the following heads, or reasons for reversal:
(1) The plaintiff and her husband were both guilty of contributory negligence, and his negligence is imputable to her.
(2) The plaintiff was guilty of gross negligence.
(3) The defendant was guilty of no negligence, ordinary, subsequent, or gross.
(4) The negligence of the defendant, if any, was not the proximate cause of the accident.
(5) If the defendant was guilty of any negligence, the plaintiff was guilty of concurrent negligence.
(6) The verdict was against the weight of the evidence.
(7) The verdict was excessive.
(8) The court erred in the charge as given.
(9) The court erred in the admission and exclusion of testimony.
(10) The improper argument of the plaintiff’s counsel, to the jury.
There were 86 requests to charge tendered by the defendant. We shall not undertake to set them all forth in this opinion. The court charged the jury at great length, in the course of which it used the following language:
“ Now, there is one thing that I will call your attention to at this time. The testimony shows, and it has been stated over and over again, that the plaintiff’s husband, Mr. Fike, was driving the conveyance. He was the driver. When Mrs. Fike stepped into that wagon and her husband drove it, she became in this situation under our law, and that is, that whatever negligence Mr. Fike was guilty of, she was chargeable with; that is, his negligence was her negligence. That is known in law as imputed negligence; that is, as applied to this case, the negligence of Mr. Fike is the negligence of the plaintiff in this case. Now, testimony has been given as to the manner in which the plaintiff, or the plaintiff and her husband, because it means the same thing, approached the crossing. Now, I will state now that so far as the point of approaching that crossing was concerned, and up to the time in which the plaintiff found herself in a dangerous situation, that up to that time the plaintiff was guilty of negligence in approaching the track. The street is an open street. The track is in plain sight, and up to the time that the plaintiff got into the dangerous position which has been described before you, she was guilty of negligence; that is, her husband was guilty of negligence in getting into that dangerous position, and that made her guilty of negligence, so that you will not be called upon to inquire as to whether the plaintiff was or was not negligent in getting into this dangerous position. I instruct you as a matter of law that she was guilty of negligence in getting into the position of peril. That leaves the case, then, just as I stated it to you. The case for you to consider is whether or not the defendant is guilty of what is known in law as subsequent negligence. That is, negligence after the discovery of the peril of the other party, and upon that question, gentlemen of the jury, upon the question of subsequent negligence and the liability of the defendant, upon that point I charge you as follows, and this request is mainly in the language of the counsel for the plaintiff, and is to be received by you the same as if written in the first instance by myself, and I ask your attention to the charge because it is brief and will not be repeated.
“I charge you that, as a matter of law, that even though you may believe from the evidence that the plaintiff and her husband, Charles Fike, were guilty of negligence, yet if you further believe from the evidence, and under the charge of the court, that the defendant was also guilty of negligence, and that the negligence of the plaintiff ana of said Charles Fike was prepedent, and that the negligence of the defendant, if any, was subsequent thereto, then the plaintiff would not necessarily be prevented from recovering damages in this suit. I further charge you that if the plaintiff and her husband were in a position of peril on or near the track of the defendant, and that the engineer of the defendant’s train in question saw and realized that the plaintiff was in such position of danger, and knew or had good reason to believe that plaintiff could not extricate herself from such position of peril, or reach a place of safety, and that great injury to the plaintiff would be inflicted unless the train was stopped or its speed slackened, and that said engineer after so observing and realizing the peril of plaintiff could, by the exercise of due care or reasonable diligence, have stopped his train or slackened its speed with his engine and air brakes in the condition they were then in, and by so doing could have avoided injuring the plaintiff, and that said engineer did not stop his train or slacken its speed, and in failing to do so was guilty of negligence which caused the injuries to the plaintiff complained of, even though you may believe from the evidence that the plaintiff or Charles Fike was guilty of negligence, yet if you further believe that such negligence of both the plaintiff and Charles Fike ceased before the negligence of the defendant began, and did not again occur before or at the time of the collision, then the jury should find for the plaintiff. This statement of the law, as I have stated to you, was prepared by counsel for the plaintiff, and has been given as modified in some respects by myself.
“The defendant has requested me to give certain charges to you and certain requests which I give, some in the exact language of the requests and some as modified by myself. By reading these requests to you, gentlemen of the jury, I make them a part of my charge, and they are to be considered by you as the charge of the court, the same as if originally prepared by myself. It is a common practice, and in fact it is the proper practice, for counsel to furnish full requests, because they view the case from their own standpoint and have a right to have the case presented according to their views. If some of these may seem to repetitions, that is not to he considered in any way as attaching importance to them. * * *
“ I charge you as matter of law that, in order for you to find the defendant guilty of gross or subsequent negligence in this case, you must find that the defendant’s engineer knew or should have known of the position of peril, if any, in which the plaintiff and her husband were, and thereafter failed to exercise ordinary care to avoid the accident. The defendant’s engineer was not required in this case to check the speed of his train or to take means to stop it until he was chargeable with clear notice that the horses and the plaintiff and her husband were in a position of peril and could not get out of the way and avoid an accident before the engine reached them. Under the undisputed evidence in this case, the defendant cannot be held liable for any gross or subsequent negligence on account of the use by it of an engine with a defective brake. That means that simply the use of that brake at the time, if it was defective, does not charge the defendant with being guilty of subsequent negligence; but the question was whether or not, with the brake in the condition that it then was, the defendant’s engineer could have stopped the train and avoided the accident. If you find from the evidence in this case that the wagon in which the plaintiff was riding came upon the crossing suddenly and in such close proximity to the engine that the accident was either unavoidable or the engineer was not guilty of any gross or subsequent negligence, plaintiff cannot recover. I further charge you that under the undisputed evidence in this case that you must find that the bell upon the engine was ringing at the time of the accident and for some time prior thereto. I charge you as a matter of law that the lack of a signboard, flagman, electric bell, gates, or other notice of warning of a railroad crossing, or protection or safeguards at the same, was not the proximate cause of the accident in this case, and cannot be considered by you in arriving at your verdict.
“ I charge you as a matter of law that the mere fact that an accident occurred in which the plaintiff was injured is not proof of negligence on the part of the defendant, and does not even raise a presumption that the defendant was guilty of any negligence in this case. I charge you as a matter of law that there is no evidence in this case that the defendant’s train was running at an un due, improper, illegal, or excess rate of speed, and there is no evidence in this case that the emission of steam from the engine was improper or negligent. It is the duty of the engineer to see that the track ahead of him is clear of obstruction, but the proximity of the Fike team to the railroad track would not of itself be sufficient reason to require him to stop his train. The fact that the plaintiff was injured is not evidence that the defendant is guilty of any negligence that would make it liable in damages; the fact of the injury does not prove that the defendant is liable.
“I charge you that in considering this case you must only consider the evidence introduced in court, and must determine the case as between the parties without sympathy, prejudice, or passion. Having heard all of the testimony in this case, if you are unable to determine by a fair preponderance of the testimony that the defendant was guilty of subsequent negligence or gross negligence, then your verdict must be for the defendant. I charge you that you should not disregard the testimony of the operators of the train, or other of defendant’s witnesses, through prejudice or caprice, or without cause, merely for the reason that they are in the employ of the defendant, company.”
No time need be spent in considering the first and second reasons for reversal stated by defendant’s counsel, because the trial court charged the jury that the plaintiff and her husband were both guilty of contributory negligence in driving upon the track, and that the negligence of the husband was imputable to the plaintiff.
Even if the plaintiff was guilty of gross negligence in driving upon the track, that fact was not necessarily controlling of the case. We are of opinion that it cannot be said, as matter of law, that she was guilty of contributory negligence in not attempting to escape or jump from the wagon, under the circumstances of the case.
The third, fourth, and fifth reasons urged for reversal may be considered together, and they present the important question in the case. Was a case for the jury, on the ground of subsequent negligence of the defendant, made out by the plaintiff ? If so, contributory, antecedent negligence of the plaintiff is not a bar to recovery.
In Cooley on Torts, at page 674, the true doctrine is stated in the following language:
“ If, therefore, the defendant discovered the negligence of the plaintiff in time, by the use of ordinary care, to prevent the injury, and did not make use of such care for the purpose, he is justly chargeable with reckless^injury, and cannot rely upon the negligence of the plaintiff as a protection. Or it may be said that in such a case the negligence of the plaintiff only put him in a position of danger, and was, therefore, only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause.”
See, also, 29 Cyc. p. 496.
The same rule is stated in 7 Am. & Eng. Enc. Law (2d Ed.), at page 437, as follows:
“And notwithstanding negligence upon the part of the person injured, he may recover if the railway company, after such negligence occurred, could, by the exercise of ordinary care, have discovered it in time to have avoided inflicting the injury.”
See cases cited in the note, including Donohue v. Railway Co., 91 Mo. 357 (2 S. W. 424, 3 S. W. 848), in which it was said:
“ Counsel indulges in a criticism of the cases in which this court has held that if the negligence of a defendant, which contributed directly to cause the injury, occurred after the danger in which the injured party had placed himself by his own negligence, was, or by the exercise of reasonable care might have been, discovered by the defendant in time to have averted the injury, then defendant is liable, however gross the negligence of the injured party may have been in placing himself in such position of danger. Such is the well-established doctrine of this court.”
This rule is well stated by Justice Montgomery in Richter v. Harper, 95 Mich., at page 225 (54 N. W., at page 769), as follows:
“ It is true that the contributory negligence of the plaintiff does not prevent recovery in a case where the defendant, who knows, or ought by the exercise of the most ordinary care to know, of the precedent negligence of the plaintiff, by his subsequent negligence does plaintiff an injury. Battishill v. Humphreys, 64 Mich. 514 [38 N. W. 581]; Railroad Co. v. Mann, 107 Ind. 89 (7 N. E. 893); Cooley on Torts, 674.”
After quoting the language of that author as quoted by us above, he continues:
“This rule does not permit recovery, notwithstanding plaintiff’s contributory negligence, but it recognizes that such discovered negligence of plaintiff, or his negligence which should have been discovered, is not a contributing cause to the injury in a legal sense. This, we think, is the logical statement of the rule as deduced from the authorities.”
In Labarge v. Railroad Co., 134 Mich. 139, on page 145 (95 N. W. 1073), Chief Justice Hooker, after reviewing the Michigan cases, said:
“ In all of these cases the negligence of the defendants occurred when there was a condition of danger, and it may be said that it was unimportant how such antecedent condition arose, or whether it was due to the negligent act of the plaintiff or not. The defendant’s wrong being a want of ordinary care, which care would have prevented the accident notwithstanding plaintiff’s antecedent negligence, it was responsible for it, and plaintiff’s antecedent negligence being at most a remote cause, and there being no other negligence on the part of the plaintiff, he might recover. It has in some cases been said that his negligence might be said to be a remote, and not the proximate, cause. * * * Whenever the defendant sees a plaintiff in danger, or by exercising only ordinary care in the discharge of his duty should discover such danger, in time to avert an injury, and either fails, after discovering it, to take steps to avert it, or fails to discover the danger, the fact that the plaintiff’s danger arose, in the first place, through his own negligence, does not prevent his recovery for an injury sustained.”
See, also, the language of Justice Long in Montgomery v. Railway Co., 103 Mich., at page 54 (61N. W. 546, 29 L. R. A. 287), where reference is made to the case of Richter v. Harper, supra, and the Missouri cases:
“ The cases do not attempt to define these acts as gross negligence, but place the right of recovery upon the ground that the proximate cause of the injury is the act of the defendant.”
In Bladecka v. Electric Co., 155 Mich. 253 (118 N. W. 963), the trial court charged the jury, among other things, that, if they found that plaintiff’s dangerous position and situation was apparent to the motorman in charge of the defendant’s car—
“For a sufficient length of time to enable said motorman to stop his car and avoid running into plaintiff, and that said motorman, instead of stopping his car, negligently allowed the same to run upon and into said plaintiff while she was in the position aforesaid, and injured her, then the defendant is liable in this case, even though you should find that the plaintiff or her husband were originally negligent in driving into said dangerous position.”
This court held that the charge was clearly correct, and affirmed a judgment for the plaintiff. Many more cases might be cited to the same effect, but we desist for want of space.
Counsel for appellant, in their brief, state the rule as follows:
“It is gross negligence where the wrongdoer, by the exercise of the most ordinary care, should have known of the precedent negligence of the plaintiff and of his peril, and subsequently does him an injury. Baldwin on Personal Injuries, § 138. Gross negligence, therefore, may be: (a) A deliberately wilful act; (6) an act so reckless as to be akin to wilful, and therefore presumed in law to be wilful; (c) a failure to exercise ordinary care to prevent injury to another, after his peril is, or should have been, discovered in the exercise of ordinary care. Such failure to exercise ordinary care to prevent injury is so reckless that the law presumes it to be wilful; wilfulness or deliberate intent may be inferred from all of the circumstances — citing cases.
" If the claim of the plaintiff presents a case of gross negligence at all, it is under subdivision ‘ c * of the definition above given.”
Whether plaintiff was in a position of danger a sufficient length of time to have been seen by defendant’s engineer, and to have enabled him to stop the train, was a question for the jury, and we think that question was properly submitted to them, in the language of the charge which we have quoted.
The distance within which the train could have been stopped, under the circumstances, including the condition of the engine when the emergency brake was applied, and the claimed fracture of the packing leather; the effect of such fracture upon the driving wheels of the engine, and upon the train — these were all questions of fact for the jury to consider, and were properly submitted to them. It will be noted that the engineer nowhere claims that he thought the team would get off the track before he reached it, but he says he did not see it.
Was the verdict against the weight of the evidence? Proper consideration of this question has rendered it necessary for us to read and consider the entire evidence in the case. This we have done.
We said, in Gardiner v. Courtright, 165 Mich. 54 (130 N. W. 322), after a review of the decisions of this court, that we would only reverse a case upon the question of the weight of the evidence, when the verdict was against the overwhelming weight of the evidence; and that the verdict must be clearly against the great weight of the evidence, to require this court to overrule the decision of the circuit judge refusing a new trial. In view of this well-established rule, we cannot say that a verdict for the plaintiff in this case was against the weight of the evidence, or that the circuit judge erred in denying the motion for a new trial upon that ground.
Was the verdict excessive in amount ?
The plaintiff, a housewife of a common laborer, of the age of about 37 years at the time, sustained serious injuries. She lost her left hand, the left arm being amputated about the middle third. The left foot was crushed, and had to be amputated above the ankle. There was a disfiguring scalp wound over the left forehead above the eye. She also sustained a nervous shock, which it is claimed will be permanent. She suffers from sleeplessness, and is affected with melancholy. She suffered severe pain. The elements of compensatory damages in such a case are well stated in Sherwood v. Railway Co., 82 Mich., at page 383 (46 N. W. 773). Appellant’s counsel state in their brief that:
“ The record discloses, and it is proper to have in mind, that the plaintiff’s husband was killed in the same accident in which she sustained the injuries sued for.”
Certainly we cannot consider any elements of damage there may be pertaining to his injury or death in this action. The fact, however, remains that the plaintiff is a widow, and not a married woman. We are, however, impressed with the fact that the verdict and judgment in this case are excessive. At the time of the injury the plaintiff’s expectation of life was about 30 years, as shown by the table of mortality. The sum of $17,000 placed at interest at 5 per cent, would bring an income of $850 a year, and at 4 per cent, would bring an income of $680 a year, without the impairment of any of the principal sum. We cannot overlook the fact that from $50 to $70 a month would bring to this plaintiff, in her station in life, a support that would be equal to her wants, and equal or greater than she could earn if uninjured. If in the later years of her life she should need to use some part of the principal sum, that fact would not be inconsistent with the rule of compensatory damages. It is not the object of the law in such a case to provide the plaintiff with a competency, or a fortune; but compensation for all the injury sustained is the rule.
We have examined the claim of improper argument of counsel. In view of the recent rulings of this court which are collected in People v. Sartori, 168 Mich., at page 317 (134 N. W. 200), we must hold that, except upon the measure or amount of damages, no question is preserved for review.
Other assignments of error, not here specifically treated, have all received careful consideration, and we find no prejudicial error except as indicated in the amount of the verdict. Unless the plaintiff shall within 30 days from the filing of this opinion remit all damages in excess of $17,000 and interest from the date of the judgment, the judgment will stand reversed and a new trial be granted, with costs to appellant. In case such excess is remitted as above indicated, the judgment of $17,000 and interest will stand affirmed, with costs of the court below. In either event the defendant will recover its costs in this court.
Steers, C. J., and Moore, Kuhn, Ostrander, and Bird, JJ., concurred.
Brooke, J. If the liability of the defendant is established, as my Brethren believe, I am of opinion that the judgment should be affirmed.
McAlvay, J. I think the judgment should be reduced to $13,500. | [
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Moore, J.
The questions involved cannot, perhaps, be better understood than by quoting from the briefs of counsel. The following is from relator’s brief:
“ Relator is incorporated under the laws of the State of Missouri, where, by its charter and certificate of authority, it is authorized to write ‘ all kinds of insurance on automobiles, to wit, fire, theft, collision, property damage and liability.’ Through application properly made in different States, it is doing an automobile insurance business in approximately 30 States of the Union. On the 5th of March, 1913, after complying with the Michigan statutes and departmental regulations, the commissioner of insurance for this State authorized relator to transact business in this State under Act No. 136 of the Public Acts of 1869, as amended by Act No. 15 of the Public Acts of 1911. Whereupon, and until October 33, 1913, relator wrote automobile insurance in Michigan as it was doing in many other States, covering by its policy losses through fire, theft, collision, property damage and liability. On October 33d the commissioner of insurance for Michigan directed that relator should discontinue writing personal liability business on automobiles. The commissioner on application has refused to change his ruling or reverse his order, holding that Act No. 15 of the Public Acts of 1911 does not permit writing the form of policy relator had been writing.
“The title in section 1 of what is generally known as the 8 Fire Insurance Act ’ was amended by Act No. 15 of the Public Acts of 1911, so that the title now reads, ‘An act relative to the organization and powers of fire, marine and automobile insurance companies transacting business within this State.’ The sole change in the title being the addition of the word * automobile.’ Section 1 was amended by adding a third subdivision. That section permits the incorporation of companies for any and all of the purposes therein enumerated, the first subdivision relative to fire insurance companies, the second subdivision relative to marine insurance companies, and the third subdivision (the new one giving rise to this controversy) reading: ‘To make insurance on automobiles, whether stationary or being operated under their own power against any hazard.’ The primary question presented for determination is whether or not in that act the words ' any hazard ’ mean ‘any hazard,’ or ‘any hazard except personal liability.’
“The second question, regardless of the answer to the foregoing inquiry, is as to whether or not, if relator is entitled to do business at all in this State, it should not, as a matter of comity under a settled rule of law, be entitled to do the same business here that it is authorized to do by its charter and the laws of its home State, where there is no express legislative prohibition to the contrary here. While the problem is apparently a simple one, yet the ruling of the commissioner seems to make it necessary to consider briefly the history of our insurance laws.”
Then follows a history of the insurance laws.
Proceeding, counsel say:
“Confessedly, automobile insurance is in a class by itself. The largest risk possible to take in the automobile insurance line by any company is a fire risk incident to the burning of a garage harboring a number of machines at the same time, which is undoubtedly the reason for putting automobile insurance under the ‘ Fire Act.’
“We have therefore the following significant circumstances to be borne in mind:
“ (1) The sudden necessity of an automobile insurance policy which would cover ‘any hazard.’
“ (2) We have the reason for providing under the * Fire Act ’ for the incorporation of automobile insurance companies.
“(3) We have the restrictive language in the ‘Life Act,’ which specifically enumerates what may be insured and prohibits any other kind of insurance.
“ (4) We have like language in the act to provide for the admission into this State of a limited class of automobile insurance companies.
“ (5) We have the act designed by the legislature to meet the suddenly developed demand which, in the desire of the legislature to meet, was intentionally and deliberately made as broad as possible by amending the title, so that in its title the act provided for the organization of automobile insurance companies, and in the body of the act such companies were authorized ‘ to make insurance upon automobiles (a) whether stationary, or (6) being operated under their own power against any hazard.’
“ If the legislature intended to say ‘ against any hazard except liability,’ why did they not say so? The word e any ’ certainly cannot be construed in this connection to mean only a portion of hazards, nor can it be construed to mean ‘any one hazard.’ The department has construed it to mean ‘only certain hazards.’ We respectfully submit it must mean either ‘any one hazard’ or ‘every hazard,’and the context and the reasoning prompt the belief that ‘ every hazard ’ is intended; otherwise the legislation was idle.”
The query might be germane here: If the legislature meant to authorize liability insurance, so called, why did it not say so ? Before raising that inquiry, we quote from the brief of the attorney general:
“ The relator is an insurance company organized under the laws of the State of Missouri. It has complied with the provisions of Act 136, Public Acts of 1869, as amended, being sections 7224, etc., Compiled Laws of 1897, and being the act with reference to fire and marine insurance companies. If has not complied with the provisions of Act 77, Public Acts 1869, being sections 7190, etc., Compiled Laws 1897, and being the act which with its various amendments controls the organization of life, casualty, and surety insurance companies. At the time of the service of the commissioner’s order, it was writing ‘personal liability business on automobiles.’ In other words, it was writing the kind of policies which insured the owners-of automobiles from personal liability for damages done by them to pedestrians and others in their use of the machines. The statutory policy of the State and the departmental policy of the insurance department has always been to keep the two lines of insurance separate and distinct, those companies which wrote insurance upon property being organized under one act (the act under which relator was authorized to do business), and those companies which wrote insurance with reference to liability to persons being organized under another act (the one. with which relator has not complied). The fire and the marine act being designed to permit those companies which write insurance upon property to organize and do business under one class of provisions and restrictions, while those companies which write insurance upon the lives of persons, damage to persons, and in cases where the element of accident and chance more largely prevail, being authorized to organize under the so-called life act.
“ The writing of fire and marine insurance is as old as the country itself, and it has been so long in existence that it is possible to figure with a reasonable degree of certainty the percentage of loss, and therefore what restrictions are advisable, in order to provide such safeguards as may be needed to throw around this class of business. The writing of so-called liability insurance is, however, of recent date. Prior to 1909 there was no statute in the State which permitted companies to write this character of insurance business. At this time the life act was amended by Act 297. However, the legislature in its widsom has all along seemed to feel that greater safeguards should be thrown around those companies which write life, sick, accident, and casualty insurance than is thrown around the company which writes insurance upon property and upon property alone. If this policy of the law in this State has been changed at all since 1869, it must be by the act under consideration, viz., Act No. 15, Public Acts 1911, p. 18.
“The legislature of 1911 by this act amended the fire and marine act in only, one particular, viz., by adding in section 1 the following:
“ ‘Third. To make insurance upon automobiles, whether stationary or being operated under their own power against any hazard.’
“ The same legislature at the same session also made provision for the writing of automobile insurance in the State by companies organized under the laws of other States by passing Act 111, Public Acts 1911, p. 167, which act specifically limited the liability to be covered by the policy of insurance to be issued by such foreign companies in Michigan to property loss and maintained the fixed policy of the State to segregate property insurance from liability insurance. We quote as much of it as may be important here:
‘ “ It shall be lawful f or such insurance companies organized under the laws of any other State and authorized by law to transact the business of insuring motor cars and other vehicles against loss or damage by fire, loss or damage while being transported in any conveyance by land or water, loss or damage by theft, robbery or pilferage, loss or damage sustained by collision with any object moving or stationary, and loss or damage done to property by such motor cars and other vehicles through the operation thereof, to do the business of insuring automobiles and other vehicles against the hazards herein enumerated, only in this State with the consent of the commissioner of insurance of this State upon filing the statements making the applications and complying in all respects, as far as applicable with the provisions of an act entitled “An act relative to the organization and powers of fire and marine insurance companies transacting business in this State, being sections,” ’ etc.
“We respectfully submit that this act specifically limiting the kinds of insurance that may be written by foreign automobile insurance companies controls, and is exclusive. The respondent, commissioner of insurance, has construed-these amendments to mean that an insurance company organized under the laws of this State, or of foreign company organized under the laws of another State, may write property insurance upon automobiles, but may not write personal liability insurance where the damage insured against is done and the liability created in the negligent use of the machines. * * * If the relator desired to write casualty insurance alone, it would be necessary for it to comply with Act 77, Public Acts of 1869, as amended, and, if it did comply with the provisions of this act, it cannot write fire and marine insurance. Act 297, Public Acts 1909, p. 697, in section 1 thereof, after enumerating the various kinds of insurance which may be written by a company organized under its provisions, provides that:
‘ ‘ ‘ Each, company organized under this act shall have authority to reinsure any risk authorized to be undertaken by them, and to grant reinsurance upon any similar risk undertaken by any other company, but shall not have power to undertake marine and fire risks, or any other species of insurance whatever than that specified in some one or more of the foregoing subdivisions.’
“The distinction between insurance upon property where the recovery is limited to the value of the property destroyed and liability insurance where the value of the property is of minor importance is apparent. Therefore the legislature in its wisdom has provided that an insurance company writing fire and marine insurance (viz., insurance upon property) need not make a deposit with the State treasurer to secure its policy holders, but may retain its securities in its own hands; while a liability insurance company is required to deposit in specified securities the sum of $100,000 with the State treasurer to secure its policy holders. It may be that this action is because of the fact adverted to heretofore, that fire and marine insurance is old, well established, and the probable amount of loss in any one year readily ascertainable, while with a liability company the amount to be paid under any policy may be $100 if the injury done is small, or it may be $5,000 if the injury done is great. A property insurance policy upon an automobile is limited to the value of the machine, and the damage done by the machine; while in the case of liability insurance it may be tenfold the value of the machine.”
We think we have quoted sufficiently so that we may very properly approach the first question; that is, whether the amendment authorizes liability insurance, so called. The language of the statute is not complex. Authority is given to “make insurance on automobiles.” If it was an insurance on the automobile against fire, that would be a recognized hazard to which automobiles are subject. If it was an insurance on the automobile against theft, that, too, would be a recognized hazard to which the automobile is subject. So of injury by accident, and the liability in each case would not be greater than the value of the automobile. Is not the relator doing more than placing insurance on automobiles? Section 1 of the policy clearly places insurance upon automobiles. Section 2 reads in part as follows:
“Against loss or expense arising or resulting from claims upon the assured for damages by reason of the ownership, maintenance, manipulation or use of any automobile enumerated and described in statement IV of the schedule of statements, on account of:
“Injury to Persons. (A) Bodily injuries or death accidentally suffered or. alleged to have been suffered by any person or persons as the result of an accident occurring while this policy is in force;
“ Damage to Property. (B) Damage to or destruction of property of every description (except property in charge of the assured, or any of the insured’s employés, or carried in or upon any automobile covered by this policy) arising from an accident occurring while this policy is in force; and, in addition to the above, the company does hereby agree:
“ Defense of Suits. (C) To defend in the name and on behalf of the assured any suit brought against the assured to enforce a claim, whether groundless or not, for damages suffered or alleged to have been suffered on account of the bodily injuries or death or the damage to or the destruction of property as set forth in this section; and,
cc Payment of Costs. (D) To pay all costs taxed against the assured in any legal proceeding against the assured, defended by the company in accordance with the foregoing agreement; and to pay interest accruing after entry of judgment on that part of such judgment act in excess of the limit of liability of the company under this section; and,
“ Medical Aid. (E) That such immediate surgical relief as shall be imperative at the time of an accident involving bodily injuries, may be provided by the assured at the expense of the company.”
We think it a strained construction of language to say that a contract of this sort is simply the placing of insurance on an automobile. The liability thus created is not limited by the value of the automobile. Instead of being property insurance, it makes a contract of an entirely different character from that authorized by the amendment.
We may now consider the second question, i. e.: May the relator continue to issue so-called liability insurance as a matter of comity? The position of counsel is stated by them as follows:
“ There is an added reason peculiar to this relator which entitles relator to the relief prayed. The order complained of, and here sought to be set aside, is that we discontinue writing liability insurance on automobiles. It is undisputed that by the laws of our domicile and by the express terms of our charter in Missouri we are entitled to write the form of policy we had been writing which includes liability. Under these circumstances, we are entitled to do the same in Michigan. The law is settled:
“ ‘The corporations of one State may exercise any or all of their powers in another State unless the latter State by its statutes, decisions or policies forbids ’ [citing many cases].
“As one of the foregoing cases expresses the rule:
“ ‘ Where there is no positive prohibitive statute, the presumption under the law of comity that prevails between the States of the Union is that the State permits a corporation organized in a sister State to do any act authorized by its charter or the law under which it is enacted, except when it is manifest that such act is obnoxious to the policy of the law in this State.’
“It becomes therefore, necessary, in demonstrating the applicability of the foregoing proposition in the case at bar to ascertain if there is any prohibitive statute or public policy forbidding relator to write liability insurance. The statutes relative to the admission of nonresident insurance companies into Michigan are confessedly loosely drawn, and not altogether satisfactory. An examination of all the sections in any way applying to the present situation fails to disclose any express statute prohibiting doing that which we ask. On the other hand, the general statute relative to the right of foreign corporations to do business in this State in express terms provides:
“ ‘ That no such foreign corporation shall be permitted to transact business in this State unless it be incorporated in whole or in part for the purpose or object for which a corporation may be formed under the laws of Michigan, and then only for such purpose or object.’ Public Acts 1907, No. 310.
“ By its express terms, this act does not apply to insurance companies. It is manifest, therefore, that th legislature has expressly removed, so far at least, that restriction from applying to insurance companies. In other words, instead of there being legislative prohibition against our writing liability, such prohibition, in the light of the rule as announced, has been expressly removed from insurance companies.”
The attorney general does not concede that in its home State the relator is authorized to engage in the business ot liability insurance, but contends that the policy of the State of Missouri is the same as the policy of this State, to segregate the different kinds of insurance, and to prohibit the transaction of more than one kind of insurance by the same company. It is not, however, necessary to pass upon that question.
It is to be observed that in all the authorities upon this subject cited by counsel for relator, it is made clear that, if the proposed act is obnoxious to the policy of the law of the State, the rule of comity will not prevail. We have quoted sufficiently from the briefs of counsel to indicate the questions involved. Without further citation of the authorities, we shall content ourselves with saying that we are in accord with the argument of the attorney general, to the effect that it is the policy of the State to separate the business of insurance upon property from other lines of insurance, and that, before we should hold this policy has been changed by the legislature, it should speak in less uncertain terms than it has done in the amendment of 1911. The case of American Telephone & Telegraph Co. v. Secretary of State, 159 Mich. 195 (123 N. W. 568), is in point.
The writ is denied.
Steere, C. J., and MoAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred. Kuhn, J., did not sit.
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Brooke, J.
(after stating the facts). Under the testimony of the witness Tiva, to the effect that the trolley wire had become loosened from the clamp 24 hours previous to the accident, that the defect was reported to the trammer boss, and that it was fixed by Tiva at the direction of the trammer boss, we are of opinion that the ques- lion of defendant’s negligence was for the determination of the jury.
Upon the question of decedent’s negligence, the following facts áre undisputed: When the trolley wire becomes defective, it is the duty of the trammers to push the cars by hand past the defective place until the defect is repaired. Witnesses for the plaintiff agree with witnesses for defendant upon this point. The place where the wire came loose from the clamp was within a very few feet (possibly 20) of the place where the loading was done. When this crew went into the south drift on its first trip, the defective condition of the wire was discovered and remedied in the manner indicated in the statement of facts, supra. Upon the fatal trip, instead of pushing the cars by hand a few feet past the defective place, the crew rode upon the "pony,” and attempted to move the cars past that point by means of the electric power. The drift was lighted by "sunshine” lamps carried by each man on his hat. The drift was from 15 to 30 feet wide and at this point about 8 or 9 feet high. The "pony” (motor) upon which the crew rode upon its first trip was about 3 feet high, 4 feet wide, and 6 or 7 feet long. Decedent was 39 years of age and an experienced trammer, having worked several years in defendant’s mine.
The foregoing facts being unquestioned, it becomes important to inquire what knowledge decedent had, or, in the exercise of ordinary prudence, should have had, of the defective condition of the wire at the point where he lost his life. Three persons only knew what occurred at the time the defect was discovered upon the first trip in. They are Isabell, the pony boy, De Santi, the trammer, and Tabaracci, the decedent.
Isabell, sworn for the plaintiff, testified, in part, as follows:
(‘Q. When you came out there on your first trip, you saw this trolley wire sagging?
“A. Yes.
”Q. Now, was it low enough so that, if you were under it with your motor, it would touch your head?
“A. Yes.
“ Q. What did you do ? Did you run by it ?
“JL. We stopped, and I turned that piece of steel, and with a piece of powder box put the wire on the steel.
“ Q. Who did that ?
“A. I did.
“Q. Well, in coming out, how were your cars arranged ; which part was your motor in ?
“A. I think that one car was in behind and one car on front and the motor between.
11Q. Which end of the motor car were you sitting at your position ? Was the motor car in front of you or behind?
“A. Going in the drift the motor was in front of me, and going to the shaft the motor was in the rear.
“Q. The trolley pole is about how long ?
“A. About six or seven feet.
“Q. Was that swinging back ?
“A. It was.
“Q. When you saw this wire sagging down, did you stop the motor car ?
“A. Yes.
“Q. About how fast do you run those motor cars in comparison to about how fast a man would walk ?
“A. Not much faster than a man could walk.
“Q. So you got off and walked around the motor car and picked up a piece of powder box ?
“A. Yes.
“Q. How long a piece ?
"A. About a foot and a half or two feet.
l’Q. And you pushed the cable up and hooked it over on this piece of steel, you say, which piece is the piece that held the cable with these screws ?
“A. Yes.
liQ. And you had to turn those pieces of steel crosswise ?
“A. Yes; I did.
“Q. When you put the wire on top, did that piece of steel hold stiff enough to hold the wire ?
“A. Yes.
“Q. Did Tabaracci see you do that ?
“A. I wouldn’t say that he seen; but they were both on the car and most naturally would have seen me.
“Q. Was he looking at you ?
“A. He knew that I stopped the car, and he must have taken notice.
“Q. Do you know if they all saw it ?
“A. No; I don’t know whether they all saw me.
“Q. Do you know if they all saw the wire sagging down from this bracket ?
“A. I don’t know positively, only as I have said.
“Q. Tabaracci knew that the car stopped ?
“A. Yes.
“Q. How far were you from the place where you were to fill the cars ?
‘‘A. About 20 feet.
“Q. Now, this steel, you understand, is what I mean by the clamp that held the wire.
“A. There is no spring in it; it is sort of half-moon like, and is hollow.
“Q. When you say the ‘ steel,’ you mean the one about 6 inches long that held the wire inside of it ?
“A. Yes.
e'Q. I will call it the ‘ clamp.’ When you went around with this piecei of powder box and hooked the wire over this clamp, did Tabaracci get off and walk over to the chute ?
“A. I don’t know.
“Q. You came back and got on the motor car ?
“A. Yes. * * *
“Q. Did you, at the time you put this trolley wire upon these pieces of steel or clamp, or on this bracket, did you tie it with a piece of fuse ?
“A. No.
“Q. Why not?
“A. I didn’t think it necessary.
“Q. You could have tied it, could you, with a fuse, if you thought it was necessary ?
UA. I had never tied any with fuse, so I didn’t naturally think it necessary.
“Q. You thought that it would stay up there till you got through with that shift ?
“A. I wasn’t sure that the wire would stay up there, but took chances. * * *
“Q. State if Tabaracci saw the wire sagging from this bracket at the time that you got off to put the wire on.
“A. I wouldn’t swear to it; I am not positive; they most naturally would have seen it.
“Q. Didn’t you state a minute ago that Tabaracci saw the wire sagging ?
“A. He most naturally would have seen it, because he was sitting in front of me. I don’t know if he called my attention to it or not.
“Q. By calling your attention to it, you mean told you that the wire was loose, and told you to stop the car ?
“A. Yes.
“Q. You are, therefore, unable to say who saw the wire sagging first ?
“A. No.
“Q. But you say that Tabaracci might have called your attention to it ?
“A. I don’t remember.
“Q. Did you have to hunt around the level to find the stick ?
“A. I don’t remember.
“Q. Was Tabaracci facing you and could see what you were doing ?
“A. I don’t know if he was sitting sideways or back-ways.
“Q. Was there light enough so that he could see all your movements ?
“A. Yes.
“Q. He sat there on the motor all the time while you were fixing—
“A. I think he did. I don’t remember having some conversation with him about it at that time; I am not positive that they looked on and watched what I did; I am not positive; I don’t remember. I remember what I did; I went to put up the wire, and they were on the motor; they knew where I was going; I won’t swear if they seen me put it up.
“Q. How about seeing the wire sagging before you stopped the motor ?
“A. What do mean ? They most naturally could see it. They were in front of me.
“Q. And by that they had a good chance for observation?
“A. Yes.
“Q' (By Mr. Burritt): How is that drift lighted ?
“A. By our lamps; I am not positive whether or not Anton Tabaracci observed the defective condition of that wire and bracket; I am not positive whether he did know; I do not know of my own knowledge whether Tabaracci observed that the condition of the wire and bracket was defective.
“Q. (By Mr. Lawton): When you stopped the car, the wire was sagging down close to their heads?
“A. If I had stopped the car under the wire, it would have hit them, if they did not watch out for it.
“ Q. At the point that you did stop the car, the wire was sagging over their heads?
“A. A few feet away.”
De Santi testified as follows upon this point:
“ That wire was loose before when we used it, a little while before on that shift; it was loose, but there was a fuse keeping it up; it was loose and sagging down. I don’t remember when Isabell stopped the car and put the wire back up over on the bracket; he may have done it, but I don’t remember. I don’t remember, either, that he stopped the car when he was coming into the drift; he may have tied it up while we was inside loading the cars; he may have tied it up; I don’t know; sometimes he may do it while we was inside at the chute loading the car. I don’t believe I seen the wire, because we didn’t stay there all the time to look up and see if it is loose; I don’t remember if I seen it.”
Based upon the foregoing testimony, the conclusion that Tabaracci saw Isabell fix the wire on the first trip in, and therefore knew, or, in the exercise of ordinary prudence, should have known, of the defective condition of the wire which later caused his death, is almost irresistible. Yet we do not think it should be said, as a matter of law, that he had such knowledge. If he did know of the defective condition, and continued to use the electric power for tramming, instead of pushing the cars by hand past the defective point until it was repaired, as he was required by the rules to do, he should unquestionably be held to have assumed the risk of injury from such use.
Defendant’s seventh request is as follows:
“ (?) Under the undisputed testimony in the ease, it is against the rules to tram by the motor car or machine when the wire is out of order; but the rule is to have it fixed at once before using the motor car further. In the meantime, if necessary to tram, push the cars by hand. This is a rule and a custom of the mine which is established for the safety of the men, and the rule that they should follow. Had this rule been followed in this case, no injury would have happened; and the testimony undisputedly shows that the injuries resulted from violating this rule. The company, therefore, is not responsible for the accident, and the plaintiff’s intestate cannot recover.”
This request was refused, and no reference was made in the charge as to the duty imposed upon plaintiff, under the rules, to tram by hand while the wire was in a defective condition. Upon this point the court charged:
“It was the duty of the deceased to exercise ordinary care; that is, such care as an ordinarily prudent person would exercise under like circumstances. It was not the duty of the deceased to inspect for himself. He had a right to presume that the defendant would not, by its own want of care, expose him to danger; and it was the duty of the deceased to continue his work as he always had done, unless he knew, or should have known, that the connections were out of order and were dangerous and unsafe; and by continuing his work he assumed no risk which was known, or should have been known, to the defendant, and of which the deceased was ignorant, or was not fully apparent to him. * * * The testimony on that branch of the case is in direct conflict, gentlemen, and I cannot assist you at all in determining the fact; but it will be necessary for you to determine the fact as to whether the deceased was going along at his business in the ordinary way. If he was, and if he did not have knowledge of the dangerous condition of that wire and assume the risk himself, and you find that the company was negligent in leaving it in the place it did, the plaintiff in this case is entitled to recover all damages that he suffered.”
While defendant’s seventh request was for a directed verdict, and was therefore, under our view of the case, properly denied, we think the court should have instructed the jury that if decedent knew, or, in the exercise of ordinary care, should have known, of the defect in the wire, it was his duty, under the rules, to have pushed the cars by hand past the defect; and that if, being chargeable with such knowledge, he used the electric power, he assumed the risk of such use, and no recovery could follow.
Upon the question of defendant's duty the court charged:
“It was the duty of the defendant to furnish the deceased a reasonably safe place in which to work; and the failure of the defendant so to do would render the defendant liable for all of the damages sustained, if the deceased was in the exercise of ordinary care at the time he sustained the injury. * * * The degree of hazard attending the use of a dangerous article has a direct relation to the care which is requisite in its use, and the use of electricity imposes the duty of the greatest possible care. I therefore charge you that it was the duty of the defendant to use the greatest possible care in maintaining the car, clamp, or connection, whereby said trolley wire was attached to the bracket by which it was suspended, in a reasonably safe condition; and if you find from the evidence that the defendant did not use the greatest possible care in that regard, I charge you that in such case the defendant was guilty of negligence; and if you find that the deceased received an injury resulting in his death as a result of the failure of the defendant to exercise the greatest possible care, and without negligence on his part, your verdict should be for the plaintiff.”
Error is assigned upon this portion of the charge. It is urged that the doctrine of “safe place’’does not apply; and, further, that the instruction, in any event, imposed too high a degree of care upon defendant.
We have held that the obligation to inspect (and repair) appliances is one not of insurance but of diligence. Clark v. Goldie, 146 Mich. 303 (109 N. W. 1044). This duty is undoubtedly greater where the mechanism or agency employed is highly hazardous; but, giving due consideration to the character of the agency, the duty imposed is, after all, “ordinarycare,’’and not “the greatest possible care.”
Error is assigned upon the denial of the motion for a new trial, based, inter alia, upon the ground that the verdict was excessive. As the case must go down for an other trial, consideration should be given this assignment.
Based upon the evidence of his past contributions to his family, it was shown that decedent, if he had kept up such contributions during his entire expectancy, would have contributed the sum of $1,276.22. No computation of the present value of this sum was made; plaintiff’s counsel claiming that plaintiff was not limited in his recovery to this amount. The verdict was for $5,040. Respecting the measure of damages, the court charged:
“ In determining this question — that is, as to the sum of money — you are to consider the age of the deceased at the time of his death, his habits of industry, his ability to labor, his capacity to earn money, the wages he was in the habit of earning when he died, the amount he had been in the habit of contributing to his family, the length of time he probably would have lived had he not been killed, his possible death, his possible illness, his possible want of employment, the effect upon his earning capacity of his advancing years, the expectation of the lives of the members of his family, and all other facts and circumstances bearing upon this branch of the case.”
This instruction correctly states the law aB applicable to the facts in this case. It is, we think, entirely clear that the jury failed to follow it.
In defending the verdict as it stands, plaintiff cites and relies upon the case of Ingersoll v. Railway Co., 163 Mich. 268 (128 N. W. 227, 32 L. R. A. [N. S.] 362), where this court, speaking through Mr. Justice Stone, said:
“ The circuit judge should have permitted the case to go to the jury under the proposed evidence, to determine as to the liability of the defendant; and, if any was found, to assess damages, if any, for the contributions, voluntary or forced, that would probably have been made by deceased in favor of the widow during her probable life, if not exceeding the probable life of decedent, and for the child during its minority.”
An examination of the whole opinion will at once demonstrate that it is not applicable to the facts in the case at bar. In that case the husband had repudiated his marital obligations and died without ever contributing a penny to the support of his wife or child. Here the husband recognized his obligation, and the evidence shows with unusual certainty exactly to what extent the family of decedent was pecuniarily injured by his death. Where, as in the instant case, the evidence establishes the pecuniary loss with reasonable certain «y, the jury, in assessing the damages, should be governed by the evidence. As was said in Cooper v. Railway Co., 66 Mich. 261 (33 N. W. 306, 11 Am. St. Rep. 482):
“ The statute authorizes the jury, in every case of this kind, to give such amount of damages as they shall deem fair and just to the persons who may be entitled to the same when recovered. Under this statute the jury are not warranted in giving damages not founded upon the testimony, or beyond the measure of compensation for the injury inflicted. They cannot give damages founded upon their fancy, or based upon visionary estimates of probabilities or chances.”
See, also, Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205; Balch v. Railroad Co., 67 Mich. 394 (34 N. W. 884); McDonnell v. Drug Co., 170 Mich. 291 (136 N. W. 383).
The other errors assigned require no discussion.
The judgment is reversed, and a new trial ordered.
Steere, C. J., and Moore, MoAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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McAlvay, J.
Plaintiff, a Michigan corporation, brought suit in assumpsit before a justice of the peace in the city of Detroit and recovered judgment. Defendant appealed to the circuit court, where the trial resulted in a judgment in his favor. From this judgment the plaintiff has brought the case to this court for review upon a writ of error.
Prior to incorporation, this business was carried on as a copartnership. The business was incorporated in 1901, and all the partners, including defendant Cole, became stockholders therein and have so continued.
In August, 1907, defendant left his employment with D. M. Ferry & Co., of Detroit, which had continued for a period of 20 years, and entered plaintiff’s employment as its secretary and treasurer, which continued for a period of about one year, until the annual meeting in 1908, when he was elected to the office of secretary only, and so continued until the annual meeting in 1909, when he was not re-elected a director. The dispute in this case arises out of a claim on the part of plaintiff that while defendant was in its employment, by overdrawing his account and not charging certain items against himself, he became indebted to it.
The original bill of particulars furnished by plaintiff of its claim against defendant in justice’s court, and which was used upon the trial in the circuit court, could not be found to be incorporated in the bill of exceptions; and, by stipulation entered into between counsel, a copy of the same was agreed upon and was used for that purpose. This bill of particulars charges against defendant certain items of various amounts aggregating $347.11, and he is credited with certain items aggregating $227.95, showing a balance in favor of plaintiff of $119.16, being the entire claim of plaintiff at that time, which, with interest for two years at 5 per cent, added, would make the exact amount recovered by plaintiff in justice’s court.
While acting as secretary and treasurer óf the plaintiff, defendant, who was not a bookkeeper, made the original entries in plaintiff’s business in a daybook, called the cashbook record, and he did not make entries in any other of the plaintiff’s set of books. Plaintiff also drew checks and filled out check stubs of such checks as he drew. During this time, an expert bookkeeper and accountant, named Lockwood, was employed to keep these, and it was his duty to post the entries made by defendant in plaintiff’s books. For this purpose he visited plaintiff’s office at least once a month. He took off trial balance, which required checking up the bank book and all the other books. Mr. Lockwood had been engaged on plaintiff’s books from the time of its organization.
In 1908, before the annual meeting, the president of the company directed this accountant to examine its books during the previous year, when defendant had acted as treasurer. He did this and reported that he had found certain discrepancies against defendant. Defendant was first informed that there was some claimed irregularity in his account either just before or during the annual meeting in 1908. It was at this meeting that one of the other directors was elected treasurer, and defendant was continued.* as secretary, for the following year. While there is no dispute between these parties as to the facts above stated, there is a sharp dispute upon the subject-matter in controversy in this suit. The contention on the part of plaintiff is that, as treasurer of the company, certain funds came into his hands which he has not accounted for, but has appropriated to his own use; that the record shows that he admits that he has received all of the items charged against him in the bill of particulars; that the burden of ^ proof is on him to show that he has accounted for them; that the court should have directed a verdict for plaintiff, leaving the jury to determine only the amount of such verdict. On the other hand, the contention of the defendant is that all of these items, with the exception of a few of the smaller ones, were improperly charged against him, and are disputed by him; that the large item of $146.36 charged was for expenses incurred for plaintiff during a trip he made, having been sent as a traveling salesman to the Upper Peninsula to secure to the plaintiff that trade, and had been paid to him as such with the knowledge and consent of the president of the company. The record shows considerable heat, caused by friction between the president of the plaintiff company and defendant.
Numerous errors are assigned, and all of them are discussed. The assignments of error are based upon rulings on the admission or exclusion of testimony; the refusal to give certain requests of the defendant to charge; and the charge of the court. They will be considered in the order presented.
The first assignment of error relates to a question asked on cross-examination of witness Pinten, plaintiff’s president, when witness was being examined relative to the occurrences at the stockholders’ meeting of September 1, 1908, when defendant was relieved of the office of treasurer. Defendant’s counsel it appears was claiming that the officers of the plaintiff had the report of the accountant relative to claimed discrepancies against him and yet continued him in the office of secretary. The question objected to was: __
iCQ. Was there any demand made upon Mr. Cole for payment of this money ? * * * At the time of this meeting, yes or no ?
“A. No demand was made at the time of the meeting.”
The objection made was:
“I object because the facts already stated are practical evidence of a demand. There have been other things to show that. He has received a statement. A demand is a conclusion. I submit it is immaterial.”
This was cross-examination, and there is a dispute in the record as to whether at that time defendant had received a statement of this claim upon which plaintiff has brought suit. The answer was allowed by the court as “ admissible as regards any transactions occurring at the time of this annual meeting.” It was not error to admit the question.
The second assignment of error relates to a question on redirect examination of the same witness, asked and answered before any objection was interposed:
”Q. Will you tell the jury whether there was ever any such meeting ?
“A. There was no such meeting ever held.”
This relates to a directors’ meeting held April 10, 1909.
The court, in sustaining the objection, gave as his reason that this introduced a side issue, and the examination should be confined to the issues. Counsel for the plaintiff then said, “ I cannot say anything against that remark at all.” Later in the case testimony concerning this directors’ meeting was introduced on the part of defendant for the purpose of showing an increase of the salaries of the officers of the defendant at the meeting referred to in this question, under which defendant claimed a credit of $75 on account of the raise in salaries. Mr. Pinten was afterwards examined at length upon this matter, after the testimony of defendant had been admitted. The court was not in error in the ruling at the time. Plaintiff later had the benefit of a full examination of this witness upon the question.
Objection was made and sustained on the ground of immateriality to the introduction of testimony on the part of plaintiff relative to a certain chancery suit brought by defendant against plaintiff, impleaded with John Pinten, to enforce performance by Pinten of an oral agreement for the sale of 200 shares of plaintiff’s stock, wherein the bill was afterwards dismissed. No offer was made showing that this was material to the issue; and it is only claimed that it was for the purpose of showing the bias of the witness. The court properly excluded the testimony.
Defendant testified at length as to the circumstances and character of the expenditures claimed by him to have been made for the benefit of plaintiff, which go to make up the item of $146.36 charged against him, and which he received upon salary voucher August 31, 1908, to which reference has already been made; that such expenses were incurred on this Upper Peninsula trip where he was in competition with his former employer, the D. M. Ferry Seed Company, represented by its strongest man, and that he gave the circumstances on his return in detail to the company’s president, who agreed to present it to the other members for allowance; that the first he heard that it was claimed against him was at or about the time the present suit was commenced (September 10, 1910). This item consisted of money which he advanced and charged as incidental expenses on that trip, and entered the items in the usual way in his expense book as a traveling salesman, which book was turned over by him to their expert accountant and bookkeeper, and was never returned to him.
The only portion of this testimony which we find from the record on this subject that was objected to by counsel for plaintiff was at its close, when witness testified:
“Q. At the time of this expense of $146.36, where were you?
“A. I was in the Upper Peninsula, away from the city.
“Q. Was that money spent?
“A. Yes, for incidental expenses in entertaining the trade, in getting the trade lined up for new business. I went up there to secure a line of business, and I faced conditions that compelled me to spend the money.”
Counsel for plaintiff said:
“I object to this testimony as incompetent, immaterial, and irrelevant. Objection overruled. Exception for plaintiff.”
Upon this, error is assigned. This in reality is the most important item in dispute in the case; and the testimony in regard to it was offered by defendant upon his theory that it was in fact money advanced by him in plaintiff’s interest, which was the usual custom of the business; that the account was given to the bookkeeper who, in the usual manner, entered it upon the books, and no question was ever raised about it until about the time this suit was commenced. Upon this matter the bookkeeper, Lockwood, who had kept the books of the plaintiff from the time of its organization, testified as follows:
“Q. I call your attention to the salary voucher of the 31st day of August, 1908. Explain it.
“A. When the travelers are on the road they are permitted to draw against their salaries, to make out a receipt, and send it in to the house, which goes in as cash.
“Q. So they will have ready money to pay their expenses with ?
“A. Yes, they draw cash.
UQ. Go ahead with the explanation.
“A. Mr. Cole was on the road and made a draft of that sort. I am taking this from the books. It shows Mr. Cole was on the road, the expense book.”
The testimony in regard to this matter was both material and relevant and properly admitted upon the theory of defendant that the item was improperly charged against him.
Defendant also claimed that, by the action of the directors of plaintiff corporation, the salaries of its officers were increased $25 per month each at a certain meeting held for that purpose. He was the secretary and offered testimony tending to show that he made the minutes of such meeting, as was his custom, on loose sheets of paper, and later transcribed the same into the minute book of the corporation, which record was offered and received in evidence. The president, Pinten, was called and denied that any such meeting was ever held, and that his salary for 1908 was $1,200 per year. Being shown the entry in the ledger, dated May 31, 1909, of $275 in his salary account, he admitted that it was credited to him, and presumed it was due. He also testified that there was a charge of $100 per month for each month of said year over and above the $275 charge, and admits that it was credited for some reason, but he did not know what the item was, but denied that it was for back salary.
Director Gillespie was recalled by defendant and testified that the matter of increasing the salaries $25 per month was talked over when Mr. Pinten was present; that Mr. Latham’s salary was raised to $1,500 for ten months, while in the South, to cover his moving expenses; that the matter of raising his salary and the other salaries was discussed, but no action was taken or record made on the books. His attention was called to the ledger account showing a charge of $275 salary to Pinten, and the same to himself, and admitted that it was a charge to salary account in each instance; but he said that the items were not drawn from the business, although the books showed it; that it was all a mistake; and later, by mistake, he told the bookkeeper to credit their accounts for $275 each. To this testimony counsel for plaintiff objected on the ground that it was incompetent and immaterial, and error is assigned on the action of the court in admitting it. This was the claim of defendant’s set-off; and this testimony was introduced to prove and corroborate his own testimony. It was properly admitted, and was a question of fact to be submitted to the jury.
Errors are also assigned on the refusal of the court to give defendant’s requests to charge. Eleven of these requests were presented, and none of them were given in the language of counsel. Error is assigned upon the refusal of the court to so give each of these requests. An examination of the charge of the court shows that the substance of each of the first five of these requests was contained in the charge of the court as given. The same may also be said of the eighth, ninth, and tenth.
The sixth was a request to direct a verdict for the plaintiff, leaving only the amount to be determined by the jury. This was properly refused.
The seventh request was based upon the theory that defendant had admitted the itemé charged against him as having been received, and that it followed that the duty devolved upon him to repay the same, and, if he had not done so, it was the duty of the jury to find for the plaintiff for such sum as the evidence of the plaintiff showed was not satisfactorily accounted for by defendant. This was properly refused for the reason that it was based upon a false premise.
The eleventh request asked the court to charge that the burden of proving, to the satisfaction of the jury, that he had repaid the money he received from plaintiff was upon him. This request is based upon the theory that where a defendant, in an action for money had and received, admits the receipt of the money as agent for plaintiff, but claims to have paid it over to plaintiff, the burden is upon him to prove such payment. This rule does not apply to the case at bar. There is no admission made in this case by defendant that he received these items as plaintiff’s agent, or that he paid the items charged against him over to the plaintiff. His contention is that the most of these items in plaintiff’s bill of particulars, for which this suit was brought, were improperly charged against him; that the item of $146.36, advanced by him while traveling on the road for plaintiff as incidental expenses, was credited to him according to the usual custom in plaintiff’s business. He admits that a few minor items were not entered and charged in his account by mistake. The remaining assignments of error relate to portions of the charge as given by the court.
The twenty-fourth assignment of error is the first which relates to the charge of the court, and is not a criticism of the charge as given; but error is claimed because the court omitted to charge as counsel desired. This paragraph was given upon plaintiff’s theory of the case, and is of considerable length, and need not be quoted. Suffice it to say that, upon the matter which appellant claims the court should have included in this paragraph, no requests were presented. Further, this paragraph, in our opinion, was more favorable to the plaintiff than the case warranted.
The next assignment of error (the twenty-fifth) relates to the charge of the court upon the matter of increased salaries, claimed by defendant to have been voted by the directors. No requests to charge were presented which cover the matter. It would appear that the argument is directed against the authority of these directors, who held all of the stock, to increase their salaries, and is an argument upon what counsel for appellant claims are facts shown by the record, and not upon a question of law. In our opinion, the charge of the court was proper and without error.
The next assignment of error (the twenty-sixth) upon the charge has already been considered in this opinion in discussing the error assigned upon the refusal to give plaintiff’s seventh request to charge.
The twenty-seventh error assigned relates to the charge of the court relative to the item of $146.36, claimed by defendant to have been expended by him for plaintiff. We have already discussed at length this item and the contention of defendant relative thereto. The court properly submitted the question of fact to the jury for its determination.
The twenty-eighth assignment of error relates to the charge of the court upon the matter of increase of salaries, which has already been discussed at length in this opinion, based upon the assignment of error as to receiving this testimony, and also upon the error assigned relative to the charge of the court thereon.
The twenty-ninth assignment of error is a complaint upon the following charge given by the court as to the burden of proof:
“ The law rests upon the plaintiff the burden of proof. He must prove to the jury those things which he claims against the defendant by what is called a preponderance of evidence; unless he has done that he cannot recover.”
The court was correct in giving the portion of the charge above quoted, which is the portion complained of specifically. The burden of proof was upon the plaintiff to establish every item in his bill of particulars charged against defendant. The question was properly submitted to the jury by this charge.
The one matter of set-off, on the part of defendant, which is presented by this record is the matter of increase of salary, which he claimed he should be credited with, and upon that item the burden of proof rested upon defendant.
The charge of the court imposed the burden of proof upon the plaintiff only in so far as its bill of particulars was concerned; and we do not find in the charge alike statement relative to this item of set-off. There was no specific request to charge to that effect; and we think that its omission was not prejudicial error, as it is evident from the verdict of the jury that the item for claimed increased salary was not allowed defendant.
The balance claimed by plaintiff against defendant in its bill of particulars was $119.16, which, as already stated, was the amount of the judgment recovered by plaintiff in justice’s court, with a small amount for interest added. The disputed item of $146.36, if credited to defendant, would leave plaintiff indebted to him in the sum of $27.20, which was the exact amount of the verdict found by the jury in his favor.
The two last assignments of error upon portions of the charge remain to be considered. The first of these relates to a part of the language of a long paragraph of the charge of the court to the jury relative to the preponderance of evidence, the province of the jury, and its duty relative to weighing and considering the evidence in the case, in which he said, among other things, that the preponderance of the evidence was not determined by the number of witnesses, and that, if the jury believed any witness had falsely testified in any material point, it would have the right to disregard the entire testimony of such witness. This was not erroneous. As to the second, counsel has already discussed it under the twenty-ninth assignment of error and the sixth and seventh requests to charge, which we have already considered and passed upon against the contention of appellant.
The next assignment of error relates tó a request made by defendant’s attorney that the jury be permitted to take plaintiff’s bill of particulars into the jury room. This, at the time, was objected to by counsel for plaintiff and refused. It is contended that this request of defendant’s counsel was prejudicial conduct. We do not agree with counsel. Such a request is not unusual in the trial of jury cases; and later in this case this bill of particulars was, by consent of appellant’s counsel, submitted to the jury before verdict.
Error is also assigned upon the charge of the court given to the jury, upon a return for additional instructions after being out for a time. These instructions cover a page of the record; and part of it is a repetition of the substance of the charge already given, the objections to which have all been passed upon. We find no prejudicial error in this charge.
The other errors assigned all relate to the refusal of the court to grant a new trial. This motion being founded upon the contentions of plaintiff, as set forth in the assignments of error which have been discussed in this opinion, it follows, from our conclusions already expressed, that the court was not in error in denying the motion for a new trial.
As we find no prejudicial error in the case, the judgment of the circuit court is affirmed.
Steers, C. J., and Moore, Brooke, Stone, Ostrander, and Bird, JJ., concurred. | [
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Steers, C. J.
This is a proceeding in certiorari, brought here by respondent, to review the action of the circuit court of Ionia county, allowing a writ of mandamus to compel respondent, at its October session, 1912, to order spread upon the tax rolls of the townships of Campbell and Boston, in said county, a certain tax, assessed by the county drain commissioner prior to the October, 1911, session of said board, to defray the costs of laying out and constructing a certain drain, called the ‘5 Campbell Creek drain,” as apportioned and assessed against said townships by said drain commissioner, for benefits at large, and the several amounts apportioned against the tracts and parcels of land in said townships, as described in the special assessment rolls alleged to have been filed by the county drain commissioner in the year 1911.
Relator filed his petition for said writ of mandamus on the 16th of October, 1911, alleging that he held an order, by purchase, for the sum of $46.50, issued to David C. Crawford for services in the survey of said drain, which order was unpaid, and for the payment of which no provision had been made, setting forth in detail various proceedings leading up to, and resulting in, an assessment of the tax in question, and charging a refusal of said board of supervisors to act favorably thereon. To this petition respondent, on November 6, 1911, made and filed a lengthy answer, admitting certain of the allegations in relator’s petition, denying others, reciting a chronological history of the Campbell Creek drain, with a statement of many facts and reasons in justification of its refusal to act affirmatively in the matter and to order the alleged drain tax spread as demanded.
On January 29, 1912, relator, in preparation for trial, presented to the court 56 issues framed on the petition and answer, which were later adopted by the court as the issues to be submitted to and passed upon by the court or jury at the trial. The case was brought on to be tried before a jury in the circuit court of Ionia county on June 28,1912, and the trial progressed regularly in that form until taking of testimony was concluded. Thereupon, apparently by some arrangement between court and counsel, the details of which are not fully stated, the jury was discharged and the case taken under advisement by the court. In the introduction to his finding of facts the court says:
“ It having been conceded in open court at the close of the evidence by counsel for relator and respondent that there was no question arising in the cause for a jury to determine, said jury was discharged by the court, and, a demand for the special findings of fact and law having been duly made in this case by the relator, the court finds the facts and law to be as follows
The findings of fact and conclusions of law by the court were filed on September 17, 1912. They follow in numerical order and dispose of the issues which had been previously framed and adopted. Matters stated in the petition or answer, but not denied, and upon which no issues were framed, are not reviewed. In disposing of the legal questions involved, these also are to be taken as true.
The findings occupy over 12 pages of the printed record. Many of the facts there found appear in the statement of Nash v. Kenyon, 151 Mich. 152 (115 N. W. 45), and need not be repeated now. That litigation involved, up to a certain point, the same proceedings relative to the Campbell Creek drain which are in controversy here. In that case Nash & Son, plaintiffs, held certain drain orders issued against said drain, and, on demurrer to their declaration, it was found, from the record, that the board of' supervisors had refused without just cause to order a tax for payment of the same spread on the rolls of the proper townships. This court held plaintiffs could not maintain an action for damages against defendant Kenyon, who, as drain commissioner, issued the orders, the action being brought on the ground that, by reason of the illegality of the drain proceedings, malfeasance in office was imputable to him, and that he was in consequence personally accountable for resulting damages; and the demurrer was sustained. That case was begun September 13, 1905, in Ionia county, and was finally decided by this court February 15, 1908.
The Campbell Creek drain was originally laid out and established in 1873 and 1874, and the proceedings detailed in Nash v. Supervisors, supra, which are also involved here, primarily arose from a petition, filed with the commissioner in 1901, for cleaning out said drain. It is set up in respondent’s answer, and appears undisputed in this record from exhibits made a part of said answer, that in November, 1903, Kenyon, the fhen drain commissioner, with two men named Emery and Johnson, as relators, applied to the court of Ionia county for a writ of mandamus to compel the board of supervisors to take the same action now sought to be compelled. Walter Yeomans, relator here, was then chairman of the board of supervisors, and as such signed respondent’s answer, setting forth the reasons why said board should not spread said tax for the Campbell Creek drain, being the same reasons set forth in this answer. The order for $46.50 which relator here is seeking to collect had then been issued, and its validity was necessarily involved in that proceeding. The same drain proceedings were in controversy, the same points raised, and the same alleged tax litigated as before us now; and, after full hearing, the side which Yeomans then represented prevailed, the application for mandamus being denied. No appeal was ever taken from said judgment, and it yet stands unreversed in that court, adjudicating invalid the proceedings upon which the order relator is seeking to collect is based.
It is alleged in respondent’s answer, and not denied, that relator was the owner of the order for $46.50, which he is now seeking to collect, when, in 1903, as a member of the board of supervisors, he denied the validity of the proceedings on which it is based, and actively assisted in successfully contesting the same. Said order was issued by the drain commissioner October 6, 1902, and fell due March 15, 1904. He, or those from whom he obtained it, and with whom he was in privity by successive ownership, held this order during all the intervening years, up to the commencement of this mandamus case in October, 1911, without taking any steps to collect or enforce the same. He knew as early as 1903 the attitude of respondent in relation to if. Conceding that the judgment rendered in the mandamus case in 1903, sustaining the answer which relator signed as chairman of the board of supervisors, does not now raise an estoppel by judgment against his taking a contrary position in this mandamus case, because he acted in a representative capacity then and acts in a personal capacity now, he is nevertheless the same individual, and his participation, though official, in that case, gave him familiar knowledge of all the facts involved and issues raised. He then knew that the board refused to authorize the tax in question, and why. He inevitably had, and carried, that knowledge with him as a private citizen, no matter how he came by it. With that knowledge, he, as a private citizen, stood by and acquiesced in that refusal for eight years thereafter, though the courts were open to him to personally assert his rights and enforce his claim at any time after his order fell due in the spring of 1904.
Mandamus is a discretionary writ, and has been said to often partake of the nature of a bill in equity for specific performance, wherein stale claims are not favored, and nonaction for a period covered by the statute of limitations imports abandonment, and imputes laches to the dilatory suitor. Whatever its form, this proceeding is in purpose but an action to collect a debt. Mandamus proceedings for that purpose are not different from any other suits. Hosier v. Higgins Township Board, 45 Mich. 340 (7 N. W. 897). Following by analogy the statute of limitations under former decisions of this court, we think relator’s claim has become stale by inaction, and its enforcement is barred by laches. In People, ex rel. Owen, v. Lincoln Township Board, 41 Mich. 415 (49 N. W. 925), denying a writ of mandamus, this court said:
“Where six years have elapsed since the issuing of township orders for work and labor performed, and payment was refused nearly that long ago, they cannot be enforced. The laches is too great.”
In Avery v. Township Board, 73 Mich. 622 (41 N. W. 818), it was held that an unexplained delay of over six years in demanding payment of highway or township orders, or instituting proceedings to collect the same, amounts to such laches as to bar relief.
As these conclusions dispose of the case, it becomes unnecessary to consider the many other interesting questions raised.
The judgment is reversed.
Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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Bird, J.
The defendant is a manufacturer of locomotive cranes in Bay City, and on the 26th day of July, 1909, the plaintiff was in its employ, working as a chipper. His work was that of smoothing up the rough castings with a chisel. While grinding one of his chisels on an emery wheel, a particle of dust or steel was thrown off and into his left eye, resulting in a permanent injury.
The negligence counted upon by the plaintiff was the failure of the defendant to provide and equip the emery wheel with a fan or blower to carry away the dust or particles which might be thrown therefrom, in compliance with Act No. 285 of the Public Acts of 1909.
When the testimony was completed, the trial court was of the opinion that solid emery wheels, such as the one in question, did not come within the provisions of the act, and therefore directed the jury to return a verdict for the defendant. This action upon the part of the trial court is alleged as error by the plaintiff.
The legislation involved in this case first made its appearance in the legislative session of 1887, under the title “ An act to provide for blowers in establishments where emery wheels or emery belts are used.” Section 1 provided, in part, as follows:
“Section 1. That all factories and workshops where emery wheels or emery belts, of any description, are used, either solid emery, leather, leather-covered, felt, canvas, paper, or wheels rolled in emery or corundum, shall be provided with blowers,” etc. Act No. 136, Pub. Aets 1887.
Section 1 was amended in 1893, under the same title, to read:
“ Section 1. That all persons, companies, or corporations operating any factory or workshop, where emery wheels or emery belts of any description are used, either solid .emery, leather, leather covered, felt, canvas, linen, paper, cotton, or wheels or belts rolled or coated with emery or corundum, or cotton wheels used as buffs, shall provide the same with blowers,” etc. Act No. Ill, Pub. Acts 1893.
Both the title and section 1 were re-enacted in 1899 in the following form:
“ An act to provide fans or blowers in all workshops or establishments where wheels composed partly of emery or buffing wheels or emery belts are used.
“Section 1. That all persons, companies or corporations, operating any factory or workshop, where wheels or emery belts of any description are in general use, either leather, leathei-covered, felt, canvas, paper, cotton, or wheels or belts rolled or coated with emery or corundum, or cotton wheels used as buffs, shall provide the same with fans or blowers, or similar apparatus, when ordered by the commissioner of labor, which shall be placed in such a position or manner as to protect the person or persons using the same from the particles of dust produced and caused thereby, and to carry away the dust arising from, or thrown off by, such wheels or belts, while in operation, directly to the outside of the building or to some other receptacle placed so as to receive and confine such dust, and the same shall be placed in such factory or workshop within three months after this act shall take effect, in the manner and according to the directions and specifications as herein, in this act set forth: Provided, that grinding machines upon which water is used at the point of grinding contact shall be exempt from the conditions of this act: And provided further, that this act shall not apply to solid emery wheels used in saw-mills or planing-mills or other wood-working establishments.” Act No. 202, Pub. Acts 1899.
In 1909 the labor laws of the State were consolidated, and the foregoing section, with others of the 1899 law, were included therein, without material change. Act No. 285, Pub. Acts 1909. See 2 How. Stat. [2d Ed.] § 4035.
It is contended by the defendant that the omission of the word “emery” before the word “wheel” and the omission of the words “solid emery” after the word “ either,” in the act of 1899 were made for the deliberate purpose of eliminating solid emery wheels from the provisions of the act.
In construing the act the purpose of it may be considered. The idea behind the legislation was the protection, external as well as internal, of the employe, from the injurious effects of the dust thrown from such apparatus, as is mentioned in the statute. If this be the reason for it, no good reason suggests itself why solid emery wheels should be exempted from the act, as the dust therefrom is quite as injurious as that thrown from the other apparatus specifically enumerated.
Another fact which makes against the defendant’s construction is the last proviso of section 1, which was added by the legislature of 1899, the one which, it is claimed, purposely omitted “emery wheels” from the act. This proviso reads—
“That this act shall not apply to solid emery wheels used in sawmills or planing-mills, or other wood-working establishments. ”
If the legislature of 1899 intended to eliminate “emery wheels” from the provisions of the act, it is extremely difficult to explain why it inserted this proviso. The proviso can be accounted for only on the theory that the legislature supposed solid emery wheels were included within the general words of the act.
The question as to whether the phrase “of any description ” refers to emery belts alone, or to both wheels and emery belts, is one which is not altogether clear. If the general rule were followed, it would modify emery belts only. Sutherland, in his work on Statutory Construction, lays down the rule in such cases as follows:
“ Relative and qualifying words and phrases, grammatically and legally, where no contrary intention appears, refer solely to the last antecedent.” Section 420.
We are of the opinion that a contrary intention does appear in this act, when its history, purpose, and context are considered, and that the phrase “of any description” refers to wheels as well as to emery belts. In view of these conclusions, we think the act should be construed so as to include solid emery wheels within its provisions.
The trial court was requested to direct a verdict for the defendant for other reasons than the one we have been considering, and, among them, the question of the contributory negligence of the plaintiff is raised. It is said that he should have worn goggles while grinding the chisels; that a sign posted in the shop informed the employes where the goggles could be obtained. The plaintiff’s testimony shows that he never saw the sign; that other employés did not wear them when grinding chisels; and that when he was instructed by the foreman how to do the work nothing was said by him about goggles. It further appeared that the sign was dust-covered to the extent that it was difficult to read. This showing by plaintiff, together with the fact that he had been employed at this work only a few days, made the question of his contributory negligence one for the jury.
The other questions raised in justification of the directed verdict have been examined, but we are of the opinion that they are without merit.
Error is assigned because of the refusal of the trial court to receive the following testimony:
“Plaintiff offers to prove the following several facts separately: That since birth he has been troubled with a congenital defect of his right eye, under which he has never had any power of vision therefrom, and that in consequence of the injury to his left eye sued for, and the impairment of vision of that eye, his total sight has been practically destroyed. This offer of proof is made for the sole purpose of showing the damages sustained by him by reason of the injury to his left eye, no claim being made for an injury to his right eye; it being the contention of plaintiff that this proof should be received under instructions which will confine a right of recovery to the damages springing from the injury to his left eye.”
This offer presents a somewhat novel question, but I am persuaded that the proffered testimony was competent, and should have been received. It is, of course, clear that no recovery could be had for the loss of the right eye; but plaintiff was entitled to recover that of which he had been deprived as the direct and natural consequence of the injury to his left eye (Huizega v. Lumber Co., 51 Mich. 272 [16 N. W. 643]), and one of the consequences was his lessened ability to labor. If, with the aid of only one eye, he was able to labor and earn a living before the injury, and he has been deprived of that ability by the wrongful act of the defendant, he is entitled to recover for such loss. To measure this loss, it is competent to compare the man before the injury with the man after the injury. If, by reason of ill health or defect, he was able to labor only half of the time before the injury, his loss would be only half of what it would be had he been well, sound, and able to work all of the time.
The point is made by defendant that—
“If such evidence were admitted the average juror would be disposed to assess damages for the loss of' two eyes instead of one.”
Plaintiff’s legal right must not be measured by our fears of what the jury will do. We must assume that the jury will do their duty and follow the instructions given them by the trial court. The fact that it would be difficult for a jury to separate the damages occasioned by defendant from those arising by reason of a natural defect, and the fear that jurors might allow their sympathies to influence their verdict, furnish no adequate rea Bon for making an exception to the general rule of damages usually applied in such cases. We are of the opinion that the testimony should have been received. Baker v. Hagey, 177 Pa. 128 (35 Atl. 705, 55 Am. St. Rep. 712). See Stewart v. City of Ripon, 38 Wis. 584; Brown v. Railway Co., 54 Wis. 342 (11 N. W. 356, 911, 41 Am. Rep. 41); McNamara v. Village of Clintonville, 62 Wis. 207 (22 N. W. 472, 51 Am. Rep. 722).
The judgment is reversed and a new trial granted.
Steere, C. J., and Moore, Kuhn, and Stone, JJ., concurred with Bird, J. | [
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McAííVAY, J.
Plaintiff brought suit against defendant to recover damages for injuries received while he was in the employ of defendant in its railroad yards at Jackson as a car repairer, resulting in the loss of his right hand. Such injuries were claimed to have been caused by the negligence of defendant. A trial resulted in a verdict in favor of plaintiff of $10,319.89, upon which judgment was rendered. The excess of this judgment over $10,000, stated in the ad damnum clause of the declaration, was remitted by plaintiff. Defendant has brought the case to this court for review upon writ of error.
Before considering the errors assigned and relied tipon by the appellant, a brief statement of the material facts in the case is required for a proper understanding of the questions discussed.
Plaintiff, at the time he was injured, on October 25, 1907, was 31 years of age. He had attended the ward schools in Ann Arbor for about eight years, and one year in the high school. After leaving school, he worked for the Michigan Milling Company for four years. His first work about defendant’s business was voluntary work done in the repair sheds at Detroit for a few days for the purpose of learning how to do repair work, during which time he watched and assisted in making repairs upon cars. From there he went to Ann Arbor and was employed by defendant from October, 1901, to October, 1903, as a car repairer and car inspector. He then worked at the University of Michigan for three years, doing pipe fitting and plumbing, and later worked for a cement block company in Jackson. His next work for defendant followed an application he made early in October, 1907, to Mr. Downs, car foreman at Jackson, Mich., in which he stated that from his experience he considered himself competent to act as a car inspector. He was employed by Downs as a car repairer until a place as car inspector would be open for him. His signature to a special notice to foremen and car repairers, given below, fixes the date as October 4, 1907. He entered upon such employment and so continued until the date of his injury, which occurred October 25, 1907; such work being carried on upon what is called in the record “ the repair tracks.” On the day last mentioned, a string of 25 or 30 cars was standing on one of the tracks in the yard of defendant. Plaintiff was requested by Downs, car foreman, to look the cars over and see if any of them had broken safety devices.
Plaintiff claims that he objected to doing this work upon the tracks in the yard because it was dangerous, as he had often seen 25 or 30 engines working in the yards switching cars from one track to another; that trains were made up there, and flying switches were made with cars; he further claims that the car foreman told him that he would see that he was taken care of; that he relied upon his statement that he would be protected; that he understood that this protection meant that the car foreman would send a man or men with him to stand alongside the cars and notify him of the approach of an engine with cars ■which would put him in danger by moving the cars where he was working. He testifies that he went to the cars as ordered; that no one went with him, and he saw no one at or near the cars to protect him; that he proceeded to inspect these cars and found on one of them a broken knuckle lock; that he then went back on the tracks and found a lock with which to replace the one broken; that he went in between the two cars, which were about eight or ten inches apart, and, while at work fixing the knuckle lock, an engineer backed some cars down the track upon which he was working and bumped into the car and injured him. According to plaintiff’s testimony, Mr. Downs, the car foreman, had charge of the car repairers, and had authority to hire and discharge men.
At the time of his hiring, plaintiff signed, at the request of the car foreman, the following special notice:
“To Foremen and Car Repairers: Car repairers and other employes of this department, who have occasion to work on (or) about cars, are strictly forbidden to commence work on any car, the nature of which might require them to place themselves in a position on, under or about the car, whereby its movement on the track could result in injury to them, without first properly protecting said car with a blue flag or flags by day, or blue lights at night. Any empíoyé disobeying the above order will be liable to instant discharge. Foremen are instructed to rigidly enforce the above order, and to keep a supply of blue flags and lanterns for that purpose constantly on hand. Foremen are also instructed to provide each of their car repairmen with a copy of this notice, to fully explain it to them and to procure their acknowledgment thereof on this blank.
“D. R. MacBain,
“ Acting Sup’t Motive Power.
“ The above notice has this day been read and explained to me by J. T. Downs and a copy of it left in my possession. I agree to observe carefully the instructions contained therein. Signed at Jackson this 4th day of Oct. 1907.
“ Frank W. Garlinghouse. ”
Plaintiff admits that he signed this notice, but denies that a copy was given to him, or that it was explained or read to him, or ever read by him. There is evidence in the case which sharply contradicts plaintiff upon this proposition, and also upon his claim that the car foreman promised to protect him when he went to work on these cars.
The first contention of appellant is upon the question of the assumption of risk and contributory negligence on the part of plaintiff, under which are grouped several assignments of error. It is claimed by defendant that plaintiff was an intelligent and experienced man, and to a certain degree acquainted with work of the kind to which he was assigned on the day of his injury, although it is not claimed, nor does the record show, that he had before worked in yards as extensive as those of defendant at Jackson. Defendant contends that, from plaintiff’s own testimony, he thought, when directed to do this work, that this was a dangerous place, knew that there were numerous engines handling cars in the yard, and knew that nobody went with him or was present at the track, upon which these cars stood, to protect him from injury which might arise if the cars were disturbed while he was at work. Therefore, under such circumstances, he assumed the risk and was guilty of contributory negligence.
It is insisted that the circuit judge erred in coupling with a request of defendant, which he gave, other instructions which were contradictory of such request and erroneous. The request was as follows:
“ The plaintiff has sworn that Mr. Downs, the car foreman, agreed to protect him in his work in the yards. He also swore that the protection which should have been furnished him was to have had a man near by him to have notified him of the approach of any cars from either west or east. The plaintiff’s testimony shows that no such man was present, and he knew it, and, even though Mr. Downs had promised the protection that plaintiff claims, nevertheless, if the plaintiff was willing to assume, and did assume, the risk, knowing that the proteo tion was not furnished, he was guilty of negligence and cannot recover.”
Following this the court stated at length the claims of plaintiff according to a request claimed to have been presented by plaintiff, and continued by giving the portion of the charge claimed to be contradictory to the defendant’s request already given, as follows:
“ It is the further claim of the plaintiff that his case •does not come within the purview of the doctrine of the -assumption of risks, but that he had a right to rely for a reasonable time, and to a reasonable extent, upon the statement of Mr. Downs that he would take care of him, or that he would be taken care of, and that it was just as safe to do the work where directed as upon the repair track. And in this connection, with regard to this claim of the plaintiff, I instruct you that, if you find from the evidence in this case that the facts are as claimed by the plaintiff, then the doctrine of assumption of risks does not apply, and the defendant will not be excused from responding to the plaintiff for the damages that he has sustained upon the ground that the plaintiff assumed the risks of his employment, provided you find that plaintiff was not guilty of contributory negligence, and that he was otherwise free from fault on his part, or unless you find from the evidence that the danger was so obvious and apparent that a man of plaintiff’s experience ought to know of it and refuse to put himself in the position that he was in when hurt.”
This request of defendant was based upon the testimony of plaintiff from the facts claimed by him to exist at that time. The portion of the charge last quoted is contradictory to the request of defendant already given. It was error to give this portion of the charge objected to.
Error is assigned upon the refusal of the court to give the following request to charge:
“Under the testimony in the case, J. T. Downs, the car foreman at Jackson, was a subordinate and was serving the same master and working under the same control and deriving his authority and compensation from the same common source as the plaintiff, and though his grade and the grade of the plaintiff might be slightly different, nevertheless the plaintiff and Mr. Downs were fellow-servants, and the plaintiff cannot recover.”
The record shows that Downs was a car foreman, having control of the car repairers, and, according to plaintiff’s testimony, hired and discharged men, which we may assume to have been the fact, as it is not contradicted. It would appear that he had the supervision and charge of car repairers upon the yard tracks as well as on the repair tracks, and that he sometimes worked with them. His duties, as far as shown by the record, were delegable duties of a limited character. He is one of the class mentioned in the notice to foremen and car repairers, above given, being an employe of the company under the superintendent of motive power, car department, of the defendant company. Under previous decisions of this court, plaintiff and Downs were fellow-servants; and taking the testimony of plaintiff as true, relative to the neglect of Downs to keep the promise given to him to protect him while at work, such negligence would be the negligence of a fellow-servant. McCauley v. Railroad Co., 167 Mich. 230, 236 (132 N. W. 510), and cases cited. The court erred in refusing to give this request of the defendant.
There was evidence in the case on the part of plaintiff tending to show that the rule given in the “ notice to foremen and car repairers,” relative to protecting the car with a blue flag by day and a blue light by night, had not been complied with to a considerable extent by the workmen; and the court charged the jury that, in case the defendant had not enforced the rule in relation to placing flags for the protection of workmen, plaintiff would be entitled to recover. Upon this charge, error has been assigned. There is no evidence that the defendant’s officers, who manage or make the rules, knew or. ever heard of the violation of this rule. The evidence in the case did not warrant the instruction given. Jones v. Railroad Co., 168 Mich. 1, 9-14 (133 N. W. 993). By reason of our conclusions already given, it is not necessary to discuss the further questions presented.
The judgment of the circuit court is reversed, and a new trial ordered.
Steere, C. J., and Moore, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit. | [
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Kuhn, J.
The appellee in this cause is an attorney, and the subject-matter of the controversy is a claim which he filed for professional services rendered for Lucena A. Freshour, now deceased. Mrs. Freshour was a married woman, but had been divorced from her husband. The claim was disallowed by the judge of probate at the hearing on claims. On appeal taken to the circuit court, the case was tried before a jury and a verdict had in favor of the claimant for the sum of $89.41, and judgment was entered accordingly.
On February 8, 1909, a petition was filed by Geo. H. Lester, an uncle of said deceased, alleging incompetency of the deceased and praying for the appointment of a guardian. Oneella Lester, an aunt, was appointed guardian and qualified as such on March 30, 1909. On August 17, 1909, the guardian filed her petition in the probate court, setting forth that said incompetent person was an epileptic and needed treatment in an institution for feeble-minded and epileptic persons. An order was made appointing physicians to examine the incompetent, and, upon their reports being filed, the judge of probate says he thinks he made an order sending Mrs. Freshour to the Home of the Feeble-Minded at Lapeer, but that he could not get her into that institution because of its crowded condition. On the 31st of August, 1909, Oneella Lester, as guardian, filed a petition in the probate court alleging, among other things, that Mrs. Freshour was an insane person and in need of asylum treatment, and praying that she be admitted to the Traverse City Asylum for the Insane as a private patient. The same physicians who had examined her upon the previous hearing were appointed to examine her with reference to this petition, and in due course of time filed their certificates showing that Mrs. Freshour was an insane person and needed treatment in an asylum. Thereupon, an order was made by the judge of probate adjudging Mrs. Freshour insane and a fit person for care and treatment in an asylum and that she should be admitted to the asylum at Traverse City as a private patient. Mrs. Freshour did not appear at any of these proceedings by attorney and was taken to the asylum at Traverse City, where she remained until April, 1910.
It appears from the testimony of Mrs. Lester that, at the time of the hearing in the probate court as to the insanity of Mrs. Freshour, she represented to the incompetent that she was being taken to the probate court for the purpose of ascertaining whether or not she could remarry her divorced husband. It is claimed by claimant that, due to the efforts made by him in her behalf, Mrs. Fresh-our was released by the asylum authorities in April, 1910, and taken to St. Mary’s Hospital in Grand Rapids on account of blood poisoning in her hand.
Mrs. Freshour died on the 9th of August, 1910, leaving no last will and testament, and an estate consisting of real and personal property amounting to $7,250 in value. Her sole heir at law is her nephew, M. Jay Minor, who was appointed as administrator of her estate and is the appellant in this cause.
The attention of the claimant and appellee was first brought to the proceedings set out in the record and the condition of Mrs. Freshour in the latter part of September or early in October, 1909, by friends of Mrs. Freshour, among whom were the supervisor of Bloomer township and his wife, who lived on the farm adjoining her home. These friends brought to the claimant a number of letters written by Mrs. Freshour to them from the asylum at Traverse City, where she was then confined, complaining of her retention there and requesting them to interest themselves in her behalf. Claimant declined for some time to take up the matter, but finally entered upon an investigation, after being informed of several letters Mrs. Freshour had written Mrs. Bartholomew, one of the friends, requesting her to go and see him and ascertain what he could do to get her released from the asylum. This investigation disclosed that the proceedings by which Mrs. Freshour was confined were absolutely void for the reason that the petition to have her adjudged insane was made by one not authorized by law to make it.
Act No. 100, Public Acts of 1909, provides as follows:
“The father, mother, husband, wife, brother, sister or child of a person alleged to be insane, or the sheriff, or any superintendent of the poor, or supervisor of any township, or any peace officer within the county in which the alleged insane person resides or may be, may petition the probate court of said county for an order directing the admission of said person to an asylum or institution for the care of the insane,” etc.
The legislature undoubtedly excluded the guardians from those authorized to make this petition, because mentally incompetent persons under guardianship may become, by reason of their infirmity, a great care upon their guardians without having reached the condition which the law defines as insanity, and the legislature apparently contemplated that there might be an attempt on the part ofo guardians to relieve themselves of the care of their wards by attempting to commit them to some institution.
It is claimed by Mr. Lyon that he prepared a petition for leave to appeal from the order adjudging Mrs. Freshour insane, but that he did not present it to the court for the reason that he considered a writ of habeas corpus more expeditious in securing her release and for some other reasons. Habeas corpus proceedings were instituted but dismissed by the circuit court on the hearing. A petition was also filed in the probate court by Mrs. Freshour requesting the court to adjudge that she was no longer insane and that she be declared restored to soundness of mind. This petition was heard and dismissed by the court at the hearing, which was attended by Mr. Lyon who represented Mrs. Freshour. Various items of expense for traveling, etc., were incurred, and the total amount claimed for services and expenses was $106.46, which was reduced by two payments of $10 and $5, respectively, to $91.46, which was the amount for which a claim was presented to the probate court.
The questions raised on this appeal are stated by counsel for appellant as follows:
“ (1) The objections to the reception in evidence and the exceptions covering the same.
“ (2) Refusal of the court to direct a verdict in favor of the administrator.
“ (3) The instruction of the court to the jury that ‘ the plaintiff in this case is a reputable lawyer, member of this bar.’
“ (4) The argumentative nature of the charge of the court as a whole.”
The trial judge charged the jury, in part, as follows:
“ The plaintiff in this case is a reputable lawyer, member of this bar, and had a right, if, acting in good faith and upon circumstances that would lead a reasonable man to believe the woman’s condition is such that she should not be confined in an asylum, if upon the examination of the records he acted in good faith believing the proceedings were illegal, then he had the right to act and use his best judgment and best skill as a lawyer to aid her to obtain her liberty from that institution and have set aside what he believed was an illegal order. He claims to have examined the records in this case and found that a petition had been filed and she was adjudged an epileptic, for which the law does not allow people to be sent to an asylum, unless the reason of that person is shown by the testimony to be undermined and unsound, there being another place for the detention of feeble-minded people. He claims the letters he considered tended to show she was not insane, that is of unsound mind,,and that she was begging to get out; that acting in good faith he performed certain services which tended to her benefit. The claim is made that finally she did obtain her liberty through the efforts in part of Mr. Lyon; that is his claim; that later papers were filed in this court in regard to habeas corpus writ asked for and process obtained, but that that was dismissed; that later efforts were being made to review all of the orders of the probate court and this court; and that she died before the matter was fully completed. I say to you, as matter of law, she had a right to make her appeal; and though she may have been insane, yet, if the plaintiff was acting in good faith looking to her relief on account of her illegal restraint, he would have the right to act for her and use his best efforts. It would be his duty after assuming to act at all to take every proper legal step towards looking up evidence and looking up the law, making examination of the records to ascertain the legality or illegality of the processes or judgments whereby she had been sent to the institution, and, if he found in his opinion that she was suffering from improper or illegal restraint, he had a duty to perform under those circumstances of using his best judgment and skill in obtaining her liberty for her, and, so acting, no matter whether successful in whole or not, he would be entitled to receive from her estate what the services were reasonably worth.”
It is the contention of counsel for appellant that the claimant in this cause acted without any authority whatsoever ; that Mrs. Freshour was incompetent to make any contract; that it was claimant’s duty to lay the facts before the probate court of Montcalm county and ask • for leave to institute proceedings; and that, no such proceed ings having been taken by herself or the guardian of the incompetent person, he cannot recover.
It is an old and well-established rule of law that, when necessaries have been furnished to a person, it matters not whether the recipient is mentally competent or otherwise. If there is no express agreement to pay for the necessaries, an implied agreement arises. The rule is stated in 4 Cyc. p. ’993, as follows:
. “ The services of an attorney will usually be considered as necessaries, and a promise to pay for them will be implied when rendered in a proceeding personal to an infant or other person incapable of entering into a contract, such as an habitual drunkard or an insane man.”
It is claimed in this cause that the attorney is not entitled to compensation because his efforts did not result to the benefit of Mrs. Freshour. We hold the rule to be that an attorney is entitled to compensation for his services, whether those services have been beneficial to his client or not, so long as the' services have' been faithfully and intelligently performed.
The circuit judge did not err in submitting the case to the jury upon the theory outlined in his charge, and the real question at issue was: Did the claimant act in
good faith and give the client the benefit of his best intelligence, industry and effort ?
Counsel for appellant insist that the court had no right to charge the jury, as a matter of fact, that the appellee is a reputable lawyer, and that by using this language the court sustained the character of the appellee, as a fact, and that in this case the character and reputation of the appellee as a man or as a lawyer was not involved, as his character as a lawyer or as a man had not been assailed. It is the contention-of the appellee that the word “reputable” as used cannot be said to mean more than this, that the claimant was a duly accredited member of the Montcalm county bar, and as a practicing attorney was entitled to his compensation, if the other essential facts were proven. We are of the opinion that the word “ reputable,” as used in this connection and as generally understood by the profession, does not mean more than if the court had said that he was a regular lawyer. We do not believe that the language used did, or could, mislead or influence the jury. An examination of the whole charge of the court satisfies us that it was a full, fair, and comprehensive statement of the law of the case and not subject to the criticism made by counsel for appellant, that it was argumentative in its nature.
We have examined the assignments of error with reference to the reception of testimony, and find no prejudicial error committed by the court with reference thereto.
The judgment of the trial court is therefore affirmed, with costs.
Steere, C. J., and Moore, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred. | [
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Brooke, J.
The action is assumpsit for the recovery of $2,500 and interest, said to have been paid by plaintiff to defendants by mistake on May 30, 1908.
The relations between the parties are of long standing and complicated. Prior to 1899, plaintiff was engaged in the glass manufacturing business at Wallaceburg, Ont. At that time defendant Frank O’Neill, who was an inventor of glass manufacturing machinery, also resided at Wallaceburg. Prior to that time O’Neill had secured or applied for three patents identified in the record as A, B, and O. On March 15, 1899, the title to these patents was placed one-fourth in Christian Arducer and three-fourths in defendant Marion O’Neill.
On Sept. 30, 1899, plaintiff and defendant entered into the following contract:
“This agreement made this 30th day of September, 1899, between David Gordon, party of the first part, and Frank O’Neill, party of the second part, both of Wallace-burg, Canada, witnesseth, that whereas the party of the second part has invented a certain improvement in machines for manufacturing glassware, wherein the manufactured articles are partly pressed and partly blown, the same being known as a ‘combined pressing and blowing machine.’ And whereas, said machine contains certain improvements adapted as well for ‘ pressing machines ’ (machines wherein the articles are made entirely by pressing) as for ‘pressing and blowing machines.’ And whereas the party of the first part is desirous of acquiring an interest in said machine and in the letters patent to be obtained therefor. And whereas, the party of the second part is desirous of reserving to himself, within the territory of the United States, the exclusive right to make, use and sell such of said machines or parts thereof as are adapted for ‘pressing ’ alone, in contradistinction to ‘pressing and blowing,’ it being the desire of the parties hereto that the interest to be conveyed shall relate only to such machines as are constructed for pressing and blowing : Now, therefore, the parties have agreed as follows:
“ (1) The party of the first part agrees to pay all expenses incident to building one of said machines, including plans and patterns therefor; to pay all expenses incident to testing said machine and demonstrating its operativeness, said machine to be complete and operative; and to pay all expenses incident to procuring letters patent of the United States on said invention.
“ (2) The party of the first part agrees to pay all expenses incident to obtaining letters patent in such countries, other than the United States, as the parties hereto may hereafter agree upon.
“ (3) The party of the second part agrees, upon the faithful performance by the party of the first part of the covenants of article 1 hereof, to execute and deliver to the party of the first part, and at his cost, an assignment of an undivided one-half interest in the United States letters patent on said improved machine.
“ (4) The party of the first part agrees to execute and deliver to the party of the second part, concurrently with the execution and delivery of the assignment referred to in article 3 hereof, an exclusive license to make, use and sell said improved machine as a ‘ pressing machine’ or any part or parts thereof designed for such use, said license to cover the territory of the United States and the Dominion of Canada.
“ (5) The party of the second part agrees to convey to the party of the first part, when requested so to do and at the cost of the party of the first part, an undivided one-half interest in any and all letters patent coming within the terms of article 2 hereof.
“ (6) The parties mutually agree that any and all patents of which they may become joint owners, or in which they may be jointly interested, shall be operated under for their mutual benefit, with an equal division of any and all profits arising therefrom, whether such profits are derived from individual or from joint exercise of the rights secured by the patents.
“(7) The parties mutually agree that the ‘first machine,’ being the one referred to in article 1 hereof, shall belong to them jointly, share and share alike.
“ (8) The parties mutually agree that all patents of which they may become joint owners, or in which they may have common interest, shall be maintained at their joint expense.
“In witness whereof, the parties above named have hereunto set their hands the day and year first above written.
[Signed] ‘c Frank O’Nbill.
[Signed] “D. A. Gordon.
“Witness:
[Signed] “Thos. Harrison, Jr.”
After the execution of this contract, and in the years 1900 and 1901, defendant Frank ONeill took out three other patents known in the record as D, E, and F. The abstract of title of patents A, B, and C is as follows:
“(1) July 15, 1898, ONeill transferred to Arducer of Cicero, Ind., one-quarter interest.
“(2) December 22, 1898, Arducer and ONeill transferred their interests to Safe Glass Company.
“(3) March 15, 1899, the Safe Glass Company transferred one-fourth interest to Arducer and a three-fourths interest to defendant Marion ONeill.
“(4) January 13, 1902, Arducer transferred his one-fourth interest to plaintiff Gordon.
“(5) October 13, 1902, Marion ONeill transferred one-half interest in whole patent to plaintiff Gordon; their paper titles then stood one-fourth in Marion ONeill and three-fourths in Gordon.
“ (6) June 25,1903, Marion ONeill, Frank ONeill, and Gordon transferred their rights to Ball Bros., of Muncie, Ind.
“ (7) June 25,1903. On the same day Ball Bros, gave back a license to the ONeills and Gordon to all of the United States reserving to themselves the State of Indiana.
“ (8) May 15, 1908, Ball Bros, bought back, for $10,-000, the licenses they had conveyed to the ONeills and Gordon.”
The material entries from the abstract of title to patents D, E, and F are:
“ (1) October 13, 1902, Frank ONeill transferred one-half interest in said patents to Gordon.
“(2) June 25, 1903, Marion ONeill, Frank ONeill, and Gordon transferred license in these patents for State of Indiana to Ball Bros.”
On May 15, 1908, when the transaction out of which this controversy arises occurred, the three earlier patents were owned by Ball Bros., with a license outstanding in the plaintiff and defendants, covering all of the United States, except the State of Indiana. The three later patents were owned equally by plaintiff and Frank O’Neill, with a license outstanding to Ball Bros, for the State of Indiana. During the years from 1901 to 1905, plaintiff and defendant Frank O’Neill sold rights under one or other of the various patents, and likewise sold some machines. They divided the receipts equally to the extent bf perhaps $50,000. The largest single transaction was that of June 25, 1903, when the three patents, A, B, and O were sold outright to Ball Bros., with a license back to Gordon and the O’Neills, and a license under patents D, E, and F for the State of Indiana was granted to Ball Bros. Ball Bros, paid at this time $12,000.
In the spring of 1908, defendant Frank O’Neill was approached by Ball Bros., who desired to repurchase from the plaintiff and defendants the license which they (Ball Bros.) had conveyed to Gordon and the O’Neills on June 25, 1903.
Yery little business, if any, had been transacted between the parties to this suit with reference to the patents for some three or four years prior to this date. They had made no sales and issued no licenses during this period, except, perhaps, one transaction in May, 1906, involving a small amount, and had done no business under the license from Ball Bros. Upon receiving the inquiry from Ball Bros., Frank O’Neill wrote to plaintiff the following letter:
“Zanesville, O., March 31/08.
“ Mr. D. A. Gordon,
“ Wallaceburg, Ont.
“ Dear Gordon:
“Please advise me what you will take for your interest in the license given us by Ball Bros.
“ I do not know that I could accomplish anything by having it, but it occurred to me that perhaps I might do something with it, so kindly write me what is the least amount you will sell it for.
“ I expect to have my new beer bottle machine in working order within the next ten (10) days. Have been able to reduce the cost of building it from $2,500 to $400 and make a much better machine.
“ What has become of the case against the Owen people?
“Yours resp.,
[Signed] “Frank O’Neill.
“775 Market St., Zanesville, O.”
To this letter plaintiff replied as follows:
“Wallaceburg, Ont., Apr. 6, ’08.
“Mr. Frank O’Neill,
“775 Market St.,
“Zanesville, Ohio.
“Dear Mr. O'Neill:
“ I have your favor of the 3d. Regarding your inquiry as to what X will take for my interest in the license given by Ball Bros. X leave this matter entirely in your hand, and will accept whatever sum you may think right. Right off the bat I would be pleased to get $2,500.
“X am glad to learn that you are going to have your beer bottle machine working and would like well to see it.
“The case against the Owens Co. is still in the courts and X am now awaiting a reply from England regarding the success of the Ryland’s machine over there.
“ X shall be glad to hear from you at your convenience. With kind regards from the writer and Mrs. Gordon to both yourself and Mrs. O’Neill, I am,
“ Yours sincerely,
[Signed] “D. A. Gordon.
“D. A. G.”
O’Neill next wrote the following letter:
“Zanesville, O., 5 — 9—08.
“ Mr. D. A. Gordon.
“Wallaceburg, Ont.
“ Dear Gordon:
“ Reo’d your letter stating you would be satisfied with $2,500 for your interest in license referred to, so X have given an option for 60 days on said license, option dating from May 1.
“ If the deal should go through, I sacrifice a whole lot, as it practically cuts me out from making, at any time, any machine for automatically feeding the glass to a blowing machine. It would leave me only a hand fed machine for my beer bottles.
“ Of course it cuts no figure with you, though, and a bird in the hand may be worth two in the bush to me. *
“Yours truly,
[Signed] * ‘ Frank O’Neill.
“ 775 Market St.”
And Gordon replied:
“ Wallacebukg, Ont., May 11, 1908.
“Mr. Frank O’Neill,
“Zanesville, O.
“ My dear O'Neill:
“I have yours of the 9th, and note what you say regarding option, which is all right.
“I am glad to learn that you are making a success of your beer bottle machine, and trust you will be well repaid by your invention. Will write the parties in question regarding the machine they are working at Glenshaw.
“ I am usually home every Sunday, and could arrange to meet you at Pt. Lampton at any time, or if that would be inconvenient I could meet you at Chatham or here during the day on Monday, as I always leave for Ottawa on the train leaving Chatham at 5:18.
“ Yours very truly,
[Signed] “D. A. Gordon.
“Diet. D. A. G.”
The option given by Frank O’Neill to Ball Bros, as a result of this correspondence follows:
“Zanesville, O., May 1, ’08.
“ Ball Bros.
“Muncie, Ind.
“ Gentlemen:
“ I hereby grant you an option for sixty (60) days, on license granted by Ball Bros, to David A. Gordon, Frank O’Neill and Marion O’Neill. Purchase price of said license to be $10,000 (ten thousand dollars).
“Frank O’Neill.”
Thereafter Ball Bros., with the assistance of O’Neill, acquired, at a cost of several thousand dollars, the other licenses outstanding under patents A, B, and C. Having acquired the others, Ball Bros, then indicated their willingness to accept the terms proffered by O’Neill for the license owned by the three parties to this suit. An appointment was made with plaintiff for May 28, 1908, at Windsor, Ont., to close the deal. Ball Bros, were represented by their attorney, Mr. McClellan, and he was accompanied by Frank O’Neill. The parties met upon the arrival of plaintiff’s train and immediately proceeded to transact the business which had brought them together.
Plaintiff’s version of what occurred at this interview is as follows:
** They met me at the station in Windsor on the arrival of the train at 2:30. Mr. O’Neill and Mr. McClellan met me. Mr. O’Neill and I at the station discussed the matter two or three minutes, and then went up to the British American Hotel and sat down to talk a few minutes; I did not have time to read the documents through. There was some discussion as to the parties, also as to the patents; that is, the blowing and pressing patents. We went from there to Mr. Clark’s office to draw *he drafts and sign the documents. I was told within a short time the amount that they were going to give, and the proportion coming to the several parties. I said to Mr. O’Neill that I did not think that was right, and Mr. O’Neill volunteered first that it was the Arducer patent which I only had one-fourth interest. That was why I should get only $2,500. I think that was when we were going out of Mr. Clark’s office and walking down to the corner that that conversation passes between Mr. O’Neill and myself. I drew the drafts up at Mr. O’Neill’s request, $2,500 to his wife and $5,000 to himself, and that left $2,500 for myself. I drew them on Ball Bros. They brought the blank drafts with them. The drafts were drawn by myself. There was some conversation as to how the deal should be put through; I suggested making drafts out and attaching them to the documents and sending them through the bank at Windsor, giving the bank instructions.”
Following this interview, and after O’Neill and McClel lan had gone to Detroit, plaintiff, who had arranged with the manager of a local bank to wait for him after the closing hour, caused the following letter to be written:
“The Traders’ Bank op Canada,
“Windsor, Ontario,
“33d May, 1908.
“The Cashier,
“ Merchants’ National Bank,
“Muncie, Ind.
“ Dear Sir:
“Inclosed please find three drafts amounting to $10,000 with exchange on Messrs. Ball Bros., of your city. On payment of these please deliver inclosed documents to Ball Bros., and issue New York drafts as follows: Frank O’Neill, $5,000, 61900; Marion O’Neill (his wife), Zanesville, O., $3,500, 61901; D. A. Gordon, Wallaceburg, Ont., $3,500, 61903. Kindly mail these direct. The exchange paid by Ball Bros, will pay for cost of the New York drafts issued by you. No protest.
“ Yours truly,
[Signed] “Geo. Mair,
“Manager.
“Mrs. O’Neill’s address is 775 Market St., Zanesville.”
The “ documents ” referred to in this letter were retransfers to Ball Bros, of the license in question. The contract follows:
“ This indenture, made this 15th day of May, 1908, by and between Ball Brothers Glass Manufacturing Company, party of the first part, a corporation organized under the laws of the State of Indiana, and Frank O’Neill, Marion O’Neill, of Zanesville, Ohio, and David A. Gordon, of W allaceburg, Ontario, Canada, parties of the second part, witnesseth:
“That whereas, on the 35th day of June, 1903, the party of the first part entered into a memorandum of agreement with the parties of the second part by the terms of which the party of the first part granted to the parties of the second part a license in and to United States letters patent, which memorandum of agreement is in the words and figures as follows, to wit:
“ ‘Memorandum of agreement, made this 25th day of June, 1903, by and between Ball Brothers Glass Manufacturing Company, party of the first part, a corporation organized under the laws of the State of Indiana, and Frank O’Neill and Marion O’Neill, of Detroit, Michigan, and David A. Gordon, of Wallaceburg, Ontario, parties of the second part. Whereas, parties of the second part desire to obtain certain right to said inventions and patents: Now, therefore, it is agreed by and between the parties hereto as follows: In consideration of the payment of one dollar and other valuable considerations, receipt of which is hereby acknowledged, party of the first part grants unto parties of the second part, and their successors or assigns, with the right to grant sublicenses or shop rights, or to sell or assign said license to others, at their discretion, a license for the full terms of said patents respectively to manufacture, úse and sell the said letters patent and inventions for the manufacture of all kinds of glassware, except fruit jars, such kinds as are sold to dealers to be distributed for domestic use, liners for fruit jar caps, fruit jar lids, or other parts pertaining to fruit jars: Provided, however, that the license hereby granted, and the sublicenses or other rights hereby authorized, shall not extend to or be exercised within the State of Indiana, or within the territory granted to the Cumberland Glass Co. And, provided further, that said letters patent No. 643,253, and the inventions covered thereby, shall not be used except on machines covered by said patents Nos. 605,648, 616,251, or other patents issued to said Frank O’Neill. It being expressly understood that the license and right hereby granted does not include the right to sell machines in the territory covered herein, for use in Indiana, nor the right to use said invention in Indiana. It is further agreed by the said first party that it nor its successors nor assigns will sell or offer for sale machines or parts of machines covered by the patents herein, in direct competition with the said second parties in the territory licensed herein.
“‘In witness whereof, said Ball Brothers Glass Manufacturing Company has signed its corporate name and affixed its corporate seal hereto by its president, attested by its secretary, and parties of the second part have hereunto set their hands and seals this 25th day of June, 1903.
“ ‘ Ball Brothers Glass Manufacturing Company,
“ ‘ By Frank C. Ball, president.
“ ‘Attest:
“‘William C. Ball, Secretary.
“ ‘ [Ball Bros. Glass Manufacturing Company. (Seal-1899) Muncie, Ind.J
“ ‘Frank O’Neill.
“‘Marion O’Neill.
“‘D. A. Gordon.’
“And whereas, the parties of the second part are de sirous of reconveying all the right, title and interest which they and each of them were granted by reason of said memorandum of agreement by the party of the first part; and
“ Whereas, the party of the first part is desirous of purchasing the right and license granted by reason of the said memorandum of agreement of said second parties:
“Now, therefore, for and in consideration of the payment of $1.00 and other good and valuable considerations paid by the party of the first part to the parties of the second part, receipt of which is hereby acknowledged, the said Frank O’Neill, Marion O’Neill and David A. Gordon, hereby sell, grant and convey and reconvey unto Ball Brothers Glass Manufacuring Company, their successors or assigns, all the right, title and interest which they or either of them received and now hold by reason of said memorandum of agreement herein set forth in full, and they sell and convey for said consideration said license so granted to them. It is understood by and between the parties hereto, and this grant is made for the purpose of and said consideration is paid by the first party to second parties for the purpose of reconveying all the rights which said second parties were granted by said first party by said memorandum of agreement, made the 25th day of June, 1903.
“ In witness whereof, the said Frank O’Neill, Marion O’Neill and D. A. Gordon have hereunto set their hands and seals this 15th day of May, 1908.
“Marion O’Neill.
“Frank O’Neill.
“D. A. Gordon.
“ Signed in presence of “P. H. Tarmehill.
“H. W. Kuntz.
“The State of Ohio, )
“Muskingum County, j :
“ Be it remembered, that on this 15th day of May, 1908, before me, the subscriber, a notary public in and for said county, personally came the above named Marion O’Neill and Frank O’Neill, the parties executing the above named instrument, and acknowledged the signing of the same to be their voluntary act and deed, for the uses and purposes therein mentioned.
“ In testimony whereof, I have hereunto subscribed my name and affixed my official seal, on the day and year last aforesaid.
“P. H. Tarmehill,
“ Notary Public. [L. S.]
“Province of Ontario, County of Essex.
“Be it remembered, that on this 23d day of May, 1908, before me, the subscriber, a notary public in and for the province of Ontario, personally came David A. Gordon, one of the parties executing the annexed instrument, and acknowledged the signing of the same to be his voluntary act and deed for the uses and purposes therein mentioned.
“In testimony whereof, I have hereunto subscribed my name and affixed my official seal on the day and year last aforesaid.
“A. H. Clarke,
“ Notary Public, for the Province of Ontario. [L. S.]
Plaintiff, on his way from Windsor to Wallaceburg, upon thinking the matter over, became convinced that he was entitled to and should have demanded $5,000 of the $10,000 instead of $2,500. He immediately communicated with Frank O’Neill by telephone but did not stop the delivery of the assignment to Ball Bros, or recall the drafts. He demanded from defendant Frank O’Neill the payment of $2,500. This was refused by O’Neill and this suit followed. The declaration is in assumpsit, and the following bill of particulars was furnished:
“ To the sum of $2,500 paid by plaintiff to the said defendants by mistake, together with interest thereon from May 30, 1908, or thereabouts, total, $3,000.”
Plaintiff recovered a judgment for $2,873.27 against defendants.
It seems to be the contention of the plaintiff that the earlier patents A, J3, and C were “pressing and blowing patents,” as distinguished from “ pressing ” patents, which were by the agreement of September 30, 1899, reserved exclusively to Frank O’Neill, and therefore that they are subject to the terms of section 6 of the contract which provides for an equal division between plaintiff and Frank O’Neill of all profits arising from the joint operation of all patents in which they might become jointly interested. We do not find it necessary to determine to which class the patents in question belong, for the reason that another factor in the case is, in our opinion, controlling. At the time the contract of 1899 was entered into, neither plaintiff nor Frank O’Neill had any interest in the title to these patents, and thereafter Frank O’Neill never acquired such an interest. Plaintiff first secured a one-fourth interest from Arducer and later a one-half interest from defendant Marion O’Neill. When, in June, 1903, the sale was made to Ball Bros., plaintiff owned three-fourths and Marion O’Neill one-fourth. It was then for the first time (after 1899) that defendant Frank O’Neill acquired any interest in the patents in question, and this interest was acquired by way of a license which ran from Ball Bros, to the three parties to this suit. Defendant Marion O’Neill was not a party to the agreement of 1899, and no contract relations existed between her and the plaintiff at any time relative to a division of profits or receipts.
It is clear that the entire title to the patents A, B, and 0 passed to Ball Bros, by the sale in June, 1903. It is equally clear that the license which Ball Bros, gave back to the parties to this suit created in each of them individual interests. They thereafter had no interest in the title to the patents; nor did they own the license in aliquot parts. Each had an interest separate and distinct from the other, though derived through the same contract, and each had the right to use or sell the same without obligation to the other, in the absence of a contract controlling the matter. Blackledge v. Manufacturing co., 108 Fed. 71, 47 C. C. A. 212; Lalance & Grosjean Manfg. Co. v. Stamping Co. ( C. C.), 108 Fed. 77, and cases there cited.
Defendants’ tenth request should have been given. It follows:
“ I charge you that the rights of Frank O’Neill and Marion O’Neill and David A. Gordon, under the license agreement with Ball Bros, of date June 25, 1903, were equal, each one having a separate interest, capable of ez srcise without the consent and co-operation of the other two, and that neither one was bound to account to the other two for moneys received under the license, in the absence of an agreement with the other two to that effect.”
The record nowhere shows an agreement between the parties to divide equally (or in any other proportion) the moneys received under the license; nor does it show the receipt or division of any moneys thereunder during the five years it was in existence.
But passing the question raised by the fact that Marion O’Neill was not a party to any contract with the plaintiff, and assuming that this license related to patents not excepted from the operation of the contract of 1899, there is another and, in our opinion, a more conclusive reason why plaintiff connot recover in this action under the evidence introduced. His suit is planted upon the theory that he paid $2,500 to defendants through a mistake. He does not charge fraud or misrepresentation on the part of either of them, yet the case was submitted to the jury under a charge which plainly raised that issue. The charge is in part as follows:
“Now, gentlemen of the jury, mistakes may be mutual. A mistake may be a mutual mistake (that is, the mistake of both parties), that they did not understand their interests and rights, that they thought that they had three-quarters and one-quarter; or it may be a mistake on the part of the plaintiff caused by some misinformation or lack of knowledge as to what he was entitled to receive. If you find that the plaintiff was misled by any representations that were made to him, or by lack of information which he should have had, or which should have been given to him by the defendant at the time of the transfer, and if you find that he acted under a mistake induced by the acts of the defendant, and that after notice of the fact acted with due diligence, he would be entitled to recover the money which he had paid out under such a mistake.”
We have been unable to discover from this record what -.particular mistake the plaintiff relies upon. He says he has had in mind the 1899 agreement, and that he knew he was disposing of his interest in the license of 1903. What his interest had been in the patents prior to the sale to Ball Bros, in 1903 seems to us to be immaterial, for, whatever it was, it was obliterated by the sale, and he acquired a new and altogether different interest under the license. The correspondence clearly shows that Ball Bros, were buying and he was selling his interest under the license. Before he finally consummated the transaction, he knew exactly what sum he was to receive for that interest; indeed, he fixed the price himself. He likewise knew the sums which were to be paid by Ball Bros, to Marion O’Neill and Frank O’Neill. The entire transaction was fully set out in the assignment which he executed and acknowledged in the presence of his own legal adviser; and the drafts were drawn by himself; and the letter of instructions accompanying the drafts and the assignment was prepared under his direction.
There was certainly no mistake on the part of either of the defendants. They had fixed the price for their several interests during the negotiations with Ball Bros., and they received that price, no more and no less. Knowing the figure at which his associates were selling, and being fully-advised by the instrument of conveyance as well as by the correspondence exactly as to what was being sold, it is impossible to escape the conclusion that it was his duty to speak before consummating the deal. Had the defendants been advised of his claim before the sale was consummated they would have had an opportunity to protect themselves by declining to proceed until plaintiff’s demands had been fully considered and adjusted. Assuming that he had a valid subsisting contract with Frank O’Neill covering this identical license, by the terms of which he was entitled to receive one-half of all the license brought, it is clear that he could agree to change the terms of that contract and accept less than he was entitled to receive. He knew that he was getting less than half; he knew that the O’Neills were getting more than half. Having permitted the sale to go through and the O’Neills to part with their interests upon the assumption that he was satisfied, with a full knowledge of all the controlling facts, he should now be held to be estopped from claiming any part of the purchase price paid to them. A verdict should have been directed in defendants’ favor.
The judgment is reversed, and a new trial ordered.
Steere, O. J., and Moore, Mo Alva y, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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] |
Bird, J.
When this case was first argued, the late Justice Blair sat throughout the argument and afterward prepared the opinion therein. Since that time a reargument has been had before the full bench. After a consideration of the questions involved, I find myself in accord with his opinion, and I therefore adopt it as containing my views of the case. It follows:
“ The plaintiff corporation was organized to improve the navigation of the Manistee river, which contained a great many sawlogs which had accumulated therein dur ing the many years said river had been used for running logs. On the 23d of June, 1905, the Navigation Company, as party of the first part, entered into an agreement with the defendant and practically all of the lumbermen operating on Lake Manistee, and A. E. Cartier, containing, among other agreements, the following:
“ ‘ That the said party of the first part, in consideration of the covenants on the part of the parties of the second part hereinafter contained, doth covenant and agree to and with the said second parties that it will raise, bank, drive, sort, and deliver to the respective mills of said second parties situated upon Lake Manistee, in said county and State, all of their deadhead and sunken logs lying and being in the Manistee river and its tributaries, and on or in the bayous, flats, cut offs, and marshes adjacent thereto, and that each year after 1905 said first party will make at least one drive or delivery of all floatable logs to said second parties. And the said parties of the second part, for and in consideration of the aforesaid covenants on the part of the party of the first part, doth covenant and agree to and with said first party to pay it the sum of six dollars ($6) per thousand feet for all their hemlock logs known as deadhead and sunken logs, and the sum of seven dollars and a half ($7.50) per thousand feet for all other logs. Payments to be made as follows: An advance of fifty per cent. (50%) of contract prices to be paid on the 10th day of each month on all logs raised, banked, and skidded during the preceding month. This amount to be considered as an advance under this contract, and not as a payment on any particular lot of logs. On the 10th day of each month, payment to be made for all logs delivered to the respective mills of said parties of the second part during the preceding month, less any amount that may be due said second parties by reason of the advance money above mentioned.’
* ‘ It was also agreed that the log owners should furnish their respective stamp and bark marks for the identification of their respective logs, and that the Navigation Company should stamp its own identification mark upon the logs lifted by it. The mark ‘Nay’ was adopted as such mark. The agreement contained the following clauses as to unidentified logs:
“ ‘ It is further mutually understood and agreed between the parties hereto that all unidentified and unmarked logs raised by said first party shall be stamped with a large ( ) on both ends of logs, and bark-marked with large ( — ) in middle of logs, and that every thirty days a complete list of the unknown and unidentified logs as above specified shall be rendered to the party of the second part, and every thirty days the party of the first part shall advertise and sell the same as provided by statute, said second parties paying all costs and charges incident thereto. Said first party is to turn over to a representative hereafter designated by said second parties, the amount or sum received for said logs thus sold, which sum or price shall not be less than the contract price for raising the same, including the costs and charges for selling them. In the event of any of the parties of the second part to this contract purchasing or bidding in the logs advertised and sold as aforesaid, then said first party is to deliver all such logs to the said representative, or at such mill or mills as he shall designate; and said first party shall receive from said second parties the price therefor as heretofore set forth in this contract. It is mutually understood and agreed that said second parties are to hold the party of the first part harmless and to indemnify it fully against all loss and damages of every name and nature for all logs sold by them as aforesaid.’
££ There was also a provision that—
“ ‘ All logs scaled under this contract shall be scaled by scalers mutually agreeable to the parties hereto; said scalers to make in all cases a fair and equitable scale, and according to “Doyle’s rule,” and all logs delivered to said second parties’ mills are to be scaled by scalers employed by the Manistee Boom Company; it being understood and agreed that, in the absence of said Boom Company scalers, then the same are to be scaled by scalers mutually agreed upon between: the parties hereto, all logs scaled at mills to be done without expense to said first party. The scalers employed to scale the logs when taken out of the waters, flats, or bayous of said stream and its tributaries are to be paid one-half by each of the parties hereto, said first party to board said scalers without cost or charges to said second parties.’
“ On August 28, 1905, at a meeting of the parties to the contract, the ‘ fishhook mark ’ was adopted as the mark for the unidentified logs, Mr. J. O. Nessen was chosen as the representative of the log owners in handling the unidentified logs, and Mr. Noudwas given £ authority on behalf of the log owners to select scalers as provided in the contract.’
“ On the 21st day of September, 1907, a supplemental agreement was made; the principal amendment relating to the method of scaling, as follows:
“ ‘ Of all lumber cut from logs delivered under this contract, board tally shall be kept by some competent tallyman to be mutual ly agreed upon, each party here to pay one-half their wages, Said lumber to be sawed so said tally can be kept at the tail of the mill, or the lumber shall be piled separately from lumber sawed from other logs, when said tally shall be made at the time the lumber is shipped, and for each eleven hundred fifty (1,150) feet of hemlock lumber six feet and over in length, graded mill culls and better, sawed as above, said second parties shall pay to said first party six dollars ($6), and for each eleven hundred fifty (1,150) feet of all other kinds of lumber, sawed as above provided, said second party agrees to pay seven dollars and a half ($7.50). It is also understood and agreed that all cedar logs delivered under this contract shall be settled for upon the scale of Boom Company scalers at mill where said cedar logs are delivered at the rate of seven dollars and a half ($7.50) per thousand feet.’
“ On December 20, 1909, plaintiff brought this action against defendant alone for breach of contract, classifying the various breaches and damages therefor, as follows:
“‘I. 1 * * And the said plaintiff delivered to the said defendant, under said contract, a large quantity of sawlogs, to wit, about 7,294, - 577 feet of hemlock logs and about 3,156,506 feet of other sawlogs, of which amount there were scaled and reported, as required by said contract, only the amount of 3,294,577 feet of hemlock logs and 1,156,506 feet of other logs, whereupon there became due and owing to the plaintiff by and from the defendant, for said services upon the logs as scaled and reported, the sum of $19,768.06 for hemlock logs and $8,673.80 for other logs, in all the sum of $28,-441.86, less the advances paid as required by said contract upon the logs so delivered, when the same were raised, banked, and skidded, to wit, for hemlock logs $9,884.03, and for other logs $4,336.90, which advances became due to the defendant, upon said logs, when the same were delivered as provided in and by said contract; and the amount due to said plaintiff, after deducting the advances aforesaid, upon each lot of logs as scaled and reported, was and is the sum of $14,220.93 and interest thereon from the time the same, or parts of the same became due, upon each delivery of said logs as delivered, scaled, and reported. Wherefore it became and was the duty of the defendant to pay to the plaintiff, on the 10th day of the month next following each delivery of said logs, the amount due the plaintiff thereon as aforesaid, which duty the said defendant wholly failed and neglected to perform, but claimed, on the contrary, in defiance of and contrary to the terms of said contract, that advances made by it to the plaintiff upon other logs belonging to the defendant, which had been raised, banked, and skidded upon the banks of said river by the plaintiff, were all due and should be applied in payment of the particular lot or lots of logs so delivered to it by the plaintiff, and wrongfully, and to the great damage and injury of the plaintiff, deducted all of the advances so made by it upon said other logs, then upon said skids, as well as upon the lot or lots of logs so delivered, scaled, and reported, and wholly refused and still refuses to pay the plaintiff the moneys actually due the plaintiff for the logs so delivered, scaled, and reported, whereby the defendant became, was, and is indebted to the plaintiff upon the logs so delivered and actually scaled and reported in the said sum of §14,220.93 and the interest thereon, to the damage of plaintiff of §16,000.’
“ II. That the defendant did not make a fair and equitable scale, but an unfair, inequitable, and fraudulent scale, thereby damaging plaintiff to the amount of $2,85410.
“ III. That the defendant used and manufactured large quantities of logs delivered under the contract, without scaling or accounting for the same, to plaintiff’s damage $20,000.
“ IV. Although the contract provided, ' “that said second parties are to receive and manufacture said logs as fast as the same are delivered to them,” * * * a large quantity of logs so delivered to it by the plaintiff under said contract were held, kept, and retained in the water by said defendant, and were not manufactured as fast as the same were delivered, and a large quantity of the same logs, to wit, 1,000,000 feet of hemlock logs and 500,000 feet of other logs, became water-soaked and sank to the bottom of said Lake Manistee before the same were scaled or tallied,’ to the damage of the plaintiff $10,000.
“V. That the defendant did not manufacture the logs into lumber in accordance with the supplemental agreement, but, ‘did cut said logs, or a large portion thereof, into shorter lengths, and manufacture said shorter lengths of logs and lumber into staves, heading, and other products of short lengths, and into wood for use in its manufacture of salt, and for other purposes, and did credit and allow the said plaintiff for only the portion of said logs which it actually did manufacture into lumber,’ to the damage of plaintiff $6,500.
“VI. That defendant took and manufactured for its own use large quantities of logs belonging to others of said parties of the second part—
“ ‘And inasmuch as the said plaintiff has performed the services required of it under said contract, upon the logs so taken, received, and used by the defendant, it was and is entitled to the compensation provided by said contract therefor; and inasmuch as the advances made upon logs so taken by the defendant remain a charge against the plaintiff, and must be paid by it when due, under said contract, the plaintiff is entitled to demand and receive the full contract price therefor.’
“Defendant pleaded the general issue, with notice of set-off and recoupment. At the outset the defendant objected to any evidence being received under the declaration for various reasons specifically set forth. The objections, were, for the most part, overruled, and the case proceeded, resulting in a verdict for the plaintiff of $11,-796.66. The defendant has brought the caseto this court for review.
“ It was the business of the plaintiff to raise the logs coming under the description of ‘ deadhead ’ and ‘ sunken’ from the river, lift them to the bank, and place them on skidways, using for that purpose somewhat expensive steam scows. After these logs were once lifted and banked, they were scaled by scalers, as provided in the contract, for the purpose of ascertaining the amount of the advances. After being allowed to dry out, during the winter and spring, such as were dried sufficiently for the purpose were floated and driven down the river for delivery to the respective mills of the parties of the second part. When the drive reached the mouth of the river, they were driven or gathered in what is called or known as the ‘ sorting gap.’ The logs of the various owners were then separated and placed in pockets ready for delivery to the owner claiming the marks on such logs. This work of sorting and separating was done by the Manistee River Boom Company under a contract with the plaintiff.
“ The Manistee River Boom Company is a corporation organized under the laws of this State for the purpose of driving, sorting, and delivering logs, and its operations have been confined to the Manistee river and Manistee Lake. The Manistee River Boom Company sublet its work of sorting and delivering the ‘ Nav5 logs to the Louis Sands Salt & Lumber Company, the defendant, who, as said subcontractor of the Manistee River Boom Company, performed the actual work of sorting and delivering these logs to the mills of the parties of the second part, and it continued to do so from the time the plaintiff commenced the operations under the contract up to the time of the commencement of this suit, excepting the drive of 1909, which the plaintiff itself sorted at the gap, but which the defendant delivered to the respective mills of the parties of the second part, under a contract directly with the Manistee Navigation Company.
“The river scales apparently show that from 1905 up to and including the season of 1909 plaintiff has lifted, banked, and skidded a total of 22,694,160 feet of logs. Plaintiff gave testimony tending to show that about 17,-000,000 feet were driven to the sorting gap, of which about five per cent. sank. The millowners reported having received 12,471,646 feet, of which amount defendant reported 4,347,354 feet. It was conceded that about one-third of all the logs belonged to defendant. All of the advances provided for in the contract upon the basis of the up-river scales were paid, but no money was actually paid to plaintiff upon its deliveries of logs, except as it was charged upon defendant’s books with all prior advances.
“ The principal questions in the case concern the proper construction of the contract and the severability of the contract.
“ Construction of the Contract.
“The defendant claims that all advances made under the contract are payments upon the first lot of logs delivered, and so on, with the right to deduct all such advances from the contract price of the logs as delivered. The plaintiff claims that the advances apply to and protect all of the logs raised, lifted, and skidded under the contract, and only an amount proportional to the number of thousand feet in the logs actually delivered becomes ‘ due said second parties by reason of the advance money.’
“ It is apparent from the contract that raising, lifting, and skidding the logs would constitute the most difficult and expensive portion of the work, and that the provision relative to advancements was for the benefit of plaintiff in doing that work. The record demonstrates fully that defendant’s construction of the contract would nullify the benefit of the advances, and in effect compel plaintiff to carry the advances itself. We think that the plaintiff’s construction, adopted by the circuit judge, is in accord with the letter and spirit of the agreement and free from ambiguity.
“ Practical Construction.
“Assuming that a contract free from ambiguity is open to practical construction, we are satisfied that the court properly refused to apply it in this case. The claim rests mainly upon the bookkeeping of the parties and the failure of plaintiff to demand its pay. Whatever effect these matters might have had if continued, such effect was entirely done away with by the act of the parties. The contract runs eight years from September 1,1905. There was no drive in 1905, a small drive in 1906, and considerable drives in 1907 and 1908; the plaintiff having borrowed $3,000 for the drive of 1907. At a meeting of the parties in the fall of 1908, at which defendant’s president was present, representing it and taking part, the plaintiff claimed that the logowners—
“ ‘ Owed us something over $30,000. As a result of that meeting it was finally agreed that they should give us $15,000, that amount to be proportioned amongst the various parties to that contract on the basis that each held logs on the river bank, with the result that the defendant company paid us as their proportion of the $15,-000 something over one-third, something over $5,000. Mr. Filer said: “Now, Mr. Babcock, in accepting this advance, we want it understood that we are not acknowledging that interpretation of the contract, nor admitting your claim to be true,” and I said, “ Mr. Filer, we will accept the money on the basis that it does not prejudice our claims,” and it was so understood that the advance was made on that basis.’
“ Mr. Palmer, the plaintiff’s secretary, testified:
“ ‘The meeting was called to order, and Mr. Filer was elected chairman and Mr. J. O. Nessen secretary. The gentlemen asked me to make a statement. They asked me to make my statement in regard to our claim. I told them that there was just one of two things they could do under this contract. They had to either pay us for the amount delivered, or they had to keep their advances in the logs on the bank. The culmination of the whole meeting was that they decided to advance us $15,000 under this contract, and at the close of the meeting Mr. Filer made the statement that this money was given to us, not accepting or rejecting any construction of the contract, but was simply made as an advancement for us to continue business. * * * As a result of that meeting the logowners agreed to furnish this company $15,000, without prejudice or preference, or any construction of this contract, under the statement of Mr. Filer, as they agreed to. We billed it on the logowners as an advance. This was billed as per resolution of that meeting. This $15,000 that they furnished us was prorated upon the amount of the logs they had on the bank.’
“ Defendant’s witness Smith testified:
“ ‘Mr. Palmer took up the question of the contract at that time, and claimed that they owed us the advances on all the logs that were on skids up the river. The logowners objected to that entirely,, but finally agreed that Jthey would advance us $15,000 in order to continue operations. I am not certain, but it seems to me that it was stipulated that this advance should not have any different effect on the contract to any extent. I think Mr. Smith in substance said this, and I think Mr. Filer had something to say in that regard. * * *
“ ‘Q. Now at that time this advance of $15,000 was agreed upon ?
“ ‘A. Yes.
“ 'Q. Yes; and when that was agreed upon, Mr. Field, it was stated definitely, I think you said, by Mr. Filer and Mr. Smith, that this advance was made without reference to what either party claimed as to the construction of the contract ?
“ ‘A. Well, it was understood that this fifteen—
‘“Q. I am asking you what was said.
“ ‘A. Well that was said, that this $15,000 was advanced, but not to have any different interpretation of the contract.
“ ‘Q. Was not it stated that neither party waived their claims under the contract ?
‘“A. Why—
“ ‘Mr. Navin: We object to that; he has stated what was said.
“ ‘The Court: This is cross-examination.
“ ‘Q. Wasn’t that stated, Mr. Field ?
“ ‘A. I think it was.
“ ‘Q. Yes, sir.
“ ‘The Court: Do you mean, Mr. Field, that both parties stated that their rights under the contract were not to be prejudiced.
“ ‘A. Yes, sir.
“ ‘The Court: By the loan ?
‘“A. Yes; your honor.’
“The arrangement to advance the $15,000, expressly-made without prejudice to either party’s interpretation of the contract, but leaving the same open for future determination, not only did away with any notion of a practical construction, but also disposed of the question of estoppel raised by defendant.
“ Severability of the Contract.
“Although the contract is joint in form between the Navigation Company, of the one part, and the logowners, of the other part, the contract contemplated a delivery to each logowner and millman of his own individual logs, and, for that purpose, required the furnishing by each, and attachment to the contract, of his individual stamps and marks. From the very beginning down to the commencement of suit, the parties treated the contract and executed it, except as to the unidentified logs, as a separate contract as to each. When the logs were scaled upon the river bank, they were marked with the owner’s mark, and each month the scale of his individual logs was served upon him, and upon that scale he made his 50 per cent, advance required by the contract. After the logs were delivered to the owner, they were scaled and sawed into lumber at his mill, and the plaintiff given a report of such scale. Not only does the contract require delivery to be made at the respective mills, but payment is to be made on the 10th of each month ‘ for all logs delivered to the respective mills of said parties of the second part,’ etc., and throughout the owners treated this as an individual and not a joint liability. In fact, from the outset the separate millowners kept separate accounts with the Navigation Company, and when they advanced the $15,000, each paid his pro rata share, based upon their separate interests in the logs then on the banks, as shown by the river bank scale.
“We are therefore of the opinion that the declaration was properly planted upon the agreement as a separate contract with the defendant for the cause of action set forth.
“ The Declaration.
“We do not think there is any force in the objections that there is a misjoinder of causes of action in assumpsit and tort in the same count, or that the assignments of breaches are based upon torts which are not available because of the lack of proper averments of waiving the tort. The sixth assignment of a breach was withdrawn from the consideration of the jury and need not be considered. The first is unquestionably in assumpsit. The second seeks to recover the difference between the amount due plaintiff, upon logs actually delivered to defendant, under the contract scale and under the scale actually used by defendant, and is in assumpsit. The third is for the amount due under the contract upon certain logs belonging to and delivered to defendant, for which it reported no scale and made no account, and is also properly in assumpsit. The fourth is unquestionably in assumpsit. The fifth is that the defendant so wasted the logs in manufacturing them into lumber as to decrease the amount which plaintiff would have received under the lumber tally if the logs had been fairly and economically sawed, and we think may fairly be treated as in assumpsit. In substance, the assignments objected to are upon the theory that plaintiff performed its part of the contract by recovering and delivering to defendant its sunken and deadhead logs, but that defendant did not perform its part of the contract by paying to plaintiff the compensation for its services to which it was entitled under the contract upon the basis of the number of thousand feet in the defendant’s logs which it delivered to the defendant.
“ Proof of the Breaches and Damages Thereunder.
“Second. The contract required that the scalers should make a ‘fair and equitable scale.’ There was testimony to the effect that there was a difference between ‘ a fair and equitable scale’ and a ‘merchantable scale,’ that a ‘ fair and equitable ’ scale was much more liberal than a ‘merchantable scale,’ and that the difference was about 47 per cent. There was also testimony that the logs in question were scaled at defendant’s mill by merchantable scale. There was also much testimony to the effect that there was no difference between a ‘ fair and equitable ’ scale under Doyle’s rule and a ‘ merchantable ’ scale under the same rule. Since the contract determined the kind of scale which was to be applied prior to the supplemental agreement, the determination of the scalers appointed by the contract would not be final unless they used the kind of scale designated by the contract. While the testimony as to the amount of the damages on this account is not very satisfactory we cannot say that there was nothing for the jury to pass upon.
“ The making of the new agreement' as to the mill scale by lumber tally related to the future, and should not be held, as a matter of law, in our opinion, to conclude the rights of the parties under the prior arrangement. It should, however, exclusively govern their rights after it took effect.
“Third. It is strenuously insisted that there is no definite evidence whatever on the part of plaintiff to support this breach, and that, on the other hand, the defendant fully accounted, by the positive testimony of witnesses having first-hand knowledge, for every log delivered to it by plaintiff. The plaintiff’s case upon this head is necessarily based almost entirely upon estimates, which, for the years prior to 1909, amount to little more than mere conjecture. The drive of 1909, however, was sorted by the plaintiff, and as to this drive we think the testimony fairly presents a question of fact for the jury as to whether the defendant scaled and accounted for all of the logs delivered to it.
“Fourth. There is no testimony in the record of sufficient definiteness to warrant the jury in finding that the plaintiff suffered any damages on account of delay in sawing the logs, and the defendant’s testimony is full and positive to the effect that no loss occurred by reason of the sinking of the logs. The case of plaintiff is based upon conjecture, met by definite and positive testimony, and the jury should have been instructed that no damages could be awarded for this alleged breach.
“ Fifth. Under this head, also, the testimony for plaintiff is too vague, indefinite, and limited to furnish any basis for a definite award of damages. Furthermore, the testimony of the men who actually did the work of manufacturing, and who kept the tally agreed upon in the supplemental agreement, is all to the same effect; that the work was done and the tally kept in the usual way, and as defendant handled its own logs, and in this form of action such tally is conclusive on the plaintiff.
“ The Defense of Recoupment.
“ It is manifest that the principal object of the lumbermen in entering into the contract was to obtain the delivery of their deadhead and sunken logs at their mills at the earliest practicable moment. To this end the contract required plaintiff, ‘each year after 1905,’ to ‘make at least one drive or delivery of all floatable logs to said second parties.’ A failure of plaintiff to deliver to defendant in the drive of one year all of its then floatable logs raised and skidded the preceding year would be a breach of the contract, for which it would be liable in damages for any injuries to such floatable logs thereafter, whether from forest fires, floods, the weather, or other causes.
“The contract concerned ‘deadhead’ and ‘sunken’ logs only, and plaintiff had no right under the contract to advances upon any other kind of logs. If plaintiff lifted and skidded other kinds of logs belonging to defendant, and caused them to be scaled and reported to defendant as ‘ deadhead ’ and ' ‘ sunken ’ logs, and re eeived advances because thereof, this constituted a breach of the contract on its part, and entitled defendant to recoup to the extent at least of such advances. The contract does not define the terms ‘ deadhead’ and ‘sunken’ logs, and there is a conflict of testimony as to what kind of logs constituted such logs, so that it was a question of fact for the jury as to whether the logs in question were ‘ deadhead ’ and ‘ sunken ’ logs or not. And we are of the opinion that the court erred in instructing the jury that the determination of this question was committed to the scalers by the contract, and that if they áeted in good faith their determination was final. Mr. Babcock’s instructions to the scalers were ‘to scale all logs lifted.’
“We are also of the opinion that the court erred in his instruction relative to certain logs which had been banked and skidded in 1906 or 1907, and which defendant claimed had largely deteriorated in value through not being brought down as required by the contract. After instructing the jury that defendant would be entitled to damages for such depreciation, the court further said:
" 'But, gentlemen, that instruction is qualified, and I want you to mark the qualification, because it is somewhat complicated. It is the claim of the plaintiff in this\case that it has been hindered in its operations under this contract, because the defendant has not paid it the moneys that it claims to be due from the defendant ; and I say to you, if the logs above jam 1 have remained there because of the default of the defendant in not paying what you find to be due plaintiff under the contract, you will not allow the defendant anything at all either for depreciation or loss of logs above jam 1.’
“There is no evidence upon which to base this qualification. Plaintiff made no demand upon defendant for money due it under its construction of the contract, nor intimated.to the defendant that it was construing the contract differently from defendant, till late in 1908. On the contrary, Mr. Babcock testified that they refrained from making bills on defendant for moneys due upon delivery of logs:
“ ‘ We sent no bill for the balance due, because by sending a bill I believed we would be admitting the correctness of the reports for lumber delivered at the mill of the defendant and the other mills during the existence of this contract. The reports I refer to are the mill tallies of 1906 and 1907, and the lumber tallies for 1906 and 1907, and the lumber tallies for 1908 and 1909, showing the lumber delivered under the contract and logs delivered under the contract.’
“Under such circumstances we think that the qualification should have been omitted.
“ We find no error in the rulings of the court rejecting statements of Mr. Cartier as to abandonment of the contract, nor in instructing the jury that there was no evidence in the case of a voluntary abandonment.
“We have only considered such of the 377 assignments of error as we deemed necessary to settle the legal principles upon which a retrial should be had, and which should be sufficient for determining the questions of fact in the case. The record is unduly voluminous, and, for purposes of taxation of costs, will be limited to 500 pages, and the briefs to 200 pages.”
The judgment is reversed, and a new trial ordered.
Steers, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Ostrander, JJ., concurred | [
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] |
Brooke, J.
Plaintiff, who is the father of defendant Lottie Salnave, sues his daughter and her husband upon a promissory note, a copy of which follows:
“Sale Note:
“Bangor, Mich., April 1, 1911.
“ One year after date we jointly and severally as principal promise to pay to the order of A. F. Baird the sum of four hundred and twenty ($420) dollars, to draw interest at the rate of 6% per annum from date and attorney’s fees if suit is instituted on this note. Value received.
“ Payable at residence of A. F. Baird.
“ Oliver R. Salnave.
“Lottie Salnave.”
The defendants pleaded the general issue, and denied the execution of the instrument under oath. Upon the trial, both defendants admitted that they had signed the note, but claimed that, when it was signed by them, the amount specified by both words and figures was $400, and that it had been changed after execution by the insertion of the words “ and twenty,” and by placing the figure “2” over the cipher next the “4.” It was further claimed by defendants that the time of maturity had been changed. Defendant Oliver R. Salnave testified:
“ I claim the note has been altered and changed. It was to be a three-year note. I didn’t read the three years in particular. I was in a hurry when I signed it. # * * I don’t think the note said ‘ one year after date ’ when I read it. * * * There was only $400 written in there, no $20 or anything of that kind; no, sir. I think it was changed from $400 to $420 after I signed it.”
This note was given by defendants to plaintiff as the purchase price of a span of horses, a wagon, and harness.
It was further claimed by defendants that, upon the day the note was given, the sum of $20 was paid by defendant Lottie Salnave to her father, the plaintiff. Plaintiff denied receiving the $20 in question, and denied that the note had been changed in any particular after execution.
The case was submitted to the jury under a charge which plainly instructed them that the plaintiff could not recover at all if they found that the note had been altered after execution so as to raise the amount or change the time of payment. This instruction was warranted under the decisions in this State. See Holmes v. Trumper, 22 Mich. 427 (7 Am. Rep. 661); Wait v. Pomeroy, 20 Mich. 425 (4 Am. Rep. 395); Bradley v. Mann, 37 Mich. 1; First Nat. Bank v. Carter, 138 Mich. 421 (101 N. W. 585).
The court further charged:
“ Even though you should find that the defendant did pay $20 to apply on the horses at the time of the making of the note, this would not, standing alone, authorize you to deny the plaintiff relief in this case, unless you find that, after the note was signed, the plaintiff changed the consideration and added thereto, in the body thereof, the words ‘and twenty,’because, if the defendants signed the note with these words in, then they would be liable, although if you should find that $20 was paid and it was intended that it should apply upon the purchase price of the horses, wagon, and harness, but by mistake or inadvertence it was not taken into consideration when the note was made, you would have the right to allow defendants this payment and render a verdict for the plaintiff for the sum of $400, with interest thereon at 6 per cent, from April 1, 1911.”
Error is particularly assigned upon this portion of the charge; it being contended by defendants that the court thereby submitted to the jury a theory of the case which had been advanced by neither party. We are unable to agree with this view. It is true that the plaintiff denied the receipt of the $20 and the alteration of the note, while the defendants asserted the payment of the $20 and that the note had been altered.
Under the instruction above quoted, the jury found against the plaintiff upon the first proposition, and against the defendant upon the latter, and returned a verdict in favor of plaintiff for $400 and interest. We are of opinion that the testimony warranted both findings.
We are at a loss to understand exactly why defendants appeal from this judgment. They admit that they owe plaintiff $400; and that sum, with interest, is exactly the amount they are by this judgment condemned to pay. It may be said that the question of costs is involved. Defendants had it in their power to protect themselves against the payment of costs by depositing in court the $400 for which they claim the note should have been made. By their verdict the jury have determined that there was no alteration in the note after it was signed; therefore, that contention of defendants is not upheld. It was their duty, then, if they desired to avoid the payment of costs, to have followed the course indicated.
Error is assigned upon other portions of the charge and upon the exclusion of certain testimony. These assignments have been examined, but are without merit.
The judgment is affirmed.
Steere, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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Brooke, J.
(after stating the facts). The bills of lading here considered are entirely unambiguous and show conclusively that Botsford & Barrett were the shippers and that the shipments were made to their order.
The evidence of Mr. Nelson, president and manager of the plaintiff corporation, does not in our opinion tend to contradict the bills of lading and (they being unambiguous) if it did so tend it would not be admissible under the authority of Sturges v. Railway Co., 166 Mich. 231 (181 N. W. 706).
The learned circuit judge in rendering judgment for plaintiff seems to have relied upon the case of Forbes v. Railroad Co., 133 Mass. 154. In that case Gallup, Clark & Co. consigned a shipment of corn to Boston to their own order. They sent the bill of lading indorsed with draft attached for the value of the corn to Foster & Co. at Boston. Foster & Co. paid the draft and immediately indorsed the draft and bill of lading to Forbes for an advance to the full amount of the draft. Forbes thereafter held the draft and bill of lading duly indorsed. Some weeks later the defendant carrier delivered the corn for export upon the order of Foster & Co. Foster & Co. did not produce the bill of lading, but represented that it was in their possession. The court held that by the transfer from Foster & Co. Forbes took title as purchaser of the corn, and could maintain the action, in the absence of laches, upon proving conversion by defendant. It was further held:
_ “ It is settled that any misdelivery of property by a carrier or warehouseman to a person unauthorized by the owner or person to whom the carrier or warehouseman is bound by his contract to deliver it is of itself a conversion, which renders the bailee liable in an action of tort in the nature of trover, without regard to the question of his due care or negligence. Hall v, Railroad Corporation, 14 Allen [Mass.], 439 [92 Am. Dec. 783].”
We are unable to see the applicability of the Forbes Case to the case at bar. Here there is no innocent holder for full value of a properly indorsed bill of lading, the failure to demand production of which led the carrier to make delivery of the consignment to one not entitled to receive it. Here the delivery was made to the consignees named in the bills of lading and upon the order of the shipper exactly as, by the terms of the written instrument, the carrier was instructed. The learned circuit judge says:
“ What was done by Botsford & Barrett and the plaintiff amounted to an assignment of the bill of lading to the plaintiff. Even if it be conceded that Botsford & Barrett were the owners mentioned in the bill of lading, yet they had the right to assign the bill of lading to the plaintiff, and had they been present at Ithaca, and made the shipment personally, and then made a regular assignment to the plaintiff, no one would contend that the railroad would be protected in making delivery upon the order of Bots-ford & Barrett, even though it was a genuine order, unless it was accompanied by the original bill of lading.”
Touching these views it is sufficient to say that Botsford & Barrett were not, so far as the record discloses, present in Ithaca, that they did not make the shipment personally, and that they did not make any formal assignment of the bill of lading to the plaintiff. The conclusion, that what was done between Botsford & Barrett and plaintiff amounted to an assignment of the bill of lading to the plaintiff, is, we think, wholly unwarranted by the disclosed facts. The record contains no hint that the defendant knew or had cause to believe that the plaintiff had retained any interest or right of property in the beans. The bill of lading indicated the contrary. An examination of that paper shows that the plaintiff was an utter stranger to the transaction, except that as to the last bill its name appears beneath that of Botsford & Barrett, Shipper, with the prefix “per.” This can have but one meaning, viz., that the beans were shipped by Botsford & Barrett; the plaintiff acting for them in the transaction. Assuming that defendant knew of plaintiff’s ownership of the beans prior to the moment of delivery, the terms of the bill of lading would indicate a sale to Bots-ford & Barrett and an intent to vest them with the title and right of possession thereto.
The bills of lading here in question contained the following language:
“The surrender of this original bill of lading, properly indorsed, shall be required before the delivery of the property.”
It being conceded by defendant that delivery of the beans was made without the surrender of the original bill of lading, it becomes pertinent to inquire what effect these words have upon the controversy.
Hutchinson on Carriers (3d Ed.), vol. 1, § 177, in his text, says:
“The carrier takes the risk of a delivery to the person entitled to the goods by the bill of lading and its indorsements. The consignee named in the bill of lading is presumptively the owner of the goods and must be treated by the carrier as the absolute owner until he has had notice to the contrary; and a delivery to him without such notice will discharge the carrier. Thus, if the consignor would for any reason retain the ownership or control of the goods, he must notify the carrier of such fact; for otherwise the presumption that the consignee named is the rightful owner and entitled to their possession will prevail as against any undisclosed intention which the consignor may have had to the contrary.”
At section 181, vol. 1, the same author says:
“But while the carrier takes the risk of making delivery to the person entitled to the goods by the bill of lading and its indorsements, and should, therefore, be careful to require the person demanding the goods, when such person is another than the consignee, to produce the bill of lading properly indorsed, he will fully discharge his duty in making a delivery without requiring the bill of lading to be presented if delivery is made to the person who is lawfully entitled to the goods. The right of the carrier to demand the presentation of the bill of lading is a precaution of which he may avail himself, for the purpose of avoiding delivery to the wrong person, but which, if he sees fit, he may dispense with; and if delivery is made to the person vested with the right to receive the goods, the carrier will have performed his duty. If therefore the consignee should direct the carrier to make delivery to a third person to whom he has transferred title, and delivery is made in accordance with such directions without requiring the bill of lading to be produced, the failure of the carrier to require its production will place him under no responsibility to a bona fide holder who, after such delivery, has taken the bill of lading from the consignee. And although a bill of lading providing for a delivery to the consignor or his order contains an express provision that the carrier shall require its surrender or production before making a delivery of the goods, such requirement, it is said, will be considered as having been inserted for the benefit of the carrier, and, as between himself and the consignor, cannot subject the carrier to liability for failing to require the production of the bill of lading on making delivery to one to whom the consignor has ordered that the goods shall be delivered.”
An examination of the authorities cited by the writer will show that the text is amply supported.
In 4 Elliott on Railroads (2d Ed.), § 1523, it is said:
, “The rule in regard to the person to whom delivery must be made is very strict. It must be made to the right person, and it seems that neither the fraud nor imposition of any one else nor mistake on the part of the carrier will excuse it from liability, if it delivers the goods to the wrong person. The right person is, ordinarily, the consignee or his authorized agent. But if the carrier delivers to any one, even to the consignee, without the production of the bill of lading, it runs the risk of having to show a delivery in accordance with the terms thereof, and, where a vendor ships goods and takes a bill of lading in his own name or to his order, the carrier cannot safely deliver the goods to any one else unless the bill is indorsed or transferred by him and produced by the person to whom they are delivered.”
Further, in a note to section 1524, the author says:
“That a carrier may be protected in a proper case even if it does not require production of the bill of lading, if it shows it delivered to the right party, see (citing many cases).”
The case of Chicago Packing, etc., Co. v. Railway Co., 103 Ga. 140 (29 S. E. 698, 40 L. R. A. 367), is instructive. The bills of lading in that case contained the same provision that the goods should not be delivered without surrender thereof. They were indorsed and signed by the plaintiff as follows: “Deliver to Hobbs & Tucker, or order, for collection.” Tucker ordered delivery to one Ragan in the following terms:
“E. N. Clark;, Agent: Let N. L. Ragan have car meat on dray track, and I will be responsible for B — L. May 18, 1893. A. W. Tucker.”
The carrier made delivery to Ragan relying upon this order without the surrender of the original bill of lading. The shipper thereupon sued . the carrier for damages caused by a wrongful delivery. The court said:
“If a natural person consigned goods to his own order under a bill of lading which provided that it should be surrendered before delivery could be made, and called in person upon the carrier’s agent at the point of destination, demanded a delivery of the goods, and thereupon received the same, it certainly could not be questioned that, as between him and the carrier, such delivery would be good, and would free the carrier from further liability to him, although the bill of lading may not have been produced and surrendered in accordance with the stipulations therein contained. While in such a case the carrier might not, aa against one who had in good faith and in the due course of business obtained the bill of lading properly indorsed, be protected by a delivery to the original consignor, surely the latter would have no cause of complaint against the carrier. If such a consignor could thus obtain a delivery of the goods to himself in person, what difference, in principle, would it make if, instead of doing this, he, by a written order, directed delivery to another, who obtained the goods upon such order without producing and surrendering the bill of lading. In either case, looking at the transaction with reference only to the consignor and the carrier, the latter would have done all that the former had any right to require of it. In other words, the stipulation in such a bill of lading requiring its surrender upon delivery of the goods is for the benefit of the carrier, and not that of the consignor.”
See, also, Gates v. Railroad Co., 42 Neb. 379 (60 N. W. 583); Nebraska Meal Mills v. Railway Co., 64 Ark. 169 (41 S. W. 810, 38 L. R. A. 358, 62 Am. St. Rep. 183); 6 Cyc. p. 472, and cases cited in note 49.
Whether the stipulation in the bill of lading that surrender thereof shall be required before delivery is considered to be for the benefit of the carrier or the shipper would seem in this case to make no difference, for the plaintiff was not the shipper. Being the owner of the property at the time of delivery to the carrier, plaintiff chose to represent by the contract negotiated with the carrier that Botsford & Barrett were the shippers thereof, to whose order delivery should be made, at the same time neglecting to disclose to the carrier that it (the plaintiff) desired or intended to retain any control over the ship ment for its own protection. Defendant had no knowledge or notice of plaintiff’s secret intention. For aught defendant knew, Botsford & Barrett might have paid plaintiff before the shipment was made. Indeed, the terms of the bill of lading negotiated by plaintiff plainly indicated that such was the fact. We cannot escape the conclusion that this loss has come to plaintiff (if a loss there be through the financial inability of Botsford & Barrett) by reason of its own carelessness in failing to make the shipments to its own order, or in some other manner notifying the defendant that it desired to retain its title to the shipments until paid for the same. Having made delivery of the shipments to the parties named in the bills of lading upon the order of Botsford & Barrett as directed in the bills, we think the defendant should be held to have performed its full duty in the premises.
Defendant requested the court to make findings of law as follows:
“Under the evidence in this case, when defendant received the beans in controversy and issued its bills of lading therefor, and the same were accepted by plaintiff, the beans became (as between the plaintiff and defendant) the property of Botsford & Barrett, and the plaintiff cannot complain of a delivery of the same by the defendant or its connecting carrier to or on the order of Botsford & Barrett.
“ The fact that the original bills of lading were not surrendered to the delivering carrier at the time of the delivery of the beans will not make the defendant liable, for the reason that the beans were delivered on the order of Bots-ford & Barrett and the evidence does not show any notice to defendant that the title to the beans was not to pass to Botsford & Barrett, or that the same were not to be delivered on their order.”
These findings should have been made.
The judgment is reversed, and there will be no new trial.
Steere, C. J., and McAlvay, Kuhn, Ostrander, and Stone, JJ., concurred with Brooke, J. | [
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Ostrander, J.
Defendant owned a four-passenger automobile, which, on the evening of August 10, 1910, at about 7 :45 o’clock, was being driven by his son, a boy 15 years of age. Two of his young- associates were riding with him. He drove west, preceded by another motor car, called in the record the Buick, driven by a Mr. Donahue, and both cars were preceded for some way by an omnibus or carryall. The Buick ear turned out, passed the omnibus, and drove into a street opening onto Dyckman avenue on the north. Defendant’s machine, driven by his son, also turned out to pass the omnibus, and, having done so, swung into the north side of the street again, when plaintiff’s decedent, who was riding west on Dyckman avenue upon a bicycle, came into collision with the car, from the effects of which he never regained consciousness, and died in less than an hour. Claiming that the negligent operation and management of the motor car was the cause of his death, his widow, as administratrix of his estate, sued the owner of the motor car and recovered a substantial judgment.
At least one count of the declaration appears to be framed upon the theory that the person driving the car was servant and agent of the owner, who is responsible as principal or as employer for the damages resulting from the negligent operation of the car. Other counts of the declaration are framed upon the statute (Act No. 318, Pub. Acts 1909, 2 How. Stat. [2d Ed.] § 2487 et seq.). Defendant requested the court to charge the jury as follows:
“ Under the law of the State the defendant cannot be charged with the negligence of any person driving the automobile, to wit, Carlos Abell, at the time of the collision, and therefore your verdict should be for the defendant. * * * It appears from the undisputed evidence in this case that on the evening in question Carlos Abell was using the automobile for his own purpose, his own pleasure, and on his own time, and that he was the operator of the machine, and the action should therefore have been brought against him, and your verdict should be for the defendant because the evidence shows that Carlos Abell was not the agent, employé, or servant of the defendant on this occasion, but a mere licensee; therefore the statute does not apply to the facts in this case, and under the law of the State the defendant has not been shown to have been guilty of any negligence, and you are therefore directed to return a verdict for the defendant.”
The statute (Act No. 818, Pub. Acts 1909) is entitled “An act providing for the registration, identification and regulation of motor vehicles operated upon the public highways of this State, and of the operators of such vehicles.” Subdivision 3 of section 10 (2 How. Staf. [2d Ed.] § 2496) of the act reads:
“Liability of Owners. — The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation by any person of such motor vehicle, whether such negligence consists in violations of the provision of a statute of this State or in the failure to observe such ordinary care in such operation as the rules of the common law require; but such owner shall not be so liable in case such motor vehicle shall have been stolen.”
Act No. 33 of the same session (2 How. Stat. [2d Ed.] § 2506) provides for the punishment of persons who without intent to steal the same usa a motor vehicle without authority, including employés of the owner and others who have charge of the vehicle. The point that this provision of the statute if it is construed as applicable to the facts disclosed is not constitutional, but is invalid because imposing upon the citizen a liability for damages occasioned wholly by the negligent conduct of another, does not appear to be made by the appellant. It is said that upon the occasion in question the defendant’s machine was taken by his son without his permission, and the point which is made is that in view of the provisions of Act No. 33 the word “stolen,” in Act No. 318, means taken without permission of the owner; that the word “stolen” is not used in the last act in its technical sense, but in the sense of an unlawful taking.
We do not find in the record testimony tending to establish the common-law liability of defendant, nor any affirmative testimony upon the subject of the authority of the son to use the car. It is to be inferred that the son used the car by permission of his father, the owner, but for his own pleasure. We have, since the case at bar was tried, distinctly held that the provision of the act of 1909 above set out is void. Daugherty v. Thomas, ante, 371 (140 N. W. 615). The request to charge preferred by defendant, and last above set out, contains a correct statement of the law under our decision in that case. We reverse the judgment, with costs to appellant. In view of the pleadings, the right to a new trial, if plaintiff shall be advised thereto, is granted.
Steere, C. J., and Moore, MgAlvay, Brooke, Kuhn, Stone, and Bird, JJ., concurred. | [
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Mooee, J.
This is an action to recover damages for personal inj uries. The plaintiff, at the time of his injury, a lad of 13 years of age, was riding a bicycle in the easterly direction upon Jefferson avenue, in the city of Detroit. He was accompanied by a companion some three years older than himself. When near McDougall avenue, the boys overtook a motor truck belonging to defendant. The truck likewise was proceeding easterly upon Jefferson avenue. It was a heavy service truck weighing about three tons, and capable of carrying a load of equal weight, and was running at a speed of from 8 to 10 miles per hour. It was in charge of one Heberling, an experienced driver, who was accompanied by one Long. Both these men were employes of defendant, and were at the time of the accident returning to the Packard factory with a load of freight. Having overtaken-the truck, the plaintiff and his companion determined to pass it. In doing this plaintiff turned out to the left, while his companion turned out to the right. After passing the truck, the plaintiff in some manner fell in front of the truck, and the left front wheel passed over his legs causing very serious and permanent injuries. The truck, which had a wheel base of 135 inches, was stopped by Heberling before the rear wheel passed over the plaintiff. The accident occurred upon a wide street paved with asphalt, at about 8:30 o’clock in the morning. It had been raining prior to the time of the accident and the pavement was still wet. Plaintiff was an experienced rider of a bicycle. In run ning over plaintiff the truck did not swerve from the straight course upon which it was proceeding. These facts are all undisputed upon the record.
The plaintiff alone was sworn in his own behalf as to the manner in which the accident occurred. He testified that in passing the truck he traveled between the southerly street car track and the truck, about three feet south of the car track; that while going ahead upon a straight course and when approximately 100 feet ahead of the truck his wheel slipped and he fell, his feet being toward the truck and his head toward the street car track. He further testified:
l‘Q. Did you become entangled with the bicycle?
“A. Yes, my leg got tangled in the wheel; there was a little cut there.
“Q. What did yon see the motor truck do at the time ?
“A. I was looking towards it and saw it coming when the fellow on the left side had his head down like that and the other fellow driving was looking towards the river.
“Q. Did you try to get out of the way?
“A. Yes, but I could not, though.
“Q. Why not?
“A. Because my leg hurt and I was caught by the wheel and could not.
“Q. Were you right in line with the truck?
“A. Yes.
“Q. Did the truck turn around away from you or stop?
“A. No, sir.
ftQ. What happened?
UA. It went right over me.
“Q. Did you do anything after it run over you?
“A. No, sir.”
Upon cross-examination:
“Q. Do you recollect that September, this last September, the 21st of September in room No. 1, Judge Mandell tried this case ?
“A. Yes.
“Q. The trial was there then ?
“A. Yes.
“Q. And Charlie was there ?
“A. Yes.
“Q. And you were there ?
"A. Yes.
“Q. And you were both in the room when the other spoke ?
“A. Yes.
Jimmie, do you recollect that at that time — don’t look at Mr. Hanley now — don’t you recollect at that time, Jimmie, that you told us that after you got ahead of the truck you started to go into the curb, and when you were on a slant that your bicycle slipped ?
''A. Maybe I did, I forget now.
“Q. Is that true?
.“A. I cannot say.
“Q. You ask whether or not, whether that statement is true, that you turned into the curb ?
“A. No, sir; it was not true; I was not turning in; I was going straight.
“Q. You now say that you were going straight ahead from the time you were alongside of the truck and that you did not turn either way ?
UA. Yes.
“Q. That is what it is now ?
“A. Yes, sir.
“Q. And that is true ?
“A. Yes.
“ Q. But back in Judge Mandell’s room you told us that you had turned to go into the curb to join Charlie Schneider ?
“A. I don’t know.
tcQ. Now, of course, at that time, Jimmie, Mr. Hanley asked you questions first just as he did here ?
“A. Yes.
“Q. Is that true — I call your attention to his transcript, and I ask you whether Mr. Hanley did not ask you this:
‘ Q. After you got ahead of the truck what happened to you and your bicycle ? A. I was about 100 feet ahead of the truck, over 100 feet and my wheel slid when I was slanting across to the curb.’
“A. Yes, I guess so; I don’t know if I did or not.
“Q. Don’t you know that is it ?
“A. I says that — let us see it. Yes, that is it there.
“Q. Now, afterwards, after Mr. Hanley was through, did I ask you some questions ?
“A. Yes.
“Q. I. ask you, Jimmie, whether at the time, when I was asking you questions before Judge Mandell, if I did not ask you, I asked you about the truck keeping straight ahead ?
“A. Yes.
“Q. The truck kept straight ahead ?
“A. Yes.
“ Q. Did I ask you this question: ‘Q. If that is so, that the truck kept straight ahead and you kept straight ahead and you passed the truck, don’t you know that the truck would not hit you ? A. When I turned in a slanting-wise towards the curb, when I got ahead.’ Did you answer like that ?
“A. I think so.
“ eQ. After you got ahead you turned in slanting ? A. Yes, sir.’
“A. I don’t know.
“Q. Didn’t I ask you then: 6What did you turn in for? A. I was going towards the curb, going slow and waiting for Buddie.’ Is not that right, is that what you said there ?
“A. I can’t remember. * * *
Now at all events after you had got some 100 feet ahead of the truck, your bicycle, or the bicycle gave way, or did you fall over ?
“A. I don’t know how it was; it went over and I fell down, and it fell on top of me.
“Q. Do you recollect whether the wheel broke before you fell ?
“A. No, sir; the wheel did not break before I fell.
“Q. Did the tire burst before you fell ?
“A. No, sir.
“Q. Well, then, you just tumbled off?
“A. I don’t know if I did or not.
eeQ. You tumbled off towards the curb ?
“A. Yes, that is the way I fell.
“Q. Your head towards the railroad track, towards the track ?
“A. Yes, towards the track, and my feet towards the curb, slanting like this.
“Q. Since you were last on the stand, you did not think of anything that made you fall ?
“A. No, sir.
“Q. Didn’t it strike you that your first story in Judge Mandell’s room that you started to cross towards the curb is the best explanation you can have of it ? Is that right ?
“A. Yes.
“Q. You now say you were not cutting across ?
“A. No, sir.
“Q. Did you see anybody around there at the time ?
“A. All I seen was the wagon in front, way up in front
on the same side, the same side I was on away up in front.
“Q. Further out ?
“A. Yes, going the same way we was.
“Q. That was further up than you ?
“A. Yes.
. “Q. Between you and the truck with the men on it, there was not anything ?
“A. No, sir.
“Q. It was bright daylight ?
“A. Yes. Nothing on the road that I could see.
“Q. Nothing on the road ?
“A. No, sir.
“Q. Now, after you fell over towards the car track, where did you hit ?
“A. I hit on my head.
“Q. The back of your head ?
“A. Yes.
“Q. Did it hit hard ?
“A. Yes.
“Q. Did you have any injuries on your head ?
“A. Yes.
“Q. Is that right?
“A. Yes.
e‘Q. "Well, the wheel did not run over your head ?
“A. No, sir.
t(Q. The wheel ran over your legs ?
“A. Yes.
“Q. The injury you had to your head came from your hitting the asphalt ?
“A. Yes.
“Q. You hit the paving when you fell so hard that you had cuts on your head for spme time afterwards, didn’t you?
“A. Only one.
“O. You told the jury that you had pain in your head ? “A. Yes.
“Q. Did you say you had pain in your eyes ?
“A. Yes. * * *
“Q. We agree that the truck did not run over your head ?
“A. Yes.
“Q. Now, then, how long were you, after you fell that way, Jimmie, were you dazed before you moved ?
“A. I was not dazed. I was stunned, but I could see everything. It hurt my head, but I was not dazed or unconscious. I could see, but it hurt.
(lQ. Why didn’t you get up out of the way ?
“A. I could not; I was tangled in the wheel or the pedal; it caught me in the leg right here.
“Q. Where were you tangled in the wheel ?
“A. Underneath it.
“Q. Why didn’t you climb out ?
“A. My leg was in the wheel and I could not pull it out. My head hurt me and my leg too.
“Q. That is the reason you did not get out ?
“A. Yes, the wheel was lying right on me.
“Q. But the wheel was light; you had fallen towards the north. How long was it before you were able to look around ?
“A. That is the way I fell, was looking that way when I fell, my face was that way. My face was towards the automobile.
“Q. How long before you looked around ?
“A. Right away I could see it coming.
“Q. What did you first see when you looked ?
“A. The automobile.
“Q. That is, this motor car?
"A. Yes.
“Q. What did you do then ?
“A. I tried to pull myself out of the way. I was waving like that, but the fellow didn’t pay any attention to me.
“Q. You were waving your hand like that ?
“A. Yes.
“Q. That is, at the time they were — you say they were a hundred away ?
“A. I can’t say whether it was 100 then or not.
“ Q. Well, that is the distance you were speaking about ?
“A. I can’t say; it was coming up more and more all the time.
(SQ. Did you keep on until they run over you waving your hand?
“A. No, sir; I kept waving, and I tried to holler; I hollered as loud as I could. I saw Charlie Schneider come up alongside of the car, I went like that, and saw him facing towards the other fellow.
“Q. What did Charlie do ?
“2. He was talking to the other fellow, waving his hand to the other fellow.
“Q. He was on his bicycle ?
“A. Yes.
“Q. Don’t you remember before Judge Mandell that you said Charlie jumped off ?
“A. He did afterwards.
“Q. Before he waved ?
“A. No, sir.
“Q. When you were waving your hand, don’t you remember that ?
“A. No, sir.
“Q. Did the motor car keep coming straight on right along until it ran over you ?
“A. Yes.
“Q. You say that you tried to get out of the way but could not ?
,(A. Yes.
“Q. The only reason you could not was your bicycle had fallen on top of you and had hit your head and hurt your leg?
“A. Yes.
“Q. You would not know anything that happened after you were run over ?
“A. No, sir; I don’t remember.
“Q. Do you say you did not testify in the other trial that Charles Schneider got off of his bicycle 10 feet in front of the motor truck and waved to the man ?
“A. I said I did not remember.
“ Q. You heard Charlie Schneider talk there, is not that what he said ?
“A. I don’t remember what he said.”
We have quoted thus at large from plaintiff’s testimony because it is claimed it is contradictory and bears upon the duty of the trial judge to grant a new trial. Two juries have failed to agree upon a verdict in his favor, but in this trial he recovered. As against the plaintiff’s evidence there stands the evidence of Heberling, Long, and Blauvelt. Heberling testified that he was looking straight ahead and driving at about 8 or 9 miles per hour, and that he did not see plaintiff until he was under the wheel; indeed, that he did not see him then, but knew something was under the wheel, and that he made an emergency stop. Long testified that he saw plaintiff come up from behind, and:
“He tried to get ahead of the motor car, and, as he tried to turn on his bicycle, his bicycle skidded and threw him under the front wheel.”
Blauvelt testified:
“He appeared to be going alongside the car like that; he put his hand like that and kinder went under the car.”
All three of these witnesses testify positively that plaintiff at no time prior to the accident was lying upon the pavement 100 feet in front of the truck.
A motion for a new trial was made upon the ground (among others) that the verdict was against the weight of the evidence. In disposing of the motion for a new trial the court said, among other things:
“ This is the third trial of this cause in this circuit, and presumably all the testimony which» counsel desired to offer has been presented to the jury for consideration. From this testimony the jury found, as a matter of fact, under the instructions as given by the court, that the defendant company was liable for the injury. This finding I am not disposed to interfere with. The question is now presented in the record for a final determination as to defendant’s liability.”
This case was carefully tried. The claimed discrepancies in the testimony of the plaintiff given on the several trials presented questions for argument to the jury. There was a very sharp conflict in the testimony presenting a case peculiarly for the jury. We do not think it can be said that the court erred in declining to grant a new trial.
As to defendant’s assignment of error relative to the exclusion of a report made by a patrolman who was sent by his superior officer to the scene of the accident after it had happened, the report was properly excluded. Sterling v. City of Detroit, 134 Mich. 22 (95 N. W. 986).
We do not discuss the other errors assigned, but content ourselves with saying we do not deem them well taken.
Judgment is affirmed.
Steere, C. J., andMcALVAT, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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Bird, J.
The defendant’s dog “raised havoc” with plantiff’s turkeys, and the damage which resulted is sought to be recovered in this action. The declaration is based on the statute. 3 Comp. Laws, § 5593 (3 How. Stat. [3d Ed. ] § 4363). The demurrer which was interposed by the defendant raises the sole question whether a turkey is an animal within the meaning of this statute.
The statute upon which the action is planted provides in part that:
“If any dog shall have killed or assisted in killing, wounding or worrying any sheep, lamb, swine, cattle or other domestic animal,” etc.
As turkeys are not specifically named, it is clear that, if they are embraced within the statute, the authority for so doing must be found in the words “ or other domestic animal. ” An animal is defined by Bouvier as *5 any animate being which is not human, endowed with the power of voluntary motion.” This comprehensive definition seems to have been accepted in legal matters as the proper one. 2 Cyc. p. 304; 2 Am. & Eng. Enc. Law (2d Éd.), p. 348.
The courts have dealt with the question from many different angles, and in nearly every instance they have adopted this definition, and have construed the term “animal” so as to include fowls. In Huber v. Mohn, 37 N. J. Eq. 432, the question arose in the construction of a will, where the testator had given “his horses and all other animals on the premises,” and it was held that the words “ all other animals ” carried with them the fowls on the premises. A statute which prohibited domestic animáis from running at large in the highway was construed so as to include turkeys. McPherson v. James, 69 Ill. App. 337. In construing a statute prohibiting cruelty to animals, a goose was held to be an animal. State v. Bruner, 111 Ind. 98 (12 N. E. 103). A like result was reached in the criminal cases of People v. Klock, 48 Hun (N. Y.), 275 and Reg. v. Brown, 24 Q. B. Div. 357.
The question is a new one. in this court, and when it was first suggested by one of the briefs in the case that there were animals which grew feathers, it was a severe strain on the writer’s credulity to accept it without reserve; but an examination of the question has brought with it the conviction that turkeys are animals under the generally accepted definition of that term as used in the law.
The question, therefore, is whether the legislature, in passing the act, had in mind this comprehensive definition of the word “ animal,” or whether it had in mind the popular and well-understood subdivisions of that term, namely, fowls, birds, reptiles, insects, etc. Either view could be accepted without doing violence to the language of the act. But the fact that the statutes involving this question have been generally construed by other courts in ac cordance with the general definition induces us to follow them, and hold that the words “ or other domestic animal ” should be construed as including domestic turkeys.
As the same conclusion was reached by the trial court, its order overruling the demurrer will be affirmed, and the writ of certiorari dismissed, with costs to the plaintiff.
Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Ostrander, JJ., concurred. | [
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Kuhn, J.
This is an appeal from an order sustaining a plea. The complainant sought to have an insurance policy canceled for fraud claimed to have been practiced in its procurement, and to enjoin defendant from bringing suit against the company thereon. The defendant filed a plea setting up the fact that the policy was issued in the State of Michigan, and that no copy of the application or of any further statements made by the insured, upon which the said policy is alleged to have been issued, was indorsed upon or attached to the policy when issued. A preliminary injunction having been issued, a motion was made to dissolve the same, and a hearing was had and the plea argued. The court announced, that he had come to the conclusion that the plea should be allowed, and an order was prepared for his signature. When this order was presented, the attention of the court was called to Chancery Rule 8b by complainant’s solicitor, which provides :
“* * * But in every case in which the bill specially charges fraud or combination, a plea to such part must be supported by an answer explicitly denying the fraud and combination and the several facts on which the charge is founded.”
Thereupon defendant’s counsel asked and obtained leave to file a sworn answer in support of her plea, and, it is claimed, for that purpose only. An order was entered sustaining the plea and permitting the complainant to amend or to take issue upon the plea. The complainant’s solicitor thereupon filed a demurrer to the plea, a replication to the answer in support of the plea, and a replication to the amended plea and answer. The three latter pleadings, upon motion and after notice, were stricken from the files.
The question of practice raised is whether the answer filed in support of the plea in conformity with Chancery Rule 8b creates an issue to which a replication may be filed. It is claimed that the answer was filed simply for discovery, and does not create such an issue; and with this we are inclined to agree. While the numerous pleadings are somewhat confusing, it seems that the question that was properly raised by the plea and decided by the court, and which is here on appeal, is whether complainant can maintain its bill to have the policy canceled for fraud claimed to arise from fraudulent representations made in the application for insurance or medical examination when the company did not attach to the policy a copy of the application or medical examination.
This action is properly brought in chancery under authority of the holding of this court in John Hancock Mutual Life Ins. Co. v. Dick, 114 Mich. 337 (72 N. W. 179, 43 L. R. A. 566); Mactavish v. Kent Circuit Judge, 122 Mich. 242 (80 N. W. 1086); Fidelity Mutual Life Ins. Co. v. Blain, 144 Mich. 218 (107 N. W. 877).
Act No. 180 of the Public Acts of 1907 (3 How. Stat. [2d Ed.] § 8310) provides in section 1:
“ Every policy of insurance issued or delivered within this State on or after the first day of January, nineteen hundred eight, by any life insurance corporation doing business within the State shall contain the entire contract between the parties. And nothing shall be incorporated therein by reference to any constitution, bylaws, rules, application or other writing unless the same are indorsed upon or attached to the policy when issued.”
Section 1 of Act No. 187 of the Public Acts of 1907 (3 How. Stat. [2d Ed. ] § 8312), provides:
“ No policy of life insurance shall be issued in this State, unless the same shall contain the following provisions: * * * Fourth, a provision that all statements made by the insured, shall, in the absence of fraud, be deemed representations and not warranties, and that no such statement shall avoid the policy unless it is contained in a written application and a copy of such application shall be indorsed upon or attached to the policy when issued.”
It is the claim of complainant’s counsel that the words in subdivision 4, “ shall in the absence of fraud,’ apply to the whole subdivision, and that, in case no application is attached to the policy, it was not the intent of the legislature to exclude the defense of fraud. It is important, therefore, to ascertain, if possible, the intent of the legislature in using this language. A careful study of the language of the section convinces us that innocent misstatements or omissions to answer on the part of the applicant shall be held to be simply representations; but, in case that fraud can be shown, they shall be held to be warranties. In no case, however, shall the policy be subject to attack unless such statement claimed to be fraudulent is contained in the written application indorsed upon or attached to the policy when issued. It undoubtedly seemed fair to the legislature that the policy holder should have in his possession, during his lifetime, such statements or representations which might be claimed, after his death, to have been fraudulent, so that he might know, or could be held to know, what the contract was which he had entered into.
In the case of the Metropolitan Life Insurance Co. v. Freedman, 159 Mich. 114, 116 (123 N. W. 547, 548 [32 L. R. A. (N. S.) 298]), which was an action to cancel a policy and enjoin prosecution of a suit at law because of claimed false statements made by the insured in his application, this court said:
“In any event, a complete copy of the application (containing the false representations) was set out on the third page of the policy, which was in the possession of either Jacob, the insured, or Louis, his son, from the time it was issued until Jacob died. It was Jacob’s duty to know that the representations therein contained, and which constituted the inducement for the issuance of the policy, were true, and his silence during the life of the policy is persuasive proof of a fraudulent intent.”
Complainant’s solicitor urges that fraud vitiates all contracts, and that any contract which provides for removing the defense of fraud is void as against public policy; and numerous authorities are cited in support of this contention. In the instant case, it is not a question of the contract being against public policy, but rather what the legislature of this State has declared its policy to be. What is public policy ? The term has frequently been used in a loose, vague, and inaccurate sense. We may, however, safely say that, when we speak of the public policy of this State, we mean the law of the State, whether found in its Constitution, the statutes, or the judicial records. People v. Hawkins, 157 N. Y. 1 (51 N. E. 257, 42 L. R. A. 490, 68 Am. St. Rep. 736); 32 Cyc. p. 1251. A statute of the State must be respected unless it is in conflict with the Constitution of the State or the Constitution of the United States. Whitfield v. Insurance Co., 205 U. S. 489 (27 Sup. Ct. 578).
The people having spoken through their representatives in the legislature, and having prescribed what an insur anee company must do in order to make a defense because of fraud, that requirement being a part of the iaw, it becomes the public policy of the State. The legislature did not say that the company should not defend for fraud perpetrated in obtaining insurance, but did say that, if the company wishes to make this defense, they must attach the application containing the alleged fraudulent statement to the policy. If the company desires to do business in this State, it must do it subject to such valid and reasonable regulations as the State may determine to prescribe.
The failure of the company to attach the application to the policy must be held as an expression on the part of the company of its purpose to waive or relinquish its right to have the application considered as a part of the contract of insurance. Statutes making similar requirements have been passed in other States, and the following is found in 25 Cyc. p. 746:
“ It is provided by statute in several States that, unless a copy of the application be incorporated into or attached to the policy, the company cannot rely upon, or take advantage of, any statements, conditions, or warranties contained in the application. Under such statutory provisions, the application, a copy of which has not been attached to the policy as required, cannot be pleaded or proved in behalf of the company; but, as against the company, the provisions of the application may be pleaded and proved, as the company will not be allowed to take advantage of its own wrong in failing to attach the copy. If the copy attached is not a substantially correct and complete copy of the original application, the statute is not complied with, and the application cannot be relied on by the company.” Cases cited in note.
The supreme court of Iowa, in passing on a similar statute in the case of Rauen v. Insurance Co., 129 Iowa, 732 (106 N. W. 201, 202), said:
“ If we say that the company may disregard this statute and issue its policy without attaching a copy of the application, and still have the right to assert and rely upon such application as a part of the contract, the legislative enactment is reduced to a mere idle form of words, hav ing not the least effect upon the rights of parties as they existed before it was passed. It is the duty of the court, whenever it can be consistently done, to so construe a statute as to give it force and effect, and in such manner as to best accomplish the evident intent of the legislature. * * if
“ The same objection is also fatal to the plea of false and fraudulent representations made to the applicant’s medical examiner, and the demurrer thereto was also properly sustained. The medical examination was part and parcel of the application (Cooley’s Briefs on the Law of Insurance, vol. 1, p. 683d), and no copy thereof was attached to the policy; and, for the reasons already stated, defendant was not entitled to avail itself of any defense on account of matters contained therein. * * *
“ It may be admitted, for the purposes of this case, that the fraud pleaded was sufficient to avoid the policy if the appellant had put itself in position to make use of the defense; but, failing to attach a copy of the application to the policy, it waived its right to take issue upon the application or any part of it. * * *
“ In no State where any such statute is found, whether accompanied or unaccompanied by an express provision excluding proof of false representation of warranty not contained in or attached to the policy, have we been able to find a decision or suggestion by any court that a company, failing to attach or embody the application in its policy when required by statute, may make such omitted matter a basis of defense to an action on the contract. On the other hand, in every State where occasion has arisen to consider it, the holding has been to the contrary. Insurance Co. v. Bank, 48 Kan. 393 (29 Pac. 576); Insurance Co. v. Bank, 48 Kan. 397 (29 Pac. 578); National Life Ass’n v. Berkeley, 97 Va. 571 (34 S. E. 469).
“As we have already suggested, it is within the power of the legislature not only to impose conditions upon the right of insurance corporations to do business in the State, but to regulate the form and substance of all insurance contracts, and prescribe what conditions may or may not be imposed upon the insured. When, therefore, it is enacted that all representations and warranties upon which the company proposes to rely or insist shall be attached to or embodied in the policy, the State is not exceeding its recognized authority, and the company, failing to comply with the provision, must be conclusively held to have elect ed to rely upon the contract as contained in such policy, without reference to any representation or warranty not contained in that instrument. The denial of the right to plead or prove such extrinsic matter is not in any proper sense a ‘ penalty9 for failing to comply with the statute, for the company has a perfect right to waive or forego any advantage it could derive from an embodiment of the application in the policy. It issues its policy with the statute in view; and, failing to do that which, by the terms of the statute, is necessary to allow the application to have ‘ any bearing9 on the rights of the parties, the contract stands as if the omitted writings never existed.99
See, also, Considine v. Insurance Co., 165 Mass. 462 (43 N. E. 201); Nugent v. Life Association, 172 Mass. 278 (52 N. E. 440); Reagan v. Insurance Co., 207 Mass. 79 (92 N. E. 1025).
It is strongly urged that this construction will open the door to all kinds of fraud. However, the company can readily avoid this possibility by annexing the application to its policy, in accordance with the plain intent of the statute.
Even if, in the opinion of the court, this statute might he considered unwise from the standpoint of the public interests, nevertheless, unless it conflicts with the Constitution of the State or of the United States, the legislative determination is final.
The judge of the court below arrived at the proper conclusion, and the order he made is affirmed, with costs.
Steere, C. J., and Moore, Me Alva y, Brooke, Stone, Ostrander, and Bird, JJ., concurred. | [
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Ostrander, J.
Defendant is a corporation. Plaintiff was injured upon premises belonging to defendant October 31,1907. He began this suit March 30,1910. It was tried October 30,1911, and upon the testimony introduced by the plaintiff a verdict was directed for the defendant and judgment entered on the verdict. The bill of exceptions contained all of the testimony, and, the court having been of opinion that it did not tend to prove negli gence on the part of defendant, the single question presented is whether, viewing the testimony most favorably' to plaintiff’s contention, it tends to prove negligence.
The circumstances attending plaintiff’s injury are peculiar. He was one of a party of twelve men who had been, hired to work for defendant and had been carried on a tugboat belonging to defendant from L’Anse to Pequaming. At the latter point defendant had a dock and sawmill. It was intended to disembark the men at some other point, but weather conditions caused a change of the plan, and at some time between 5 and 6 o’clock in the evening the men were put on shore at Pequaming. The testimony for plaintiff tends to establish the following facts: He was a stranger to the surroundings. The men. were directed by the captain of the tug to leave it, go to a tramway, follow the tramway until a stairway leading from it was reached, descend the stairway, and go to a boarding house for the night, leaving their clothing, etc., on the tug. To reach and go upon the tramway it was necessary to climb a pile of timber. Reaching the tramway, the width of which he could not see, the plaintiff, who was in the immediate company of the man wlu> hired him for defendant, proceeded for some distance, when a tram car, drawn by a horse, was heard apparently moving towards them. Some one said:
“ ‘There is a car coming; you better stay here till I see.’ * * * I stepped to one side. * * * I was afraid the car would run over me.”
No light was carried either by the men whom plaintiff accompanied or upon the car, or the horse, and plaintiff, afraid of the approaching car, which he could not see, stepped to the side of the tramway and off of it, falling a distance of 12 or 15 feet. There was a merchandise dock at which the men might have been landed. While the testimony leaves much to be desired in the way of description, of the premises, it is to be inferred and appears to be conceded that the tramway was an elevated structure running from the mill to and over the water; and that cars of lumber and slabs were drawn upon it from the mill and piled alongside the tramway; that the tugboat had tied up at or near the end of the tramway; and that the men were obliged to climb from the boat upon the lumber to the tramway, which was properly constructed for the purposes for which it was used and wide enough to permit the car to pass them. The attorney for the defendant, in moving a peremptory instruction to the jury, admitted that the captain of the boat was, at the time, the agent of defendant. There is no testimony more favorable to the plaintiff than this; there is testimony introduced in his behalf which is less favorable. The duty of the defendant alleged is—
“To provide a safe landing for plaintiff from its said tugboat and to see that proper instructions and directions should be given him when they would not permit him to stay overnight on said tugboat and when no other safe way of getting ashore was told him or known to him, * * * and not to invite him to go upon said premises of the said defendant without instructing him as to the nature and construction of said tramway and premises so that he might avoid the risk to which he was exposed by such nature, construction, and surroundings, and the darkness which existed.”
The learned trial judge said to the jury.
“ Now, I have been unable to discover any failure in the duty that Hebard & Son owed to this plaintiff. There is no testimony in this case to show that this platform, trestle, or whatever it is that the tramway was on, was not properly constructed, was not oí sufficient width to permit a man to pass a car which might be moving on the tramway. There is no testimony to show that the car was not Tunning there in the ordinary course of business. There is no testimony to show that the man who was conducting this party with the lantern was not familiar with the premises and competent to conduct them in a safe way, and there is testimony that the plaintiff was in direct company with the man who hired him, and that they were with the lantern which had been provided for their safety at that time. That he was seriously injured, I think there is no question; but I have been unable to receive information from the attorney for the plaintiff as to in what particular he claims that the defendant company, or firm, Hebard & Son, was negligent in the matter in any degree. And from the testimony as it stands in this case it seems to me that the only proper conclusion to arrive at is that it was one of those unfortunate occurrences which we call accidents which happened to this man under circumstances of comparative safety. I say that because 13 out of the 14 that were in the party were not injured or molested at all, all in the same condition. There is no testimony here to show that there was not ample space at the side of the platform to avoid the car if one was coming. And every particle of testimony he has given, so far as I have been able to follow it, shows that while the injury was occasioned by his falling from the trestle, perhaps under circumstances which would have happened ordinarily and without attributing any fault to himself, as I say, I fail to see that he has shown any fault on the part of the defendant, and therefore I think it is my duty to direct you to find a verdict in favor of the defendant.”
In disembarking plaintiff, the defendant owed him some duty, especially in landing him upon its own premises. The tramway may have been a safe way to travel in the daylight, or in the night by one acquainted with the surroundings. Knowledge acquired generally by one accustomed to work about such premises would be some protection. We cannot say, as matter of law, that defendant’s duty was properly performed. Defendant had undertaken to convey plaintiff from L’Anse to another point. Circumstances required it to. put him ashore, in the dark, at a different place. • Under the circumstances it owed him the duty to direct him by a reasonably safe way from its boat to its boarding house, if such a way existed, and if not, and if the way pointed out was unsafe, or might become so during plaintiff’s journey over it, to either advise him of danger and how to avoid it, or to escort him.
If the jury believed that an escort with a lantern was provided, it would still be a question of fact whether this was a- reasonably sufficient provision, all the circumstances being considered. We suggest nothing concerning the merits of the controversy. We hold that whether defendant discharged its duty to plaintiff is, upon this record, a question of fact for a jury.
The judgment is reversed, and a new trial granted.
Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Bird, JJ., concurred. | [
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] |
Brooke, J.
Complainant files his bill for the purpose of having certain real estate owned by him relieved from a portion of a special assessment tax alleged by him to be unlawful and excessive. He is the owner of the south half of lot 262, assessed on the last ward tax roll at $650. He also owns the north half of lot 263, assessed upon the last ward tax roll at $500. These two descriptions, which, in the year 1910, when the last preceding ward tax roll was made, were owned by two different people, lie side by side, fronting on Third street, for the paving of which a special assessment was levied. The special tax roll prepared by the assessors and approved by the common council assessed the two parcels as one, and fixed the amount to be paid by complainant at the sum of $299.64. Complainant appeared personally before the board of review, and requested that the lots be assessed separately. This being refused, he paid $149.82, being the assessed cost of the improvement at $4.54 per lineal foot for 33 feet, the south half of lot 262, and the further sum of $125, being 25 per cent, of the assessed valuation upon the north half of lot 263. Complainant later petitioned the common council to vacate its claimed lien for the balance of $24.82 against both parcels. The prayer of this petition was not granted, and complainant thereupon filed his bill of complaint. A decree was entered dismissing the bill upon the sole ground that, the sum involved being but $24.82, a court of equity was without jurisdiction in the premises.
We have held in many eases that the value of the land to be affected by the lien, and not the amount of the claim asserted, determines the jurisdiction of the court. Matteson v. Matteson, 132 Mich. 516 (93 N. W. 1079), and cases cited; Wilcke v. Duross, 144 Mich. 243 (107 N. W. 907, 115 Am. St. Rep. 394). Reference is made to the decision in Van Zanten v. City of Grand Haven, post, 282 (140 N. W. 471).
The decree is reversed, and a decree will be entered in this court granting the relief prayed. Complainant will recover costs of both courts.
Steers, C. J., and Moore, Me Alva y, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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Bird, J.
Under an agreed statement of facts in the trial court, the respondent was convicted by a jury of a violation of the local-opt'ion law. He now seeks to have the conviction set aside by this court, on the ground that it is at variance with the law.
It appears from the stipulation of facts that respondent, in the months of August and September, 1913, was operating a lunch and soft drink counter in the village of Ed-more; that he had on sale what was known as “ Old Fort Cider,” which he purchased under a- positive guaranty that it contained no alcohol; that the same was analyzed and found to contain 5.6 per cent, alcohol; that as soon as respondent learned that it contained alcohol he discontinued the sale. It is conceded by the people that respondent bought and sold the cider in good faith and with no intent to violate the lp.w.
It was the claim of respondent that under the case made by the stipulation he was entitled to a directed verdict of not guilty. This claim is based upon the concession of the people that respondent had no intent to violate the law. The contention of the prosecuting attorney was that the question of intent was immaterial, and was not a prerequisite to a conviction. The trial court agreed with the contention of the prosecuting attorney, and instructed the jury that it was their duty to return a verdict of guilty.
The question raised is one of construction of the statute which is charged to have been violated. While most of the offenses defined by the criminal laws involve guilty knowledge or intent, it is admittedly competent for the legislature to forbid the doing of an act and make its commission criminal without regard to the intent of the doer. People v. Waldvogel, 49 Mich. 337 (13 N. W. 620); People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270). If the legislature may create offenses with or without the element of intent, it becomes important to inquire what its intention was with, respect to the passage of Act No. 183 of the Public Acts of 1899.
Section 1 of the act prohibits in positive terms the sale of intoxicating liquors, and no language is used which indicates that the element of intent is to be read into it. Had the legislature intended to make the intent to violate the law an essential element, it would have doubtless used some appropriate language indicating its purpose. If it were necessary to prove intent to violate the law before a conviction could be had, the act would fall far short of doing what the legislature obviously intended it should do; and presumably in this can be found the chief reason why it did not incorporate into the act the element of intent. Laws forbidding the sale of intoxicating liquor and impure foods would be of little use, if convictions for their violations were to depend on showing guilty knowledge. The fact, then, that respondent had no knowledge that the cider contained alcohol and that he purchased it and sold it in good faith, with no intent to violate the law, will not avail him in the face of his admission that he sold it and that it contained alcohol. State v. Tomasi, 67 Vt. 312 (31 Atl. 780); People v. Ingraham, 100 Mich. 530 (59 N. W. 234); People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270); People v. Waldvogel, 49 Mich. 337 (13 N W. 620); 23 Cyc. p. 184.
The trial court, in charging the jury, said to them, in part:
“ Under the admitted state of facts in this case, I deem it my duty to say to you that you should retire and find a verdict of guilty against the respondent in this case. Under the facts X can see no other way out of it. It may seem like a hardship, but X think it is my duty to say this to you; and I think it is your duty to find him guilty under the charge of the court.”
This is said to have been error on the part of the court, in that it invaded the constitutional right of the respondent to have his guilt passed upon by a jury. No impropriety is apparent in this instruction. None of the facts were in dispute; they were all admitted. Under these circumstances it was proper for the trial court to advise the jury as to the law applicable to the admitted facts, and also to advise them what their duty was in the premises. After so advising them, they were permitted to retire to deliberate on their verdict. The instruction given went no further than this, and was clearly within the holding in People v. Neumann, 85 Mich. 98 (48 N. W. 290).
The conviction is affirmed.
Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, St.one, and Ostrander, JJ., concurred. | [
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Ostrander, J.
(after stating the facts). The second of the propositions stated ought to be first considered. It amounts to this: That the court prematurely made a decree and should have proceeded to hear the testimony and thereafter determine the issues and make and enter a decree. In Pratt v. Millard, there was an appeal to this court from a decree dismissing a bill of complaint; the de cree going upon the ground that the complainant in the case had no interest whatever in the matter in issue. It appeared beyond question that the complainant, who was appellant, had no interest in the subject-matter and no right or authority to institute or conduct the suit. There was in the answer the usual general demurrer clause, and the court below permitted it to be urged upon the hearing before the testimony was taken. This court was presented the alternatives of remanding the record with directions to take the testimony offered — a proceeding which would have entailed expense without possible benefit to any one and with a legal result already accomplished— and of affirming the decree of the court below and ending the litigation. It chose the latter alternative and affirmed the decree. It was advised of the former ruling in Gray v. Eldred, 144 Mich. 23 (107 N. W. 719), and pointed out the distinction in the cases and made plain the reasons for each decision.
The decision in Pratt v. Millard was not intended to be an invitation to trial courts to determine suits in chancery in which issues of fact have been joined upon questions raised in the course of the trial. It is still the rule that they shall be determined upon the testimony offered by the parties and that appeals from decrees shall bring up the whole record.
It is said, however, that in the case before us, as in Pratt v. Millard, it conclusively appears that complainant has no interest in the subject-matter and no authority to inquire into the conduct of defendants in the premises; that the court below has made a decree which must inevitably be the decree after all the testimony has been taken and considered. It is the contention of complainant that it is the proper party to begin this suit—
“And the only party who at this time could bring this suit, and that it was necessary at this time to file a lis pendens and commence action, and give notice to the world that the deed was questioned, as otherwise William M. Kirchberg, having the record title, during all the time the contest was being waged over the will, and it has now been over a year, might dispose of the property to a bona fide purchaser for value, and the damage wrought be beyond redemption.”
The statute, 3 Comp. Laws, §§ 9326-9330, as amended by Act No. 241, Pub. Acts 1905 (4 How. Stat. [2d Ed.] § 11042 et seq.), provides for the appointment of, and, in a general way, defines the duties and the powers of a special administrator. The powers of a special administrator cease whenever letters testamentary, or of administration, are granted. His statute powers, meanwhile, are, generally, to collect all the goods and chattels and debts of the deceased and preserve the same for the executor or administrator, who may afterwards be appointed. In the section providing for his appointment (9326), the purpose for which he may be appointed is stated to be * ‘ to act in collecting and taking charge of the estate of the deceased until an executor or administrator shall be appointed.” The condition of the bond required of a special administrator is further indicative of the special and limited nature of his powers and duties. The powers of an administrator and the statutory powers of an executor are more extensive than are those of a special administrator. Among them is the power conferred by section 9363, which is that when there shall be a deficiency of assets in the hands of an executor or administrator, and when the deceased shall, in his lifetime, have conveyed any real estate with intent to defraud his creditors, the executor or administrator may commence and prosecute to final judgment any proper action or suit for the recovery of the same and may recover, for the benefit of the creditors, all such real estate so fraudulently conveyed. In general terms, an executor and administrator are given the right (section 9354) to the possession of all real estate of the deceased, but it is a right to be exercised for the purposes and during the period of the settlement of the estate. Subject to the rights of creditors, the title to real estate passes to the heirs or devisees, in the one case upon the death of the owner, in the other upon the probating of the will. The present action is not brought under the authority of section 9363 to recover lands fraudulently disposed of by the decedent in his lifetime, and the foregoing observations are addressed to the subject of the limited nature of complainant’s powers. It is brought to recover for the heirs or devisees, as the case may be, lands, the apparent title to which is alleged to have been procured from the decedent by fraud practiced upon him — an action which he, if alive, might maintain to recover his lands, or to cancel the evidence of apparent title which defendant holds. It is precisely such an action as Pratt v. Millard, supra. We have examined with care the reasons given by complainant’s counsel for distinguishing the cases. None of them seems to us to be sound. It is pointed out that in that case there were heirs capable of maintaining the action. But the decision goes, not upon the fact that there were heirs, but upon the ground of the right of the heirs and absence of the right of the special administrator to maintain the suit. We have examined the cases to which we are referred, and others, especially Wilmarth v. Reed, 83 Mich. 44 (46 N. W. 1031), which is said to resemble the one at bar in many respects. It seems to us to be wholly dissimilar. Looking at all provisions of the statute, we are obliged to say that it cannot be construed as giving to a special administrator a right to maintain an action to recover real estate, or the title thereto, alleged to be held by a third person against the right of the deceased and his heirs or devisees. It may be observed, further, that there are heirs of Christian Kirchberg; perhaps there are devisees.
Under the circumstances, we do not feel required to reverse the decree of the court below. It will stand affirmed, without costs to either party.
Steers, C. J., and Moors, McAlvay, Brooke, Kuhn, Stone, and Bird, JJ., concurred. | [
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Brooke, J.
(after stating the facts). We will consider such of these propositions as are necessary to a determination.
It was defendant’s position that there could be no recovery under the pleadings, because, the action being in assumpsit, and the bill of particulars notifying him that the plaintiffs’ claim arose out of the sale and delivery to him of the butter in question, the plaintiffs, under the pleadings, could not show that they had, at defendant’s request, repossessed themselves of the product, expended money upon its remanufacture and sale, sold it to third persons, appropriating the proceeds to their own use, and giving defendant credit upon the contract for the net proceeds of the subsequent transaction. When plaintiffs offered proof upon this phase of the case, defendant promptly objected, saying:
“The declaration being on the common counts, and the action, if any, being on a breach of contract, the common counts would not lie on the count for goods sold and delivered, if he took this property back and sold it, which objection was overruled, on the ground that Yeiter had not testified that he took the property back, but that he sold it at the solicitation of Mr. Campau, and counsel for defendant duly excepted.”
And again:
“The defendant objected, because defendant was not prepared to meet a claim as to all the expenses that plaintiffs paid out in working over the apple butter under the declaration on the common counts, but supposed the defendant was sued for the price of the apple butter, and that the matter should not be allowed to go in at all in an action for goods sold and delivered.”
Upon this point defendant cites the cases of Lloyd v. Iron Co., 74 Mich. 83 (41 N. W. 867), and Bullock v. Ueberroth, 121 Mich. 293 (80 N. W. 39).
Plaintiffs cite several cases to the effect that a recovery maybe had under the common counts in assumpsit, where the contract has been fully performed by the plaintiff. This position we do not understand is questioned by defendant. If, after delivery of the product to the warehouse, at defendant’s request, plaintiffs had chosen to sue in assumpsit for the recovery of the agreed price, the action would undoubtedly lie. But that is not the case made out by plaintiffs’ proofs, though it is the one indicated by the declaration. A large part (nearly $2,000) of plaintiffs’ recovery is based upon their claim that, after delivery and acceptance of the apple butter, they, at de fendant’s request, expended money for labor and materials in working over and selling the product. While the cases cited do not specifically cover the point raised, it would not seem difficult of determination upon principle.
The defendant, prior to the time suit was brought, had not received from plaintiffs an account for the goods claimed to have been sold and delivered, nor for the various sums of money claimed to have been expended for labor and materials upon such goods after delivery. The declaration and bill of particulars filed gave defendant no notice of the real claim of plaintiffs.
The purpose of all pleading is to frame an issue upon which the parties may proceed to', trial. The issue here presented by the pleadings was not the one covered by the proofs. The testimony to which objection was made should have been excluded until, by proper amendment, the true issue was presented. It follows that the motion for a directed verdict, made on behalf of defendant at the •close of plaintiffs’ case should have been granted.
As the case must go down for a new trial, it seems proper to consider the third ground for reversal urged by defendant.
Defendant’s argument in support of this claim is that the statute of frauds cannot be satisfied by an alleged acceptance, based solely upon alleged words of the defendant; and that there is no evidence in the record of any unequivocal act on the part of the defendant indicating a receipt or acceptance. The law upon the question is clearly set forth in Alderton v. Buchoz, 3 Mich. 322, and Gorman v. Brossard, 120 Mich. 611 (79 N. W. 903), and cases there cited.
Plaintiffs concede that the law is as claimed by defendant, but insist that in this record there is evidence of acts on the part of the defendant unequivocally indicating an acceptance. The following alleged acts are pointed out:
“ (a) Paying checks of the plaintiffs given for supplies to be used in manufacturing the apple butter, at a time when he was requiring the plaintiffs to use duebilis in payment of local purchases and financing operations, where before he had refused to finance.
“(b) Almost daily being at the mill and looking after the manufacturing of the apple butter and urging plaintiffs to hurry with the manufacture, and saying to plaintiffs that he would stand back of them.
“(c) Getting a place to store the apple butter and directing that it should be stored in the warehouse which he had obtained the use of for that purpose, and being personally present at different times while it was being stored.
“ (d) Taking samples of the apple butter to send to people to whom he hoped to sell or was selling it to; seeing different parties about purchasing, and trying to make sales after the delivery in the warehouse.
“(e) Directing plaintiffs to work over the apple butter for him and sell it for him.
“ (/) Putting off the time of settlement upon the pretext that when the apple butter was all disposed of he would then settle up and pay for the same.”
While the question is not without difficulty, it seems plain that some, at least, of these alleged acts are not acts, within the meaning of our decisions, and some are clearly not unequivocal:
(a) The defendant was engaged in the banking business, and his acts in the premises might very properly he referred to a proper performance of his duties in behalf of his principal, the bank.
(b) Defendant’s presence in plaintiffs’ mill may have some legal significance as an act. His alleged instructions to them are, at most, mere words.
(c) Here, again, the only evidence that plaintiffs offer of the act is that defendant told them he had secured the warehouse.
{d) Defendant, on behalf of his principal, the bank, was vitally interested in collecting the claim of the bank. To that end he might very properly urge persons to buy plaintiffs’ product. Was this conduct unequivocal ?
(e, /) These are obviously words instead of acts.
Upon a retrial the jury should be instructed that an acceptance cannot be predicated upon mere statements alleg ed to have been made by defendant, but must be shown by some act or, acts, on the part of the defendant, unequivocally indicating such acceptance.
The judgment is reversed, and a new trial ordered.
Steere, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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Clark, C. J.
Plaintiff lessor sued defendant, assignee of the lessees, for certain instalments of rent and for remainder due on a demand arising upon agreement between lessor and lessees for remodeling the premises, a room in the Buhl building, Detroit. Defendant prevailed in a trial without a jury. Plaintiff has appealed.
The lease, made April 6, 1925, provides against assigning by the lessees without written consent of the lessor, with right of forfeiture for breach. The lessees, Stephens and VanPoperin, in September, 1925, assigned all interest under the lease to defendant, a corporation. It occupied the premises and paid rent until November, 1930, and occupied without paying rent during November and December, 1930, and January, 1931. The lessor did not expressly consent to the assignment. It accepted rent monthly for several years from defendant, but all invoices for rent or for other items were sent to lessees. Lessees wanted privity of contract between assignee and lessor, they to become merely guarantors. As late as May, 1929, lessor expressed willing ness to consent, only on condition that indebtedness to it be paid, but it was not paid. Lessor’s conduct is consistent only with refusal of privity of contract with assignee. Doubtless lessor waived right to forfeit for the breach. Assignee held as such and not as upon a lease to it.
There was then no privity of contract between the parties, lessor and assignee of lessees, but there was privity of estate, for the assignee took lessees’ whole interest in the demised premises and took and continued in possession, and paid rent.
The covenant to pay rent runs with the land, and assignee is liable thereon.
In Lee v. Payne, 4 Mich. 106, it is said:
“But an assignee of the lessee for the whole term is liable for the rent reserved in the original lease, or for any waste he may commit. The covenants to pay rent and keep the premises in repair, etc., run with the land, and it is well settled that an assignee, at common law, is liable upon any of the covenants of the lease, that run with the land.”
See, also, Darmstaetter v. Hoffman, 120 Mich. 48.
And from 36 C. J. p. 373:
“Where a lessee assigns his whole estate in all the demised premises, the assignee is liable to the lessor for the whole of the rent reserved in the lease, and it is immaterial that the lease provided that it should not be assigned without the consent of the lessor. To be effectual the assignment must be such that a privity of estate is created between the original lessor and the assignee, and it must be accepted by the assignee. ’ ’
See, also, 18 Michigan Law Review, 284.
It follows that plaintiff was entitled to judgment for rent.
With respect to the claim for remodeling arising upon agreement between lessor and the lessee^, les sor’s studied course of conduct avoiding’ privity of contract with defendant, assignee of lessees, operates here to its disadvantage, for no novation or privity of contract in respect of this claim is found, as the trial judge correctly held. 36 C. J. p. 375. An argument is made upon a certain letter written to plaintiff, but it is not sustained. The elements of novation are well stated in Harrington-Wiard Co. v. Blomstrom Manfg. Co., 166 Mich. 276, and need not be repeated. We are, as to this .claim, in accord with the trial court.
It follows that judgment is reversed as to the claim for rent, and remanded for judgment for plaintiff for the amount due. In other respects, judgment affirmed, costs to appellant.
There is here, too, an appeal from order dissolving attachment levied on defendant’s furniture and equipment on the demised premises. The only point argued is on 3 Comp. Laws 1929, §§ 14811, 14812, permitting order restoring property to defendant, and on Price v. Reed, 20 Mich. 72, holding a circuit court commissioner without power to dissolve an attachment upon application of a defendant not entitled to have the property restored to him.
Defendant’s lack of such right is asserted on a provision of the lease giving the lessor lien for security for rent and for performance by the lessees upon all goods, wares, fixtures, etc., put on the demised premises by the lessees, with right of enforcement similar to that employed in chattel mortgages.
None of this personal property was put on the premises by the lessees. All of it was taken there by defendant assignee.
The defendant assignee here became liable by privity of estate (not by privity of contract) on covenants that run with the land, including, as we have seen, that to pay rent. The provision of the lease for lien on personal property of the lessees placed on the premises was personal, related to personal chattels, and did not run with the land. This provision, therefore, was not binding on the assignee of the lessees, as it was bound only on covenants running with the land. So plaintiff has no lien, under the provision of the lease, on the said personal property of defendant. 2 Underhill on Landlord and Tenant, § 642; 1 Tiffany, Landlord and Tenant, pp. 962-998; 2 Taylor’s Landlord and Tenant (9th Ed.), § 437; 15 C. J. p. 1241; Sloman v. Cutter, ante, 372; note 52 L. R. A. (N. S.) 979; Davidson v. Minnesota Loan & T. Co., 158 Minn. 411 (197 N. W. 833, 32 A. L. R. 1418); Mayer v. Dwiggins, 114 Neb. 184 (206 N. W. 744, 42 A. L. R. 1102); 17 Michigan Law Review, 512; 16 Michigan Law Review, 49.
Order affirmed.
McDonald, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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McDonald, J.
This action was brought to recover damages for injuries resulting in the death of Fred M. Boylon, the plaintiff’s decedent, who was killed when an automobile in which he was riding-crashed into a truck standing across the road on M-16 at a curve two miles west of Portland. The automobile belonged to Mr. Boylon and was being-driven by his son, Tom. The time of the accident was about six o ’clock in the morning of February 27, 1930. It was dark. Mr. Campbell, a friend of the Boylons, was riding- with them. They left Grand Rapids about five o’clock in the morning, intending to go to Detroit. The plaintiff says it was not raining- or misting, and that the pavement was dry until they reached the point where the collision occurred; that the lights of the car were full on showing a distance of 200 feet ahead,- that after they had traveled about 40 miles and were rounding a curve at a speed of 35 miles an hour, they saw the defendant’s truck standing across the road about 100 or 125 feet away; that the driver applied his brakes and would have been able to avoid the collision had it not been for a strip of undiscernible ice close by where the truck was standing; that when the automobile hit this ice it skidded into the rear end of the truck despite the efforts of the driver to control it. As a result of the impact, the three occupants of the car were thrown out and both of the Boylons were killed. It is the claim of the plaintiff that her decedent was free from negligence, and that the proximate cause of the accident was the negligence of the defendant in leaving the truck standing unlighted across the highway.
The defendant denies that it was negligent, and claims from the evidence presented by the plaintiff that her decedent was guilty of contributory negligence as a matter of law. On this ground, and that there was no evidence of its negligence, the defendant moved for a directed verdict at the close of the proofs. The motion was granted, and a judgment entered in favor of the defendant. The plaintiff has appealed.
In considering the question of contributory negligence, the condition of the road from Grand Rapids to the place of the accident is important, because it bears on the care which the driver of the automobile should have used in approaching the truck. On that question the evidence is very conflicting, but there is no dispute about the existence of a strip of ice at the point of collision. As the court’s ruling on the motion for a directed verdict assumes the truth of the plaintiff’s testimony, we take it as a fact that the pavement from Grand Rapids to the place of the accident was dry, and that the driver of the automobile had no reason to expect ice anywhere on the road; that his lights were full on and he could see 200 feet ahead except in rounding the curve, where his vision was reduced to 100 feet; that when he first saw the truck it was 100 or 125 feet away; that he was then driving around a curve at a speed of 35 miles an hour and could stop within a distance of 60 or 65 feet on dry pavement. The question is, Why did he not stop? Was it because of ice on the pavement or because of unreasonable and improper speed under the circumstances? The plaintiff says it was a question for the jury, and cites Diederichs v. Duke, 234 Mich. 136, in support of her contention. In that case, Mrs. Diederichs was driving behind a speed-wagon with a trailer attached. She claimed she was going 12 miles an hour; that she had her dimmers on, but could see 20 or 25 feet ahead; that she could stop her car on dry pavement within 10 or 12 feet; that she saw the trailer and immediately applied her brakes'; that she would have been able to stop had it not been that just behind the trailer was a small strip of ice over which she skidded, unable to control her ear and avoid a collision. In these circumstances this court held that whether she was negligent was a question for the jury. In that case she was driving 12 miles an hour or less when she hit the ice. In the instant case, the driver of the automobile is dead and no living witness assumed to estimate the speed of the car when it hit the ice. But the force of the impact with the truck is evidence of its speed. It struck the corner of the rear end of the truck, tore loose and ran from 25 to 50 feet along the shoulder of the road before it slowed down and stopped in some loose gravel. It did not turn over. The occupants were thrown out by the force of the impact. From the serious results to the occupants of the car, and the fact that it was not stopped by its collision with •a standing truck, it is clearly evident that it was traveling at a high rate of speed. Was the speed unreasonable and improper under the existing conditions! Was it due to the negligence of the driver? The evidence shows that, regardless of the icy strip of pavement near the truck, he had time and opportunity to stop his car before the collision, or at least to reduce the speed to such an extent as to render the impact comparatively harmless. He saw the truck when he was 100 or 125 feet from it. He knew it was standing across the road, an obstacle in his way. It was a warning to him of danger. He was driving in the dark around a curve. The situation called for the exercise of care in approaching the truck. He had 100 or 125 feet to travel before he reached it. Over this'distance the pavement was dry until near by the truck. The plaintiff’s witness, Mr. Campbell, did not know how far the icy condition extended in the direction from which they were coming, but Mrs. Shindorf, also a witness for the plaintiff, testified: “There wasn’t any ice except at the truck. ’ ’
The distance which the driver of the car had to travel on a dry pavement before he reached the truck gave him ample time and opportunity to stop and avoid a collision. That he made no reasonable effort to do so is evident. Instead, he went forward and covered the distance of 100 or 125 feet at such a speed that he crashed into the truck with a force so great that the three occupants of the car were thrown out and two of them instantly killed. Because he had timely warning of the danger, and by the exercise of reasonable care could have avoided it, the driver of the car was guilty of contributory negligence. The icy pavement ‘ ‘ right near the truck ’ ’ may have been a contributing factor in producing the injury, but if so it was slight. The principal cause was the speed of the car at the time it reached the ice. In view of the circumstances, it must be held to have been unreasonably excessive. The court did not err in directing a verdict in favor of the defendant on the ground that the plaintiff’s decedent was guilty of contributory negligence as a matter of law. The judgment is affirmed, with costs to the defendant.
Clark, C. J., and Potter, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred. | [
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] |
Sharpe, J.
On July 13, 1928, the defendant Crowley-Milner & Company sold a gasoline air pressure stove, known as the “Nesco,” to Mrs. Whittemore, the grandmother of the plaintiff Lucia C. Pickens. The price was $33, $3 of which was then paid and a contract entered into for the payment of the balance in monthly payments of $5 each. Mrs. Lucy McCloskey, a daughter of Mrs. Whittemore, was with her at the time, and acted as spokesman for her in making the purchase. No demonstration of its operation was made. The stove was delivered the next day, crated, but was easily uncrated and set up for use. With it came a book of printed instructions for operating it. Mrs. McCloskey testified that she read the instructions several times, and then tried to light the stove, but “could not get the burner to work right. It flared up, it didn’t get blue as it should get, it flamed up to the ceiling;” that she called the store by telephone, and later got in touch with the salesman who made the sale, and after informing him as to “how it was working,” he told her to “give it a little mo^e air and it will be all right; ’ ’ that a few days later she again tried to start it, but ‘ ‘ could not get any results; ’ ’ that—
“Mrs. Pickens got out of bed; I was late, she wanted to help me. I was in the kitchen; I had just left the room to come out; it was burning, it flared up, and I thought she would try to fix it for me.
“Q. How far had you got out of the room?
“A. A few feet, just out of the door; I heard the explosion, and I heard her scream, and I dropped the wood I had in my hand and ran.”
The plaintiff Mrs. Pickens testified that she had not seen the book of instructions; that—
“Wednesday morning my aunt asked me to come down and help make breakfast for the men. When I got into the kitchen, I observed the gasoline stove; the flames were shooting to the ceiling. I went by the stove; I saw it flaming, and I tried to shut it off. The stove itself was burning, I suppose the burner; the flame was shooting to the ceiling. I mean the flame that was shooting out of the burner.
“Q. What did yon see other than that about the stove?.
“A. That was all; as I bent to look at it, it exploded.
“Q. What did yon notice as to the presence or absence of gasoline anywhere?
“A. There was some in the tray.
“Q. When did yon see that?
“A. As I bent down.
“Q. When did you bend down?
“A. I tried to put the fire out so that it would not explode.
“Q. Did you notice anything about the other part of the stove, about the lighter or anything of that kind?
“A. No, I didn’t have time.
“Q. Where was the gasoline that you observed?
“A. In the tray.
“Q. The tray was where, with respect to the flame?
“A. Under the burner.
“Q. How far could you stoop down; how far did you get about your operation there ?
“A. I just bent down as the stove exploded.
“Q. You just bent down?
“A. I just bent down and that is all I remember.”
She was seriously injured as the result of the explosion, and brought this action against CrowleyMilner & Company and the National Enameling & Stamping Company, Inc., the manufacturer of the stove, to recover the damages due thereto.
Her husband, Clarence Pickens, also brought action to recover the loss he has sustained by the injury to her. By agreement of counsel, the two causes were “tried simultaneously before the same jury.”
At the conclusion of the plaintiffs’ proofs, counsel for both defendants moved for a directed verdict. After argument, the motion was granted as to the defendant Crowley-Milner & Company and denied as to the other defendant. Proof was then'submitted by it, and at the conclusion of all the proofs the motion was renewed and granted, and judgments entered in both cases for the defendants. Plaintiffs have appealed therefrom.
1. Liability of Crowley-Milner & Company.
No contractual relation existed between this company and either of the plaintiffs. The stove in question was purchased by it from a reputable manufacturer and was delivered, crated, to the purchaser, Mrs. Whittemore. The liability of a vendor in such a case was considered at some length in Pesavento v. Du Pont de Nemours & Co., 240 Mich. 434. The general rule applicable thereto, as stated in Huset v. Case Threshing Machine Co., 57 C. C. A. 237 (120 Fed. 865, 61 L. R. A. 303), was quoted with approval as follows:
“The general rule is that a contractor, manufacturer, or vendor is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture, or sale of the articles he handles.”
The exceptions thereto were then stated, and it is upon the third one of these that plaintiffs ’ attorneys rely.
‘' The third exception is that one who sells or delivers an article which he knows to be imminently dangerous to life or limb to another without notice of its qualities is liable to any person who suffers an injury therefrom which might have been reasonably anticipated, whether there was any contractual relations between the parties or not.”
In placing a construction upon this exception, Mr. Justice McDonald, speaking for the court, said:
“The true basis for liability, where knowledge is required, is not negligence at all, but intentional wrong. When a vendor knows that an article is imminently dangerous, and with such knowledge sells and delivers it to another without informing him of its dangerous character, he is not guilty of negligence, but of an intentional wrong for which he is liable to any one injured by its use regardless of contractual relations. In such a case contractual relations are immaterial. The liability is apart from the contract. So in the instant case, if the defendant had sold and delivered this fuse to the mining company, knowing that it was defective and for that reason dangerous, and had failed to inform the mining company of the defect, it would be liable to the plaintiff who was without fault in using it. Without knowledge of the defect its only liability would be on the contract to the purchaser. It does not appear that the defendant knew of the defect in the fuse. The evidence is clear that it had no such knowledge. It received the fuse from the manufacturer and delivered it to the mining company in the original package. It was liable on its contract to the purchaser and to no one else. ’ ’
Under this holding it seems clear that no liability attached to this defendant by reason of the sale and delivery of the stove to Mrs. Whittemore.
But it is insisted that, by reason of the conversation on the telephone between Mrs. McCloskey and the salesman of the defendant, it “was for the jury to say whether or not the vendor had knowledge of the imminently dangerous condition of the stove.” This conversation has been quoted. The only advice given by the salesman was that Mrs. McCloskey should “give it a little more air.” In disposing of this claim on the part of the plaintiffs, the trial court said:
“I can see no ground for that contention whatever. There is nothing here to show that the added air pressure brought about the conflagration or the explosion, or whatever it should be rightly designated. Even conceding that that assurance — that the stove was all right — was made, and conceding that what was needed by Mrs. McCloskey was the employment of additional air pressure, there is nothing here that would enable you to say on your oath, or enable me to say, that the use of that added air pressure brought about the explosion.”
A careful reading of the record satisfies us that the above statement was warranted, and justified his action in directing a verdict for this defendant.
2. Liability of the Manufacturer.
This claim is predicated upon the fact that there were defects in the construction of the stove; that such defects rendered it imminently dangerous, and that whether the explosion was due thereto was a question for the jury. The claimed defects are, (a) “That the lighter of one of the burners had dropped down” and “would not stay up,” and that .(b), as testified by Mrs. McCloskey, “there was a nut gone, a small nut, and we could not find that nut in the whole kitchen; I swept there and hunted for it.” She also testified:
“I didn’t see the nut was off when I was lighting. The nut knocked my niece down. The mark of that nut was on the back of her neck. You could see its size. I don’t know how the nut could do it.”
These two statements cánnot well be reconciled. A similar stove was offered in evidence and subject to examination by the court and jury.
(a) The lighter spoken of is referred to by counsel and other witnesses as an operating lever. In discussing this claim the trial court said:
“It was claimed at the outset of this trial, at the least, the testimony up to a very late period in the trial, seemed to proceed upon the theory that the operating lever which controlled the end lever of the apparatus failed to stay up, but fell down and continuously kept in a fallen position, and that thereby the injuries in question were caused, and of course, that flooded it completely. It was shown from testimony by the defendant that that end control lever had absolutely nothing whatever to do with the feeding of the gasoline to the fourth burner, which was the one which was in operation and which ignited, and which burned the plaintiff. ’ ’
(b) It is insisted that the absence of the “nut,” also spoken of as a “valve drain plug,” permitted gasoline to leak out of the tank in which it was kept, and that its ignition caused the explosion. In the printed instructions as to the manner of generating the gas and lighting the main burner, it is said:
“Be sure main burner valve, end burner valves and match lighter valve are closed. Open fuel valve one turn.
“Be sure packing nuts do not leak. Tighten them enough so that valve stems turn easily, but not too freely. ’ ’
Instructions for lighting were then given, followed by:
“If burner continues to burn with yellow flame, it shows that mixing chamber has been flooded.
“To drain: Close all valves and unscrew drain plug in mixing chamber, drain gasoline into small cup, replace plug and generate as instructed.”
Had this nut or plug to a drain valve been missing, Mrs. McCloskey would surely have discovered it. If it struck Mrs. Pickens in the neck, it must have been attached to the stove at the time of the explosion. It is clearly apparent, as found by the trial court, that this' explosion was caused by the flooding of the burner by Mrs. McCloskey when attempting to light the stove.
The judgments are affirmed.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Btítzel, JJ., concurred. | [
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Sharpe, J.
Pursuant to a written application made therefor, the plaintiff, on January 7, 1930, issued to defendant, a physician, a policy providing for the payment of a weekly accident indemnity of $50 and a weekly sick indemnity of $50, with a total principal sum payable in the event of death resulting from accident in the sum of $15,000. An annual premium of $152, payable semi-annually on January 7th and July 7th, was provided for. The specific agreement as to illness reads as follows:
“In the event that the insured, while this part is in force shall suffer from any bodily sickness or disease, which is contracted and begins during said time, the company will pay said weekly sickness indemnity for the period, not exceeding fifty-two consecutive weeks, during which the insured shall be totally and continuously disabled by such sickness or disease from performing each and every duty pertaining to his occupation.”
In February, 1930, the defendant slipped on some steps, fell, struck on his back, and, as later appeared, sustained a fracture of his first lumbar vertebra. He at first thought his injury was nothing but bruises, and made no claim under the policy. In May following, he noticed a marked increase of fatigue, and in June, while joining in a parade, he fell, and later spent some time at a resort. He thereafter consulted several eminent doctors, ceased his professional work, and made claim for compensation under the terms of his policy. Plaintiff denied liability. Defendant brought an action therefor in the circuit court, whereupon the plaintiff filed the bill of complaint herein, alleging untruthful answers to questions in the application signed by him, amounting to fraud, which induced the issuance of the policy, and praying that it be canceled and defendant restrained from prosecuting his action at law thereon. The defendant answered, denying the right of cancellation, and by cross-bill prayed for a decree for the amount due him under the policy.
The trial court, after the submission of the proofs, held with the plaintiff, and entered a decree as prayed for in the bill of complaint, and dismissed the crossbill. Defendant has appealed.
In the application the following questions were asked and answered by the defendant as indicated:
“17. Are you now suffering from or have you ever had tuberculosis, paralysis, rheumatism, hernia, appendicitis, syphilis, internal ulcers, gall stones, epilepsy, or any chronic or periodic mental or physical ailment or disease, or are you now crippled or maimed, or have you any defect in hearing, vision, mind or body? No.
“18. Have you during the past five years had any medical or surgical advice or treatment? In (State year) Mich. 1929 for (State cause) Boil in nose lasting (State duration) $10. Surgeon Fees. In ............for ............lasting........ In............for ............lasting ........
“19. Have you ever had or ever been advised to have a surgical operation? No.
“20. Do you understand and agree to each of the following statements lettered (a) (b) and (c) ? (a). That the falsity of any answer in this application for a policy shall bar the right to recovery thereunder, if such answer is made with intent to deceive or materially affects either the acceptance of the risk or the hazard assumed by the company; (b) that this proposed insurance shall not take effect until this application has been accepted by the company and the policy issued; (c) that you will pay for this policy an annual premium of $152 as follows: semiannually $76 Jan. 7th, July 7th, (Answer ‘Yes’ or ‘No’ and if the latter give full information) Yes.”
The defendant, called for cross-examination, testified that in the year 1926 he was a student in the medical department of the University of Michigan. As such he was entitled to treatment by members of the faculty free of charge, except in cases of serious illness or operations; that he had some “sinus trouble” and one day after class he consulted the professor, Dr. Furstenburg, about it and was advised to spray his nose, that he probably had a little sinus infection; that he did so, and never had a recurrence of the trouble thereafter; that about six months later he noticed a numbness in one of his hands and awkwardness in his dancing, and stopped after class and consulted the professor, Dr. Camp, about it, and was told to take some static electricity; that he went to an interne who “put some static on my right arm and on my leg a little bit # * # and that was the end of that. I never went back,” and that there was no recurrence of-the numbness until after his accident. He was asked: “Your second difficulty was diagnosed as hysteria?” and answered: “I asked Doctor Camp — I said ‘That must be h-y’ and he laughed. I don’t know what Doctor Camp’s diagnosis was at the time.”
Plaintiff’s denial of liability is based on these two occurrences. In support of its claim that it should have been informed thereof in defendant’s answer to question 18 above, it relies upon a letter written to the plaintiff’s medical director by the defendant on October 4, 1930. After stating’ that he had been informed by plaintiff’s claim agent of its denial of liability, based upon the fact that he “had an attack of sinusitis several years ago and that I also had an attack of numbness and partial loss of control of the extremities,” he said:
“The diagnosis in each case was right maxillary sinusitis and hysteria, respectively. I made a complete recovery in each case and considered myself entirely well, until the onset of the present illness last spring.”
He then discussed at some length the opinion of the physicians, connecting his then troubles with these occurrences, copies of which had doubtless been furnished him. He further testified that after his injury in February, 1930, above referred to, he again felt an awkwardness in his legs and numbness in his hand; that it was followed by marked fatigue; that he consulted a doctor, X-rays were taken, and the fracture above referred to was discovered. The doctor testified that he “found him suffering from what I interpret as a multiple sclerosis.” He defined this as “a disease of the nervous system, the cause of which we do not know,” and advised the defendant “to cease work and to rest.” He further testified that numbness in the hands and awkwardness in the gait are not necessarily symptoms of this trouble, and said that it was sometimes mistakenly diagnosed as hysteria, and that “there is no settled opinion as to what can cause multiple sclerosis.”
The testimony of Dr. Camp, the professor whom defendant consulted in 1927, was taken by plaintiff by deposition. We quote therefrom:
“Q. Was he treated privately or in hospital?
“A. He was treated casually.
“Q. What do you mean by casually?
“A. He was at that time either a senior or assistant in the hospital and he came to me complaining that he had some numbness in one hand. He was worried and I examined him and decided that he did not have any occasion for worry, that it was one of the very frequent cases of the student imagining something might be wrong with him having studied the subject and we treated him with some electricity and he was all right.
“Q. How many times do you recall that you treated him?
“A. Just once. He was all cured in 20 minutes.”
Section 12444, 3 Comp. Laws 1929, reads as follows :
“The falsity of any statement in the application for any policy covered by this chapter shall not bar the right to recovery thereunder unless such false' statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer. ’ ’
The question here presented is whether defendant’s answer to question 18 was made with intent to deceive or materially affected either the acceptance of the risk or the hazard assumed by the insurer. The trial court found that it was not made with intent to deceive, and we are satisfied that such finding was justified. But he found that the answer “was a concealment of the real facts; or at least an omission” to state them, and that it “materially affected the hazard assumed hy the plaintiff, or at least materially affected the acceptance of the risk.”
The record clearly discloses that at the time the application was made there had been no return of either of the slight ailments with which the defendant was suffering at the time he consulted his instructors in 1926 and 1927 and was given advice as to treatment. That he was seemingly in perfect health at the time he made the application is apparent.
The question presented is whether his ailments when at college were of such a nature as imposed upon him the duty to disclose relative to them in his application. In view of the finding of the trial court, we have set forth the evidence relating to them at some length. In Plumb v. Penn Mut. Life Ins. Co., 108 Mich. 94, it was held (syllabus):
“To have been ‘attended by a physician,’ or to have ‘consulted one professionally,’ within those terms as used in an application for life insurance, there must have been an attendance or consultation with reference to some disease or ailment of a serious character, affecting the person’s sound bodily health, and not in relation to a mere temporary indisposition, or an ailment trivial in its nature, such as all persons are liable to who are nevertheless considered to be in sound health generally.”
This holding has been cited with approval in Rhode v. Metropolitan Life-Ins. Co., 129 Mich. 112; Blumenthal v. Berkshire Life-Ins. Co., 134 Mich. 216 (104 Am. St. Rep. 604); Bullock v. Mutual Life Ins. Co., 166 Mich. 240; and Woodland v. Liberty Life Ins. Co., 241 Mich. 600. The authorities supporting this doctrine will be found collected in an annotation in 63 A. L. R. 847.
Counsel for the plaintiff urges, that these were all ‘ ‘ actions at law in which the court was passing upon instructions to a jury.” That an insurance company may evade decision of the question of fact by a jury by seeking cancellation in chancery in no way changes the law applicable to the facts presented. The hearing here is de novo, and the burden cast upon us of determining whether the ailments of the defendant were of a serious character, affecting Ms sound bodily health, or were so trivial as to amount to a mere temporary indisposition.
We have examined the authorities cited by counsel (Krajewski v. Western & Southern Life Ins. Co., 241 Mich. 396; Mutual Life Ins. Co. v. Geleynse, 241 Mich. 659 [56 A. L. R. 702]; Metropolitan Life Ins. Co. v. Carter, 252 Mich. 432, and New York Life Ins. Co. v. Bahadurian, 252 Mich. 491), and have no fault to find with the conclusions reached in them on the facts presented. But a careful reading of the proof here submitted satisfies us that the omission of the defendant to state in the application that he advised with his instructors about his then ailments did not avoid this policy.
The decree entered will be reversed and set aside, with costs to appellant, and one may be entered here granting the defendant the relief prayed for in his cross-bill.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Sharpe, J.
On March 1, 1926, the Detroit Hotel Company executed a mortgage on certain real estate owned by it to the Union Trust Company as trustee to secure bonds to the amount of $4,100,000, bearing interest at 6% per cent. On March 8th following, it executed a second mortgage on the same property to the Guardian Trust Company as trustee to secure bonds in the sum of $1,500,000, bearing interest at 7 per cent. The purpose of these loans was to obtain money with which to build and equip a hotel on the property, and this was done; $1,425,000 Tace value of the 7 per cent, bonds were issued.
On August 12, 1929, the Detroit Properties Corporation, a Michigan corporation, at that time the owner and pledgee of all of the 7 per cent, bonds which had been issued, filed a bill of complaint, alleging that there was then due and owing to it for interest thereon a sum in excess of $190,000; that the hotel company was indebted to it in the further sum of $68,000 for moneys advanced to it, and was indebted to other- creditors in the sum of at least $65,000, and that there were delinquent taxes on said property for two years amounting to $60,000 or more, and that if the property of the company was “properly safeguarded, protected and operated,” sufficient moneys would be realized to pay such indebtedness, and prayed for the appointment of a receiver to the end “that the rights of the bondholders and creditors may be preserved and protected.” It was stated in the bill of complaint that this mortgage was subject to the prior mortgage to the Union Trust Company, trustee, above referred to.
An order appointing the Guardian Trust Company was made on the same day. It recites that an answer of the hotel company had been filed, but it does not appear in the record. In it the receiver was ordered to collect the rents, income and profits on the hotel property—
“and therefrom when it deems it advisable, to pay any prior accruing interest or principal on the mortgage to the Union Trust Company, trustee, or any taxes which aré a lien against said property;”
to make certain other payments and “to hold the remainder thereof for distribution as this court may order.” On August 26, 1929, and several times thereafter, on petition of the receiver, the court ordered it to pay to the Union Trust Company as trustee certain sums to apply on the principal and interest due on the bonds secured by its mortgage.
On April 3, 1930, there was filed in said cause a notice of the merger of the Guardian Trust Company with the Union Trust Company under the name of the Union Guardian Trust Company. This company thereafter proceeded to act as trustee under the first mortgage and as trustee under the second mortgage and as receiver appointed by the court in the case then pending.
After obtaining permission to do so, the Union Guardian Trust Company as trustee under the first mortgage, on March 25, 1931, filed a bill to foreclose it, and on April 7th an order was entered appointing it receiver in that suit, and it at once entered into possession of the mortgaged premises. It then as trustee filed a petition to intervene in the Detroit Properties Corporation’s suit and for the entry of an order directing itself as receiver in that suit to pay to itself as plaintiff in its foreclosure suit the moneys in its hands as such receiver. Pending the hearing of this petition, the receiver petitioned the court for instructions as to the payment of $53,532.36 and the disposition of certain uncollected accounts then in its hands as such receiver.
A hearing on the petition to intervene was thereupon had and proofs taken, after which the court entered an order denying the same. In that order the court directed the receiver to hold “all funds now in its hands, whether collected or uncollected, until further order of this court.” From this order the trust company as trustee in the first mortgage has taken an appeal. Confusion results from the trust company acting in so many different capacities with conflicting interests.
Appellant first urges that as the moneys in the hands of the appellee were received by it from the rents and profits of the hotel property, it, as trustee under the first mortgage, is entitled to it under the provisions of Act No. 228, Pub. Acts 1925 (3 Comp. Laws 1929, §§13498, 13499). The trust mortgage contained an assignment of the rents and profits of the property mortgaged as permitted by that act. In Security Trust Co. v. Sloman, 252 Mich. 266, 274, it was said:
“The proper constructionnf the act does not seem difficult. It will be given effect in harmony with its language and purpose if we hold, and we do:
‘ ‘ 1. That the trustee is entitled to the rents upon default and performance of the statutory conditions. ’ ’
The statutory conditions (section 2) required the trustee, if he desired to take advantage of this provision, to file a notice of default in the terms and conditions of the trust .mortgage in the office of the register of deeds and serve a copy thereof upon the occupiers of the mortgaged premises. No such notice was filed or served.
The receiver was in possession by order of the conrt, and it was its duty to make distribution of the moneys received by it as ordered by the court. Certain of such moneys were, as hereinbefore stated, paid to the appellant to apply on the principal and interest due under its mortgage. All concerned apparently had hopes that by careful management on the part of the receiver the indebtedness of the hotel company might be paid and the property returned to its owner. This result was not obtained. It was handled by the receiver by and with the implied, if not express, consent of the appellant, which might at any time have enforced collection of the rents and profits assigned'to it in the mortgage by giving the notice required by the statute. It finally secured the right thereto by its appointment as receiver on foreclosure of its trust mortgage and entering into possession thereunder. But, under the circumstances here presented, and by reason of its noncompliance with the requirement of the statute as to the filing of notice of default and serving a copy thereof upon the receiver in possession of the premises, it must be deemed to have waived its right thereto prior to such action on its part. The moneys in the hands of the receiver might have been disbursed by it prior to the filing of the petition to intervene, and probably would have been had not the trust company occupied the dual position of receiver in this case and trustee under the first mortgage.
A similar question was before the appellate court in the State of New York in Sullivan v. Rosson, 223 N. Y. 217 (119 N. E. 405, 4 A. L. R. 1400). The several mortgages in that case contained a provision assigning the rents to the mortgagees. There is, however, no. statute in that State similar to our Act No. 228, above referred to. We quote from the syllabus:
“Bach of the three mortgages held by the parties to this controversy provided for the appointment of a receiver of the mortgaged premises on default by the mortgag'or. The plaintiff herein, the owner of a fourth mortgage, applied for and obtained the appointment of a receiver in her behalf. The owner of the second and third mortgages did not seek to collect the rent either by voluntary payment with the consent of the mortgagor or through a receiver, but claims the rents in the hands of plaintiff’s receiver. The order appointing such receiver was never modified, or in any way extended for his benefit. Upon these facts the holder of the senior mortgages is not now entitled to appropriate the proceeds of the diligence of the junior mortgagee.”
In our opinion the order dismissing the petition to intervene was properly granted, and the appeal therefrom is dismissed, with costs to appellee.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Btjtzel, JJ., concurred. | [
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] |
McDonald, J.
This action was brought to recover damages for injuries sustained in an automobile accident which resulted in the death of plaintiff’s decedent, Arthur R. Bowmaster.
The accident occurred at 10 o’clock in the forenoon of December 20, 1928, on M. 21 somewhere be tween the cities of Holland and Grand Rapids. The defendant John H. DePree was driving a truck belonging to the William H. DePree Company. Mr. DeZwaan, a helper, was riding with him. The weather was blustering and storming and the visibility was poor. There were icy patches on the pavement. As they proceeded east, they discovered an automobile, belonging to Mr. Ver Plank, in the ditch by the south side of the highway. In response to a signal from Ver Plank they stopped and prepared to pull his car back on the road. In doing this they obstructed the south side of the highway. Their truck stood on the wrong side of the road facing west with front lights full on. The plaintiff’s decedent, accompanied by his sister, Mrs. Du Mez, was approaching from the west driving a truck. He saw the DePree truck and stopped his car within 15 or 20 feet from it. He got out, talked to Mr. DePree, and returned to his truck. In the meantime, defendant Van Ark, coming from the west and driving at a speed which prevented stopping within the assured clear distance ahead, collided with the Bowmaster truck. Bowmaster, who was still on the pavement, was hit by his own truck, which was driven forward by the force of the collision. He died from the injuries received. The administrator brought suit against Van Ark, John H. DePree, and the William H. DePree Company. This is a second trial. A judgment on the first trial in favor of the defendants was reversed by this court in 252 Mich. 505, but in that decision no law was made on the decisive question in the present case. In this case plaintiff was awarded a verdict and judgment against Van Ark, from which there has been no appeal. By direction of the trial court, verdict and judgment were entered in favor of John H. DePree and the William H. DePree Company, on the ground that, as a matter of law, they were free from negligence. Prom this judgment the plaintiff has appealed.
The negligence charged to the defendants DePree is that they obstructed the road by parking their truck on the wrong side; that they did not give proper warning’ of the obstruction to others who might be using the highway; and that they negligently set in motion a series of events that resulted in the accident.
It is true that their obstruction of the road set in motion a series of events that culminated in the accident; but, under the circumstances, the act of obstruction was not in itself negligence. They were rendering assistance to a fellow autoist whose car had skidded from the road into a ditch. They were lawfully using the highway. 42 C. J. p. 1041. Unless they were otherwise negligent, they were not liable for injuries to plaintiff’s decedent. But the plaintiff insists that they were negligent in parking their truck on the wrong side of the road so that it was facing west directly in the way of traffic coming from that direction. There would be some merit in this contention if decedent had been misled by the position of the truck and had driven off the south side of the road in the belief that the truck was coming toward him on the north side. But the accident did not happen in that way. When the decedent’s truck was hit by the Van Ark car, it was standing still on the south portion of the highway. And as to other traffic coming toward him, the 'fact that defendant’s truck was facing west was an advantage to them because the front lights brightly burning showed up the obstruction much better than the less brilliant lights on the rear could have done. They afforded sufficient warning to decedent so that he was able t'o stop his car in ample time to avoid a collision. In placing the truck on the wrong side of the road, there was no negligence that could proximately cause this accident. It was lawfully there, and the only duty required of the DePrees was to give proper warning of the obstruction to others using the highway. Whether they did so is the sole question in this case. Mr. DePree testified that to warn traffic approaching from the west he turned the bright lights from the front of his truck full on in that direction. It was the only means of warning he had at hand. He and his helper were engaged with Mr. Ver Plank in removing the disabled car. The lights on his car were such as are required by the statute. They could be seen for such a distance that when Mr. Bowmaster, plaintiff’s decedent, approached, he saw the obstruction and stopped his car. If they were of sufficient warning to Mr. Bow-master, they were sufficient to warn others. Van Ark did not have as clear a view of the lights as Bowmaster had, but that was no fault of the De-Prees. When Van Ark drove up, the Bowmaster car was parked across the south half of the highway at an angle of 45 degrees directly in front of the DePree truck, obscuring its lights. Nothing that the DePrees had done was responsible for the position of the Bowmaster car. It was not necessary for Bowmaster to further obstruct the highway and interfere with the efficiency of the defendant’s warning by parking his car in that place and in that manner. When confronted with an obstacle in the road, it was his right to stop and investigate before proceeding farther. He was not negligent in so doing, but due regard for his own safety and the safety of others required that, before leaving his car, he should have parked it in a safe place off the pavement on the shoulder of the road. The evidence shows that he could have done so. If the failure of Van Ark to see defendant’s warning lights in time was a contributing cause of the accident, the fault was Bowmaster’s. The defendant’s lights were a sufficient warning to Bowmaster when he approached and would have been a sufficient warning to Van Ark if Bowmaster had not obscured them by parking his car across the highway in front of the truck. It was not DePree’s negligence that put Bowmaster in that position. It was not DePree’s negligence that caused Van Ark to collide with Bow-master’s truck. We are unable to find any evidence from which it can be said that the cause of the accident was a consequence of negligence on the part of DePree. Van Ark was driving at an excessive rate of speed considering the weather conditions. He could not stop within the assured clear distance ahead. If the failure to observe defendant’s warning lights was a contributing cause of the accident, it was because of the position of decedent’s car, for which defendants were not responsible. There was no evidence that would have warranted the court to submit the question of DePree’s negligence to the jury.
The judgment is affirmed, with costs to the defendants.
Clark, C. J., and Potter, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred. | [
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McDonald, J.
The plaintiff is the beneficiary in an insurance policy for $1,000 issued by the defendant company upon the life of her husband, Joseph Ledger, on December 23,1916. Premiums were paid on the policy from that date until December 28,1920. At that time, because of the nonpayment of the premium due, it was converted into a term policy for $1,012 expiring May 20,1934. The insured suddenly disappeared from his home in the city of Detroit, Michigan, on July 27,1920, and from that day to this no tidings of him have been received by members of his family or any other persons most likely to hear from him. On the theory that he was legally dead because of seven years’ absence, the beneficiary applied to the defendant for payment of the insurance. Payment was refused, and this suit was begun. Trial was had before the court without a jury. Findings were filed in which it was determined that the insured was dead on July 27, 1927, and that death occurred at the time of his disappearance on July 31, 1920. Judgment was entered for the amount of the policy. The defendant has appealed.
The statute allowing a presumption of death after a disappearance and absence for seven years is as follows:
“If any person shall disappear and his whereabouts remain unknown for the space of seven years and no knowledge of such person can be procured in such space of seven years, he shall be presumed to be dead.” 3 Comp. Laws 1929, § 13467.
This presumption of death is< based on the generally accepted fact that a normal person will not, if alive, remain away from his home for a period of seven years without communicating with his family or friends. But it is a rebuttable presumption. There may be some reason other than death for his silence and failure to return to his family. So, in determining whether a presumption of death exists in this case, we must consider the facts and circumstances surrounding the disappearance of the in sured, the condition of his financial affairs, his domestic relations, and any other fact showing or negativing a probability that he would have made his whereabouts known to his family during the seven-year period if he had been alive.
It conclusively appears from the • evidence that Mr. Ledger left his home in Detroit on a business trip to Cincinnati on July 23,1920. A few days later, Mrs. Ledger received the following postal card which was shown to be in his handwriting:
‘ ‘ Cinai., July 27,1920. Dear Mollie: I will not be home till Saturday morning. I am getting two more machines to sell. Regards from all to all. Jos.”
Since the receipt of this postal card, nothing has been heard from him or of him. Mrs. Ledger notified his parents and relatives, who live in Philadelphia. She also notified the defendant company of his disappearance. All parties made an extended search to discover his whereabouts. No trace of him could be found. He left his wife, the plaintiff, and their two boys in his Detroit home. She testified that they lived pleasantly and happily together, and could give no reason for his disappearance.
The defendant presents another side to the picture. It claims that the insured was a drunkard and a gambler; that he ill-treated his wife and was not on good terms with his family when he disappeared; and therefore, if alive, it is not probable that he would communicate with them or let them know of his whereabouts. This claim is based on the fact that, about two years after Mr. Ledger’s disappearance, the plaintiff filed a bill for divorce in the Wayne circuit court on the grounds of extreme cruelty and nonsupport. It was alleged that he drank heavily of intoxicating liquors; that he was constantly intoxicated; that he was an habitual gambler; that on one occasion she gave him money to buy a suit of clothes and that he spent it in gambling; that he had drinking parties at their home; that he called her vile and indecent names and refused to work and support his family. On her testimony in support of these charges, she was given a decree for divorce. In obtaining an order of publication for substituted service, she filed an affidavit in which she claimed that his last known place of residence was 28 Grilsey avenue, Cincinnati, Ohio.
It is the contention of the defendant, as stated in its brief, that:
/ “Plaintiff is bound by her sworn statements in the bill of complaint and by her testimony in the divorce proceedings, and is absolutely estopped from proving a different state of facts in this case.”
There is no merit in this claim of estoppel. Butler v. Supreme Court, I. O. F., 53 Wash. 118 (101 Pac. 481, 26 L. R.A. [N. S.] 293).
The fact of filing a bill for divorce two years after his disappearance may be considered as an admission that she then believed him to be alive. The fact that he was a drunkard and a gambler and cruel to his family as alleged in her bill for divorce and testified to by her in order to obtain a decree, does not prevent a presumption of death from arising under the statute, but may properly be considered in rebuttal of the presumption. It creates an issue of fact on the question of the insured’s relation to his family, and may account for the concealment of his whereabouts and for his failure to return home. The plaintiff’s testimony on this question should not be given any credit unless it is corroborated by other reliable testimony and by the facts and circum stances attending her husband’s disappearance. She testified falsely either in the divorce proceedings or on this trial. We think it was in the divorce proceedings. Her testimony here is supported by that of her son, who seems to be an honest witness. It is also supported by circumstances surrounding her husband’s disappearance. He left home on a business trip. He sent her a postal card announcing the time of his return. The substance of the card as well as the fact of his sending it shows a consideration for his family which belies the claim that he was not on friendly terms with them and did not wish to return. The trial court’s finding on this question is supported by the evidence and should not be disturbed. Griffin v. Northwestern Mut. Life Ins. Co., 250 Mich. 185.
In entering judgment, the plaintiff was allowed interest from the date of disappearance. This was an error. Her cause of action did- not accrue until the expiration of the statutory seven-year period, on July 27, 1927. She is entitled to interest from that date.
With this modification, the judgment is affirmed.
Clark, C. J., and Potter, Sharpe, North,' and Fead, JJ., concurred with McDonald, J. Wiest and Butzel, JJ., concurred in the result. | [
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Butzel, J.
On August 19,1945, at about 5:45 p.m., Clarence Krisher, plaintiff, suffered injuries through an accident arising out of the negligent operation of a Mercury car belonging to Michael and driven by his brother, John Duff, defendants herein. A judgment against John is not appealed from. The jury found in Michael’s favor and plaintiff appeals. He contends that the .court erred in its charge to the jury and in denying a motion for a new trial. We herein refer to Michael as the defendant.
John admitted his negligence but testified that at the time of the accident he was driving the- car without either the knowledge or consent of Michael; that he had found a duplicate set of keys, which he used, in' Michael’s overalls in a closet. John previously while driving the Mercury had bent one of the fenders. Some time later and about 3 months prior to the time plaintiff was injured, John received a ticket for violation of traffic laws and the Mercury was impounded. When Michael recovered his car, John testified that he was forbidden its further use and that he thereafter was never given permission to drive the car, nor did he drive it until the day of the accident. Michael testified that he used the car every day to drive to and from his place of work which is about 15 miles distant from his home; that his day’s work was over at 5 p.m. when he drove home but that he frequently used the car in the evenings; that'after he arrived home the car was parked in a driveway alongside the home; that he was reasonably sure, but not positive, that John' did not drive 'the car during the several months prior to the time of the accident; that he had expressly. forbidden John to drive the car. Lauri John Johnson, a neighbor living near the Duff home, and a wholly disinterested witness, testified that during the months immediately preceding the accident he had seen John driving the car at 5 p.m. past the witness’ house 5 days a week and also sometimes on Saturday. He thus specifically denied the testimony that John had not driven the car during the time it is alleged lie was forbidden to do so. It was summertime and daylight when Michael arrived home from his work. Windows and doors are usually open in the summertime and it would seem improbable that Michael would not have seen that the car was gone. A fair inference from the testimony makes it very doubtful that during all this period John could have driven the car without his brother’s knowledge or consent.
At the close of the proofs, counsel for plaintiff requested the court to charge, the jury that there is a statutory presumption that the car was driven with the knowledge and consent of the owner, and •that the defendant (owner) was required to produce clear, positive and credible proof to overcome such a presumption. The trial court refused to so charge but instead charged as follows:
“At the beginning of the case the plaintiff made out enough of a case to require the defendant to come in with an explanation of all the facts, by simply proving that John was the brother of Michael, and that Michael then owned the car in question. That is what we call a prima facie case. ‘First appearance’ — that is what prima facie means; and that required the defendant, Michael Duff, to come in and bring all the evidence in that had a bearing on whether John Duff was driving the 1941 Mercury car with his consent. The first issue before you is, does that testimony fairly and reasonably convince you that John Duff had Michael Duff’s consent on that day to drive that car? If you are fairly satisfied by a fair preponderance of the evidence that you heard that John Duff did have Michael Duff’s consent, either express or implied,' to drive the car, then you have a right to hold Michael Duff liable for whatever damages are the proximate result of the negligence * * * if the best answer you can make * * * is, ‘We don’t know; the evidence does not convince us, and we don’t known, whether John Duff had Michael Duff’s consent to drive his car on that day,’ then the burden of proof has not been sustained, and you are not entitled to return a verdict. * * *
“You are the sole judges of the evidence in the case, and you have to find from the evidence, and nothing else, affirmatively that John Duff was driving his ear with the consent of Michael Duff. If you are able to say that the evidence fairly preponderates in favor of that conclusion, then you are entitled to say that the burden of proof has been sustained. * * * If the best answer you can make is ‘We don’t know, the evidence is not clear and convincing enough to prove it to us,’ then you are entitled to say that the case is not proved.”
Plaintiff, on appeal, contends that it was error-for the trial court to refuse to charge as requested, and that the charge actually given was more favorable to the defendant than the law permits. The latter part of the quoted charge bears out appellant’s claims. Our first inquiry then must be directed to the effect of the statutory presumption on which plaintiff relies. CL 1948, § 256.29 (Stat Ann § 9.1446), after providing that the owner of a motor vehicle shall be liable for injuries occasioned by the negligent operation of his vehicle, further states:
“The owner shall not be liable, however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge. It shall be presumed that such motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of said injury by his or her father, mother, brother, sister, son, daughter, or other immediate member of the family.”
As the word “conclusively” which was originally in the statute was removed by the legislature, it is evident that this presumption was .intended to have the effect of a rebuttable presumption. (For the statutory history, see Cebulak, v. Lewis, 320 Mich 710, 723 [5 ALR2d 186].)
It has been well settled in this State that the effect of a rebuttable presumption is to make out a prima facie case at the beginning of a trial. Having established the original prima facie case, the presumption then casts the burden of proof on the opposite party. Presumptions cannot be weighed against other credible evidence, for they have no value as evidence unless no other credible evidence whatsoever is introducd in regard to the presumed fact. As a rule they disappear if and when credible evidence is introduced from which the facts may be found.
The following cases fully support the above statements as to rebuttable presumptions: Presumption of undue influence when beneficiary draws will, In re Cochrane’s Estate, 211 Mich 370; presumption of undue influence when property devised to one in a confidential or fiduciary relationship, In re Cotcher’s Estate, 274 Mich 154; Hill v. Hairston, 299 Mich 672; presumption of delivery of deed raised by recording, Gibson v. Dymon, 281 Mich 137; Blodgett v. Snobble, 295 Mich 374; presumption of freedom from contributory negligence, Gillett v. Michigan United Traction Co., 205 Mich 410; Thompson v. Southern Michigan Transportation Co., 261 Mich 440; Heckler v. Laing, 300 Mich 139; Essmeister v. Roadway Transit Co., 275 Mich 387; presumption against suicide, Stuckum v. Metropolitan Life Ins. Co., 283 Mich 297; presumption of continuous employment, Klat v. Chrysler Corp., 285 Mich 241; presumption concerning adverse possession, City of Grand Rapids v. Pere Marquette Railway Co., 248 Mich 686; negligence in striking the rear of a car presumed (statutory), Patt v. Dilley, 273 Mich 601; presumption from tax records of taxes due and owing (statu tory), City of Muskegon v. S. K. Martin Lumber Co., 86 Mich 625.
The presumption of consent or permission by the owner of an automobile arising through its use by the party causing the injury exists in practically every State in the Union including Michigan and is a rebuttable presumption as well. Generally speaking, the evidence to make this presumption disappear should be positive, unequivocal, strong and credible. The presumption is given more weight because of the dangerous instrumentality involved and the danger of permitting incompetent driving on the highway; and because the proof or disproof of consent or permission usually rests almost entirely with the defendants. The defendant owner frequently may be the only witness and not disinterested. In many States, including Michigan, statutes exist which specify that the owner shall be liable for negligent operation of a car being driven with his permission or consent, but we find nothing said as to proof of consent. It is stated in the case of Wehling v. Linder, 248 Mich 241, at 243:
“One who is driving a motor vehicle incident to the owner’s business is presumed to be duly authorized to so drive the vehicle; but it is the established law in this State that such a presumption prevails in favor of the litigant relying thereon only so long as that phase of the case is not covered by testimony to the contrary. Gillett v. Michigan United Traction Co., 205 Mich 410; Union Trust Co. v. American Commercial Car Co., 219 Mich 557; Depue v. Schwarz, 222 Mich 308; and Noonan v. Volek, 246 Mich 377. If the testimony opposed to the presumption is clear, positive, and uncontradicted, it becomes the duty of the trial judge to direct a verdict if the issue is a controlling one in the case. Union Trust Co. v. American Commercial Car Co., supra.”
This case did not involve a family car. See, also, Foote v. Huelster, 272 Mich 194; Kieszkowski v. Odlewany, 280 Mich 388; Pulford v. Mouw, 279 Mich 376; Merritt v. Huron Motor Sales, Inc., 282 Mich 322; Reitenga v. Kalamazoo Creamery Co., 288 Mich 161 (8 NCCA NS 28); Wingett v. Moore, 308 Mich 158; Hicks v. Reis, 21 Cal2d 654 (134 P2d 788); Sharp v. Faulkner, 292 Ky 179 (166 SW2d 62) ; Claxton v. Page, 190 Okla 422 (124 P2d 977); and Bradley v. Savidge, Inc., 13 Wash2d 28 (123 P2d 780), for analyses similar to that of Michigan.
Other States give increased weight to this type of presumption. In Schultz v. Swift & Co., 210 Minn 533, 537 (299 NW 7), the court said:
“We said, * * * ‘The inferences to be drawn * * * may, of course, be rebutted and overcome by other evidence. But unless conclusively so rebutted, the questions would seem questions of fact for the jury.’
“The prima facie case is not overcome by the uncontradicted testimony of interested witnesses, ‘if the evidence is for any cause inconclusive in its nature — as, for example, where different conclusions may be reasonably drawn from it, or where its credibility is doubtful.’ (Citing cases.)”
The “family car” doctrine, as it has been termed, exists in many States and is embodied in the Michigan statute here in question. It is clear that the same policy factors operate to make this a stronger presumption than the ordinary rebuttable presumption. See the extensive discussion in Cebulak v. Lewis, supra. The Court said in part at page 723:
“We must give recognition to the fact that an automobile, if driven by an inexperienced, incompetent, or reckless driver, partakes of the nature of a dangerous instrumentality by reason of the danger which lies in the .possible improper methods of its use. This fa,ct removes the presumption * * * from the field of those statutory presumptions applying to joint bank accounts, undue influence, * * * and the like. The difficulty of showing the consent of the owner except by evidence of facts and circumstances, where the owner and the driver may be the only persons who can directly testify that no consent was given to drive the car, has a distinct bearing on the construction of the statutory presumption here involved.”
There is an even stronger rational basis for the presumption of consent to the use of the family car than for the presumption in general because of the high likelihood that those in the intimate family relationship would be aware of each other’s movements. Carlson v. Wolski, 20 Wash2d 323 (147 P2d 291), involved an attempt to prove that grandparents had consented to the operation of their car by the grandson, who injured plaintiff. The common-law presumption was involved. The court said at page 332: .
“While the presumption or inference of fact arising from proof of ownership of an automobile may he overcome by competent evidence from either interested or disinterested witnesses, nevertheless, to overcome such presumption, the testimony must be uncontradicted, unimpeached, clear, and convincing.”
In the cases which have comebefore this Court in the interpretation of the statutory provision in question, we have dealt with the problem of how much rebutting evidence was needed to justify the court in taking the ease away from the jury and directing a verdict in favor of the defendant. Such rebuttal may be accomplished on the testimony of the' defendants alone, if such testimony is clear, positive and uncontradicted. Christiansen v. Hilber, 282 Mich 403; Brkal v. Pletcher, 311 Mich 258. These cases did not pass on the matter of instruction at all, as the holding was that the evidence warranted a directed verdict. In the Christiansen Case, the Court said at page 410:
“If the testimony opposed to the presumption is clear, positive and uncontradicted, it becomes the duty of the trial judge to direct a verdict if the issue is a controlling one in the case.”
On the other hand, if some doubt has been cast on the credibility of the defendants or their witnesses, so that their evidence is not clear, credible and convincing, it is proper to submit the issue of consent to the jury. In Transcontinental Insurance Co. v. Berens, 254 Mich 613, at 617, the Court said:
“In order to overcome the statutory presumption, the evidence must be of a direct, positive, and credible character. * * *
“A review of the quoted testimony shows that it is not clear, positive, and uncontradieted, so as to overcome the presumption, and it became the duty of the trial judge to submit the question to the jury.”'
This Court in Karl v. Gary, 255 Mich 621, at 623, stated:
“The judge * * * failed to instruct the jury that the statutory presumption of the consent of the owner to his wife’s driving the car would be overcome by direct and positive evidence showing the consent was not given. * * *
“The issue was not fairly presented to the jury.”
And in Cebulak v. Lewis, supra, at 724, the Court stated :
“The statutory presumption now under consideration in the instant case can be overcome only by evidence that is clear, positive, and credible.”
The credibility of the evidence brought forth by defendants may be affected by the manner in which witnesses testify, if they are not disinterested witnesses. Wingett v. Moore, supra.
What constitutes clear, positive and credible evidence? It has been held that uncontradicted evidence given by defendants alone is sufficiently clear, positive and credible to rebut the presumption and justify a directed verdict for the defendant. Christiansen v. Bilber, supra; Brkal v. Pletcher, supra. On the other hand, if any doubt has been cast on the testimony of the defendants or their witnesses, either by evidence in rebuttal or by question as to the witnesses’ credibility, the evidence is not clear, positive and credible, and the issue of whether or not the presumption of consent has been overcome should be submitted to the jury. Transcontinental Insurance Co. v. Berens, supra; Karl v. Gary, supra; Cebulak v. Lewis, supra. The result must necessarily vary as to the circumstances of each case.
. The above process is entirely a determination as to whether or not the defendants have met the burden of going forward with the evidence which is cast upon them by the statutory presumption. If the defendants fail to meet this burden and overcome the presumption, a verdict for the plaintiffs must follow. If the defendants do present clear, positive and credible evidence to overcome the presumption they have not prevailed on the issue of consent but have merely succeeded in casting the burden of proof as to consent on the plaintiff. It will be seen, therefore, that this process involves 2 separate determinations:
1. Whether or not the presumption of consent has been overcome by clear, positive and credible proof;
2. If it has been overcome,, whether or not the plaintiffs can prove all the issues of the case, including consent, by a preponderance of the evidence.
The statutes in the different States vary. Connecticut has a statute similar to ours. Glen Stat, Conn 1949, § 7904. It was there held in O’Dea v. Amodeo, 118 Conn 58, at 63, 65 (170 A 486):
“But where the circumstances involved in an issue are peculiarly within the knowledge of the one-party and his power to bring them before the court,, in certain instances the law deems it fit that he should have the burden not merely of offering some-substantial countervailing evidence but of proving-such circumstances. * ■* *
“The situation presented is similar to those to which we have referred where the presumption rests upon the fact that the circumstances involved in the-issue are peculiarly within the knowledge of the defendant, and as to which we have said that unless the defendant proves the actual circumstances of the case, the presumption is not rebutted.” '
In the instant case it was not error to refuse to mention the existence of the statutory presumption. When the trial court stated that the plaintiff had made out a prima facie case by proving the ownership of the car and the relationship between the parties; that the defendant was required to come in with an explanation of-all the facts thereafter, it properly, so far as it went, interpreted the law to-the jury. It is not necessary that the jury be informed of the statutes upon which the law is based. In Cebulak v. Lewis, supra, it was held not error for an attorney to mention the statute to the jury in his opening and closing arguments, when the question of whether or not the presumption- had been overcome was one for the jury. However, as we have stated above, it is not necessarily error to refuse to mention the existence of the statute provided the judge states the law as embodied in thé statute. Here the judge properly submitted the ease to the jury but not with a proper charge. It was error to-refuse to charge the jury, as requested by plaintiff, that the defendant must come forward with'evidence-of a clear, positive and credible nature to refute the presumption of knowledge or consent. Cebulak y. Leivis, supra, is the controlling authority here. The Court in' that opinion states at page 724:
“The statutory presumption now under consideration in the instant case can he overcome only by evidence that is clear, positive and credible. Transcontinental Insurance Co. v. Berens, 254 Mich 613; Karl v. Gary, 255 Mich 621; Christiansen v. Hilber, 282 Mich 403. This would seem to cast upon the defendant here the burden of producing clear, positive and credible proof to overcome the presumption.” (Italics ours.)
Defendants argue that the Court in the Cebulah Case and the cases cited therein is only talking about the amount of proof which is required by the defendant to permit or require the judge to render a directed verdict; that when the Court speaks of presumptions differing in weight to be accorded, it is speaking solely of the amount of evidence required to overcome the presumption so as to allow the judge to direct a verdict and nothing more.
An examination of the consequences of this contention convinces us of its error. .The policy factors which weight this presumption more strongly in favor of the plaintiff exist whether or not the judge is considering a directed verdict or the jury is considering the whole issue of knowledge or consent. The policy of the law will be defeated, in fact, the statute will be emasculated, unless the jury in some general manner is informed of the apparent liability of the owner and the necessity of clear, positive and credible proof required to show the absence of consent when that issue is for their determination.
In this case, the testimony of the witness Lauri John Johnson casts at least some doubt upon the testimony of the defendants that John drove the car without the knowledge and consent of Michael and was not customarily given permission to drive the car. The evidence for the defendants was not undisputed as it was in Karl v. Gary, supra, or Christiansen v. Hilber, supra; instead the circumstances were such that the credibility of all the witnesses should have been considered by the jury in determining whether or not the original prima facie case has been overcome by clear, positive and credible proof. Transcontinental Insurance Co. v. Berens, supra; Cebulak v. Lewis, supra. Not merely did the defendant have the duty of bringing in all the evidence that had a bearing on whether John Duff was driving the 1941 Mercury car with his consent, but he had the duty of bringing in clear, positive and credible proof to refute the prima facie case made out by the plaintiff. Then, and only then, would the presumption be rebutted and vanish, leaving the burden of proof on the plaintiff as to consent.
. In a civil case a jury is frequently confronted with determining the credibility of witnesses. They are not required, to make their findings beyond a reasonable doubt, but only to determine in whose favor the credible evidence preponderates. In reviewing the charge of the judge as a whole, we believe that it was more favorable to the defendant than the law permits. The charge also' wound up by emphasizing to the jury that if they did not know, they must decide that “the case is not proved.” This meant if they had any doubt .they were to decide in defendant’s favor. The charge of the trial court, therefore, constitutes prejudicial error.
The judgment in favor of defendant Michael Duff is reversed, with costs of both courts, and the case is remanded for new trial
Reid, C. J., and Boyles, North, Bushnell, and Sharpe, JJ., concurred with Btjtzel, J. Dethmers and Carr, JJ., concurred in the result. | [
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] |
Per Curiam.
In this action, plaintiffs granted defendant General Telephone Company of Michigan a right of way across their property for the placement of underground telephone cables. By the terms of the agreement, defendant General Telephone retained responsibility for damages suffered by plaintiffs from the installation or maintenance of the underground cables.
Defendant General Telephone subcontracted the trench-digging work to defendant Sub-Surface Construction Company. Plaintiffs allege that the trench digging caused serious vibrations in their home resulting in damage to their ceilings and stonework. Defendants attempted to cure the problems, but to no avail. Plaintiffs thereafter filed the instant action to recover damages from General Telephone for breach of contract and Sub-Surface Construction for negligence.
At trial, defendants in their case in chief introduced evidence concerning the soil composition of the excavation site and its relation to the conduction of vibration. Following this testimony, plaintiffs retained a geologist. The geologist took soil borings from the site and analyzed the soil composition. Plaintiffs sought to offer the geologist as a rebuttal witness. Defendants objected for the reason that the geologist had not been listed as a witness on plaintiffs’ witness list. Defendants further objected that permitting the "surprise” witness to testify would prejudice defendants as they had the opportunity neither to depose the geologist nor to retain their own expert.
The trial court determined that plaintiffs’ expert could testify, subject to certain conditions to alleviate any prejudice to defendants. First, defendants were to be given an opportunity to interview the witness in preparation for cross-examination. Second, defendants would be given a fair opportunity to secure an expert of their own. Defendants accepted the conditions, but plaintiffs did not. Thus, no time frame was established for meeting the trial court’s conditions and plaintiffs’ expert did not testify.
The case was submitted to the jury, which returned a verdict in favor of defendants. A judgment was entered accordingly. Plaintiffs now appeal, raising as their sole issue the propriety of the trial court’s placing the above-mentioned conditions on plaintiffs’ use of the expert witness in rebuttal. We affirm.
The decision whether to allow an undisclosed witness to testify is a matter within the trial court’s discretion. Elmore v Ellis, 115 Mich App 609, 613; 321 NW2d 744 (1982); Dehring v Northern Michigan Exploration Co, Inc, 104 Mich App 300, 321; 304 NW2d 560 (1981). Trial courts should not be reluctant to allow unlisted witnesses to testify where justice so requires, particularly with regard to rebuttal witnesses. Elmore, supra at 613-614.
We are not aware of any decisions addressing the propriety of allowing the testimony of an undisclosed witness on rebuttal only upon the meeting of certain conditions. However, we do find this Court’s decision in Pollum v Borman’s, Inc, 149 Mich App 57; 385 NW2d 724 (1986), to be helpful. In Pollum, the trial court allowed plaintiffs to present the testimony of an undisclosed expert witness during their case in chief. This Court reversed, concluding that the trial court’s decision "fundamentally impaired the defendants’ ability to present their side of the issue.” Id. at 62. The Pollum Court went on to state what the trial court should have done to prevent prejudice to the defendants:
The circuit court judge should have delayed the trial in order to allow the defense to meet [the undisclosed witness’] surprise testimony on this basic issue which constituted approximately 84% of the plaintiff’s alleged damages. [Id. at 62-63.]
While the Pollum Court was not directly faced with the question of the propriety of setting conditions on granting leave to permit an undisclosed witness to testify, it clearly indicated that, had the trial court in that case set appropriate conditions, reversal would have been avoided. We concur in the reasoning of the Pollum Court.
Justice is not served by merely restricting a trial judge’s decision in such a case to permitting or not permitting an undisclosed witness to testify. Rather, we believe that justice is best served where an unlisted witness can be permitted to testify while the interests of the opposing party are adequately protected. If reasonable conditions can allow the testimony of the undisclosed witness to be admitted without prejudice to the opposing parties, then we see nothing wrong with permitting the witness to testify subject to those conditions. No party is prejudiced and the jury is afforded a fuller development of the facts surrounding the case.
For the above reasons, we hold that a trial court may, within its discretion, permit an undisclosed witness to testify on rebuttal subject to reasonable conditions. In the case at bar, the trial court’s conditions of permitting defendants an opportunity to interview the undisclosed witness and to secure their own expert were reasonable. Therefore, we find no abuse of discretion by the trial court in allowing the rebuttal witness to testify subject to the conditions.
Affirmed. Costs to defendants.
Of course, a review of the reasonableness of the conditions set by a trial court would also normally include the timetable for meeting the conditions. However, in the case at bar, plaintiffs abandoned their pursuit of using an expert witness prior to the trial court’s setting a timetable. Therefore, we can only assume that the trial court would have set a reasonable time for the interviewing of the witness and the securing of an expert. | [
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] |
Shepherd, J.
Plaintiff filed a wrongful death action against defendant Department of Transportation in the Court of Claims on February 21, 1984. Defendant moved for summary disposition on March 7, 1986, on the grounds of governmental immunity. The Court of Claims granted defen dant’s motion On June 20, 1986. We reverse and remand for further proceedings.
Plaintiffs decedent, Geraldine Rogocki, attempted to cross eastbound Eight Mile Road on foot at approximately 10:15 p.m. on May 15, 1983. She was apparently intoxicated. She was struck by a motor vehicle and killed. Eight Mile Road is a state trunk line highway. While much of Eight Mile Road is lit, the area where Rogocki attempted to cross had no street lights.
Defendant argued that it was not liable for street lighting within Detroit along "nonfreeway” state trunk line highways. At an evidentiary hearing, M. James Tripp, Detroit Public Lighting Department Supervising Inspector of Overhead Lines and Safety, testified that the city must get defendant’s prior approval for placing any street light poles along state trunk line highways within city boundaries. Tripp indicated, however, that to his knowledge defendant had never denied the city a requested permit for street lighting. Tripp’s affidavit indicated that the city owns all the lights and poles found elsewhere along Eight Mile Road and pays for the electricity used. David Wilson, a Michigan Department of Transportation Utilities and Permit Engineer, testified that his department reviews requests for lighting along state trunk line highways for safety. Occasionally, his department requests modification of the plans. It makes no recommendations as to type of pole or light wattage, however. The affidavit of Toufic N. Jilbeh, Michigan Department of Transportation Electrical Utilities Leader, confirmed that the city must initiate placement of street lights along that portion of Eight Mile Road and that the city would pay for the installation.
The Court of Claims granted summary disposition for defendant, indicating that it "adopted the arguments and authorities made by counsel for the Defendant as its own.” Defendant’s claim was essentially that it was not responsible for nonfreeway street lighting under MCL 247.651b; MSA 9.1097(lb) and that Eight Mile Road did not meet the statutory definition of "freeway” found at MCL 257.18a; MSA 9.1818(1). Moreover, defendant argued that the portion of the highway involving street lighting was under the city’s control and jurisdiction, even though the actual highway itself may have been under the state’s control. Defendant also argued that the utility poles were not part of the improved portion of the highway within the meaning of MCL 691.1402; MSA 3.996(102).
Plaintiff also sued the City of Detroit on February 24, 1984, in a separate action. It appears that the Wayne Circuit Court granted summary disposition for the city sometime before the hearing in the instant case, apparently after finding that the state had jurisdiction over the area in question. The current status of that case is not in. the record.
The state and governmental units are generally immune from tort liability when engaged in the exercise or discharge of a governmental function. MCL 691.1407; MSA 3.996(107). A statutory exception to this immunity exists for defective highways, MCL 691.1402; MSA 3.996(102):
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 damages suffered by him from such governmental agency. The liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21, chapter 4 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948. 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. No action shall be brought against the state under this section except for injury or loss suffered on or after July 1, 1965. Any judgment against the state based on a claim arising under this section from acts or omissions of the state highway department shall be payable only from restricted funds appropriated to the state highway department or funds provided by its insurer.
Defendant admits that Eight Mile Road is a state trunk line highway at the accident site. Defendant has jurisdiction over state trunk line highways. Const 1963, art 5, § 28; Beyer v Fraternal Order of Eagles, Aerie No 668, 123 Mich App 492, 497; 333 NW2d 314 (1983). In the instant case, it appears that defendant requires the city to obtain defendant’s approval prior to placing street lights along Eight Mile Road. Municipalities retain control over state trunk line highways within their boundaries to the extent that such control pertains to local concerns and is not in conflict with the state’s paramount jurisdiction. Jones v Ypsilanti, 26 Mich App 574, 580; 182 NW2d 795 (1970). The state, however, must incur all legal liabilities for state trunk line highways, even when the municipality undertakes the responsibility for maintenance and repair. Beyer, supra. We thus believe defendant is the proper party in the instant case.
Defendant contends that MCL 691.1402; MSA 3.996(102) extends state liability only to the "improved portion of the highway designed for vehicular travel,” which defendant argues does not include street lighting. We disagree. This Court held in Zyskowski v Habelmann, 150 Mich App 230, 239-240; 388 NW2d 315 (1986), that a county had a duty to maintain street lights along a county road. The Court noted that the lighting of a road affects the safety of motorists using the improved portion of the highway and that street lighting may be an integral and necessary part of road design in many urban areas. The Supreme Court has granted leave in Zyskowski for a consideration of two issues. One is whether this Court "erred in holding that off-road ornamental street lighting is an integral part of the improved portion of the highway designed for vehicular travel as defined by the governmental immunity act” (emphasis added). 426 Mich 865 (1986). It does not appear that ornamental lighting is involved in this case. What is alleged instead is a failure to provide street lighting necessary for the use of the state trunk line highway. We believe the type of lighting alleged here would be an integral part of the improved portion of the highway necessary for vehicular travel, whatever the outcome of Zyskowski on appeal.
The Supreme Court’s recent decision in Roy v Dep’t of Transportation, 428 Mich 330; 408 NW2d 783 (1987), does not compel a different result. The Supreme Court held in Roy that the MCL 691.1402; MSA 3.996(102) exception to governmental immunity did not apply to an adjacent bicycle path as it was not designed for vehicular travel. We perceive a difference between an adjacent bicycle path which was designed for bicycle travel and street lighting required for vehicular use of a state trunk line highway. While the light poles may be away from the highway, the illumination itself is on the highway and the question in this case is whether the illumination was sufficient to render the road safe for travel and for pedestrians. As defendant must approve all proposals for street lighting in the area of the accident, we find that defendant has retained control of the highway and has jurisdiction over it within the meaning of MCL 691.1402; MSA 3.996(102).
Defendant also argues that it has been statutorily relieved of responsibility for street lighting at the accident site. Plaintiff, on the other hand, relies on MCL 250.61; MSA 9.901, which provides:
On and after January 1, 1960, the cost of constructing, improving and maintaining trunk line highways shall be met entirely by the state, and the counties, townships and incorporated cities and villages shall thereafter be relieved of all expenses and legal liabilities in connection therewith as imposed by section 21 of chapter 4 and chapter 22 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 and sections 242.1 to 242.8 of the Compiled Laws of 1948. [Emphasis added.]
The pertinent statutory revisions cited in this section were repealed by 1964 PA 170 and replaced by the provisions of MCL 691.1401 et seq.; MSA 3.996(101) et seq., which now control governmental liability. See Bennett v Lansing, 52 Mich App 289, 292; 217 NW2d 54 (1974). This Court held in Beyer, however, that MCL 250.61; MSA 9.901 requires the state to incur "all maintenance costs and legal liabilities for state trunk line highways, relieving counties, townships, incorporated cities and villages of these responsibilities.” 123 Mich App 497. We believe that the result would be the same whether liability is imposed under MCL 250.61; MSA 9.901 or because of defendant’s jurisdiction over Eight Mile Road within the meaning of MCL 691.1402; MSA 3.996(102).
It appears, however, that another statutory provision relieves defendant of some of the costs associated with state trunk line highways, including street lighting within city limits. MCL 247.651b; MSA 9.1097(lb) provides:
The state transportation department shall bear the entire cost of maintaining, in accordance with standards and specifications of the department, all state trunk line highways including highways within incorporated cities and villages except that the cost of maintaining additional width for local purposes as provided in section lc shall be borne by the city or village. For the purposes of this act except for sections 11 and 12, maintaining of state trunk line highways shall include, by way of enumeration but not limitation, snow removal, street cleaning and drainage, seal coating, patching and ordinary repairs, erection and maintenance of traffic signs and markings, freeway lighting for traffic safety in cities and villages having a population of less than 30,000 and the trunk line share of the erection and maintenance of traffic signals, but shall not include street lighting, resurfacing, new curb and gutter structures for widening. On and after January 1, 1970, maintaining of state trunk line highways shall include all freeway lighting for traffic safety.
Defendant maintains that the pertinent portion of Eight Mile Road is not a freeway as defined in MCL 257.18a; MSA 9.1818(1). Thus, because it is not responsible for street lighting along Eight Mile Road, defendant argues, it is not liable for injuries resulting from the lack of lighting.
The preamble to the state trunk line highway system act, MCL 247.651 et seq.', MSA 9.1097(1) et seq., as amended, refers only to various aspects of providing for and allocation of funds and costs associated with the state trunk line highway system. Neither the preamble nor the act refers to governmental immunity or liability. Thus, while MCL 247.651b; MSA 9.1097(lb) affects certain aspects of defendant’s responsibility for the cost of maintaining state trunk line highways, it does not affect defendant’s legal liability as set forth in MCL 691.1402; MSA 3.996(102) or MCL 250.61; MSA 9.901. Imposition of this liability does not interfere with Detroit’s constitutionally mandated reasonable control over its streets, including state trunk line highways within city limits, as discussed in Jones, supra. Rather, if local governmental units were not absolved of liability with respect to maintaining state trunk line highways, they would be less willing to undertake the responsibility of maintaining them on behalf of the state. See Bennett, supra at 296. Accordingly, we believe defendant is the proper party under MCL 691.1402; MSA 3.996(102).
This is unquestionably a difficult case. The issue is who is responsible for damages for decedent’s injuries. Given the vast body of highway statutes scattered throughout the compiled laws, we are faced with two separate problems: (1) who bears the cost of maintenance and repairs at the accident site and (2) who is legally liable or immune from suit?
An exception from governmental immunity is provided by MCL 691.1402; MSA 3.996(102) for the governmental agency having jurisdiction over the highway in the case of injuries resulting from the agency’s failure to keep the highway in reasonable repair and reasonably safe for travel. It is clear that the accident occurred on a state trunk line highway under defendant’s jurisdiction. Accordingly, the exception to governmental immunity applies to defendant. While various statutory schemes regulate who must pay for the costs of highway maintenance and repair, those statutes do not mention governmental immunity and do not affect it. The statutes pertaining to the costs of repairs and maintenance of state trunk line highways have nothing to do with defendant’s ultimate responsibility for making sure that the highways under its jurisdiction are safe. A statutory scheme or a contract between governmental units allocating the burden of costs cannot eliminate defendant’s ultimate responsibility for state trunk line highways under its jurisdiction. See Beyer, supra at 497. We note, however, that our holding does not address the merits of whether street lighting was actually required at the accident site.
Reversed and remanded for further proceedings consistent with this opinion.
We note that the governmental immunity act was recently amended by 1986 PA 175, effective July 7, 1986, to indicate that the term "highway” as used in the act does not include "utility poles.” MCL 691.1401(e); MSA 3.996(101)(e). We need not decide whether this new definition also excludes street lighting and associated poles, as the instant case arose before the amendment.
We also note, and defendant apparently agrees, that defendant is responsible for at least a portion of the cost of removal or replacement of street lighting when it is involved in "opening, widening, and improving, including construction and reconstruction” of state trunk line highways even within city limits. MCL 247.651c(b); MSA 9.1097(lc)(b).
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Per Curiam.
Petitioner’s driver’s license was suspended for one year by the Secretary of State due to petitioner’s refusal to take a Breathalyzer test. Petitioner sought review in the circuit court, requesting an order granting him a restricted license pursuant to MCL 257.323c(l); MSA 9.2023(3)(1), that would allow him to drive in the course of his employment for the duration of the suspension. Respondent appeals from the circuit court order granting the petition.
Pursuant to MCL 257.625f(4); MSA 9.2325(6)(4), the suspension of a driver’s license is statutorily authorized for the driver’s refusal to submit to a chemical analysis test to determine the amount of alcohol in his blood. The duration of the suspension is six months unless the driver has at a prior time refused to submit to such testing during the past seven years, in which case the duration is enhanced to one year. Id. The lower court record shows that petitioner had a previous suspension in 1979 as a result of his refusal to submit to testing.
Respondent argues that the circuit court lacked statutory authority to order that petitioner be issued a restricted license. MCL 257.323c(2); MSA 9.2023(3)(2) prohibits the issuance of a restricted license in some circumstances:
If the person’s license has been suspended pursuant to section 625f [MCL 257.625f(4); MSA 9.2325(6)(4)] within the immediately preceding 7-year period, a restricted license shall not be issued.
The circuit court declined to apply this statute because it concluded that to do so would impermissibly accord the statute a retroactive effect. MCL 257.323c(2); MSA 9.2023(3)(2) became effective March 30, 1983. Petitioner’s first suspension occurred prior to the effective date; hence, the court reasoned, petitioner could not be accorded two refusals for purposes of the statute.
We are unaware of any Michigan authority reaching this question. However, we find helpful by way of analogy People v Miller, 357 Mich 400, 409-410; 98 NW2d 524 (1959). There, the Court rejected the retroactivity argument of the defendant, whose sentence was enhanced due to his criminal conviction as a second offender of the drunken driving statute. The defendant’s first offense was committed prior to the effective date of the statutory provision for sentence enhancement. The Court held:
But appellant urges, also that the amendment above set forth is being given a "retroactive” effect unintended by the legislature if convictions occurring prior to the passage of the amendment are considered in applying the penalties of the act. . . . Heavier penalties for a second offense are well known to the law. They are in no manner ex post facto, nor do such amendments as we have before use [sic] have a retroactive effect. It is the subsequent offense that is punished more harshly, not the first. [Id., 410. Citations omitted.]
See also People v Mellor, 302 Mich 537, 540; 5 NW2d 455 (1942) ("The former conviction was merely an additional fact or circumstance' to be considered in imposing a severer penalty for the second conviction”).
We also refer by way of analogy to the general habitual offender statutes, MCL 769.10 et seq.; MSA 28.1082 et seq. We note that the Supreme Court has rejected the argument that a defendant may not be convicted as an habitual offender when the prior convictions precede the effective date of the habitual offender statute. People v Palm, 245 Mich 396, 400-403; 223 NW 67 (1929); In re Brazel, 293 Mich 632, 637-638; 292 NW 664 (1940).
The proceedings to determine whether a driver’s license should be suspended are administrative in nature. Consequently, the due process protections afforded in a criminal trial do not attach to those proceedings with the same degree of stringency. Wolney v Secretary of State, 77 Mich App 61, 69; 257 NW2d 754 (1977), lv den 402 Mich 877 (1978). In view of the weight of authority holding that it is proper to enhance sentences in criminal cases based on prior convictions preceding the effective date of the enhancement statutes, which we find most persuasive, a different result in the instant administrative proceeding would be most anomalous. We hold that the penalty enhancement provision of MCL 257.323c(2); MSA 9.2023(3)(2) prohibits the circuit court from ordering the issuance of a restricted license even when the first of two suspensions occurring within a seven-year period precedes March 30, 1983.
Accordingly, the circuit court order for restoration of a restricted license was in error.
Reversed._
For the present form of the second-offense provision, see MCL 257.625(5); MSA 9.2325(5).
We conclude that the saving clause enacted with the penalty enhancement provision does not require a different result. 1982 PA 310, § 2. The penalty enhancement provision attaches to the subsequent offense, not to the first. Miller, supra, 410. | [
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] |
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