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Shepherd, J.
Plaintiffs sued several defendants on July 1, 1985, including defendant Rapco-Foam, Inc., alleging personal injury and property damage from the manufacture and use of urea formaldehyde foam insulation. At the time, Rapco was involved in Chapter 7 bankruptcy proceedings. Ralph C. McCullough II was appointed bankruptcy trustee on June 25, 1982. Since at least that time, Rapco has ceased to do business and has appointed no officers or directors.
Plaintiffs made substantial but unsuccessful attempts to locate Rapco’s former officers and directors. Rapco had not occupied its last known address in New York City for more than four years as of September, 1986. McCullough’s only relationship with Rapco has been as bankruptcy trustee. He is in possession of all of Rapco’s books and official papers, however. Plaintiffs served McCullough by registered mail on September 6, 1985. The Michigan Corporations and Securities Bureau was also served by mail at the same time. The law firm for which McCullough was "of counsel” forwarded the summons and complaint to Fireman’s Insurance Company of Newark on September 12, 1985. The law firm of Wilson, Portnoy, Leader, Pigeon & Roth, P.C., filed a "notice of retention” on October 10, 1985, indicating that it had been retained to represent Rapco’s interest in this matter.
Rapco moved to quash service of process on February 5, 1986. The trial court granted the motion and dismissed the action against Rapco without prejudice in an order entered April 18, 1986. We reverse.
MCR 2.105(D) provides for service of process upon corporations:
(D) Private Corporations, Domestic and Foreign. Service of process on a domestic or foreign corporation may be made by
(1) serving a summons and a copy of the complaint on an officer or the resident agent;
(2) serving a summons and a copy of the complaint on a director, trustee, or person in charge of an office or business establishment of the corporation and sending a summons and a copy of the complaint by registered mail, addressed to the principal office of the corporation;
(3) serving a summons and a copy of the complaint on the last presiding officer, president, cashier, secretary, or treasurer of a corporation that has ceased to do business by failing to keep up its organization by the appointment of officers or otherwise, or whose term of existence has expired;
(4) sending a summons and a copy of the complaint by registered mail to the corporation or an appropriate corporation officer and to the Michigan Corporation and Securities Bureau if
(a) the corporation has failed to appoint and maintain a resident agent or to file a certificate of that appointment as required by law;
Ob) the corporation has failed to keep up its organization by the appointment of officers or otherwise; or
(c) the corporation’s term of existence has expired.
This Court has previously held with regard to nearly identical GCR 1963, 105.4 that service of process may be made by following any one of the four alternatives in the court rule. Clayton v Ann Arbor Motor Inn, Inc, 94 Mich App 370, 374; 288 NW2d 432 (1979), lv den 410 Mich 886 (1981).
Rapco maintains that service on a defunct organization may be made only through subrule (3). This view is contradicted by the commentary in 1 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), p 97, which recognizes that subrules (2) and (4) may also be used for serving corporations in bankruptcy. In fact, this Court held in Clayton, supra at 376, that the term "trustee” in subrule (2) includes a bankruptcy trustee, permitting service on the bankruptcy trustee as in this case. Rapco attempts to distinguish Clayton as involving a Chapter 11 reorganization rather than a Chapter 7 liquidation.
For purposes of receiving process, we are not convinced that this distinction is important as in both situations the trustee is involved in settling the corporation’s financial affairs, which may include pending lawsuits in certain circumstances. In the case of a Chapter 7 liquidation proceeding, the corporation, its officers, and directors may have ceased to function and the trustee may be the only person still acting for the corporation. Such is alleged here.
It is not clear, however, despite service on the trustee, that plaintiffs complied with the remainder of subrule (2) by mailing a copy of the summons and complaint to Rapco’s principal office. It is also not clear whether plaintiffs complied fully with subrule (4) by sending a copy of the summons and complaint "to the corporation or an appropriate corporate officer,” unless we conclude that the trustee is effectively the corporation now that it has ceased to operate.
Despite these alleged defects in service of process, however, we believe the trial court erred in dismissing the case. A new provision in the 1985 court rules, MCR 2.105(J)(3), provides:
An action shall not be dismissed for improper service of process unless the service failed to inform the defendant of the action within the time provided in these rules for service.
This Court has held that service-of-process rules are intended to satisfy the due process requirement that a defendant be informed of the pendency of an action by the best means available, by methods reasonably calculated to give a defendant actual notice of the proceeding and an opportunity to be heard and to present objections or defenses. If the defendant actually receives a copy of the summons and complaint within the time permitted by the court rules, the defendant cannot have the action dismissed on the ground that the manner of service contravened the rules. Hill v Frawley, 155 Mich App 611, 613; 400 NW2d 328 (1986). MCR 2.105(d)(3) is not stated in discretionary terms. Neither errors in the content of the service nor in the manner of service are to result in dismissal unless the errors are so serious as to cause the process to fail in its fundamental purpose. See 1 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), p 105.
While the exact nature of Rapco’s current existence is somewhat unclear, it is clear in this case that Rapco is aware of the pending action. Service on the trustee is undisputed. At the hearing on the motion to quash, Robert Roth stated that he was appearing on behalf of Rapco, not an insurance company. Accordingly, the trial court erred in quashing service and dismissing Rapco when Rapco was fully aware of the pending action despite any errors in the manner of service.
Reversed and remanded for further proceedings. | [
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Per Curiam.
Plaintiff appeals as of right from the July 7, 1986, order of summary disposition pursuant to MCR 2.116(C)(10) granted to defendants by the Emmet Circuit Court on plaintiff’s negligence claim.
The facts, as set forth in the pleadings, depositions, and affidavits are as follows. Plaintiff is a Detroit Free Press deliveryman in Petoskey, Michigan. At approximately 4:00 a.m. on March 9, 1985, plaintiff went to the home of defendants, located at 1116 East Mitchell Street in the City of Petoskey, for the purpose of delivering the morning newspaper. Snow was piled on their lawn, but defendants’ driveway had been cleared. The lighting in the area was poor. Plaintiff slipped and fell while walking on defendants’ driveway, breaking his leg. After he fell, plaintiff noticed that runoff had frozen on the driveway. There was no salt, sand, or other abrasive covering the frozen surface of the driveway.
Plaintiff filed a complaint on September 30, 1985, alleging that defendants were negligent in maintaining their driveway. On June 17, 1986, defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(10). Defendants argued that there was no genuine issue as to the fact that any snow or ice on the driveway was "natural accumulation.” Defendants further argued that a landowner has no duty to prevent injuries resulting from natural accumulations of snow or ice and that they were therefore entitled to judgment as a matter of law. The circuit court agreed and issued the order of summary disposition challenged in this appeal.
Our standard of review of orders for summary disposition under MCR 2.116(C)(10) is a familiar one:
Summary judgment pursuant to GCR 1963, 117.2(3), now MCR 2.116(C)(10), is proper only if there is no genuine issue as to any material fact and the party in whose favor judgment is granted is entitled to judgment as a matter of law. A motion based on GCR 1963, 117.2(3) is designed to test the factual support for a claim. Maccabees Mutual Life Ins Co v Dep’t of Treasury, 122 Mich App 660, 663; 332 NW2d 561 (1983), lv den 417 Mich 1100.15 (1983). The court must consider the pleadings, affidavits, and other available evidence and be satisfied that the claim or position asserted cannot be supported by evidence at trial because of some deficiency which cannot be overcome. Id. The court must give the benefit of any reasonable doubt to the party opposing the motion and inferences are to be drawn in favor of that party. Id. [Hagerl v Auto Club Group Ins Co, 157 Mich App 684, 686-687; 403 NW2d 197 (1987).]
Defendants argue that summary disposition was appropriate because plaintiff produced no evidence indicating that the ice or snow upon which he slipped was other than "natural accumulation.” We agree that the evidence produced by plaintiff would establish no more than that the ice was a natural accumulation. However, we do not agree that defendants are thereby entitled to judgment as a matter of law.
Creech v Consumers Power Co, 59 Mich App 167; 229 NW2d 358 (1975), lv den 395 Mich 822 (1975), upon which defendants rely, does reaffirm the long-standing adherence of Michigan to the Massachusetts rule. The Massachusetts rule, as explained in Creech, is as follows:
[T]he landowner has no duty to its invitees, either to warn of snow and ice accumulations or remove them or prevent them where the accumulations result solely from natural causes. It is only where the snow or ice accumulated because of a negligent affirmative act of the landowner, or where the landowner’s act increases the danger from a natural accumulation, that the property owner may be held liable for an invitee’s slip and fall. Gillen v Martini, 31 Mich App 685; 188 NW2d 43 (1971); Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 51 Mich App 242; 214 NW2d 911 (1974), lv gtd, 392 Mich 804 (1974); Bard v Weathervane of Michigan, 51 Mich App 329; 214 NW2d 709 (1974). [Creech, supra, 171.][ ]
However, nine months after Creech was decided, our Supreme Court overruled Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 51 Mich App 242; 214 NW2d 911 (1974), rev’d 395 Mich 244 (1975), upon which Creech relied.
In Quinlivan, our Supreme Court noted that even Alaska had abrogated the Massachusetts rule. Our Supreme Court explained:
In our view the Alaska Court has appropriately conceived the legal duty owed by the invitor to the invitee. As that Court found the basis for its decision rooted in pre-existing Alaska law, we find that the basis for our decision is grounded in cases such as Torma [v Montgomery Ward & Co, 336 Mich 468; 58 NW2d 149 (1953)], supra, which have recognized the rigorous duty owed an invitee. To the extent pre-existing case law authority indicated that the natural accumulation rule applied in an invitor-invitee context, that authority is overruled. For reasons adequately stated by the Alaska Court, we reject the prominently cited notion that ice and snow hazards are obvious to all and therefore may not give rise to liability. While the invitor is not an absolute insurer of the safety of the invitee, the invitor has a duty to exercise reasonable care to diminish the hazards of ice and snow accumulation. The general description of the duty owed appearing in the Restatement is a helpful exposition of the duty described in Torma. As such duty pertains to ice and snow accumulations, it will require that reasonable measures be taken within a reasonable time after an accumulation of ice and snow to dimmish the hazard of injury to the invitee. The conduct of the invitee wül often be relevant in the context of contributory negligence. [Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 260-61; 235 NW2d 732 (1975). Emphasis added. Footnote omitted.]
Defendants make much of the fact that although this Court affirmed the order of summary judgment awarded to the Creech defendant, our Supreme Court denied leave to appeal on December 23, 1975, one month after the Supreme Court opinion in Quinlivan. We have not been apprised of our Supreme Court’s reasons for denying leave to appeal in Creech and are therefore reluctant to find that it holds any continuing vitality. On the other hand, we are well aware of the long-standing rule that a denial of an application for leave to appeal has no precedential value in and of itself. Owendale-Gagetown School Dist v State Bd of Ed, 92 Mich App 719, 725; 285 NW2d 435 (1979), aff'd 413 Mich 1; 317 NW2d 529 (1982). MCR 7.321. Based upon that rule and the express intent of the Supreme Court in Quinlivan, we reject the notion that the Massachusetts rule, as expressed in Creech, has any continuing force in Michigan.
Since our Supreme Court’s opinion in Quinlivan, this Court has occasionally cited Creech. See, e.g., Woodworth v Brenner, 69 Mich App 277; 244 NW2d 446 (1976); Elam v Marine, 116 Mich App 140; 321 NW2d 870 (1982). However, those cases address the liability of a landowner for injuries caused by natural accumulations of ice or snow on abutting public sidewalks. Our Supreme Court expressly reserved judgment on that issue in Quinlivan. Quinlivan, supra, 256.
Here, on the other hand, the evidence construed most favorably toward the plaintiff establishes that plaintiff fell on defendants’ driveway. Thus, in our view this case is instead controlled by Lundy v Groty, 141 Mich App 757; 367 NW2d 448 (1985). The Lundy plaintiff also slipped and fell on the defendant’s snow-covered driveway when she arrived at the home to provide a business service. Noting that the snow was natural accumulation and noting further that it had not yet stopped snowing, the trial court held that the defendant had no duty toward the plaintiff. We reversed, explaining that Quinlivan established a duty on the part of landowners to take reasonable measures within a reasonable time after the accumulation of snow to diminish the hazard of injury to an invitee. Lundy, supra, 760. We further explained that the specific standard of care, i.e., whether salt or sand should have been used in addition to shoveling, was a question of fact for the jury. Lundy, supra.
We conclude that the trial court erred in holding that defendants at bar had no duty to protect plaintiff from injuries flowing from natural accumulations of ice and snow. Moreover, even if it is established that defendants shoveled their driveway adequately, a jury question remains as to whether defendants adequately salted or sanded the surface. Summary disposition was improperly granted to defendants.
Reversed.
For the purpose of this appeal, it has not been disputed that plaintiff was an invitee. See Doran v Combs, 135 Mich App 492; 354 NW2d 804 (1984) (defining "invitee” and "licensee”).
The Lundy plaintiff was the defendant’s housekeeper. Lundy, supra, 759. | [
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] |
Per Curiam.
During an argument with another patron of a Wayne County bar on or about July 2, 1986, defendant fired a shot which struck and killed a bystander. A jury convicted defendant of voluntary manslaughter, MCL 750.321; MSA 28.553, assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to five to fifteen years for the manslaughter conviction, five to ten years for the assault conviction, and two years for the felony-firearm conviction. Defendant appeals as of right.
i
On appeal, defendant asserts that he was denied a fair trial due to acts of prosecutorial misconduct. As to several of these instances, defense' counsel failed to object at trial. Therefore the issues are not preserved for review unless defendant can show that (1) the prejudicial effect of the alleged misconduct was so great that even a cautionary jury instruction would not have overcome it and (2) failure to consider the issue would result in a miscarriage of justice. People v Jancar, 140 Mich App 222, 233; 363 NW2d 455 (1985). Defendant has shown neither. However, since part of defendant’s argument of ineffective assistance of counsel is premised on the issue of prosecutorial misconduct, we will address it.
Several of defendant’s subarguments as to prosecutorial misconduct challenge the prosecutor’s comments during rebuttal and cross-examination of defendant. We find all of these arguments unconvincing. First, where defendant put into evidence testimony of his peaceful nature and stated that he carried a knife as a tool and not as a weapon, on cross-examination the prosecutor was allowed to rebut this testimony. People v Bouchee, 400 Mich 253, 266-267; 253 NW2d 626 (1977). People v Smith, 80 Mich App 106, 117; 263 NW2d 306 (1977), lv den 406 Mich 920 (1979).
Second, although a prosecutor may not argue in such a manner as to shift the burden onto the defendant to explain something, People v Nabers, 103 Mich App 354, 369; 303 NW2d 205 (1981), rev’d on other grounds 411 Mich 1046 (1981), the prosecutor may comment on the evidence and draw reasonable inferences therefrom. Janear, supra at 233. Hence the prosecutor was allowed to argue from the facts and evidence that defendant was lying about his alleged memory loss. People v Jansson, 116 Mich App 674, 693; 323 NW2d 508 (1982).
Third, the prosecutor’s comments during cross-examination to the effect that defendant’s injuries resulting from the altercation were not serious enough to cause his death, whereas the deceased was not so fortunate, may have been undesirable but did not constitute error requiring reversal because they did not infect the trial with unfairness such as to make the resulting conviction a denial of due process. Darden v Wainwright, 477 US —; 106 S Ct 2464, 2472; 91 L Ed 2d 144, 157 (1986), reh den 107 S Ct 24 (1986).
Equally without merit is defendant’s attack on the prosecutor’s remarks during closing argument and rebuttal, that there should be "some meaning to his death” and "a sense of justice after he had died,” as an improper appeal to the jury’s sympathy. While it is true that arguments which are little more than an appeal to the jury’s sympathy for the victim are improper, People v Wise, 134 Mich App 82, 104; 351 NW2d 255 (1984), lv den 422 Mich 852 (1985), defendant mischaracterizes the remarks by taking them out of context. A prosecutor’s closing argument should be considered in its entirety. People v Cowell, 44 Mich App 623, 627; 205 NW2d 600 (1973). The entire closing argument in this case shows that the prosecutor asked the jury to examine all of the evidence and, if the evidence indicated defendant’s guilt beyond a reasonable doubt, a guilty verdict would provide a sense of justice for the tragic death of an innocent bystander.
Nor are we persuaded by defendant’s assertion that the prosecutor allegedly argued facts not of record. From the facts adduced at trial it was reasonable for the prosecutor to argue that defendant had two guns and was not acting in self-defense. But even assuming the prosecutor’s comments to be error, the error was harmless beyond a reasonable doubt. This is because the alleged error was not so offensive to the maintenance of a sound judicial process that it could never be regarded as harmless and because the evidence against defendant was so overwhelming that no juror would have voted for acquittal. People v Christensen, 64 Mich App 23, 32-33; 235 NW2d 50 (1975). Defendant was entitled to a fair trial, not a perfect one. Delaware v Van Arsdall, 475 US —; 106 S Ct 1431, 1436; 89 L Ed 2d 674, 684 (1986).
ii
Defendant’s next contention is that he was denied the effective assistance of counsel because his counsel failed to present a defense of diminished capacity.
Defendant should have raised the issue of ineffective assistance of counsel by moving in the trial court for a new trial or an evidentiary hearing. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). Failure to so move usually forecloses appellate review. People v Lawson, 124 Mich App 371, 373; 335 NW2d 43 (1983). However, review may be granted where the appellate record contains sufficient detail to support defendant’s position; if so, review is limited to the record. People v Kenneth Johnson, 144 Mich App 125, 129-130; 373 NW2d 263 (1985), lv den 424 Mich 854 (1985).
The record does not support defendant’s contentions. More than hindsight is needed to attack a criminal defendant’s assistance of counsel at trial. The decision to argue self-defense instead of diminished capacity falls in the category of trial strategy. It is inappropriate for this Court to substitute its own judgment for that of defense counsel in such matters. People v Lotter, 103 Mich App 386, 390; 302 NW2d 879 (1981), lv den 412 Mich 852 (1981).
Trial counsel met the requirements of People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977). He conscientiously attempted to protect the accused’s interests, performing at least as well as a lawyer with ordinary training and skill in the criminal law. Having so performed, he did not make such a serious mistake that, otherwise, the accused might reasonably have been acquitted. Id. at 264. Having met the Garcia standard, counsel also met the less stringent test of Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), reh den 467 US 1267; 104 S Ct 3562; 82 L Ed 2d 864 (1984). Therefore defendant was not denied the effective assistance of counsel.
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E. E. Borradaile, J.
The primary question in this case involves a finding by the trial judge, as the trier of fact, that unconsciónability existed in a commercial equipment lease setting. Based upon this finding the trial court denied relief to the plaintiff financing agent. We affirm.
The facts show that defendant Fred D. Peake, owner of defendant National Asphalt Paving, Inc., had been in the asphalt paving business for some time doing small local jobs. In the winter of 1979-1980, Peake secured a state highway job and decided he needed to crush his own rock to supply the necessary aggregate for the job. He saw an ad in a trade magazine for the rental of a rock crusher in Phoenix, Arizona, and contacted the owner, Rosario Brabant. Peake eventually traveled to Phoenix to discuss the possibility of renting the equipment. He entered into a lease which included the crusher as well as several very large pieces of machinery. Peake made a $9,000 deposit with an understanding that the money spent on any crusher repair would be applied to the rental. There was no agreement by the parties for the purchase of the equipment.
The crusher-components arrived in Michigan in March of 1980, and the crusher was assembled and put into operation. From that time forward Peake had difficulty getting the crusher to operate due to missing parts as well as items on the crusher needing repairs. At times Peake had to purchase aggregate from other sources to fulfill the road paving contract. In May of 1980, Brabant informed Peake that he was farming out the rental agreement to a friend, Gary Hayward. Subsequently, Hayward, then vice-president and branch manager of the Phoenix Arizona Commercial Equipment Regional Office of plaintiff Northwest Acceptance Corporation, met with Peake. Although Peake claims he was confused, a new lease agreement was filled out. At trial, Peake claimed he had not seen the agreement, which had been prepared by the plaintiff, prior to the meeting. At the conclusion of the forty-five-minute meeting, Peake signed the agreement. Peake asserts that he told Hayward of the problems he was having with the equipment and Hayward promised to contact Brabant to insure prompt repair of the equipment. Peake further asserts that he was not informed that Northwest Acceptance was not a guarantor with respect to performance of the equipment and that the damage formula provided for in the lease agreement was not explained to him. Peake indicated that the first time that a purchase price had been mentioned to him was during the meeting with Hayward. Peake had not indicated an interest in buying the equipment.
At the meeting, Hayward informed Peake that plaintiff Northwest Acceptance had purchased the crusher for $330,000 although neither Hayward nor any employees of Northwest Acceptance had inventoried, appraised, or seen the equipment. Subsequent to signing the documents, Peake continued to have trouble with the crusher; however, he continued to make payments to Northwest. In the winter of 1982, Brabant returned the jaw of the crusher to Peake, supposedly after it had been properly repaired. Upon installation, the crusher operated for less than one day before breaking down. Peake then decided to call in a Michigan machinery repair company to properly repair the machinery. Peake testified that, through June of 1982, approximately $100,000 had been spent by National Asphalt in equipment repairs. In 1982 Peake advised Hayward that he could no longer make the monthly payments due to the repair costs. In response Peake was told to contact the Northwest Acceptance office in Detroit to renegotiate the deal. An appointment was made and Peake was informed to have his wife present. Peake claimed that he did not read the second documents which were signed and was merely told that he and his wife must sign them. The second documents involved a guarantee as to payment.
In the fall of 1984, the machine was returned to Northwest Acceptance, who sold it for $175,000. At that point, National Asphalt had paid $196,750.32 on the crusher and had paid $190,480.18 for repairs and rebuilding. Northwest Acceptance also had a claim on a certain Massey-Ferguson loader and a Freightliner tractor which were cross-collateralized with the crusher.
The trial judge found that the leases in question were unconscionable at the times of their execution. The trial judge stated in his opinion and order that plaintiff brought prepared legal documents to the forty-five-minute meeting which took place in a restaurant and did not give defendant Peake, who represented National Asphalt, any opportunity to read, study or consult in regards to the deal. Further, the trial judge concluded that the deal speaks for itself as to the benefits plaintiff was to receive. Peake was required to execute the documents immediately or have the equipment taken from him. In addition, plaintiff Northwest Acceptance claimed to be the owner of old and some new equipment without ever having viewed the same. The trial court further noted that defendants did not receive the machinery contracted for and the equipment forwarded to them was in a poor state of operation. The trial court stated that the second lease was even more favorable to the plaintiff and less favorable to the defendants, in both transactions there was an absence of meaningful choice on the part of the defendants, and the contract terms were unreasonably favorable to plaintiff. The trial court found no cause of action on the lease agreement, but required defendants to pay $7,400 for the Massey-Ferguson loader and $31,000 for the Freightliner tractor. A motion for costs was made subsequent to the trial court’s opinion. The trial court, consistent with MCR 2.405(E), awarded the attorney for defendants Almont Gravel and National Asphalt $12,740, and the attorney for the Peakes $4,290, allowing both to collect fees at $65 per hour.
Plaintiff on appeal argues that the trial court improperly relied upon the earlier lease in making its decision and should have disregarded that lease because it merged into the subsequent lease on which the suit was brought. Plaintiff also argues that the trial court did not have facts before it to establish procedural unconscionability and that the trial court made no finding whatsoever that the second lease or any of its terms were substantively unconscionable and thus, the trial court erred as a matter of law by declaring the lease void and unenforceable. Plaintiff also notes that the second lease was a standard financing lease commonly used and commercially accepted as a method of financing and that the court’s decision jeopardizes the viability of standard financing leases which play a significant role in national commerce.
The trial court found that MCL 440.2302; MSA 19.2302 was the proper law to apply, that being the portion of the Uniform Commercial Code dealing with unconscionability. The trial court cited Reed v Kaydon Engineering Corp, 38 Mich App 353, 356; 196 NW2d 487 (1972):
The concept that substantively unreasonable contractual provisions will not be enforced is part of our jurisprudence independently of the Uniform Commercial Code.
The commercial setting, purpose, and effect of the contractual provision determines whether that provision is substantively unreasonable or unconscionable. Id.
In the practice commentary by Professor Roy L. Steinheimer, Jr., to MCL A 440.2302, he states:
Under this section, unconscionability is a question of law for the court to decide. The court should determine the issue of unconscionability as of the time of the making of the contract, not as of the time of suit. Unconscionable contracts can be declared unenforceable either in whole or in part at the discretion of the court. The issue can be raised by either party or by the court on its own motion. The parties can, as a matter of right, introduce evidence relevant to any claim of unconscionability and thus lay grounds for review.
The theory that unconscionable contracts will not be enforced by our courts is not entirely new to Michigan law. In the early case of [Eames v Eames, 16 Mich 348 (1868)], a court of equity, exercising its traditional power to refuse extraordinary relief, dismissed a bill for specific performance of a contract for the sale of a patent right which would have given the buyer unconscionable advantage over the seller and his creditors. In [Briggs v Withey, 24 Mich 136 (1871)], equity granted affirmative relief against an unconscionable settlement by holding promissory notes invalid as to one-half of the amount of the settlement. For other cases in which the court has given either negative or affirmative equitable relief against unconscionable arrangements, see [Myer v Hart, 40 Mich 517 (1879)] (debtor-creditor relationship); [Kukielka v Ranyak, 229 Mich 13; 200 NW 964 (1924)] (overtones of fraud and an exchange of mixed realty and personalty); [Johnston Realty & Investment Co v Grosvenor, 241 Mich 321; 217 NW 20 (1928)] (exchange of realty); [In re Detroit Macaroni Co, 46 F Supp 284 (D Mich, 1942)] (bankruptcy situation).
In Johnson v Mobil Oil Corp, 415 F Supp 264 (ED Mich, 1976), Federal District Judge Feikens relied on Allen v Michigan Bell Telephone Co, 18 Mich App 632; 171 NW2d 689 (1969), lv den 383 Mich 804 (1970), in dealing with the issue of unconscionability. Judge Feikens found unconscionability, noting that other courts have also found unconscionability in a variety of commercial settings, referring to Fairfíeld Lease Corp v Umberto, 7 UCC Rep Ser 1181 (NY Civ, 1970).
In Anno: "Unconscionability” as ground for refusing enforcement of contract for sale of goods or agreement collateral thereto, 18 ALR3d 1305, 1307, the author notes that courts have seldom explicitly defined the term "unconscionability” or "unconscionable contract” but frequently use the vague definition found in the early English case of Earl of Chesterfield v Janssen, 2 Ves Sen 125, 155; 28 Eng Rep 82 (1750), quoted in Hume v United States, 132 US 406, 411; 10 S Ct 134; 33 L Ed 393 (1889), in which it is said that an unconscionable bargain is one "such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.” The annotation contains a number of cases where, in both a lease and purchase setting, unconscionability has been found. Many of the cases reported involve an uninformed person not involved in commerce dealing with a commercial entrepreneur who is shown to have overreached. It is noted that with the advent of the Uniform Commercial Code the doctrine has gained greater acceptance and the law is still in a state of development.
As noted above, plaintiff has raised a question as to whether both substantive and procedural unconscionability was shown sufficient to justify the trial court’s findings. This Court has suggested that in order for a finding of unconscionability to be made both substantive and procedural unconscionability must be present. In Allen, supra, pp 637-638, this Court refused to enforce a contract clause which limited the telephone company’s liability for damages when it failed to publish plaintiffs advertisement in the yellow pages as it had contracted to do, stating:
There are then two inquiries in a case such as this: (1) What is the relative bargaining power of the parties, their relative economic strength, the alternative sources of supply, in a word, what are their options?; (2) Is the challenged term substantively reasonable?
"Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” [Williams v Walker-Thomas Furniture Co, 121 US App DC 315, 319; 350 F2d 445, 449; 18 ALR3d 1297 (1965)].
Thus, merely because the parties have different options or bargaining power, unequal or wholly out of proportion to each other, does not mean that the agreement of one of the parties to a term of a contract will not be enforced against him; if the term is substantively reasonable it will be enforced. By like token, if the provision is substantively unreasonable, it may not be enforced without regard to the relative bargaining power of the contracting parties.
The trial court in this case found that the leases were unconscionable at the time of their execution. The trial court did not find that the plaintiff had conducted any active or deliberate fraud or misrepresentation upon the defendant, but the elements were not necessary where the deceptive influence was in fact effective and unconscionable. The trial court further noted that there was an absence of meaningful choice on the part of the defendant and the contract terms were unreasonably favorable to the plaintiff.
Though plaintiff has argued that the trial court should not have considered the first lease as noted above, the trial court found that the two leases were interrelated. This Court also believes that the two leases must be analyzed as a single transaction. The circumstances relating to the execution of the first lease cannot be divorced from the circumstances surrounding the execution of the second lease. The trial court specifically found that the defendant was not given any opportunity to read, study, or consult in regards to the deal both as to the first lease and as to the second lease. As defendant Peake testified, he was at a point where he had to have the equipment to continue per forming the road work under the contract and felt that he had a "gun to his head.”
With respect to procedural unconscionability and any resulting substantively unreasonable terms, this Court in Allen, supra, p 637, stated:
Implicit in the principle of freedom of contract is the concept that at the time of contracting each party has a realistic alternative to acceptance of the terms offered. Where goods and services can only be obtained from one source (or general sources on noncompetitive terms) the choices of one who desires to purchase are limited to acceptance of the terms offered or doing without. Depending on the nature of the goods or services and the purchaser’s needs, doing without may or may not be a realistic alternative. Where it is not, one who successfully exacts agreement to an unreasonable term cannot insist on the court’s enforcing it on the ground that it was 'freely’ entered into, when it was not. He cannot in the name of freedom of contract be heard to insist on enforcement of an unreasonable contract term against one who on any fair appraisal was not free to accept or reject that term.
While this is admittedly a close case, this Court may not set aside the findings of fact by a trial court unless they are clearly erroneous. A finding of fact by a trial court is clearly erroneous when the reviewing court, after reviewing the entire record, is left with a definite and firm conviction that a mistake has been committed. Precopio v Detroit, 415 Mich 457; 330 NW2d 802 (1982).
We are satisfied from a review of the evidence presented that the trial court could find that defendants were not faced with a realistic alternative to acceptance of the terms of the first and second lease agreements. Therefore, the trial court did not err in finding procedural unconscionability. The trial court also found substantive unconscionability by finding that there was an absence of meaningful choice on the part of the defendants and that the contract terms were unreasonably favorable to the plaintiff. One area where unconscionability could be found related to the disclaimer provision in both leases prepared by plaintiff particularly in view of the necessity of defendants’ spending $100,000 in extensive repairs in order to make the equipment operational. In view of the provision in the leases that there was an option to purchase, we believe that MCL 440.2302; MSA 19.2302 applies and that the trial court did not err in finding both procedural and substantive unconscionability.
Plaintiff raises other questions relating to the trial court’s findings, one involving the admission of a summary of repairs by defendants without granting plaintiff an opportunity to review the underlying documents or conduct a hearing on the accuracy of the summary. MRE 1006 provides:
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.
Upon defendants’ tender of the summary the court, in order to keep the trial going, admitted the summary and allowed plaintiff to review, during lunch or overnight, the limited number of documents that were made available in court. The trial court told the plaintiff that it had a right to review the originals and that the court would require the original documents to be produced if plaintiff so desired. Subsequent to the cross-examination of John Robson, a cpa and officer of defendant National Asphalt, plaintiff renewed its objection to the summary of repairs. Plaintiff requested an opportunity to review the originals prior to final judgment by the court, if the individual items listed in the summary were pertinent to the court’s final decision and the trial court agreed.
On appeal, plaintiff argues that the trial court relied heavily on the summary of repairs in its findings concerning repair costs. Plaintiff says that the amount of repairs allegedly made to the stone crusher became a substantive issue in the trial and the trial court did not allow plaintiff an opportunity to review the documents and conduct full cross-examination regarding the summary before the court took the case under advisement. Defendant National Asphalt argues that, even if the summary was erroneously admitted, the error was harmless since there was sufficient additional testimony from which the trial court could make its determination that defendant National Asphalt had expended substantial amounts of money in repairing the equipment. Defendants further argue that a reading of the trial court’s opinion indicates that the exact amount of the repairs was not essential to the trial court’s decision. The fact that a substantial amount had to be . spent to repair the machinery was merely the basis for a part of the court’s decision. MRE 1006, as noted above, makes the requirement discretionary as opposed to mandatory. In this instance, the trial court gave plaintiff an adequate opportunity to examine the underlying documents. While we do not find error on the part of the trial court, we do believe that any possible error would be harmless.
Plaintiff lastly argues that the trial court erred in refusing to award plaintiff attorney fees and costs in enforcing its rights under the contracts relating to the Massey-Ferguson and Freightliner agreements. Plaintiff further objects to the trial court’s awarding defendants attorney fees and costs. We find that under MCR 2.625 the plaintiff was not the prevailing party as required by the rule in granting fees and costs. We further find that the trial judge was correct in determining that costs and attorney fees should be assessed on the basis of MCR 2.403(0) rather than on an offer of judgment made by defendants. The record indicates that the plaintiff rejected the mediation award of $175,000 which was in settlement of all claims against all defendants. MCR 2.405(E) states:
In an action in which there has been both the rejection of a mediation award pursuant to MCR 2.403 and a rejection of an offer under this rule, the cost provisions of the rule under which the later rejection occurred control.
Clearly, the mediation came after the offer of judgment and the trial court properly ruled relative to attorney fees and costs under the mediation provisions.
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Weaver, J.
The prosecution appeals from an order of the Detroit Recorder’s Court granting defendant’s motion to quash and dismissing the charge against defendant for possession with intent to deliver Dilaudids in violation of MCL 333.7401(2)(b); MSA 14.15(7401)(2)(b). We reverse.
i
On January 22, 1986, defendant approached an undercover police officer in a pool hall located in Detroit at 2215 Park. After being told by the officer that she wanted to buy some cocaine, defendant conversed with a black male at the pool table and then told the officer that he could not do anything for her at the moment. However, when the officer left the pool hall she purchased cocaine from two black males who approached her on the street, one of whom was the person with whom defendant had just spoken.
On January 23, 1986, the officer obtained a search warrant for both the premises at 2215 Park and the persons identified on the search warrant, which included defendant, described as "B/M 50’s, 5T1", 175, blk/gry hair.” That same day two officers arrested defendant as he was making a turn in his vehicle approximately forty feet from the location at 2215 Park. The arrest was made based upon defendant’s physical description and his vehicle. An officer confiscated from defendant’s pocket sixteen Dilaudid pills with an estimated street value of $350.
Following an evidentiary hearing on April 18, 1986, the Recorder’s Court granted defendant’s motion to quash, ruling that the search of defendant’s person was unreasonable because the warrant was limited to 2215 Park and its description of defendant was too vague.
n
On appeal, the prosecution argues that the police had probable cause to arrest independent of the search warrant. We agree. Although we could refuse to review this issue because it is raised for the first time on appeal, we are compelled to invoke the exception and review the issue in order to prevent a miscarriage of justice. People v Snow, 386 Mich 586, 591; 194 NW2d 314 (1972).
This Court will not disturb a trial court’s ruling at a suppression hearing unless that ruling is found to be clearly erroneous. People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). The trial court’s ruling is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made. People v Goss, 89 Mich App 598, 601; 280 NW2d 608 (1979).
Here, we are of the definite and firm conviction that a mistake has been made and that the ruling by the Recorder’s Court was clearly erroneous. The court relied upon People v Krokker, 83 Mich App 474; 268 NW2d 689 (1978), when finding that the search warrant did not justify the search of defendant’s person because it was not sufficiently specific. In so doing, the Recorder’s Court apparently focused on the discussion in Krokker which noted that warrants for the search of a person must generally be obtained by describing with particularity the person to be searched so as to identify him or her with reasonable certainty. Krokker at 477-478. However, after recognizing that the warrant must be read in conjunction with the affidavit in support of the search warrant, the Court in Krokker found that the affidavit therein had in fact established probable cause for the police to search the defendant, making it unnecessary to describe the defendant with particularity in the warrant. Id. at 480-482.
In this case, the supporting affidavit was executed by the officer who had stated to defendant her intent to purchase cocaine and had observed defendant conversing with the man from whom she actually purchased the drug only minutes later upon leaving the pool hall. The search warrant described defendant, and the arresting officers also were alerted to look for the vehicle which defendant was in fact driving at the time of his arrest.
The controlled substances portion of the Public Health Code specifically authorizes a police officer to arrest a person upon reasonable cause to believe that the person is committing or has committed a felony, regardless of whether the violation was committed in the officer’s presence. MCL 333.7501; MSA 14.15(7501). People v Cook, 153 Mich App 89, 91; 395 NW2d 16 (1986), lv den 426 Mich 873 (1986). When considering the facts of this case in light of all the circumstances, the record sufficiently demonstrates that the police had probable cause to arrest defendant independent of the warrant.
Because we find that there existed probable cause to arrest independent of the warrant, it is unnecessary to analyze the prosecution’s alternative argument regarding the reasonableness of the search based on the description in the search warrant.
Reversed. | [
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Per Curiam.
This case involves a challenge to the discharge of a tenured teacher employed by the Grand Rapids Public Schools. In an order dated January 2, 1986, the Ingham Circuit Court affirmed a June 30, 1983, ruling of the State Tenure Commission that the discharge was based on reasonable and just cause. We affirm.
In order to place this case in perspective, it is necessary briefly to recount the case’s eleven-year procedural history. Petitioner, Robert Barcheski, obtained status as a tenured teacher in the Grand Rapids Public Schools at the close of the 1971-72 school year. On October 18, 1976, the Board of Education of the Grand Rapids Public Schools voted to proceed on three charges brought against petitioner pursuant to Article iv of the teachers’ tenure act, MCL 38.101 et seq.; MSA 15.2001 et seq. Those charges were as follows:
1. That on or about August 10, 1976, Mr. Barcheski invited two female members of his driver education class to a party to be held on Friday night, August 13, 1976, the night before the raft race.
2. The two female students attended the party and drank beer and smoked pot during the evening in the presence of Mr. Barcheski.
3. Mr. Barcheski took one of the female students, Mary . . ., home in his automobile after leaving the party. Mary . . . was 15 years of age at the time in question. On the way to the residence of Mary . . ., Mr. Barcheski parked his automobile and had sexual intercourse with [her] in his automobile.
On February 15, 1977, after an extensive closed-door tenure hearing, the board of education found that the first two charges against petitioner had been proven and that the evidence was "conflicting and inconclusive” regarding the third charge. Evaluating the charges together, the board of education concluded that petitioner’s discharge was supported by reasonable and just cause. Board member David E. Hartman, in a separate concurring opinion, noted that even though the evidence concerning the third charge was conflicting, other evidence supported the conclusion that petitioner’s actions "exhibited extremely poor judgment and invited charges and claims of improper conduct.” The "other evidence” cited by Hartman included petitioner’s unaccompanied escorting home of a fifteen-year-old female student who was intoxicated and had been smoking marijuana, and his "kissing and other improprieties” of the student while in the back seat of a car. Petitioner appealed the decision of the board of education to the tenure commission.
Additional testimony was taken before the tenure commission on March 2 and 3, 1978, before four of the five tenure commission members. At that time, the tenure commission included Marian Gibson, Donald A. Schoenrath, William L. Austin, Leonard M. Porterfield, and Nathaniel Stroup (who was not in attendance at petitioner’s hearing). On August 31, 1978, before a decision in petitioner’s case was rendered, the composition of the tenure commission changed. Members Austin, Porterfield, and Stroup were replaced by James Blackburn, Mathew Prophet, and Nancy Herlein. In a decision and order dated November 30, 1978, a majority of the tenure commission, comprised of members Blackburn, Prophet, and Schoenrath, voted to reinstate petitioner, with Marian Gibson dissenting. Nancy Herlein did not participate in the decision.
Subsequently, on the board of education’s petition for review in the Kent Circuit Court, the tenure commission’s order was reversed on the basis of two grounds: the tribunal’s findings were not supported by competent, material and substantial evidence sufficient to order reinstatement of petitioner, and the procedure used by the tribunal in reaching its decision was improper. This Court affirmed two-to-one the circuit court’s reversal of the tenure commission’s decision. Grand Rapids Bd of Ed v Barcheski, unpublished opinion per curiam of the Court of Appeals, decided August 7, 1981 (Docket No. 47481). The Supreme Court, in lieu of granting leave to appeal, reversed in part the judgments of this Court and the Kent Circuit Court and remanded the case to the tenure commission "for reconsideration and issuance of a new opinion” in conformity with its order. 413 Mich 940 (1982).
On remand, the parties filed briefs on the merits and oral arguments were conducted on February 18, 1983. By this time, the composition of the tenure commission had changed again. Commissioner Gibson was the only member who participated in both the original and remand decisions. Commissioner Porterfield, who was a member at the time of the original tenure commission hearing but was no longer on the commission at the time of the original decision, was back on the commission. Commissioner Herlein did not participate in the original decision, but did participate in the remand decision. New commissioners after the remand were Joan Young and Jon Schuster. Choosing to rely on testimony elicited in the earlier hearings, the tenure commission did not hold new fact-finding hearings.
In a decision and order dated June 20, 1983, the tenure commission reversed itself and ruled that petitioner’s discharge was based on reasonable and just cause. Young and Schuster concurred in Gibson’s majority opinion, and Porterfield and Herlein dissented. On Barcheski’s petition for review, the Ingham Circuit Court affirmed the tenure commission’s ruling, from which petitioner now appeals as of right. On appeal, petitioner raises several issues, which we address seriatim.
First, petitioner argues that the tenure commission exceeded the scope of the Supreme Court’s remand instructions by issuing a wholly new decision and not merely considering the effect of those portions of the testimony of a witness, "Wendy,” the other female student who was allegedly invited by petitioner to the August 13, 1976, party, which remained unchanged between the board of education hearing and the tenure commission hearing. The tenure commission had given little weight to Wendy’s testimony because portions of her testimony had changed in petitioner’s favor only after petitioner had numerous conversations and meetings with her. Essentially, petitioner argues that the tenure commission’s task on remand was limited to a determination of whether the unchanged portions of Wendy’s testimony would affect the favorable result previously reached, and not to a review of the case de novo. We disagree.
The instructions of the Supreme Court for treatment of this case on remand to the tenure commission were as follows:
[I]n lieu of granting leave to appeal, we reverse in part the judgments of the Court of Appeals and the Kent County Circuit Court and remand the case to the State Tenure Commission for reconsideration and issuance of a new opinion in conformance with this order. The Court of Appeals and the Kent County Circuit Court erred when, having concluded that the State Tenure Commission erred in disregarding the unchanged portions of the testimony of witness [Wendy], said courts made findings of facts based upon that testimony. The courts should have remanded the case to the State Tenure Commission with directions that it reconsider its decision and issue a new opinion taking into account those portions of witness [Wendy’s] testimony which were unchanged between the hearing before the board of education and the hearing before the State Tenure Commission. Beebee v Haslett Public Schools (After Remand), 406 Mich 224 (1979); Long v Board of Education, Dist No 1, Fractional, Royal Oak Twp, 350 Mich 324 (1957). [413 Mich 940 (1982).]
On its face, the remand order requires the tenure commission to issue a "new opinion” after taking the unchanged portions of Wendy’s testimony into account. This is precisely what the commission did. Commissioner Gibson explicitly relied on a portion of her unchanged testimony in support of her opinion, and Commissioners Young and Schuster, in their concurring opinion, stated that their decision was "predicated upon the unchanged portion of Wendy’s testimony considered in the gestalt of [the] three charges lodged against [petitioner].” Normally, a lower court on remand can take any action as law and justice may require so long as it is not inconsistent with the instructions or judgment of the remanding court. Sokel v Nickoli, 356 Mich 460, 464; 97 NW2d 1 (1959); Meyering v Russell, 85 Mich App 547, 552; 272 NW2d 131 (1978), lv den 406 Mich 866 (1979). Applying this rule to the tenure commission in this case, we detect no error. In addition, we agree with the trial judge who noted that, under the circumstances, the tenure commission had no alternative but to conduct a de novo hearing. The trial judge reasoned:
To adopt appellant’s argument would prejudice the Board’s effort to secure an impartial decision from the Commission. The original decision [of the tenure commission] was vacated on the basis that it was not supported by substantial, material and competent evidence, and that the Board had denied due process. Neither of these holdings by [the Kent County Circuit Court] was disturbed by the Supreme Court. Instead, the Supreme Court reversed "in part” and [its] reversal was predicated only on the lower court’s invasion of the commission’s exclusive fact finding [sic] power .... Simply put, there was no viable decision remaining against which Wendy[’s] unchanged testimony could be reflected. Under the circumstances, the Commission had no alternative but to reconsider the appeal in light of the entire recording [,] excluding of course the inconsistent portions of [Wendy’s] testimony.
Second, petitioner argues that none of the tenure commission’s three findings is supported by substantial, material and competent evidence. Our review of the tenure commission’s findings is limited to determining from the record whether the proof received by the school board or the tenure commission or both supports the findings at which the tenure commission arrived. The precise standard is one of competent, material and substantial evidence on the whole record. Const 1963, art 6, § 28; MCL 24.306(l)(d); MSA 3.560(206)(l)(d); Comstock Public Schools v Wildfong, 92 Mich App 279, 284-285; 284 NW2d 527 (1979); Miller v Grand Haven Bd of Ed, 151 Mich App 412, 422; 390 NW2d 255 (1986), lv den 426 Mich 881 (1986). Our review of the record discloses that the tenure commission’s findings are supported by substantial, material and competent evidence, and we therefore affirm.
Regarding the first finding, i.e., that petitioner invited two female members of his driver’s education class to a party, Commissioner Gibson’s majority opinion relies heavily on the credibility of one of petitioner’s students, "Mary.” Mary admitted to the board of education that she had originally misled board investigators in her account of the party and petitioner’s invitation, but stated that shortly thereafter she told them the truth. Mary testified before the board of education that on about August 10, 1976, she discussed an upcoming raft race with petitioner and that petitioner told her that he was going to a party on Friday, August 13, 1976, the night before the raft race. She stated that petitioner invited her and Wendy to attend the party and that the three of them talked about the party "every day” that week. At the tenure commission hearing, Mary’s testimony concerning petitioner’s alleged invitation was substantially the same as that offered before the board of education.
Wendy’s testimony before the board of education concerning the alleged invitation supplemented that offered by Mary. Wendy stated that she came upon petitioner and Mary as they were talking about the party and heard petitioner ask Mary, "So, you’ll be there?” Wendy said that petitioner took a driver’s training book from her hand, jotted down the phone number of a social hall he frequented, and told the girls that if they could not find the party they should give him a call. Wendy also testified that, prior to the board of education hearing, petitioner had called her in an attempt to persuade her to falsify her testimony by stating that petitioner’s wife was not at the party and that petitioner had not given the girls a ride home from the party. At the tenure commission hearing, however, Wendy recanted the bulk of her earlier testimony, insisting that she and Mary had never been invited to the party. She testified that the telephone number that petitioner had written down on her driver’s training book was not given for the purpose of helping the girls to locate the party, but rather to give them someone to call if they were stranded after driver’s training class. When asked to explain the reason for the change in her testimony, Wendy stated that her earlier testimony was based on what Mary told her had happened rather than her own observations. Wendy explained that she had matched her story with Mary’s because she felt sorry for her friend, but conceded that, since the board of education hearing, petitioner had called her, met with her and taken her to lunch several times. Wendy acknowledged that the content of her testimony had sometimes been discussed with petitioner during these visits and calls.
Petitioner testified before the board of education that he had never invited the two students to the party. He said that when they asked him one day at the driving range whether he was going to attend the upcoming raft race he told them "no,” but explained to them that he went to an annual pre-raft-race party at the Michigan Wheel Test Basin. When they asked where Michigan Wheel was located, he simply gave them directions. Moreover, although he did not specifically remember having written down a telephone number on Wendy’s book, he said he often provided his number to students in case they needed a ride home from driver’s training classes. Petitioner conceded that, out of fear, he had originally lied to board of education investigators about the girls’ presence at the party.
In the tenure commission’s decision, Commissioner Gibson gave little weight to the testimony of Wendy and petitioner, finding that the former’s midstream change in story which had apparently been precipitated by prior meetings with petitioner and the latter’s attempts to persuade Wendy to falsify her testimony seriously jeopardized the credibility of these witnesses. On the other hand, Commissioner Gibson saw no reason not to credit Mary’s testimony, even though Mary herself had experienced many personal problems, such as drug and alcohol use and unwed motherhood.
At points, Commissioner Gibson’s findings regarding the invitation to the party are stated rather weakly. She found that Mary "could reasonably believe she had been invited” and that, rather than discouraging this belief, petitioner had encouraged it by introducing the students to his friends at the party and by telling them where the beer was located. Later, however, Gibson specifically found that "[petitioner’s] actions were an invitation to get [Mary] to attend and participate in the party.” In their concurring opinion, Commissioners Young and Schuster found that petitioner "did invite, or created the unmistakable aura of invit[ing], at least one minor female student to an adult party.”
We believe that the tenure commission majority’s finding that petitioner invited at least one female student to the party was supported by competent, material and substantial evidence on the record when viewed as a whole. Reversing that finding would merely "invade the province of [the] exclusive administrative fact-finding by displacing [the] agency’s choice between two reasonably differing views.” Comstock, supra, p 285, citing Beebee v Haslett Public Schools (After Remand), 406 Mich 224, 231; 278 NW2d 37 (1979).
The tenure commission’s second finding, i.e., that the two female students drank beer and smoked marijuana in petitioner’s presence at the party, is also supported by competent, material and substantial evidence.
Petitioner stated that he arrived at the party at about 7:30 p.m. with two male friends and that about one-half hour later the students arrived. Two friends of petitioner who were at the party said petitioner looked surprised to see the students. There was conflicting testimony as to what occurred when the two students first came in contact with petitioner at the party. Petitioner testified that the students said they were "out partying” and that they looked somewhat "loose,” like they had been drinking. Petitioner said that he introduced the students to his friends and chatted with them for about ten minutes, after which they disappeared. Petitioner said he never told the students to leave because he thought they had left on their own. He acknowledged that fifteen minutes after he initially saw the two students he saw Wendy standing down near the cement foundation of a metal derrick constructed on the riverbank, but that thereafter he saw neither of the students until preparing to leave the party several hours later. He testified that he spent most of the party in an out-of-the-way spot behind a wrecker parked next to the Michigan Wheel building, some seventy feet from the derrick where the students allegedly spent most of their evening. It was undisputed that many of those attending the party were drinking alcoholic beverages and smoking marijuana.
Mary admitted to the board of education that she and Wendy had smoked two "bowls” (two pipes full) of marijuana and had drunk several beers before having arrived at the party. She also testified that when they arrived, petitioner gave them some beer and that, during the course of the evening, they smoked marijuana in petitioner’s presence. Before the tenure commission, Mary altered her testimony somewhat and testified that petitioner had not handed them their first beer but had, instead, directed them to a refrigerator where they could get their own. Petitioner and several of his friends denied that petitioner had ever given the students beer at the party. Wendy testified before the board of education that petitioner did not give her a beer when they first met at the party and that she had obtained her first beer herself. She could not remember whether petitioner had given Mary a beer, but observed that Mary already had one when she returned with beers for both herself and Mary.
Both before the board of education and the tenure commission Mary testified that she had smoked marijuana and had drunk beer in petitioner’s presence at the party. At the board of education hearing, Wendy also affirmed that Mary had smoked marijuana and had drunk beer in front of petitioner. She noted, however, that she intentionally hid her own marijuana smoking from petitioner out of embarrassment.
Before the tenure commission, Wendy recanted part of her board of education testimony. She testified that neither she nor Mary smoked marijuana or drank beer in petitioner’s presence during the party. Six of petitioner’s friends testified that although each had seen the students smoke marijuana and drink beer at the party, this had never taken place in petitioner’s presence.
Some of Wendy’s unrecanted testimony weakened petitioner’s blanket denial that he had lost sight of the two students through most of the middle portion of the party. Wendy testified before the tenure commission that during the party petitioner and Wendy would sometimes see each other and acknowledge each other’s presence with a smile. Wendy also reluctantly testified before the tenure commission that she had seen a blonde- haired woman next to petitioner and later at the party, or at some later time, had asked petitioner if the woman was his wife. Petitioner’s wife testified before the board of education that she arrived at the party at about 8:30 p.m. and that she and her husband spent most of their time in the cement area down by the river, an area very near the derrick where the two students spent most of their evening.
Wendy also gave unrecanted testimony before the board of education that just before leaving the party, Mary was sitting in a police car with her arm around petitioner and at one point reached over and kissed him. Wendy said that both she and Mary drank beer during this time by the police car. Petitioner conceded before the tenure commission that just as he was leaving the party he saw the two students standing next to a police car drinking beer. Observing that the students were intoxicated, petitioner convinced a friend to drive the students home. Petitioner, two of his male friends, Mary and Wendy then left the party together in a car.
Thus, besides the direct testimony of Mary, who flatly asserted that she had smoked marijuana and had drunk beer in petitioner’s presence at the party, there was also testimony suggesting that petitioner maintained some visual contact with the students during the party and had spent at least some of his time near where the students were smoking and drinking. Under these circumstances, we cannot conclude that the tenure commission’s finding that the students drank beer and smoked marijuana in petitioner’s presence is not supported by substantial evidence.
The tenure commission’s third finding, i.e., that petitioner took Mary home alone in his automobile after leaving the party, is supported by petitioner’s own testimony before the board of education.
Next, petitioner argues that the tenure commission improperly made its third finding regarding petitioner’s having driven Mary home alone after the party because he was never put on notice that taking the student home by itself constituted a basis for a charge of wrongful conduct.
Originally, the third charge against petitioner provided:
3. Mr. Barcheski took one of the female students, Mary . . ., home in his automobile after leaving the party. Mary . . . was 15 years of age at the time in question. On the way to the residence of Mary . . ., Mr. Barcheski parked his automobile and had sexual intercourse with [her] in his automobile.
The board of education made specific findings regarding this charge, stating:
(3) Mr. Barcheski took one of the female students, Mary . . . home in his automobile after leaving the party. Mary . . . was fifteen years of age at the time in question.
With regard to the charge that on the way to the residence of [Mary], Mr. Barcheski parked his automobile and had sexual intercourse with [her] in his automobile, we conclude that the evidence is conflicting and inconclusive and no factual finding is, therefore, made regarding same.
In this concurring opinion, Member Hartman concluded that, under the circumstances, the fact that petitioner took Mary home alone in his automobile was by itself an exercise of poor judgment:
[T]he fact that Mr. Barcheski took this 15 year old girl home, who was intoxicated and who had been smoking marijuana, unaccompanied by another adult, exhibited extremely poor judgment and invited charges and claims of improper conduct.
Petitioner argues that when the board of education dropped the charge of sexual intercourse, it sub silentio added a charge that taking Mary home alone was improper and wrongful conduct. In so doing, says petitioner, the board of education based its decision to discharge him in part on a charge of which he had not been given proper notice.
Based on petitioner’s own testimony, however, we believe that petitioner was, or should have been, well aware that taking Mary, a young, intoxicated female student home alone in his car constituted, by itself, grounds for discipline. Petitioner stated that the students appeared intoxicated when they arrived at the party and were in even worse shape when he found them several hours later as he was leaving the party. Moreover, petitioner testified that on previous occasions, he had asked another driver’s training instructor to give Mary a ride home because he thought she had a "crush” on him. Petitioner also explained that on one occasion Mary had placed her head on his shoulder while his class was watching a movie. As noted previously, Wendy testified that at the end of the party Mary put her arm around petitioner and kissed him. Wendy gave unrecanted testimony that when petitioner’s friend, Michael Maxim, gave the two students and petitioner a ride to the social hall where petitioner had left his car, Mary kept her hand near the zipper of petitioner’s pants and that petitioner made no effort to remove it. Mary herself said that she and petitioner kissed passionately while riding in the back seat of Maxim’s car.
Given this factual scenario and the earlier findings of the board of education on this issue, petitioner was adequately put on notice that driving Mary home alone constituted by itself conduct supporting a charge of improper or wrongful conduct which could properly be considered in deciding whether a penalty would be appropriate.
Finally, petitioner argues that the tenure commission erred in admitting evidence regarding events which allegedly took place while petitioner was riding in his friend’s car immediately upon leaving the party and before he drove Mary home alone because that evidence constituted the improper impeachment of several witnesses on a collateral matter. We disagree.
Although petitioner is correct in asserting that generally a witness may not be impeached on matters which are purely collateral, Cook v Rontal, 109 Mich App 220, 229; 311 NW2d 333 (1981), lv den 415 Mich 854 (1982); McMiddleton v Otis Elevator Co, 139 Mich App 418, 426-427; 362 NW2d 812 (1984), modified on other grounds 424 Mich 862 (1985), the testimony regarding the events which allegedly took place between petitioner and Mary while riding in the car immediately after leaving the party was not purely collateral, but rather was probative of the reasonableness of petitioner’s subsequent conduct in driving Mary home alone. As observed by the circuit court on this issue, "Whether driving a student home is innocuous depends on the circumstances.” The testimony found to be collateral by petitioner was in fact pertinent because it helped to place petitioner’s conduct in context and aided in determining whether, under the circumstances of this case, it was improper for petitioner to drive Mary home alone.
For the foregoing reasons, the circuit court’s affirmance of the tenure commission’s ruling that petitioner’s discharge was based on reasonable and just cause is affirmed.
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Per Curiam.
Plaintiffs appeal as of right from an order of summary disposition granted on behalf of defendant Dr. Loo on the ground of governmental immunity in plaintiff’s medical malpractice action. MCR 2.116(C)(7).
Plaintiffs filed suit against the Village of Caro, Caro Community Hospital, Dr. Loo, Caro Family Physicians, and Dr.Quines, for medical malpractice. Only the order granting summary disposition in favor of Dr. Loo is at issue.
In plaintiffs’ complaint, plaintiffs alleged the following. On February 28, 1983, plaintiff Mary Katherine Stoick (hereinafter plaintiff) contacted her daughter-in-law, Gloria Stoick, because plaintiff was having difficulties with her health. Gloria Stoick went to plaintiff’s house and called defendant Caro Family Physicians, P.C., where plaintiff had a 1:30 p.m. appointment. An employee of Caro Family Physicians gave her permission to take plaintiff to defendant Caro Community Hospital. Once at the hospital, no doctor was available. Eventually, a nurse directed plaintiff to Dr. Loo’s clinic in the hospital. Dr. Loo examined plaintiff and found right side facial paralysis, weakness, dizziness,and an inability to talk. Dr. Loo told plaintiff that she was having a stroke, and that immediate hospitalization was required. However, Dr. Loo refused to admit plaintiff to the hospital because of a hospital policy that only the patient’s family physician or treating physician could admit a patient. Thus, Dr. Loo told plaintiff to go to her own physician. Plaintiff went to her physician, defendant Dr. Quines, who told her that she was having a stroke and to go to the hospital immediately. Dr. Quines did not accompany plaintiff. She had to wait approximately one hour before another doctor of Caro Family Physicians arrived and admitted her to the intensive care unit.
Gloria Stoick submitted an affidavit in which she stated that Dr. Loo examined plaintiff, told plaintiff that she was having a stroke, told her that she had to go to the hospital immediately, and refused to admit her himself.
Dr. Loo submitted an affidavit in which he stated that plaintiff was not in need of emergency care when she came to the clinic, and that he did not tell her she was having a stroke. He stated that he properly followed all applicable standards of care, did not refuse treatment to plaintiff, and, after referring plaintiff to her family physician, did attempt to make a phone call to her family physician’s office.
The court granted summary disposition on behalf of Dr. Loo on October 28, 1985. In its order, the court stated:
The second issue concerns Count m of Plaintiff’s complaint, the individual liability of Dr. Dante Loo, M.D. The facts plead that on February 28, 1983, the date that all allegations of negligence have been averred, Dr. Dante Loo, M.D., was an employee of Caro Community Hospital. This issue involves a separate analysis proffered in Ross [v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984)].
In determining "the existence and scope of the individual’s immunity from tort liability in a particular situation, the specific acts complained of, rather than the general nature of the activity, must be examined,” Ross, supra, p 635.
The standard of review for assertion of governmental immunity for employees is stated as follows:
"Lower level officers, employees, and agents are immune from tort liability only when they are
"(a) acting during the course of their employment and are acting, or reasonably believe they are acting, within the scope of their authority;
"(b) acting in good faith, and
"(c) performing discretionary-decisional, as opposed to ministerial-operational, acts.” Ross, supra, p. 592.
The Michigan Supreme Court further defines discretionary versus ministerial acts:
"Discretionary-decisional” acts are those which involve significant decision-making that entails personal deliberation, decision and judgment. "Ministerial-operational” acts involve the execution or implementation of a decision and entail only minor decision-making. Ross, supra, p. 592.
It is the opinion of this Court that Plaintiffs complaint has fallen short of a showing that Dr. Loo was engaged in any ultra-vires activity. The alleged facts are not adequate to show that Defendant was acting outside his authority, with ill-faith and performing a ministerial-operational task. His decision not to admit the Plaintiff was clearly a discretional act under the circumstances of this case and immune from liability [sic].
Initially, we note that the court erred in confining its analysis to the pleadings alone and disregarding the affidavits. MCR 2.116(G)(2) states that for motions based on subrule (C)(7), affidavits, depositions, admissions, or other documentary evidence may be submitted by a party to support or oppose the grounds asserted in the motion. MCR 2.116(G)(5) states that the affidavits and other documentary evidence must be considered by the court. Thus, the court should have considered the affidavits in determining whether a disputed issue of fact existed. Since there was a material issue of fact raised by the affidavits as to whether Dr. Loo told plaintiff that she was suffering from a stroke and that she needed to be hospitalized immediately and then refused to admit her, the court then should have looked to the legal sufficiency of plaintiffs pleadings to see if the complaint could survive a summary disposition motion as to Dr. Loo.
To overcome a claim of governmental immunity, a complaint must plead facts in avoidance of governmental immunity. McCann v Michigan, 398 Mich 65, 77; 247 NW2d 521 (1976); Ross v Consumers Powers Co (On Rehearing), 420 Mich 567, 621, n 34; 363 NW2d 641 (1984); Hyde v University of Michigan Bd of Regents, 426 Mich 223, 261; 393 NW2d 847 (1986). In testing whether plaintiffs have pled sufficient facts to overcome a claim of governmental immunity, all well-pled allegations are presumed to be true. Tobias v Phelps, 144 Mich App 272, 275-76; 375 NW2d 365, lv den 424 Mich 859 (1985). Summary disposition should not be granted unless no factual development could possibly furnish a basis for recovery. Tobias, supra at 276.
In Ross, supra, the Court adopted a two-tiered test for evaluating individual immunity from tort liability. Judges, legislators, and the highest executive officials of all levels of government are absolutely immune when they are acting within their judicial, legislative or executive authority. Ross, supra at 633. Lower level officials, employees, and agents enjoy governmental immunity only if they are:
1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority;
2) acting in good faith; and
3) performing discretionary, as opposed to ministerial acts. [Ross, supra at 633-634.]
Plaintiffs did not argue at the hearing that the first requirement was not met. Therefore, we move to the second requirement. The "good faith” requirement has not received much attention by the courts. In Tobias, supra, the plaintiff alleged that several months after the plaintiff’s decedent’s commitment to the Ypsilanti Forensic Center, the defendant doctors began to wean her off her asthma medication in preparation for surgery, that the decedent began having increasing diffi culty with her asthma, and begged defendants for medication, that her condition worsened and one day she was sent to the "quiet room” as punishment for failing to dress, and that she was later found dead in the room. The plaintiff alleged that the doctors breached the applicable standard of care. Tobias, supra at 276. The trial court held that the plaintiff had failed to plead sufficient facts in avoidance of governmental immunity to permit prosecution of the medical malpractice claim. This Court reversed and stated the following regarding bad faith:
We also conclude that plaintiffs allegations, if true, might support a finding that defendants did not act "in good faith”. Ross, supra. Indeed, if they were deliberately indifferent to the decedent’s serious medical needs and, therefore, liable under 42 USC 1983, then they could not have been acting in good faith. In Estelle v Gamble [429 US 97, 104; 97 S Ct 285; 50 L Ed 2d 251 (1976)] the United States Supreme Court held "that deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain’ ” forbidden by the Eighth Amendment. Such a state of mind is utterly inconsistent with good faith. [Tobias, supra at 282.]
In the instant case, plaintiff alleged the following:
18. That the Defendant, Dr. Loo examined Mary Katherine Stoick and indicated that she was "having a stroke”.
19. That Defendant, Dr. Loo at that time took her blood pressure and received a reading of 210/ 110 with a pulse of 100 and resperation [sic] of 20. Further, Defendant, Dr. Loo’s examination indicated a right side facial paralysis, weakness, dizziness and inability to talk. Further, in his examina tion Defendant, Dr. Loo indicated that the Plaintiff needed to be admitted to the hospital.
20. That Defendant, Dr. Dante Loo refused at that time to admit the patient to Defendant, Caro Community Hospital.
* * *
51. That the Defendant, Dr. Dante Loo at all times pertinent hereto and relative to all facts stated herein and [sic] held himself out to the public as a general practitioner and/or as [a] specialist in the field of family medicine and in accordance therewith owed the plaintiff Mary Katherine Stoick the duty to provide the recognized standard of care of an acceptable, professional practice in the community in which the defendant practices or in a similar community br as stated in MSA 27A.2912(1)(a) and/or (b). That notwithstanding the standard of care aforementioned of Dr. Dante Loo negligently and/or willfully and/or intentionally and/or recklessly treated the plaintiff Mary Katherine Stoick in a manner beneath said aforementioned standard of care, to wit:
a) improperly failed to maintain a continuity of care either by himself or some other physician after having examined the patient;
b) failed to properly and adequately notify the defendant Caro Family Physicians of an emergency patient;
c) failed to admit the plaintiff when he knew or should have known that she was having a stroke and/or in an emergency situation;
d) abandoning the patient, Mary Katherine Stoick, when he knew or should have known that she was in an emergency situation;
e) failed to properly treat Mary Katherine Stoick having first determined that she was having a stroke and having symptoms of a stroke;
f) failing to properly and adequately treat and care for the plaintiff Mary Katherine Stoick having once undertaken the duty;
g) refusing to admit the plaintiff Mary Kather ine Stoick when she was showing symptoms of being in an emergency situation;
h) improperly treating the plaintiff Mary Katherine Stoick;
i) improperly imposing policy of the Caro Community Hospital in refusing to admit Mary Katherine Stoick.
52. That defendant, Dr. Dante Loo had actual knowledge that the aforementioned acts would be dangerous to the plaintiffs life and well being, and acted in intentional disregard of said dangers. Further, he knew she was having a stroke and her life and well being were in danger and intentionally with knowledge of the conditions, and in disregard of the knowledge, refused to admit her to Caro Community Hospital, failed to administer any emergency care to plaintiff, and failed to notify her family physician that she was having a stroke and that he had sent her to her office for immediate attention.
54. That the defendant, Caro Community Hospital is liable for the aforementioned acts of negligence on the part of Dr. Dante Loo for the reason that he at all times and pertinent hereto and relative to all facts stated herein was an employee and/or agent of said defendant as aforestated.
In response, defendant did not argue that the facts pled by plaintiffs were not sufficient to establish bad faith. Dr. Loo asserted only that, since he swore that he did not diagnose plaintiff as having a stroke, he could not have believed there was an emergency, and, hence, there was no bad faith on his part. Applying the "deliberate indifference” test enunciated in Tobias to the factual allegations of plaintiffs’ complaint, we believe plaintiffs did plead sufficient facts constituting bad faith on the part of Dr. Loo. Therefore, the trial court erred in ruling that plaintiffs did not sufficiently plead bad faith.
The Ross Court defined discretionary acts as "those which require personal deliberation, decision, and judgment.” Ministerial acts were defined as "those which constitute merely an obedience to orders or the performance of a duty in which the individual has little or no choice.” Ross, supra at 634-635. The primary distinction between discretionary and ministerial acts is that the former involve significant decision-making, while the latter involve the execution of a decision. Id. at 635. The Court declared that the goal was "to afford the officer, employee, or agent enough freedom to decide the best method of carrying out his or her duties, while ensuring that the goal is realized in a conscientious manner,” but that the immunity extended to individuals was far less than that of governmental agencies. Id. at 635.
In the instant case, plaintiffs alleged: (1) that Dr. Loo examined plaintiff and told her she was having a stroke; (2) that Dr. Loo told plaintiff she needed to be admitted to the hospital; (3) that Dr. Loo refused to admit plaintiff to the hospital; and (4) that Dr. Loo failed to properly treat plaintiff for her stroke.
In Tobias, supra, the plaintiff alleged that the doctors breached the applicable standard of care in the following ways:
"(a) Weaning Plaintiff’s decedent off her asthma medication without providing any substitute therapy to relieve the aggravated symptoms of that condition;
"(b) Failing to properly monitor Plaintiff’s decedent’s condition while she was being weaned from her asthma medication;
"(c) Failing to properly instruct the staff members of the ypsilanti forensic center concerning Plaintiff’s decedent’s condition.” [Tobias, supra at 277.]
The trial court in Tobias held that the plaintiff failed to plead facts in avoidance of governmental immunity. Id. at 275. This Court disagreed, stating:
Turning to the present case, we believe that the acts complained of include both medical decisions, which are discretionary in nature, and "execution” of those decisions, which is a ministerial act. Ross, supra. The decisions whether to wean decedent from the medication and whether or how often to monitor her condition during the weaning process involved medical judgments. These are discretionary determinations. However, if defendants in fact decided that monitoring was necessary to guard against deterioration of the decedent’s condition, negligent execution of that decision would fall outside the scope of their individual immunity. Thus, a complete failure to monitor her condition might subject defendants to liability, if defendants had decided that monitoring was necessary. In addition, if defendants decided that monitoring was necessary, a failure to inform or properly inform the staff of the decedent’s condition was a ministerial act. We draw this conclusion based on a fair inference that defendants would not be in a position to personally monitor the decedent at all times. If defendants decided that the decedent’s condition bore close observation, informing the staff of her condition involved the "execution” of that decision. Ross, supra. [Tobias, supra at 281.]
Thus, the doctors in Tobias were held to be immune from claims arising from their initial decisions on weaning and monitoring the patient; however, they were held not to be immune from claims arising from their actual execution of the weaning and monitoring process, which was a ministerial act.
Applying the Tobias analysis to the instant case, we believe plaintiffs sufficiently alleged that Dr. Loo negligently performed a ministerial-operational act. Accepting the truth of plaintiffs’ allegations, Dr. Loo made the decision that plaintiff needed to be admitted to the hospital. Having made this decision, Dr. Loo’s execution of that decision, i.e., his failure to admit or otherwise treat plaintiff, is a ministerial act for which governmental immunity does not apply and which may be found by a jury to be negligence.
Dr. Loo contends not only that his decision whether to admit plaintiff to the hospital was discretionary-decisional, but also that, even assuming that he made the decision that plaintiff needed admission, the ministerial-operational acts following it were nontortious. Defendant bases this assertion on the fact that he submitted an affidavit in which he averred that he did not diagnose plaintiff as having a stroke and his claim that this Court must accept his sworn statement as true. However, defendant’s argument is without merit because the facts are contested and the reviewing court must look at the facts as pled by plaintiffs, not defendant, in determining whether plaintiffs have pled sufficient facts in avoidance of governmental immunity. Even though defendant submitted an affidavit in which he swore that he did not diagnose plaintiff as having a stroke, this affidavit was clearly contradicted by plaintiff. Therefore, defendant’s version of the facts cannot be presumed true as a matter of law. The court’s holding that defendant’s decision not to admit plaintiff was a purely discretional act was erroneous.
Plaintiffs also claim that in paragraphs 51 and 52 they have sufficiently pled that Dr. Loo committed intentional torts which are an exception to governmental immunity. Recently, in Smith v Dep’t of Public Health, 428 Mich 540; 410 NW2d 749 (1987), the Court held that an intentional tort is not per se an exception to governmental immunity. Id. at 603, 611. The Court stated that, if the intentional tort is committed within the scope of a governmental function, the tort is subject to governmental immunity. Id. at 611. Therefore, a court must look at the activity engaged in at the time of the alleged intentional tort. If the activity was a governmental function, the intentional tort is subject to governmental immunity; if the activity was not a governmental function, the tort is not subject to governmental immunity.
In the instant case, plaintiffs alleged in paragraphs 51 and 52 various omissions which plaintiffs claim are intentional breaches of the standard of care. These allegations alone are not enough to avoid governmental immunity, as plaintiffs at no time alleged that Dr. Loo was not performing a governmental function when he diagnosed plaintiff in his capacity as an employee of the hospital. Therefore, the fact that plaintiffs pled intentional conduct in paragraphs 51 and 52 does not mandate reversal.
However, since we have determined that plaintiffs sufficiently pled that Dr. Loo acted in bad faith in the performance of ministerial acts, the order of summary disposition is reversed.
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Per Curiam.
The parties appeal by leave granted from a November 21, 1986, opinion and order of the Workers’ Compensation Appeal Board which granted plaintiff disability compensation benefits. Defendant appeals the award (Docket No. 97224) and plaintiff appeals the board’s computation of benefits (Docket No. 97511).
Plaintiff began working for defendant on April 4, 1977, as a re-sorter and switched to selector in October, 1977. He performed various functions as selector. Plaintiff sat at a light station and pulled out defective bottles. He stood at a conveyor and pulled bottles from the line and placed them in cases. The palletizing function required plaintiff to pull bottles off the line to prevent a "bottle neck” when the machine malfunctioned. He also removed broken glass from the machine and swept debris underneath the machine into a dustpan. To do that, plaintiff climbed stairs on small conveyor overpass bridges, often fifteen times per day. The selector job also required plaintiff to remove defective bottles from the conveyor when they were pointed out by other workers. He was able to sit about ten minutes each hour on that job.
On October 23, 1977, plaintiff injured his right knee when he slipped on a piece of glass while descending stairs from a palletizer. The injury eventually required arthroscopic surgery. Plaintiff returned to work as a selector, except for two weeks in April, 1980, when he worked in shipping. In shipping, plaintiff lifted five to thirty pound boxes from a conveyor belt, turned and stacked them. The line speed varied from fifty to five hundred boxes per hour.
On September 26, 1980, plaintiff filed a claim for disability compensation benefits for his October, 1977, knee injury. He claimed continuing disability from "twisting, turning, climbing, walking and carrying heavy objects [which] caused and aggravated right knee condition.” Defendant laid off plaintiff on August 7, 1981.
Following a hearing on September 17, 1981, and by order mailed January 2, 1982, a hearing referee awarded plaintiff disability compensation benefits already paid through August 7, 1981, but denied the claim for benefits after that date because "plaintiff has failed to sustain the burden of proving that he sustained an injury or occupational disease arising out of and in the course of his employment.”
On appeal, the appeal board reversed the referee’s determination and awarded plaintiff disability compensation benefits in the amount of $132 per week, finding that he continued to be disabled from the October, 1977, knee injury. However, the appeal board rejected plaintiff’s contention that benefits had to be computed according to §§351 and 355 of the act, as amended by 1980 PA 357, effective January 1, 1982, MCL 418.351, 418.355; MSA 17.237(351), 17.237(355). The appeal board held that the amended provision did not apply retroactively to personal injuries sustained prior to the effective date of the amendments.
i
Defendant argues in its appeal that the award is erroneous because plaintiff is not disabled in the whole field of common labor. Defendant also claims that there is no evidence that plaintiff can no longer obtain or perform work suitable to his qualifications and training. We reject both claims.
An unskilled worker is disabled if there is any limitation on his ability to compete in the total field of unskilled common labor. Adair v Metropolitan Building Co, 38 Mich App 393, 401; 196 NW2d 335 (1972). The worker’s ability to return to his own particular job is not the test. All that the claimant need show is that there is some resultant physical or mental incapacity that prevents him from competing fully in the field of unskilled labor. See Bauer v Allied Supermarkets, 139 Mich App 369, 377-378; 362 NW2d 283 (1984).
Plaintiff met that standard of disability. Both Drs. David Shneider and James B. Wessinger testified that, although plaintiff could return to his former job as selector, restrictions on his mobility and ability to lift heavy objects would prevent him from working in certain jobs. Thus, his ability to earn wages in all fields of common labor would be affected. Since defendant did not offer plaintiff favored work, he is entitled to compensation benefits.
Defendant relies on Gathard v Campbell, Wyant & Cannon Foundry Co, 320 Mich 180; 30 NW2d 827 (1948), for its argument that plaintiff is not disabled in the field of common labor. In Gathard, the claimant’s hypersensitivity to oil and dust disabled her from working in the industry. The Supreme Court held that she was not disabled in the field of common labor, because she was limited in her capacity to work only in shops where she would come into contact with oil and dust. Gathard, however, is inapplicable to the facts of this case because plaintiff’s knee injury affects his ability to earn wages in all fields of common labor and not just in a specific industry or environment where a particular sensitivity prevents employment.
Defendant also argues that there is no evidence that plaintiff could no longer perform or obtain work suitable to his qualifications and training. Defendant argues that plaintiff admitted and the appeal board found that, but for his layoff, plaintiff would have continued performing his regular job and that neither physician placed any restrictions on plaintiff’s ability to return to work.
The claim is not meritorious. Although the physicians testified that plaintiff could return to his former job, both recommended restrictions on excessive sitting or standing, walking or lifting.
ii
Plaintiff argues in his appeal that §§351 and 355 should apply to benefits payable after January 1, 1982, just as § 354 and § 358 were held to apply in Franks v White Pine Copper Division, 422 Mich 636; 375 NW2d 715 (1985).
Defendant argues that the amendments are prospective only, either because they contain an express direction to that effect or because they contain no legislative indication that they were to apply other than prospectively, that is, to injuries sustained after the effective date of the amendments.
Prior to the 1980 amendment, § 351 fixed compensation benefits at two-thirds of the claimant’s average weekly wage, subject to certain máximums. The 1980 amendment changed the formula to "80% of the employee’s after-tax average weekly wage.” MCL 418.351(1); MSA 17.237(351(1). Under §355 of the act, maximum weekly rates of compensation are adjusted annually based on the state average weekly wage as determined by the Michigan Employment Security Commission. MCL 418.355; MSA 17.237(355).
Legislative intent governs on the question whether or not a statute should apply prospectively or retroactively. If the statute does not state the Legislature’s intention in clear and unambiguous language, interpretation is required. Franks v White Pine Copper, supra at 671. Statutes are presumed to operate prospectively unless the con trary intent is clearly manifested. Id. An exception to this general rule arises when the statute is remedial or procedural in nature. Id. at 672. Statutes which operate in furtherance of a remedy or mode of procedure are generally held to operate retroactively unless contrary legislative intent is manifested. Id.
The language of §§ 351 and 355 shows no manifest intention that either of the sections be given retroactive application. Therefore, they are presumed to operate prospectively. Further, §352, added by the same act which amended § 351 and § 355, provides for supplements to weekly compensation for personal injuries incurred between September 1, 1965, and December 31, 1979. This section indicates that § 351 was not intended to be retroactive because, otherwise, persons injured before December 31, 1979, would be entitled to both eighty percent of their average weekly wage under § 351 and to supplements to weekly compensation under §352, which obviously was not intended. Instead, it appears that the Legislature intended that persons injured before 1980 PA 357 would have their weekly compensation increased by supplements to bring them closer to the level of benefits that "newly-injured” workers now receive under the eighty percent formula of § 351.
Plaintiff argues that amended §§ 351 and 355 are remedial and should be given retroactive application. A statute is remedial if it was adopted to effect a reform which will correct an injustice in the system. Franks, supra at 673. However, a statute which merely enlarges existing rights is not remedial and should not be given retroactive application. Id. at 672. Sections 351 and 355 enlarge existing rights by granting the disabled worker greater compensation benefits. These sections are not remedial, but rather are substantive changes in the law. Therefore, the appeal board correctly gave them prospective application.
The opinion and order of the appeal board are affirmed. No costs are allowed because both parties appealed, but did not prevail on their claims. | [
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Per Curiam.
Defendant pled guilty to breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305, and being a habitual offender, fourth felony, MCL 769.12; MSA 28.1084. In exchange, the prosecutor dismissed a charge of receiving and concealing stolen property. Defendant was sentenced to five to fifteen years imprisonment and appeals as of right.
On appeal, defendant claims that the trial court erred in denying his motion to suppress, in which he alleged that he was arrested without probable cause, and that all the items listed in his motion were the fruits of the illegal arrest and, hence, must be suppressed. The prosecutor claims that this issue is waived by defendant’s guilty plea. In response, defendant claims that he tendered a conditional guilty plea, thereby preserving the issue for appeal. In the alternative, defendant claims that the discussion in which the prosecutor agreed to allow defendant to appeal the denial of his motion to suppress despite his guilty plea was a promise of leniency. Defendant claims that if he is now not allowed to appeal, his plea must be vacated under In re Valle, 364 Mich 471; 110 NW2d 673 (1961), and People v Johnson, 386 Mich 305; 192 NW2d 482 (1971). In those cases, the Court held that if the evidence establishes that the prosecutor or judge has made a statement which defendant fairly interpreted as a promise of leniency, and the statement is unfulfilled, the plea may be withdrawn.
A defendant may, after pleading guilty, appeal a decision denying a motion to suppress evidence where the defendant could not be prosecuted if his claim that a constitutional right against unreasonable search and seizure was violated is sustained and the defendant, the prosecutor, and the judge have agreed to the conditional plea. If they so agree, the defendant may offer a conditional plea of guilty, and, after his conviction on such a plea, he may appeal from the adverse ruling on his search and seizure claim. People v Reid, 420 Mich 326, 337; 362 NW2d 655 (1984). See also People v Kim Williams, 160 Mich App 738; 408 NW2d 540 (1987).
In the instant case, there is nothing in the record to support defendant’s claim that he made a conditional guilty plea. The word "conditional” does not appear in the guilty plea transcript. However, defendant claims that an agreement was made off the record by defense counsel and the prosecutor that defendant be allowed to appeal the denial of his motion to suppress, although pleading guilty. There is a point in the transcript where counsel approached the bench and had a discussion off the record. Defendant submits an affidavit in which defense counsel, the affiant, states that during this discussion the parties agreed that defendant would be able to preserve the search and seizure issue for appeal. No motion was ever made in the trial court to clarify the question of a conditional plea, nor has a motion to remand been made in this Court.
Although Reid does not state that an agreement to enter a conditional plea must be made on the record, we urge the bench and bar to make these agreements clearly on the record. This will eliminate problems such as the problem encountered in the instant case.
We note that this case is not one where defendant was promised leniency by the prosecutor or the judge, which promise was unfulfilled by them, as in Valle and Johnson, supra. Therefore, Valle and Johnson are inapposite.
Since we cannot determine from the record whether defendant pled guilty conditionally and whether the conditional guilty plea was agreed to by the prosecutor, defense counsel, and the judge, as required in Reid, we could remand this case for an evidentiary hearing before a different judge to determine whether the Reid requirements were met. In the interest of judicial economy, however, we choose to proceed as though a conditional plea was in fact made and to decide the issue on the merits.
The charges arose out of an incident which occurred on August 16, 1986, in Franklin, Michigan. Officer Edward Girardot of the Franklin Police Department received a telephone call from a citizen who said that a suspicious automobile was parked in front of her house in violation of a no-parking ordinance. Officer Girardot ran a lein check on the vehicle and discovered that it had been stolen a few days before. Officer Girardot and his partner went to the scene and touched the hood of the automobile, which was still hot. The officers hid themselves in a large spruce tree near the house in front of which the automobile was parked. Approximately fifteen minutes later, defendant came into their view, walking diagonally across the lawn near the spruce tree and towards the automobile. Defendant was carrying a large gray metal box. The officers stepped from behind the tree, identified themselves, drew their weapons, and ordered defendant to drop the box and lie on the ground. Defendant did so. The grey box was a videocassette recorder. The officers took a set of keys from defendant’s possession, tried them in the ignition of the stolen vehicle, and discovered that the keys fit. The officers then told defendant he was under arrest and gave him his Miranda warnings. Defendant made an exculpatory statement. The officers then searched defendant’s pockets and found two piles of money — one amounting to $78 and the other amounting to $4.
The officers summoned a tracking dog, which followed the scent of defendant’s tracks to a nearby house. The back door of this house was smashed in. An hour later, when the occupants of the home returned, they found their vcr was missing. In addition, $78 was missing from the drawer of a dresser belonging to one of the occupants. When defendant was taken to the police station, he was again read his Miranda rights, whereupon defendant made another exculpatory statement, which differed from his first statement.
Defendant filed a motion to suppress evidence of the automobile, keys, $78, identification of the vcr recorder, and his statements, alleging that the police arrested him without probable cause merely for walking across the lawn with a vcr. Defendant alleged that all the items in his motion were the fruits of the illegal arrest. The court denied the motion, stating that the officers engaged in "good police work” and that they "had probable cause to act the way they did.”
Appellate review of a lower court’s grant or denial of a motion to suppress evidence is made under the clearly erroneous standard. People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). A lower court’s finding will be found to be clearly erroneous only where, although there is evidence to support the ruling, the reviewing court is left with a definite and firm conviction that a mistake has been made. People v United States Currency, 148 Mich App 326, 329; 383 NW2d 633 (1986).
Initially, we must determine whether defendant was in fact arrested at the time he was stopped while carrying the vcr across the lawn. The prosecutor claims that defendant was merely detained at this time and that the detention was warranted under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). Defendant contends that he was arrested, not merely detained, and that, thus, probable cause was necessary. A person is seized (i.e., arrested) when, by means of physical force or show of authority, his freedom of movement is restrained. United States v Mendenhall, 446 US 544, 553; 100 S Ct 1870; 64 L Ed 2d 497 (1980). A person has been seized only if, in view of all the circumstances, a reasonable person would have believed that he was not free to leave. Id. In Mendenhall, the Court cited the display of a weapon as an example of a circumstance which indicates a seizure. Id.
In the instant case, Officer Girardot pulled his weapon and told defendant to lie on the ground. Under these circumstances, a reasonable person would believe he was not free to go. Thus, defendant was arrested at that point.
In People v Davenport, 99 Mich App 687, 691; 299 NW2d 368 (1980), lv den 410 Mich 901 (1981), this Court set forth the rules on arrests without warrants:
A police officer may conduct a warrantless [arrest] when he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that the arrested person committed it, MCL 764.15(d); MSA 28.874(d). . . .
The facts must be sufficient to create an honest belief in the mind of a reasonable and prudent man; that is, they must evince good reason to believe that the person arrested has committed a felony. People v Napolitano, 2 Mich App 601; 141 NW2d 356 (1966). Not only must the facts be sufficient, but they must create an actual belief in the mind of the arresting officer. Mere suspicion is insufficient. People v Panknin, 4 Mich App 19; 143 NW2d 806 (1966), People v Griffin, 33 Mich App 474; 190 NW2d 266 (1971), lv den 385 Mich 775 (1971).
The prosecution has the burden of establishing that an arrest without a warrant is supported by probable cause. People v Langston, 57 Mich App 666, 672; 226 NW2d 686 (1975).
As stated in People v Lewis, 160 Mich App 20, 25; 408 NW2d 94 (1987):
When a defendant is detained or taken into custody by the police acting without a warrant, the detention is illegal unless the police have probable cause to arrest that defendant. People v Hamoud, 112 Mich App 348, 351; 315 NW2d 866 (1981), lv den 414 Mich 959 (1982). Probable cause to arrest exists when the facts and circumstances within the officers’ knowledge are sufficient to a prudent person, or one of reasonable caution, to believe that the suspect has committed or is committing a felony. People v Mitchell, 138 Mich App 163, 167; 360 NW2d 158 (1984).
In the instant case, we believe that the trial court did not clearly err in its finding that Officer Girardot had probable cause to arrest defendant for possession of the stolen automobile. Officer Girardot knew that the automobile was stolen. The hood was hot, indicating that it had just been parked. He saw a lone man walking across the lawn toward the automobile, carrying a gray metallic box. These facts were sufficient to create an honest belief that defendant has committed the felony. Given the legality of the arrest, the subsequent search of defendant was also valid.
The decision of the trial court denying defendant’s motion to suppress is affirmed.
Affirmed.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). | [
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Per Curiam.
Plaintiff in this case filed a declaratory judgment action in which plaintiff claimed an exclusionary provision in its insurance contract applied so that it had no duty to defend defendant James Fox in an underlying tort action. Defendant Fox appeals from the trial court’s order granting plaintiffs motion for summary disposition pursuant to MCR 2.116(0(10).
Michael K. Daly was seriously injured when the bicycle he was riding collided with a moped operated by Jenni Cortez and owned by Fox and others. On October 4, 1985, Daly filed suit against Cortez, Fox, and others, alleging that the accident was caused by the negligent and careless operation of the moped. Plaintiff, Fox’s homeowner’s insurance carrier, undertook Fox’s defense in the underlying action. On February 21, 1986, however, plaintiff sent Fox a reservation of rights letter explaining that coverage might not exist in light of a provision excluding coverage for liability arising out of the ownership of a motor vehicle, as that term is defined in the insurance contract. Five months later, plaintiff instituted this declaratory judgment action, asserting it had no duty to defend Fox due to the provision.
The policy provision stated that coverage did not lie for personal liability where the insured’s liability arises out of his or her ownership, maintenance, or use of a motor vehicle. "Motor vehicle” is defined in the policy as "a motorized land vehicle, including a trailer, semi-trailer or motorized bicycle, designed for travel on public roads” (emphasis added). The trial court found the moped to be a "motorized bicycle designed for travel on public roads,” and held that plaintiff had no duty to defend Fox. The trial court further held that plaintiff was not estopped from withdrawing its defense of Fox since the plaintiff had initiated its action for declaratory judgment during the pendency of the underlying action.
On appeal, defendant first claims that the trial court erred in finding that a moped constitutes a motorized bicycle designed for travel on public roads. We disagree. A moped is defined in the Michigan Vehicle Code as_
a 2- or 3-wheeled vehicle which is equipped with a motor that does not exceed 50 cubic centimeters piston displacement, produces 2.0 brake horsepower or less, and cannot propel the vehicle at a speed greater than 30 miles per hour on a level surface. . . . [MCL 257.32b; MSA 9.1832(2).]
Thus, it is clear that a moped is a bicycle with a motor attached and, therefore, meets the first prong of the policy definition of motor vehicle. Next, it must be determined whether a moped is designed for travel on public roads. We note that mopeds are included in many Michigan statutes regarding their operation on a highway: MCL 257.705(2)(2); MSA 9.2405(a)(2) (brake requirement when moped is operated upon a highway); MCL 257.661; MSA 9.2361 (requirement that person operating moped not carry packages while driving); MCL 257.216(1); MSA 9.1916(1) (registration and certification of title provision); MCL 257.679a; MSA 9.2379(1), MCL 257.710d(3); MSA 9.2410(4X3) (child restraint provision); MCL 257.679a; MSA 9.2379(1) (limited access highway provision); MCL 257.657; MSA 9.2357 (regulations applicable to mopeds driven on a roadway); MCL 257.801e; MSA 9.2501(5) (registration requirement); MCL 257.312a(2); MSA 9.2012(1X2) (license requirement). Thus, there is no question that a moped is designed for travel on public roads since such use is expressly recognized and regulated in the Michigan Vehicle Code.
Next, defendant argues that the trial court erred in finding that plaintiff was not estopped from withdrawing its representation of defendant. The general rule is that an insurer which undertakes the defense of an insured while having actual or constructive knowledge of facts which would allow avoidance of liability will be deemed to have waived its right to avoid coverage unless reason able notice is served to the insured of the possible disclaimer of liability. Meirthew v Last, 376 Mich 33; 135 NW2d 353 (1965); Multi-States Transport, Inc v Michigan Mutual Ins Co, 154 Mich App 549, 553-554; 398 NW2d 462 (1986), lv den 428 Mich 866 (1987). In Meirthew, supra, the Court held that the insurance company did not give "reasonable” notice and hence was estopped because it waited until after the judgment was obtained in the underlying tort case to assert a policy exclusion. Meirthew, supra, pp 37-38. In Multi-States, supra, this Court held that a two-year delay between the initiation of the underlying action and a reservation of rights letter was too long. Multistates, supra, p 557.
In the instant case, only four months passed between the initiation of the underlying action and the date plaintiff sent its reservation of rights letter. We feel that four months is, as a matter of law, not an unreasonable length of time. We hold that issuance of the reservation of rights letter only four months after initiation of the litigation reasonably put defendant on notice that his claim might not be covered under his homeowner’s insurance policy. Thus, the trial court did not err in holding that plaintiff was not estopped from denying liability.
Affirmed.
Defendant Sue Fox was voluntarily dismissed and Jenni Cortez was never served. Michael Daly answered plaintiff’s complaint for a declaratory judgment but is not a party on appeal. | [
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] |
R. M. Maher, P.J.
Plaintiff appeals as of right from the decision of the Ingham Circuit Court that defendant did not violate the Air Pollution Act, MCL 336.11 et seq.; MSA 14.58(1) et seq., or deny plaintiff the due process of law by including promulgated rules as conditions of its operating permits. The trial court also found that plaintiff had not presented sufficient evidence in support of its equal protection claim. We affirm.
Plaintiff is an investor-owned electric utility company which generates, distributes and sells electricity throughout southeast Michigan. Plaintiff owns and operates the Monroe Power Plant located in Monroe County. The Monroe Power Plant is the largest single source of sulfur and particulate emissions in the state, and is the largest generating plant within plaintiffs system. The installation permits for the four coal-fired generators at the plant were issued by defendant in 1968, 1970, 1976 and 1977. The generators began commercial operations between 1971 and 1974. Plaintiff applied for operating permits in 1975.
After a series of discussions with the Department of Natural Resources, Air Quality Division, plaintiff met with defendant on October 22, 1985, to finalize the operating permits. The dnr recommended that defendant approve the permits subject to certain conditions, such as the inclusion of administrative rules in the documents. Defendant had formally promulgated and adopted the rules in accordance with the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., and the Air Pollution Act. As a matter of practice, defendant has included such rules as conditions of its operating permits since 1972. Plaintiff objected to the practice, but defendant directed the dnr to continue discussions regarding the terms of the operating permits.
The ensuing discussions resolved only the existing technical disputes, though, as plaintiff would not agree to include any rules in the permits themselves. However, despite plaintiff’s objections, each of the four operating permits included approximately nineteen rules, either expressly or by reference. Defendant approved the permits as written on December 3, 1985.
On December 23, 1985, plaintiff filed this action in the Ingham Circuit Court, challenging defendant’s authority to include promulgated rules as conditions of its operating permits. More specifically, plaintiff challenged the effect of that practice. Plaintiff claimed that, pursuant to the Air Pollution Act, defendant may immediately institute legal proceedings against a permit violator but must first attempt to obtain a voluntary settlement with a rule violator. By including rules within a permit, defendant is thus able to take immediate legal action which would otherwise be delayed or unavailable if the rules were standing by themselves. This, plaintiff claimed, violated the Air Pollution Act and denied its rights to due process and equal protection.
Following a bench trial on the matter, the trial court issued an opinion and order on January 30, 1987, rejecting plaintiff’s claims and upholding defendant’s practice of including rules as conditions of operating permits. This appeal as of right followed.
i
Plaintiff first argues that the Air Pollution Act, by treating rule violations differently than permit violations, implicitly prohibits defendant from including promulgated rules as conditions of operating permits. We disagree.
The stated purpose of the Air Pollution Act is "to control air pollution in this state; to create an air pollution control commission within the state health department; to prescribe its powers and duties; to prescribe the powers and duties of certain county agencies; to provide for the establishment of fees; and to provide penalties.” Having the public’s health and general welfare in mind, the Air Pollution Act is remedial in nature and, thus, entitled to liberal construction. Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 740; 330 NW2d 346 (1982). This is especially true where — as here — the administrative agency charged with enforcing the act is granted broad and comprehensive powers. Id.
Under the Air Pollution Act, defendant has been given broad powers in matters involving the control of air pollution. These powers include, among other things, (1) making, modifying or canceling orders which require the control of air pollution, (2) instituting court proceedings to compel compliance with its rules, orders, or determinations, (3) encouraging voluntary cooperation by all persons in controlling air pollution and contamination, and (4) doing whatever else is necessary, proper or desirable to enforce the administrative rules pertaining to air pollution control. MCL 336.15; MSA 14.58(5).
Additionally, defendant is charged with the responsibility of promulgating rules pertaining to air pollution control. Section 7 of the act prescribes the procedure defendant must follow in promulgating those rules. MCL 336.17; MSA 14.58(7). First, the proposed rule must be approved by not less than six of defendant’s eleven members. Second, the proposed rule must pertain to one of several enumerated purposes. Finally, the rule must follow the general promulgation requirements of the apa, which includes obtaining approval from certain legislative units and the attorney general as well as conducting public hearings on the proposed rule. MCL 24.241, 24.245; MSA 3.560(141), 3.560(145).
Defendant is also authorized to issue operating permits to certain power plants using fuel-burning or refuse-burning equipment or an air-cleaning device. Before a permit can be issued, the power equipment must satisfy the following conditions: (1) it must operate in compliance with defendant’s rules and the various state and federal laws concerning air pollution; (2) it cannot interfere with the attainment or maintenance of the air quality standard for any air contaminant; and (3) it must be completed in compliance with the installation permit and any conditions attached thereto. 1980 AACS, R 336.1208(3).
If defendant suspects that any person is "violating this act or any rule promulgated by [it] by causing or permitting air pollution,” it shall conduct a prompt investigation. If a violation is found to exist, "it shall endeavor to enter into a voluntary agreement with such person” in order to abate the pollution. MCL 336.18(1); MSA 14.58(8)(1). If an agreement is reached, but the person thereafter violates its terms, defendant may seek judicial enforcement of whatever relief is deemed appropriate. MCL 336.18(3); MSA 14.58(8)(3). If the person feels aggrieved by the terms of the agreement, he or she may petition defendant for a hearing. A final decision by defendant on the dispute is conclusive, unless review is sought in accordance with the apa. MCL 336.18(4); MSA 14.58(8X4).
If a voluntary agreement cannot be reached within a reasonable time, defendant may, upon proper notice, issue a complaint and proposed order outlining the terms and time schedule for taking corrective action. Thereafter, if the person agrees to the proposed order, and does not request a hearing within thirty days, defendant may enter the order without further hearing. An order entered by defendant is considered final. MCL 336.19; MSA 14.58(9).
Section 16 of the Air Pollution Act prescribes the penalties for violations of its provisions:
A person who or a governmental unit who fails to obtain or comply with a permit, or comply with a final order or order of determination of the commission made under this act is guilty of a misdemeanor and shall be fined not more than $10,000.00 and in the discretion of the court an additional amount of not more than $2,000.00 per day a violation continues. The circuit court of the county in which the violation occurred has exclusive jurisdiction. However, the person shall not be subject to the penalties of this section if the discharge of the emissions are in conformance with and obedient to a rule, voluntary agreement or order of the commission. Upon petition by the commission, the circuit court in the county where the violation exists may order a person to be restrained from continuing a violation. In addition the attorney general may, at the request of the commission, file an action in a court of competent jurisdiction to recover the full value of the injuries done to the natural resources of the state and the costs of surveillance and enforcement by the state resulting from the violation. In addition to any fine, the court in its discretion may impose probation upon any person for a violation of this section. [MCL 336.26; MSA 14.58(16).]
Moreover, defendant has the broad power to "bring any appropriate action in the name of the people of the state either at law or in chancery, as may be necessary to carry out the provisions of this act and to enforce any and all laws, rules and regulations relating to the provisions of this act.” MCL 336.27; MSA 14.58(17).
As can be seen from the above discussion, the Air Pollution Act distinguishes between rule violations and permit violations. For rule violations, the act prescribes that defendant "shall endeavor to enter into a voluntary agreement” with the violator. On the other hand, if the violation pertains to the terms of an operating permit, defendant may take immediate judicial action against the violator; there is no requirement to first seek a voluntary agreement. Thus, the essence of the instant dispute is whether defendant should be able to include promulgated rules as permit conditions so that a violation of a rule necessarily violates a permit, foreclosing the need for preenforcement hearings or negotiations.
In resolving this issue, we are guided by the following rules of statutory construction:
(1) [W]hen a statute is unambiguous, further construction is to be avoided; (2) if an ambiguity exists, the intent of the Legislature must be given effect; (3) a construction which best accomplishes the statute’s purpose is favored; (4) statutes are to be interpreted as a whole and construed so as to give effect to each provision; (5) specific words in a statute are given their ordinary meaning unless a different interpretation is indicated; and (6) respectful consideration is to be given to the construction of a statute used by those charged with its application. [Nicholas v Michigan State Employees Retirement Bd, 144 Mich App 70, 74; 372 NW2d 685 (1985).]
Applying those rules to the instant case, we find that defendant’s practice of including promulgated rules as permit conditions did not violate the Air Pollution Act.
It must first be conceded that, in the context of the instant dispute, the act is ambiguous since it does not explicitly condone or condemn the inclusion of rules as permit conditions. Being ambiguous then, we must determine the Legislature’s intent in passing the act and give effect to such. On this point, we find the trial court’s analysis to he sound, and therefore adopt it as our own:
These provisions and the Act read as a whole evince a clear legislative intent to give the Commission broad authority to carry out its task of protecting the quality of Michigan’s air. The Act does not expressly prohibit the incorporation of rules as permit conditions. Nor is there any reason in logic to believe the Legislature intended to do so. In fact, the practice makes eminently good sense. To adopt as permit conditions standards which have been evaluated and passed muster in the formal rule promulgation process is a practice designed to accommodate and protect the interests of all affected. As the Commission correctly points out, Edison’s challenge to the propriety of the permit conditions would be considerably stronger if the conditions had not been first promulgated as rules. The rights of the public may not be determined, nor licenses denied, on the basis of unpromulgated policies. Delta County v Department of Natural Resources, 118 Mich App 458, 468; 325 NW2d 455 (1982). Considering the purposes for which the Commission was created and the broad authority conferred upon it, the Court believes the power to incorporate rules as permit conditions is necessarily implied under the Act.
The Court acknowledges that the Act draws a clear distinction between rule violations and permit violations. This does not compel the conclu sion, however, that the Legislature intended to prohibit the incorporation of rules as permit conditions. Rather, the Commission’s explanation of this distinction is far more persuasive. A person who violates a permit condition need not be given an opportunity to enter into a voluntary agreement or for an administrative hearing before judicial relief is sought, because he has, in effect, already been afforded similar safeguards in the permit application process.
To that analysis we would make three additional points: First, defendant has been including rules as permit conditions since 1972. Its interpretation of the act as allowing for such practice, being long standing, is entitled to great weight. Hinton v Parole Bd, 148 Mich App 235, 240; 383 NW2d 626 (1986). Second, subsequent to defendant’s interpretation of the act, the Legislature enacted amendments thereto in 1972 and 1981. Legislative silence in the face of an agency’s construction of a statute is considered consent to the accuracy of that interpretation. Luttrell v Dep’t of Corrections, 421 Mich 93, 105; 365 NW2d 74 (1984). Because the Legislature did not expressly reject defendant’s practice and clarify the apparent ambiguity, we must presume that it acquiesces in defendant’s interpretation of the statute. Third, we reject plaintiffs argument that the language of the act, stating that defendant "shall endeavor to enter into a voluntary settlement,” requires an attempt to reach a voluntary settlement whenever a rule is violated, regardless of whether that rule is contained in a permit. That argument merely begs, not resolves, the question in dispute. Since permit violations are exempt from the settlement requirement, and there is no express prohibition against including rules as permit conditions, we find plaintiffs argument unpersuasive.
ii
Plaintiff next argues that defendant’s practice of including rules as permit conditions violated its procedural and substantive due process guarantees. Again, we disagree.
Before any procedural due process rights attach to an action, one must demonstrate an interest within the contemplation of the "liberty or property” language of the Fourteenth Amendment to the United States Constitution. Livonia v Dep’t of Social Services, 123 Mich App 1, 20-21; 333 NW2d 151 (1983), aff'd 423 Mich 466; 378 NW2d 402 (1985). To constitute a protectable right, a person must have more than an abstract need, desire or unilateral expectation of the right. Rather, there must be a legitimate claim of entitlement to it. Edmond v Dep’t of Corrections (On Remand), 143 Mich App 527, 533; 373 NW2d 168 (1985) (citing Bd of Regents of State Colleges v Roth, 408 US 564; 92 S Ct 2701; 33 L Ed 2d 548 [1972]). It has been recognized that there exists no right to pollute. Andrews v Jackson Co, 43 Mich App 160, 164; 203 NW2d 925 (1972). Since no such right exists, a polluter has not been deprived of any protected property or liberty interest when the state halts the pollution.
Moreover, to the extent that a nonpolluting part of plaintiffs operation was affected, there was still no violation of procedural due process. Plaintiff was given notice and an opportunity to be heard throughout the permit application process. And, even if defendant institutes enforcement proceedings, plaintiff has an opportunity to voice its concerns and objections in a judicial forum. The gist of plaintiffs complaint seems to be that defendant’s practice prevents it from renegotiating the terms of the permit via a rule violation hearing. Plaintiff is deprived of nothing, except perhaps a second bite of the permit-negotiating apple.
For similar reasons, we reject plaintiff’s substantive due process challenge. Substantive due process requires only that reasonably precise standards be utilized by administrative agencies in the performance of delegated legislative tasks. State Highway Comm v Vanderkloot, 392 Mich 159, 169-170; 220 NW2d 416 (1974); Adkins v Dep’t of Civil Service, 140 Mich App 202, 213-214; 362 NW2d 919 (1985). The standards must be "as reasonably precise as the subject matter requires or permits.” Krohn v Bd of Medicine, 98 Mich App 129, 133; 296 NW2d 57 (1980). One reason for this requirement is to prevent favoritism, discrimination and arbitrary decisions by administrative agencies. Adkins, supra, p 214. Another is to provide adequate protection to the interests of those affected. Id.
Here, the standards used by defendant are as reasonably precise as the task of air pollution control requires or allows. It would simply not be practical for the Legislature to provide specific regulations for the management of natural resources. Dep’t of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976). Furthermore, the enforcement alternatives available to defendant are not left to the agency’s caprice. On the contrary, the Air Pollution Act is quite specific as to what actions may be taken against a rule violator as opposed to a permit violator. Finally, defendant’s authority to decide which, if any, promulgated rules are to be included as permit conditions is not a legislative power but is, as the trial court stated, "a classic example of administrative power.” By incorporating certain rules as permit conditions, defendant was not making the law but rather was exercising its discretion as to the exe cution of the law. See King v Concordia Fire-Ins Co, 140 Mich 258, 268-269; 103 NW 616 (1905); Shelby Twp v Dep’t of Social Services, 143 Mich App 294, 298-299; 372 NW2d 533 (1985), lv den 424 Mich 859 (1985). For these reasons, we hold that plaintiff was not denied its right to substantive due process.
iii
Plaintiff argues lastly that the inclusion of promulgated rules as permit conditions violated its equal protection rights. As the trial court noted, plaintiff offered no proof on this issue at trial beyond the bald allegations of error. Accordingly, the claim was properly rejected as lacking supportive evidence.
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Per Curiam.
On April 22, 1985, defendant, Darryl R. Lipps, was convicted by a jury of assault with intent to murder, MCL 750.83; MSA 28.278, and felonious assault, MCL 750.82; MSA 28.277, for a March 24, 1984, attack upon his ex-wife, Joyce Peterson, and her then-fiancé (now husband) Albert "Roy” Peterson, while the couple slept in the former marital home located in Sturgis, Michigan. On July 29, 1985, the St. Joseph Circuit Court sentenced defendant to a term of imprisonment of fifteen to thirty years for the conviction of assault with intent to murder and to 1 Vi to 4 years for the conviction of felonious assault. Defendant now appeals as of right, arguing that the trial court erred in its instruction regarding the element of intent in its jury charge on the crime of assault with intent to murder, that he was denied a fair trial because the prosecutor improperly questioned a defense witness about defendant’s mental condition, that he was denied a fair trial because the prosecutor improperly questioned him about past specific instances of conduct toward his wife and children and because the prosecutor called his ex-wife to testify as a rebuttal witness in order to substantiate certain alleged prior bad acts, and that he is entitled to a resentencing because the sentencing judge, who presided in defendant’s earlier divorce case, improperly considered information obtained during the divorce case. We affirm.
The record reveals that defendant and Joyce were married for twelve years, during which time they had two children. They separated in June, 1983, and were divorced on March 20, 1984. Joyce married Albert "Roy” Peterson on April 4, 1984. On March 23, 1984, Peterson drove from his home in New Orleans, Louisiana, to visit Joyce in Sturgis, Michigan. Joyce lived in the same home in which she and defendant had resided during their marriage. Peterson arrived at approximately 8:00 p.m., and the couple went to bed around 1:00 or 2:00 a.m. Sometime thereafter, they were awakened by defendant, who was stabbing at them with a knife. Joyce managed to escape after a brief struggle and ran downstairs to telephone the police. However, since the telephone cord had been pulled from its connection in the wall, the telephone was inoperative. Joyce ran to a neighbor’s house, where she telephoned the police.
Meanwhile, Peterson attempted to elude defendant’s knife attack. Eventually, he managed to wrestle the knife away from defendant, who then began to strike out at Peterson with a long object. Finally, defendant ceased his attack and fled from the home. Peterson had suffered an eye injury, a broken finger, a bite wound, and multiple knife wounds to the head, arms, and legs. Four of the stab injuries were serious, consisting of two to an eye and two that penetrated the outer table of the skull. Joyce also suffered cuts on her head.
Defendant testified in his own behalf at trial. First, he explained the efforts he had made to save his marriage to Joyce and the frustration and distress he had experienced pending his divorce. He then testified regarding the events leading up to and concerning the March 24, 1984, attack. According to defendant, on March 23, 1984, at approximately 5:00 p.m., he picked up his children for his scheduled weekly visitation and drove to a Holiday Inn in Elkhart, Indiana. After putting the children to bed, he watched television and drank some alcohol. Pondering his divorce situation, he became increasingly perturbed. Earlier, he had learned that Peterson was visiting Joyce that weekend and, in fact, was delivering a new car to her. Defendant assumed that Joyce was paying for the car in part with some of the child support money he had been paying to her. This thought made defendant even more angry, prompting him to leave his children by themselves at the motel and return to Joyce’s home in Sturgis.
When defendant arrived at Joyce’s home in Sturgis, he noticed a new car parked in the driveway. He watched Joyce and Peterson through a window for a short time and then went to his own home, also located in Sturgis, where he had a few more drinks of alcohol. His frustration mounted as he thought about the possibility that his children could be removed from the state if Joyce and Peterson were to marry. In his anger, he decided to damage the new car at Joyce’s house. Thus, he packed a hammer to break the car’s windows and lights, a knife to slash the car’s upholstery, and a flashlight into a bag and set out for Joyce’s house. Upon arriving, he found the car doors locked. For reasons he could not explain, defendant did not damage the vehicle, but instead entered the home through an open window. Inside, he found a bottle of liquor and took two or three swallows directly from the bottle. After pulling the telephone wire out of its wall connection, he slowly walked upstairs, taking his hammer, knife and flashlight with him.
Defendant testified that he could not remember his feelings or thoughts as he entered the bedroom where Joyce and Peterson were sleeping; he felt only a numbness as he stood by the bed. The actual attack was very hazy in his memory and he could recall only bits and pieces of it, although he remembered striking both Joyce and Peterson with either the flashlight or hammer. He did not recall having used his knife until he and Peterson were fighting on the floor. He insisted that he did not intend to harm or kill anyone.
The defense theory of the case was that defendant had been temporarily insane at the time of the attack. In support of that theory, defense witness Dr. Leonard J. Donk, a licensed psychologist who had conducted extensive tests of, and interviews with, defendant, testified that defendant had recently experienced a great deal of stress and had suffered from a mood disorder which manifested itself by odd behavior (e.g., by spying on Joyce, taking her clothing, and making confrontational telephone calls and notes). Dr. Donk hypothesized that defendant’s mood disorder worsened as he became aware of Peterson’s presence with his ex-wife and that on the night in question he probably suffered an acute schizophrenic episode (i.e., temporary insanity) after observing the couple together in bed in what had been his marital home. On cross-examination, the prosecutor questioned Dr. Donk extensively regarding defendant’s negative personality traits and alleged criminal insanity.
After the defense had rested, the prosecution presented several rebuttal witnesses. Two of the witnesses, Dr. Newton Jackson, a clinical and forensic psychologist, and Dr. William Decker, a psychiatrist, opined that, while defendant has a paranoid personality disorder and may have experienced a severe emotional disturbance, he was not temporarily insane at the time of the attack. Moreover, Joyce was recalled to testify regarding the circumstances which had prompted her to file for a divorce from defendant, such circumstances including defendant’s possessive personality as well as his physical abuse and harassment of her.
Defendant first contends on appeal that the trial court erred in its instruction to the jury regarding the element of intent in its charge on the crime of assault with intent to murder. At the trial level, defense counsel not only failed to object to the court’s instructions to the jury, but also stated that he was "very satisfied with the charge.” Generally, a party may not assign as error a trial court’s failure to give an instruction unless that party objected on the record before the jury retired to consider the verdict. MCR 2.516(C). Absent such an objection, this Court will not review the alleged error except to prevent a miscarriage of justice. People v Vicuna, 141 Mich App 486, 492; 367 NW2d 887 (1985); MCL 769.26; MSA 28.1096. The purpose of this rule is to prevent the giving of an improper instruction or to facilitate the correction of an erroneous instruction before a verdict is rendered, thereby avoiding a costly new trial. Moskalik v Dunn, 392 Mich 583, 592; 221 NW2d 313 (1974). Counsel may not sit back and harbor error, to be used as an appellate parachute in the event of an unfavorable jury verdict. People v Bragdon, 142 Mich App 197, 201; 369 NW2d 208 (1985). We are convinced that defendant in this case suffered no manifest injustice as a result of the trial court’s instructions to the jury and that, to the contrary, the jury was properly instructed on the controlling law.
The offense of assault with intent to murder is, without question, a specific intent crime. It must be shown that the defendant intended to kill the victim under circumstances that did not justify, excuse, or mitigate the crime. People v Guy Taylor, 422 Mich 554, 567-568; 375 NW2d 1 (1985). Thus, it is not enough that the defendant acted only with an intent to cause serious bodily injury or with a conscious disregard of the risk of death. Id., p 567; People v Cochran, 155 Mich App 191, 193-194; 399 NW2d 44 (1986). Because the offense is a specific intent crime, a defendant cannot be found guilty of it if conditions were such as to preclude the forming of the necessary intent. Conditions which are recognized as defenses to the crime include intoxication, insanity and diminished capacity. People v Jones, 228 Mich 426, 428-429; 200 NW 158 (1924); People v Mangiapane, 85 Mich App 379, 395; 271 NW2d 240 (1978). Moreover, if a defendant would have been guilty of manslaughter had the assault resulted in death (due to an absence of malice), there can be no conviction of assault with intent to murder. People v Mortimer, 48 Mich 37, 40; 11 NW 776 (1882); People v Maher, 10 Mich 212, 218-219 (1862); CJI 17:2:02(1).
In the instant case, the trial court’s instructions to the jury were not flawed. The jury was instructed on the elements of the offense of assault with intent to murder, CJI 17:2:01, and was informed that defendant could not be guilty of the offense if the charge would have been reduced to manslaughter had the victim died as a result of the incident, CJI 17:2:02(1). The elements of the crime of voluntary manslaughter were also enunciated to the jury. In addition, the jury was instructed that defendant must have had the specific intent to kill the victim, CJI 3:1:16, and that insanity, if proven, could negate that intent, CJI 7:8:01.
Contrary to what defendant asserts on appeal, the jury was not erroneously instructed that defendant need not have had the personal intent to kill in order to be guilty of assault with intent to murder. Defendant has read the jury instructions out of context and challenges the entire charge by making reference to isolated statements. However, it is well established that jury instructions must be read as a whole and not extracted piecemeal in an effort to establish error mandating reversal. People v Wesley, 148 Mich App 758, 761; 384 NW2d 783 (1985), lv gtd on other grounds 425 Mich 872 (1986). Here, the jury was expressly instructed on several different occasions that defendant could not be found guilty if he did not have the requisite specific intent. It was further instructed that a finding of the required specific intent could not be reached if defendant made a successful showing of insanity or of the lack of actual malice. In accordance with case law and the language of the Michigan Criminal Jury Instructions, the trial court appropriately stated that the lack of actual malice could arise if defendant acted out of passion or provocation, as measured by the "ordinary person” standard. CJI 16:4:02. Indeed, the jury was even told that it could consider any peculiar weakness of mind or infirmity of temper of defendant himself.
Accordingly, we conclude that, far from causing any manifest injustice, the instructions given to the jury by the trial court accurately summarized the applicable law.
Second, defendant argues that he was denied a fair trial because the prosecutor questioned a defense witness about defendant’s negative personality traits, current mental condition and capacity for further violence. Our perusal of the transcript discloses that during the cross-examination of Dr. Leonard J. Donk, a licensed psychologist, the prosecutor posed questions regarding, among other things, defendant’s propensity for being manipulative, possessive, jealous, exploitive, hostile, cruel and vindictive, as well as regarding defendant’s current mental condition and his inclination or proneness to commit further acts of violence. No objections were raised concerning these questions. As stated above, appellate review is foreclosed when an issue is raised for the first time on appeal unless it appears that a failure to consider the issue would result in a miscarriage of justice. Vicuna, supra; People v Juarez, 158 Mich App 66, 71; 404 NW2d 222 (1987); MCL 769.26; MSA 28.1096.
Initially, we note that the prosecutor’s questions regarding defendant’s negative personality traits constituted proper advocacy in that they concerned testimony previously given by Dr. Donk during direct examination. In response to inquiries regarding the results of various psychological tests administered to defendant, Dr. Donk stated that defendant was manipulative, possessive, jealous, exploitive, hostile, cruel and vindictive. Each of the prosecutor’s questions, however, concerned information that defense counsel had earlier elicited from Dr. Donk. Defendant cannot now be heard to complain regarding questions asked by the prosecutor on cross-examination when he himself "opened the door” concerning such evidence in an effort to support his defense of insanity. See City of Troy v McMaster, 154 Mich App 564, 570-571; 398 NW2d 469 (1986).
Moreover, the questions posed by the prosecutor concerning defendant’s personality traits, as well as those regarding his present mental condition and capacity for violence, were material to the issue of defendant’s insanity. As observed in 2 Wigmore, Evidence (Chadbourn Rev), § 228, p 9:
Sanity and insanity are terms applicable to the mode of operation of the mind as judged by some accepted standard of normality. The mode of operation of the mind is ascertainable from the conduct of the person in question, i.e., from the effect produced by his surroundings on his mind when responding by action to those surroundings. Virtu ally, then, the mind is one, while the surroundings are multifold; and the mode of operation cannot be ascertained to be normal or abnormal except by watching the effects through a multifold of causes. On the one hand, no single act can be of itself decisive; while, on the other hand, any act whatever may be significant to some extent.
The first and fundamental rule, then, will be that any and all conduct of the person is admissible in evidence. There is no restriction as to the kind of conduct. There can be none; for if a specific act does not indicate insanity it may indicate sanity. It will certainly throw light one way or the other upon the issue.
As this Court has previously remarked, Michigan decisions are in accord with the rule that any and all conduct of an accused is admissible as evidence where the defense of insanity has been raised. People v Cramer, 97 Mich App 148, 161; 293 NW2d 744 (1980), lv den 411 Mich 862 (1981). As stated in People v Woody, 380 Mich 332, 338; 157 NW2d 201 (1968), and quoted by this Court in Cramer, supra, p 161:
Testimony of prior arrests, convictions, assaultive and antisocial conduct, ordinarily completely inadmissible as bearing on the general guilt or innocence of [an] accused of the offense charged, [becomes] material and admissible as bearing on the issue of his insanity.
Accordingly, we conclude that, far from causing any miscarriage of justice, the questions posed by the prosecutor to Dr. Donk regarding defendant’s negative personality traits, current mental condition and capacity for further violence were proper.
Third, defendant contends that he was denied a fair trial because the prosecutor improperly questioned him about past specific instances of conduct or alleged bad acts toward his wife and children and because the prosecutor called defendant’s ex-wife to testify as a rebuttal witness in order to substantiate certain alleged prior bad acts. Specifically, the acts about which the prosecutor questioned defendant included his harassing of, and spying on, Joyce, his stealing of Joyce’s letters for use against her, his refusing to move out of the marital home and thereby forcing Joyce and the children to live in poor conditions, his taking of Joyce’s personal belongings, his making harassing telephone calls to Joyce, his leaving the children unattended and not properly caring for them, his using the children to harm Joyce during the divorce proceedings, and his physical abuse of Joyce.
As with the two previous issues raised by defendant on appeal, defense counsel made no objections at trial to the prosecution’s questioning of either defendant or Joyce regarding defendant’s past bad acts. Thus, the issue was not preserved for appellate review and should not be reviewed absent a miscarriage of justice. Vicuna, supra; Juarez, supra; People v Norwood, 123 Mich App 287, 297; 333 NW2d 255 (1983), lv den 417 Mich 1006 (1983); MCL 769.26; MSA 28.1096. Many of the questions posed to defendant by the prosecutor were merely inquiries following up on testimony elicited from defendant himself or from Dr. Donk on direct examination. City of Troy v McMaster, supra. Moreover, the alleged prior bad acts were proper subjects of inquiry since they were material to the issue of defendant’s insanity. Cramer, supra.
Thus, for the same reasons as those set forth in the portion of this opinion addressing the second issue raised on appeal, we find that, far from causing any miscarriage of justice, the questions posed by the prosecutor to defendant and Joyce regarding defendant’s alleged prior bad acts were proper.
Fourth, defendant contends that he is entitled to a resentencing because the court improperly considered information earlier obtained during his divorce case. The same trial judge who presided in defendant’s divorce case also presided in the criminal action. As with all the other issues raised by defendant on appeal, however, this issue was not the subject of an objection at the trial level. Nor did defendant file a motion below to vacate his sentence prior to bringing the instant appeal. Nor did defendant demonstrate any specific prejudice. Under these cirumstances, defendant has waived any right to complain on appeal regarding this issue. People v Gauntlett, 152 Mich App 397, 403; 394 NW2d 437 (1986), lv den 426 Mich 873 (1986).
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] |
Cynar, P.J.
Plaintiffs, Louis J. and Joanne M. Roy, appeal as of right from the January 29, 1987, order granting defendants’ motions for summary disposition and dismissing plaintiffs’ complaint for failing to state a claim upon which relief can be granted. MCR 2.116(C)(8). We affirm.
Plaintiffs commenced the instant action seeking to recover for the loss of their twenty-three-year-old son, Jon. P. Roy, who had been killed in a motorcycle accident on August 21, 1986. In their complaint, plaintiffs alleged that defendants had served their son alcohol contrary to Michigan’s dramshop act, MCL 436.1 et seq.; MSA 18.971 et seq. Specifically, plaintiffs alleged that, as a direct and proximate result of the death of their son, they had been deprived of their son’s love, society, companionship and services.
On December 2, 1986, defendants moved for summary disposition on the basis that plaintiffs’ claim was barred by a recently enacted amendment to the dramshop act, MCL 436.22(10); MSA 18.993(10). The amendment took effect on July 7, 1986, approximately IV2 months before the accident. The amendment provides that a visibly intoxicated person or members of his family are precluded from maintaining a cause of action for loss of financial support, love, society or companionship.
Plaintiffs opposed the motion arguing that the amendment to the statute should be declared unconstitutional on the basis that it constitutes a denial of equal protection because it treats parents of an innocent victim differently from parents of a noninnocent victim. In addition, plaintiffs claimed that the amendment denied them due process of law.
The hearing on defendants’ motion took place on January 29, 1987. The trial judge ruled from the bench and found that plaintiffs’ claim was barred by the recent amendment to the dramshop act. The court’s ruling was incorporated into a January 29, 1987, order dismissing plaintiffs’ complaint. The instant appeal followed.
The sole issue before the Court is whether the amendment to the dramshop act, which denies recovery to certain persons, violates equal protection and due process’ guarantees of the United States and Michigan Constitutions. Plaintiffs’ com plaint was dismissed for failure to state a claim upon which relief can be granted. A motion for summary disposition pursuant to MCR 2.116(C)(8) tests only the legal sufficiency of the pleadings. The court must accept as true all well-pled factual allegations as well as any conclusions which can reasonably be drawn therefrom. The court may grant the motion only when the claim, on the pleadings alone, is so clearly unenforceable as a matter of law that no factual development could possibly justify the right to recovery. Abel v Eli Lilly & Co, 418 Mich 311, 323; 343 NW2d 164 (1984), reh den 419 Mich 1201 (1984), cert den sub nom ER Squibb & Sons, Inc v Abel, 469 US 833; 105 S Ct 123; 83 L Ed 2d 65 (1984); Stewart v Isbell, 155 Mich App 65, 74; 399 NW2d 440 (1986).
The Michigan Constitution secures the same right of equal protection (Const 1963, art 1, §2) and due process (Const 1963, art 1, § 17) as does the United States Constitution (US Const, Am XIV). Fox v Employment Security Comm, 379 Mich 579, 588; 153 NW2d 644 (1967). In 1986, the Michigan Legislature passed several amendments to the dramshop act. One of these amendments addressed who could properly maintain an action for injuries caused by furnishing liquor to a minor or a visibly intoxicated person. The amendment now provides:
Except as otherwise provided in this section, an individual who suffers damage or is personally injured by a minor or visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of alcoholic liquor to the minor or visibly intoxicated person, if the unlawful sale is proven to be a proximate cause of the damage, injury, or death, or the spouse, child, parent, or guardian of that individual, shall have a right of action in his or her name against the person who by selling, giving, or furnishing the alcoholic liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the damage, injury, or death. In an action pursuant to this section, the plaintiff shall have the right to recover actual damages in a sum of not less than $50.00 in each case in which the court or jury determines that intoxication was a proximate cause of the damage, injury, or death. [MCL 436.22(4); MSA 18.993(4).]
While providing for who may maintain an action under the dramshop act, the Legislature also specifically excluded certain individuals from being able to sue under the act in MCL 436.22(10); MSA 18.993(10), which provides:
The alleged visibly intoxicated person shall not have a cause of action pursuant to this section nor shall any person have a cause of action pursuant to this section for the loss of financial support, services, gifts, parental training, guidance, love, society, or companionship of the alleged visibly intoxicated person.
Plaintiffs’ complaint falls squarely within this section since they, as parents of the alleged visibly intoxicated person, filed suit seeking damages for loss of financial support, love, society, etc., due to the death of their son. Plaintiffs contend that the above amendment denies parents of an alleged visibly intoxicated person a cause of action, while parents of a person harmed by the visibly intoxicated person still have a cause of action. Plaintiffs maintain that such a classification constitutes a denial of equal protection. We disagree.
In Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975), our Supreme Court set forth a two-tiered approach to equal protection cases:
If the interest is "fundamental” or the classification "suspect,” the court applies a "strict scrutiny” test requiring the state to show a "compelling” interest which justifies the classification. Rarely have courts sustained legislation subjected to this standard of review.
Other legislation, principally social and economic, is subjected to review under the traditional equal protection test. The burden is on the person challenging the classification to show that it is without reasonable justification. It has been said that "[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” A classification will stand unless it is shown to be "essentially arbitrary.” New statutes have been found so wanting in "rationality” as to fail to satisfy the "essentially arbitrary” test.
Under traditional equal protection analysis, a legislative classification will be upheld if the classification itself is rationally related to a legitimate governmental interest. Shavers v Attorney General, 402 Mich 554, 613; 267 NW2d 72 (1978), cert den sub nom Allstate Ins Co v Kelley, 442 US 934 (1979), after remand 412 Mich 1105 (1982). In applying this test, the challenged legislative judgment is accorded a presumption of constitutionality. Michigan Canners & Freezers Ass'n, Inc v Agricultural Marketing & Bargaining Bd, 397 Mich 337, 343-344; 245 NW2d 1 (1976). This presumption of constitutionality means that the court’s inquiry "must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it.” Shavers, supra, pp 613-614, quoting from United States v Carolene Products Co, 304 US 144, 154; 58 S Ct 778; 82 L Ed 1234 (1938).
In our case, the amendment does not deny plaintiffs the equal protection of the laws. The amend ment was designed to deal with the numerous cases which were creating a liability crisis for tavern and restaurant owners. Barring family members of a visibly intoxicated person from maintaining suit was one way in which this crisis could be lessened. We cannot conclude that this classification was arbitrary. It was rationally related to a legitimate governmental interest.
We also reject plaintiffs’ argument that we should apply a somewhat heightened scrutiny analysis as was done in Manistee, supra. In Goss v Richmond, 146 Mich App 610, 614; 381 NW2d 776 (1985), this Court addressed this very issue and noted:
Plaintiff cites Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1979), to support his claim that the classification system used "must bear a substantial and rational relation to the statute’s purpose.” His reliance on McGowan is misplaced. Unlike the guest passenger statute under scrutiny in McGowan, the dramshop act does not create a discrete exception to a general rule. Rather, the dramshop act creates the general rule by providing certain persons a remedy which was not available at common law. See Lucido v Apollo Lanes & Bar, Inc, 123 Mich App 267; 333 NW2d 246 (1983).
Similarly, we decline to apply a heightened scrutiny analysis to our case.
Plaintiffs also argue that they have been denied a cause of action without due process of law. This contention is also without merit. The test to determine whether legislation enacted pursuant to the police power comports with due process is whether the legislation bears a reasonable relation to a permissible legislative objective. Shavers, supra, p 612. As we noted earlier, the challenged amendment is not arbitrary and there is a reasonable relationship between the amendment and the legislative goal of easing the dramshop liability crisis. Therefore, since plaintiffs’ complaint fell within the challenged amendment, the trial court properly dismissed it.
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] |
Per Curiam.
At issue in this appeal from an opinion and order of the Workers’ Compensation Appeal Board dated September 23, 1986, is the question whether plaintiff’s attorney is entitled to an attorney fee of $9,844.74 from defendant Chrysler Corporation based on medical benefits admittedly received by plaintiff in a timely fashion, pursuant to MCL 418.315; MSA 17.237(315) and 1979 AC, R 408.44 (Rule 14).
Following a hearing, the Workers’ Compensation Appeal Board found that plaintiff’s attorney was entitled to the contested fee. On the facts of this case, we reverse.
The factual predicate for the instant appeal is as follows:_
Eugene Watkins, born December 20, 1916, worked as a sander for Chrysler Corporation from October 13, 1950, to May 4, 1979. On October 5, 1977, while he was using an air hose, the valve came loose and the air pressure came on full blast. As a result, a pipe hit him on the head rendering him unconscious. He was treated and returned to work the next day. On May 4, 1979, a valve again came loose and he was hit on the head again. The incident was not observed nor reported, and Watkins’ wife was informed that her unconscious husband was drunk.
Mrs. Watkins took him home and the next day she took him to Sinai Hospital, where he underwent surgery for a blood clot in his brain and to remove a bone chip. On June 21, 1979, he filed a petition for hearing, alleging a head injury disability. On August 1, 1980, another petition for hearing was filed. A hearing was held on August 1, 1980, before Referee James H. Coss, and medical depositions and records were submitted. The referee awarded open benefits by decision mailed August 28, 1980, and made the following findings:
It is further ordered that medical related to the surgery of 5-9-79 and subsequent after care is found as compensable and, if the parties are unable to agree on the exact sums owed and the proper parties to be paid, then a further petition could follow for an exact determination and, in addition, the application of any agreements under Section 412.21 of the Act. As the plaintiff has shown some continuing improvement of his physical and ambulatory abilities since the injury date, it would appear that a rehabilitation therapy program should be instituted under Section 412.4A of the Act and if there is a change or improvement in the disability status or if the employees [sic] fails to cooperate with a properly tendered rehabilitation program then a further adjudication before this Bureau would be in order. However, there is no question, based on the proofs submitted, but that plaintiff is entitled to continuing weekly benefits and they are awarded herein.
Defendant employer appealed, but the appeal was dismissed on November 24, 1980, for failure of defendant to pay seventy percent benefits. On December 8, 1980, plaintiff’s attorney, Harvey Chayet, wrote a letter to the Director of the Bureau of Workers’ Disability Compensation, requesting a hearing regarding his right to an attorney fee related to the medical expenses paid by Blue Cross and Blue Shield of Michigan.
The hearing was scheduled for March 10, 1981, before Referee Joseph L. Chylinski, and the petition was withdrawn "pending plaintiff’s presentation of the medical billings ... to defendant for payment, pursuant to Judge Coss’ order of 8-4-80.” A hearing was ultimately held before Referee Coss on December 9, 1981, and a bcbsm representative testified. On February 17, 1982, Referee Coss mailed a decision denying the request for attorney fees for plaintiff’s attorney. He made the following findings, in part:
At the outset, it is clear that plaintiff has no right to reimbursement of those amounts paid by Blue Cross/Blue Shield for his medical treatment. The August 28, 1980 decision rendered in this case, which has now become final, expressly indicates that defendant is not liable to reimburse plaintiff for any of the medical expenses. Having failed to appeal from this decision, plaintiff cannot now attempt to relitigate this issue. See Steel v Suits News Co, 1980 WCABO 699 and Mason v Westram Corp, 1980 WCABO 980. Further, that portion of MCL 418.315; MSA 17.237(315) that deals with medical reimbursement to plaintiff only refers to the employee being reimbursed "for the reasonable expense paid by him . . . In the present case, plaintiff has not paid for the medical treatment provided and to provide reimbursement directly to plaintiff would do nothing but provide plaintiff with a large windfall.
The remaining question herein centers upon plaintiffs attorney’s claim of a right to a fee resulting from any reimbursement by Chrysler Corporation to Blue Cross/Blue Shield of those amounts paid by Blue Cross/Blue Shield for plaintiffs hospitalization and treatment for his disabling condition. Although the provisions of MCL 418.821(2); MSA 17.237(821X2) might authorize such an attorney fee in an appropriate situation, that section requires, as a minimum, the existence of a written assignment executed by the employee. See Harkle v American Sunroof Corp, 1980 WCABO 1489 and Plite v Russell H Coles, Inc, 1979 WCABO 342. As Harkle, supra, and Plite, supra, indicate, the subrogation rights contained in the Blue Cross/Blue Shield policy do not constitute a valid assignment under MCL 418.821(2); MSA 17.237(821X2) and, in the absence of any other evidence herein demonstrating the existence of a valid assignment, plaintiffs attorney cannot rely upon this statutory provision to support his right to an attorney fee.
Similarly, plaintiffs attorney cannot avail himself of the third-party reimbursement provision of MCL 418.315; MSA 17.237(315); to support his right to an attorney fee in this matter. The statutory provision sets forth the employer’s duty to provide reasonable medical, surgical and hospital services and medicines for a personal injury arising out of and in the course of his employment and further states:
"If the employer fails, neglects or refused [sic] so to do, the employee shall be reimbursed for the reasonable expense paid by him, or payment may be made on behalf of the employee to persons to whom the unpaid expenses may be owing, by order of the hearing referee. The hearing referee may prorate attorney fees at the contingent fee rate paid by the employee and may also prorate payments in the event of redemption.” (Emphasis added.)
As the above quoted statutory provision indicates, it is applicable only to expenses paid by plaintiff, which is not the situation here, or to unpaid expenses, such as the bills of doctors, nurses, or other vendors of medical services. See Plite, supra (Gillman Ch. concurring). By its own terms, the statutory provision does not authorize reimbursement of an insurer, such as Blue Cross/Blue Shield, who has previously paid for an employee’s medical expenses, to petition the Bureau for reimbursement. Moreover, it should be noted that in the present case Blue Cross/Blue Shield expressly indicated that it is not seeking reimbursement herein and has further indicated that plaintiffs attorney was never authorized to represent it in obtaining any such reimbursement. Nothing in the Workers’ Disability Compensation Act authorizes imposing the representation of plaintiffs attorney upon Blue Cross/Blue Shield or upon other third parties.
In conclusion, there being no provision in the Act authorizing the relief sought by plaintiff herein, plaintiffs request for reimbursement of medical expenses paid by a third party, Blue Cross/Blue Shield, and plaintiffs attorney’s request for an attorney fee are denied.
As previously noted, the appeal board reversed the referee’s decision and awarded the attorney fee to plaintiffs attorney.
Defendant Chrysler Corporation raises two issues, which we have framed as follows:
I. DOES RES JUDICATA BAR PLAINTIFF’S ATTORNEY’S CLAIM FOR ATTORNEY FEES ASSERTED SUBSEQUENT TO THE INITIAL AWARD HEARING OF AUGUST 1, 1980?
II. DID ERROR REQUIRING REVERSAL RESULT PROM THE WORKERS’ COMPENSATION APPEAL BOARD ORDER WHICH DIRECTED DEPENDANT TO PAY PLAINTIFF’S ATTORNEY FEES UNDER MCL 418.315; MSA 17.237(315)?
The appeal board addressed defendant’s first issue in its September 23 opinion as follows:
The administrative law judge’s 1982 findings and defendant’s claims on appeal is that res judicata bars plaintiff from petitioning for determination of entitlement to reimbursement for any amounts paid by bcbsm, as the 1980 decision expressly held that defendant was not liable to reimburse plaintiff for any of those expenses, with plaintiff’s failure to appeal rendering it a final judgment on that issue. Gose v Monroe Auto Equipment Co, 409 Mich 147 [294 NW2d 165] (1980); Steel v Suit[s] News Co, 1980 WCABO 699; Mason v Westram Corp, 1980 WCABO 980.
However, the administrative law judge’s 1980 order expressly reserved all compensable medical expenses incurred on and after May 9, 1979 as the subject of a separate petition for determination of payments of expenses to specific parties. That defendant is not required to reimburse plaintiff directly by terms of that same order is shown therein not to abrogate defendant’s ultimate responsibility for payment of the medical expenses paid on plaintiff’s behalf. While plaintiff may not be able to assert any contingent rights of recovery held by bcbsm, he is not barred from seeking here a determination of any attorney fee to which he may be entitled based on bcbsm’s right to reimbursed expenses. This is a separate and unadjudicated issue. Gose, supra.
We agree with the conclusion reached by the appeal board and find no merit in this issue.
Defendant’s second issue is the crucial issue in this case, and it is at this juncture that we find the appeal board erred in interpreting the applicable law, necessitating reversal.
The background of this issue is complex, and has previously been reviewed by this Court. It can be briefly explained by this excerpt from Boyce v Grand Rapids Asphalt Paving Co, 117 Mich App 546, 550-552; 324 NW2d 28 (1982):
A more difficult argument is presented with respect to plaintiffs claim that the attorney fees should be paid by the employer or the insurance carrier.
In pertinent part, MCL 418.315; MSA 17.237(315), provides:
"The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of his employment, reasonable medical, surgical, and hospital services and medicines, or other attendance or treatment recognized by the laws of this state as legal, when they are needed. ... If the employer fails, neglects or refuses so to do, the employee shall be reimbursed for the reasonable expense paid by him, or payment may be made in behalf of the employee to persons to whom the unpaid expenses may be owing, by order of the hearing referee. The hearing referee may prorate attorney fees at the contingent fee rate paid by the employee. . . .”
The final sentence of this statutory provision could be construed to require either the employer or insurance carrier to pay plaintiffs attorney fees. However, the administrative rules of the Workers’ Compensation Bureau have interpreted this provision in another manner. Rule 14 of the Bureau of Workers’ Compensation which was in effect on the date of plaintiffs injury contains the following pertinent subrule:
"(2) In a case tried to completion with proofs closed or compensation voluntarily paid, an attorney shall first deduct the reasonable expenses from the accrued compensation which have been incurred by the plaintiff. The fee which the referee may approve shall not be more than 30% of the balance.” 1972 AACS, R 408.44.
This rule then contemplates the computation of attorney fees on the amount remaining of an award after reasonable expenses have been deducted. Subrule 5 of Rule 14 which was in effect on the date plaintiff was injured defined "reasonable expenses” to include:
"(a) Hospital expenses.
"(b) Surgical expenses.
"(c) Medical expenses.
"(d) Statutory burial expenses.
"(e) Medical examination fee and witness fee.
"(f) Any other medical witness fee including costs of subpoena.
"(g) Cost of court reporter service.
"(h) Appeal costs.” 1972 AACS, R 408.44.
Under this rule, an attorney cannot recover a percentage fee for any portion of a compensation recovery which represents accrued medical expenses. As the dissenting member of the appeal board recognizes, this rule may represent an unwise policy. That is, an attorney may be reluctant to take a case in which accrued compensation is small but where accrued and unpaid medical benefits are substantial if he cannot recover his fee from the medical benefits portion of the award. In such a case, the potential fee might not merit the necessary effort.
Quite likely, there are cases in which Rule 14 serves no injustice. As was noted in the dissenting opinion of the appeal board:
"[I]t might not be appropriate to award attorney fees for expenses for medical services in those situations where it later turns out that the employer did not have the slightest notice or knowledge that they were needed or did not in any manner fail or neglect to provide or pay for such services.”
In other cases, however, where the employer or its insurance carrier is guilty of a breach of the statutory duty to provide medical care or to pay for medical care in a timely fashion then the employer or its carrier, and not the employee, should bear the burden of the attorney fees. As a matter of policy, where an employer or an insurance carrier refuses to pay mandatory medical benefits, justice would be served by requiring the employer or the insurance carrier to pay the attorney fees of plaintiff’s counsel. The problem is, however, that neither the statute nor the rules of the Bureau of Workers’ Compensation so provided. The bureau is bound by its own rules. Bohannon v Sheraton-Cadillac Hotel, Inc, 3 Mich App 81; 141 NW2d 722 (1966). In this case, therefore, the appeal board correctly held that plaintiff’s counsel’s attorney fees could not be collected from plaintiff’s employer, its insurance carrier, or the defendant hospital.
In this case, the date of injury came after the effective date of the new version of Rule 14. Accordingly, the appeal board ordered defendant Chrysler Corporation to pay to plaintiff’s attorney an attorney fee of $9,844.74. Its somewhat oblique opinion relies on the above dictum from Boyce and a peremptory order in the case of Gordon v Jenkins, Nystrom & Sterlacci, PC, Court of Appeals Docket No. 70646 (June 29, 1983), although it discusses many more cases.
The problem here is that the appeal board has ignored the policy aspect of the dictum from Boyce. Boyce says, in dictum, that "where the employer or its insurance carrier is guilty of a breach of the statutory duty to provide medical care or to pay for medical care in a timely fashion then the employer or its carrier, and not the employee, should bear the burden of the attorney fees.” But in this case, plaintiffs medical expenses were timely and quickly paid by Chrysler’s health and accident insurer, bcbsm. There was no neglect, no breach of duty, no failure to provide medical care. Compare McCaslin v General Motors Corp, 133 Mich App 782; 349 NW2d 544 (1984).
Bcbsm has not sought reimbursement of medical expenses from Chrysler, and counsel for plaintiff does not purport to represent bcbsm’s interests in any capacity.
It is uncontested that the agreement between Chrysler and bcbsm which affords medical coverage to Chrysler’s employees requires Chrysler to pay as a premium to bcbsm the actual cost of the preceding year’s expenditures by bcbsm on behalf of Chrysler’s employees plus an agreed-upon premium for administration of the program. This arrangement facilitates the spirit and intent of § 315 of the Workers’ Disability Compensation Act. To now impose an unearned attorney fee on Chrysler based on a percentage of the voluntary and timely medical benefits afforded its employees would be unconscionable and would likely give rise to the very type of problem that § 315 seeks to preclude.
Reversed; costs to defendant.
We do believe that this rule was amended in 1979, deleting subsections (5XaMd), thus allowing plaintiffs attorney a larger recovery. However, all relevant matters occurred before this amendment. We decline to hold it retroactive. Plaintiffs contingency fee contract required the fee to be set in accord with statutes and applicable rules then in force. Subsequent amendments, if held retroactive, would alter this contract. This we cannot allow. Byjelich v John Hancock Mutual Life Ins Co, 324 Mich 54; 36 NW2d 212 (1949). | [
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MARKEY, J.
Defendant appeals by right his convictions after a jury trial for first-degree felony murder, MCL 750.316(l)(b), armed robbery, MCL 750.529, and carjacking, MCL 750.529a. The trial court sentenced defendant to life imprisonment for felony murder and 19 to 80 years’ imprisonment for armed robbery and carjacking. We affirm.
Defendant argues that the testimony of Sergeant Ron Gibson, a certified video forensic technician, regarding the identity of individuals in still photos and surveillance footage was lay opinion testimony. Defendant contends that his identity was at issue and this testimony was irrelevant and superfluous because conclusions and opinions regarding the identity of individuals in the still photos and in the surveillance footage could have been drawn by the jury. Therefore, defendant contends, this testimony invaded the province of the jury, and the trial court’s admission of this evidence was error warranting reversal. We disagree.
We review for an abuse of discretion the trial court’s evidentiary rulings that have been properly preserved. People v Unger, 278 Mich App 210, 216; 749 NW2d 272 (2008). “An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes.” Id. at 217.
Generally, all relevant evidence is admissible except as otherwise provided by either the state or the federal constitution or by court rule. MRE 402; People v Yost, 278 Mich App 341, 355; 749 NW2d 753 (2008). Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401. Even if evidence is relevant, it “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .” MRE 403; see also Yost, 278 Mich App at 407.
MRE 701 permits the admission of lay opinion testimony and provides:
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.
MRE 702 permits the admission of expert testimony and provides:
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Gibson’s testimony identified individuals depicted in still-frame photos — taken from the surveillance video — as the same individuals in the actual video. The purpose was to determine whether the two suspects involved in the shooting and whose images were captured in the surveillance video had been to the BP gas station before the murder. Gibson explained what he was trying to capture in each of the six still photographs. Each photo captured specific individuals: the suspects, the victim, or a woman whom Gibson saw accompanying the two suspects earlier in the evening of the murder. When asked about the surveillance video, Gibson identified the victim, the suspect who had a shotgun, and the suspect who was holding the victim. Gibson identified Exhibit 4 as a still photo depicting the person in the video who was holding the shotgun and Exhibit 9, another still photo from the video, as depicting the person grasping the victim. Gibson never testified that any of the individuals depicted in either the still photographs or the surveillance video was defendant.
The gateway question is whether Gibson’s testimony constituted expert testimony or lay opinion testimony, i.e., whether MRE 702 or MRE 701 applies, respectively. MRE 701 is virtually identical to FRE 701, and because no published Michigan case addresses this specific issue, we review relevant federal cases. In United States v Begay, 42 F3d 486, 502 (CA 9, 1994), an officer provided narrative testimony regarding an enhanced video of a demonstration involving about 200 demonstrators that resulted in violence. The officer magnified the videotape, reviewed more than 800 photographs taken during the incident, copied portions of the videotape in slow motion, and enhanced its quality to help his identification of the individuals depicted. He then added circles and arrows to help the jury follow the defendants’ movements. Id. The United States Court of Appeals for the Ninth Circuit determined that this was not expert testimony; it was lay witness opinion testimony. Id. Just as the officer in Begay presented lay opinion testimony, Gibson also presented lay opinion testimony. Further, Gibson was qualified as a forensic video technician, “proficient in the acquisition, production and presentation of. . . video evidence in court[.]” Even if these qualifications do not extend to comparison and identification of individuals within still photographs made from videos, Gibson’s testimony was properly admitted as lay opinion testimony under MRE 701.
First, Gibson’s testimony was rationally based on his perception. Gibson was not at the scene while the video footage was being recorded and did not observe firsthand the events depicted on the video. Instead, Gibson watched the video, produced short clips of the individu als while they were inside the store, and isolated certain frames to create still images. On the basis of his scrutiny of the video surveillance footage and the still images he created from the video, Gibson provided his opinions regarding the identity of individuals within the video as compared to the still images from portions of the video. In Begay, the Ninth Circuit held that the contention that the officer’s testimony about the videotape was not based on his own perceptions because he was not present when the events that were videotaped occurred lacked merit because his testimony was based on his own perceptions of the video itself. Begay, 42 F3d at 502-503. The Ninth Circuit particularly noted the officer’s “extensive review” of the video. Id. at 503. Similarly here, while Gibson was not at the scene when the events depicted in the video were occurring, Gibson testified that he created the still photos from the surveillance video and cropped some of the photos to create a closer view. The purpose for creating the still photos was to determine whether the two suspects had come to the BP gas station earlier in the evening before the murder took place. As was the conclusion with the officer in Begay, it can be inferred from Gibson’s testimony that he viewed the video and the still photos several times in order to draw his conclusions and opinions about the identity of the individuals in the surveillance video and still photos as compared to other individuals depicted in the same evidence.
Second, Gibson’s testimony was intended to provide a clearer understanding about whether the two suspects depicted in the video had been to the BP gas station earlier in the evening, a fact at issue in the case. In Begay, the Ninth Circuit concluded that the officer’s testimony likely helped the jury evaluate the videotape because it could reasonably be assumed that “one viewing a videotape of a demonstration involving over 200 people would likely not see certain details, given the tremendous array of events all occurring simultaneously,” and the officer’s testimony “could help the jury discern correctly and efficiently the events depicted in the videotape.” Begay, 42 F3d at 503. Similarly here, there were approximately six hours of surveillance video that Gibson reviewed to create still photographs and short clips. It is not clear whether there were other individuals in the six hours of video, but given its length, it can be inferred that there were. Because it can be inferred that Gibson viewed the surveillance footage and still photos several times to reach his conclusions and opinions, it can similarly be reasonably inferred that Gibson’s testimony helped the jury to correctly and efficiently determine whether the two individuals seen earlier in the footage were the same individuals who were involved in the murder later depicted in the video.
Third, Gibson’s testimony did not invade the province of the jury. In United States v LaPierre, 998 F2d 1460, 1465 (CA 9, 1993), an officer provided lay opinion testimony that the defendant was the individual captured in surveillance photographs from the bank that was robbed. The Ninth Circuit concluded that the trial court abused its discretion by admitting this testimony and remanded the case. Id. The Ninth Circuit identified two situations under that circuit’s precedent illustrative of when such testimony was admissible. The LaPierre court opined that the “common thread” of this authority was “reason to believe that the witness is more likely to identify correctly the person than is the jury.” Id. The court concluded that the issue of whether the defendant in the courtroom was the person pictured in a surveillance photo “was a determination properly left to the jury.” Id. see also United States v Rodriguez-Adorno, 695 F3d 32, 40 (CA 1, 2012) (holding that when a witness is in no better position than the jury to make an identification from a video or photograph, the testimony is inadmissible under FRE 701).
But unlike the officer in LaPierre, Gibson did not identify defendant in the video or still images. Gibson’s testimony only linked individuals depicted in the surveillance video as being the same individuals depicted in the still photographs. While “a witness cannot express an opinion on the defendant’s guilt or innocence of the charged offense,” People v Bragdon, 142 Mich App 197, 199; 369 NW2d 208 (1985), Gibson expressed no such opinion. Further, because Gibson was comparing the video surveillance video to still images that he himself had created from the six-hour long video, Gibson was in the best position to identify the individuals in the photographs as being the same as those depicted in the video. Gibson’s testimony did not invade the province of the jury.
Because Gibson’s testimony was (1) rationally based his own perception of the video and (2) helpful for the jury to determine whether the two individuals seen committing the crime in the surveillance video had come to the BP gas station earlier in the evening, Gibson’s testimony was admissible under MRE 701. Further, because we conclude that Gibson’s testimony regarding his opinions and conclusions did not invade the province of the jury, we also conclude the trial court did not abuse its discretion by admitting Gibson’s testimony.
We affirm.
Murray, P.J., and Whitbeck, J., concurred with Markey, J.
Lower federal court decisions are not binding on this Court, but may be considered on the basis of their persuasive analysis. People v Patton, 285 Mich App 229, 234; 775 NW2d 610 (2009). | [
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] |
ON REMAND
Before: Gage, P.J., and Holbrook, Jr., and Sawyer, JJ.
Sawyer, J.
This matter is once again before us, the Supreme Court having vacated our original opinion, Dan De Farms, Inc v Sterling Farm Supply, Inc, 244 Mich App 278; 625 NW2d 393 (2001), and having directed us to reconsider this matter in light of Sun Valley Foods Co v Ward, 460 Mich 230; 596 NW2d 11 (1999). Dan De Farms, Inc v Sterling Farm Supply, Inc, 465 Mich 872; 633 NW2d 824 (2001). Specifically, the Supreme Court concluded that we erred by considering extratextual evidence of legislative intent in interpreting MCL 285.67a(l) without first finding that an ambiguity existed in the statutory language. Although we thought it obvious from our opinion that we found the statute to be ambiguous, we apparently overlooked the requirement that we explicitly state such a finding in our opinion.
Accordingly, we find MCL 285.67a, as it existed at the times relevant to this case, to be ambiguous with regard to whether the bonding requirements of that statute apply to all grain dealers for all transactions or is limited to warehouse receipt transactions for bailed grain. Having found the statute to be ambiguous and in need of examination of extratextual evidence of legislative intent, we readopt our original reasoning and original opinion, the text of which follows:
Plaintiff appeals as of right from an order of the circuit court granting summary disposition to defendants on plaintiff’s action to recover under a bond obtained by a grain dealer pursuant to the Grain Dealers Act, MCL 285.61 et seq.; MSA 12.119(1) et seq. We affirm.
Plaintiff is a Michigan farm corporation operating in Unionville. Sterling Farm Supply, Inc., was a licensed grain dealer operating from at least 1981 to 1997. Between 1991 and 1995, plaintiff sold over $330,000 worth of beans to Sterling for which plaintiff was not paid. Plaintiff sued, seeking to recover $250,000 from a $50,000 bond acquired by Sterling and issued by Michigan Millers Mutual Insurance Company pursuant to § 7a of the Grain Dealers Act, MCL 285.67a; MSA 12.119(7.1). The Department of Agriculture was made a party to the action because that agency is the listed beneficiary on the bond. Although the bond was for $50,000, plaintiff sought $250,000 on the basis that the full $50,000 was available for each of the five years Sterling Farm Supply allegedly violated the Grain Dealers Act.
Between 1991 and 1995, plaintiff transferred over $330,000 worth of beans to Sterling. Apparently before November 1995, Sterling issued no paperwork for these transactions. However, on November 22, 1995, Sterling issued a series of “delayed payment agreements” that covered the beans. Each agreement identified the amount of beans covered, the crop that the agreement covered (e.g., the 1991-92 navy bean crop), the price to be paid, and the date payment was to be made. Apparently Sterling made some payments on these agreements, which were characterized as interest.
In April 1996, Sterling filed for chapter 11 bankruptcy protection, but the petition was later converted to a chapter 7 liquidation bankruptcy. Plaintiff originally sought recovery under this bond in the bankruptcy court, which claim was ultimately dismissed for lack of subject-matter jurisdiction by the bankruptcy court. Plaintiff then filed the instant action.
In the instant action, plaintiff alleged that Sterling was a licensed grain dealer and principal on a bond obtained from Michigan Millers. Plaintiff further alleged that Sterling violated the Grain Dealers Act and, therefore, plaintiff is entitled to recovery under the bond issued by Michigan Millers. Specifically, plaintiff argues that it is entitled to recover $50,000 (the face amount of the bond) for each of the five years that the violations occurred, for a total of $250,000.
Ultimately, the trial court granted summary disposition to defendants, concluding that the bonding provisions of the Grain Dealers Act only covered warehouse-receipted produce and that this case involved credit sales with promissory notes, not warehouse receipts for bailed grain. The court also granted summary disposition in favor of Michigan Millers on the grounds that plaintiff was not a third-party beneficiary on the bond.
Plaintiff first argues that the trial court erred in holding that the bond provision of MCL 285.67a(l); MSA 12.119(7.1)(1) applies only to warehouse receipt holders. We disagree. At the times relevant to this case, that statute provided as follows:
“An application for a grain dealer’s license shall be made on a form provided by the director, shall be filed 30 days in advance of a license expiration date if there is an outstanding license, and shall be accompanied by a sufficient bond on a form provided by the director or an irrevocable letter of credit on a form provided by the director in favor of the department of agriculture which fulfills the requirements of subsection (4). The bond shall run to the department of agriculture with sufficient surety conditioned for the faithful performance of the duties of a grain dealer and compliance with all laws of this state relating to grain dealers. The amount of the bond for a grain dealer who is a bailee of farm produce or who issues warehouse receipts shall be $15,000.00 for the first 10,000 bushels of storage capacity of the grain dealer, plus $5,000.00 for each additional 10,000 bushel capacity or fraction of that capacity used for the storage of warehouse receipted farm produce. The amount of the bond for a grain dealer who does not own a farm produce storage or handling facility or does not own a vehicle used to transport farm produce shall be $50,000.00.”
The quoted version of the statute reflects the wording of the statute from 1982 until 1998. It does not appear to be disputed that, before the 1982 amendments, the Grain Dealers Act would not support plaintiff’s position. The pre-1982 version of the statute specifically provided that “a grain dealer need not be bonded if he is not a bailee of farm produce or does not issue warehouse receipts.” That would clearly suggest that the bond was designed to protect those two types of farmers: bailors of grain and holders of warehouse receipts.
Similarly, in amendments adopted in 1998, the act once again clearly provides that the bond shall “apply only to warehouse receipt transactions.” However, we are not dealing with either the pre-1982 or post-1998 versions of the statute. Rather, at issue is the effect of the 1982 amendments on this case.
The 1982 amendments modified the statute in a number of ways. Most relevant to this case is the fact that the amendments deleted the provision that a grain dealer need not be bonded if he is not a bailee of farm produce or does not issue warehouse receipts. Specifically, it deleted the following phrase: “except that a grain dealer need not be bonded if he is not a bailee of farm produce or does not issue warehouse receipts.” On the surface, this amendment would suggest that the Legislature intended to extend the bond requirements to all grain dealers, not just those who are bailees and issuers of warehouse receipts, thus extending the protection of the bonds to sellers of grain, not just bailors of grain. Indeed, it is tempting to say that, whether the Legislature so intended or not, that is what it achieved.
However, there is some evidence to suggest that the Legislature did not intend to make such a change. First, the Department of Agriculture argues that it has consistently interpreted the Grain Dealers Act to require bonding only by dealers who bail grain and issue warehouse receipts. The department argues that the courts should give due deference to its interpretation of the act. This interpretation is further supported by the fact that the bond, apparently supplied by the Department of Agriculture, is entitled “Grain Dealers Bond for Warehouse Receipted Farm Produce.”
Second, the Department of Agriculture argues, very convincingly, that deletion of the sentence stating that grain dealers who are not bailees or issuers of warehouse receipts need not be bonded merely was replaced by a different phrase in the 1982 version of the statute. In the pre1982 version of the statute, the provisions for the amount of the bond was introduced with the phrase “[t]he amount of the bond shall be . ...” In the 1982 version, that phrase was re-written to read: “The amount of the bond for a grain dealer who is a bailee of farm produce or issues warehouse receipts shall be . . . .” Thus, it is not so much that the Legislature deleted the provision that only bailees and issuers of warehouse receipts had to be bonded as it is that it streamlined the statute by combining two sentences into one.
This analysis does not completely address the fact that the 1982 amendment also added a provision that a grain dealer who does not own a farm produce storage or handling facility or a vehicle used to transport farm produce must post a $50,000 bond. At first blush, it would appear that this provision would extend the bond requirements beyond bailees and issuers of warehouse receipts because those grain dealers who do bail grain would, of necessity, have to have storage facilities. However, Michigan Millers supplies a credible rationale. That requirement was added to cover grain dealers who accept bailed grain and issue warehouse receipts, but physically store the produce at a location owned by someone else. That is, someone who is essentially a broker for grain storage. Under the prior statute, such a dealer could escape the bonding requirement.
Third, under the 1982 amendment, the amount of the bond was based on the storage “capacity used for the storage of warehouse receipted farm produce.” This factor reinforces the idea that the bonding requirement was intended to apply only to bailed produce. The reason is demonstrated by this example: Assume that a grain dealer has a storage capacity of 100,000 bushels. If all that capacity is designated for the storage of bailed or warehouse-receipted grain, then the dealer would be obligated to post a $60,000 bond. However, under the formula in the statute, if the dealer did not bail grain or issue warehouse receipts, and used that storage capacity solely for grain he had purchased (either as a cash sale or under a price later agreement), the amount of bond required would be zero. Accordingly, we conclude that the bonding requirement does not cover grain purchased under either a cash sale (with delayed payment) or under a price later agreement.
Fourth, it is not at all clear that the legislative intent behind the 1982 amendments was to extend the bond protections to grain sale transactions. In reviewing the Legislative Service Bureau’s analysis of the bill that became 1982 PA 33, there is little to suggest that it was the clear intent to extend the bonding requirement to protect sellers of grain on credit. Although the analysis notes that the amendment would delete the “provision exempting grain dealers from bonding if they are not bailees or do not issue warehouse receipts,” it does not clearly state why that deletion was made (which would be consistent with the idea above that the provision was included elsewhere in the statute and, thus, there was no change in law meriting discussion).
Rather, the legislative analysis suggests that the primary impetus for the 1982 amendments was two-fold. First, to increase the record-keeping requirements of grain dealers so that the Department of Agriculture could more easily and quickly recognize that a grain dealer was in financial trouble and headed for bankruptcy. Second, the amendments were intended to curb abuses of price later agreements by increasing the security required for such agreements.
What is lacking in the legislative analysis is any strong indication of an intent to protect farmers who sold to grain dealers on credit, such as the case at bar. Indeed, the very opening of the analysis indicates that the act covers three types of transactions: “cash sales; transactions in which a dealer issues a warehouse receipt to a farmer for produce accepted for storage in the dealer’s facilities; and transactions involving price later agreements which allow dealers to take possession of grain without paying for it with the stipulation that the farmer can receive payment when market prices are more favorable than those that prevail at the time of delivery — harvest time — when prices are often at their lowest.” The transaction in the case at bar does not fit any of those categories. This was a sale on credit.
For that matter, as discussed above, the bonding requirements do not cover price later agreements. Rather, subsection 2 of the statute establishes separate security requirements for price later agreements. Those provisions include keeping the grain in the dealer’s inventory by storing it at the dealer’s facility, bailing it at another dealer’s facility (with a warehouse receipt), or selling it to another dealer under a price later agreement. For grain not maintained in the dealer’s inventory, the dealer must maintain cash or other secured investments to cover eighty percent of the grain not in inventory (along with a purchase commitment covering the grain deficiency). This latter requirement suggests the purpose behind the security requirements for price later agreements, i.e., to provide an assurance that the dealer can meet the price of the grain when it comes time under the price later agreement to set the price. How is this ensured? By requiring the grain dealer to either keep the grain in storage (in his own facility or elsewhere, but with title retained), have his own price later agreement with another dealer, or by procuring a futures contract to ensure the ability to repurchase the grain (and allow for it to be sold at the market price when the price is set under the price later agreement).
However, while the statute imposes obligations on a dealer to protect against unfavorable price changes, it does not impose a bonding requirement to ensure that the dealer does, in fact, retain the grain or otherwise comply with the provisions of the statute. How, then, would a farmer under a price later agreement be protected? In 1984, the statute was amended to add a provision, currently found in subsection 6, requiring a grain dealer to grant a security interest in the grain upon demand of the farmer selling under a price later agreement — the traditional way a seller is protected in a credit sale.
Finally, we note that the legislative analysis for the 1998 amendment of the statute (1998 PA 388) is helpful. This amendment added to subsection 1 the provision that the bond would apply “only to warehouse receipt transactions.” The legislative analysis of the bill identified the reason for the amendment as being to address a problem of a difference between how the Department of Agriculture applied the bonding requirement and how some courts (apparently the bankruptcy court in particular) interpreted the statute.
It could be argued that the 1998 amendment indicates that the 1982 amendment did, in fact, inadvertently extend the bonding requirement (and therefore the protections of the bonds) to all grain transactions. We think, however, that the better view is that the 1998 amendment merely clarified the consistent intent of the Legislature that the bonding requirement apply only to warehouse receipt transactions (for the reasons discussed earlier). The 1998 amendment served not to change the meaning of the statute, but to make its existing meaning clearer in light of misinterpretation by the bankruptcy court.
With all due respect to the federal bankruptcy court, our view is that MCL 285.67a; MSA 12.119(7.1) imposes only, and ever did impose only, a bonding requirement to cover warehouse receipt transactions for bailed grain. Because the case at bar does not involve a warehouse receipt transaction, it does not come within the coverage of the bond. Accordingly, the decision of the trial court is affirmed.
The resolution of the above issue renders it unnecessary to consider plaintiffs other issue, whether plaintiff had the right to enforce the bond as either a direct or third-party beneficiary or whether plaintiff is entitled to a remand to amend its complaint to seek mandamus directing the department to seek recovery under, the bond.
Affirmed. Defendants may tax costs.
The quoted version reflects amendments made in 1988 and 1992. Those amendments, however, do not materially affect the issue under consideration here.
The situation with the price later agreement is, briefly, as follows. Farmers would deliver grain to an elevator at harvest time. Because there is, obviously, a huge increase in supply of the produce at harvest time, that is the time of the year when prices are at their lowest. Consequently, under price later agreements, while the grain is delivered at harvest time and the dealer takes title to the grain, the price is not actually set until sometime in the future when grain prices are more favorable to the farmer. Apparently, the problem lay in the fact that grain dealers did not adequately guard against unfavorable price changes or made speculative investments in the commodities futures market, rendering them unable to meet their obligations to the grower when the time came to settle up the sale. The 1982 amendments were designed to increase the security a grain dealer had to have on deposit to ensure his ability to meet his obligations to the farmers.
We note that plaintiff characterizes this case as involving a price later agreement, as does the Department of Agriculture. It is not clear to us that that is the case. The documentation referred to in support of this claim is referred to as a “Delayed Payment Agreement.” Those agreements are not price later agreements because the price is fixed in those agreements. In fact, some of those agreements cover produce from harvests three or four years before the date of the agreement. Therefore, it is not clear whether the produce was originally sold under a price later agreement or not. In any event, it would appear that the date for setting the price, even if the sales were originally under price later agreements, had arrived by the time of the execution of the Delayed Payment Agreements and, therefore, the transactions were no longer price later sales and were now credit sales.
Note, such a bankruptcy court ruling can be found in In re Mayville Feed & Grain, Inc, 96 Bankr 755 (ED Mich, 1989). | [
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Murphy, J.
Defendant Michigan Department of Treasuiy appeals as of right from an order of the Court of Claims that held unconstitutional MCL 208.23(e), the site-based capital acquisition deduction provision of the Single Business Tax Act (sbta), MCL 208.1 et seq. The Court of Claims determined that the provision burdened interstate commerce and thus violated the Commerce Clause of the United States Constitution, art I, § 8, cl 3, in that both on its face and in its effect the provision operated in a discriminatory manner. We reverse.
The sbta imposes a specific tax on the adjusted tax base of every person with business activity in this state that is allocated or apportioned to this state. MCL 208.31(1). The tax base is defined as business income subject to various adjustments. MCL 208.9(1). These adjustments convert an income tax to a value added tax and are designed to reflect business activity. The adjusted tax base is then either allocated to Michigan, if business activities are confined solely to Michigan, MCL 208.40, or apportioned to Michigan, if the taxpayer’s business activities are taxable both within and without the state. MCL 208.41.
The apportionment formula of the SBTA has repeatedly changed over the past two decades. In effect for 1997, the tax year at issue, the tax base was apportioned by multiplying that base by a percentage, which was the sum of the property factor multiplied by ten percent, the payroll factor multiplied by ten percent, and the sales factor multiplied by eighty percent. MCL 208.45(5). Once a taxpayer’s apportioned tax base is calculated, it is subject to additional adjustments before the specific tax rate provided by MCL 208.31(1) is applied. The adjustment here at issue is the capital acquisition deduction (cad) contained in MCL 208.23.
As originally enacted in 1975, the SBTA computed the cad for real and personal property differently. 1975 PA 228, § 23. The cad for real property was limited to property located in Michigan and allowed for a full deduction. 1975 PA 228, subsection 23(c). The cad for tangible personal property was apportioned to Michigan by multiplying the cost of all tangible personal property acquired during the year “by a fraction, the numerator of which is the payroll factor plus the property factor and the denominator of which is 2.” 1975 PA 228, subsection 23(a). Both aspects of the CAD were challenged on constitutional grounds in Caterpillar, Inc v Dep’t of Treasury, 440 Mich 400; 488 NW2d 182 (1992), cert den 506 US 1014 (1992). Subsection 23(a) was challenged on the basis that the apportionment formula was composed of only two factors, property and payroll, while the tax base was apportioned with the three-factor formula that additionally took into account sales. Subsection 23(c) was challenged on the basis that it was unconstitutional to limit the CAD to real property located in Michigan. The Court upheld both aspects, the four-justice majority ruling that neither component violated the Commerce Clause. Caterpillar, supra at 429.
Though the cad provisions were upheld, while Caterpillar was pending on appeal before the Michigan Supreme Court the Legislature acted in response to this Court’s intermediate ruling in the case. See Caterpillar, Inc v Dep’t of Treasury, 188 Mich App 621; 470 NW2d 80 (1991). With 1991 PA 77 and 1991 PA 128, the Legislature amended the statute to allow a CAD for the apportioned cost of both real and tangible personal property located within and without Michigan, using an identical apportionment formula as was used to calculate the apportioned tax base. See MCL 208.23(c) and (d). Notwithstanding our Supreme Court’s subsequent decision validating the original structure, the amended 1991 version of the cad provisions remained effective for five years. That version of the statute went unchallenged.
In 1995, however, the Legislature again amended the CAD and apportionment provisions of the SBTA. Pursuant to 1995 PA 282, for the tax years between January 1, 1997, and December 31, 1998, taxpayers could utilize a site-specific CAD. MCL 208.23(e). Subsection 23(e) directed that this deduction for real and personal property located in Michigan was to be apportioned using the ten percent — ten percent— eighty percent formula provided by MCL 208.45(5). See 1995 PA 283. With the 1995 amendments, the Legislature included “fall-back” provisions. Pursuant to MCL 208.23a, if subsection 23(e) is “declared unconstitutional in a decision rendered by an appellate court and if that decision is not under appeal,” subsection 23(e) and various other provisions become ineffective. In their place, MCL 208.23(i) takes effect to allow a CAD for the apportioned cost of tangible assets located within and without Michigan. The apportionment formula to be effective under such circumstance is the twenty-five percent — twenty-five percent — fifty percent formula provided by MCL 208.45(4). Essentially, the fail-back provisions render the cad statutory structure for tax years 1997 and 1998 identical to the version in effect between 1991 and 1996, which went unchallenged.
Plaintiff, Jefferson Smurfit Corporation, is an Illinois corporation that manufactures and sells packaging materials. Plaintiff operates over 150 plants in thirty states, and during the year in question, 1997, transacted business in Michigan. During 1997, plaintiff placed in service within and without Michigan over $150 million of depreciable property. Property costing approximately $651,000 was located in Michigan. Plaintiff accordingly filed a tax return taking a CAD for the apportioned cost of those assets located in Michigan. Utilizing MCL 208.23(e) and MCL 208.45(5), the CAD amounted to approximately $21,000.
Subsequently, however, plaintiff filed an amended return utilizing the fall-back provisions of MCL 208.23(i) and MCL 208.45(4) and taking a CAD on the apportioned cost of its total assets acquired during 1997. Plaintiffs amended return, incorporating the alternate apportionment formula and an increased cad, resulted in a significant decrease in its tax liability. In conjunction with the filing of that amended return, plaintiff initiated the instant action challenging the site-specific aspect of the CAD effective for tax years 1997 and 1998 as unconstitutional. Plaintiff contended that subsection 23(e) violates the Commerce Clause, US Const, art I, § 8, cl 3, because it burdens out-of-state businesses and thus discriminates against interstate commerce. The Court of Claims agreed with plaintiff, and defendant now appeals.
This case presents an issue of statutory construction that this Court reviews de novo. See Brown v Michigan Health Care Corp, 463 Mich 368, 374; 617 NW2d 301 (2000). Specifically, the question at issue concerns the constitutionality of MCL 208.23(e) in view of the negative or dormant aspect of the Commerce Clause, US Const, art I, § 8, cl 3, which prohibits state practices that discriminate against interstate commerce. See Wyoming v Oklahoma, 502 US 437, 454; 112 S Ct 789; 117 L Ed 2d 1 (1992).
The framework for constitutional analysis is well established, and was effectively detailed by our Supreme Court in Caterpillar, supra at 413-415. A statute is presumed constitutional absent a clear showing to the contrary. Lehnhausen v Lake Shore Auto Parts Co, 410 US 356, 364; 93 S Ct 1001; 35 L Ed 2d 351 (1973). The presumption of constitutionality is especially strong with respect to taxing statutes. Ludka v Dep’t of Treasury, 155 Mich App 250, 264; 399 NW2d 490 (1986), citing O’Reilly v Wayne Co, 116 Mich App 582, 591-592; 323 NW2d 493 (1982). Furthermore, deference should be afforded state legislatures, which have great discretionary latitude in formulating taxes. See Wisconsin v J C Penney Co, 311 US 435, 444-445; 61 S Ct 246; 85 L Ed 267 (1940). A taxing statute must be shown to “clearly and palpably violate [ ] the fundamental law” before it will be declared unconstitutional. O’Reilly, supra at 592, quoting American Amusement Co, Inc v Dep’t of Treasury, 91 Mich App 573, 577; 283 NW2d 803 (1979), quoting Thoman v Lansing, 315 Mich 566, 577; 24 NW2d 213 (1946), quoting others (internal quotation marks omitted).
As indicated by our Supreme Court in Caterpillar, supra at 415, the United States Supreme Court has
established a four-pronged test to determine whether a state tax violates the Commerce Clause. Complete Auto Transit, Inc v Brady, 430 US 274, 279; 97 S Ct 1076; 51 L Ed 2d 326 (1977). A state tax will withstand scrutiny under a Commerce Clause challenge and will be held to be constitutionally valid under the four-pronged test articulated in Complete Auto provided that the tax: (1) is applied to an activity having a substantial nexus with the taxing state, (2) is fairly apportioned, (3) does not discriminate against interstate commerce, and (4) is fairly related to the services provided by the state.
At issue here is the third prong of the Complete Auto test. Under that prong, a state tax scheme will be deemed unconstitutional if it (1) is facially discriminatory against interstate commerce, (2) has a discriminatory effect, or (3) was enacted for a discriminatory purpose. Amerada Hess, supra at 75. The Court of Claims held that “MCL 208.23(e), the site-based capital acquisition deduction to Mchigan’s single business tax, discriminates both on its face and in its effect on interstate commerce.”
With respect to the first question, whether the CAD provision, subsection 23(e), exhibits facial discrimination, our Supreme Court’s Caterpillar decision is instructive. There, in consideration of the site-specific real property cad available pursuant to subsection 23(c), the Court noted that “[t]he CAD is available for any taxpayer, whether a multistate company or a company whose business activity is allocated entirely to Michigan — an in-state company.” Caterpillar, supra at 422. Thus, held the Court, the plaintiff, Caterpillar, could not “point to any treatment of in-state and out-of-state companies that [was] discriminatory on its face.” Id. at 422-423. Here, the site-specific cad for real and personal property is likewise available to any and all companies doing any measure of business in Michigan. Accordingly, we conclude that subsection 23(e) is facially neutral.
Before contemplating the potential of discriminatory effect, we briefly address the question whether subsection 23(e) was enacted for a discriminatory purpose. Although plaintiff contends a discriminatory purpose is indicated by particular legislative commentary at the time of consideration of the 1995 amendments, we do not share plaintiff’s interpretation of the referenced dialogue. To the contrary, we believe that such discussions regarding the goal of encouraging investment in Michigan fall in line with repeatedly approved intent and practice:
It is a laudatory goal in the design of a tax system to promote investment that will provide jobs and prosperity to the citizens of the taxing State. States are free to “structure] their tax systems to encourage the growth and development of intrastate commerce and industry.” [Trinova, supra at 385-386, quoting Boston Stock Exchange v State Tax Comm, 429 US 318, 336; 97 S Ct 599; 50 L Ed 2d 514 (1977).]
The Legislature’s intent being legitimate, what remains to be considered is whether such a laudatory goal is achieved without discriminatory effect.
States may compete with one another for a share of interstate commerce, they just may not discriminatorily tax the products manufactured or the business operations performed in other states. Boston Stock Exchange, supra at 336-337. Here, the cad is available to all Michigan taxpayers who locate new property in Michigan, whether intrastate or multistate businesses, and it is available at the same apportioned rate as is applied to the taxpayer’s overall tax base. The three-factor apportionment formula of the sbta has survived constitutional challenge, see Trinova, supra at 387, and the availability of an apportioned cad in a given tax year is not dependent on the initial location of the taxpayer’s assets, but rather turns on the taxpayer’s election to increase its Michigan investment.
We conclude, therefore, that the CAD provision is not designed to punish multistate taxpayers who choose not to increase their Michigan presence. Moreover, we are not convinced that the CAD provision is responsible for any deleterious effects suffered by multistate taxpayers who opt to increase activity outside Michigan. Accordingly, we note agreement with an analysis adopted by our Supreme Court in Caterpillar, supra at 425:
“Generally speaking, the overall tax consequences to a multistate taxpayer will be dependent upon the nature of its business activities and whether it is eligible and elects to avail itself of the tax reduction incentives afforded by the [sbt].” [Pollock, Multistate taxpayers under the Single Business Tax Act, 22 Wayne L R 1101, 1113 (1976).]
We hold that the site-specific cad available pursuant to subsection 23(e) has no discriminatory effect on interstate commerce.
Contrary to the Court of Claims, we hold that plaintiff has faded to carry its burden of demonstrating that the challenged provision clearly and palpably violates the fundamental law. Thoman, supra at 576; O’Reilly, supra at 592. We find no clear showing of dlegitimacy sufficient to overcome the strong presumption of constitutionality accorded this provision of Michigan’s single business tax scheme. See Lehnhausen, supra; Ludka, supra.
Reversed.
Each of the individual contributing factors — property, payroll, and sales — are fractions reflecting the ratio of Michigan activity to out-of-state activity: i.e., Michigan property/total property. See MCL 208.46, 208.49, 208.51.
The then effective, but identically applied, apportionment formula provided for a percentage that was the sum of the property factor multiplied by twenty-five percent, the payroll factor multiplied by twenty-five percent, and the sales factor multiplied by fifty percent. MCL 208.45(4).
In 1999 the Legislature yet again amended the sbta. Effective for tax years beginning January 1, 2000, both the site-specific and fall-back capital acquisition deduction provisions expire. See MCL 208.23 as amended by 1999 PA 115. The legislation also phases out the sbta, by reducing the tax rate of 2.3 percent by 0.1 percent a year, potentially ending the tax in twenty-three years. 1999 PA 115, § 3. Additionally, 1999 PA 115 adds to the sbta an investment tax credit. For tax years beginning after December 31, 1999, the credit is available to all businesses that make qualified capital investments in Michigan. MCL 208.35a(l). The tax credit is computed by multiplying the total qualified capital investments in Michigan by 0.85 percent, this percentage then reduced proportionate to the tax rate reduction. MCL 208.35a(2).
Since the Complete Auto decision, the four-pronged test has been applied on numerous occasions. See, e.g., Trinova [Corp v Michigan Dep’t of Treasury, 498 US 358; 111 S Ct 818; 112 L Ed 2d 884 (1991)]; Goldberg v Sweet, 488 US 252; 109 S Ct 582; 102 L Ed 2d 607 (1989); Amerada Hess Corp v New Jersey Dep’t of the Treasury, 490 US 66; 109 S Ct 1617; 104 L Ed 2d 58 (1989); American Trucking Ass’ns, Inc v Scheiner, [483 US 266; 107 S Ct 2829; 97 L Ed 2d 226 (1987)]; Maryland v Louisiana, 451 US 725; 101 S Ct 2114; 68 L Ed 2d 576 (1981). | [
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] |
Per Curiam.
Plaintiffs appeal as of right the trial court’s decision to grant defendants’ motion for summary disposition and to dismiss without prejudice plaintiffs’ complaint alleging dental malpractice. We affirm.
On January 13, 1997, defendant Kevin Flood examined plaintiff Erik Decker, who was complaining of pain, determined that plaintiff needed a root canal on two of his teeth, and began the procedure on that date. On January 21, 1997, the same day that defendant completed the root canal procedure, plaintiff began to experience pain, telephoned defendant, and was instructed to return to defendant’s office. According to plaintiffs’ complaint, after defendant administered three successive injections of Novocaine, plaintiff became cold, began to shake, and eventually stopped breathing. Plaintiffs further alleged that defendant administered cardiopulmonary resuscitation. Plaintiff was taken by ambulance to a hospital and released the following day. Plaintiffs also claimed that another dentist referred plaintiff to an endodontist who repaired and completed the root canal begun by defendant.
Plaintiffs filed their complaint on June 18, 1999. Attached to the complaint was an affidavit of merit signed by Michael J. Gallagher, D.D.S. According to the affidavit, Dr. Gallagher is a “doctor of dental surgery” and a member of the American Association of Endodontists. In the affidavit, Dr. Gallagher stated that he was familiar with the standard of practice for a dental surgeon treating a patient with plaintiff’s complaints and opined that defendant breached the standard of practice by failing to properly drill, clean, fill, or pack the root canal or properly remove the tissue and filling material. Dr. Gallagher also claimed that defendant’s breach of the standard of practice was a proximate cause of plaintiff’s pain and that he, Dr. Gallagher, “had to perform a root canal retreatment” on plaintiff’s teeth to address plaintiff’s pain.
On September 11, 1999, defendants answered plaintiffs’ complaint. On September 28, 1999, defendants filed a motion for summary disposition under MCR 2.116(C)(8) and (C)(10). In their motion, defendants argued that defendant Dr. Flood was a dentist in general practice in January 1997 and MCL 600.2912d required plaintiffs to file with their complaint an affidavit of merit signed by a health professional who plaintiffs’ attorney reasonably believed met the requirements of MCL 600.2169. According to defendants, Dr. Gallagher specialized in endodontics and, therefore, plaintiffs failed to file an affidavit of merit that met the requirements of MCL 600.2912d and MCL 600.2169, and plaintiffs’ complaint should be dismissed.
In response to defendants’ motion, plaintiffs argued that both defendant and Dr. Gallagher are general practitioners who perform root canals, with the only difference being that Dr. Gallagher performs only root canals. Plaintiffs argued that the statute “did not make sense,” because it precluded Dr. Gallagher, whose practice was limited to root canals, from giving expert testimony concerning the standard of practice for root canals. Plaintiffs further argued that the statute was intended to prevent a professional who has no experience at all in a given area from rendering an expert opinion.
The trial court rejected plaintiffs’ argument that Dr. Gallagher was a general practitioner and found that the evidence was uncontroverted that he specialized in root canals. The trial court also stated that the statute clearly precludes an expert who is not a general practitioner from giving expert testimony concerning the standard of practice required for a general practitioner. The court further noted that the Supreme Court affirmed the Legislature’s right to set standards for experts in medical malpractice cases and that, regardless of whether the statute creates an unfair standard, the court was unable to “square the wording of the statute to the facts here.” The court granted defendants’ motion and dismissed plaintiffs’ complaint without prejudice, noting that there may be a statute of limitations problem.
On appeal, plaintiffs argue that the trial court erred in finding that their affidavit of merit did not comply with MCL 600.2912d and in granting defendants’ motion for summary disposition. We review de novo a trial court’s decision on a motion for summary disposition. Holmes v Michigan Capital Medical Center, 242 Mich App 703, 706; 620 NW2d 319 (2000).
In this case, defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10). It is not apparent from the trial court’s statements on the record or the order entered by the court whether it granted the motion under subsection C(8) or subsection C(10). However, because it is clear that the court relied on evidence outside the pleadings in order to make its determination that Dr. Gallagher did not qualify as an expert under MCL 600.2169, we review this motion under the standard for MCR 2.116(C)(10). MCR 2.116(G)(5); Smith v Globe Life Ins Co, 460 Mich 446, 455; 597 NW2d 28 (1999).
A motion for summary disposition under MCR 2.116(C)(10) tests the factual support of a claim. Smith, supra at 454. The reviewing court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties in the fight most favorable to the non-moving party. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). The court should grant the motion only if the affidavits or other documentary evidence show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.
The issue before us in this case involves the requirements for the expert who signs the affidavit of merit that a medical malpractice plaintiff must file with the complaint pursuant to MCL 600.2912d. The statute requires that “the plaintiff in an action alleging medical malpractice . . . file with the complaint an affidavit of merit signed by a health professional who the plaintiff’s attorney reasonably believes meets the requirements for an expert witness under [MCL 600.2169].” MCL 600.2912d(l). MCL 600.2169(1) states:
In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria:
* * *
(c) If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:
(i) Active clinical practice as a general practitioner.
(ii) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed.
The determination of this issue requires us to interpret the language of two statutes. The primary goal of statutory construction is to determine and give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). The specific language of the statute is the first source for determining the Legislature’s intent, and when the language of the statute is unambiguous, the Legislature is presumed to have intended the meaning expressed and judicial construction is not required or permitted. In re MCI Telecommunications Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999).
Unless otherwise defined in the statute, words or phrases should be accorded their plain and ordinary meanings, and technical terms should be construed according to their peculiar meanings. MCL 8.3a; Western Michigan Univ Bd of Control v Michigan, 455 Mich 531, 539; 565 NW2d 828 (1997). Also, the reviewing court should presume that every word has some meaning and should avoid a construction that would render any part of a statute surplusage or nugatory. People v Borchard-Ruhland, 460 Mich 278, 285; 597 NW2d 1 (1999).
Here, plaintiffs claim that their expert, Dr. Gallagher, meets the qualifications of MCL 600.2169(1) because both defendant and Dr. Gallagher are general practitioners who perform root canals, with the only difference being that Dr. Gallagher limits his practice to root canals. Plaintiffs’ argument requires an interpretation of the meaning of the concept “general practitioner” in the statute. Because this term is not defined in the statute and does not appear to be a technical term, we look to its plain and ordinary meaning. Western Michigan Univ Bd, supra at 539. The term “general practitioner” is commonly defined as “a medical practitioner whose practice is not limited to any specific branch of medicine.” Random House Webster’s College Dictionary (1997). By contrast, the term “specialist” is defined as “a medical practitioner who deals only with a particular class of diseases, conditions, patients, etc.” Id.
It is apparent from plaintiffs’ admission that because Dr. Gallagher “limits his practice” to root canals, he does not meet the definition of a general practitioner and is, in fact, a specialist. Further, it was undisputed that Dr. Gallagher is an endodontist, which is defined as “one who specializes in the practice of endodontics.” Stedman’s Medical Dictionary (26th ed) (emphasis added). Applying the ordinary meaning of general practitioner as one who does not limit his practice to any particular branch of medicine, Dr. Gallagher clearly does not satisfy the requirements of MCL 600.2169 and, therefore, would not be qualified to offer expert testimony on the standard of practice of a general practitioner, such as defendant Dr. Flood. Because Dr. Gallagher is precluded by MCL 600.2169 from testifying regarding defendant’s standard of practice, there is no genuine dispute that the affidavit of merit attached to plaintiffs’ complaint does not comply with the requirements of MCL 600.2912d(l), and defendants were entitled to judgment as a matter of law.
Plaintiffs also argue that the trial court’s interpretation of the statute leads to the absurd result that a person who is eminently qualified to testify regarding the standard of practice required for performing root canals is not qualified to testify in this matter. Plaintiffs further assert that “statutes are to be construed so as to avoid absurd [sic] or unreasonableness,” citing Michigan Humane Society v Natural Resources Comm, 158 Mich App 393, 401; 404 NW2d 757 (1987). However, our Supreme Court repudiated the use of the “absurd result” rule of statutory construction in a case such as this where the language of the statute is unambiguous. People v McIntire, 461 Mich 147, 155-158; 599 NW2d 102 (1999). The Supreme Court’s decision in Mclntire precludes this Court from utilizing rules of statutory construction to impose policy choices different from those selected by the Legislature. Id. at 152. “ ‘[I]n our democracy, a legislature is free to make inefficacious or even unwise policy choices. The correction of these policy choices is not a judicial function as long as the legislative choices do not offend the constitution.’ ” Id. at 159, adopting as its own the language of Judge Young’s dissent in People v McIntire, 232 Mich App 71, 126; 591 NW2d 231 (1998). Clearly, it is not within our authority to second-guess the wisdom or reasonableness of unambiguous legislative enactments even where the literal inteipretation of the statute leads to an absurd result.
Even if this Court had the authority to construe an unambiguous statute so as to avoid an alleged absurd result, we would not agree with plaintiffs that the literal application of MCL 600.2912d and MCL 600.2169 leads to an absurd result in this case. We find no absurdity or unreasonableness in the requirement that the qualifications of a purported expert match the qualifications of the defendant against whom that expert intends to testify. See Greathouse v Rhodes, 242 Mich App 221, 231; 618 NW2d 106 (2000).
Affirmed.
According to plaintiffs complaint, defendant Kevin Mood, D.D.S., P.C., is the corporate entity under which defendant Kevin Mood practiced dentistry and is vicariously liable for Mood’s alleged malpractice. For purposes of clarity, the singular term “defendant” will be used to refer to Kevin Mood, D.D.S.
Plaintiff Vicki Decker is the spouse of plaintiff Erik Decker and asserts only derivative claims. For purposes of clarity, the singular term “plaintiff” will be used to refer to Erik Decker.
According to Random, House Webster’s College Dictionary (1997), endodontics is “the branch of dentistry dealing with the prevention, diagnosis, and treatment of diseases of the dental pulp.”
The court necessarily considered the statements in plaintiffs’ affidavit of merit in making its determination whether to grant defendants’ motion for summary disposition. The affidavit, although attached to plaintiffs’ complaint, does not meet the definition of a “pleading” under the court rules. MCR 2.110(A). In addition, the transcript of the hearing regarding defendants’ motion indicates that defense counsel provided the court with documentation from an internet web site of the American Association of Endodontists that, according to defense counsel, explained “what it is to be an endodontist.” However, this information is not attached to defendants’ motion or brief, nor does it appear in the lower court record.
Specialist is also defined as “[o]ne who devotes professional attention to a particular specialty or subject area” Stedman’s Medical Dictionary (26th ed). | [
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.Montgomery, J.
This case comes before the court on exceptions to findings of fact, and on assignments of error based upon the conclusions of law. The evidence taken upon the trial is not made a part of the record. It appears from the findings that Albert E. Waggoner and the deceased, Austin K. Wheeler, were engaged in business at Muskegon, Mich., manufacturing and selling a watchman’s electric clock, under the firm name of the Wag-goner Watchman Clock Company. This clock was invented by Albert E. Waggoner, and he had assigned a half interest in the invention to Austin K. Wheeler. The claimants were manufacturing electricians in New York City. It appears that in November, 1899, a letter was written to claimants, signed by the Waggoner Watchman Clock Company, by W. B. Waggoner, manager, asking for figures on the cost of manufacturing clocks. This letter was written under a letterhead bearing the words: “Waggoner Watch man Clock Co., Manufacturers of Wag-goner’s Watchman Clock. A. E. Waggoner, Austin K. Wheeler.” After this letter was written, the business was moved to Grand Rapids, and a new style of letterhead was adopted, containing the following words: “Austin K. Wheeler, President; A. E. Waggoner, Vice-President; W. B. Waggoner, Secretary and Treasurer. The Waggoner’s Watchman Clock Co., W. B. Waggoner, Manager.” On November 22d, using the last-named letterhead, Waggoner wrote:
“You will note from our letterhead that we have moved our headquarters from Muskegon to Grand Rapids. Are now ready to do business in a business way. * * *
[Signed] “The Waggoner’s Watchman Clock Co., “By W. B. Waggoner, Manager.”
On December 15th, using the same new form of letterhead, a letter was written containing the following:
“This matter has been delayed, owing to the reorganization of our company, which will put it on a thoroughly substantial business foundation; and we do not want to incur any further liabilities until this matter has been fully settled, which we hope will be in a few days.”
On December 23d a corporation was organized under the laws of Michigan, under the name of the Waggoner’s Watchman Clock Company. On December 30th, using the same new form of letterhead, the Waggoner’s Watchman Clock Company wrote claimants, directing them to book an order for the parts of 50 clocks, at the price of $17.25 each, etc. There had been a previous transaction between the parties while the copartnership was engaged in business at Muskegon.
The question presented for decision below and here is whether the obligation was an obligation of the copartnership or of the corporation. It is the contention of the claimants that no sufficient notice of the termination of the partnership was given to the claimants. The circuit judge found, however, as matter of fact:
“The goods and merchandise, the purchase price of which is the subject-matter of this claim, were neither ordered by nor received by the partnership of which Mr. Wheeler was a member, but were ordered by and received by the corporation formed on December 23d.
“The deceased receivéd no benefit from such purchase, or from the contract with claimants, except such as may have accrued to him as a stockholder of the corporation.
“The contract of the purchase and sale involved in this claim was a contract between the claimants and the corporation formed on December 23d.
“ The claimants had notice of facts sufficient to put them on inquiry whether the order for these goods, sent to them on December 30th, was the order of the same partnership with which they had been dealing, or was not the order of such partnership, but of some different organization.”
“These findings would apparently be sufficient, in the absence of any return of the testimony, to justify an affirmance of the case. But if we assume that these findings are deductions, simply, from the previous facts set out in the findings, the same result, we think, should follow. The new letterhead was an indication that a new institution was being formed, in which Wheeler was designated as president, A. E. Waggoner as vice-president, and W. B. Waggoner as secretary and treasurer and as manager. This, taken in connection with the express notice contained in the letter of December 15th that the delay in ordering was occasioned by the reorganization of the company, was, in our view, sufficient actual notice of the change in the contracting party to put the claimants on inquiry,' — -in fact, was sufficient of itself to apprise them that it was a new .concern that proposed to contract.
The cases relied upon by claimants’ counsel as furnishing support for their claim, namely, Morrill v. Bissell, 99 Mich. 409 (58 N. W. 324); Hall v. Heck, 92 Mich. 458 (52 N. W. 749); Sibley v. Parsons, 93 Mich. 538 (53 N. W. 786); and Tousignant v. Iron Co., 96 Mich. 87 (55 N. W. 681), — are clearly distinguishable from the present. The substance of the holding in these cases is that, as to parties with whom the copartnership has dealt, it is necessary to bring home to them notice of a change in the copartnership, in order to relieve a retiring partner. This, is a well-understood rule. But in the present case, according to the finding of facts, such notice was brought home to the claimants, and there was sufficient in the evidentiary facts found to justify this finding of the ultimate fact by the trial court.
The judgment, which was in favor of the estate, will be ■affirmed, with costs.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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] |
Moore, J.
This is a bill filed by the assignees of a lease to have it sold in satisfaction of the lessee’s indebtedness to them secured by the assignment. The circuit judge granted a decree according to the prayer of the bill of complaint. The case is brought here by appeal.
The terms of the lease as to assignments and transfers of the lessee’s interest without the consent of the lessor will be referred to later. The complainants’ assignment was not consented to by the lessor. The main question in the case is on the validity of this transfer, without consent, against a subsequent transfer, made with the lessor’s consent. The defendants are the personal representative of Mr. Parker, the lessor; Mr. Michell, the lessee; the members of the firm, of A. Ives & Sons, bankers, to whom the assignment with consent was made by Mr. Michell; Mr. Harmon, the trustee in bankruptcy of Ives & Sons; and the Macdonald Clothing Company, who hold from Ives & Sons a sublease for substantially the unexpired term of the lease. The lease is of a store building at the corner of State street and Woodward avenue, Detroit, and was made by Mr. Parker, party of the first part, to Mr. Michell, party of the second part, for a term of 15 years, commencing February 1, 1895. The material provisions of the lease are as follows: “ That all understandings or agreements made between the said above parties are to be void unless in writing; that the party of the second part will not assign nor transfer this lease, or sublet said premises, or any part thereof, without the written consent of said party of the first part. ” In an earlier part of the lease it is “provided that, in case any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part, his certain attorney, heirs, representatives, and assigns, to re-enter and repossess the said premises, and the said party of the second part, and each and every other occupant, to remove and put out.”
On August 2, 1897, Mr. Michell/who was engaged in both the clothing and grocery business, organized a cor poration to conduct the clothing business, under the name of 'the C. H. Michell Company, in which he held nearly all the stock. This company carried on this business in the premises covered by the lease from its organization until October, 1899, when it suspended business, and its stock was sold out and removed. Mr. Michell also organized a corporation under the name of the Michell Table-Supply Company, to carry on the grocery business, in which he held nearly all the stock. This company occupied a portion of the premises in question from October, 1897, until shortly before the building was sublet by the defendants Ives to the Macdonald Clothing Company, in March, 1900. There was no written agreement between Michell and either of these corporations regarding their occupation of the Parker premises, except it was understood at the time of the organization of the Clothing Com■pany that it was to occupy and stay'in that store. During the business existence of the Clothing Company, the rent of the premises was paid to Parker by its checks. Mr. Parker receipted for this rent in each case to Mr. Michell individually. He knew that the two corporations were in occupancy. It does not appear that he knew anything of the terms on which they occupied. He also knew that large sums of money were expended by these two companies to fit the premises for their business.
The complainants sold large quantities of merchandise to C. H. Michell and to the C. H. Michell Company. On the 2d of August, 1897, Michell, or the C. H. Michell Company, was indebted to the complainants in the sum of $20,000, or thereabouts, and the Michell interests desired to make arrangeménts for an extension of time for the payment of the $20,000 for three years, and also to provide for the purchase on credit of additional goods from the complainants, and to secure them the payment of the debt then due, and also to secure them the payment of such future indebtedness as should accrue from time to time by the further sale of goods to the C. H. Michell Company. On the 2d day of August, 1897, C. H. Michell delivered to the complainants, through Elliott G. Stevenson, -a power of attorney. It provided that Stevenson could and should execute an assignment of the lease in question to Crouse & Brandegee whenever desired by them, “as security for the payment of any indebtedness owing by the said Carl H. Michell or the said C. H. Michell Company to said Crouse & Brandegee,” and Stevenson was given all the power and authority that Michell had himself in the premises. The power conferred upon Stevenson, to use the language of the assignment itself, “is conferred for the purpose of authorizing and empowering him to execute an assignment of the lease, * * * together with all rights and interests of the said Michell under the same, to be held and used by the said Crouse & Brandegee as security for the payment of any sum of money that said C. H. Michell shall owe to the said Crouse & Brandegee. ” On the same day the original lease was delivered by Michell to the complainants herein, through their attorney and agent, Elliott G. Stevenson, and this original lease, from that day to this, has never been out of the control and possession of the complainants.
In March, 1898, Mr. Stevenson, under this power of attorney, assigned and conveyed to the complainants the lease, and all Michell’s rights and privileges thereunder, to secure the indebtedness contemplated by the power of attorney. This was not recorded, nor was it filed as a chattel mortgage. On October 10, 1898, Mr. Stevenson notified Mr. Michell of the assignment. On. October 16, 1899, after the rights claimed by and under Ives & Sons in the lease had accrued, if they had any thereunder, and their assignment had been delivered to them, and they had taken possession under it, Mr. Stevenson gave written notice to Mr. Parker and to Ives & Sons that an assignment of the lease had been made by Michell to the complainants in March, 1898. On October 27, 1899, Mr. Parker, by letter, replied to Mr. Stevenson’s notice, saying that he had no previous knowledge of the transfer to Crouse & Brandegee; that, under the terms of the lease, it could not be assigned without his written consent; that he had not consented to this assignment; and, further, “I do not now consent to it, and will in no way recognize it.” It is not claimed that Mr. Parker had any previous notice or knowledge of the complainants’ interests.'
The defendants Ives & Sons were the bankers for the Table-Supply Company from its organization, and loaned it money from time to time. On August 9, 1899, this indebtedness amounted to $46,201.77, represented by five interest-bearing demand notes, indorsed by C. H. Michell, .aggregating $20,000, and by an overdraft for the remainder made up .of advances previously made from time to time. None of this indebtedness was contracted before December, 1898. On August-7, 1899, Mr. Don M. Dickinson, who was counsel for the Table-Supply Company, after examining statements of their condition, which they furnished, and at their request, asked Ives & Sons to make them further advances, representing that this would,, in his judgment, enable the company to pull through, and that the Parker lease, which the Iveses knew to be valuable, would be assigned to secure the existing debt and future advances. To this proposition Ives & Sons agreed, and upon the strength of it forebore on the existing debt, and made further advances from time to time, the amount on October 14, 1899, being $6,416.01. On September 23d, in pursuance of this verbal understanding, a written permission was obtained from Mr. Parker, allowing Mr. Michell to sublet the premises for the unexpired period of the lease to Ives & Sons, and allowing Ives & Sons to sublet them to “such person or persons, firm, or corporation as they may elect; said premises to be occupied, however, by said Ives & Sons or their subtenants subject to and in accordance with all the requirements ” of the original lease. It further stated that it should not be construed as a general waiver of the provisions of the lease relating to assignment and subletting, but to give permission to sublet only to the persons and in the manner in the permission provided.
On October 11, 1899, Mr. Michell executed to Ives & Sons an assignment of all bis right, title, and interest in the lease to secure the advances made in pursuance of the agreement of August 9th with Mr. Dickinson, and all notes indorsed by him and discounted by Ives & Sons for the benefit of the Table-Supply Company, and such further advances as might be thereafter made. This assignment and Mr. Parker’s assent were delivered to Ives & Sons on October 14th. On October 16th they took possession of the leased premises, suffering the Table-Supply Company to continue therein until shortly before the-transfer to the Macdonald Clothing Company. It is claimed that up to this time Ives & Sons had no notice of the transfer to the complainants, or that they had any claim on the lease. On the day following their taking-possession they received notice from Mr. Stevenson, as already stated. At the time when Ives & Sons took possession there was some rent in arrears to Parker. This, under the terms of his consent, it was necessary for them to pay. They paid it, and further rent accruing up to the time of the transfer to the Macdonald Clothing-Company; in all, $7,850.73. In March, 1900, Ives &■ Sons sublet the premises to the Macdonald Clothing Company for substantially the remaining term of the lease, the-Clothing Company paying therefor the sum of $31,700, and undertaking to carry out the lessee’s obligations under the lease and the conditions of the Parker consent.
It is claimed by complainants that the value of the lease-over and above the rental it called for was $38,497.76. The defendants claim this amount is simply the present worth of the difference between the rental named in the lease and the rental offered by Mr. Stevenson, payable in monthly installments, for the unexpired term of the lease, on a 5 per cent, basis; and that the amount realized from the lease by Ives & Sons, after deducting the amount of the rent which they had paid, was $23,849.27, which was-$2,566.74 less than the amount of their demand paper, plus the advances between August 9th and October 14th.
The complainants claim: That the pledge or assignment of the lease as security in good faith .was not in violation of the covenant not to assign or sublet. That, even if the pledge were a violation of the covenant, Mr. Parker has waived the same by his conduct after knowledge of the breach on the part of Michell. That, as between complainants and the Iveses, the complainants are entitled to piority, because their assignment was first in point of time, and neither of the conveyances has ever been recorded; because the Iveses were informed of the prior assignment to these complainants; because the Iveses did not change their position any between the time of getting the actual assignment of the lease, on October 14th, and the receipt of written notice of the complainants’ assignment, on October 17th; because an oral pledge of a leasehold interest of 15 years’ duration is, under statute in this State, void, and no rights can be acquired ás against a prior assignee of such leasehold interest by one who relies upon a verbal assurance of future assignment.
The defendants contend that the assignment to complainants is invalid as a violation of the terms of the lease, and cannot be enforced; that there has been no waiver of the provisions of the lease by the lessor; that the covenant of the lease against assignments and transfers without the lessor’s consent is a continuing covenant, and that a court of equity will not enforce an assignment made without consent in violation of the covenant; that the Ives assignment was taken without notice of complainants’ claim, and for value; that as the complainants’ assignment, being security upon a chattel real, was not filed as a chattel mortgage, it must, even if otherwise valid, be postponed to the Ives assignment.
The first question demanding attention is whether the assignment or pledge of the lease in question as security in good faith was a violation of the clause against assignment. The case of Riggs v. Pursell, 66 N. Y. 199, is in point. The following language is contained in the opinion:
“The lease contained a covenant on the part of the lessee that he would not, during the term, assign, transfer, or set over the lease, or any of the ter-m thereby created; and the purchasers claim that this .covenant was violated, and the lease forfeited, by the giving of the mortgage, which was foreclosed. Their objection is based upon the giving of the mortgage; not that there was a forfeiture by the sale under -the mortgage. * * * The giving of the mortgage was not a violation of the covenant. A mortgage, in this State, of land, is not a transfer of the legal title or the possession, but a mere security. * * * It has been held in several cases in England that such a covenant is not violated by a delivery of the lease as a security for money loaned, and yet such a delivery operates as an equitable mortgage of the term created by the lease. 1 Taylor, Landl. & T. (2d Ed.) § 406; 2 Platt, Leases, 258; Pitt v. Hogg, 4 Dowl. & R. 226; Goodbehere v. Bevan, 3 Maule & S. 353. In Pitt v. Hogg there was a covenant ‘not to let, set, assign, transfer, set over, or otherwise part with the premises demised in the lease’ of a coffee house. The lessee deposited the lease with a bi’ewer as security for beer supplied to the house, and it was held that the covenant was not violated. Abbott, C. J., said: ‘ I am clearly of opinion that the effect of the covenant is only to restrain the lessee from completely alienating the legal interest in the premises to the prejudice of the landlord, without his consent in writing.’ In Goodbehere v. Bevan there was a similar covenant, and the lessee deposited his 'lease as a security for money borrowed, and became bankrupt, and the lease was sold under the direction of the chancellor to pay that debt, and it was held that the lease was not forfeited. It is, therefore, clear that this lease was not forfeited by the giving of the mortgage, which did not transfer the title to the premises or the lease. Neither was it forfeited by the sale under the decree. This was a judicial sale in a hostile proceeding, a sale in invitum, and such sales are held not to violate this covenant. An assignment, either by the lessee or his executor, which is not voluntary, but caused by operation of law, is not a breach of the covenant not to assign. Where a lessee who had so covenanted gave a warrant of attorney to confess a judgment, on which the lease was taken in execution and sold, it was considered no breach of the covenant, all the proceedings being in good faith. Mitchinson v. Carter, 8 Term R. 57. See, also, Jackson v. Corliss, 7 Johns. 531; Jackson v. Silvernail, 15 Johns. 278; Smith v. Putnam, 3 Pick. 221. Such covenants are restraints which courts do not faVor. They are construed with the utmost jealousy, and very easy modes have always been countenanced for defeating them. Church v. Brown, 15 Ves. 265; Crusoe v. Bugby, 2 W. Bl. 766; 1 Taylor, Landl. & T. (2d Ed.) §§ 402, 403; 2 Platt, Leases, 250. This covenant, therefore, furnishes no ground for the relief of the purchasers.”
The same question was involved in Croft v. Lumley, 6 H. L. Cas. 672. In that case 10 different opinions were written, all reaching the same result. We quote from Baron Watson:
“In answer to the second question, I am of opinion that the special case does not disclose any breach of the covenant not to charge or incumber the theater, or any part thereof. The covenant in question is: [His lordship read it. ] In order to support this breach, the case states that Lumley granted several warrants of attorney to several persons for debts due and owing from him, and more especially one to Hughes, in the defeasance to which it was expressed to be a collateral security for a debt, and with a provision that the expense of registering the judgment should be borne by Lumley.
“The nature and effect of a warrant of attorney are well known. Warrants of attorney are generally given where the party, having no defense to an action for debt, authorizes, an attorney to confess judgment in order to save expense. The warrant of attorney is no charge on the land. The judgment signed in pursuance of the warrant of attorney may affect a leasehold interest like this in two ways: First, by means of an execution, by which the lease might be taken and sold under a writ of fieri facias; and, secondly, by registering the judgment in the proper office, and, when registered, the judgment would become an equitable charge under Stat. 1 & 2 Viet, chap. 110, § 13; and by registering a memorial thereof at the Middlesex registry the judgment would obtain priority over any charges or judgments subsequently registered at that registry.
“I think that this covenant applies only to charges and incumbrances directly or immediately made by the lessee, as the covenant is not that the lessee shall not do any act whereby the lease should be sold or incumbered. It by no means follows that the person for whose benefit the warrant of attorney is given may ever enter up judgment thereon, or, if judgment be entered up, that he may register the same so as to charge the lease. It could not be argued that contracting a debt which the defendant was unable to pay, although that might produce a judgment, and a charge on the lease, could be a charging or incumbering within the meaning of the covenant. Such breach is to be without the will or consent of the lessor; and it could hardly be said that the consent to enter up judgment or register is a consent contemplated by the covenant. ' I think, therefore, the case as to this breach falls within the principle of Mitchinson v. Carter, and that-no breach of that covenant has been occasioned by the facts stated in the special case.”
See, also, 18 Am. & Eng. Enc. Law (2d Ed.), p. 661.
There are authorities the other way, but we think the weight of authority is as stated in Riggs v. Pursell. Having reached this conclusion, it is not necessary to discuss the question of waiver. This brings us to the next question: Which of these mortgages has priority ? It is claimed by defendants the question is determined by the rule applicable to chattel mortgages. It is said the leasehold interest is a chattel real (section 8787, 3 Comp. Laws), and, when sold on execution, must be sold as personal estate (Buhl v. Kenyon, 11 Mich. 249 [83 Am. Dec. 738]), and can only be seized on execution as a chattel interest (Grover v. Fox, 36 Mich. 459); that, as the assignment was not filed with the city clerk, it is void as to defendants, — citing section 9523, 3 Comp. Laws. On the other hand, it is claimed that, as this lease ran for more than three years, it created an interest in real estate, and brings it under the recording laws applicable to real estate.
The case of Buhl v. Kenyon was decided in 1863. The case of Grover v. Fox was decided in 1877. In 1879 an act was passed prescribing the manner of selling leasehold interests in lands on execution. 3 Comp. Laws, §§ 9226-9231. It provides that the manner of levy and notice of sale shall be the same as in case of levy on real estate. It also provides, if sale is made, if the unexpired term of the lease exceeds three years, the same kind of a conveyance shall be executed as in case of a sale of real estate, and also gives a year within which to redeem. Section 9511, 3 Comp. Laws, reads:
“ Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized by writing.”
Section 8994, chap. 241, 3 Comp. Laws, reads:
“The term ‘conveyance,’ as used in this chapter, shall be construed to embrace every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged, or assigned, or by which the title to any real estate may be affected in law or equity, except wills, leases for a term not exceediug three years, and executory contracts for the sale or purchase of lands.”
Section 8988 of the same chapter reads as follows:
“Every conveyance of real estate within this State, hereafter made, which shall not be recorded as provided in this chapter, shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.”
Taking all these provisions of law and construing them together, we think it clear that this lease, which had eight or ten years to run, was such a conveyance of an interest in lands as to make the real-estate recording laws applicable to it.
As before stated, neither of the assignments has ever been recorded, unless the filing of the lis pendens at the time of. the commencement of this suit may be regarded as a recording of the assignment. This, then, being the situation, the general rule that, as between two unrecorded conveyances, the one first made has priority, applies. It is stated in 1 Jones, Mortg. § 60?, as follows: “As between several unrecorded mortgages or other conveyances, that of prior execution takes precedence.” In 20 Am. & Eng. Enc. Law (1st Ed.), p. 592, it is said:
“ With Conveyance First Recorded. Recordation is required for the protection of subsequent purchasers only. To require a subsequent conveyance of title to be recorded in order that a prior purchaser of the same property may be able to obtain information of its existence would not be in furtherance of the general design of these statutes, which was to protect purchasers from being undone by prior secret conveyances, by making the means of obtaining information thereof available to that end. And so it is not necessary to his full protection, in the absence of statutory provisions so requiring, that the subsequent purchaser record the instrument under which he claims before the recordation of the conveyance of the prior purchaser. But, although such requirement may not be in full accord with the general design of the recording provisions, from a desire to secure a prompt record of conveyances, and to afford a means for the ready determination of certain questions of priority which would otherwise arise, the protection of the recording acts is limited in most of the States to a purchaser whose deed or conveyance is first duly recorded. This requirement must be complied with in order to support the claim of the subsequent purchaser to the protection afforded by the recording acts,” — citing many cases.
■ The decree of the court below is affirmed, with costs.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Montgomery, J.
This is an appeal from an accounting between partners. The complainant and defendant are brothers, and succeeded to the business established by John McGregor, Sr. Both parties appeal from the decree of the court below, and neither contends for a decree in the terms granted by the circuit judge.
Substantially the only controversy between the parties relates to the question of the salary received by complainant while he was acting, for several years, as boiler inspector of the city of Detroit. It is the claim of defendant that both himself and complainant had been devoting their time exclusively to the business of the partnership; that complainant was offered the appointment of boiler inspector; and that, before accepting the appointment, the matter was talked over between the two partners, in the presence of their father, and the conclusion reached that it would be well for complainant to accept the appointment, as the partnership business was somewhat dull, and the firm would have a salary coming in from this office; that, upon this understanding, complainant accepted the office, and held it for several years; that defendant continued to devote his entire time to the business; that complainant from time to time paid in some of the money to the business; that defendant opened an account with the boiler inspector’s office on the books, which was credited in 1894, 1895, 1896, and 1897 an aggregate of $1,983. Complainant disputes this claim of defendant, and alleges that there was no understanding or agreement that the salary of the office of boiler inspector was to be deemed a part of the assets of the firm, but avers that the sums paid in by him were in the nature of loans to the company, and should be returned.
The case is not free from doubt, but we think the preponderance of testimony supports the contention of defendant. Previous to the appointment of complainant as boiler inspector, both parties were drawing $15 per week from the business for living expenses. It is a significant fact that John continued to draw that amount regularly for nearly four years after he became boiler inspector, although the testimony is very clear that he gave little or no attention to the business.
The complainant further contends that the contract was void as against public policy, as it amounts to an assign- ' ment of an unearned salary as a public officer. But it is, rather, an agreement as to the manner, in which the salary shall be disposed of when earned and paid. See this distinction taken in Thurston v. Fairman, 9 Hun, 584; Greenh. Pub. Pol. p. 355.
It is conceded in complainant’s brief that if, on an accounting, John McGregor should be charged with the amount of the salary received, the defendant is entitled to the whole sum in the hands of the court, and complainant would also be bound to pay him $1,252.89 in cash, and that complainant’s interest in certain Windsor property should be subjected to a lien for this amount. As we adopt the view that the evidence preponderates in favor of defendant’s contention, the decree below will be modified and put in this form. The defendant will recover the costs of this court.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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4
] |
Grant, J.
The purpose of this suit is the reformation of a deed executed by complainant Scheurmann to the de .fendant John A. Styninger, dated December 8, 1899. The land conveyed was a part of lot 3 in block 50 of the plat of the village of Lower Saginaw (now Bay City), described by metes and bounds, and extending 136 feet east and west, and 40 feet and 6 inches north and south. Upon the western end of the lot was a warehouse occupied at the time by one Maxwell, the tenant of Mrs. Scheurmann. Subsequently Mrs. Scheurmann deeded the land and the warehouse thereon to complainant the Jennison Hardware Company. The claim of the complainants is that the agreement was to sell to defendant Styninger that portion of lot 3 extending to the east end of the warehouse, and that the surveyor made a mistake in his measurements. By the description in the deed, the land conveyed extends 7 feet into the warehouse, and the defendants claim that that was the agreement. The surveyor testified that he was employed by Mr. Styninger; that he was instructed to make his measurements to the east end of the warehouse; that he did so; that Mr. Styninger assisted him in making the survey; and that in some way he made a mistake of 7 feet. This is denied by Mr. Styninger. Mrs. Scheurmann testified that she agreed to sell the land only to the east end of the warehouse. Decree was entered for the complainants.
The question is one entirely of fact, with the testimony in sharp conflict. We think the learned circuit judge reached the correct conclusion. The result depended upon the credibility to be given to the witnesses. In such case the circuit judge is in a better position to determine the truth than are those who have not the opportunity to see them.
The decree is affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Long, J.
The bill in this cause was filed to foreclose a mortgage given by Benajah W. Warren, as executor of the estate of Drayton E. Trumbull, deceased, to the complainant, on the 38th day of July, 1898, for the sum of $300. It appears that Drayton E. Trumbull died testate June 3, 1885, leaving surviving him a widow, Sarah Ann Trumbull; a son, Albert D. Trumbull; two daughters, Sarah Ann Herrick and Clarissa M. Herrick; and a grandson, Albert D. Trumbull, Jr. By the terms of his will he first gave to his wife all his real and personal es- bate for and during her natural life. It was also his express will and desire that his property should be and remain in the hands of his executor, in trust for the purposes mentioned in the will. To his son, Albert D. Trumbull, he gave his wearing apparel and a note of $50. To his daughters he gave each $1. The fifth clause of the will provides:
“ I give, devise, and bequeath to my grandson, and the son of Albert D. Trumbull, all the rest and residue of my estate after the decease of my said wife, Sarah Ann Trumbull; and for the purpose of carrying out my wishes I hereby direct my executor hereinafter named to dispose of all my estate, both real and personal, in such manner as may seem best to him, either at public or private sale, and the proceeds of the same be used for the support of my said wife in comfortable circumstances as the estate will permit.”
Benajah W. Warren was named as executor.
The inventory of the estate showed $1,300 in realty, and $1,155.80 in personalty. September 13, 1898, the executor filed his final account with the judge of probate, which showed the following among other items: “Cash on mortgage in question, $300. ” It appears that the executor, without any order of the court, made, executed, and delivered to the complainant the mortgage in controversy. It is shown that most of the money raised from the mortgage was paid over to the widow.
The contentions of the defendants are:
1. That this mortgage is absolutely void, the executor having no power or authority under the will to mortgage real estate.
3. That Sarah Ann Trumbull and Albert D. Trumbull, Jr., the appealing defendants, were the only persons interested in the land; that the legacies have been paid, and they, as devisees, elected to take the land, rather than its proceeds, and forbade its sale under the power to sell contained in the will.
3. That the land was occupied by the widow as her homestead.
Under the power contained in the will to dispose of the estate, both real and personal, either at public or private sale, we think the executor had no power to mortgage, ít was held in Jeffrey v. Hursh, 49 Mich. 31 (12 N. W. 898), that a power of attorney to sell land does not authorize the attorney to mortgage it. In Hannah v. Carnahan, 65 Mich. 601 (32 N. W. 835), it appeared that a wife-conveyed certain real estate to her husband in trust for their minor children, declaring the conveyance to be for their use and benefit, and that of their heirs and assigns,, forever. The husband was authorized to sell and convey the property, in his discretion, and to reinvest the moneys received on such sale for the benefit of the children; and, in case he survived his wife, to control and govern the property the same as if he held it in fee. After the death of the wife the husband sold the land, and invested a portion of the proceeds in part payment for other property,, securing the balance of the purchase price by a mortgage on the land, which he afterwards incumbered by a second mortgage to the same mortgagee to secure a loan of $600, which sum he used and lost in his business. All of the deeds and mortgages were duly recorded. No charge of fraud or collusion on the part of the mortgagee was claimed. In a proceeding to foreclose both mortgages the court below allowed a foreclosure of the purchase-money mortgage, and decreed the second mortgage void. In affirming this decree, it was held by this court that the wife did not intend to give the husband unlimited control of the property, but he was to hold it expressly in trust, which trust appeared plainly on the face of his deed, and must be considered notice to the mortgagee; consequently that, the purchase price of the premises bought with a portion of the trust fund not exceeding such fund, the purchase-price mortgage was an investment warranted under the • trust; but, had such price been in excess of the fund, such investment would have plainly exceeded the power of the trustee.
In Penfold v. Warner, 96 Mich. 179 (55 N. W. 680, 35 Am. St. Rep. 591), it was held that a power of attorney to sell and convey land will be strictly construed, and cannot be enlarged by construction.
The leading case in this country upon this subject is Bloomer v. Waldron, 3 Hill, 364. There the testator devised particular estates for life to his wife and one Pelletreau, successively, for their support and maintenance, and for the support and maintenance of his wife’s three daughters, with remainder to the three daughters in fee. He then gave a power, first, to his wife, and afterwards to Pelletreau, to sell the land, and invest the money arising from the sale for the support of the parties aforesaid; the power to be exercised only upon the written consent of Aaron Burr. Under this power the widow, with the consent of Aaron Burr, executed a mortgage for the support of herself, her three daughters, and Pelletreau. The court held, after a full review of the authorities, that the mortgage was void as against the fee tenants.
The above case was followed by the supreme court of Missouri in the case of Price v. Courtney, 87 Mo. 387 (56 Am. Rep. 453). In that case the testatrix appointed her husband her executor, and devised and bequeathed all of her property to him in trust for their children, with full power to carry on her business, and to sell and convey, etc. The will also contained the following:
“ It is my desire that in and about the entire management and control of my said property that the said Courtney shall have full power to do with the same as I would were I living.”
It was held that the will gave the executor no power to mortgage the property.
These cases were expressly approved and followed in Hannah v. Carnahan, supra.
It is provided by the statute of this State (section 8840, 3 Comp. Laws) that:
“ A devise of lands to executors or other trustees to be sold or mortgaged, when such trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees, but the trust shall be valid as a power, and the lands shall descend to their heirs, or pass to the devisees of the testator, subject to the execution of the power.”
This statute was copied from New York. In Delafield v. White, 19 Abb. N. C. 104, it appeared that a testatrix devised all her lands to her executors, in trust for certain purposes therein named. By a subsequent clause she gave certain parcels to two nieces for life, with remainder over. Finally the will empowered the executors to sell the property whenever, in their judgment, they should deem it best, and invest the proceeds, and pay the income to the two nieces, and, upon the death of either, to pay her share of the principal as above directed. It was held that, under the above statute, the executors took a mere naked power to sell.
It appears in the present case that the land is not even devised to the executor. It is expressly devised to Sarah Ann Trumbull for life, with remainder to Albert D. Trumbull, Jr. Warren, the executor, had but a mere naked power in trust to sell. As was said in Bennett v. Chapin, 77 Mich. 538 (43 N. W. 896, 7 L. R. A. 377):
“It is well settled that, when a bare power of sale is given to the executors merely to sell the lands for the purpose of paying over the proceeds to devisees, whose right, under the will, to such proceeds, is an absolute and vested right, all such devisees may collectively, before the power of sale is exercised, elect to take the land, instead of the proceeds, and thus prevent a sale.”
Here it is shown that Sarah Ann Trumbull objected from time to time to the selling of the lands; but it appears the executor had advanced her $115, and, finding that she would not consent to a sale of the lands, placed the mortgage on them for the $200, and repaid himself the $115 which he had loaned her.
The court below awarded decree of foreclosure. This decree must be reversed, and a decree rendered in this court dismissing complainant’s bill, with costs of both courts.
The other Justices concurred. | [
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] |
Grant, J.
(after stating the facts). The following: facts are established by the testimony:
1. Plaintiff and her husband were familiar with the manner and the usual speed of running cars in that part •of the city.
2. A car passed every few minutes, and therefore they should have expected one.
3. Plaintiff and all her witnesses, including her husband, who was driving, supposed that" they were far enough away from the track to permit a car to pass.
4. Plaintiff’s husband turned suddenly towards or across the track just before the buggy was struck.
5. There was a good and safe roadway, 12 to 15 feet wide, between the track and the gutter.
6. Plaintiff and her husband took no steps to determine whether a car was coming. Either could have seen the •car and its headlight in a second by turning his or her head. They do not testify that they took the precaution to listen for the ringing of the bell.
The disputed facts relate to the speed of the car, the ringing of the bell or gong, and the position of the horse and buggy at the time the car struck the buggy.
Two witnesses on the part of the plaintiff alone testified to the speed of the car, — Mr. Robinson, who did not see the car until just as it was passing his buggy; and Mr. Curry, who stood upon the sidewalk. Robinson testified to a speed of 18 to 20 miles an hour; Curry to a speed of 20 miles an hour. Mr. Curry testified that he did not know anything about the speed of cars running in the, locality, but that they ran .very swiftly, he should think. He did not see the car between Green avenue and the place of collision, a distance of 150 feet. His attention was directed to something else. He was then asked as to his competency .to testify about the speed of the car that night, and was permitted to do so. Such testimony is of no value, and does not rise to the dignity of evidence, and should have been excluded. The horse was going at a “slow jog.” If the car was going at a speed of 18 to 20 miles an hour, it would manifestly be impossible for the horse to jump in front of the car and to the other side of the track without being struck, and all agree that the horse was not struck. The opinion of Mr. Robinson as to the speed is shown to be unreliable and incorrect by the undisputed facts and by his own testimony, for he says-the car was stopped at 40 to 50 feet from the place of the collision. It would be impossible to stop a car in that distance going at the rate of six miles an hour, according to the uncontradicted testimony of the motorneer, who had been a motorneer on this road for six years. It is common knowledge that it could not be stopped in that distance if it was running at a speed of 18 to 20 miles an hour. The motorneer was the only witness on the part of the defendants who testified to the speed, and he fixed it at about six miles per hour. The sole passenger testified that the-car did not go fast by the switch, which had just been passed, but gave no opinion as to the speed. The lawful rate of speed was 12 miles an hour. Whether this testimony was sufficient to justify the jury in finding that the car was running at an unlawful rate of speed I do not deem it necessary to determine, as I think the case must be disposed of upon another point.
The only disagreement among the witnesses in regard to the ringing of the bell is the distance of the car from the carriage when it was rung. Three of the witnesses for the plaintiff agree that the bell was rung at or before the collision. Mr. Robinson, on the part of the plaintiff, testified he was listening; that, “at the time he went by me, he struck the buggy, and the bell rang.” Mrs. Robinson testified: “ It did ring just as it struck the rig. It rang-three or four times.” Mr. Curry said, “There was no-bell rung until about the time the car struck the rig.” Plaintiff testified that “the bell did not ring before we-were struck.” Mr. Tunison testified, “ I heard no bell rung before we were struck. ” In view of the noise made-by the two horses and carriages over a hard and frosty road, it would not be surprising if these witnesses, only one of whom testified that he was listening, did not hear the bell, if it was rung. Three witnesses who were in position to know, and two of whom were entirely disinterested, swear positively that the bell was rung.
The important questions are, What duty did the defendants owe to the plaintiff, and what duty did she owe to herself and the defendants, while both were traveling upon the public highway, over which each had a right of passage ? Courts have almost universally held that street railways have no exclusive right of way, and that motormen must be vigilant in keeping a watch for pedestrians and teams crossing their tracks or driving in front of the cars. Electric cars have become a necessity, and they are traversing not only cities and villages, but country towns. They must, and are permitted to', travel faster than ordinary vehicles drawn by horses; otherwise they would be of little use. At street crossings, and other places, where the motorneers see people about to cross, or see them upon the track, or in a dangerous position, or partially on the track in front of them, they are bound to ring their bells or gongs as a warning; and, when they see any signs of danger, to keep their cars under control as much as possible. These cars cannot be stopped as speedily as carriages drawn by horses. Their speed is fixed by ordinance within cities and villages, and in this case the speed in the populous parts of the city is fixed at 8 miles per hour, and outside those limits 12 miles. The speed allowed where this accident, occurred was 12 miles per hour.
This court, speaking through Chief Justice Morse, in Rascher v. Railway Co., 90 Mich. 413 (51 N. W. 463, 30 Am. St. Rep. 447), said:
“A street car can neither turn to the right nor left. It runs with greater rapidity and with greater momentum than a wagon or omnibus; therefore greater caution must be taken in its running to avoid collision. It ought to be lighted in the night-time, so that its approach can be seen by other travelers; and between twilight and dark, if not lighted, it ought to be run so slowly as to avoid collision, or else give by some signal warning of its approach. Street cars have precedence, necessarily, in the portion of the way designated for their use. This superior right must be exercised, however, with proper caution and due regard for the rights of others; and the fact that it has a. prescribed route does not alter tbe duty of tbe defendant to the public, who have a right to travel upon its track until met or overtaken by its cars.”
'. A corresponding duty is also imposed upon the traveler by the fact of these heavy cars being run over the public highways for the convenience and carriage of the public. He is chargeable with notice that they travel faster than ordinary vehicles, that the momentum is greater, and that while running at a lawful rate of speed they cannot be instantaneously stopped. Therefore, when he turns his carriage to cross the street, it is his duty to look and see whether a car is approaching so near as to make it dangerous for him to make the attempt to cross. The same rule applies when one suddenly turns towards the track, and brings his carriage in line of an approaching car. Applying this principle, what was the duty imposed by the law upon the plaintiff and her husband ? They believed that they were at a safe distance from the track. ■ So did those who saw them, until a sudden turn was made towards the track, which brought the carriage within the danger line. They were in as good, and probably better, position to know they were at a safe distance from the track than was the motorneer. A man has not the right, knowing that the cars are apt to approach any moment, to put himself at what he believes to be a safe distance, and then hold the defendant company liable for damages because its motorman made a like error in judgment. If the plaintiff and her husband were'riding upon the track, or were crossing it, or were in obvious danger while riding too close, it would have been the duty of the motorneer to not only ring his bell, but to apply his brake and reverse his motive power. The motorman is not called upon to act uhtil he sees, or should see, that a person is in danger, or liable to run into danger. Daly v. Railway Co., 105 Mich. 193 (63 N. W. 73); Lyons v. Railway Co., 115 Mich. 114 (73 N. W. 139).
While the travelers by carriage have the right to use the entire highway from curb to curb, yet they have not the right to turn quickly and blindly from a safe distance to a dangerous nearness to the track, or to attempt to cross without looking for an approaching car. Such negligence has been termed by this court gross negligence. Wood v. Railway Co., 52 Mich. 402 (18 N. W. 124, 50 Am. Rep. 259); 2 Thomp. Neg. (2d Ed.) § 1389; Graham v. Traction Co., 64 N. J. Law, 10 (44 Atl. 964); Christensen v. Trunk Line, 6 Wash. 75 (32 Pac. 1018); Davidson v. Tramway Co., 4 Colo. App. 283 (35 Pac. 920); Sonnenfeld Millinery Co. v. Railway Co., 59 Mo. App. 668.
In Christensen v. Trunk Line the car and the plaintiff were traveling in the same direction, and plaintiff suddenly turned to cross the track in front of the car. The court held that the motor man “had a right to presume that, the respondent would remain off the track, and not knowingly place himself or his property in imminent danger; and he was not bound to regulate his speed at such a rate as would certainly avoid injury to any one who might attempt to cross the road in an unreasonable and improper manner.”
In Davidson v. Tramway Co. it is said:
“It is very difficult to imagine circumstances which would excuse the injured party for his neglect to use his ■eyes as well as his ears to guard against an accident occurring while he is crossing the track.”
In Sonnenfeld Millinery Co. v. Railway Co. it was held not to be the duty of a motor man to stop his car on seeing a person in the street, near the railway tracks, if such person when seen by him is not in a position of peril.
In Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007), plaintiff was driving a milk wagon in the same ■direction that the car was going, — the car coming from behind. He testified that he listened for the ringing of the bell, but could not hear anything. Without looking, he then turned diagonally across the track, and the rear wheel of his wagon was struck by the car. At page 53 my Brother Montgomery, who wrote the majority opinion, discussed the general rules relating to travelers upon the highway and street cars, and said:
“ Unless he had the right to assume that there was no-car in the rear with which he was likely to come in contact, or unless he had the right to rely upon his failure to-hear the sound of the gong, it was clearly negligent for him to turn across the track suddenly, and without assuring himself by proper investigation that no car was coming. Booth, St. Ry. Law, § 315. In fact, until the car-approached the crossing, it is very doubtful whether it was-the duty of the motorman to sound any gong. So long as-the plaintiff was traveling in the same direction, and at such a gait as would not result in collision, it cannot be-said that the motorman had any occasion to sound the gong, as he would have no reason to apprehend that the plaintiff would come to a stop, or make a short turn across-the track.”
In Blakeslee v. Railway Co., 105 Mich. 462 (63 N. W. 401), it was held to be negligence to go upon a street-car track without taking precautions to ascertain whether or-not it is safe to do so, and that plaintiff could not avoid the legal effect of such negligence by placing himself in such position where he could not easily see an approaching car. In that case my Brother Hooker cited with approval Fritz v. Railway Co., and said:
“It was there held that one riding in a covered carriage, and thereby prevented from looking behind, could, not recover against the street-car company when he turned suddenly upon the track in front of a car and was injured.”'
So, in this case, plaintiff and her husband were riding-at a safe distance from the track, and suddenly turned towards it, and brought themselves within the danger line..
In Wood v. Railway Co., supra, plaintiff was driving a one-horse vehicle along the street on one side of the-tracks, when, encountering obstructions, he turned towards-the tracks so that his right-hand wheels were over the rails. He did not look behind him to see if a car was coming, until he felt something strike the rear wheel. It was-held, as a matter of law, that he was guilty of contributory negligence.
In Lyons v. Railway Co., 115 Mich. 114 (73 N. W. 139), we held that a motorneer has the right to assume- that a person standing on the track will step out of the way, and that the motorneer is not bound to check thg speed of the car until he has good reason to believe that such person is paying no heed to the customary signals. Why should the motorneer be required to assume that one traveling at a safe distance from the track will suddenly walk or drive upon it ?
Counsel for plaintiff cites and relies upon two cases: Manor v. Railway Co., 118 Mich. 1 (76 N. W. 139), and Rouse v. Railway, 128 Mich. 149 (87 N. W. 68). In the former case plaintiff had crossed the track from the south side to the north side, and before doing so looked both ways, and no car was visible. The roadway for about 9 feet from the track on the north side was macadamized with broken stone, worn smooth only in two parallel tracks where the wheels of vehicles ran. Plaintiff drove so that the wheels would follow in the beaten portions of the road. Cars passed at intervals of a half hour each. She had driven about 300 feet, when she heard a bell, and attempted to guide her horse away from the track, but was struck, before she had time to do so. It was there contended that plaintiff had turned in towards the track. This, however, was a controverted question of fact, and, of course, properly submitted to the jury. The court plainly instructed the jury that, if this were so, she could not recover. That case would rule this if there were any dispute as to plaintiff’s husband suddenly turning his horse towards or across the track, and if the roadbed in this case had been like the one in that. In the latter case there, was a deep ditch upon the side of the highway, and the roadway at the side of the track was so narrow that teams in the daytime were driven into the ditch when cars were passing. The roadway was between 9 and 10 feet wide, and the footboard extended over the roadway outside the. rail 2 feet. The deceased and his companion had never driven over the road before. It was in the night, and dark. We held, speaking through my Brother Long, that the question of contributory negli gence was for the jury. Clearly, in my judgment, those cases do not control this one, where there was a roadway 12 to 15 feet wide, perfectly level, and the plaintiff and her husband knew thatcars were passing every few minutes, and that one was liable to overtake them at any moment, and yet took no steps whatever to protect themselves from injury, which they might have done without any inconvenience.
To sustain this verdict establishes the rule that jurors may find that travelers are free from negligence when they ride in a level street alongside street-car tracks at what they consider, and what in fact is, a safe distance therefrom, and suddenly turn towards the track and into the danger line, without taking any precaution whatever to determine whether a car is approaching, and in reliance upon their ability to hear the gong sounded or bell rung amid the noise made by two horses and two carriages, each with four wheels, riding over frozen ground. If such were the rule, it would be unsafe- for street cars to run at the speed now allowed by law, and necessary for the convenience of the public. Such a rule is not, in my judgment, a just and reasonable one. A traveler has the right to drive upon the street-car tracks, and has an' undoubted right to rely upon a warning from the approaching car for him to give it the right of way; in which case he is entitled to sufficient time to place himself outside harm’s reach. But when, in his own judgment, as well as that of the motorneer, he is traveling outside harm’s reach, I cannot recognize a rule which calls upon the motorneer to assume that he will suddenly turn within harm’s reach. If it be granted that there was a conflict of evidence as to the speed and the ringing of the bell, and that the defendants were negligent in these respects, it is apparent to me that plaintiff was equally negligent.
The learned circuit judge very clearly defined the rights and duties of the parties in the following language:
“Now, the plaintiff’s husband, in driving along there, knew that the street-car track was there, and that cars were being operated upon it every few minutes, and he should use care in driving. He should be careful not to get on the track, or, if he did go on or near enough to the track to endanger them, before doing so it was his duty to look out; to look around to see that no car was approaching ; to do what a reasonable and prudent person should to see that it was safe for them, to go on the street-railway track, or to go at any time so near to it as to endanger their conveyance or themselves. And the street railway, or the car motorman in operating his car, was bound to keep a lookout for any obstructions that might exist upon the track, and to be careful and exercise due care lest he should run against or upon any obstructions there might .be upon the car track, so as to avoid running against anybody in case they were upon the track-. Any person driving along the highway has no right, as I have stated, to drive upon the track or to attempt to cross the track suddenly, without looking out to see whether or not the car was approaching. They have no right to attempt to cross a street-railway track, or put themselves in a place of danger, without looking or listening or taking some means to be certain that a car is not approaching. It is recognized nowadays that electric cars as well as steam cars are dangerous. They run with rapidity. They cannot be instantly controlled. They must be operated with care, and the people who use the streets and highways where they are in operation must equally understand that they must watch out and be careful, and not expose themselves to unnecessary danger.
_ “ Now, the plaintiff in this case and her husband had a right to drive on the street-car track if they did it carefully. And, if it became necessary in any way for their purposes, they had a right to drive on the track; and if, while on the track, a car comes from behind, and the motorman sees them driving on the track or in close proximity to it, and he does not take care nor attempt to get his car under control so as to prevent hitting them, and he hits them, then he is guilty of negligence, and the company is liable, because they have rights on the track, and he must be careful. But that is a very different thing from what it is for a driver to suddenly turn on the street-car track when the motorman has reason to expect or anticipate no such thing, and, in fact, has a right to assume that the driver going along on the street with a clear road ahead will continue so to drive. The motorman has a right to fairly assume that they will do so.”
The vice of the instruction lies in the fact that there was no conflict of testimony. Plaintiff and her husband did the very things that the judge told the jury constituted negligence on their part. They used no care. They did not look or listen, or take any means to be certain that a car was not approaching. Under the plaintiff’s own theory, both she and her husband erred in judgment as to the distance they were from the track. If plaintiff and her husband had no reason to anticipate that they were in the danger line, why should they expect the motorman to have a judgment superior to theirs ? Where a traveler is riding beside the track, and there is a good roadbed 12 to 15 feet wide, it is his duty1 to drive a sufficient distance from the track to avoid collision with a car. It is a reasonable rule that he do so, since the car cannot turn aside, and he can. By so doing he-.does not inconvenience himself, and avoids delays and dangers to other travelers upon the cars.
I think the judgment should be reversed, and new trial ordered.
Montgomery, J.
I cannot agree with the opinion of my Brother Grant. The case is brought here to determine questions of law, and an examination of this record convinces me that there were distinct questions of fact as to the manner of this accident, which were submitted to the jury, and of which there was testimony, but which the opinion of Mr. Justice Grant assumes not to exist. There was testimony tending to show that the plaintiff’s husband was following the beaten track. That this beaten path took him and his conveyance very near to the car track is true, but the evidence by no means conclusively shows that he suddenly turned towards or across the track. Under these circumstances, I do not adopt the view of the law which my Brother Grant takes. It is true that one traveling a public highway on which there is a street-car track is bound to use some caution. If he is turning to drive across the track, he is bound to look to see whether a car is liable to come in collision with him. He is undoubtedly bound to look ahead for the same purpose. But I am not prepared to hold that he is, as a matter of law, bound to be constantly looking backward when driving upon or in proximity to the track. He has a right to assume that some effort will be made by the motorneer to prevent a collision; that he is in a position to see in advance, and to note whether a collision is likely if he continues in the course. See Montgomery v. Railway Co., 103 Mich. 46 (61 N. W. 543, 29 L. R. A. 287); La Pontney v. Cartage Co., 116 Mich. 514 (74 N. W. 712); Goldrick v. Railroad Co., 20 R. I. 128 (37 Atl. 635); Rouse v. Railway, 128 Mich. 149 (87 N. W. 68).
In the present case there was evidence from which it might be found that for a considerable distance, at least, the vehicle in which the plaintiff was traveling was pursuing a course near the railway track, — so near as to make it reasonably certain that a collision would occur if the car was not brought under control. Under such circumstances it cannot be said that the motorneer had the right to pursue his course, and run this vehicle down. The case of Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007), presented a very different state of facts. In that case such a case as this was expressly saved. It was said in the opinion:
“ It is not a case in which the plaintiff had been driving up the track, and was run down by the motorman, but an attempt to cross the track, unexpected and sudden.”
This case and others cited by my Brother Grant are distinguished by Mr. Justice Long in Rouse v. Railway, supra. I think the case was a proper one for the jury.
The judgment is affirmed.
Hooker, O. J., and Moore, J., concurred with Montgomery, J. Long, J., did not sit. | [
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Hooker, C. J.
These are companion cases, and were heard together. The respective plaintiffs worked for the principal defendant, Doyle, in cutting and skidding, in Montmorency county, logs belonging to Robert Rea, Doyle being under contract obligations with Rea to cut and skid the same. The last day’s work was done on March 26, 1901. On the 11th day of April, 1901, each plaintiff made and verified a statement of lien upon the hemlock logs in question, and it is claimed on their behalf that they were filed with the clerk of Montmorency county upon the same day. On April 26, 1901, each plaintiff made and filed another statement of lien for the same claim, thereby seeking to charge other kinds of timber besides the hemlock. It is conceded that these were filed one day too late, and they need not be further considered. The lien claimed by Harris was for $78, and that of Oulley $154. The latter included an item of $48 for the services of his wife. Attachments were issued by a justice of the peace of Hillman township, Montmorency county, and plaintiffs recovered judgment for the full amount of their respective claims, with liens for $70 and $144, respectively. On removal to the circuit court by certiorari, the judgments were reversed, so far as they declared liens on timber other than hemlock, and as to the item of $48 for the services of Gulley’s wife, and in other respects they were affirmed, and the causes have been brought to this court on writ of error by the defendant Rea.
Rea lived in Hillman township, Montmorency county, while Doyle and the plaintiffs resided in Alpena. On the return day of the writ the parties appeared by counsel, with the exception of Doyle, who appeared in person. The cause was tried after an adjournment by consent for nine days. A motion for security for costs upon the ground that plaintiffs were nonresidents of Montmorency county was overruled. This motion was made at the close of plaintiffs’ testimony.
Three questions are raised by the assignments of error:
1. Did the justice have jurisdiction to issue the writ, in view of the fact that neither plaintiffs nor defendant was a resident of Montmorency county?
2. If the justice had jurisdiction, was it lost when he denied a motion for security for costs, after the close of the evidence ?
3. Was there adequate proof that the liens were duly filed, and, if not, can the judgment be sustained?
Both plaintiffs and defendant resided outside of the county of Montmorency, where the logs were situate. Had either lived within said county, the action must have been commenced within the township where such party resided, or an adjoining township, in conformity to the general statute, as we held in the case of Burlingame v. Marble, 95 Mich. 5 (54 N. W. 695). The log-lien statute (3 Comp. Laws, § 10760) expressly provides that'the action shall be brought in the county where the logs are situate. The defendant’s contention involves the claim that, where the parties are both nonresidents, no justice of the peace can have jurisdiction, and he argues that nothing would preclude the bringing of an action in the circuit court in such case. There would seem to be as much force in the claim that no action could be brought in the circuit court, for ordinarily such court has no jurisdiction where neither party resides or is found within the county. In both cases the presence of property confers jurisdiction under the statute. The circuit court may have had jurisdiction of the larger of these liens, but not of the smaller, unless the owner of the larger was willing to unite the claims (see section 10762), and, if we were to sustain defendant’s contention, it would leave a single lienholder remediless, where both parties were nonresidents of the county where the logs were situate. It was competent for the plaintiffs to commence these proceedings before a justice of the peace of the township in which the logs lay, both parties being nonresidents.
The statute (section 713) provides that, in all justices’ cases, “ plaintiffs who are not residents of the county in which the suit is brought shall give security for costs before process shall issue.” At the close of the plaintiff’s testimony, counsel for defendant Rea, who had been served with process as one claiming to be owner of the property, moved the court for an order requiring plaintiff to file security for costs, upon the ground that plaintiff’s testimony showed him to be a nonresident of Montmorency county, and for judgment against the plaintiff on the ground that the justice had no jurisdiction. The statute is mandatory, and it is ordinarily the duty of the justice to require security for costs from nonresidents upon motion seasonably made; and such motion is seasonable if made at the first opportunity after the defendant is apprised of the fact that the plaintiff is a nonresident. See Parks v. Goodwin, 1 Doug. 56; Brown v. Mining Co., 105 Mich. 656 (63 N. W. 1000). But there can be no doubt of the power of a defendant to waive his right to security for costs. In this case the motion was not made until all of plaintiff’s testimony was in. It does not appear to have been claimed that defendant’s omission to move earlier was due to the belief that the plaintiff or Doyle resided in said county, nor is there any showing that he had been misinformed on the subject and misled. One who resorts to certiorari to review the judgment of a justice of the peace is required to show a clear ground for reversal, for the consequences are serious. A reversal in this case would annul the proceedings, if it did not prevent any remedy upon the lien. We must presume that the justice found that defendant’s motion was unseasonable, and we will not review his action.
The remaining question relates to the proof. It is claimed that there was no proof that the lien was filed. A certified copy of the lien was introduced, but it failed to show the date of filing with the clerk. The two copies of statements are all that were shown to have been of record, and they are supplemented by testimony that statements of lien were filed within the statutory period. If the statements were not indorsed by the clerk, oral proof of the fact of delivery to him for filing was competent. Huntoon v. O'Brien, 79 Mich. 231 (44 N. W. 601).
These are the only questions which require discussion, as they are the only ones clearly raised.
The judgments of the circuit court are affirmed.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Per Curiam.
Defendant was tried before a jury and convicted of the crime of first-degree murder.
On appeal defendant alleges that evidence found in a back bedroom was obtained in an unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution. Additionally, defendant contends that there was insufficient evidence of premeditation and deliberation to warrant a conviction of first-degree murder. Some of the seized evidence was given to the police by the defendant’s sister with whom he lived, and others were obtained by the police from premises not under the exclusive control of the defendant. Compare Burdeau v. McDowell (1921), 256 US 465 (41 S Ct 574, 65 L Ed 1048); Berger v. New York (1967), 388 US 41 (87 S Ct 1873, 18 L Ed 2d 1040); People v. Joshua (1971), 32 Mich App 581.
A review of the record herein reveals ample evidence from which wilfulness, deliberation, and premeditation may be logically inferred. See People v. Bauman (1952), 332 Mich 198; People v. Case (1967), 7 Mich App 217.
Affirmed.
MCLA § 750.316 (Stat Ann 1971 Cum Supp § 28.548). | [
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] |
J. H. Gillis, J.
Defendant was convicted by a jury of assault with intent to commit murder. MCLA 750.83; MSA 28.278. He now brings this appeal as of right.
At trial, defendant did not deny that he perpetrated the act giving rise to the crime with which he was charged, but, instead, claimed that he was legally insane at the time of the shooting, and, therefore, should be found not guilty by reason of insanity.
Defendant raises many issues on appeal, but the controlling one is posed as follows: Did the prosecutor’s statements, made during closing argument, regarding the effect of a verdict of not guilty by reason of insanity, require a reversal in this case?
On cross-examination by the prosecutor of one of defendant’s expert witnesses, the following colloquy transpired:
“Q. Well you would agree would you not, that possibly, let’s say three or four months from now, some psychiatrist, other than yourself, who has passed the appropriate board examination and appropriately certified, might find the defendant sane?
“A. I agree.
“Mr. Barnett [defense attorney]: Your Honor, I object to that question, the sanity or the insanity of the defendant in three or four months is not an issue.
“The Court: The jury will be excused.
(Jury left at 4:32.)
“The Court: Yes, I think that the danger, the obvious danger, as I am sure both counsel are aware, is that the jury might get the impression, that if they were to find the defendant not guilty by reason of insanity, that he might then be found later to be sane and released; and that, of course, is the law, we don’t want their judgment as to whether he was insane at the time of the offense tainted in any way by what the future might bring and should that come out I think I would declare a mistrial on motion, so I would caution, although I am going to sustain the objection, I am going to ask counsel to avoid pursuing that line any further. The jury may be brought back in.
(Jury returned to the courtroom.)
“The Court: The record may so indicate. The objection is sustained and the jury is instructed to disregard the last question.”
Subsequently, counsel for defendant, in his closing argument to the jury, made the following statement:
“It is my opinion that really he has done nothing to show that Mr. Lewis was sane, everything that we have seen has been the act of one who is ill as he indicated in the event that you find Mr. Lewis not guilty by reason of insanity, he is going to Ionia State Hospital for the criminally insane at Ionia. I am sure I don’t really have to describe the place, but for an indefinite period and as Mr. Shea says, is it three years, is it four years, is it one year, is it 20 years, is it 30 years. These psychiatrists have no doubt that Mr. Lewis is suffering from a mental illness so what we are asking here is not that you turn him loose, but that you put him in a position where something can he done so that a thing like this will never happen again. We can’t guarantee that he will not be out in two, or three years, we can’t guarantee to him that he won’t be there the rest of his life, but we are asking that the right thing be done.
“Now Mr. Shea has suggested that this is all a long involved plot on the part of Mr. Lewis; that he was going to fool everybody * * * . Do you really think that any of you would be smart enough to do that. I don’t think I could do it, and ultimately why would he have done it. If he was that smart and can do it, does he do it just so he can go to Ionia for the rest of his life. It seems to me that the whole proposition is absolutely ridiculous. I can’t buy it myself and I don’t think anybody can.”
Finally, the prosecuting attorney, on rebuttal, made the following remarks to the jury:
“Now how long will he stay if he is found not guilty by insanity. How long will he stay in Ionia? We don’t even know; today if a psychiatrist would look at him today, this Friday, whether they might not say he is sane. Keep in mind this is strictly an opinion, just, a judgment; I would say that they would say he is sane, or next week he goes to the institution thereafter, because see all he has to do is to show he is sane at this point he can tell the psychiatrist I fooled them, I did it, I knew I was doing it, just lay it right on the line, he has nothing to lose. What are they to say, by golly you did, we are going to keep you anyway, they can’t keep him, because if he is sane they have to release him and he is right back out in the street again. So we are caught in the same judgment problem-that we have in determining in the initial instance whether he was insane. He could just as easily be determined sane, or in the meantime if he has a kind of temporary insanity, if you will, then you believe that he was only insane just at that moment, he is sane now, then if he is sane now, he doesn’t have to stay in the hospital, he can go out and shoot somebody else, he can then have another phase of temporary insanity, if you will, uncontrollable impulse, irresistible impulse ; in other words, you give him a license to hill.” (Emphasis supplied.)
The issue of defendant’s disposition upon the return of a verdict has traditionally been a consideration for the court and not the jury. People v Cole, 382 Mich 695 (1969); People v Williams, 218 Mich 436 (1922); Lyles v United States, 103 US App DC 22; 254 F2d 725 (1957). This well-reasoned maxim was cut back somewhat by the Cole decision when it held that upon request of either defendant or the jury, an instruction must be given regarding the result of a verdict of not guilty by reason of insanity. However, the Court did not go so far as to allow either the prosecutor or the defense to comment upon a defendant’s disposition in such a case. In continuing to proscribe such conduct, the Cole Court no doubt sought to thwart the conduct which occurred in the case presently before us.
Numerous cases have recognized the highly prejudicial effect of a prosecuting attorney arguing to a jury that if defendant is found insane and committed to a hospital, he would be released in a short time only to commit further antisocial acts. State v Nickens, 403 SW2d 582 (Mo, 1966); Wise v State, 251 Ala 660; 38 So 2d 553 (1948); Williams v State, 68 So 2d 583 (Fla, 1953); State v Johnson, 267 SW 2d 642 (Mo, 1954); Farris v Commonwealth, 209 Va 305; 163 SE2d 575 (1968); Smith v State, 220 So 2d 313 (Miss, 1969). The issue before the jury is the defendant’s sanity or insanity at the time of the commission of the crime and not the possibility or even probability that an accused will in the future commit some other criminal act. Such argument only “tends to destroy by fear the recognized defense of not guilty by reason of insanity”, Farris, supra, and violates a defendant’s right to be tried only on the offense charged.
We must not overlook the fact that in the case presently before us both the prosecuting attorney and defense counsel violated the principle of not commenting regarding the effect of a verdict of not guilty by reason of insanity. In effect it could be said that defense counsel provoked and invited the prosecution to return to the subject which it previously had been warned by the court not to pursue. Further jeopardizing the claim for reversal is the fact that no objection was made to the prosecutor’s prejudicial statements in closing argument. However, we do feel this situation is distinguishable from the one in People v Singer, 174 Mich 361 (1913). In that case the Court held that the prosecutor had not committed error in commenting to the jury regarding the possible sentence if there was a conviction where what was said was in reply to defense attorney’s argument respecting the same. The Court, being influenced in its decision by the nature of the prosecutor’s reply, stated:
“We find in the statement which was made no evidence of solicitation or invitation to the jury, but an accurate statement of the law and of the duty of the court; the whole statement being in support of the general proposition that the jury should not be concerned with the matter of punishment at all.” (Emphasis supplied.)
By no stretch of the imagination could it be argued that in the present case the prosecution in his remarks in closing argument did not try to prejudice the defendant. In fact, we find such statements as “he can go out and shoot somebody else” and “you give him a license to kill” so highly inflammatory that a reversal is warranted though no objection was made. As indicated in People v Humphreys, 24 Mich App 411 (1970), the failure of defense counsel to object to a prosecutor’s improper line of argument is a bar to appellate review only where the goal of that objection — a cautionary instruction to the jury — in all likelihood would have eliminated the prejudice arising from the prosecutor’s remark; however, where the prejudice created cannot be eliminated despite any cautionary instruction that could have been given, and, thus, an objection would have been pointless, a failure to object will not preclude appellate review.
Reversed and remanded.
All concurred.
Pursuant to People v Cole, 382 Mich 695 (1969), the judge in the case presently before us gave the following instruction in his charge to the jury: “A verdict of not guilty by reason of insanity means that the defendant will be confined in a state hospital for the criminally insane for the remainder of his natural life, or until such time as it is determined that he has recovered and would not be harmful to other persons or their property.” | [
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Per Curiam.
Defendant raises two issues for appellate review: alleged improper cross-examination of the defendant by the prosecutor, and alleged improper summation by the prosecutor. Neither of these alleged errors was preserved by objection at trial. We have, nevertheless, considered them; and have concluded that the defendant’s conviction should be affirmed.
Affirmed. | [
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J. H. Gillis, P. J.
Defendant was convicted of carrying a concealed weapon in a vehicle, and appeals. The people have filed a motion to affirm.
Upon examination of the briefs and record, it is manifest that the question sought to be reviewed is so unsubstantial as to need no argument or formal submission.
Motion to affirm granted.
Judge Targonski would deny the motion to affirm. | [
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Moore, J.
In August, 1899, Mrs. Gates filed a petition in this proceeding, in which she claimed her husband owed her upwards of $82,000. . On the hearing the claim was amended, and, omitting the claim for interest, was for a little more than $50,000. The circuit judge allowed the claim at $8,256.77, the items allowed being rent of one-quarter interest of sawmill for six years, with interest, and rents collected by Mr. Gates, within six years from the filing of the petition, from properties the title to which stood in Mrs. Gates. Both parties appeal.
In August, 1896, Mr. Gates made a trust deed, under which deed the Union Trust Company was appointed receiver, and is administering the trust under the direction of the court. Among other things stated in the deed is the following:
“A schedule of the property and interests hereby conveyed, marked ‘Exhibit A,’ is attached hereto, the same being made as complete as may be; but it is the intention of the parties of the first part to convey all of the property and interest of the said S. G. M. Gates, whether included in said schedule or not. The list of the names of the creditors of the said S. G. M. Gates, and the amounts of their claims, is also hereto attached, marked ‘ B, ’ and made as complete as may be; but it is the intention of this instrument that all creditors shall be paid, whether included in said list or not.”
Mrs. Gates’ name appears in Schedule B as follows:
“ Louise M. Gates, preferred, $15,000.” She is not otherwise referred to in the schedule.
Mrs. Gates joined in the trust deed. The provision of the instrument for payment to her is as follows:
“As soon as it may be safely done, out of the profits of said business or the proceeds of said property to pay to said Louise M. Gates, wife of S. G. M. Gates, in consideration of the release and transfer hereby made by her of her inchoate right of dower and other interests in the property hereby conveyed, the sum of $15,000, with interest from date.”
In relation to this trust deed Mrs. Gates testified:
“I knew he was making an assignment for the benefit of his creditors, conveying to the trust compapy all his property for their security and benefit. I knew there was attached to that paper a list of his creditors, but I never sawthelist. I knew I was preferred for $15,000. Iunderstood it was made to cover or secure all of his creditors, but not intended to secure me. It was my intention not to make a claim, but to adjust my matter with him after he got through with this business. For that reason I understood I was excepted from the creditors in that security.”
Testifying in relation to the same matter, Mr. Gates said: ,
“The claim of Mrs. Gates was not included or meant fo be included in the $15,000. This $15,000 was to enable ■ her to take care of her property. The consideration for the $15,000 is her dower interests and the surrender of the Center-street property. At that time the list or schedule of the trust company did not contain all my creditors. It did not contain the claim of Mrs. Gates. It was not on my books, and the claims were made up from my boobs by my bookkeeper. I knew of my indebtedness to her. The only reason why it was not put in was that I believed that it would pay out, and I was anxious for the debts to be paid. I supposed there would be a nice sum left.”
After the giving of the trust deed some question was raised as to the bonafides of the $15,000 preferred claim. September 1, 1896, Mrs. Gates filed with the receiver a statement, to which is attached the following:
‘1 This statement is furnished the Union Trust Company by Mrs. Gates to satisfy it that she is a bona fide creditor of S. G. M. Gates to the extent of $15,000. Interest is neither charged nor credited, and the other items are omitted which would increase this claim.”
An order was made in the case requiring creditors to present their claims on or before November 1, 1897. After Mrs. Gates was paid the $15,000, she filed a petition, dated August 31, 1899, claiming her husband owed her unsecured claims, which, after giving him certain credits, left him her debtor to more than $80,000. The claim is made up as follows:
“1. $1,100 cash, claimed to have been loaned by Mrs. Gates to her husband July 31, 1864; interest for 32 years. 2 months.
“2. Rent at $1,500 per year for the use of one-quarter of Gates & Fay’s sawmill from January 1, 1865 (the one-quarter interest having been purchased in 1864 for $2,000), $47,375; interest for 31 years 7 months.
“3. Rents collected by Gates from houses which had been conveyed by Gates to Mrs. Gates, the rent items covering a period from October, 1872, amounting, without interest, to $8,718.66.
“4." A claim for the value of more than 5,000,000 saw logs said to have been purchased in 1891 for Mrs. Gates by Gates, $20,044.94.
“o. $6,000 loaned by Mrs. Gates to Gates in 1881, the proceeds of a mortgage on the homestead conveyed by Gates to his wife.
“6. $1,926.50, items paid by Mrs. Gates for household expenses during a number of years.
“7. $1,100, board of a nephew and employé of Gates for five years and seven months prior to Gates’ failure.”
The credits stated upon the account are as follows:
“1. Conveyances of real estate at four different times, aggregating $21,335, according to the statement of consideration contained in the instruments.
“2. Sundry items of money or merchandise furnished Mrs. Gates, and charged to her on Gates’ books of account, aggregating $2,857.79.
. “3. A credit given in the account for what is stated to be Mrs. Gates’ share of expenses of logging at Mercer camp, amounting to $12,000.”
It appears from the testimony of both Mr. and Mrs. Gates that no lease was drawn for the rental of the mill, and no agreement made as to the amount of the rental; that no note or written evidence of debt was given for any of these items; that no charge or credit was made or given on any book kept by either Mr. or Mrs. Gates for any of these items. Mrs. Gates testified:
“I purchased the quarter interest in the mill for $2,000. I never received any rent from it, nor kept any account of it. I have no books or records of any kind showing these transactions with my husband; nothing except as the deeds and contracts show.' This account has been made up from papers that were in existence since my husband failed. I had no record or books of any kind showing this transaction. I always carried it in my mind, though not entirely, because I talked it over with Mr. Gates several times. I never got any money from Mr. Gates.”
In testifying about one of the items which she now claims is a credit on the account, she said:
“ At the time I received this deed I did not give him a receipt for the amount. I had nothing to indicate that I had, by the receipt of this deed, received any part of the indebtedness. It was a small matter between us. I didn’t consider it was necessary. I did not know that it would ever come up.”
At another place in her testimony she said:
“That is the same mill for which I paid $2,000 for the quarter interest. Gates & Fay improved it. The mill earnings ran some years $20,000; never less than $16,000; and in these transactions I never charged him more than at the rate of $6,000. I charged him verbally always. I said I expected a settlement at $6,000, and I expected $1,500 for my portion. I demanded it every year, but he put me off. * * * I never made out any bill for rent to Mr. Gates, or Fay & Gates, and never gave them any receipt to apply upon it. No conveyance was ever made to me, or any other payment, for part of the indebtedness, and never had any understanding with them that anything should apply upon any part of the indebtedness, — any of these conveyances, or any other payments, for part of the indebtedness. I expected to credit him when we got to a settlement.”
No settlement was ever made between them.
Mr. Gates, on the cross-examination, testified as follows:
“I did not discuss*the question of why I did not want to include Mrs. Gates’ claim in the list of creditors. It was just a matter in my own mind. I remember meeting you and Mr. Russel in the Trust Company Building. I remember a meeting in Mr. Collins’ office in Bay City, at which Mr. Russel and Mr. Stevenson were present. Perhaps the question whether this $15,000 should be included in the trust conveyance was discussed. I don’t remember whether I indicated to you that Mrs. Gates had any claim outside of that $15,000. I don’t know as I had, prior to the mortgage, ever made any statement of my liabilities to the company which included any claim of Mrs. Gates. I have made statements of my condition,— such statements as annual statements. I have made a statement to the Second National Bank of Bay City.. I gave my assets and liabilities. I don’t know whether it included anything of liabilities to Mrs. Gates. I have made statements to the commercial agencies. I did not make specifically any statement of an indebtedness to Mrs. Gates. I do not remember of ever including among my liabilities any sum added to my liabilities consequent upon anything due Mrs. Gates.”
Without reciting this testimony more in detail, or attempting its analysis, we say of it we think it fails to establish a legal claim on the part of Mrs. Gates against her husband. On the contrary, we think the claim stale, and its presentation an afterthought. See Glover v. Alcott, 11 Mich. 479; Ball v. Phenicie, 94 Mich. 356 (53 N. W. 1114); Winslow v. Putnam, ante, 359 (90 N. W. 43).
In Davis v. Zimmerman, 40 Mich. 24, it is said ;•
“The plaintiff [defendant] sought to estop the wife from claiming the property as against his mortgage by showing that the mortgage was given in part for her own board, and that she, knowing that fact, failed to notify defendant of her claim. Had she known at the time that the defendant was to take a mortgage as security for the payment for her board subsequently, and failed then to assert her right, there would be justice in setting up an estoppel against her.”
Counsel say:
“The case of Davis v. Zimmerman, 40 Mich. 24, cited by respondent’s counsel, is not in point. In that case the wife allowed her husband to mortgage her individual property, and was afterwards held estopped from asserting her title thereto. In other words, the wife was attempting to attack the validity of the mortgage itself, and to assert a prior title to the specific property affected thereby. A similar question would arise in the case at bar if Mrs. Gates, having joined in the trust deed, should now claim the absolute ownership of the property conveyed thereby, and should attempt to place it beyond the reach of the creditors. We make no such claim. We assert no rights to the specific property conveyed, but merely a personal claim in the nature of a debt against Mr. Gates. The court, in Davis v. Zimmerman, did not and could not have held that the wife had lost her personal claim against her husband, even though she may have lost by estoppel her right to reach and retain specific property mortgaged by her husband under circumstances creating a clear case of estoppel upon her part.”
We think counsel are in error. This is not a proceeding to enforce a claim against Mr. Gates personally. It is true it is not an attempt to set aside the trust deed, but it, in effect, seeks to accomplish the same purpose, by subjecting the proceeds.resulting from the administration of the trust to the debt of the petitioner, and thereby diminishing the fund, which is already too small to pay the other creditors. The testimony discloses that, when Mrs. Gates joined in this trust deed, she understood, as did Mr. Gates, she was to have no share of the proceeds resulting therefrom beyond the $15,000. She should now be es-topped from claiming the contrary. We think the court erred in allowing any part of the claim.
The decree of the court below is reversed, and one will be entered here in favor of the appellant trust company, with costs of both courts.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Bronson, J.
Defendant was convicted of breaking and entering (MOLA § 750.110 [Stat Ann 1971 Cum Supp § 28.305]) in Iosco County Circuit Court by a jury and was sentenced to a term of four to ten years. He appeals of right. '
On the night in question, the defendant, Gregory Collins, Ronald Carraway, Beverly Baynes, and an unidentified girl were at defendant’s home listening to records until about 2:30 a.m. Miss Baynes testified that the others took her home about that time. Another witness, Mrs. Alice Weilandt, testified to seeing three boys walking toward the Gold’n Grove Grocery at approximately 2:30 a. m. She saw them return before 3 a. m. carrying several items, one of which appeared to be a case of beer, in the direction of a trailer belonging to Carraway’s grandmother. She identified two of the boys as Carraway and Collins. The owner of the Gold’n Grove Grocery notified the local sheriff’s department immediately upon finding his store in shambles about 7 a.,m. the same morning. At about 8 a. m. Officer Knuth spoke with Mrs. Weilandt. Upon learning what she had seen, he remembered a request by Carraway’s grand mother that he he kept off the trailer premises. Officer Kimth arrived at the trailer about 8:30 a. m. and noticed a screen had been ripped off one of the rear windows. Upon looking through the window he saw two of the boys and several items which corresponded to items which had been taken from the Gold’n Grove. At this point, the Chief of Police was called for assistance. After the chief arrived, Officer Knuth entered the trailer, roused the three boys, took them outside to the chief, and gathered up the items corresponding to the list of items missing from the grocery store. The boys were then arrested and taken to the police station where a bottle of “Off” was found in defendant’s pocket. This bottle was identified at trial as being the one taken from the grocery store.
At the trial, Carraway, who pled guilty, invoked the Fifth Amendment and refused to testify as to who had been with him. He was found in contempt. Collins, who had already been convicted, testified that defendant was not with him on the night in question. Additionally, the defendant’s mother testified that she awoke about 4 a.m. on the night in question, heard the record player going and told her son to go to bed. To destroy the credibility of this alibi testimony, the prosecutor offered the testimony of Leon Putnam, an undersheriff. He testified as follows :
“Q. Now, officer, on June 18, 1970, was Kenneth Tebo brought into your jail to be booked and lodged?
“A. Bight, he was.
“Q. Did you offer him an opportunity to make a telephone call?
(‘A. He made a telephone call soon after he was booked that day. I think it was around noon or shortly thereafter when they were brought in.
“Q. I see. Now, did he tell you who he was going to call?
“A. He wanted to make a call, and so he dialed his number, dialed the number. Well, there was something mentioned. I knew at the time he was calling his folks or his mother.
“Q. And did you lift up the extension to ascertain who he was talking to ?
“A. I sure did.
“Q. Did you recognize that voice ?
“A. Right, it was his mother’s.
“Q. Do you recall the conversation?
“A. Well, I can recall pretty much exactly what it was. She said, ‘Ken, are you mixed up in this ?’ He said, ‘We have got it all set. They are going to say I wasn’t there.’
“Mr. Myles: No further questions.”
In her rebuttal testimony, defendant’s mother testified that her phone had been removed three to four months prior to the alleged phone call. On cross-examination, she changed her story to not remembering receiving the phone call.
The jury was charged and retired to deliberate. After deliberating about 1 hour and 35 minutes, the jury sent a note to the judge showing the scores of ballots they had taken. These showed a badly split jury. The judge read the note into the record and called the jury hack in. He charged it as follows :
“The Court: * * * While I would not have requested the score of your ballots that you handed to the sheriff and to me, and so I have placed it on the record, it does show quite a broad split, although with very little change from the beginning, and I read the actual figures to the both sides and to the defendant.
“This is of course a serious matter, serious to the people and serious to the defendant. An hour and a half’s deliberation is a lot for what would seem to be a simple case of identity or lack of identity. The result of course if you are failing to agree upon a verdict is of course a mistrial and a trial over again. I wanted you to know of that consequence upon failing to agree upon a verdict. Human affairs are never subject to mathematical certainty. On the other hand, of course, mere preponderance of the evidence, of the tipping of evidence one way or the other is not sufficient.
“The issue of course is whether or not there is a reasonable doubt as to whether or not the defendant was one of the persons who joined in this offense. It is clear there was a breaking and entering. Two boys have been convicted and sentenced because of it. The question is, was the defendant one of those persons?
“You have heard the testimony. There is no reason why you can’t decide this case as well as 12 more jurors that we might bring in. I ask you to do your duty.”
Defendant’s attorney objected to the charge. The jury deliberated for another hour before returning a guilty verdict.
On appeal defendant asserts five assignments of error. Because of the position we take in this case, we need only discuss two of these assignments at length.
First, defendant argues that the evidence seized at Carraway’s grandmother’s trailer was the fruit of an unconstitutional search and seizure. This is the first time defendant has challenged the legality of the search. This Court will not consider this issue for the first time on appeal since the Court is without a sufficient record to make a fair decision. People v. Wilson (1967), 8 Mich App 651.
Defendant nest contends that it was error to admit Undersheriff Putnam’s testimony regarding the telephone call. The police station to which defend ant was taken had several telephones, each of which was an extension off a main one. Defendant requested the right to make a phone call. Putnam agreed to this and listened. No objection to this testimony was raised below.
Defendant argues that the conversation was governed by § 605 of the Federal Communications Act (47 USCA § 605) as interpreted by the Supreme Court in Lee v. Florida (1968), 392 US 378 (88 S Ct 2096, 20 L Ed 2d 1166). Section 605 provided that “no person not being authorized by the sender shall intercept any communication and divulge” its use or contents to any person. In Lee, the Supreme Court held that the police intercepted phone conversations when they had a phone connected to the same party line the defendant’s phone was connected to in such a way as to permit continuous surreptitious surveillance of all conversations on the line. Plaintiff counters by arguing that under Rathbun v. United States (1957), 355 US 107 (78 S Ct 161, 2 L Ed 2d 134), no interception took place. Rathbun held that no interception under § 605 occurs when police listen in on a regular extension phone with the consent of one of the parties.
We need not discuss § 605 because it was amended prior to the operative facts of this case and no longer applies. The situation in question is now governed by Title III of the Omnibus Crime Bill of 1968,18 USCA §§ 2510-2520. This statute prohibits the interception of oral or wire communications through the use of any electronic, mechanical, or other device.
Title III was drafted to delineate a uniform basis for authorizing electronic surveillance in compliance with the standards set forth in Katz v. United States (1967), 389 US 347 (88 S Ct 507, 19 L Ed 2d 576). Intrastate phone calls are governed by it. Weiss v. United States (1939), 308 US 321 (60 S Ct 269, 84 L Ed 298).
The statute sets forth detailed criteria for courts to follow in authorizing electronic surveillance, 18 USCA § 2516. These criteria have been held constitutional. United States v. Sklaroff (SD Fla, 1971), 323 F Supp 296. In the instant case, there has been no court authorization nor did either party to the conversation consent to Officer Putnam listening in. The question then is whether there has been an interception prohibited by statute.
As indicated, an interception occurs when the contents of an oral or wire communication is obtained “through the use of any electronic, mechanical or other device”. This latter phrase is defined to mean:
“(5) * * * any device or apparatus which can be used to intercept a wire or oral communication other than—
“(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, * * * (ii) being used by * * * an investiga tive or lavo enforcement officer in the ordinary course of his duties.” 18 USCA § 2510(5) (a) (ii). (Emphasis supplied.)
At first glance it would appear that Officer Putnam was using the extension in the ordinary course of his duties and that no interception occurred. A more careful reading of the statute indicates otherwise.
As 18 USCA § 2510 is a definitional section, it must be read together with other sections of the statute. 18 USCA § 2511 is the basic prohibition against the interception of wire communications unless provided otherwise elsewhere in the statute. Subsection (2)(c) provides an exception when a person acting under color of law is a party to the communication or has been given prior consent by one of the parties. Such an exception is consistent with Rathbun, supra. If this exception does not apply, then an officer must comply with other sections of the statute by getting a court-approved order, to eavesdrop. This procedure is consistent with the statute’s purpose of protecting the privacy of wire communications. S. Rep. No. 1097 (1968).
We recognize, as the Supreme Court did in Rathbun, supra, the importance of extension phones in the telephone communications system. When an extension line exists, a party’s privacy is vulnerable. But we do not believe that a person loses all protection merely because an extension line exists. See Lee v. Florida, supra, p 381, n 5 (88 S Ct 2098, n 5, 20 L Ed 2d 1170, n 5). We also do not believe the use of a phone with an extension is necessarily a “consent” to an interception. There is nothing in the record which indicates that the defendant should have known someone was listening in. The fact that he was using a phone in a police station should not alter a person’s expected privacy in a phone conversation. The Omnibus Crime Bill is based on Fourth Amendment case law which protects people, not places. Katz v. United States (1967), 389 US 347 (88 S Ct 507, 19 L Ed 2d 576). Further, the fact that a routine regularly-employed police procedure is involved puts this case closer to Lee, supra, than to Rathbun, supra. The police claim they were listening to conversations emanating from their headquarters on a regular basis to prevent being charged for long-distance phone calls a prisoner might make without their knowledge. The plain effect, no matter what the intent, is to eavesdrop on all calls emanating from its phones. The interest of the sheriff’s department in limiting expenses can be protected by other procedures. We do not believe the activity engaged in here was an ordinary duty contemplated by the statute. We believe that it is consistent with the statute to hold, and do so hold, that a police officer is acting in the ordinary course of his duties within 18 USCA § 2510(5) (a) when he acts under a duly authorized court order or comes within 18 USCA § 2511(2) (c), and it was error to admit evidence of the conversation.
Ordinarily, the fact that no objection to this evidence was raised below would preclude consideration of the question. People v. Camak (1967), 5 Mich App 655. Even when the failure to object is a serious mistake, we will not reverse unless'- we are convinced a new trial will serve a useful purpose. People v. Mattison (1970), 26 Mich App 453. In making such a decision, the public’s interest in avoiding purposeless trials is balanced against defendant’s right to a fair trial. A new trial will not be ordered unless it appears that a new trial conducted without the mistake in question may well result in acquittal. People v. Degraffenreid (1969), 19 Mich App 702. We believe that an acquittal could result in this case. Defendant’s defense was alibi. His mother gave alibi testimony. Undersheriff Putnam’s testimony went to the credibility of her testimony. In view of the difficulty the jury exhibited in reaching a verdict, a retrial without Mr. Putnam’s testimony could result in a different verdict.
The other issues raised by defendant deal with the jury deliberations, whether the jury was coerced into finding guilty and whether the evidence is sufficient to support the verdict. We need not discuss them.
Reversed and remanded for a new trial.
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Per Curiam.
Defendant Herman Ross appeals as of right from a judgment of $8,747 plus costs and interest rendered in favor of plaintiff by a judge sitting as trier of fact.
This case centers around a dispute between plaintiff and defendant over the terms of an oral modification of a written contract for masonry work on an apartment project in the City of Southgate. Plaintiff contends the contract was for the number of bricks actually delivered to the job site. Defendant contends that the contract was for the number of bricks actually laid. The trial judge, after hearing five days of testimony, found for the plaintiff.
Defendant contends that the plaintiff failed to sustain his burden of proof by failing to prove how many bricks were actually laid. He further states that the trial judge’s decision was against the weight of the evidence because “every bit of evidence in this case tends to support appellant’s position that appellee installed less bricks than he billed for”.
We must assume that the trial court, in finding for plaintiff, felt that plaintiff’s version of the contract was correct. Since plaintiff’s interpretation of the contract was for “bricks delivered,” it was unnecessary for him to prove that all the bricks delivered were installed. In Liscomb v Twinwood, Inc., 24 Mich App 353 (1970), we stated that findings of fact by the trial court in a contract action will be reversed only when crucial proof has been overlooked or ignored. No proof has been overlooked in this case. There is ample evidence to support the trial judge in his determination of the contract. This Court will not substitute its judgment on factual questions in a nonjury case for that of the trial court unless the facts clearly indicate an opposite result should be reached. Miller v State Highway Department, 30 Mich App 64 (1971).
Defendant also contends that the trial court denied him a fair and impartial trial by its repeated demonstration of hostility to defendant and his witnesses, lawyer and cause, and its disparagement of same, and by its constant argumentative and hostile interruptions in examination of witnesses. Examination of the record indicates that defendant was not denied a fair and impartial trial. While the trial judge, sitting as trier of fact, engaged in extensive questioning of witnesses, this alone has' not been held to be error. People v Wilder, 383 Mich 122 (1970). The substance of the trial judge’s questions and comments focused on what he considered was the lack of credibility in certain of defendant’s witnesses and in defendant’s own statements. In Houghton v. Collins, 344 Mich 175,180 (1955), a civil case heard by a judge sitting as trier of fact, the Michigan Supreme Court stated:
“The partiality, prejudice and bias which appellant claims was shown by the trial judge on some occasions during the hearing, while indicative of the court’s lack of belief in the merits of Coleman’s claim, even if true, constitute no basis for reversal.”
Whatever our personal views may or may not be on this type of practice by a trial judge sitting as trier of fact, our judicial function as an intermediate appellate court is limited. Where the Supreme Court has spoken, as here, we are not free to disregard its precedent.
Affirmed. | [
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Levin, J.
The defendant appeals his conviction of the offense of sodomy. MOLA 750.158; MSA 28.355.
The defendant took the stand and denied that he had committed the offense. At the conclusion of his testimony, his lawyer brought out that he had previously been convicted of drinking and fighting offenses and had pled guilty to “indecent liberties.”
The entire cross-examination of the defendant consisted of the following:
By Mr. Stephan[assistcmt prosecuting attorney]:
“Q. Mr. Peabody, you pled guilty to indecent liberties in Chicago ?
“A. That is right.
“Q. What was the original charge?
“Mr. MilanowsTti {defendant’s lawyer]: Objection, your Honor.
“The Court: It is cross-examination, you brought it out, Mr. Milanowski.
“Q. What was the original charge?
“A. Uh—
“Q. You can’t recall?
“A. It had something to do what they first said it was—
“Q. Rape?
“A. No, I don’t think anybody was raped or anything.
“Q. Gross indecency?
“A. It might have been that.
“Q. It might have been gross indecency?
“A. Yes.
“Mr. Stephan: That’s all.”
In People v. Brocato, 17 Mich App 277, 302-303 (1969), we said:
“a defendant testifying at his own trial may not be asked if he has been arrested or charged with crime, where the arrest or charge has not resulted in a conviction and where the only purpose of the questions is to impeach the defendant’s credibility as a witness. Where credibility is the only issue, the probative value of arrests and charges, unsubstantiated by a conviction, is slight at best. When weighed against the great danger that the jury, despite careful instructions, might misapply such evidence, the scales of justice tip in favor of exclusion, United States v. Beno (CA 2, 1963), 324 F2d 582.”
Both the holding and the reasoning of our Court in Brocato oblige us to reverse the defendant’s conviction. The gross indecency charge was not substantiated by a conviction and, therefore, the people were not entitled to bring out on cross-examination that the defendant had been charged with that offense. Defendants who plead guilty to lesser offenses, as well as those who are convicted after a trial of the originally charged offense or of a lesser offense, are entitled to the protection of the Brocato rule. See People v. Farrar, 36 Mich App 294 (1971).
The defendant’s lawyer did not open the door to the impermissible inquiry concerning the original charge by bringing out on direct examination that the defendant had been convicted of indecent liberties. We have rejected the contention that a defendant is deprived of the effective assistance of counsel when his lawyer brings out his prior record on direct examination. See People v. Jelks, 33 Mich App 425, 431 (1971), where we said that, “ * * * many defense lawyers believe it better to bring this negative information ont initially than to let the prosecutor stress it during cross-examination”.
To hold that a defendant’s lawyer opens the door hy adverting to a defendant’s prior conviction record during direct examination would confront defendants and their lawyers with an unnecessary dilemma: whether to reveal a prior record on direct examination and thereby open the door to inquiry otherwise impermissible, or to leave it to the prosecutor to bring out the record for the first time on cross-examination. A defendant should not be penalized because his lawyer seeks to soften the unfavorable impact on the jury of his client’s conviction record by bringing it out himself rather than standing by so that the prosecutor can belabor it on cross-examination.
Reversed and remanded for a new trial.
All concurred.
See, also, Cachola v The Kroger Company, 32 Mich App 557, leave den 385 Mich 775 (1971); People v James, 36 Mich App 550 (1971). | [
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] |
Memorandum Opinion. Defendant' was tried by a jury, convicted, sentenced and appeals.
An examination of the record and briefs discloses no prejudicial error.
Affirmed. | [
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Per Curiam.
The defendant appeals his conviction of breaking and entering an occupied dwelling with intent to commit a larceny. MCLA § 750.110 (Stat Ann 1971 Cum Supp § 28.305).
The defendant visited a friend at his apartment. The friend deposited a check on a dresser and, a short time later, announced that he was leaving and would be gone for at least two hours. The two men left the apartment together. The defendant’s friend returned to the apartment shortly after leaving and saw the defendant break into the apartment through a hole the defendant chopped in the plaster with a screwdriver.
There was sufficient evidence to justify the jury’s verdict.
The judge carefully and, as the defendant’s lawyer observed, “thoroughly” charged on the essential elements of the offense. The statement that if the jury finds from the evidence that the defendant broke and entered the apartment it may infer intent to commit larceny, in the absence of an explanation, from the unauthorized entry must be read in the light of the immediately connected statement that the jury must determine intent from what the defendant said, what he did and from all the circumstances of the case. We do not think the jurors were misled. (We do not intimate that a jury might not properly be allowed to infer intent to steal from evi dence alone that the accused person broke and entered a building containing objects of value.) In all events, in the absence of a clear objection or request for clarification, a new trial is not warranted in this case.
The judge’s statement: “in the absence of an explanation”, did not place the burden of proof on the defendant. Whenever the people produce sufficient evidence to support a verdict of guilty the jurors may convict the accused person on the basis of that evidence unless they choose to accept the accused person’s evidence or “explanation”. The judge meticulously instructed the jurors concerning the people’s burden of proof, the presumption of innocence and the beyond-a-reasonable-doubt standard for determining guilt or innocence. Again, we do not think the jurors were misled.
Affirmed. | [
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Memorandum Opinion. Defendant was tried and convicted of having unlawful and carnal knowledge of a female under the age of 16 years and he appeals. A motion to affirm has been filed by the people.
Upon an examination of the briefs and record, it is manifest that the question sought to be reviewed is so unsubstantial as to need no argument or formal submission.
Motion to affirm is granted. | [
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Memorandum Opinion. Defendant was tried and convicted of breaking and entering an office building with intent to commit a larceny therein and he appeals. A motion to affirm has been filed by the people.
Upon an examination of the briefs and records it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission.
Motion to affirm is granted. | [
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Levin, J.
This is an action to obtain cancellation of a mortgage on entireties real estate.
The mortgage was executed by the plaintiffs, Robert White and Betty J. White, to secure repayment of indebtedness owed by White Excavating Company to the defendant, John Deere Company of Lansing, Inc., for equipment sold by Deere to White Excavating. Robert White was the principal stockholder of White Excavating.
In April, 1969 White Excavating was in default and Deere could have foreclosed its security interest in the equipment. The parties are in agreement that in taking the real estate mortgage on the Whites’ entireties property as additional security for White Excavating’s obligation, Deere agreed to refrain from foreclosing its security interest in the equipment. The disputed issue is factual: what were the terms of the forbearance?
A Deere representative testified that at a meeting in late April, 1969, attended by Robert White and several Deere representatives, Deere offered to allow White Excavating to pay the balance in install ments. If the installments were paid, Deere would forbear until December 31, 1971. On May 16, 1969, Deere addressed a letter to White Excavating stating terms of an extended payment schedule requiring payment of periodic installments. The (letter does not state that the Whites would he required to provide additional security. The real estate mortgage is dated May 23, 1969, a few days after the letter.
Robert White testified that he did not receive the letter. He testified further that he and his wife executed the mortgage in exchange for Deere’s promise that White Excavating could retain the equipment until December 31, 1971 without making any interim payment whatsoever. The mortgage states simply that it secures the payment of $69,502.19, “said sum to he paid in full on or before December 31, 1971”. The equipment was repossessed by Deere in the spring of 1970.
The trial judge, who sat without a jury, found that, under the terms of the agreed-upon forbearance, interim installment payments were not required, and cancelled the real estate mortgage.
In his written opinion, the judge stated, that he was influenced by Deere’s offer of an extended payment schedule, set out in the May 16 letter, which “preceded” the real estate mortgage; therefore, the Whites would not have subsequently executed the mortgage unless they had received something in addition to the extended payment schedule — such as complete forbearance until December 31, 1971. Deere argues that the judge erred because there is nothing in the record from which he could properly have found that Deere did not require the real estate mortgage as further security in return for the extended payment schedule.
The judge’s reasoning is, however, somewhat substantiated by Deere’s failure to state in the letter of May 16,1969, which sets forth the proposed extended payment schedule, that additional security — a real estate mortgage — would also be required. Moreover, although the testimony of the Deere representative that he only offered an extended payment schedule in exchange for a real estate mortgage may not have been specifically denied by the Whites, the judge was not obliged to credit the Deere representative’s testimony — the testimony of an interested witness. See Goppelt v Burgess, 132 Mich 28, 30 (1902).
In all events, the essential question is what was the ultimate agreement of the parties. The Whites testified that White Excavating did not have the ability to make payments on the equipment until certain construction projects were completed and that they agreed to give the real estate mortgage only because Deere agreed to a forbearance that would give White Excavating sufficient time to complete those projects before further payments were required.
It was for the judge, as trier of fact, to decide on the credibility of the witnesses. It appears from statements in the judge’s opinion that he believed the Whites’ testimony. Their testimony supports his finding and conclusion that no payment was required before December 31,1971, the stated date for payment of the obligation secured by the mortgage. His findings are not clearly erroneous.
Affirmed. Costs to plaintiffs.
All concurred. | [
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] |
Levin, J.
Plaintiff, American National Bank & Trust Company of Michigan, commenced this action on a promissory note against the principal defendant, B. C. Modderman, and obtained a judgment against him for $5,566.80, plus costs.
Plaintiff then issued a writ of garnishment against the garnishee defendant, The First National Bank and Trust Company of Kalamazoo, which filed a disclosure. Thereafter, Irene Modderman, wife of B. C. Modderman, filed a petition claiming that accounts with the garnishee defendant in the joint names of her husband and herself were her exclusive property.
The funds on deposit with the garnishee defendant consist of savings accounts and a savings receipt in the names of the Moddermans. The record is un clear concerning the form in which the accounts and receipt were made payable. However, it appears from the garnishee defendant’s disclosure that they were made payable to Bert C. Modderman or Irene Modderman.
After a hearing on the merits, at which both Mr. and Mrs. Modderman testified, the trial judge found that Mr. Modderman was the owner of one-half of the funds held by the garnishee defendant in the names of the Moddermans and ordered that plaintiff have execution against the garnishee defendant for Mr. Modderman’s share of the funds.
In Murphy v Michigan Trust Co, 221 Mich 243, 245-246 (1922), the Supreme Court of Michigan held that a savings account and certificate of deposit payable to the plaintiffs, husband and wife, or to either or the survivor created a joint tenancy, not a tenancy by the entireties:
“The words ‘payable to either’ do not square with the idea of a tenancy by entireties but do pointedly relate to a joint tenancy.”
The Court went on to hold that under the statute* “the deposits constituted the plaintiffs joint tenants” and that as joint tenants the husband’s interest was “severable for the purpose of meeting the demands of creditors”. The Court also declared that “in the absence of proof establishing their contributions toward the deposits the presumption prevails that plaintiffs were equal contributors thereto and, therefore, equal owners”.
The inference established by a presumption is substantive evidence. “In the absence of rebuttal evidence, [a presumption] establishes a mandatory inference. If rebuttal evidence is admitted the inference is downgraded from a mandatory to a permissible inference, Kirilloff v Glinisty, 375 Mich 586, 588-589 (1965). Only where the rebutting evidence is so overwhelming that all reasonable men must agree that the * * * inference has been overcome may a trial judge properly direct a verdict.” Snow v National Bank of Ludington, 16 Mich App 595, 597 (1969).
The source of the funds was Mr. Modderman’s income. The Moddermans testified that the funds, accumulated over a long period of time, represented savings by Mrs. Modderman from her weekly household allowance and outright gifts of various amounts.
The judge found that Mr. Modderman asserted ownership of the accounts in controversy when it was to his advantage to do so; that finding is supported by the record. The judge was not persuaded by the testimony of the Moddermans to declare that they had overcome the presumption that they each contributed one-half of the funds. He did not clearly err in his findings.
Whether evidence is credible — whether it is to he believed — is for the trier of fact to decide. The testimony of the Moddermans concerning their intentions and characterizing and explaining their actions in respect to the deposits and withdrawals from the accounts was the testimony of interested witnesses. Their testimony was not binding on the trier of fact. He was at liberty to reject their testimony and enter judgment in accordance with the permissible inference arising from the presumption.
Mrs. Modderman also contends that the joint accounts were “other evidences of indebtedness” within the meaning of MCLA 557.151; MSA 26.211, and thus were entireties property and, therefore, not subject to the claims of her husband’s creditors. In McMahon v Holland, 260 Mich 246 (1932), the Supreme Court of Michigan held that this statutory provision does not apply to a savings account payable to husband “or” wife. As previously mentioned, while the record is unclear, it appears that the funds were made payable to Mr. or Mrs. Modderman. This alternative issue is raised for the first time on appeal and that may explain the obscurity of the record.
Affirmed. Costs to the plaintiff.
All concurred.
Then CL 1915, 8040; now MCLA 487.703; MSA 23.303, reading in relevant part as follows:
“When a deposit shall be made, in any bank by any person in the name of such depositor or any other person, and in form to be paid to either or the survivor of them, such deposits thereupon and any additions thereto, made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same together with all interest thereon, shall be held for the exclusive use of the persons so named and may be paid to either during the lifetime of both, or to the survivor after the death of
1 of them, and such payment and the receipt or acquittance of the same to whom such payment is made shall be a valid and sufficient release and discharge to said banking institution for all payments made on account of such deposits prior to the receipt by said bank of notice in writing not to pay such deposit in accordance with the terms thereof.”
Similarly, see Sussex v Snyder, 307 Mich 30, 37 (1943); Czajkowski v Lount, 333 Mich 156, 164 (1952); Darst v Awe, 235 Mich 1, 2 (1926).
Wirtanen v The Prudential Insurance Company of America, 27 Mich App 260, 267 (1970).
See In re Wood Estate, 374 Mich 278, 291; 5 ALR3d 1 (1965) ; In re Vollbrecht Estate, 26 Mich App 430, 437 (1970); People v English, 29 Mich App 36, 48 (1970).
Snow v National Bank of Ludington, supra, p 598; Woodin v Durfee, 46 Mich 424, 427 (1881).
See MCLA 600.2158; MSA 27A.2158; Callaghan’s Michigan Pleading & Practice (2d ed), § 37.205, pp 557, 558; Goppelt v Burgess, 132 Mich 28, 30 (1902); Ball-Barnhart-Putman Co v Lane, 135 Mich 275 (1903).
See Crampton v. Crampton, 205 Mich 233, 241 (1919) ; Cuttle v Concordia Mutual Fire Ins Co, 295 Mich 514, 519 (1940) ; Hughes v John Hancock Mutual Life Ins Co, 351 Mich 302, 308 (1958); Baumgartner v Ham, 374 Mich 169, 174 (1965); Wolfgram v Valko, 375 Mich 421, 435 (1965) (per Black, J., in an opinion signed by two other justices).
See De Young v Mesler, 373 Mich 499 (1964). | [
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Quinn, J.
April 6, 1967, plaintiff brought a wagonload of corn to defendant to have the corn ground into feed. For unloading purposes, the wagon was placed on a hoist which tilted the wagon in the direction of a shuttle that received the corn from the wagon. A “wheel stop” or retaining bar was raised from the bed of the hoist behind the rear wheels of the wagon !to prevent it from rolling backward. The bar was 'raised to a height of approximately 14 inches from the bed of the hoist. While plaintiff was behind the wagon, between it and the shuttle, the wagon rolled backwards, pinning plaintiff between it and the shuttle.
Alleging that defendant was negligent in failing to provide sufficient retaining devices to hold the wagon during unloading, plaintiff brought this action to recover his damages arising from the occurrence. Plaintiff recovered by jury verdict, and from the judgment entered thereon and from the denial of post-trial motions, defendant appeals.
At trial, over defendant’s objection, plaintiff read portions of James L. Birney’s deposition into the record. Mr. Birney was one of the owners of defendant. The portions of his deposition that were read related to two prior incidents when vehicles rolled off the hoist. Defendant’s objection was that plaintiff had failed to establish the foundation required for the admission of evidence of similar occurrences. The first error asserted relates to this evidence.
Two or 2-1/2 years prior to April 6, 1967, a pickup truck owned by one Hayes rolled off the hoist when the retaining bar was inadvertently lowered. Some time prior to that a pickup truck belonging to Bruhn rolled off the hoist. On the latter occasion, the retaining bar could only be raised about five inches because of a spare tire that hung below the bed of the Bruhn vehicle.
Evidence of prior accidents at the same place and arising from the same cause is admissible to show defendant’s notice or knowledge of the defective or dangerous condition alleged to have caused the accident, as well as defendant’s negligence, Freed v. Simon, 370 Mich 473 (1963). The record establishes that the accident involving the vehicles of Hayes and Bruhn arose from causes different than the cause in Kinney. It was error to admit the portions of the Birney deposition objected to by defendant.
Plaintiff argues that assuming the error, it is not reversible error because another witness testified without objection concerning prior accidents. The argument fails, however, because this witness was also testifying about the Hayes and Bruhn accidents, neither of which established notice or knowledge of a defective or dangerous condition in the hoist or negligence on the part of defendant.
Prom the general verdict that was returned in this case, this Court is unable to ascertain whether or not the jury considered the improperly admitted evidence, and we cannot say the objectionable testimony was not prejudicial, Marshall v. Wabash R. Co., 171 Mich 180, 183 (1912).
.Of the remaining issues raised on appeal, we discuss only one because it may recur on retrial. Plaintiff claimed damages for loss of profits on corn and hogs. The proofs showed that plaintiff raised corn for feed for the hogs; he did not raise corn for sale. If similar proof develops on retrial, damages in this area should he restricted to loss of profits on the hogs and the expense of the corn production should be added to the cost of the hogs.
Reversed and remanded for new trial with costs to defendant.
All concurred. | [
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Memorandum Opinion. Defendant was arrested and convicted of the crime of carrying a concealed weapon contrary to MOLA § 750-.227 (Stat Ann 1962 Rev § 28.424). He was sentenced to serve 3-1/2 to 4 years in prison.
On appeal defendant claims the trial court’s instructions were improper. However, there was no proper objection below and the issues now raised were not properly preserved for appeal. GCR 1963, 516.2; People v. Mallory (1966), 2 Mich App 359. We will not, therefore, discuss the issues raised since our review of the record convinces us that there has been no miscarriage of justice. MCLA § 769.26 (Stat Ann 1954 Rev § 28.1096).
Affirmed. | [
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] |
O’Hara, J.
Plaintiff brought a class action on behalf of himself and other residents and taxpayers in the City of Allen Park. He sought to restrain defendant city and its chief executive from implementing the decision of the city council to raise the percentage of permit fees paid certain part-time inspectors from 50% to 70% of the fee. He appeals from the order of the trial judge granting a summary judgment to defendants.
The rule in Michigan pertaining to a taxpayer’s right to sue a unit of government for the unauthorized expenditure of public funds is stated in Menendez v. City of Detroit (1953), 337 Mich 476, 482:
“In each of these cases it is clearly recognized that prerequisite to a taxpayer’s right to maintain a suit of this character against a unit of government is the threat that he will sustain substantial injury or suffer loss or damage as a taxpayer, through increased taxation and the consequences thereof. This is uniformly true of all the Michigan cases considering this subject.”
The theory in establishing permit fees is that revenue derived therefrom will cover the cost of inspections and administration and will place the burden of paying these costs upon persons requesting the service. Funds so raised do not come from the general fund of the city and may not be used to defray general operating expenses of government since this would amount to an illegal tax. Merrelli v. St. Clair Shores (1959), 355 Mich 575, 588.
Whether city inspectors received 50% or 70% of inspection fees could not affect plaintiff’s taxes. It would not be possible to explain otherwise the city council’s reduction of the millage rate some six months after modification of the permit fee schedule.
Plaintiff failed to demonstrate that he has suffered any injury as an individual or as a taxpayer as a result of the percentage increase complained of. He is consequently not a proper party to this action.
Absent the requisite standing, his assignments of complained error are not properly before us.
Affirmed. Costs to the defendants.
All concurred.
At present the inspectors receive 70% of the annual fee submitted. The remaining 30% continues to be available for any overhead which may be incurred by the city in administration over and above the actual cost of inspection. | [
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Memorandum Opinion. The defendants-appellants were jointly tried by a jury, convicted, and sentenced. They appeal.
An examination of the record and briefs discloses no prejudicial error.
Affirmed. | [
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] |
V. J. Brennan, P. J.
This is a family case involving the disposition of a piece of property referred to by the parties as “the farm”. The plaintiffs are the administrator of decedent’s estate, and two of decedent’s three children. The defendants are decedent’s third child and her husband. Prior to her death, decedent executed a quitclaim deed conveying the farm to herself and to her daughter Carol Schreck Hart-wig, one of the defendants herein, as joint tenants with rights of survivorship. The plaintiffs challenge this deed by raising two arguments: first, that the decedent did not intend to convey a present interest in the farm to the defendant, and that therefore the deed was invalid; and, second, that if the deed should be found to be valid, that a constructive trust should be imposed in order that all three children may share equally in the property, which was alleged to be the intent of the decedent.
In a written opinion, the trial court ruled that the decedent did in fact intend to convey a present interest in the property to the defendant, and therefore the deed as executed by the decedent was ^alid. However, the trial court did not address itself to the constructive trust argument in its opinion. We feel that this omission runs contrary to the express mandate of GrCR. 1963, 517.1, which requires the trial court to make findings of fact and conclusions of law upon all contested matters. We agree with Judge Gillis’ dissent in Nicpon v Nicpon, 9 Mich App 373 (1968), that this Court is not powerless in such a situation, and that we may, in the process of a de novo review, make our own findings of fact and conclusions of law based upon the record before us.
We feel that the trial court erred when it failed to impose a constructive trust as sought by the plaintiffs. The standard to be applied in determining whether the imposition of a constructive trust is appropriate was set forth by the Supreme Court in Kent v Klein, 352 Mich 652 (1958). In that opinion the Supreme Court, at p 656, cited with approval the language used by Judge Cardozo in Beatty v Guggenheim, Exploration Company, 225 NY 380, 386; 122 NE 378, 380 (1919):
“A constructive trust is the formula through which ' the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.”
The Supreme Court further stated, at p 657, that,
“Fraud in the inception we do not require, nor deceit, nor chicanery in any of its varied guises, for it is not necessary that property be wrongfully acquired. It is enough that it be unconscionably withheld.”
There is more than an abundance of evidence in the record to support plaintiffs’ contention that decedent intended that her daughter, the- defendant, share the property in question equally with decedent’s two other children. At the time decedent executed the quitclaim deed conveying the property to herself and her daughter as joint tenants, she signed a letter addressed to her daughter, the defendant, clearly expressing her intention that the property be equally shared among decedent’s three children. Furthermore, there was testimony that on several occasions decedent indicated to individuals who are not parties to this action that she, the decedent, had confidence that her daughter, the defendant, would “do the right thing”. In addition to this testimony, the defendants in this action made numerous statements that they recognized that an equal division of the property among decedent’s three children had been the intent of decedent, and that they, the defendants, intended to honor the decedent’s wishes.
On these facts we conclude that it was decedent’s intention that her property be shared equally among her three children and that in failing to so share the property, the defendants herein have unconscionably withheld and appropriated the property from decedent’s other two children. Therefore a constructive trust should be imposed upon the property in question for the benefit of all of decedent’s children.
Reversed and remanded for proceedings consistent with this opinion. Costs to appellants.
All concurred. | [
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] |
R. B. Burns, J.
Defendant was convicted after a jury trial of a three-count information with: (1) wilfully or maliciously burning real property, contrary to MCLA § 750.73 (Stat Ann 1962 Rev § 28.268); (2) placing, using or distributing any inflammable, combustible or explosive material in or about any building with intent to wilfully and maliciously burn, contrary to MCLA § 750.77 (Stat Ann 1962 Rev § 28.272); and (3) placing explosives with intent to destroy property with resulting personal injury, contrary to MCLA § 750.207 (Stat Ann 1962 Rev § 28.404). He appeals as of right from his conviction and life sentence pursuant to MCLA § 750.207 (Stat Ann 1962 Rev § 28.404).
At approximately 2:23 a.m., January 12, 1969, a second-floor dance hall situated in the western section of the City of Detroit was criminally incinerated resulting in extensive property damage and personal injury. On the date in question, defendant, accompanied by four others, drove to the dance hall where he was dropped off. The other men promised to return for defendant within one-half hour. ■ Upon their return, he informed them that he had been denied admission. All five then proceeded to a nearby gasoline station where defendant procured an oil can containing two gallons of gasoline. Returning to the establishment, defendant again attempted to gain admission but was similarly refused. Defendant then secured the gasoline and, accompanied by one of the other men, returned to the hall once more. The three men who had remained outside testified that shortly thereafter they observed the emission of flames from the doorway of the building followed by the exiting two men.
Although defendant was not positively identified as the one who started the fire, there was testimony of an injured witness that two men entered the building, one spreading gasoline on the stairway and the other throwing the match. Defendant’s three companions also testified that when the two returned to the car defendant said to the other, “You threw the match too quick!”
At trial defendant moved to strike count three— placing explosives with intent to destroy property and causing injury to any person. The motion was denied.
MCLA § 750.207 (Stat Ann 1962 Rev §28.404) reads as follows :
“Any person who places in, upon, under, against or near to any building, car, vessel or structure, gunpowder or any other explosive substance, with intent to destroy, throw down, or injure the whole or any part thereof, which substance upon explosion shall cause injury to any person, shall be guilty of a felony, punishable by imprisonment in the state prison for life. Such convicted person shall not be eligible to parole.”
The Penal Code does not define the word “explosive”. The word “explosive” is defined in the Motor Vehicle Code as follows:
“ ‘Explosives’ means any chemical compound or mechanical mixture that is commonly used or intended for the purpose of producing an explosion and which contains any oxidizing or combustive units or other ingredients in such proportions, quantities, or packing that an ignition by fire, friction, by concussion, by percussion, or by detonator of any part of the compound or mixture may cause such a sudden generation of highly heated gases that the resultant gaseous pressures are capable of producing destructible effects on contiguous objects or of destroying life or limb.” MCLA § 257.15 (Stat Ann 1968 Rev § 9.1815).
While gasoline is capable of exploding, it is not commonly used or intended as an explosive. Gasoline is highly flammable and is used to start fires.
MCLA § 750.77 (Stat Ann 1962 Rev § 28.272) provides that the use of incendiary or flammable substances to cause property destruction and personal injury is a felony.
In our opinion it was not the intent of the legislature to classify gasoline as an “explosive”, when spread upon the surface of property to start a fire, under the statute.
Reversed and remanded for a new trial.
Levin, P. J., concurred. | [
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Per Curiam.
On March 19, 1971, Elwin J. Smith, the Sheriff for Eaton County, issued the following order:
“From the above day on, no deputy under the rank of corporal will he allowed to wear a [sic] off-duty gun unless he is given special permission.”
The deputies then brought suit to prevent the sheriff from prohibiting their carrying guns while off duty. The trial court found that the sheriff had the right to prohibit the carrying of guns by deputies while off duty and, therefore, dismissed plaintiff’s complaint. From that judgment, plaintiff appeals as of right.
Plaintiff contends that as peace officers, they have a constitutional right to carry concealed weapons at all times. Const 1963, Art 1, § 6 provides:
“Every person has a right to keep and hear arms for the defense of himself and the state.”
MCLA § 750.227 (Stat Ann. 1962 Rev §28.424) limits the above provision:
“any person who shall carry a pistol concealed on or about his person, or, whether concealed or other wise, in any vehicle operated by or occupied by him, except in his dwelling house or place of business or on other land possessed by him, without a license to so carry said pistol as provided by law, shall be guilty of a felony.”
The above statute is a limitation by the Legislature on the constitutional right of the citizens of this state to keep and bear arms. This is within the state’s police power and, therefore, in keeping with the power of the Legislature. See People v. Brown (1931), 253 Mich 537.
However, MCLA § 750.231 (Stat Ann 1971 Cum Supp § 28.428) specifically excepts peace officers from the operation of the above statute. Therefore, plaintiff contends that since they have been excepted from the statute prohibiting the carrying of concealed weapons, their constitutional right to keep and bear arms is unrestricted and cannot be limited by order of the sheriff.
We find no merit in plaintiff’s reasoning. MCLA § 51.70 (Stat Ann 1971 Cum Supp § 5.863) provides that “each sheriff may appoint one or more deputy sheriffs at his pleasure, * # * ”. In our opinion this gives the sheriff of each county the power to prescribe the rules and regulations where by employment as a deputy may be continued.
In the instant case, the sheriff has decided that deputies under the rank of corporal may not carry weapons while off duty. The sheriff has an obligation to both the citizens of the county in which he is elected as well as to his deputies. In the instant case, the sheriff, in carrying out those obligations, has decided that it would be best for all concerned if certain officers did not carry weapons. In our opinion this Court should not substitute its judgment for that of the sheriff in an area which is so peculiar to the job of law enforcement.
We find that the exemption of peace officers from obtaining licenses to carry concealed weapons in no way limits the power inherent in the office of sheriff to promulgate rules and regulations pertaining to the employment of deputies. MCLA § 750.231 (Stat Ann 1971 Cum Supp § 28.428) merely provides that §§ 224 and 227 do not apply to peace officers. Therefore, the officers may carry concealed weapons without being guilty of a felony.
However, in our opinion, MCLA § 750.231 in no way limits the power of the sheriff to make rules and regulations which, in his opinion, improve the quality of law enforcement and increase the safety of the citizens in the community. We therefore hold that the trial court was correct in dismissing the plaintiff’s complaint.
Affirmed. | [
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R. B. Burns, P. J.
Plaintiff instituted this action for damages to its airplane, piloted hy defendant, resulting from an emergency landing. Plaintiff based its case on two theories of recovery; one in negligence and the other in bailment. The jury returned a verdict of no cause of action.
Plaintiff claims the trial court erred in its instructions as to its bailment theory. Neither party disputed that the bailment was for the mutual benefit of both parties and in such a case in the absence of a contractual duty to the contrary, a bailee is liable only for ordinary negligence. Godfrey v. City of Flint (1938), 284 Mich 291.
Plaintiff’s theory at trial, however, was that the common-law liability of ordinary negligence was contractually supplanted to create absolute liability. This modification of liability was a matter of dispute, however, and because the bailment contract was oral, the credibility of the parties was of permanent concern. In its instructions to the jury the trial court correctly stated that plaintiff’s alternative theory to negligence was “its theory of bailment or contract” and that plaintiff “must prove the existence of an agreement and its terms”.
But in advising the jury as to the duties and liabilities arising out of a bailment contract the court was confusing and plaintiff’s theory of strict liability was lost. At one point the instructions on the bailment theory seem proper:
“The duties and obligations and liabilities of the parties arising out of the bailment are based upon the conditions of the bailment as understood by both parties.” (Emphasis supplied.)
In subsequent instructions the rule of liability arising out of the bailment agreement was changed:
“To ascertain rights, duties, and liabilities of the parties it is usually necessary to determine whether a bailment is * * * for the mutual benefit of both parties.
# # #
“You may find that the contract of bailment here under consideration is one for the mutual benefit of both parties; and then the defendant was bound to exercise ordinary care in the airplane; that the defendant is liable for ordinary negligence, if you find the defendant was guilty of ordinary negligence.” (Emphasis supplied.)
The ordinary negligence rule in bailment was not plaintiff’s theory and its timely objection to this latter instruction was well taken. Upon reviewing the entire instructions we feel plaintiff was denied its right to have its bailment theory properly presented to the jury. See Horst v. Tikkanen (1963), 370 Mich 65; Carey v. Toles (1967), 7 Mich App 195.
Reversed and remanded for trial as to plaintiff’s bailment theory of strict liability.
All concurred. | [
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Van Valkenburg, J.
This is an appeal by the people, upon leave granted, from the order of the trial judge quashing the information and dismissing the case against the defendant. The people assert that the trial court committed reversible error in quashing the information and seek that the trial court’s order be reversed and the cause remanded so that the defendant might be held for trial on the charges set forth in the information.
On July 12, 1968, Jimmy L. Davis, a police informer, was given $60 by two Detroit police officers and was sent to the basement apartment at 281 East Elizabeth Street in Detroit, Michigan, for the express purpose of making a purchase of narcotics. While at that address Davis purchased 76.37 grains of heroin from the defendant. Defendant was arrested, the preliminary examination was held, and defendant was bound over for trial in the Recorder’s Court. An information was filed on August 26,1968, in which defendant was charged in two counts, being: Count I, that he sold or dispensed 76.37 grains of heroin without a license contrary to MCLA 335-.152; MSA 18.1122, and Count II, that he possessed or had under his control 76.37 grains of heroin contrary to MCLA 335.153; MSA 18.1123. Subsequent to the preliminary examination, but prior to the trial date, the informer, Jimmy L. Davis, was murdered by a person or persons unknown to the authorities.
On the date on which the trial was scheduled, July 30, 1970, upon motion by the defendant, the trial judge dismissed the case without prejudice. The pertinent part of the defense motion is as .follows:
“In this matter, your Honor, the information was filed August, 1968, alleging that the sale in question was made to Patrolman Thomas Taylor, naming him as the complaining witness, at 281 Epworth or Elizabeth, on July 12,1968. I noticed within the information is the allegation that the sale was made by Mr. Jimmy L. Davis; however, the examination transcript reveals that the sale was made to Mr. Jimmy Davis, * * * .”
This statement is erroneous in two respects: (1) Thomas Taylor was listed as the complaining witness and a witness for the people, while Mr. Jimmy L. Davis was merely listed as a res gestae witness; and (2) the body of the information does not state to whom the sale was made.
Therefore, we are faced with the question of whether or not the trial judge committed reversible error in quashing Count I, where a purchaser was not named in the body of the information.
The general requirements of such an information are set forth in the Constitution of Michigan, by statute, and by various decisions of the appellate courts. We find in Const 1963, art 1, § 20 the following language:
“In every criminal prosecution, the accused shall have the right * * * to be informed of the nature of the accusation * * * .”
The specific requirements of the contents of an information are set forth in MCLA 767.45; MSA 28-.985, which provides:
“The indictment or information shall contain:
“1. The nature of the offense stated in language which will fairly apprise the accused and the court of the offense charged;
“2. The time of the offense as near as may be but no variance as to time shall be fatal unless time is of the essence of the offense.
“3. That the offense was committed in the county or within the jurisdiction of the court. But no verdict shall be set aside or a new trial granted by reason of failure to prove that the offense was so committed unless the accused have raised such question before the case is submitted to the jury.”
We find further clarification in 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 348, p 427, in which the test of sufficiency of allegations is very well stated:
“In order that the accused may not be deprived of his constitutional right of due process of law, he is entitled to be proceeded against under an information which, with a fair degree of certainty, specifies the particular charge made against him and fixes the scope of prosecution, since such specification is essential to his preparation for trial, and also affords him protection of record from being twice placed in jeopardy for the same offense.
“The purpose of an information in a criminal case is to inform the defendant of the charge made against him. Such facts must be averred as will lead to a necessary conclusion of guilt, if admitted, without consideration of any allegations of guilt.
“The sufficiency of an information cannot be tested by and does not depend upon the proofs. It either is, or is not, upon its face, a good information.”
In light of the foregoing authority, we would first observe that Thomas Taylor, the detective who made the arrangements with the informer, is listed in the complaint as the complainant and complaining witness. This means that this instrument was based upon information and belief. That is entirely proper and legal under the circumstances. See 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 175, p 209; People v Andriacci, 11 Mich App 482 (1968); People v Linscott, 14 Mich App 334 (1968); People v Hosack, 16 Mich App 552 (1969); and People v Coss, 18 Mich App 419 (1969).
The defendant relies very largely upon People v Hernandez, 15 Mich App 141 (1968), in which the defendant, an uneducated man who could not read or write English, sold a certain quantity of narcotics to an Alma Silva, who was acting as the purchaser in behalf of a Federal agent. When the information was drafted it stated that the narcotics were sold to the complainant, the Federal agent. This Court held that such complaint and information was insufficient if the evidence showed that the defendant was not ever cognizant of the agent. Under those circumstances we agree with that decision. In the case at bar, however, the complaint and information did not charge the defendant with selling narcotics to the complainant. Therefore, we feel that Hernandez does not apply to the present situation.
Further, it should he noted that the Hernandez decision was based upon People v Brown, 299 Mich 1 (1941), which involves a liquor prosecution in which the statute contained 73 different sections. It was held, and properly so, that the information should be very definite in order to apprise the defendant of the charges being filed against him. The Court in Brown, supra, 4 held:
“He is entitled to be proceeded against under an information which with a fair degree of certainty specifies the particular charge made against him and which fixes the scope of the prosecution.”
Examination of the information brought in the instant case reveals that the date and place of the alleged offense, the names of the res gestae witnesses, including the informer, the amount of heroin sold, and the fact that the defendant did not have a license were all set forth. The fact that the name of the purchaser was not stated in the body of the information could in no way prejudice the rights of the said defendant.
Further, it should be pointed out that under the Federal narcotic drug act it is generally unnecessary to name the purchaser or informer, as the name of this person is not an essential element of the offense. Lewis v United States, 340 F2d 678 (CA8, 1965); Hackett v United States, 348 F2d 883 (CA6, 1965); Bush v United States, 338 F2d 400 (CA9,1965); and Unitgd States v Dickerson, 337 F2d 343 (CA6, 1964). It would appear that the reasoning of the Federal courts in this regard is appropriate to the Michigan statutory offense.
If dissatisfied with the apparent details, the defedendant could have taken advantage of MCLA 767-.44; MSA 28.984, which provides:
“The prosecuting attorney, if seasonably requested by the respondent, shall furnish a bill of particulars setting up specifically the nature of the offense charged.”
This the defendant failed to do.
Since the information was complete and regular on its face and sufficiently set forth the nature of the charges being brought, it was reversible error for the trial court to quash the information and dismiss the case against the defendant. Since the holding set forth above is equally applicable to Count II, the information as to both counts should be reinstated.
While the holding above is determinative of the issue raised by the appellant, we find it necessary to rule upon a procedural question raised by this appeal. Within 20 days after the people filed their claim of appeal pursuant to our grant of leave, defendant filed a claim of cross-appeal. The people filed a motion to dismiss defendant’s cross-appeal. The question is thus whether the defendant has a right of cross-appeal by virtue of GCR 1963, 807.
Although there is some doubt whether this question is a proper subject matter for review at this juncture of the case, we deem it necessary to reach the question in light of the August 6, 1971 order of this Court with regard to the people’s motion to dismiss, wherein the Court said:
“It is ordered that decision on the motion to dismiss be, and the same is hereby adjourned, to be determined by the panel of the Court to which the cause is submitted.”
GCR 1963, 807.1 provides :
“Right to Cross-Appeal. When an appeal is taken to the Court of Appeals and any other party in a civil action desires to appeal, lie may take a cross-appeal # * *
GCR 1963, 807.2 continues in the same vein with regards to grants of leave to appeal:
“Leave to appeal granted to appellant shall vest appellee, in civil cases, with the right to a cross-appeal which may be taken by filing, * * # .”
GCR 1963, 807.3 provides, in part :
“Where there is more than 1 party plaintiff or defendant and any 1 party appeals upon leave granted, each of the other parties to the case except the people in criminal proceedings, * *' * .”
While GCR 1963, 807.3 is not applicable here since it deals with multiple parties, it is of significance since it evidences a clear intent to deny cross-appeals in criminal proceedings. Similarly, subsections 1 and 2 of the rule evidence a clear intent that the right of cross-appeal is limited to civil cases.
The tenor of the language of GCR 1963, 807 clearly evidences the intent of the rule; therefore, any other interpretation of the language would literally destroy the clear meaning of the words used in the rule. Since under prior practice cross-appeals were available to any party , the language limiting cross-appeals to civil matters clearly indicates an intent that appeals in criminal matters are not now subject to cross-appeals. Accordingly, the people’s motion to dismiss defendant’s cross-appeal is hereby granted.
Reversed and remanded to Detroit Recorder’s Court for proceedings not inconsistent with this opinion.
All concurred.
Court Bule No 61, § 1 (1945) provided:
“When an appeal is taken to the Supreme Court and any other party desires to appeal, he may take a cross-appeal in the same manner and under the same rules and practice as in the ease of an original appeal * * * .” | [
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Jansen, P.J.
This is a regulatory takings case. Defendant Department of Natural Resources appeals as of right from a September 8, 1993, judgment of the Court of Claims in plaintiffs’ favor. The Court of Claims determined that a taking had occurred as a result of defendant’s decision to deny plaintiffs’ application for a permit to build a restaurant on a parcel of land on the basis that the land was protected wetlands. The Court of Claims awarded $3,245,256 for the property taken, plus interest of $1,574,522.60, and $459,400 for a temporary taking of part of the land. We affirm.
i
Plaintiffs own approximately eighty-two acres of property in Waterford Township in Oakland County. The property was acquired in 1976 by Joseph and Elaine Kosik. J.EK. Company is a Michigan limited partnership consisting of the five children of the Kosiks. J.F.K. Company is a part owner of the property through a quit-claim deed executed by the Kosiks. K & K Construction is a Michigan corporation, of which Joseph Kosik and one of his sons are the sole shareholders. K & K Construction has no ownership interest in the property involved in this case. Resorts and Company is a Michigan copartnership and is a part owner of the eighty-two-acre property.
The Court of Claims concluded that the property consisted of four distinct parcels. The parcel at issue was parcel 1, on which J.F.K. Company wished to build a C.J. Barrymore’s Restaurant. Parcel 1 covered approximately fifty-five acres of the entire property. On May 28, 1988, plaintiffs applied for a permit to develop the property. On November 7, 1988, defendant denied the permit on the basis of a determination that approximately twenty-eight acres of the property was protected wetlands under the Wetland Protection Act (WPA), MCL 281.701 et seq.; MSA 18.595(51) et seq.
Plaintiffs then filed the present action on December 29, 1988, in the Court of Claims. Plaintiffs initially sought a declaratory ruling that the area is not wetlands and also sought injunctive relief against defendant’s enforcement of the wpa and damages under the wpa. Plaintiffs sought a determination that defendant’s actions constituted a taking of their property for which they were entitled to just compensation. On May 1, 1990, plaintiffs submitted a second application for a permit to fill approximately 3.17 acres of wetlands and to convert 5.36 acres of upland to wetlands. This plan was known as the “Goga Plan” and involved a total of over seventy-two acres of property on parcels 1, 2, and 4. This second application was also denied on July 26, 1990.
Trial was held before the Court of Claims, sitting as the factfinder, on December 17, 1991. The only issue before the court was whether there was a taking because of the permit denial such that plaintiffs were entitled to just compensation. On November 2, 1992, the Court of Claims issued its opinion and order determining that a taking occurred because the wetlands restrictions rendered the property essentially worthless as commercial real estate, and that plaintiffs were therefore entitled to just compensation. After various postjudgment motions and consideration of the Goga Plan, the Court of Claims awarded a total of $5,279,178 in favor of plaintiffs.
H
Plaintiffs contend that defendant’s actions of denying the permit to fill the wetlands constitute an unconstitutional taking of property without just compensation. The Fifth Amendment of the United States Constitution provides in part: “nor shall private property be taken for public use, without just compensation.” Similarly, the Michigan Constitution provides: “Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law.” Const 1963, art 10, § 2. The Takings Clause of the Fifth Amendment has been made applicable to the states through the Fourteenth Amendment. Dolan v City of Tigard, 512 US _; 114 S Ct 2309; 129 L Ed 2d 304, 315 (1994); Peterman v Dep’t of Natural Resources, 446 Mich 177, 184, n 10; 521 NW2d 499 (1994).
A
Property may be taken only when an essential nexus exists between a legitimate state interest and the taking. If the nexus exists, then there must be a “rough proportionality” between the manner of the taking and the actual state interest involved. Dolan, supra, p 317; Peterman, supra, p 201. The parties do not dispute that the state has a legitimate interest in preserving and protecting wetlands. See Attorney General ex rel Dep’t of Natural Resources v Huron Co Rd Comm’n, 212 Mich App 510, 516; 538 NW2d 68 (1995) (“[t]he primary purpose of the WPA is to ensure that wetland habitats are preserved and protected”). Further, there is no dispute that an essential nexus exists between the legitimate state interest in this case (the preservation and protection of wetlands) and the taking (the land-use regulation). See Harkins v Dep’t of Natural Resources, 206 Mich App 317, 324; 520 NW2d 653 (1994) (“the WPA unquestionably advances a legitimate state interest”). The crucial issue we face is whether there is a taking within the meaning of the Fifth Amendment to require just compensation.
The United States Supreme Court has explained that the Fifth Amendment is violated when land-use regulation does not substantially advance legitimate state interests or denies an owner economically viable use of the owner’s land. Lucas v South Carolina Coastal Council, 505 US 1003, 1015; 112 S Ct 2886; 120 L Ed 2d 798 (1992). In land-use regulation cases, it has been recognized that while property may be regulated to a certain extent, if the regulation goes too far it will be recognized as a taking. Id., p 1014; Volkema v Dep’t of Natural Resources, 214 Mich App 66, 69; 542 NW2d 282 (1995). The Supreme Court has not set a formula regarding what constitutes going “too far,” but has engaged in ad hoc factual inquiries. Lucas, supra, p 1015.
However, there are two distinct categories of regulatory action that require compensation without case-specific inquiry. The first category encompasses regulations that compel the property owner to suffer a physical invasion of the property. The second category is where regulation denies all economically beneficial or productive use of the land. Id., pp 1015-1019. The Court of Claims concluded that application of the wpa denied plaintiffs all economically beneficial or productive use of the land.
The United States Supreme Court has noted that “affirmatively supporting a compensation requirement . . . [are] regulations that leave the owner of land without economically beneficial or productive options for its use — typically ... by requiring land to be left substantially in its natural state.” Id., p 1018. In Lucas, the Court held that where the state seeks to sustain regulation that deprives property of all economically beneficial use, the state may resist compensation only if an inquiry into the nature of the owner’s property shows that the interests behind the proscribed use were not part of the title to begin with. Id., p 1027. Thus, a regulation that prohibits all economically beneficial use of land cannot be newly legislated or decreed without compensation, but must inhere in the owner’s title itself, with the restriction that background principles of state property or nuisance law may already place on land ownership. Id., pp 1028-1029.
In the case before us, we reject defendant’s claim that the permit denial was based on a fundamental principle of Michigan property law. Defendant claims that such a principle is found in our state constitution:
The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction. [Const 1963, art 4, § 52.]
In Lucas, the Supreme Court made clear that the state must do more than proffer the legislature’s declaration that the uses the landowner desires are inconsistent with the public interest. Rather, the state must identify background principles of nuisance and property law that prohibit the uses the landowner intends in the circumstances in which the property is found. Lucas, supra, pp 1030-1031.
The constitutional provision quoted above is not a principle of nuisance and property law. The decision to build a restaurant on land, or a request to fill in wetlands, does not constitute a nuisance that the government may abate. See id., p 1029; Miller Bros v Dep’t of Natural Resources, 203 Mich App 674, 682; 513 NW2d 217 (1994). We are not aware of any common-law principle preventing the building of a restaurant on plaintiffs’ land. Thus, the generalized invocation of public interests in the state constitution, and the Legislature’s declarations in the wpa and the Michigan Environmental Protection Act, MCL 691.1201 et seq., MSA 14.528(201) et seq., do not constitute background principles of nuisance and property law suffi cient to prohibit the use of plaintiffs’ land without just compensation.
B
Defendant also contends that because the regulation, the wpa, was enacted before the quit-claim deed passed title to J.F.K. Company, plaintiffs are precluded from compensation. We do not agree that the timing of the regulation and ownership would act to preclude just compensation where it would otherwise be due. See Nollan v California Coastal Comm, 483 US 825, 833, n 2; 107 S Ct 3141; 97 L Ed 2d 677 (1987) (The landowners’ rights were not altered because they acquired the land well after the commission had begun to implement its policy. As long as the commission could not have deprived the prior owners of the easement without compensation, the prior owners must be understood to have transferred their full property rights in conveying the lot.)
In this case, the property was acquired by Joseph and Elaine Kosik in 1976. They transferred the property through a quit-claim deed to J.F.K. Company in 1986. The wpa took effect in 1980. The passage of the wpa cannot be understood as depriving J.F.K. Company of just compensation merely because the wpa was in effect when the quit-claim deed was executed. Because we have concluded that the interests served by the proscribed use in this case do not inhere in the title itself, the timing of the regulation and the transfer of the land do not dictate that plaintiffs are not entitled to just compensation. Lucas, supra, pp 1027-1031.
c
Next, in order to determine if plaintiffs were deprived of all economically beneficial or productive use of their land, we must decide what specific property was affected by the permit denial. It is defendant’s contention that the Court of Claims should have considered all eighty-two acres of the property in determining whether a taking occurred in this case. At trial, plaintiffs argued that the Court of Claims should consider only the twenty-eight acres that were declared to be wetlands. The Court of Claims rejected both contentions and found that it would consider the fifty-five acres designated as parcel 1. On appeal, plaintiffs urge us to affirm the Court of Claims’ ruling. We find that the Court of Claims’ factual finding in this regard is not clearly erroneous. MCR 2.613(C).
A proper resolution of this issue is not subject to any clear rule. In Bevan v Brandon Twp, 438 Mich 385, 393; 475 NW2d 37 (1991), our Supreme Court held that a person’s property generally should be considered as a whole when deciding whether a regulatory taking has occurred. In Bevan, however, the property in question consisted of two contiguous parcels under the same ownership and subject to a single zoning scheme. In the case before us, parcel 1 is zoned for commercial use, while parcels 2, 3, and 4 are zoned for residential use. Further, there is no single owner of all four parcels. Parcel 1 is owned in part by J.F.K. Company, and parcels 2 and 4 are owned solely by J.F.K. Company. Parcel 3 is owned by both J.F.K. Company and Resorts and Company. Finally, the regulation in this case does not affect all four parcels. Only parcel 1 is affected by the WPA.
More recently, this Court relied on Loveladies Harbor, Inc v United States, 28 F3d 1171 (CA Fed, 1994), in analyzing a similar issue. See Volkema, supra, pp 71-72. In Loveladies Harbor, the plaintiffs originally owned 250 acres of land that had been acquired in 1958. By 1972, 199 acres of the land had been developed, before the enactment of § 404 of the Clean Water Act. 33 USC 1344. The plaintiffs sought a fill permit to develop the remaining fifty-one acres for residential use. The permit was initially denied, but the state eventually entered into an agreement whereby the plaintiffs could develop 12.5 acres of the land. However, the plaintiffs also had to seek permit approval from the Army Corps of Engineers. The corps ultimately denied the permit.
The court in Loveladies Harbor had to determine the “denominator parcel” in order to determine whether a taking had occurred. The court rejected any bright-line rule and instead adopted a flexible approach to account for factual nuances of each individual case. Loveladies Harbor, supra, p 1181. This approach was also recently adopted by this Court in Volkema, supra, p 73. The court in Loveladies Harbor, found that the 199 acres that had been developed before enactment of § 404 of the Clean Water Act should not be considered as part of the denominator because no effort had been made by the state to regulate that land. With regard to the remaining fifty-one acres, the court found that the 38.5 acres had been essentially given to the state in exchange for the permit to develop the remaining 12.5 acres. The court refused to include the 38.5 acres as part of the denominator because that land had no value to the plaintiffs. Thus, the court concluded that only 12.5 acres would be considered as the denominator, and that because the value was de minimis, the owner was deprived of all economically feasible use of the property and was entitled to just compensation. Loveladies Harbor, supra, pp 1181-1182.
In Volkema, this Court employed the same “factual nuances” analysis, but reached a different conclusion. The plaintiffs in Volkema bought forty-five acres of commercial property in 1963 and a contiguous five-acre parcel in 1979. The plaintiffs developed the property and were left with 24.6 acres at the time of the litigation. The plaintiffs sought a permit to fill 4.3 acres of wetlands, but that permit was denied. The plaintiffs sought compensation for the six acres they claimed were rendered useless because of the denial of the fill permit.
This Court held that it would not include the entire forty-five acres in the denominator because approximately half of that land was developed before enactment of the WPA. However, this Court held that it would consider the remaining 24.6 acres as the denominator, rather than the six acres as urged by the plaintiffs. In Volkema, the entire 24.6 acres was of high value to the plaintiffs, and the land, when viewed as a whole, continued to have substantial value because it could still be developed for commercial purposes. Thus, this Court concluded that the plaintiffs had suffered no taking where most of the land could be developed for commercial purposes. Volkema, supra, p 74.
In the present case, the Court of Claims properly considered only the fifty-five acres of parcel 1. Parcels 2, 3, and 4 are zoned for residential purposes, while parcel 1 is zoned for commercial uses. Parcel 3 was developed before plaintiffs first applied for the permit. Parcels 2 and 4 are not developed. Because of the differences in the zoning of the four parcels and the differences in their ownership, we conclude that the Court of Claims’ factual finding that the fifty-five acres should be considered as the denominator is not clearly erroneous.
D
Defendant next contends, however, that even in light of the regulation, there was no taking because the property retained significant value. The Court of Claims found that parcel 1, as affected by the permit denial, was essentially worthless as commercial real estate. This factual finding is not clearly erroneous, given the evidence presented at trial.
The Court of Claims credited the testimony of plaintiffs’ experts, who concluded that the property was essentially worthless. The Court of Claims discounted the conclusion of defendant’s expert that the edges of the parcel could still be developed, because that conclusion was refuted by plaintiffs’ experts. We note that the twenty-eight acres of wetlands is irregularly shaped within the fifty-five-acre parcel. Thus, it is not possible to simply leave the wetlands area undeveloped and build on the remaining twenty-seven acres. If the twenty-eight acres of wetlands was not developed, the only area that could be feasibly developed would be the edges of the area of parcel 1. This was apparently not economically feasible because of the land needs for a restaurant, including parking lots or any other commercially viable use. Thus, this case is unlike Volkema because there the plaintiffs could still use the remaining eighteen acres of over twenty- four acres of property. Here, the plaintiffs could not develop the remaining twenty-seven acres because of the configuration of the wetlands within the parcel.
Accordingly, the Court of Claims did not err in concluding that the regulation in this case denied the owners all economically beneficial or productive use of the land. Thus, a taking occurred within the meaning of the Fifth Amendment and plaintiffs were entitled to just compensation for the fifty-five acres of land affected by the regulation.
m
Defendant next argues that the Court of Claims erred in rejecting its option to cure the taking by permitting implementation of the Goga Plan.
Plaintiffs first submitted an application on May 28, 1988, regarding development of parcel 1. On November 7, 1988, defendant denied a permit to develop the property because twenty-eight acres of the parcel were determined to be protected wetlands. Plaintiffs then filed their complaint on December 29, 1988. Thereafter, William Goga, a civil engineer retained by plaintiffs, developed a mitigation plan. He proposed that some wetlands be filled in parcel 1, but that wetlands could be created in the parcel from nonwetlands area. This plan was submitted to defendant in April 1990. Defendant rejected this plan and denied the subsequent permit application based on Goga’s plan in July 1990.
Trial in this matter was held on December 17, 1991. On November 5, 1992, the Court of Claims issued an opinion and order in which it found that a taking had occurred because plaintiffs were denied all economically beneficial or productive use of the land because of the permit denial. It was not until after this determination that defendant agreed to accept the Goga Plan. The Court of Claims issued a second opinion and order, dated May 4, 1993, which mainly dealt with various compensation issues. The Court of Claims specifically found that defendant was entitled to accept the Goga Plan pursuant to MCL 281.721(3)(c); MSA 18.595(71)(3)(c). This provision specifically allowed defendant to modify its action so as to minimize the detrimental effect to the property’s value after the court determined that defendant’s action constituted a taking. The Court of Claims found no objection to this approach. The Court of Claims then stated that those portions of the property defined as being part of the Goga Plan could be exempted from the taking, while those portions that were to be transformed into wetlands would be considered to be condemned.
In considering what constituted just compensation, the Court of Claims ruled that plaintiffs would be awarded interest and fair market value of the portion of land actually condemned. The court specifically did not include that portion of the land that could still be commercially developed under the Goga Plan. Thus, defendant’s characterization of the Court of Claims’ action as being a rejection of defendant’s decision to accept the Goga Plan is not supported by the record.
Further, we cannot agree with defendant’s contention that its decision to offer a permit for the Goga Plan eliminates the taking. The Court of Claims found, and we agree, that there was an unconstitutional taking in this case due to the regulation of the wetlands area. It was not until after a finding by the Court of Claims that defendant decided to accept implementation of the Goga Plan. However, this action does not eliminate a taking. As the Court of Claims correctly determined, twenty-seven acres of the parcel were temporarily taken and twenty-eight acres were permanently taken.
In First English Evangelical Lutheran Church of Glendale v Los Angeles Co, 482 US 304, 321; 107 S Ct 2378; 96 L Ed 2d 250 (1987), the Supreme Court held that where the government’s activities have created a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective. Such “temporary takings” are also entitled to just compensation.
Therefore, we find that the Court of Claims did not err in awarding compensation. The court properly found that there was a temporary taking concerning part of the land and a permanent taking concerning the remaining portion of the land. Thus, the court’s order awarding compensation complied with MCL 281.721(4); MSA 18.595(71)(4) in that it found a temporary taking concerning part of the land that could be developed under the Goga Plan.
IV
Next, defendant contends that the trial court erred in finding MCL 281.721(4); MSA 18.595(71)(4) unconstitutional in that it violated the Just Compensation Clauses of the Fifth Amendment and Const 1963, art 10, § 2.
The Court of Claims did not err in finding that § 21(4) is unconstitutional because it limits plaintiffs’ recovery to twice the state equalized value of the property taken. Both the federal and state constitutions provide that private property cannot be taken for public use without just compensation. Just compensation means the full monetary equivalent of the property taken. Almota Farmers Elevator & Warehouse Co v United States, 409 US 470, 473; 93 S Ct 791; 35 L Ed 2d 1 (1973). Just compensation is that amount that places a property owner in a condition as good as the owner would have been had the taking not occurred. Id.; Oakland Hills Development Corp v Lueders Drainage District, 212 Mich App 284, 292-293; 537 NW2d 258 (1995).
The determination of the measure of just compensation for a taking is a judicial, not a legislative, question. United States v Sioux Nation of Indians, 448 US 371, 417, n 30; 100 S Ct 2716; 65 L Ed 2d 844 (1980), citing Monongahela Navigation Co v United States, 148 US 312, 327; 13 S Ct 622; 37 L Ed 463 (1893). Because the determination of the proper measure of compensation for a taking is solely a judicial question, the Legislature may not restrict the measure of just compensation in a takings case. Baltimore & O R Co v United States, 298 US 349, 368; 56 S Ct 797; 80 L Ed 1209 (1936). Thus, statutes that set forth the compensation rate for a taking, such as MCL 281.721(4); MSA 18.595(71)(4), are unconstitutional. See Baltimore & O R Co, supra; Monongahela, supra.
Because MCL 281.721(4); MSA 18.595(71)(4) mandates the method of computing just compensation for a taking, the Court of Claims correctly held that it is unconstitutional.
v
Last, defendant argues that the Court of Claims awarded excessive damages for the taking. We disagree.
The purpose of just compensation is to put property owners in as good a position as they would have been had their property not been taken from them. Miller Bros, supra, p 685. The public must not be enriched at the property owner’s expense, but neither should the property owner be enriched at the public’s expense. Id. There is no formula or artificial measure of damages applicable to all condemnation cases. The amount of damages to be recovered by the property owner is generally left to the discretion of the trier of fact after consideration of the evidence presented. Poirier v Grand Blanc Twp (After Remand), 192 Mich App 539, 543; 481 NW2d 762 (1992).
In avoiding a windfall to the property owner, the nature of the taking must be considered. Where there is a temporary taking, the just compensation awarded must reflect its temporary nature. Miller Bros, supra, p 687. This Court has recognized that money damages are recoverable for a temporary, unconstitutional taking. Courts should engage in a flexible approach in determining compensation for a temporary taking. Some factors to consider are: rental return, option price, interest on lost profit, before and after valuation, and benefit to the government. Poirer, supra, pp 544-545.
The Court of Claims awarded $3,245,256 and interest of $1,574,522.60 for the property taken. The Court of Claims also awarded $459,400 for the temporary taking of the property. The court’s award of damages is based on the evidence presented and does not appear to be an abuse of discretion. In this case, because of the difficulty in determining the fair market value of the land with the use restrictions placed on it, the court appears to have engaged in a flexible approach in computing damages. Defendant has not shown that the Court of Claims’ computation of damages was erroneous or excessive.
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] |
Fitzgerald, P.J.
The prosecutor appeals as of right the June 15, 1994, order setting aside defendant’s 1984 conviction of delivery of between 50 and 224 grams of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401) (2)(a)(iii), pursuant to MCL 780.621; MSA 28.1274 (101). We reverse.
Defendant was charged with delivery of between 50 and 224 grams of cocaine and conspiracy to deliver between 50 and 224 grams of cocaine. Pursuant to a plea agreement in which the conspiracy charge was dismissed, defendant pleaded guilty of delivery of between 50 and 224 grams of cocaine on July 26, 1984. He was sentenced to lifetime probation. On May 4, 1994, he filed an application to set aside the conviction. A review of the record of the hearing on the application reveals that defendant had no convictions for ten years following his conviction and had no outstanding charges. The trial court entered an order setting aside the conviction on June 14, 1994.
On appeal, the prosecutor argues that the trial court abused its discretion in setting aside defendant’s conviction. A trial court’s authority to expunge a properly obtained criminal conviction is derived from MCL 780.621; MSA 28.1274(101). People v Boynton, 185 Mich App 669, 671; 463 NW2d 174 (1990). The expungement statute provides:
(1) Except as provided in subsection (2), a person who is convicted of not more than 1 offense may file an application with the convicting court for the entry of an order setting aside the conviction.
(2) A person shall not apply to have set aside, nor may a judge set aside, a conviction for a felony for which the maximum penalty is life imprisonment or a conviction for a traffic offense.
(3) An application shall not be filed until the expiration of 5 years following the imposition of the sentence for the conviction that the applicant seeks to set aside or 5 years following completion of any term of imprisonment for that conviction, whichever occurs later.
* * *
(9) If the court determines that the circumstances and behavior of the applicant from the date of the applicant’s conviction to the filing of the application warrant setting aside the conviction and that setting aside the conviction is consistent with the public welfare, the court may enter an order setting aside the conviction. The setting aside of a conviction under the act is a privilege and conditional and is not a right. [MCL 780.621; MSA 28.1274(101).]
The expungement statute specifically prohibits the setting aside of a conviction for a felony for which the maximum penalty is life imprisonment or a conviction for a traffic offense. Delivery of between 50 and 224 grams of cocaine is an expungeable offense because it is not one of the offenses specifically listed in § 621 for which expungement is not available. The prosecutor argues, however, that MCL 771.2(3); MSA 28.1132(3) precludes the trial court from expunging a conviction under MCL 333.7401(2) (a) (iii); MSA 14.15(7401)(2)(a)(iii) for which a sentence of lifetime probation was imposed.
At the time of defendant’s sentencing, the trial court had the option of imposing a sentence of lifetime probation for a conviction under MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). It is clear, by reference to the probation statute, that lifetime probation imposed for a violation of § 7401(2)(a)(iii) may not be reduced other than by a revocation that results in imprisonment. The probation statute provides in relevant part:
The sentencing judge may place a defendant on life probation pursuant to subsection (1) if the defendant is convicted for a violation of section 7401(2)(a)(iv)[ ] or 7403(2)(a)(iv) of the public health code, Act No. 368 of the Public Acts of 1978, being sections 333.7401 or 333.7403 of the Michigan Compiled Laws, or conspiracy to commit either of those 2 offenses. [MCL 771.1(4); MSA 28.1131(4).]
A defendant who is placed on probation pursuant to section 1(4) of this chapter shall be placed on probation for life. That sentence shall be made subject to conditions of probation specified in section 3 of this chapter, including the payment of a probation supervision fee as prescribed in section 3c of this chapter, and to revocation for violation of those conditions, but the period of probation shall not be reduced other than by a revocation that results in imprisonment. [MCL 771.2(3); MSA 28.1132(3) (emphasis added).]
The primary goal of judicial interpretation of statutes is to give effect to the intent of the Legislature. People v Stanaway, 446 Mich 643, 658; 521 NW2d 557 (1995), cert den 513 US _ (1995). The first criterion in determining intent is the specific language of the statute. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993); People v Hawkins, 181 Mich App 393, 396; 448 NW2d 858 (1989). If the plain and ordinary meaning of the language is clear, judicial construction is normally neither permitted nor necessary. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992).
The plain language of MCL 771.2(3); MSA 28.1132(3) provides that a sentence of lifetime probation imposed pursuant to MCL 771.1(4); MSA 28.1131(4) may not be reduced other than by a revocation that results in imprisonment. Thus, although MCL 780.621; MSA 28.1274(101) does not specifically prohibit the setting aside of a conviction under § 7401(2)(a)(iii), the probation statute prohibits reduction of the period of probation imposed for a conviction under § 7401(2)(a)(iii). Because expungement of defendant’s conviction under the general expungement statute would effectively reduce defendant’s period of probation in derogation of the specific probation statute, the trial court erred in set ting aside defendant’s conviction under MCL 780.621; MSA 28.1274(101).
Reversed and remanded for reinstatement of defendant’s conviction and sentence.
Corrigan, J., concurred.
In People v Reed, 198 Mich App 639, 642-645; 499 NW2d 441 (1993), aff’d 449 Mich 375; 535 NW2d 496 (1995), the Court held that it had jurisdiction to hear a prosecutor’s appeal when a trial court has granted a defendant relief from judgment. Under the express language of MCL 600.308(l)(a); MSA 27A.308(l)(a) and MCL 600.308(2)(e); MSA 27A.308(2)(e), the prosecutor could have appealed by right or by leave.
At the time of defendant’s conviction, the trial court had discretion to impose a sentence of lifetime probation for delivery of between 50 and 224 grams of cocaine. However, lifetime probation may no longer be imposed upon conviction of this offense. See 1987 PA 275, effective March 30, 1988.
The former version of the statute referred to § 7401(2)(a)(iü). The current version refers to § 7401(2)(a)(iv) because § 7401(2)(a)(iii) no longer provides the sentencing option of lifetime probation. Rather, only § 7401(2)(a)(iv) provides the sentencing option of lifetime probation.
When two statutes conflict and one is specific to the subject matter while the other is only generally applicable, the specific statute prevails. Gephardt v O’Rourke, 444 Mich 535, 542-543; 510 NW2d 900 (1994); Jenkins v Carney-Nadeau Public School, 201 Mich App 142, 145; 505 NW2d 893 (1993). | [
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Per Curiam.
Defendant Parkhurst Homes, Inc,* appeals as of right the circuit court’s order granting mediation and offer of judgment costs and attorney fees to plaintiff. We affirm in part, reverse in part, and remand in part.
Plaintiff filed a complaint against defendants, Parkhurst and Gregory Morris, for breach of contract and misrepresentation arising out of a contract for the sale of two modular homes and development of residential property. On March 12, 1993, defendants filed a counterclaim against plaintiff alleging breach of contract. On November 8, 1993, mediation was held. The mediation panel awarded plaintiff $15,000 against defendants and awarded defendants $5,000 on the counterclaim. All parties rejected the mediation awards.
On November 24, 1993, defendants jointly made an offer of judgment to plaintiff in the amount of $750. On December 13, 1993, plaintiff rejected the offer and made a counteroffer in the amount of $125,000, which defendants rejected.
Trial in the matter commenced on August 1, 1994. Following trial, the jury rendered a verdict in favor of plaintiff. The jury awarded plaintiff $4,350 against Parkhurst and $60,000 against Morris. The jury found no cause of action with respect to defendants’ counterclaim. A judgment was entered in favor of plaintiff for $4,775.79 against Parkhurst and $65,873.27 against Morris.
Plaintiff then brought a motion for sanctions against defendants pursuant to MCR 2.403 and MCR 2.405. Plaintiff claimed that the final judgment against defendants was more favorable to plaintiff than the average offer of judgment and that Parkhurst failed to improve its position by ten percent from that it would have had under the rejected mediation evaluation. Plaintiff listed its costs as follows: witness fees and subpoena costs, $172; reading depositions into the record, $485 and $97.25; obtaining certified copies of criminal convictions, $22; filing, $348; expert witness fees, amount not specified; and, attorney fees, $46,406.
Parkhurst also brought a motion for sanctions and attorneys fees against plaintiff. Parkhurst claimed that because the jury only rendered a verdict of $4,350 against it, the judgment was more favorable to it than the average offer of judgment, and that plaintiff had not bettered its position by ten percent with regard to the mediation evaluation. Parkhurst argued that because each defendant was entitled to separate treatment of its respective verdict, plaintiff was not entitled to sanctions against it.
In resolving this issue, the trial court, in pertinent part, stated:
Defendants admit that, in regard to Gregory Morris plaintiff did better than its earlier position as a result of the litigation, but claim that it did not do so with regard to Parkhurst. Defendants say that this court should not consider both awards against these defendants together when determining the outcome of these cross motions.
The resolution of these motions for costs and attorney fees is within the sound discretion of the court. . . .
The evidence in this case showed, and the jury so found from the evidence that the defendants each breached their agreement with J.C. Building. Defendants try to argue that they should be treated individually in determining if the plaintiff had bettered its position as a result of the litigation under MCR 2.405. But prior to trial and after mediation an offer of judgment was made jointly on behalf of both defendants in the amount of $750. A counter offer of judgment was then made to both defendants on behalf of the plaintiff in the amount of $125,000. Thus, the average offer as to both defendants jointly is $62,875.00. The verdicts against both defendants total $70,648.96. The defendants here chose to make their offer jointly. Having done that, they now cannot escape being treated jointly for sanctions under the offer of judgment rule.
In addition, the defendants factually have a common interest for the purposes of this cause of action. Gregory Morris is the hired agent of Parkhurst. When J.C. Building wanted to make contact with Parkhurst it did so through Gregory Morris and then Gregory Morris in turn relayed information between Parkhurst and J.C. Building. If there was a problem with Gregory Morris’s performance, it was Parkhurst that had the power to address it. This communication network that was accepted by the parties, in the dealings and the control that Parkhurst exercised over Gregory Morris as its agent in its dealings demonstrate that both defendants were operating with one common purpose in their activities that are [the] subject of this action.
Therefore, plaintiff will be awarded $2,666.25 in costs and $46,406.00 in attorney fees as sanctions in this action.
On appeal, Parkhurst challenges the trial court’s award of costs and attorney fees in favor of plaintiff, arguing that Parkhurst should be treated separately from Morris. When there has been both the rejection of the mediation award pursuant to MCR 2.403 and a rejection of an offer of judgment under MCR 2.405, the costs provisions of the rule under which the later rejection occurred control. MCR 2.405(E); Zantop Int’l Airlines, Inc v Eastern Airlines, 200 Mich App 344, 366; 503 NW2d 915 (1993). Because the rejection of the offer of judgment occurred after the rejection of the mediation evaluation, MCR 2.405 applies in this case. This Court reviews a trial court’s decision to award sanctions under MCR 2.405 for an abuse of discretion. Cole v Eckstein, 202 Mich App 111, 117; 507 NW2d 792 (1993).
MCR 2.405(D), in relevant part, provides:
If an offer is rejected, costs are payable as follows:
(1) If the adjusted verdict is more favorable to the offeror than the average offer, the offeree must pay to the offeror the offeror’s actual costs incurred in the prosecution or defense of the action.
(2) If the adjusted verdict is more favorable to the offeree than the average offer, the offeror must pay to the offeree the offeree’s actual costs incurred in the prosecution or defense of the action. However, an offeree who has not made a counteroffer may not recover actual costs.
(3) The court shall determine the actual costs incurred. The court may, in the interest of justice, refuse to award an attorney fee under this rule.
Parkhurst contends that the trial court improperly aggregated the defendants’ individual verdicts to determine whether costs could properly be awarded. We agree with the trial court’s reasoning that Parkhurst chose to present the offer of judgment jointly and therefore should be bound by this action. Parkhurst claims that it argued joint and several liability with Morris. However, there is nothing in the record that supports this argument. In fact, the record fully supports that throughout this entire action, defendants acted jointly. Defendants filed a joint answer, a joint counterclaim, a joint witness list, a joint motion for partial summary disposition, and a joint offer of judgment. Furthermore, Morris was an agent or employee of Parkhurst because he signed all the contracts and documents on behalf of Parkhurst. Defendants were also treated jointly by the plaintiff, as evidenced by defendants being lumped together in the complaint, with each count brought against all defendants. Moreover, it appears that plaintiff did not of its own volition choose to treat the defendants jointly. Defendants had answered the complaint jointly, filed a joint counterclaim, and made a joint offer of judgment. Plaintiff simply responded in like kind to the offer of judgment.
Parkhurst also contends that the language of MCR 2.405 regarding an offer of judgment is worded in the singular fashion referring to “an adverse party” and to the “offeror.” However, as noted by Parkhurst, this Court has applied MCR 2.405 either to allow or to deny sanctions in situations where offers of judgment were made jointly by multiple plaintiffs or defendants. Fischer v Chez Ami Lanes, 212 Mich App 19; 536 NW2d 840 (1995); Magnuson v Zadrozny, 195 Mich App 581; 491 NW2d 258 (1992); Brooks v Gough, 189 Mich App 623; 473 NW2d 771 (1991). Although Parkhurst notes that the fact that the parties were treated jointly was not a contested issue in these cases, this Court nevertheless has impliedly recognized and upheld joint offers of judgment and the aggregating of verdicts for determination of sanctions. We therefore find that the trial court in this case did not abuse its discretion by aggregating the verdicts, and the award of costs was proper.
Parkhurst also challenges the reasonableness and the appropriateness of the costs and attorney fees pursuant to MCR 2.625 and MCR 2.405. This Court will reverse a trial court’s award of attorney fees or costs only for an abuse of discretion. Haberkorn v Chrysler Corp, 210 Mich App 354, 379; 533 NW2d 373 (1995); Ecclestone, Moffett & Humphrey, PC v Ogne, Jinks, Alberts & Stuart, PC, 177 Mich App 74, 77; 441 NW2d 7 (1989).
Parkhurst claims that plaintiff failed to follow the proper procedure for taxation of costs by failing to file a bill of costs as required by MCR 2.625(G). However, MCR 2.625(F), in pertinent part, provides:
(1) Costs may be taxed by the court on signing the judgment, or may be taxed by the clerk as provided in this subrule.
(2) When costs are to be taxed by the clerk, the party entitled to costs must, within 28 days after the judgment is signed, or within 28 days after entry of an order denying a motion for new trial or to set aside the judgment, present to the clerk
(a) a bill of costs conforming to subrule (G),
(b) a copy of the bill of costs for each other party, and
(c) a list of the names and addresses of the attorneys for each party or of parties not represented by attorneys.
The trial court in this case signed the judgment as prescribed under MCR 2.625(F)(1). Therefore, plaintiff was not required to file a bill of costs under MCR 2.625(G).
Parkhurst next contends that several of the items of costs allowed by the court were not recoverable because there was no statutory authority. Specifically, Parkhurst challenges three costs that were awarded: certified copies of Morris’ criminal conviction, $22; mediation fee, $150; and exhibit enlargement, $168. The power to tax costs is wholly statutory. Herrera v Levine, 176 Mich App 350, 357; 439 NW2d 378 (1989). Taxation of costs and allowable fees is governed by MCL 600.2401 et seq.) MSA 27A.2401 et seq. and MCL 600.2501 et seq.) MSA 27A.2501 et seq. Neither of these chapters contains provisions for these particular costs. Costs are not recoverable where there is no statutory authority. Herrera, supra. Because there is no statutory authority allowing the costs for certified copies of Morris’ criminal conviction, the mediation fee, and the exhibit enlargement, we reverse the award of costs for those items.
Parkhurst also argues that the court rule allows for an award of reasonable attorney fees in the singular, not the plural, and that the award of attorney fees for the work of several different attorneys was improper. We disagree. Plaintiff was represented by only one law firm. The affidavit of E. Michael Morris, the principal attorney on the case, verifies the time spent on the case. Where a law firm handles a case, it is not illogical that more than one attorney from that firm may work on the case. We therefore find that it was not unreasonable for the trial court to award attorney fees that included time for work for several attorneys from one law firm on a single case.
Parkhurst next challenges the trial court’s failure to make findings relative to the reasonableness of the fees. In making its determination, the trial court stated:
The Court finds that such amounts are reasonable in light of the proofs that have been submitted, including an itemized summary of time and a supporting affidavit.
There is no precise formula for computing the reasonableness of an attorney’s fee. Crawley v Schick, 48 Mich App 728; 211 NW2d 217 (1973). However, the factors to be taken into consideration in determining the reasonableness of a fee include, but are not limited to, the following:
(1) the professional standing and experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the client. [Id., p 737.]
The Michigan Supreme Court adopted the Crawley standard in Wood v DAIIE, 413 Mich 573, 588; 321 NW2d 653 (1982).
We note that the court need not detail its findings relative to each specific factor considered. Id. However, in the present case, the trial court considered none of the Crawley factors on the record. Instead, the trial court found that “such amounts are reasonable in light of the proofs that have been submitted.” On the basis of the record, we are not satisfied that the trial court considered the appropriate factors in determining the reasonableness of the attorney fees. We, therefore, reverse the trial court’s award of attorney fees and remand for a hearing regarding the reasonableness and appropriateness of the attorney fees.
Next, Parkhurst claims that the trial court improperly awarded fees that dated back to the mediation. We agree in part. The claimed attorney services included a total of one-half hour of time attributable to the period before the date that was the deadline for the rejection or the acceptance of the mediation evaluation. Attorney fees incurred before the deadline for the acceptance or rejection of a mediation evaluation are not taxable costs pursuant to MCR 2.403(0). Taylor v Anesthesia Associates of Muskegon, PC, 179 Mich App 384, 386; 445 NW2d 525 (1989). The trial court in this case awarded attorney fees for one-half hour of time incurred in the delivery of a copy of a settlement agreement one day after entry of the mediation evaluation. We find that this was an improper taxation of costs because the twenty-eight-day period for accepting or rejecting the mediation evaluation had not expired. Id.
Parkhurst also challenges an additional 5.3 hours of time that occurred before the final rejection of plaintiff’s counteroffer. This challenge is without merit. Under MCR 2.405(E), if both the mediation rule and the offer of judgment rule would apply and the same party would be entitled to costs under both rules, costs may be recovered from the date of the earlier rejection. We have concluded that plaintiff was entitled to costs under MCR 2.405. For the same reasons, plaintiff is entitled to costs under MCR 2.403. Again, because the parties were treated jointly throughout the case, the verdicts should be aggregated for deter mination whether the verdict was more favorable to plaintiff. Moreover, MCR 2.403(O)(4)(b) indicates that in a multiple party situation where the mediation was not joint but the later verdict was, the verdict must be more favorable to the plaintiff than the total mediation with respect to those defendants for the plaintiff to recover costs. Therefore, the separate mediation awards are aggregated. We find that the same logic should apply to the facts in this case. The mediation evaluation was aggregated to be a total of $15,000 less than the $5,000 award on the counterclaim. Likewise, the verdicts should be aggregated to total $70,649. Plaintiff had clearly bettered its position between the mediation evaluation and the verdict by more than ten percent. Accordingly, because plaintiff would have been entitled to mediation sanctions under MCR 2.405(E), the costs should date back to the earlier rejection that would have occurred at the latest on December 6, 1993, twenty-eight days after the November 8, 1993, mediation.
Parkhurst finally argues that it is entitled to costs and attorney fees pursuant to MCR 2.405(A)(6), because the adjusted verdict against Parkhurst in the amount of $4,775 was more favorable to Parkhurst than the actual offer. We disagree.
Regarding Parkhurst’s claim for costs on the basis that the individual verdict against it was more favorable to it, we have concluded that this argument is without merit. Under the facts of this case, the verdicts rendered should be aggregated when determining whether sanctions should be awarded. Even if Parkhurst’s claims for costs related to its counterclaim, the jury returned a verdict of no cause of action with respect to the counterclaim, which is not more favorable to Parkhurst than either the mediation evaluation or the average offer of judgment. We therefore conclude that the trial court did not abuse its discretion in denying Parkhurst costs and attorney fees.
We affirm with respect to the trial court’s determination that plaintiff is entitled to costs and attorney fees under MCR 2.405, but vacate that part of the award of costs that was for certified copies of the record of Morris’ criminal conviction, the mediation fee, the exhibit enlargement, and the one-half hour of attorney time that was incurred on the day after the mediation evaluation was rendered, set aside the remaining award of attorney fees, and remand for a hearing with respect to the reasonableness of those remaining attorney fees.
Better Housing is an assumed name for Parkhurst Homes, Inc.
Defendant Gregory Morris is also listed as an appellant in this action. However, Parkhurst’s brief indicates that Morris has not filed a claim of appeal. | [
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Corrigan, J.
In this property tax dispute, respondent City of Rochester Hills appeals of right the order of the Michigan Tax Tribunal exempting from taxation city-owned property leased by petitioner Golf Concepts. We reverse.
Respondent Rochester Hills owns nearly two hundred acres that petitioner leased in 1986 for thirty-nine years. Petitioner is a private, for-profit corporation that operates the Pine Trace Golf Course on the land. For tax purposes, the property is divided into three parcels: (1) land comprising 110.75 acres — parcel 15; (2) land comprising 76.95 acres — parcel 17; and (3) buildings and improvements made by petitioner — parcel 700. The lease provides that upon termination, petitioner must surrender the property to respondent for no consideration. Respondent must, however, reimburse petitioner for the fair market value of all golf course equipment, maintenance and office equipment, and trade fixtures and furnishings.
For the tax years 1992, 1993, and 1994, respondent determined that the parcels were exempt from ad valorem taxes because the land was owned by respondent and was used for a public purpose. MCL 211.7m; MSA 7.7(4j). Respondent nonetheless determined that the value of the land was taxable to petitioner under the lessee-user tax act, MCL 211.181; MSA 7.7(5). Under that statute, respondent assessed the two land parcels at $958,000 for the years 1992 through 1994. Respondent found the structures and improvements taxable as personal property under MCL 211.8; MSA 7.8, and assessed parcel 700 at $723,000 for those years.
When petitioner contested the tax assessments, the Michigan Tax Tribunal concluded that parcel 700 was not taxable as personal property. The tribunal ruled that the buildings and improvements of parcel 700 were real property and, because respondent Rochester Hills owned the land and its improvements, the property was exempt from taxation. The Tax Tribunal also determined that parcels 15 and 17 comprised a public park and that petitioner operated the golf course as a concession under MCL 211.181(2)(b); MSA 7.7(5) (2) (b); therefore, the parcels were tax exempt. Respondent appeals.
Respondent first argues that the Tax Tribunal should not have found that the golf course falls within the concession exemption of the lessee-user tax act, MCL 211.181; MSA 7.7(5). Appellate review of Tax Tribunal decisions is limited to deciding if the tribunal’s factual findings are supported by competent, material, and substantial evidence. In the absence of fraud, this Court reviews whether the Tax Tribunal made an error of law or adopted an incorrect legal principle. Gillette Co v Dep’t of Treasury, 198 Mich App 303, 306; 497 NW2d 595 (1993).
The lessee-user tax act provides, in pertinent part:
When any real property which for any reason is exempt from ad valorem property taxation is leased, loaned, or otherwise made available to and used by a private individual, association, or corporation in connection with a business conducted for profit, the lessees or users of this real property shall be subject to taxation in the same amount and to the same extent as though the lessee or user were the owner of this real property. [MCL 211.181(1); MSA 7.7(5)(1) (emphasis added).]
The act seeks to eliminate the unfair advantage that private-sector users of tax-exempt property would otherwise brandish over their competitors who lease property that is privately owned. Seymour v Dalton Twp, 177 Mich App 403, 410; 442 NW2d 655 (1989).
An exception to the above statute arises when the property is used as a concession. The lessee-user tax does not apply to “[property which is used as a concession at a public airport, park, market, or similar property and which is available for use by the general public.” MCL 211.181(2)(b); MSA 7.7(5)(2)(b). Therefore, to qualify for the exemption, the golf course must be at a public park and must be used as a concession.
Our Supreme Court has previously ruled that a golf course that was operated by a city recreation department and supported by tax monies fell within the definition of a public park. Detroit v Oakland Co, 353 Mich 609, 617; 92 NW2d 47 (1958). Although supported by user fees rather than tax monies, the golf course in this case was “equally available to all members of the public without discrimination.” The Tax Tribunal found that the course was designed for the benefit of the citizens of Rochester Hills. This finding is supported by competent, material, and substantial evidence. The golf course is thus within the definition of a public park.
The question remains whether the golf course is a concession such that petitioner is entitled to a tax exemption. To answer this inquiry, we must interpret the meaning of the lessee-user tax act section quoted above. Statutory interpretation is a question of law subject to review de novo on appeal. DeKoning v Dep’t of Treasury, 211 Mich App 359, 361; 536 NW2d 231 (1995). This Court customarily defers to the longstanding construction of statutory provisions by a particular department of government. Bachman v Dep’t of Treasury, 215 Mich App 174, 182; 544 NW2d 733 (1996). Nonetheless, the longstanding interpretation of a statute by the agency that administers it does not control where the agency’s interpretation is clearly wrong. Id. Further, courts should strictly construe exemption provisions in favor of the taxing unit because an exemption removes the burden on the exempt landowner to share in the support of local government; in essence, “exemption is the antithesis of tax equality.” Michigan Baptist Homes & Development Co v Ann Arbor, 396 Mich 660, 669-670; 242 NW2d 749 (1976); Chauncey & Marion Deering McCormick Foundation v Wawatam Twp (After Remand), 196 Mich App 179, 182; 492 NW2d 751 (1992).
The primary goal when courts construe statutes is to ascertain and give effect to legislative intent. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993); State Treasurer v Schuster, 215 Mich App 347; 547 NW2d 332 (1996). This Court should first look to the specific statutory language to determine the intent of the Legislature. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). The Legislature is presumed to intend the meaning that the statute plainly expresses. Vargo v Sauer, 215 Mich App 389; 547 NW2d 40 (1996). Judicial construction of a statute is not permitted where the plain and ordinary meaning of the language is clear. Tryc v Michigan Veterans’ Facility, 451 Mich 129; 545 NW2d 642 (1996); Dep’t of Treasury v Comerica Bank, 201 Mich App 318, 322; 506 NW2d 283 (1993).
In Detroit v Tygard, 381 Mich 271; 161 NW2d 1 (1968), our Supreme Court analyzed the term “concession” in the statute that preceded the statute at issue in this case. The Court first examined the dictionary definition, which at that time provided that a concession was “[a] privilege or space granted or leased for a particular use within specified premises.” The Court noted that a privilege exclusively granted is distinguishable from a more general type of permissive use. The Court added that a concession invoked “the concept of specific obligation on the part of the privileged party to maintain particular services at specified times.” Id. at 275. The Court stated that in return for the granted privilege, an obligation necessarily arises. Id. at 276.
This Court has already grappled with this same issue in Seymour, supra. In that case, the respondent township granted the petitioner the right to the exclusive use, control, and operation of a golf course on property owned by the township. This Court decided that the petitioner had not established that the golf course was a concession, although the parties’ agreement specifically reflected their intent to structure the course as a concession. The agreement also provided that the petitioner could terminate the agreement if the exemption from the lessee-user tax was not realized. Id. at 406.
The Court in Seymour decided that the golf course was not a concession because the agreement did not impose obligations and restrictions upon the petitioner that were stated with specificity. The Court noted that conspicuously absent were requisite terms, such as (1) minimum hours, (2) standards of service, or (3) oversight of operations by the city. The Court stated that the petitioner had an “unacceptable degree of discretion” to run the course, and did not have “the imposition of obligations directed toward the fulfillment of a public puipose.” Id. at 409.
Additionally, the Court addressed whether a concession must be incidental to, and subsumed by, the larger public purpose of the granting governmental entity. Id. at 409-410. The Court stated that the concessionaire is required to offer services that have a reasonable relationship to the purposes of the granting entity. If that entity merely privatizes its entire operation, then a tax exemption would be contrary to the broader purpose of the lessee-user tax. Id. at 410.
In this case, the Tax Tribunal erred as a matter of law in ruling that the golf course was a concession. The provisions in the lease contract between the parties do not rise to the level of specific obligations on the part of petitioner, the privileged party, to maintain particular services at specified times. The provisions do not include requirements for minimum hours of operation, for petitioner’s standards of service, or for respondent’s oversight of the golf course operations. While the lease provisions demonstrate that respondent had some control over the operations, the provisions address broader management issues rather than specific obligations. For example, the lease in this case provides that respondent has the right to change the prices charged by petitioner. The Seymour Court observed, however, that the “[oversight of fees charged to the public is not strenuous.” Id. at 409. likewise, in this case respondent had the right to inspect and regulate the maintenance of the property. The Seymour Court stated that the maintenance was consistent with the city’s goal in protecting the property and that it did not exact a specific term or service for the public benefit. Id.
Also, the record does not contain evidence that the purpose of the golf course was reasonably related to the public purposes of respondent city. It appears that respondent merely privatized the operation of the golf course, thereby permitting petitioner to have an unfair advantage over entities leasing privately owned property. Granting a concession exemption to petitioner’s golf course would thus be contrary to the purpose of the lessee-user tax act. Given our resolution of this issue, we need not address whether a concession can comprise the entirety of a privatized, city-owned operation, an issue the parties raised in their supplemental briefs.
Respondent next contends that the Tax Tribunal incorrectly determined that the buildings and leasehold improvements constituted real property. Michigan statutory law provides for a tax exemption for property owned by local governmental units and agencies. MCL 211.7m; MSA 7.7(4j). Respondent asserts that the tribunal should have ruled that the improvements were petitioner’s personal property. Personal property owned by a lessee is not tax exempt, as provided in the following statute:
For the purposes of taxation, personal property shall include:
* * #
(d) All buildings and improvements located upon leased lands, except where the value of the real property is also assessed to the lessee or owner of those buildings and improvements.
í¡í }|?
(h) During the tenancy of a lessee, leasehold improvements and structures installed and constructed on real property by the lessee, provided and to the extent the improvements or structures add to the true cash value of the real property notwithstanding that the real property is encumbered by a lease agreement, and the value added by the improvements or structures is not otherwise included in the assessment of the real property or not otherwise assessable under subdivision (j). The cost of leasehold improvements and structures on real property shall not be the sole indicator of value. Leasehold improvements and structures assessed under this subdivision shall be assessed to the lessee. [MCL 211.8(d),(h); MSA 7.8(d),(h).]
Consistent with the above statute, the improvements to the property constitute personal property for tax purposes. Kalamazoo Aviation History Museum v City of Kalamazoo, 131 Mich App 709, 712, n 2; 346 NW2d 862 (1984). The Legislature designed the above statute to collect taxes on buildings located on leased lands:
The obvious purpose of the Legislature in the enactment of the above statute was to reach for taxation buildings erected on state lands, such as airports, federal and state lands or any other lands where title to the underlying properties remains in the owners and the use is granted by, usually, long-term ground leases. The purpose of this statute is not to define what is personal properly. [Dick & Don’s Greenhouses, Inc v Comstock Twp, 112 Mich App 294, 298; 315 NW2d 573 (1982).]
Also, the Legislature did not provide an exemption for buildings on leased property-had it so intended, it would have done so expressly. Id. at 300. As in Dick & Don’s, a strained construction would result if this Court decided that petitioner’s buildings on land leased from Rochester Hills were exempt from tax while petitioner’s competitors’ buildings were not exempt. Id.
Moreover, the parties’ lease contains the following section regarding taxes:
Section 5.5 Taxes:
The premises under this Lease are owned by the city, have been removed from the tax rolls and are not subject to taxation. However, it is contemplated that lessee shall be subject to taxation upon all personal property owned by LESSEE and used on or in connection with the leased premises. Lessee covenants to pay such taxes as may be lawfully assessed against such personal property. Any improvements to the premises made by the city shall not impose any additional personal property taxes on the lessee.
The quoted language indicates that petitioner is responsible for paying taxes on personal property improvements. Improvements made by Rochester Hills, however, are not chargeable to petitioner. It stands to reason, then, that petitioner is responsible for paying taxes on improvements that it makes. Petitioner made the improvements that constitute parcel 700; hence, under the lease, it is responsible for taxes, provided that the improvements are designated personal property for tax purposes.
Apart from a brief reference, the Tax Tribunal did not analyze the above statute defining personal property for tax purposes. Rather, relying on Skybolt Partnership v Flint, 205 Mich App 597; 517 NW2d 838 (1994), the Tax Tribunal determined that petitioner’s buildings and improvements were real property owned by respondent and thus were exempt from taxation. In Skybolt, the City of Flint leased property at an airport to the petitioner. The lease required the petitioner to make permanent improvements that would become Flint’s property at the end of the lease. The petitioner built three hangars and office space. The tribunal ruled that the improvements were real property owned by Flint, and that they were exempt from taxation. Id. at 599. This Court affirmed the tribunal’s holding that the improvements were real property. The Court cited Air Flite & Serv-A-Plane v Tittabawassee Twp, 134 Mich App 73; 350 NW2d 837 (1984). Air Flite relied on the statutory and common-law rule that “buildings placed upon real property become a part of the real property” and the “bundle of sticks” concept of ownership. The Skybolt Court also noted that the improvements were Flint’s property because Flint exerted ultimate control over the property and because the petitioner’s rights as a lessee were strictly limited. Skybolt, supra at 600.
Skybolt is distinguishable from this case because respondent does not exert ultimate control of the property, and because petitioner’s rights as a lessee are not strictly limited. Although petitioner must surrender the property to respondent at the termination of the lease, respondent does not presently have ultimate control over the property. Also, the lease did not strictly limit petitioner’s rights as a lessee. Rather, the lease provided petitioner a high degree of independence in operating the golf course and managing the property. Moreover, neither Skybolt nor Air Flite considered in any detail MCL 211.8; MSA 7.8, which directly affects the decision se.
Respondent finally argues that petitioner’s buildings and improvements, even if not taxable as personal property under MCL 211.8; MSA 7.8, are taxable as personal property under MCL 211.14(5); MSA 7.14(5), which states:
Tangible personal property under the control of a trustee or agent, whether a corporation or a natural person, may be assessed to such trustee or agent in the township where he resides, except as otherwise provided. Personal property mortgaged or pledged shall be deemed the property of the person in possession thereof and may be assessed to him, and personal property not otherwise taxed under this act which is in the possession of any person, firm or corporation using same in connection with a business conducted for profit shall be deemed the property of such person for taxation and assessed to him accordingly.
This section presumes that the property at issue is personal property. The statute provides no assistance in the determination whether the property is personal or real. Thus, the statute does not answer the issue in this case: whether parcel 700 comprises personal or real property for tax purposes. If the property is real, then the above statute does not apply. If the property is personal, then petitioner is responsible for taxes under MCL 211.8(d),(h); MSA 7.8(d),(h). Accordingly, the above section is not material to this case.
Reversed.
The property is located within the district of intervening respondent Avondale School District.
The parties agree that parcels 15 and 17 are exempt from ad valorem taxation under MCL 211.7m; MSA 7.7(4j).
More recently, the word “concession” has been defined as “something conceded by a government or a controlling authority, as a grant of land, a privilege, or a franchise.” An alternative definition is “a space or privilege within certain premises for a subsidiary business or service.” Random House Webster’s College Dictionary (1995), p 281. | [
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Saad, J.
Defendants appeal the $1,016,732.92 judgment entered in favor of plaintiff, Dick Scott* following a jury verdict. Plaintiff cross appeals from the court’s calculation of the present value of the portion of the judgment representing future damages. We affirm the jury verdict in favor of plaintiff and remand for the limited purpose of correcting a clerical error in the judgment.
Plaintiff, a quality control inspector for intervening plaintiff Motor Wheel Corporation, was injured when a polyester strap manufactured and sold by defendants broke while he was tightening it around a palletized load of parts. Plaintiff alleged negligence, as well as breach of both express warranty and implied warranty. After a seven-day trial, the jury, on the general verdict form, returned a verdict for plaintiff.. The court reduced the jury’s award of future damages to present value, using a compound discount method. Following entry of the judgment, defendants moved alternatively for a judgment notwithstanding the ver diet (jnov), a new trial, or remittitur. The lower court denied defendants’ motions, and this appeal followed.
i
Defendants first assert that the trial court erred in permitting this case to go to the jury because, according to defendants, there was insufficient evidence of a causal relationship between the initial injury and the eventual wrist fusion (which resulted in permanent disability). Defendants contend that plaintiff’s case should not have been submitted to the jury because the law requires more than mere speculation or conjecture regarding causation. Here, defendants insist that the best evidence plaintiff could produce concerning causation was, indeed, mere conjecture and speculation. In support of this argument, defendants rely heavily upon plaintiff’s own treating physician, who was, at best, equivocal in his testimony de bene esse about what caused the wrist condition that ultimately required the wrist fusion. In particular, although Dr. Raymond C. Noellert testified that the accident caused an initial fracture of plaintiff’s wrist, he admitted being “less certain” that the subsequent two problems with plaintiff’s wrist (the Kienbock’s disease and the ligament rupture) were caused by the accident.
However, according to Dr. Noellert, after plaintiff’s fracture should have healed, plaintiff continued to experience pain:
[A]fter that point, we started treating him certainly eventually for all three of these, whether he in fact sustained a scaphoid fracture alone, or in combination with the ligament rupture or a bone alone, or in combination with some future damage that occurred to an area of the lunate that may or may not have been present at that time is speculation, as far as I’m concerned, on everybody’s part. No one is ever going to have a definite answer on those questions.
I guess I would also think that if he did have a scaphoid fracture, and if that indeed were the only thing that was the result of the injury, that once it was healed, he should have returned to his original condition. And he did not. So that leads me to believe that somehow the ligament rupture was present in part [on the date of the accident], and was completely ripped, or that somehow his Kienbock’s disease may have been present in part, and may have been aggravated by the accident; but that somehow that traumatic event was significant, you know, in causing or worsening those conditions such that he did not get better after treatment from the scaphoid fracture. Does anyone really know for sure? No.
When reviewing a trial court’s failure to grant a defendant’s motion for a JNOV, testimony and all legitimate inferences therefrom are examined in the light most favorable to the plaintiff. Thorin v Bloomfield Hills Bd of Ed, 203 Mich App 692, 696; 513 NW2d 230 (1994). On the other hand, as stated in Mulholland v DEC Int’l Corp, 432 Mich 395, 416-417, n 18; 443 NW2d 340 (1989), quoting Prosser & Keeton, Torts (5th ed), § 41, p 269:
“The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.”
More recently, our Supreme Court stated that it is insufficient to submit to the jury a causation theory that, while factually supported, is, at best, just as pos sible as another theory. Skinner v Square D Co, 445 Mich 153, 164; 516 NW2d 475 (1994). “Rather, the plaintiff must present substantial evidence from which a jury may conclude that more likely than not, but for the defendant’s conduct, the plaintiff’s injuries would not have occurred.” Id. at 164-165. However, as the Square D Court stated: “ ‘[I]f there is evidence which points to any 1 theory of causation, indicating a logical sequence of cause and effect, then there is a juridical basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence.’ ” Id. at 164, quoting Kaminski v Grand Trunk W R Co, 347 Mich 417, 422; 79 NW2d 899 (1956).
Here, the evidence was very weak that the eventual wrist fusion was the result of a logical sequence of events that began with the accident. Yet, when viewed in the light most favorable to the plaintiff the evidence concerning such causation was marginally sufficient to permit the question of causation to go to the jury. Square D Co, supra at 164, 174; Schutte v Celotex Corp, 196 Mich App 135, 138; 492 NW2d 773 (1992). Therefore, though a close question, the trial court did not err in permitting the case to go to a jury.
n
Defendants next argue that the trial court erred in denying their motion for a new trial, because the overwhelming weight of the evidence established that plaintiff’s wrist could not have been injured in the manner in which he claimed. In reviewing a trial court’s denial of a motion for a new trial, we must be mindful that the functions of the trial court and the appellate court are not identical. The trial court’s function with respect to a motion for a new trial is to determine whether the overwhelming weight of the evidence favors the losing party. Arrington v Detroit Osteopathic Hosp Corp (On Remand), 196 Mich App 544, 564; 493 NW2d 492 (1992). As an appellate court, our function is to determine whether the trial court abused its discretion in making such a finding. Id. Here, there was no such abuse of discretion. While the two orthopedic surgeons (Dr. Noellert and Dr. Waldomar Roeser) agreed concerning the typical cause of a scaphoid fracture, they disagreed with respect to whether such a fracture could have been caused by the accident that plaintiff described. However, nothing in the record indicates that Dr. Noellert lacked credibility to the extent that the trial court should have granted a new trial. This issue is without merit.
in
At trial, defendants moved for a directed verdict on the ground that there was insufficient evidence of breach of an express warranty to permit submission of the claim to the jury. The motion was denied. Defendants raise the same issue on appeal. When reviewing a claim that there was insufficient evidence presented in a civil case, this Court must view the evidence in a light most favorable to the plaintiff and give the plaintiff the benefit of every reasonable inference. Mull v Equitable Life Assurance Society of the United States, 196 Mich App 411, 421; 493 NW2d 447 (1992). If, after viewing the evidence, reasonable people could differ, the question is properly left to the trier of fact. Id.
An express warranty is created by a seller by setting forth a promise or affirmation, description, or sample with the intent that the goods will conform. Guaranteed Construction Co v Gold Bond Products, 153 Mich App 385, 390; 395 NW2d 332 (1986). MCL 440.2313; MSA 19.2313 states in relevant part:
(1) Express warranties by the seller are created as follows:
(a) An affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) A description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
Plaintiff based his express warranty claim on a price quotation given by one of the defendants, that states in relevant part: “1822 TENAX Strapping (800# Break #380 Strength - 6,500’ per coil).” The “#380” portion of the quote is handwritten; the remainder of the quote is typewritten. The “#380” refers to a specification that appears on a separate paper (created by plaintiff’s employer, intervening plaintiff Motor Wheel Corp.) that stated that the “Tenax” polyester strapping is to have “ave. breaking strength: 800 lbs.” Neither the price quote nor the specification mention “splicing.” It is undisputed that the particular piece of strapping that snapped in this case did so at a “spliced” joinder. According to plaintiff, defendants expressly warranted: (1) that the strapping had an eight hundred pound break strength, and (2) that there were no splices.
As a threshold matter, the only express warranty that this evidence supports is a warranty that the strapping was to have an average breaking strength of eight hundred pounds. There was no express statement about splices, and therefore an express warranty that no splices exist cannot be inferred. See Guaranteed Construction, supra at 390. The critical issue therefore, is whether the evidence, viewed in the light most favorable to the plaintiff, was sufficient to permit a rational jury to find a breach of an express warranty that the strapping would have an average breaking strength of eight hundred pounds.
Plaintiff grounds his case on tests conducted by his expert engineer on other pieces of the Tenax strapping, which showed that it broke at less than eight hundred pounds of tension. The actual strap at issue in this case, although preserved, was never tested for its breaking strength. Plaintiffs expert testified that he tested seven other pieces of the polyester strapping:
And this is the result that I got on those seven specimens. . . . you’ll observe that it’s 664, 797, 780 and so on. One got up to 800, but these are also less than these 800 pound break strength.
He also testified that he tested seven samples of spliced strapping, which revealed breaking strengths of 602, 595, 585, 588, 590, 580 and 604 pounds. Viewed in the light most favorable to plaintiff, this is sufficient for a reasonable jury to conclude that the average breaking strength of the Tenax strapping at issue was less than eight hundred pounds. Accordingly, this issue, although close, must be resolved in favor of plaintiff.
iv
Having affirmed the liability verdict, we turn to the question of damages. The jury’s damage award compensated plaintiff for future lost wages for the years 1993 to 2021 inclusive; plaintiff will be seventy-three years old in 2021. Defendants assert that the trial court erred in denying that part of their motion for a jnov, which asserted that there was insufficient evidence to show that plaintiff could have or would have worked until he reached age seventy-three. Defendants’ allegation of error comes too late.
Although the trial court specifically instructed the jury that plaintiff’s life expectancy was seventy-three years, neither plaintiff nor defendants tendered any evidence that plaintiff would have or would not have worked until the day he died. Curiously, there was no specific evidence at all concerning how long plaintiff would have, or could have, worked. As a general principle, a person’s work life is not coterminous with that person’s life expectancy. Kirchgessner v United States, 958 F2d 158, 163 (CA 6, 1992) (discussing calculation of future damages under MCL 600.6305[2]; MSA 27A.6305[2]). However, here defendants did not object to the trial court’s life expectancy instruction, nor did they elicit any evidence that plaintiff would not have, or could not have, worked until he died. Therefore, while we have serious doubts about the propriety of permitting evidence of plaintiff’s life expectancy to be used as the sole basis for calculation of future wage loss, this happened here because defendants failed to object to the court’s instructions and failed to present their own evidence with respect to damages. Goins v Ford Motor Co, 131 Mich App 185, 199; 347 NW2d 184 (1983). We therefore affirm the award of future damages as rendered by the jury.
v
Defendants next allege that the lower court erred in failing to grant remittitur as follows: (1) by reducing the award of future damages by one-third, in light of plaintiffs poor work attendance record, and (2) by reducing the entire award of future damages for the years in which plaintiff will be sixty-six through seventy-three years old (2014 through 2021). The trial court’s decision with respect to a request for remittitur is reviewed for an abuse of discretion. Bordeaux v Celotex Corp, 203 Mich App 158, 171; 511 NW2d 899 (1993).
Defendants’ first basis for remittitur must be denied. Although the number of plaintiff’s preaccident absences from work due to injury and illness is startling, the jury’s award of damages for future lost wages was supported by plaintiff’s testimony concerning his wages, the current union scale of wages for his old job, and the fact that his worker’s compensation benefit was based on a thirty-nine-week average wage well in excess of his base wage, indicating substantial overtime. Therefore, the trial court properly exercised its discretion in denying defendants’ motion for remittitur regarding the award for the years 1993 through 2013.
Defendants’ second basis for remittitur (for years 2014 through 2021) must also be denied for the reasons stated in issue iv.
VI
Finally, plaintiff cross appeals the lower court’s application of a five percent compound discount rate, rather than a simple rate of five percent per annum, in calculating the present value of plaintiff’s future damages. MCL 600.6306; MSA 27A.6306, part of the tort reform act, 1986 PA 178, provides that future damages are to be reduced to “gross present cash value.” Specifically, MCL 600.6306(2); MSA 27A.6306(2) provides:
As used in this section, “gross present cash value” means the total amount of future damages reduced to present value at a rate of 5% per year for each year in which those damages accrue, as found by the trier of fact pursuant to section 6305(l)(b).
At the time the parties submitted their briefs on appeal, it was unclear whether present value was to be calculated with a simple interest rate, or with a compound rate. However, in Nation v W D E Electric Co, 213 Mich App 694, 700; 540 NW2d 788 (1995), this Court held that when a trial court reduces future economic and noneconomic damages to “gross present cash value” under MCL 600.6306; MSA 27A.6306, a compound reduction rate, rather than a simple reduction rate, must be used. The trial court thus did not err in using a compound discount rate in this case.
However, although the trial court correctly determined that the compound discount rate was to be used, it unfortunately incorporated the wrong set of calculations into its ultimate judgment. The correct calculations as presented by an expert witness are as follows:
VERDICT PRESENT
YEAR AMOUNT VALUE
1993 $ 26,000.00 $ 24,761.90
1994 27.300.00 24,761.90
1995 28.700.00 24,792.14
1996 30.100.00 24.763.34
1997 31.600.00, 24,759.43
1998 33.200.00 24.774.35
1999 34.800.00 24,731.71
2000 36.600.00 24.772.32
2001 38.400.00 24.752.98
2002 40.300.00 24,740.70
2003 42.400.00 24,790.40
2004 44.500.00 24.779.27
2005 46.700.00 24.766.01
2006 49.000. 00 24.748.33
2007 51.500.00 24,772.38
2008 54.100.00 24,783.83
2009 56.800.00 24.781.65
2010 59.600.00 24,765.03
2011 62.600.00 '24,772.95
2012 65.700.00 24,761.64
2013 69.000. 00 24.767.02
2014 58.400.00 19.964.03
2015 62.100.00 20.217.98
2016 65.900.00 20,433.48
2017 69.900.00 20.641.66
2018 74.100.00 20,839.94
2019 78.500.00 21,026.09
2020 83.100.00 21.198.28
2021 88.000. 00 21.379.28
TOTAL $1,508,900.00 $685,800.04
The following is the “compound for determining present value: discount” formula
Present value = Future value x 1 / (1 + 7)n where 7 is the interest rate and n is the number of years. For example, using the above verdict amount for 1995 ($28,700), and calculating its present value at the start of 1993, (so that n equals 3), and using a statutory interest rate of five percent, the following calculations would apply:
Present value = Future value x 1 / (1 + 7)n
= $28,700 x 1 / (1 + .05)3
= $28,700 / (1.05 x 1.05 x 1.05)
= $28,700 / 1.157625
= $24,792,139.
The accuracy of this formula can be seen by working the calculations from 1993 forward to 1995. Taking $24,792.14 (the present value of plaintiffs verdict for 1995, as of 1993), times the statutory rate of five percent for three years (1993, 1994, 1995), will yield precisely the jury award of $28,700: $24,792.14 x 1.05 for 1993 will yield $26,031,747; multiplied by 1.05 for 1994 is $27,333,334; and this figure multiplied by 1.05 for 1995 yields exactly $28,700.
In light of the trial court’s apparently inadvertent error, we remand for the limited purpose of changing the erroneous figure of $661,468.97 (the present value of the future damages award in the July 12, 1993, judgment) to $685,800.04, which represents the correct total present value of the future damages portion of the judgment. This amendment will increase the total judgment from $1,016,732.92 plus interest, to $1,041,064.48 plus interest; (i.e., $238,500 past damages, plus $111,623.78 prejudgment interest on past damages, plus $685,800.04 present value of future damages, plus $5,140.66 costs, plus additional interest as set forth.)
conclusion
Affirmed. The matter is remanded with directions consistent with this opinion. We do not retain jurisdiction.
O’Connell, P.J., concurred.
No award was made to Vada Scott, whose claim was apparently derivative only. Accordingly, we will speak in terms of a single plaintiff, Dick Scott. | [
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] |
Chandler, C. J.
The hoard of county road commissioners of the county of Wayne filed a petition to condemn land in the city of Hamtramck for the opening of Gallagher avenue. The street as opened would occupy a portion of appellant’s dairy plant property. The petition was predicated upon Act No. 149, Pub..Acts 1911, as amended (1 Comp. Laws 1929, § 3763 et seq. [Comp. Laws Supp. 1940, § 3763 et seq., Stat. Ann. 1941 Cum. Supp. § 8.11 et seq.]), an act providing for the condemnation of land by State agencies and public corporations.
The appellant Johnson moved to dismiss the petition upon the grounds that in conformity with Act No. 352, Pub. Acts 1925, as amended (1 Comp. Laws 1929, § 3884 et seq. [Comp. Laws Supp. 1940, § 3884 et seq., Stat. Ann. 1941 Cum. Supp. § 8.171 et seq.]), the authority of the board to acquire lands for highway purposes was dependent upon the approval of the board of supervisors, and that the act further provided an exclusive procedure for condemnation by the board of supervisors for highway purposes. From the denial of this motion, appellant was allowed leave to appeal in the nature of certiorari.
Appellant does not question that the procedure required by Act No. 149 was followed, but contends that this act was qualified and impliedly repealed by Act No. 352. Act No. 149, Pub. Acts 1911, as amended by Act No. 235, Pub. Acts 1937, is not impliedly repealed by Act No. 352, Pub. Acts 1925, as amended by Act No. 237, Pub. Acts 1937. Repeals by implication are not favored; there is no presumption of an intention on the part of the legislature to repeal a law where no reference is made to it in a later act, unless the intent is clear. Hopkins v. Sanders, 172 Mich. 227, 235; City of Detroit v. Weil, 180 Mich. 593; Saginaw City Council v. Saginaw Board of Estimates, 256 Mich. 624; Sambor v. Home Owners’ Loan Corp., 283 Mich. 529.
The acts are not inconsistent, as Act No. 149, Pub. Acts 1911, as amended, provides for the taking of private property for a “public improvement” where “necessary” for the “use or benefit of the public,” while Act No. 352, Pub. Acts 1925, as amended, is entitled “An act to provide for the purchase and condemnation of private property for public highway purposes” and includes purposes upon which the legislature manifestly had doubt that these were public improvements within the first statute, and quite apparently the latter statute was an attempt to broaden condemnation power and not to limit the method nor make the latter act exclusive within its scope. ,
Act No. 352, Pub. Acts 1925, does not set forth an exclusive procedure to be used by the board of county road commissioners in condemnation for highway purposes. A very similar and quite analogous question arose as to the exclusiveness of the condemnation provisions under the county road law, specifically, Act No. 283, chap. 4, § 11, Pub. Acts 1909, as amended (1 Comp. Laws 1929, § 3986 [Stat Ann. § 9.111]), as opposed to the general condemnation statutes, Act No. 124, Pub. Acts 1883, as amended (1 Comp. Laws 1929, § 3784 et seq. [Stat. Ann. § 8.41 et seq.]), in Re Widening of Woodward. Avenue, 297 Mich. 235, where we held that' the later act, the county road law, provided an optional privilege granted to cities and villages in condemning private property for public use and is not mandatory as to the use of any other procedure. The above ruling and reasoning is applicable here.
Effect should be given to each of two acts upon the same subject matter, if, by reasonable construction, it may be so done. Rorabacher v. Nichols, 165 Mich. 127. Condemnation under one act rather than another is not unconstitutional where just compensation is provided for. Fitzsimons & Galvin, Inc., v. Rogers, 243 Mich. 649; Dohany v. Rogers, 281 U. S. 362 (50 Sup. Ct. 299, 74 L. Ed. 904, 68 A. L. R. 434).
Further, as bearing on the intent of the legislature, it is significant that at the very session when Act No. 352, Pub. Acts 1925, was passed, the section of Act No. 149, Pub. Acts 1911, dealing with public corporations was amended (see Act No. 37, Pub. Acts 1925). While Act No. 37 was passed before Act No. 352, it did not go into effect until after-wards. In so dealing with both acts at the same session, it is quite evident that the intent of the legislature was that both should be available to road commissioners seeking condemnation of lands in cities for highway .purposes.
The order of the trial court denying the motion to dismiss is affirmed, with costs to appellee.
Boyles, North, Starr, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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Sharpe, J.
This is a quo warranto proceeding to try title to the office-of circuit court commissioner in Wayne county.
The facts are not in dispute. The Honorable George B. Murphy was elected circuit court commissioner of Wayne county for the term of six years beginning January 1, 1937. He resigned said office January 2,1941. The governor of the State of Michigan immediately appointed the respondent, Frank FitzGerald, to fill the vacancy in said office. On January 9, 1941, respondent qualified and entered upon the duties of this office.
On January 11,1941, the relator, Arthur W. Sempliner, sought to file nominating petitions for the purpose of having his name placed upon the ballot for nominating’ candidates for said office in the primary election to be held on February 17, 1941. The county clerk of Wayne county refused to accept the petitions and a writ of mandamus was issued out of the circuit court of Wayne county. The county clerk and the board of election commissioners complied with the order of the circuit court and at the primary election held on the above date, relator and one Frank Lau were duly nominated as candidates to fill the alleged vacancy. At such primary election respondent did not seek nomination. At the election held April 7, 1941, relator received the highest number of votes cast of any candidate to fill the alleged vacancy in the office. On April 28, 1941, relator received his certificate of election to said office.
On April 29, 1941, relator made formal demand upon respondent to yield said office, but was refused and respondent continued to function as a circuit court commissioner of Wayne county.
Relator instituted quo warranto proceedings. A hearing was had; and at the conclusion of the hearing, the trial judge rendered an opinion in which he directed the entry of an order requiring respondent to give up his office to relator.
Respondent appeals'and contends that his term of office as circuit court commissioner is for the residue of George B. Murphy’s unexpired term, viz., that it extends to December 31,1942, or at least until the November election in 1942.
The provisions made for. filling a vacancy in the office of circuit court commissioner are found in 3 Comp. Laws 1929, §13718 (Stat. Ann. §27.241), which provides:
“Whenever a vacancy shall occur, for any cause, in the office of circuit court commissioner of any county, the governor may fill such vacancy by the appointment of a person eligible to such office, who shall upon taking oath and executing and filing the bond, as provided in section one hundred of this chapter, be authorized and required to discharge all the duties of circuit court commissioner, and shall be liable to all the provisions of law touching said office, and shall hold the same until his successor shall be duly elected and qualified.”
It is urged by relator that the office of circuit court commissioner is a court of record and that under the provisions of 1 Comp. Laws 1929, § 3368, as amended by Act No. 236, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 3368, Stat. Ann. § 6.714), an appointee to a vacancy in a court of record shall hold office only until a successor is elected at the next available general election; that the biennial spring election is a general election insofar as the office of circuit court commissioner is concerned; and that the decision of the trial court in the mandamus proceedings is res judicata of the issue involved in this case.
It is urged by respondent that 3 Comp. Laws 1929, § 13718, is a special statute providing for the appointment of a circuit court commissioner to fill a vacancy, said appointee to hold office “until his successor shall be duly elected and qualified;” that the election of a circuit court commissioner may be held only under the provisions of 1 Comp. Laws 1929, § 2997 (Stat. Ann. § 6.264), which provides that he shall be elected at the general November election; that no other statute authorizes the holding of an election of circuit court commissioners either for a regular term or to fill a vacancy; and that the alleged election held on April 8, 1941, was without authority of law.
We are not in accord with the claim of relator that the appointment to fill a vacancy in such office is controlled by 1 Comp. Laws 1929, § 3368 as amended, supra. That section relates to a judge of a court of record and specifically provides that there shall be a person elected to fill the vacancy “at the- next general November election or biennial spring election held at least ninety days after such vacancy shall occur.” The above statute relates to courts of record and has no application to the filling of a vacancy in the office of circuit court commissioner.
The manner of filling vacancies in elective or appointive offices in the State of Michigan is prescribed by statute. In the case of county offices, such as sheriff, county clerk, county treasurer, prosecuting attorney, register of deeds, coroner, county surveyor, and county school commissioner, the person selected to fill such vacancy holds such office for the remainder of the- unexpired term. In the case of vacancies in State offices, other than the office of senator or representative in the State legislature, senator or representative in congress, or a judge of a court of record, the governor fills such vacancy by appointment for the remainder of the unexpired term. 1 Comp. Laws 1929, § 3365 (Stat. Ann. §6.711). Vacancy in the office of justice of the supreme court is filled by appointment of the governor and a successor is- elected at the next general April or November election. 3 Comp. Laws 1929, § 13530 (Stat. Ann. § 27.24). Vacancy in the office of circuit judge is filled by appointment of the governor. The person appointed holds such office until his successor is elected and qualified. His successor is elected at the next general election or the biennial spring election held at least 90 days after such vacancy occurs. 1 Comp. Laws 1929, § 3368, as amended by Act No. 236, Pub. Acts 1931.
It is to be noted from the above that vacancies in county offices, except in courts of record, are filled by appointment for the nnexpired term. The law provides the manner of appointment and that such appointment shall be for the nnexpired term, regardless of the length of the term, i. e., whether two or four years. The same applies to State offices. In courts of record, such as the Supreme Court, circuit court, and probate court, the appointment is until a successor can be elected and qualified and the law provides the time at which a successor can be elected and qualified. A similar situation exists in the office of justice of the peace.
The general rule to be deduced from the above is that appointments to fill vacancies in administrative offices are for the unexpired term while vacancies in the offices of courts of record and other judicial offices are filled by appointment until such time as a successor can be elected and qualified. In all cases of election to fill vacancies, the manner of such election is prescribed by statute.
The legislature has spoken and provided that vacancies in the office of circuit court commissioner shall be filled under section 13718, supra. The above statute is silent as to the duration of the term of appointment other than that it shall be “until his successor shall be duly elected and qualified.”
The issue is thus narrowed down to the simple question of when may a circuit court commissioner be duly elected?
In People, ex rel. Fuller, v. Palmer, 91 Mich. 283, 288, we said:
“The right to hold an election cannot exist or be exercised without an express grant of the power to do so by the legislature.”
The law of Michigan relating to the election of circuit court commissioners is found in 3 Comp. Laws 1929, § 13697 (Stat. Ann. § 27.219). It is there provided that:
“In each county in this State wherein the census of the United States shall show a population of five hundred thousand or more, there shall be, as soon as this act take effect, four such circuit court commissioners. At the general November election to be held in nineteen hundred thirty, there shall be elected four such circuit court commissioners in such counties, who shall enter upon the discharge of their duties on January one, nineteen hundred thirty-one, and shall hold their office for six years from that date; and at the general fall election to be held in nineteen hundred thirty-six, and every six years thereafter, there shall be elected for each of such counties, such four circuit court commissioners who shall enter upon the discharge of their duties on the first day of January succeeding their election, and who shall hold their offices six years.”
No other statute authorizes the holding of an election of circuit court commissioners in counties having a population of 500,000 or more either for a regular term or to fill a vacancy. It is our opinion that the only time a circuit court commissioner can be elected is at the general November election. There being no provision in the law for the election of a circuit court commissioner to fill a vacancy, it follows that an appointment is for the unexpired term. If a change in the manner of filling a vacancy in the office of a circuit court commissioner in counties having a population of 500,000 or more is desirable, it should be made by enactment of proper legislation by the legislature.
It is next urged that the decision in the mandamus proceedings ordering the holding of an election was a decision in rem; that it adjudicated respondent’s term of office. In Frey v. Michie, 68 Mich. 323, 327, we said: ‘ ‘ The only way to try titles to office finally and conclusively is by quo warranto.” See, also, Gildemeister v. Lindsay, 212 Micb. 299. In our opinion the mandamus proceeding was a nullity in-|, sofar as it affected the title to this office.
The judgment of the trial court is reversed. Appellant is entitled to the office of circuit court commissioner of Wayne county for the term ending December 31, 1942. No costs are allowed as a public question is involved.
Boyles, North, Starr, and Wiest, JJ.. concurred with Sharpe, J.
North, J.
Since it is not essential to decision in the instant case, it should be expressly noted that we do not herein pass upon the question as to whether in event of a vacancy in the office of circuit court commissioner the power of appointing to fill such vacancy is vested in the governor or in the county officers designated in 1 Comp. Laws 1929, § 3369 (Stat. Ann. § 6.715).
Boyles, Starr, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred with North, J. | [
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North, J.
This is an appeal by tbe plaintiff from that portion of a decree in a divorce case which makes disposition of the property rights, alimony and attorney’s fees. Issue was joined on the wife’s bill of complaint charging extreme cruelty and on the husband’s cross bill also charging extreme cruelty. The cross bill was dismissed and plaintiff granted a decree of divorce.
Since the appeal challenges only those provisions having to do with the property settlement, alimony for minor children and attorney’s fees, there is no occasion for setting forth in detail the claims of the respective parties pertaining to the divorce issue. Nor shall we attempt to recite in detail all of the minor facts which may bear more or less directly upon that portion of the decree from which the appeal is taken, a general outline of the more important phases of the testimony being sufficient.
The parties were married in January, 1924. Two children were born of the marriage, a son and a daughter who at the time of the hearing were re spectively 14 and 12 years of age. Plaintiff’s family at tbe time of her marriage was well-to-do. Defendant was a man without means. By the combined effort of tbe parties, but obviously largely as a result of defendant’s earnings, they acquired tbeir home property near Benton Harbor wbicb tbe trial judge found to be substantially of tbe value of $3,500; but it is subject to a mortgage, of $1,000. The parties also possessed a one-room cottage near Lake Michigan Beach of a value of approximately $250. And they acquired certain lots referred to as tbe BakerYawter Hill property, but prior to tbe bearing of tbe instant case tbe only interests remaining in this property were tbe fee in one lot and tbe vendor’s interest in another wbicb bad been sold on contract. These two interests were of small value, probably approximately $400. Defendant also bad four life insurance policies aggregating $5,000 and having a cash value of approximately $800. In addition to tbe foregoing these parties possessed tbeir household furniture and other personal effects commonly incident to home life. In 1939 when this case was beard in tbe circuit court plaintiff was 36 years of age and defendant 38.
Plaintiff’s mother died in 1937; and by ber will tbe mother provided a trust fund in tbe amount of $20,000, tbe income of wbicb was payable to plaintiff, and at plaintiff’s death tbe trust fund was to be equally divided between tbe two children of tbe parties to this suit. For reasons wbicb need not be stated, plaintiff bad not received any of tbe income from this trust up to tbe time the' instant case was beard; but tbe trial judge found: “Tbe income from that trust fund will run $1,200 per year. * * * I think tbe record establishes that tbe trust fund is in such shape that she (plaintiff) may, and should be able to begin to receive that income practically forth with..” 'The defendant.was employed at the New Products Corporation as. an assistant superintendent, and he received a salary of $50 a week and also a bonus.
Prior to instituting the present divorce suit, plain, .tiff had filed another bill for divorce which was shortly thereafter voluntarily dismissed; and, evidently • incident to the reconciliation between the parties, title to the home property and the cottage was vested then solely in plaintiff. In his opinion filed in the instant case the circuit judge said: “In my opinion, when plaintiff obtained absolute title to all the real estate' that they owned jointly at the time of the reconciliation in June, 1938, she received substantially all that she should expect out of his estate.”
In disposing of the property rights the circuit judge decreed that plaintiff should have the sole title and ownership, subject to the $1,000 mortgage, of the home property and all of the household furniture, that she should also be the sole owner of the cottage property; that defendant should pay plaintiff $50 as settlement in full of her rights, present or future, in defendant’s property; that defendant should pay $60 a month for the support of the two children until the older became 16 years of age, and thereafter $30 per month until the younger became 16 years of age; and defendant was ordered to pay an additional amount for attorney’s fees to plaintiff’s attorneys which would constitute a total of $75. Aside from their respective personal effects, the decree provided that the personal property of these parties other than that given to the wife should be retained by the husband; also he should become the sole owner of title or interest in the two lots which were a part of the Baker-Vawter Hill property. The general custody of the two minor children was given to plaintiff with right in defendant to have' them on certain week ends and for one month during the year. There is no complaint about this latter provision.
The above-stated facts and others disclosed by the record bring the conclusion that we would not be justified in altering any of the provisions in the decree of which plaintiff complains. Prior to this suit she had obtained sole ownership of practically all the property these parties had accumulated during their married life covering a period of substantially 16 years next preceding the entry of this decree. In addition through inheritance she is possessed of a substantial annual income. The decree gave to the defendant property of only very limited total value; and it required him to pay for the support of the children $60 per month until the older is 16 years of age and thereafter $30 per month until the younger is 16 years of age. While the period covered by this latter decretal provision is obviously of comparatively limited duration, the trial court provided in the decree that: “the right (is) expressly reserved in this court to make such other or further provision for said children as their future interest may require.” There is no showing in this record of inadequacy of the amount decreed as attorney’s fees to appellant’s attorneys which would justify us in holding that the trial court abused its discretion in that particular.
The decree entered in the circuit court is affirmed; but no costs will be allowed. The case is remanded to the circuit court in chancery for jurisdiction of future proceedings therein, if any.
Chandler, C. J., and Boyles, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred. Wiest, J., did not sit. | [
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North, J.
Defendant vendees appeal from a judgment of restitution of premises based upon forfeiture of a land contract, which contained the following provision: •
“That if default is made by the purchaser in the payment of any tax assessment * * * the seller may pay such tax assessment * * * and any sum or sums so paid shall be a further lien on the land payable by the purchaser to the seller forthwith with interest at six per cent, per annum.”
It is conceded that defendants were in default on May 14, 1940, by reason of unpaid taxes for the years 1937, 1938 and 1939, in the amount of $282. However, it is the- contention, of the defendants that this default was cured by them through a payment by the original vendor, Ralph L. Conzelman, on May 14, 1940, and that, such payment was made under an agreement by defendant John Scott to repay Conzelman. The controlling question is whether Conzelman paid the taxes as vendor, as the contract gave him the right; or whether he paid them on behalf of defendants under a separate oral agreement that he should be reimbursed by Scott.
Conzelman paid the taxes under the following circumstances. He wished to exchange his rights as vendor for an equity held in a house and lot by Mr. and Mrs. Frank E. Hunt. They refused to take Conzelman’s interest in the land contract while back taxes were unpaid. In order to consummate the exchange, Conzelman thereupon paid the taxes. Though the assignment from Conzelman to the Hunts is dated May 10, 1940, it was held up until after Conzelman paid the taxes. Conzelman paid the money over to the Hunts’ attorney, who actually paid the taxes and later gave the .tax receipts to Conzelman.
The Hunts did not attempt to recover the tax payments from defendants; and on September 14,1940, they deeded the land and made an assignment of their vendors’ contract rights to plaintiff, similar to the assignment Conzelman made to the Hunts except for the sum due:
“For a valuable consideration * * * the undersigned hereby sell * * * to Joseph N. Burrell, the assignee, a certain land contract dated October 9, 1936, * * * together with all sums due and to become due thereon and covenants that there is now owing thereon $3,473.25, with interest from August 10, 1940.”
On October 4, 1940, plaintiff demanded that defendants pay him as vendor the amount which Conzelman had paid for taxes May 14, 1940. Defendants made out a check for the full amount, payable to Conzelman and Burrell. This was refused by Burrell on the basis that Conzelman was no longer a party; and plaintiff demanded that payment be made to him alone. This defendants refused to do; instead they thereafter paid C&nzelman alone, claiming they thereby reimbursed the latter for payment of the taxes.
Defendants claim that there was no 'assignment of the obligation of the vendees to reimburse Conzelman for two reasons: . 1. That there was an independent oral agreement vendees would repay Conzelman if he paid the taxes for them. 2. The assignment from Conzelman. to the Hunts in effect provided that all there was unpaid on the* land contract was the actual amount ($3,562.67 with interest) —thus negativing the idea that the right passed to the taxes which Conzelman had paid. The trial judge found that Conzelman had assigned to the Hunts all his rights, reserving nothing.
While the findings of the circuit judge, who heard the case without a jury, do not set forth a detailed review of the testimony, he seemingly reached the conclusion that plaintiff was entitled to recover on the ground that the amount of the taxes paid by Conzelman became a part of the contract and passed by assignment first to the Hunts and from them to plaintiff. Our review of the record convinces us that the circuit judge was in error in so holding. Neither Mr. or Mrs. Hunt were produced as a witness and therefore their versions of this phase of the transaction between them and Conzelman is not in the record. Mr. Conzelman as a witness for defendant testified in substance to the following facts. That the amount of $3,562.67 specified in his assignment of the vendors’ interest in the contract to the Hunts was the amount unpaid on the contract as of April 10, 1940, and that this amount did not include the unpaid taxes; that “Mr. Hunt knew that I had paid these taxes for Mr. Scott;” that Mr. Scott was unable to pay the taxes at the time of Conzelman’s assignment to the Hunts and Mr. Scott “agreed to reimburse me if I agreed to pay them at that time.” On cross-examination plaintiff’s attorney asked Mr. Conzelman:
“Q. Mr. Conzelman, did you at any time tell me that you paid those taxes and that upon paying, Mr. Scott was to reimburse you ?
“A. Exactly it.”
Further, the assignment to plaintiff of the vendors’ interest in the land contract specifically stated: “there is now owing thereon $3,473.25, with interest from August 10, 1940;” and the sum specified did not include the amount Conzelman had paid for past due taxes.
It’ may also be noted that it is a fair inference from the record that Conzelman and the Hunts had fully agreed upon terms under which the latter were to take an assignment of the contract before the question of paying back taxes arose, and that thereafter Conzelman paid the taxes in the amount of $282. Obviously if plaintiff’s theory is accepted the result would be that the Hunts would have taken a contract calling for the payment of $282 more than the amount contemplated when their agreement was consummated. This seems highly improbable. Another circumstance which is somewhat persuasive is that notwithstanding these tax payments were made through the attorney who represented the Hunts, still the receipts therefor were turned over by the attorney to Conzelman, not to the Hunts; and Conzelman retained the receipts thereafter.
On review of cases heard in the circuit court without a jury we should and do give consideration to findings on issues of fact made by the circuit judge; but where, as in the instant case, practically all of the persuasive testimony is. on one side of a controverted issue of fact justice requires that decision in this Court should be in accord therewith. There is no merit to plaintiff’s contention that defendants’ claim cannot be sustained without changing the written terms of the land contract by parol testimony. Instead the determinative issue is one of fact as to whether Conzelman paid the taxes under a separate oral agreement with Scott that the latter would reimburse the former for so doing. As indicated above, defendants have in our judgment prevailed on this issue. By his assignment plaintiff acquired no greater rights against defendants than were possessed by the Hunts.
Judgment entered in the circuit court is reversed; and the cause remanded to the circuit court with directions to determine in accordance with our opinion herein the amount due to plaintiff under the land contract to the date of snch determination at the contract rate of $40 per month from and including September 10, 1940, and to enter judgment accordingly, allowing appellants the statutory time within which to redeem. 3 Comp-. Laws 1929, §14988, as amended by Act No. 122, Pub. Acts 1933 (Comp. Laws Supp. 1940, § 14988, Stat. Ann. § 27.1999). Defendants will have costs of all courts, and their taxed costs may be set off against the- amount of accrued contract payments as determined.
Chandler, C. J., and Boyles, Starr, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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] |
Butzel, J.
Two shipments, each covered by a through bill of lading, are involved in the case at bar. The bills are from the printed commercial stationery of Delco-Remy Division (General Motors Corporation), Anderson, Indiana, and are identical in content, except as to property covered, and details consequent thereupon. Photostatic copies thereof were attached to, and incorporated in, the declaration; they were admitted in evidence when counsel for defendant admitted their execution and authenticity. We quote the material provisions of Exhibit “A,” italicizing the words which were handwritten in the blanks, leaving in roman type the words which were printed:
“(Uniform Domestic Straight Bill of Lading, adopted by Carriers in Official, Southern, Western and Illinois Classification territories, March 15, 1922, as amended August 1, 1930.) * * *
“ American Carloading Company Received, subject to the classifications and tariffs in effect on the date of the issue of this Bill of Lading, from Delco-Remy Division, General Motors Corporation, # * the property described below, * * * marked, consigned, and destined as indicated below, which said company (the word company being understood throughout this contract as meaning any person or corporation in possession of the property under this contract) agrees to carry to its usual place of delivery at said destination, if on its own road or its own water line, otherwise to deliver to another carrier on the route to said destination. * * * “Consigned to United Motor Service 175 Ipswich St.
“Destination Boston State of Mass.”
Then followed a description of the goods. At the bottom appeared the following:
“Delco-Remy Division, General Motors Corporation, Shipper, Per Signed V. Carpenter Agent * * * Permanent post-office address of shipper, Anderson, Indiana.” (The word “signed” was typewritten.)
Just above the signature on behalf of consignor, there appeared the following legend, produced by the impression of a rubber stamp, not a part of the printed form:
“This shipment is tendered and received subject to the terms and conditions of the carrier’s bill of lading as shown in the tariff and classification filed with the interstate commerce commission naming and covering the rate or rates lawfully applicable to this shipment.”
This legend was signed: “Clover Leaf F. Williams.” The words “American Carloading,” “United Motor Service,” “175 Ipswich St.,” “Boston,” “Mass.,” and “Y. Carpenter” were written in one hand; the words “Clover Leaf” and “Williams” in another.
Clover-Leaf Motor Truck Transportation Company, Inc., actually received the goods from the consignor at Anderson, Ind., and carried them in its trucks to Detroit, Michigan, where it unloaded them at the dock jointly used by American Carloading Company and its subsidiary corporation, the plaintiff. During the haul from Anderson to Detroit, a part of each shipment was lost. Plaintiff then shipped the goods from Detroit, to New York City. Counsel agree that in one bill of lading covering that leg of the haul plaintiff was both consignor and consignee, and the Grand Trunk and Lehigh Valley railroads were the carriers, although that bill of lading was not introduced in evidence. Testimony shows that after a brief stay at the New York City loading dock, the goods were carried from New York City to Boston by the Holland Transportation Company, which delivered them in the latter city to the consignee named in the through bill. Consignee immediately complained to plaintiff of the shortage, and plaintiff paid consignee the amount thereof. Plaintiff sought reimbursement from Clover-Leaf Motor Truck Transportation Company, and, after Clover-Leaf went into bankruptcy, filed a claim in the bankruptcy proceedings, but never received anything, as Clover-Leaf’s estate contained no assets. Plaintiff now sues defendant, Clover-Leaf’s insurer, declaring that under the Federal Motor Carrier Act, 1935, it became subrogated to the rights of the consignee, by virtue of its having paid the consignee’s claim against CloverLeaf, against Clover-Leaf’s insurer.
The trial judge denied recovery on the ground that the bill of lading ran from the American Car-loading Company, or Clover-Leaf, but not from plaintiff American Transportation Company (a subsidiary of American Carloading Company), and that parol evidence could not he introduced to vary the contents of the written instrument. Plaintiff claims that this ruling was error. Inasmuch as defendant must prevail on another ground, it becomes unnecessary to discuss the question.
The provisions of the Federal statutes on which plaintiff relies are as follows:
Motor Carrier Act, 1935, § 215:
“The [interstate commerce] commission may, in its discretion and under such rules and regulations as it shall prescribe, require any such common carrier [by motor vehicle] to file a surety bond, policies of insurance, qualifications as a self-insurer, or other securities or agreements, in a sum to be determined by the commission, to be conditioned upon such carrier making compensation to shippers and/or consignees for all property belong [sic] to shippers and/or consignees, and coming into the possession of such carrier in connection with its transportation service. Any carrier which may be required by law to compensate a shipper and/or consignee for any loss, damage or default for which a connecting motor common carrier is legally responsible shall be subrogated to the rights of such shipper and/or consignee under any such bond, policies of insurance, or other securities or agreements, to the extent of the sum so paid.’"’ (Act of August 9, 1935, chap. 498, § 215; 49 Stat. at L. 557, 49 USCA Supp. 1940, § 315.)
The requirement by law imposed upon initial (and delivering) carriers to answer for loss, damage or default of connecting carriers was imposed on common carriers by railroad by the Carmack amendment, infra, which added section 20(11) to the interstate commerce act. The provisions of this section have been extended to initial common carriers by motor vehicle by the following:
Motor Carrier Act, 1935, § 219:
“The provisions of section 20(11) of [the interstate commerce act] shall apply with like force and effect to receipts or bills of lading of common carriers by motor vehicle.” (Act of August 9, 1935, chap. 498, § 219; 49 Stat. at L. 563, 49 USCA Snpp. 1940, § 319.)
The section referred to (section 20[11]), being the Carmack amendment, as amended, reads:
Interstate Commerce Act, as amended, section 20(11) as added and amended:
“Sec. 20(11). Any common carrier * * * subject to the provisions of this act receiving property for transportation [in interstate commerce] * * * shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier * * * to which such property may be delivered or over whose line or .lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading, * '* # and any such common carrier * * * so receiving property for transportation [in interstate commerce] * * * shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading has been issued or not, for the full actual loss, damage or injury to such property caused by it or by any such common carrier # * * to which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading.” (Act of April 23, 1930, chap. 208; 46 Stat. at L. 251, 49 USCA Supp. 1940, § 20[11].)
Acting under section 215, supra, the commission on August 3, 1936, adopted a regulation requiring motor carriers’ insurance policies to bear an indorsement in favor of shippers and/or consignees; accordingly the policy in suit bears such indorsement.
The statutory subrogation to which plaintiff claims it is entitled is limited to ‘ ‘ any carrier which may be required by law to compensate a # * * consignee,” et cetera. It follows that unless plaintiff can bring itself within the category of carrier, its claim that it was initial carrier and consequently liable for the loss to the consignee, although such loss occurred while the goods were in the possession of another carrier (Clover-Leaf), which is alleged to have been a connecting carrier, must necessarily fail. In paragraph 13 of its declaration plaintiff states as a conclusion of law that it was a carrier, and formulates its claim in language closely following the final sentence of section- 215. But in the earlier paragraphs of the declaration (especially in paragraphs 3, 4, 6, and 7) plaintiff makes it clear that it was only a forwarder as to these shipments throughout their entire course from Anderson to Boston, and the testimony bears out this admission.
An understanding of the nature of the business of freight forwarders is essential to a clear understanding of the issues of this case. The following description is the most recent yet given by the Supreme Court of the United States, in an opinion by Mr. Justice Black (United States v. Chicago Heights Trucking Co., 310 U. S. 344, 345, 346 [60 Sup. Ct. 931, 84 L. Ed. 1243]):
“Forwarders utilize common carriers by rail and-motor truck to transport goods owned by others. They solicit and obtain many small shipments, from various points within an area, and cause them to be carried in less than truckload or carload lots to a concentration center within the area. There they are assembled by the forwarder for further trans portation in truckload or carload lots. Although the forwarder gives owners of individual small shipments his own contract corresponding in form to through hills of lading and assumes responsibility for safe through carriage, the forwarder customarily arranges for the pickup, assembly and transportation of the shipments by carriers for hire. And the forwarders, not the owners of the goods, select the carriers and route the shipments. Upon arrival of a truckload or carload of the assembled small shipments at a distribution center, the bulk shipment is broken up, the forwarder separates and takes possession of the original small shipments and arranges, where necessary, their further carriage to their various final destinations in the area served by the particular distribution point. In this final carriage of the small shipment to its ultimate destination, the forwarder again utilizes carriers for hire to move these less than truckload or carload lots. Thus, forwarders may use the serv-. ice of carriers to assemble shipments of less than truckload or carload lots at their concentration center, to transport the assembled truckload or carloads to a distribution center and to carry the broken up small shipments beyond their break-bulk distribution center.
“The forwarding business has been built upon the expectation that a material part of the transportation which it causes to be provided for small shippers can by consolidation of small shipments be obtained at truckload or carload rates. For the forwarders’ business was originally made profitable because it could operate upon the margin of profit represented by the difference between railroad carload rates paid by the forwarder and the higher rates, approximating less than carload rates, which the forwarder charged the owner of a shipment.”
, The carrier is obliged to treat the forwarder as the shipper (Great Northern R. Co. v. O’Connor, 232 U. S. 508, 514 [34 Sup. Ct. 380, 58 L. Ed. 703]), and may discriminate neither against (I. C. C. v. Delaware, Lackawanna & Western R. Co., 220 U. S. 235 [31 Sup. Ct. 392, 55 L. Ed. 448]) nor in favor of (United States v. Chicago Heights Trucking Co., supra), forwarders, but must treat them on a basis of equality with all other shippers.
The decision in Acme Fast Freight, Inc., v. United States, 30 Fed. Supp. 968, rendered by a three-judge court and affirmed per curiam by the Supreme' Court of the United States, 309 U. S. 638 (60 Sup. Ct. 810, 84 L. Ed. 993), and approved in United States v. Chicago Heights Trucking Co., supra, 350, is ample authority for the proposition that forwarders are not carriers within the meaning either of the interstate commerce act or of the motor carrier act, and for the further proposition that forwarders do not come within the purview of .either act under any statutory classification, not even those of express companies or transportation brokers.
Accepting plaintiff’s version as far as the goods in question are concerned, it was not a carrier. It simply arranged with independent carriers to collect less than carload shipments from various shippers, which it gathered together to make up full carloads, and thus gave shippers the benefit of the lower full carload rate. In the present instance, the Clover-Leaf brought the goods by motor truck to Detroit whence they were shipped with other goods thus assembled into carload lots via the Grand Trunk and Lehigh Valley railroads. Neither the American Carloading Company nor plaintiff were carriers in this transaction. The most that was done was that possibly one of them carried the goods from one side of the loading dock to the other.
Since, as to these shipments, plaintiff bore the re lation of forwarder and not that of carrier, it cannot claim the statutory subrogation which in terms is extended only to carriers.
Plaintiff raises the additional point that since it was at least forwarder, it was obliged to reimburse the consignee, since a direct contractual relationship existed between it as forwarder on the one hand and the consignor and consignee on the other hand, and hence argues that its action in paying the consignee’s claim was not that of a volunteer, but an adequate basis for subrogation upon familiar general principles of law, independent of the statute. There is much plausibility in this claim, hut we do not pass upon it, as it is nowhere included in plaintiff’s declaration; he was refused his.request for leave to amend, and he has raised no objection on appeal to the action of the court in refusing his request for leave to amend.
At the close of plaintiff’s case defendant moved for a judgment on the evidence and such judgment was. properly rendered. The evidence did not make out a case for plaintiff.
The judgment of the trial court is affirmed, with costs to defendant.
Chandler, C. J., and Boyles, North, Starr, Wiest, Bushnell, and Sharpe, JJ., concurred. | [
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] |
Butzel, J.
On January 14, 1920, John F. Dodge died leaving an instrument, dated April 4, 1918, purporting to be his will. He was survived by his widow, Matilda R. Dodge, and six children, their names and ages at the time of his death being as follows: Winifred Dodge Gray (now Seyburn), Isabel Dodge Sloane, each over 21 years, John Duval Dodge, about 21 years and 5 months, children by his first wife; Frances Matilda Dodge (now Johnson), about 5 years, Daniel George Dodge, about 2% years, and Anna Margaret Dodge, about 8 months, the latter three being children by Matilda Dodge. Anna Margaret Dodge was born June 14, 1919, after the execution of her father’s will, and, as she was not provided for therein, she became entitled to her statutory share of his estate, the same as if he had died intestate. As far as we can determine from the record, the amount set off for her share was in the neighborhood of $2,700,000. Anna Margaret died April 13, 1924, when less than 5 years of age. Her personal property went to her mother Matilda Dodge, while her real estate, as ancestral property, was divided between her mother and the brothers and sisters. In re Dodge’s Estate, 242 Mich. 156. John Duval Dodge received his full share of Anna Margaret’s interest in their father’s real estate.
The inventory of the John F. Dodge estate showed that on January 20, 1920, the personal property was of the value of $36,852,588.41. The sole parcel of real estate belonging to the estate was appraised at $40,000. After payment of debts, Federal estate and income and State inheritance taxes, et cetera, the net value of the estate according to the report on file was reduced to the sum of $23,634,286.69. It might be added that later the undistributed part of the estate was tremendously enhanced through dividends from Dodge Brothers, a Michigan corporation, in which deceased held one-half of the stock, and thereafter from the sale of the entire capital stock of Dodge Brothers, a Michigan corporation, at a price very much in excess of the inventoried value. The real estate consisted of only a single parcel of property at the foot of Atwater street in the city of Detroit, and is referred to as the boathouse property. Decedent had other large real estate holdings-that he disposed of prior to his death, a large amount of it having been transferred to the Dodge Land Company in which decedent owned stock.
The will of John F. Dodge was offered for probate on February 10, 1920, by his brother Horace E. Dodge, who asked that administration be granted to Matilda R. Dodge and himself, the executors named in the will. The will, after devising certain real estate, subsequently disposed of after the ex-edition of the'will but prior to testator’s death, and after making a number of specific bequests, devises and bequeathes to his wife Matilda Dodge and his brother Horace E. Dodge and the Detroit Trust Company, as trustees, all the other property, both real and personal, with full power and authority to sell and convey and for purposes thereinafter set forth. It provided for the payment of taxes and insurance, repairs and maintenance charges of the estate, the payment of $10,000 a year for 10 years to his widow, so that she might properly maintain the farm devised to her; the building of a home in Crosse Pointe, Michigan, and its maintenance; a proper sum to look after the children, annuities amounting to $14,000 a year to relatives during their lifetime; the payment to his son John Duval Dodge (plaintiff herein) of $150 a month during his lifetime; the payment of $50,000 a year for five years to provide his daughter Isabel Cleves Dodge with a home if testator had not provided one during his lifetime. We set forth further provisions of the will that are pertinent to the instant case:
“14. Subject to'the carrying out of the foregoing provisions of this my last will, I direct my said trustees to expend the net income of my said estate, as follows:
“ (a) To pay to my wife, Matilda R. Dodge, one fifth of same in quarterly payments, during the life of my said wife;
“(b) To pay to my daughter, Winifred Dodge Gray, one fifth of same in quarterly payments, during the life of my said daughter ;
“(c) To pay to my daughter, Isabel Cleves Dodge, one fifth of same in quarterly payments-, during the life of my said daughter;
“(d) To set aside each year until my daughter, Frances Matilda Dodge shall become 25 years of age, one fifth of said net income for the benefit of my said daughter, and out of same to pay to my said daughter in quarterly payments, such sums as may be necessary, in the judgment of my said trustees, to provide my said daughter with proper maintenance for herself and her home, if she shall be established in a home of her own, clothing, education and recreation; and I direct my said trustees to invest and reinvest and keep invested so much of said income herein provided for my said daughter, as shall not be used for her benefit under this clause up to the time she shall become 25 years of age.
“When my said daughter shall become 25 years of age, I direct my said trustees to pay to her all such sums as may have been accumulated for her by my said trustees hereunder, and thereafter to pay to my said daughter said one fifth of said income in quarterly payments during the life of my said daughter.
“(e) To set aside each year until my son, Daniel George Dodge, shall become 25 years of age, one fifth of said net income for the benefit of my said son, and out of same to pay to my said son in quarterly payments, such sums as may be necessary in the judgment of my said trustees, to provide my said son with proper maintenance for himself and his home, if he shall be established in a home of his own, clothing, education and recreation; and I direct my said trustees to invest and reinvest and keep invested so much of said income herein provided for my said son, as shall not be used for his benefit under this clause up to the time he shall become 25 years of age.
“When my said son shall become 25 years of age, I direct my said trustees to pay to him all such sums as may have been accumulated for him by my said trustees hereunder, and thereafter to pay to my said son said one fifth of said income in quarterly payments during the life of my said son.
“ (f) Upon the death of my said wife, Matilda E. Dodge, I direct my said trustees to dispose of the one fifth part of said income herein provided to be paid to my said wife, for my said daughters, Winifred Dodge Gray, Isabel Cleves Dodge and Frances Matilda Dodge and my said son, Daniel George Dodge, share and share alike in the same manner that my trustees are hereinbefore directed to dispose of the portions of said income provided for my said children respectively.
“ (g) In the event that any of my children, Winifred Dodge Gray, Isabel Cleves Dodge, Frances Matilda Dodge and Daniel George Dodge, shall die without leaving lawful issue him or her surviving, then -in that event, I direct my said trustees to dispose of the share of said income provided for such deceased child or children, among the survivors of said Winifred Dodge Gray, Isabel Cleves Dodge, Frances Matilda Dodge and Daniel George Dodge, in the same manner respectively that my said trustees are directed to dispose of the portions of said income provided for said Winifred Dodge Gray, Isabel Cleves Dodge, Frances Matilda Dodge and Daniel George Dodge;
“(h) In the event that any of my said children, Winifred Dodge Gray, Isabel Cleves Dodge, Frances Matilda Dodge and Daniel George Dodge, shall die, leaving lawful issue him or her surviving, then I direct my said trustees to pay the portion of such income provided for such deceased child or children to such issue of such deceased child or children or the lawful representatives of such issue in quarterly payments as long as any of my said children, Winifred Dodge Gray, Isabel Cleves Dodge, Frances Matilda Dodge and Daniel George Dodge, shall survive, and upon the death of all of my said children, Winifred Dodge Gray, Isabel Cleves Dodge, Frances Matilda Dodge and Daniel George Dodge, ■ then I direct my said trustees to convey my said estate to the heirs of my said children, Winifred Dodge Gray, Isabel Cleves Dodge, Frances Matilda Dodge and Daniel George Dodge, in such proportion as by law such heirs shall be entitled to receive same.
“The provisions I have made in this will for my son, John Duval Dodge, have been made after careful thought and deliberation on my part, uninfluenced by any person or persons whomsoever, and I believe these provisions to be the most wise I can make for my said son, John Duval Dodge. I make this explanation in order that it may be known that I have given careful thought to the claims of my said son, John Duval Dodge, and in order that neither my wife, nor any of my children may be accused of having influenced me in reference to the provisions that I have herein made in regard to my said son.”
Shortly after the will was filed for probate, John Duval Dodge, plaintiff herein, made it known that he was dissatisfied with its provisions, and that he would contest it. He retained able attorneys, the late Stewart Hanley, a former judge of probate, and at one time president of the Detroit Bar Association, the late Walter E. Oxtoby, and Frank E. Cook, all of Detroit, men of the highest position at the bar and characterized as “eminent counsel” by plaintiff’s attorney on the oral argument of the instant appeal.
Horace E. Dodge died within the year following the death of his brother John. In the petition for probate, signed by Horace E. Dodge, the value of the real estate is given as “dollars, none,” and the personal estate as “$100,000 and upwards.” The boathouse property, the single parcel left in the estate and of a value almost insignificant when compared with the aggregate value of the assets of the estate, was not mentioned in the petition. Its existence, however, became very important in subsequent litigation. We are impressed with the fact that the written documents and records, including the court proceedings, show that because of the existence of this parcel of real estate the validity of the will was carefully considered at the time of the probate of the will, as well as in the former chancery case, by the attorneys for both plaintiff and the other beneficiaries, and also by the court. The hearing on the petition for probate of the will was continued from time to time, there being over 30 adjournments. Obviously there were negotiations pending to settle the contest.
On March 29, 1921, a bill was introduced in the legislature (Act No. 249, Pub. Acts 1921, 3 Comp. Laws 1929, § 15581 et seq. [Stat. Ann. § 27.2691 et seq.]), which passed both houses and was signed by the governor May 18, 1921. It went into effect August 18, 1921, 90 days after the legislature adjourned. The act provided for the settlement of will controversies. We shall discuss it later. On June 29, 1921, all parties were in the probate court and, apparently without any objection on the part of any one, a previous order adjourning the hearing of the petition for probate of the will to July 12, 1921, was vacated and the hearing set for and held at 2 p.m. on June 29, 1921. Tbe will was admitted to probate on tbat date. On the same day, plaintiff filed written objections, sworn to by him. Tbe only one tbat concerns us now is tbe one wbicb specifically states:
“Because said instrument does not provide for lawful disposition of said property of deceased.”
Plaintiff appealed to tbe circuit court from tbe probate court order allowing tbe will.
Act No. 249, Pub. Acts 1921, provided for a compromise, settlement and adjustment of any will-contest or of any controversy concerning tbe interpretation, effect or validity of a will arising in tbe administration of tbe estate under tbe will or under any trust created by tbe will, wben there is or may be any person interested who is a minor or otherwise without legal capacity to act in person or whose present existence or whereabouts cannot be ascertained, or wben there is an inalienable estate or interest or future contingent estate wbicb will' or may be affected by such compromise, settlement or adjustment, provided tbat tbe agreement for settlement shall be submitted to tbe probate court having jurisdiction of tbe probate of tbe will or to tbe circuit court in chancery of tbe proper county for tbe approving thereof, authorizing of tbe settlement, et cetera. A formal settlement agreement dated June 27, 1921, during the 90-day interim between tbe adjournment of tbe legislature (May 19, 1921) and tbe effective date of tbe act (August 18, 1921), was executed by plaintiff and tbe other adults but evidently was not signed by tbe general guardians and guardians ad litem of tbe minors or by tbe guardian ad litem duly appointed to represent future contingent estates and interests until later. Tbe guardian ad litem to represent future contingent estates and interests under the will was not appointed until November 15,1921, and the settlement agreement was not signed by him until after a decree was entered in the circuit court for the county of Wayne in chancery on the 29th day of November, 1921, approving of the settlement agreement. The chancery suit was begun on October 17, 1921. In paragraph 8 of the bill of complaint filed at that time, the claim of invalidity of the trust now being asserted is fully set forth as one of the controversies being settled. This was admitted in the corresponding paragraph of the answer of John Duval Dodge. All the parties interested in the will entered their appearances. The signature of plaintiff herein, a defendant in that suit, appears at the end of his answer, which was countersigned by his counsel. In the concluding paragraph he stated that without waiving any rights previously asserted, he joined in asking that the relief prayed for in the bill of complaint be granted. This included the settlement of both the trust controversy and the will contest, the proposed settlement agreements being attached to the bill of complaint. The settlement agreement, which plaintiff signed, provided for the payment of the lump sum of $1,600,000 and interest at the rate of 5 per cent, per annum from December 9, 1920, to John Duval Dodge, plaintiff herein, in lieu of the income of $150 per month provided by the will, such provision being abrogated by the settlement agreement. It also provided for the payment of a sum of $1,000,000 each to the widow and each one of the other four children of John F. Dodge but safeguarded the payment of all debts, taxes, et cetera, and all of the other legacies in the will, and provided that the agreement be submitted to a court of competent jurisdiction for approval in order to render it binding, and commanded the trustees to convert all the real estate into stocks, bonds or other income-producing property,, such mandate to have the same force and effect as if it had been imposed upon the trustees by the terms of the will. It further provided for the renunciation of all plaintiff’s rights of, in or to the estate and the amounts being distributed. Anna Margaret Dodge was not a party to the agreement, the reason for omitting her as stated therein, being that she had no interest one way or the other in the subject matter thereof. John Duval Dodge, the plaintiff, was a party to the agreement and as such represented any right he might have to any future contingent estate or interest in the property. There had been set off to Anna Margaret Dodge the full share that she would be entitled to had her father died intestate. On March 20, 1922, several months after the decree was entered in the chancery suit, a judgment was entered nunc pro tunc as of January, 1922, in the circuit court for the county of Wayne admitting the will to probate in the law case appealed from the probate court and remitting the cause to the probate court for further proceedings. At the time the settlement agreement was entered into with plaintiff, a supplemental agreement was entered into by the heirs mentioned in the will re-establishing the trust provided for in the will, and also providing for the immediate sale of the real estate consisting of the boathouse property. Both agreements were approved by the decree in the chancery proceedings. On March 28, 1922, plaintiff was paid the $1,600,000 plus $104,222.23 in interest. The real estate was sold for $55,000, and any controversy because of it disposed of together with its cause. The parties then believed that they were finally rid of both, but plaintiff, after almost 18 years, in the. present proceed ings seeks to set aside the settlement as far as it concerns Mm.
Matilda Wilson elected to take under the statute instead of under the will. Statements were filed by the trustees each year, and the litigation appeared to have ended. The records of this court do show that in 1927, or thereabouts, plaintiff and others filed a petition in the circuit court for the county of Wayne, claiming that they were entitled to share in the personal as well as the real property of the estate of Anna Margaret Dodge, a deceased minor. The case reached this court and we made disposition as hereinbefore stated. In re Dodge’s Estate, supra. Plaintiff, at that time, was represented by other counsel. He did not make any claims that he asserts in the instant suit, nor would they have been pertinent. It would, however, be reasonable to suppose that if the rights he now asserts had then appeared to have any merit, his.counsel would have discovered them and prompted him to take action.
Years passed by until May 20, 1939, when plaintiff filed his present bill of complaint. He makes many charges. He repudiates the settlement, asserts that the approval proceedings were improper, that the circuit court in the 1921 suit had no jurisdiction in the premises, that Act No. 249, Pub. Acts 1921, was unconstitutional, that the agreement became inoperative, the parties being released through its provisions not being carried out, et cetera. His main charge is that the trust provisions of the instrument were null and void ab initio, because real estate was included with personal property in the trust provisions and, therefore, they violated the statutes hereinafter set forth, that neither by agree ment nor by court decree could something be made out of an illegality or something forbidden by statute, that whatever moneys plaintiff received in the attempted settlement were only part of his intestate share of the trust property, and, therefore, were part of his own and not that of others.
The settlement agreement, the supplemental agreement, full exemplifications of records of all the court proceedings, both in the chancery and probate courts, are incorporated by reference in and attached to the bill of complaint in the instant case. Defendants in their answers claim that the proceedings in the chancery and probate courts are res judicata, that all proceedings were regular and legal, that even without the chancery proceeding the trust provisions of the will were legal, and that, if there is any taint of fraud or illegality in the action of the parties, plaintiff was an active participant and, therefore, did not come into court with clean hands, that his claim was barred by the statute of limitations, et cetera. We have only given the barest outline of the claims of the respective parties, although we have considered aH, of them and can just touch upon the many questions raised in over 700 pages of briefs and 600 pages of record.
Defendants moved to dismiss the bill of complaint as amended. They claimed that the allegations in the bill, well pleaded by plaintiff, together with the exhibits attached to the bill of complaint, conclusively prove that plaintiff is not entitled to any relief. There is no question but that on the motion to dismiss, well pleaded allegations not controverted by the exhibits attached to the bill must be considered as true. At the outset any innuendo indicating fraud by defendants or their attorneys is entirely dispelled by the frank admission of plaintiff’s- counsel that no fraud is charged. We also disregard the claim that Act No. 249, Pub. Acts 1921, was improperly enacted for the purpose of the former litigation in order to make something legal that would otherwise have been illegal. No impropriety is shown; validating legislation is common. The act speaks for itself.
We do not overlook the fact that plaintiff and his former counsel participated in the former litigation approving of the settlement agreement and brought in accordance with the provisions of Act No. 249, Pub. Acts 1921, which they now assail. - In reference to the charge that the rehabilitation of the trust by the supplemental agreement, which was entered into contemporaneously with the settlement with plaintiff, was for the purpose of avoiding taxes, we find no well pleaded facts on which such charge can be sustained. No fault can be found in an effort to maintain a trust established by a testator in a legal manner even if its tendency is to keep taxes down when there is no fraud. As was said in Goodrich v. City National Bank & Trust Company of Battle Creek, 270 Mich. 222, 232, “The government has ample authority to conserve its power of taxation.” We shall not consider other charges in plaintiff’s bill which are wholly unsupported by facts. They are merely conclusions on his part. That is not enough. On the other hand, plaintiff’s charges that are well pleaded in the bill of complaint are answered fully and completely by the exhibits annexed to the bill of complaint. Under 3 Comp. Laws 1929, § 14120 (Stat. Ann. § 27.814), and Court Rules No. 17, § 7 (1933), No. 18, § 1 (e) (1933), and No. 23, § 8 (1933, as amended in 1938), a motion to dismiss was proper. Even before the adoption of these rules, however, although in Siegmeyer v. Small, 254 Mich. 679, 680, we held that “Former adjudication must be pleaded in bar, and cannot be considered under * * * motion to dismiss. * * # Such an issue required a plea in bar and proof in support thereof,” we also pointed- out the reason for the rule there applied by saying: ‘ ‘ The bill of complaint does not present the question of former adjudication. Extrinsic proof was necessary. ’ ’
This reason does not exist in the case at 'bar, for here the bill of complaint sets forth the former adjudication verbatim and incorporates it. Such a bill would be subject to demurrer at common law on the ground of res judicata. The rule that facts well pleaded must be taken as true on demurrer does not extend to conclusions of fact or law (Schwab v. Mabley, 47 Mich. 572; Churchill Township v. Cummings Township, 51 Mich. 446), or to contradictory statements (Heth v. Smith, 175 Mich. 328). Where allegations contradict official records, the records and not the allegations are to be taken as true, and such allegations of fact in a bill of complaint, contradicting the records which are attached to such a bill, are not well pleaded and are inadmissible. That the record of a court, judicially determined to be entirely regular, must be accepted as the highest and final evidence of the facts involved, was decided in Steele v. Bliss, 170 Mich. 175, 184, and the validity of that principle is not affected by the fact that on rehearing we changed our opinion therein on another ground. Mere statements that -defendant’s acts were “unlawful” may be regarded as surplusage. Williams v. Raper, 67 Mich. 427, 429. Plaintiff relies on the case of Brachman v. Hyman, 298 Mich. 344, which is not at all pertinent. In that case, we held that a mandamus judgment cannot be res judicata if, as alleged in the bill of complaint, its procurement was wholly unknown to plaintiff at the time, and part of a fraudulent scheme, when the truth of such allegations well pleaded can only be determined after taking testimony whereupon it can be ascertained whether there was any merit to plaintiff’s contention. In the instant case, no such fraudulent conspiracy is alleged, nor any lack of knowledge on plaintiff’s part of the prior proceedings in which he actually participated. We repeat that plaintiff expressly disavows fraud. The trial court dismissed the amended bill in the instant case on the ground that the facts well pleaded show that the issues raised are res judicata and that the settlement was legal and proper. Plaintiff appeals from the decree dismissing the bill.
Plaintiff now claims that the entire settlement was illegal, 'that it was simply a method to circumvent the laws of the State of Michigan, that nothing whatsoever could be done to legitimatize something evil and prohibited by law, that the existence of the boathouse property vitiated the entire will and set up a trust in violation of 3 Comp. Laws 1929, § 12934 (Stat. Ann. § 26.14): .
1‘ Every future estate shall be void in its creation, which shall suspend the absolute power of alienation for a longer period than is prescribed in this chapter ; such power of alienation' is suspended when there are no persons in being, by whom an absolute fee in possession can be conveyed,”
and 3 Comp. Laws 1929, § 12935 (Stat. Ann. § 26.15):
“The absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section. ’ ’
Plaintiff further claims that such trust being absolutely void in its creation, a nullity, beyond any curative measures, nothing possibly could be done to animate something nonexistent; that therefore the trust provisions of the will failed and the property should have been distributed as if there were no will, and, therefore, plaintiff, instead of receiving any consideration for signing the agreement, only received a payment on account from a larger sum which he claims is indisputably due him.
Defendants, however, maintain and insist that the entire trust is good, the settlement was made after a good-faith controversy, and that neither they nor plaintiff’s counsel at the time had the prescience or omniscience to be able to foretell that in 1938, in the ease of In re Richard’s Estate, 283 Mich. 485, this court would hold that the presence of an almost inconsiderable proportion of real estate included in the trust property would vitiate the entire trust if its provisions were contrary to the statutes against restraint of alienation of real property, though not contrary to the common-law rule against perpetuities applicable to personal property in Michigan. The attorneys were aware of the disposition of this court to carry out the wishes of the testator according to the provisions of a will to the extent that they legally could be carried out. Such tendency has seen more recent expression in our decisions in Gettins v. Grand Rapids Trust Co., 249 Mich. 238; Loomis v. Laramie, 286 Mich. 707; De-Buck v. Bousson, 295 Mich. 164. Could not the wishes of the testator be safely carried out without doing violence to the law, the trust being held good as to the almost .99.9 per cent, of the property consisting of personalty, the scintilla of real estate being declared intestate property? We pass the question as not necessary to decision.
Attorneys for defendants also claim the trust provisions of the will are absolutely valid, notwithstanding that the trust estate contains real estate. They point to the following provision of the will:
“20. If same can he done legally, then I direct my said trustees to cause a corporation to be organized under the laws of the State of Michigan to be known as the John F. Dodge Estate, and, excepting the real and personal property specifically devised and bequeathed by the terms of this will, I hereby authorize and direct my said trustees to transfer and convey to such corporation by proper assignments, transfers, bills of sale, and deeds of conveyance, either with or without covenants of warranty as to my said trustees shall seem best, all property, real or personal of which I shall die seized or possessed, or which I shall own or be in any way interested at the time of my death, or which shall in any way accrue to my estate after my death.
“I direct my said trustees to take and hold, in their own names as trustees under this will, so much of the capital stock of said John F. Dodge Estate corporation as by law they may be entitled to hold, and to select such other person or persons to hold the remainder thereof as in their judgment shall seem best; my said trustees to at all times retain complete control of the management and affairs of said corporation and to direct its operation and affairs of said corporation and to direct its operation and affairs as part of their duties as trustees hereunder.
“If, for any reason, it may not be legal to carry out this clause of my will, then, in that event, my said trustees shall carry out the provisions of this will as if this clause were not inserted herein.”
They claim that this was an absolute direction or mandate by the testator to convert at once all of his property into personal property by forming a new corporation, transferring the assets to it and taking shares of stock in lieu of the real and personal assets turned over to such corporation. This would have the same effect as a mandate to sell real estate upon the death of the testator, namely, an equitable conversion of the real estate into personal property as of testator’s death even though the trustees have for the time being failed to carry out the instructions, under the rule announced in Michigan Trust Co. v. Baker, 226 Mich. 72, 76, 77. Defendants state without contradiction that under the corporation law existing at the time of the death of testator a trust corporation could have been legally formed to carry out the terms of the trust.
Again defendants assert that provisions of the trust section of the will, which we find unnecessary to quote, providing for annuities to certain relatives, in no way restrain alienation. Such annuities are payable out of the income from the estate whether it be real or personal property, and there could be no final distribution except after provisions were made to safeguard the payments of such annuities. This duty was recognized in the settlement in 1921. Defendants claim that the lives of the four children must be regarded as a class and as to them the estate is only tied up for one life, namely, that of the ultimate survivor of that class. They assert that this is the law of Michigan, and rely on Kemp v. Sutton, 233 Mich. 249, later approved in Felt v. Methodist Educational Advance, 247 Mich. 168. In Kemp v. Sutton, supra, 260, the court quoted from Smith’s Appeal, 88 Pa. 492 :
“It matters not how many lives there may be so that the candles are all burning at the same time, for the life of the longest liver is but a single life.”
The court also said in Felt v. Methodist Educational Advance, supra, 171:
“The decisions of this court upon the question are not harmonious. It would be fruitless to discuss them or the opinions of other courts. Our later cases hold that the devise of a life estate to a class collectively creates an estate for one life only, that of the ‘longest liver’ of the class, and is to be so taken in determining the period of suspension of power of alienation.”
While we are much impressed by the arguments of attorneys for defendants in regard to the legality of' the trust, it is unnecessary to pass'upon them except to show the uncertainties with which counsel of both plaintiff and defendants in the former litigation were confronted. The notice of contest in the will case, the decree of the court entered November 29, 1921, in the former chancery case holding that plaintiff’s contest at that time was in good faith, the settlement agreement, all exhibits in the amended bill of complaint in the instant case, convince us beyond peradventure that the contest was made and the settlement entered into in good faith, that the latter became binding, and that the decree in the former chancery case and the order of the probate court admitting the will to probate became res judicata and plaintiff was and is bound thereby.
Plaintiff claims that the chancery court never had jurisdiction and that the probate court lost whatever jurisdiction it may have had by advancing the hearing to a day prior to that to which it previously had been adjourned, though all parties were present when the advancement was ordered, and at the hearing. Plaintiff claims that Act No. 249, Pub. Acts 1921, was unconstitutional in that its title, being prospective, prevented it from applying to contests, controversies or settlements arising or concluded before the effective date of the act, and confined its operation to cases where one or all of these elements occurred after such date. The will contest was still pending in the probate court on August 18, 1921; tbe chancery suit bad not yet been commenced. Tbe settlement agreement, though signed by tbe adults, bad not yet been executed on behalf of tbe other necessary parties on that date, and hence at that time did not bind anyone finally. In a very real sense, therefore, both tbe will contest and tbe trust controversy were pending when Act No. 249 went into effect, and, as it was procedural in nature, it was properly invoked. Tbe title speaks for itself, and defies tbe restricted construction put upon it by plaintiff:
“An act to provide for tbe compromise, settlement or adjustment of any contest of tbe probate of any instrument propounded for probate as tbe last will of a deceased person or of any controversy arising concerning tbe interpretation, effect or validity of any such instrument, or arising in tbe administration of an estate under a will or under a trust created by a will, when there is or may be any person interested who is a minor or otherwise without legal capacity to act in person or whose present existence or whereabouts cannot be ascertained, or when there is any inalienable estate or interest or future contingent estate or interest which will or may be affected by any such compromise, settlement or adjustment. ’ ’
Tbe settlement agreement was dated June 27,1921. Tbe act did not become effective until August 18, 1921. There is no question, in view of tbe agreement and what transpired, that tbe settlement agreement was made in contemplation of securing tbe consent of tbe minors, unborn heirs, future contingent interests, et cetera. In paragraph 5 of tbe agreement, six months was set as tbe maximum time for obtaining such consent. Tbe agreement was made immediately (though contingently) binding on tbe adult signatories. Such binding effect would be lost if six months passed without obtaining tbe necessary con sents on behalf of the minors, the nnborn and the contingently interested. Though stated in the form of a condition subsequent, this condition was in effect a condition precedent, for the contract was not to bind all of the parties until it should be fulfilled. They contemplated that its performance would not be completed until after the effective date of the act. The question before us is whether an agreement drawn up at a time when performance would, according to the claims of plaintiff, be unauthorized by law and contrary to public policy but the performance of which was intended by the parties to be deferred until the contemplated change by law in such policy, is valid or void. The well pleaded facts show that the settlement agreement was to go into effect after the effective date of the act and that it was so carried out. Such a contract is valid. Columbus, P. & I. R. Co. v. Railroad Co., 5 McLean, 450 (6 Fed. Cases, No. 3,047); Taylor v. Railway Co., L. R. 4 H. L, 628 (23 L. T. 657, 39 L. J. Ex. 217); Farber v. John Aquino Sons, Inc., 253 App. Div. 600 (3 N. Y. Supp. [2d] 236); Godfrey v. McArthur, 186 Okla. 144 (96 Pac. [2d] 322); annotation, “Validity and enforceability of contract which was contrary to statute or public policy when made, as affected by subsequent change of law,” “IV. Validity of contract made with reference to contemplated statutory change,” 126 A. L. R. 701-703.
There is a reference in paragraph 5 of the agreement to the obtaining of judicial approval of the entire agreement. It is obvious that plaintiff’s counsel at the time knew of Act No. 249, supra, and such knowledge will be imputed to plaintiff. In addition to this fact, Act No. 249, supra, probably was resorted to through an abundance of caution. Under the circumstances, we need not discuss the application of the rule set forth in Brown v. Kalamazoo Circuit Judge, 75 Mich. 274 (5 L. R. A. 226, 13 Am. St. Rep. 438). In. passing, we call attention to Metzner v. Newman, 224 Mich. 324 (33 A. L. R. 98), where we held that the chancery court had jurisdiction, independent of that statute, to adjudicate the rights and equities of infants by approving, as in the best interests of such minors, a 'settlement agreement compromising litigation involving a will contest. Insofar as the present bill attacks the 1922 probate order admitting the John F. Dodge will to probate, such attack is clearly collateral, and, therefore, unsustainable, under Chapin v. Chapin, 229 Mich. 515, which holds that orders of the probate court are res judicata, not subject to collateral attack.
Plaintiff further claims that the settlement agreement was null and void because it was not subscribed to by all of the parties, no one having appeared for Anna Margaret, a minor child, who was not provided for in the will, and was born subsequently to making the will, and died April 13, 1924, while still an infant. A complete share was set off to her the same as if there had been no will. She had no direct interest whatsoever in the controversy. The settlement agreement of June 27, 1921, signed by plaintiff, recites that Anna Margaret Dodge was not a party because she had no interest one way or the other in the subject matter thereof. Plaintiff, however, contends that inasmuch as the trust provision of the will provided that upon the death of all his children, Winifred Dodge Gray, Isabel Cleves Dodge, Frances Matilda Dodge and Daniel George Dodge, then the trustees were to convey the estate to the heirs of such children, and that, therefore, Anna Margaret Dodge had a contingent future interest in the corpus of the trust since the possibility existed that one or more of the other children of testator might die without parent or issue surviving him or her, and in that event Anna Margaret, as surviving sister, would be entitled to share with the others. Of course, this possibility never materialized. She was the first of all of the children to die and her survivors became her heirs. In re Dodge’s Estate, supra. Since all of the parties including plaintiff expressly excluded Anna Margaret Dodge as a necessary signatory to the settlement agreement, it is difficult to see on what ground her signature can now be held to be necessary. The fact that she was not a party to the settlement would prevent her or her heirs from relying on it by way of defense in a suit in which she or her heirs might be involved. Plaintiff has not sued her or her heirs since the theory of his suit is that his father died intestate as to the property subject to the trust, and that the defendants, whom he is suing, have received or will receive more than their intestate shares if the trust is allowed to continue, that he has received less than he is entitled to and that the defendants, therefore, are unjustly profiting at the expense of his share, — a charge he could not make, by hypothesis, against Anna Margaret or her successors in interest. He disclaims the validity of the trust. He attempts to repudiate the settlement in which he agreed with all the others that Anna Margaret Dodge was not a proper party and at the same time he claims the trust estate was intestate. His position is not tenable. He now claims that Anna Margaret Dodge had a contingent future interest which should have been recognized by a separate guardian in the former chancery proceedings. The common-law nature of contingent remainders as mere possibilities rather than as estates was described by us, citing Hadley v. Henderson, 214 Mich. 157, and quoting from In re Coots’ Estate, 253 Mich. 208, 215, in Stevens v. Wildey, 281 Mich. 377, 379-380, as follows:
“The rule in this State is that, unless the will bespeaks a different intention, no estate vests in a contingent remainderman until the happening of the contingency, where the remainder is contingent on the life tenant dying without issue or lineal heirs, because survival of the life tenant by the contingent remainderman is a condition precedent to the latter’s taking. ’ ’
We further noted that while Act No. 211, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 12966-1, Stat. Ann. § 26.47), had changed the rule, the statute was not retroactive. To like effect see In re Banks’ Will, 87 Md. 425 (40 Atl. 268), and DuBois v. Judy, 291 Ill. 340 (126 N. E. 104).
It is unnecessary, to pass upon the other reasons for not joining Anna Margaret in the agreement in the previous chancery suit. The settlement agreement providing that she had no interest in the controversy was signed by plaintiff. Paragraph 19 of his present bill shows that plaintiff’s attorneys participated in the chancery suit in which the settlement agreement was approved, and agreed to such approval. And Exhibit D-18, attached to and incorporated in the instant bill, being the order of approval and confirmation by the chancery court entered March 18, 1922, was not only signed by the judge, but was unqualifiedly O.K.’d and signed by plaintiff’s attorneys. No appeal was taken from the decree or this order by plaintiff. He received what the settlement agreement provided. None of the minors who have now become of age or those for whom guardians were appointed in the instant suit have objected to or disavowed the settlement.
Petitioner claims that there was such a hiatus in the original probate proceedings that the court lost jurisdiction, and hence that the order admitting the will to probate was a nullity. The time for hearing the petition for the probate of the will was adjourned 30 times. On June 16, 1921, the date again set for hearing after the former adjournment, an entry of continuance to June 23, 1921, appears on the face of the petition for probate of the will and the docket of the court and in the short book, but there was no journal entry to that effect. On June 23, 1921, an order of continuance to July 12, 1921, was entered on the journal. However, on June 29, 1921, an order was entered stating that, all parties concerned being represented in open court and it appearing to the court that the order made and entered on the 23d day of June 1921, adjourning the hearing on thé petition to July 12, 1921, was made through an inadvertence and a mistake, therefore, it was ordered that such previous order be vacated, and that the hearing be continued to the 29th day of June, 1921, at 2 o’clock in the afternoon. Petitioner does not claim that he was not present or not represented at the time, or that he in any way objected or was in any way harmed by the failure to enter the continuance on the journal of June 16th, or by the setting aside of the order of continuance to July 12,1921, because of inadvertence or mistake. Even if there were any merit to plaintiff’s claim, he is precluded from insisting on it 17 years after-wards.
He further claims the will was not properly proven because only one witness was sworn at the hearing. If there is a contest two witnesses, if available; should be sworn. In re Paul’s Estate, 289 Mich. 452. While there was a good faith contest, it would appear that it was in process of settlement inasmuch as the settlement agreement was dated June 27, 1921, subject to the carrying out of subsequent proceed ings so as to make tbe agreement binding on tbe minors, et cetera. In bis appeal from tbe probate to tbe circuit court, plaintiff did not allege lack of proof at tbe bearing as one of bis grounds. On March 20, 1922, a judgment was entered in tbe circuit court on tbe appeal case where it was found that tbe instrument, tbe allowance of which bad been appealed from, was in fact tbe last will and testament of John F. Dodge and was entitled to be allowed as such and it was adjudged that such instrument was tbe last will and testament of John F. Dodge. We see no merit whatsoever to plaintiff’s claims that tbe will was not properly probated.
Plaintiff claims that tbe settlement agreement and supplemental agreement, dated June 27, 1921, and attached to tbe bill of complaint and tbe proceedings, orders and decrees of tbe circuit court for tbe county of Wayne, in chancery, purporting to approve and authorize said agreements, were and are null and void ab initio. We find Act No. 249, Pub. Acts 1921, constitutional and properly invoked in tbe former chancery proceedings and tbe proceedings regular. We also find that tbe decree therein is res judicata. Plaintiff, however, claims that courts may not validate something forbidden by law as against public policy. We are quite convinced from tbe record that there was some doubt as to tbe outcome of tbe will contest and tbe trust controversy,- there is no doubt, however, that both contest and controversy were in good faith. With tbe uncertainty over tbe questions raised, plaintiff’s counsel were willing to settle for almost 60 per cent, of what plaintiff’s share would have been at tbe time of bis father’s death bad there been no will, computing on tbe basis of what was found to be tbe share of Anna Margaret, who took as if there bad been no will. Act No. 249, Pub. Acts 1921, was enacted for the very purpose of settling questions over the validity of a will, when they are raised in good faith. The exhibits attached to the bill of complaint show beyond question that there were both a good-faith will contest and a good-faith trust controversy over the validity of the trust provisions of the will. The strengthening corroboration shown in the deposition tahen before the hearing in the instant case and introduced by plaintiff is not needed. The purpose of the proceedings was not to perpetrate a fraud or to attempt to right something that was malum in se. The settlement agreement was approved by judicial decree. It became res judicata.
There is no claim by plaintiff that there was either intrinsic or extrinsic fraud in securing the decree. Had there been intrinsic fraud, remedy would have been by motion for rehearing and appeal; had there been extrinsic fraud only by prompt action and proper showing would plaintiff have had a footing in an equity court in the instant case. Steele v. Culver, 157 Mich. 344 (23 L. R. A. [N. S.] 564); Becker v. Welch, 206 Mich. 613; Columbia Casualty Co. v. Klettke, 259 Mich. 564; Graure v. Detroit Lumber Co., 260 Mich. 47; Hofweber v. Detroit Trust Co., 295 Mich. 96; Fawcett v. Atherton, 298 Mich. 362. Such is the well established doctrine of the United States Supreme Court (United States v. Throckmorton, 98 U. S. 61 [25 L. Ed. 93]), and of the texts (5 Pomeroy, Equity Jurisprudence (4th Ed.), §2077; 126 A. L. R. 390-410). There not having been any fraud charged or proven in the first chancery suit, and jurisdiction having attached, the decree is res judicata.
In Hatt v. Green, 180 Mich. 383, Rollo Hatt, a grandson of testator, was born after the execution of the will, and therefore was not mentioned in it. Testator died in 1899, and shortly afterwards his executors obtained-a decree from the circuit court construing the will, in a suit in which Rollo was made defendant. The decree adjudged that Rollo was entitled to no interest in testator’s estate. About 12 years afterwards Rollo Hatt, among others, brought a bill for an accounting against the executors. In deciding against his claim, we pointed out:
“Moreover, he was a party to the proceeding in which the will was construed and his rights determined. No appeal was taken from that decree, and it stands as the law of the case.”
The United States Supreme Court is likewise firmly committed to the public policy favoring the plea of res judicata. In Treinies v. Sunshine Mining Co., 308 U. S. 66, 78 (60 Sup. Ct. 44, 84 L. Ed. 85), the opinion closes with this summarizing paragraph:
“One trial of an issue is enough (Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U. S. 522, 525 [51 Sup. Ct. 517, 75 L. Ed. 1244]). ‘The principles of res judicata apply to questions of jurisdiction as well as to other issues’ (American Suretg Co. v. Baldwin, 287 U. S. 156, 166 [53 Sup. Ct. 98, 77 L. Ed. 231, 86 A. L. R. 298]), as well to jurisdiction of the subject matter as of the parties (Stoll v. Gottlieb, 305 U. S. 165, 172 [59 Sup. Ct. 134, 83 L. Ed. 104]).”
And where a holder of drainage district bonds ignored notice of hearing before the Federal district court in proceedings to readjust the bonded indebtedness of the drainage district, he was concluded by the final decree in such proceedings, although the statute under which the court had acted was subsequently declared unconstitutional in a suit' between other parties. The court had not expressly found that the statute was constitutional or that it had jurisdiction; no question as to its jurisdiction had been raised, and it had simply assumed that it had it. The holder’s subsequent action on the bonds was held barred by the prior adjudication in Chicot County Drainage District v. Baxter State Bank, 308 U. S. 371, 377, 378 (60 Sup. Ct. 317, 84 L. Ed. 329):
“There can be no doubt that if the question of the constitutionality of the statute had actually been raised and decided by the district court in the proceeding to effect a plan of debt readjustment in accordance with the statute, that determination would have been final save as it was open to direct review upon appeal. Stoll v. Gottlieb, sugra.
“The remaining’ question is simply whether respondents, having failed to raise the question in the proceeding to which they were parties and in which they could have raised it and had it finally determined, were privileged to remain quiet and raise it in a subsequent suit. Such a view is contrary to the well-settled principle that res judicata may be pleaded as a bar, not only as respects matters actually presented to sustain or defeat the right asserted in the earlier proceeding, ‘but also as respects any other available matter which might have been presented to that end.’ Grubb v. Public Utilities Commission of Ohio, 281 U. S. 470, 479 (50 Sup. Ct. 374, 74 L. Ed. 972); Cromwell v. County of Sac, 94 U. S. 351, 352 (24 L. Ed. 195).”
From these authorities we hold that conclusions of law and fact actually reached by the court in the earlier proceeding (especially those incorporated in the decree by way of preamble) are res judicata, and further, that a prior decree precludes litigation of any issue of law or fact which a party to the earlier proceeding could have raised to sustain or defeat the claim therein advanced, though he did not do so. In his present bill and statement of reasons and grounds of appeal, plaintiff makes a dozen or more distinct attacks on the validity of the set tlement agreement, the constitutionality of Act No. 249, Pub. Acts 1921, and the conformity of the approval proceedings to the requirements of that statute and other statutes. Every point so advanced was either expressly passed upon in a manner unfavorable to plaintiff’s present claim in the decree, or could have been, but was not, advanced by plaintiff (then defendant) to defeat the approval sought by the bill of complaint, in the 1921 suit. As against the former class of contentions, that decree is res judicata, under the rule of Stoll v. Gottlieb, supra; as against the latter class it is res judicata under the rule of Chicot County Drainage District v. Baxter State Bank, supra. Errors into which the judge may have fallen in disposing of one or more such contentions in 1921 (although we find none) do not entitle plaintiff to the relief sought by this bill, for the present suit is not an appeal from the former one. Though no question of any kind as to constitutionality was raised in the 1921 proceedings, the decree therein must be regarded as an adjudication against plaintiff’s present contentions, that Act No. 249, Pub. Acts 1921, denies due process and that its title is inadequate to cover a grant of jurisdiction, just as in the Drainage District case, the readjustment decree was held by the United States Supreme Court to be res judicata against the contention (afterwards sustained in a different suit by the United States Supreme Court) that the municipal debt readjustment act unduly extended the Congressional bankruptcy power, though no claim of unconstitutionality had been made in the readjustment proceedings.
To prevent misunderstanding we desire to state that the present bill does not justify an inquiry into the merits of the 1921 decree because it is not a direct attack thereupon, inasmuch as it prays that the prior decree be declared .void, not as its principal end and object, but merely as a means to another end which is its principal object, i. e., the rendering intestate ab initio of the trust property. Furthermore, although it was once possible in this State to review the merits of an old decree by bill of review, bills of review were abolished, and replaced by motions for rehearing subject to strict limitations which have long since expired in the present case by Court Buie No. 48, §§ 1, 4 (1933).
We have not overlooked the sentence, quoted by counsel for plaintiff from Rose v. Southern Michigan National Bank, 255 Mich. 275, 278, “It may be conceded that unless the agreement is so signed (i. e., signed by all the persons whose signatures are required by Act No. 249) the court has no jurisdiction to approve it or authorize its execution by others, ’ ’ but we note that the question of res judicata was not present in that case, since that was a direct appeal from the lower court’s decision.
We note in passing the breadth of the language of the settlement agreement: plaintiff relinquished “any and all right, present or future, which first party has or may have, or claim to have, of, in or to the estate of John F. Dodge, deceased. ’ ’ Such language, no fraud being alleged, was held to exclude parol evidence that any particular claim was not intended to be included in Erkiletian v. Devletian, 299 Mich. 95, 100, collecting cases involving similar language.
Independent of the question of res judicata, there is the defense of compromise and settlement, which, if sustainable, would defeat the instant bill whether there had been any prior adjudication or not. Plaintiff invokes the rule that settlements of claims or defenses based on violations of public policy consisting of acts mala in se cannot be upheld. But we have been able to discover no case, and counsel have produced none, which holds that where there is an honest dispute between competent legal minds as to what the law of perpetuities or restraint of alienation is, the parties cannot settle their differences in such a way as to preclude subsequent resort to the courts.
There is, on the contrary, a host of decisions which recognize that, where a doubt as to what the law is has been settled by a compromise, a subsequent judicial decision by the highest court of the jurisdiction upholding the view adhered to by one of the parties affords no basis for a suit by him to upset the compromise. Lewis v. Cooper, Cooke (3 Tenn.), 466; Owen v. Hancock, 38 Tenn. 563, 572, 573; Spurlock v. Brown, 91 Tenn. 241, 260 et seq. (18 S. W. 868); Leach v. Cowan, 125 Tenn. 182, 206, 207 (140 S. W. 1070, Ann. Cas. 1913C, 188); Danheiser v. Germania Savings Bank & Trust Co., 137 Tenn. 650, 658, 659 (194 S. W. 1094); Morris v. Munroe, 30 Ga. 630; City Ellectric R. Co. v. Floyd County, 115 Ga. 655, 657 (42 S. E. 45); Hume v. Davison-Paxon Co., 57 Ga. App. 289, 293 (195 S. E. 318); Gilek v. Stock, 33 Ill. App. 147; Stover v. Mitchell, 45 Ill. 213; Wells v. Neff, 14 Ore. 66 (12 Pac. 84, 88); Smith v. Farra, 21 Ore. 395 (28 Pac. 241, 20 L. R. A. 115); Coffee v. Emigh, 15 Col. 184 (25 Pac. 83, 10 L. R. A. 125); Warner v. Warner, 124 Conn. 625 (1 Atl. [2d] 911, 118 A. L. R. 1348); Wooley v. Shell Petroleum Corp., 39 N. M. 256, 269 (45 Pac. [2d] 927); Fisher v. May’s Heirs, 5 Ky. 448 (5 Am. Dec. 626); Underwood v. Brockman, 4 Dana (34 Ky.), 309 (29 Am. Dec. 407); Peirce v. New Orleans Building Co., 9 La. 397 (29 Am. Dec. 448); Notes, 26 Am. Dec. 61, 99 Am. Dec. 496, 497, 20 L. R. A. 795 et seq.; 25 L. R. A. (N. S.) 275-310; and 118 A. L. R. 1357-1363.
The rule is the same in England (Callischer v. Bischoffsheim, L. R. 5 Q. B. 449), and is stated as follows by Bowen, L. J., in Miles v. New Zealand Alford Estate Co., 32 Ch. 266, 291 (55 L. J. Ch. 801, 54 L. T. 582, 34 W. R. 669):
“The reality of the claim wbicb is given up (i. e., compromised) must be measured, not by the state of the law as it is ultimately discovered to be, but by the state of the knowledge of the person who at the time has to judge and make the concession. Otherwise you would have to try the whole cause to know if the man had a right to compromise it, and with regard to questions of law it is obvious that you could never safely compromise a question of law at all.”
The rule stated by the Georgia cases cited is succinct :
“Where parties have conflicting claims, depending on a law point, and they compromise them, each is bound by the settlement, whether the law point turns out to have been for or against them.”
The cases just cited involve settlements or disputes as to a great variety of legal questions. Only two approach the case at bar as to the nature of the dispute compromised. Thus, in Owen v. Hancock, supra, the following language, very pertinent to the case at bar, appears at the close of the opinion:
“Under all these circumstances, should a court of equity restore the plaintiffs to their legal advantage, on the question of advancement, and interfere with the solemn agreement of the parties, by which equality and justice were produced? We think not. It was a family settlement, in which the father, the children and their select neighbors joined in consultation, and deliberately agreed upon terms of adjustment. The complainants took the benefit of $3,000 and an additional slave under it, and should not now be heard to complain. It was a doubtful question of construction upon a will, and it was not improper to settle it by agreement and compromise, as a case of uncertainty, about which honest differences of opinion existed. There was no unfair advantage taken, or imposition practiced. If the complainants were mistaken as to their strict rights, it was a mistake of law on a question of very doubtful solution. If they acted upon their own judgment, or the reported opinions of others, as we think they did, they must abide by their contract and agreement. There is nothing in the case to move a court of conscience to relieve them.”
The case closest to the case at bar, because it involves the settlement of a dispute as to what was the law governing the descent of real estate when decisions of the highest court of the State were wanting upon the point, is Wooley v. Shell Petroleum Corp., supra, 269. There the owner died intestate and without issue. A dispute arose between her niece of the half blood, Nora Berry, on the one hand and the occupant of the premises, Clara Fowler, who had been taken into intestate’s home as a child upon intestate’s promise to the child’s actual father that intestate would formally adopt the child, such promise never having been executed, on the other. The pertinent facts and conclusions of the supreme court of New Mexico on this particular phase of the case are thus stated:
“For more than 10 years following the death of Mary L. Fowler, Clara Fowler remained in continuous and uninterrupted occupancy and enjoyment of the property and paid the taxes. Then appeared Nora Berry, claiming to be the sole heir of Mary L. Fowler. In the ensuing dispute both women were represented by competent counsel, and no fraud was practiced. Clara Fowler’s attorneys, to whom she disclosed the facts,"and who made further investigation, advised her that she would be unable to maintain, her claims. Negotiations led to a compromise. It was agreed that Clara should have the surface rights and Nora Berry the mineral rights. The necessary deeds were exchanged.
“In view of our present conclusion on the equitable rights of Clara Fowler, it is plain that she made an unfortunate compromise. We know now that she should have had both surface and minerals: we know the great disparity in value between them, and that Nora Berry should have had neither. It is of the very nature of compromise, however, that the parties weigh their chances of prevailing and risk their judgment. Frazier v. Ray, 29 N. M. 121 (219 Pac. 492).
“This is a fully executed compromise. It was induced on the part of Clara Fowler by a mistake of law. But she had every opportunity to have and did have competent and able counsel. Nora Berry took no advantage and exerted no pressure except firmly to maintain a claim of right possessing so many features of merit as to convince able counsel and the trial court, and as to induce the plaintiffs to risk expensive litigation of it.
“It will not do to say that the equitable rights were here so plain that Nora Berry’s claim was without foundation and that the transaction amounts to fraud. We find nothing to avoid the operation of the general rule, based on important considerations of public policy, that equity will support a compromise though based upon a mistake of law, and nothing to bring it within any of the decisions relied upon. ’ ’
The most fitting rebuttal to plaintiff’s assertion that he was denied due process of law in the former proceedings is to be found in the classic definition of due process by Judge Learned Hand:
“The requirement of due process is merely the embodiment of the English sporting idea of fair play.”
In the case of Lisenba v. California, 314 U. S. 219 (62 Snp. Ct. 280, 86 L. Ed. — ), decided December 8, 1941, tbe court said:
“As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. ’ ’
This statement applies equally to a civil trial, where the court properly obtains and retains jurisdiction.
Reviewing plaintiff’s participation, either in person, or by his attorneys, or both, in all previous proceedings, and his active cooperation in, and contemporaneous satisfaction with, the course they took, we are unable to find any denial of due process whatever.
Plaintiff’s other contentions are likewise without merit. Certain other defenses raised, such as plaintiff’s lack of clean hands, statute of limitations, laches, et cetera, need not be reviewed, because the case has been disposed of on the grounds already indicated.
In the last analysis, if the trust was valid, plaintiff has received far more than he was entitled to thereunder; if the trust was invalid, he has received all he was entitled to under a settlement which was brought about in the proper way.
The decree on the pleadings dismissing the bill of complaint is affirmed, with costs to defendants.
Chandler, C. J., and Boyles, North, Starr, Wiest, Bushnell, and Sharpe, JJ., concurred.
See 3 Comp. Laws 1929, §15549 (Stat. Ann. §27.2649).— Reporter.
See 3 Comp. Laws 1929, §§ 15564, 15565 (Stat. Ann. §§ 27.2664, 27.2665). — Reporter. | [
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Moore, J.
This suit was commenced by declaration, the first count of which was in assumpsit, the other two counts sounded in tort. The trial judge directed a verdict in favor of the railroad company. The plaintiff discontinued the suit as to the other defendant. The case is here by writ of error.
Plaintiff owned an elevator in Richville and shipped in February, 1915, two hundred and fifty bags of beans to the defendant Henry W. Carr Company at Saginaw as a car load lot over defendant railroad company’s line from Richville to Saginaw. This shipment was covered by an order bill of lading dated February 28, 1915, and recited the receipt from plaintiff of two hundred and fifty bags of beans, consigned to the order of J. L. Ortner, Saginaw, Michigan, notify H. W. Carr Company, Saginaw. To this bill of lading was attached a draft on defendant Henry W. Carr Company for the price of the beans, and it was sent through the bank and later returned unpaid to the plaintiff with the bill of lading. The car load of beans was sent to Saginaw but was not taken by Henry W. Carr Company. Plaintiff testifies that in May, 1915, defendant Carr told him that if he shipped the beans to Hammond, Indiana, that Post Brothers of that place would buy them; that soon thereafter plaintiff received by mail a bill of lading from Henry W. Carr Company partly filled out; that upon receiving this second bill of lading he went to the railroad company’s agent at Richville, and, after being assured by him it would be all right to do so, turned over to him the February bill of lading, and received from the agent at Richville the second bill of lading duly signed. Plaintiff testifies that at the time he received this second bill of lading and at the time he presented it to Rupprecht, the agent, it was all made out except the signature of the agent. The second bilk of lading is dated May 18, 1915, and recites the receipt from “owners” of two hundred and fifty bags of beans consigned “to order the Henry W. Carr Company of Sagináw,” Hammond, Indiana, notify Post Brothers at the same place. It is signed “Henry W; Carr Co., per A. E. W.,” Shippers, and “John Rupprecht,” agent.'
The words “consigned to order Henry W. Carr Co., of Saginaw” were printed on the bill of lading. It contained a provision as follows:
“The surrender of this original order bill of lading properly indorsed shall be required before delivery of the property.”
This bill of lading with draft on Post Brothers attached was delivered by the plaintiff to a bank for collection and was not paid. Plaintiff did not know Post Brothers and had never heard anything' from them except what he was told by Mr. Carr. The bill of lading and draft later were returned to the plaintiff by the bank. The plaintiff was unable to learn what had become of the beans and invoked the aid of the agents of the railroad company, and had several interviews with defendant’s agents. He later was notified they were with the Michigan Warehouse Company at Chicago. He tried to sell the beans and could not and finally went to Chicago to learn what was the trouble. What were said to be his beans were pointed out to him. He testified that the beans there shown him as having arrived in the car moving from Saginaw were not his beans. That his beans were handpicked and in new bags, while those shown him were cull beans and in old bags.
In the course of the correspondence plaintiff received the following:
“New York Central Lines.
“Michigan Central Railway Company.
“Saginaw, E. S., Mich., Sept. 24, 1915.
“Mr. J. L. Ortner,
“Richville, Mich.
“Dear Sir: Referring to your conversation regarding car load of beans shipped to Hammond, Ind., on May 14th m M. C. 46482.
“The Michigan Warehouse Company advised me at the present charges against this shipment up to and including October 4th will be $94.77 which is made up as follows:
“Freight charges and car service $68.52, storage $26.25. Would suggest that you have taken care of without delay to avoid paying further storage.
“Yours truly,
“S. S. Armstrong, Agent.”
A check was sent for this amount but the Michigan Warehouse Company declined to receive it without a surrender of the bill of lading. In October, plaintiff made a written demand on the railroad company for the beans or the value thereof. The defendant de dined to pay or them, assigning as a reason that the time limit in the bill of lading for making a claim had expired. November 9, 1915, plaintiff sent to the railroad company a draft of $68.52 in payment of its charges. This draft was indorsed by the railroad company and paid November 27, 1915.
Suit was commenced April 4, 1916. Defendants introduced no witnesses. As before stated, a verdict was directed in favor of the railroad, and it is insisted this was properly done. We quote from the brief of counsel:
“The case is clearly governed by the decision in Nelson Grain Co. v. Railroad Co., 174 Mich. 80 (140 N. W. 486). This case has been so recently and so frequently before this court that an extended review of the facts is unnecessary.”
The case cited differs from the case before us in the very important particular, that in that case the shipment was delivered to the consignee named in the bill of lading, while in the instant case there has been no delivery of the beans.
In Ithaca Roller Mills v. Railroad Co., 197 Mich. 440 (163 N. W. 934), Justice Fellows, speaking for the court, said:
“The bill of lading as drawn, made Voorheis Bros. prima facie the owner of the goods shipped; this upon the theory that, where goods are shipped through a carrier to a third party, on delivery to the shipper of a bill of lading, the consignee is prima facie the owner. But this presumption may be overcome by proof of facts showing the actual transaction and the intent of the parties. Sturges v. Railway Co., 166 Mich. 231 (131 N. W. 706); Turnbull v. Railroad Co., 183 Mich. 213 (150 N. W. 132). In the instant case the proof is conclusive and undisputed that plaintiff’s contract with Voorheis Bros, called for delivery of the goods to them at Homestead; the defendant acknowledge receipt of the goods for transportation from the plaintiff; named it in the bill of lading as the shipper; the contract of carriage was with it. Beyond question the plaintiff was the owner of the goods until their delivery to Voorheis Bros., was the owner when the damage was done, was the party with whom defendant contracted, and therefore can maintain this action in its own right for the negligent performance of the contract of carriage entered into between it and defendant.”
In the case we are considering the plaintiff put the railroad company in possession of the beans. He has always retained control of the bills of landing. The beans in fact have never been delivered. Instead of directing a verdict in favor of the defendant upon the showing made, one should have been directed in favor of the plaintiff.
The judgment is reversed and a new trial ordered, with costs to the plaintiff.
Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
OSTRANDER, C. J.
(after stating the facts). Under the circumstances disclosed here, including, of course, the fact that the attorney general advised the filing of the petitions, plaintiffs show such an interest as entitles them to institute this proceeding. Ayres v. Board of State Auditors, 42 Mich. 422; Thompson v. Secretary of State, 192 Mich. 512, 522.
Of the right of qualified voters of the State to propose amendments to the Constitution by petition it may be said, generally, that it can be interfered with neither by the legislature, the courts, nor the officers charged with any duty in the premises. But the right is to be exercised in a certain way and according to certain conditions, the limitations upon its exercise, like the reservation of the right itself, being found in the Constitution. The secretary of State is charged with certain duties in this behalf.
“Upon receipt of such petition by the secretary of State he shall canvass the same to ascertain if such petition has been signed by the requisite number of qualified electors, and if the same has been so signed, the proposed amendment shall be submitted to the electors at the next regular election at which any State officer is to be elected.”
Such petition. A petition including the full text of the amendment so proposed, signed by not less than ten per cent, of the legal voters of the State. The ascertainment of these facts which are to appear before he is charged with the performance of further duties involves the exercise of no 'discretion, the performance of none but a ministerial duty. The performance of a purely ministerial duty may involve something more than doing a prescribed thing in a prescribed way. Knowledge of the correlation of facts, the exercise of reason, the application of established principles and rules may be required before performance of a duty is indicated, before the fact upon the existence of which the duty arises can be said to be established. One must appreciate the meaning and effect of what appears upon the face of a petition before he can determine whether, upon its face, it imports one thing or another. As he might be compelled by mandamus to receive a proper petition, so by mandamus he may be compelled to refuse to receive an improper petition, since it is his duty to reject, at least to refuse to take further action concerning, petitions not conforming to the constitutional mandate. The jurisdiction of the court in the premises cannot be doubted, exercised within the limits herein indicated. Rich v. Board of State Canvassers, 100 Mich. 453; Livingstone v. Wayne Election Commissioners, 174 Mich. 485; Thompson v. Secretary of State, 192 Mich. 512, 521, 522.
Does the petition here in question contain the full text of the proposed amendment? This is the single question to be answered, and is a question of fact. The proposed amendment to the Constitution which is in question here is a single thing. A single subject-matter is involved. Upon the face of the petition an amendment to the Constitution is proposed, a change of the Constitution as it now exists. It is proposed to add section 12 to article 16, to stand as a section of the Constitution. The law to which that section refers, once in force, has now no sanction. The text of the law can be found. It is proposed that it “shall be in force and effect,” proposed therefore to enact a law, to give life, legal sanction, to a set of words and phrases, referred to but not set out. And it is proposed further that the matter referred to shall be modified in meaning by language found in sections 13, 14, 15, and 16 of the proposed amendment, each of which is to stand as an amendment of the Constitution. Upon the face of the proposition, it is clear enough that it is designed to make the matter found in the act referred to a part of the Constitution and that the full text of the proposed amendment is not contained in the petition.
An argument supporting this conclusion may be differently stated. Excepting the laws of 1917, passed to make effectual the provision of section 11 of article 16 of the Constitution, there is no law affecting the subject-matter of the proposed amendment. What is the apparent scope of the proposed amendment? Plainly, to permit, what is now forbidden, the manufacture and sale of certain liquors and to regulate such manufacture and sale. Where is the text, where are the words and phrases, constituting the regulatory rules? It is plain that they are not in the proposed amendment.
The idea that the secretary of State may reject one or more of the proposed sections is, of course, based upon the further idea that he has discretion in the premises and all concerned unite in denying that he has any such power.
The argument that section 12 of the proposed amendment is merely declaratory of a rule of law, that since section 11 of article 16 of the Constitution repealed, or made inoperative, the liquor laws, the proposed amendment of that section will ipso facto revive them is essentially unsound. It is not true that in this State the repeal of a repealing statute revives the statute repealed. 1 Comp. Laws 1915, § 65. And, moreover, as a declaration, section 12 leaves repealed a large body of law upon the general subject.
I conclude that it was the duty of the secretary of State to reject the petition, and is now his duty to refuse to proceed further to perform any duty imposed on him by article 17, section 2, of the Constitution in this behalf.
The writ will issue, but no costs are awarded.
Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
Per Curiam.
Plaintiffs appeal as of right the trial court’s January 7, 1991, award to the defendants of summary disposition based on the doctrine of forum non conveniens. We find no error and affirm.
All individual parties to this action are Indiana residents. The corporate parties are Indiana corporations having their principal offices in Indiana and are authorized to do business in Michigan. Plaintiff Hacienda Mexican Restaurants of Kalamazoo Corporation, as franchisee, and defendant Hacienda Franchise Group, Inc., as franchisor, negotiated ánd entered into an agreement in Indiana, authorizing plaintiffs to operate a franchise restaurant in Portage, Michigan. When plaintiff subsequently failed to make timely royalty payments, defendant exercised its contractual right to terminate the franchise agreement, sued plaintiffs in Indiana, and on or about April 24, 1990, obtained a preliminary injunction prohibiting plaintiffs from continuing their Portage, Michigan, franchise.
Plaintiffs on June 5, 1990, commenced the pres ent action in the Kalamazoo Circuit Court, alleging in count i of their complaint that they had been fraudulently induced to enter into the franchise agreement, and claiming in count n that defendants had violated the Franchise Investment Law (fil), MCL 445.1501 et seq.; MSA 19.854(1) et seq. Plaintiffs’ first amended complaint, filed on September 26, 1990, added to the monetary damages prayed for in the original complaint a request for rescission of the franchise agreement.
On July 17, 1990, defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(1), (6), and (7), claiming lack of personal jurisdiction. Their amended motion for summary disposition, filed on October 23, 1990, additionally claimed that pursuant to MCR 2.116(C)(7) the trial court should decline jurisdiction on the basis of the doctrine of forum non conveniens. After a hearing on the motion, the court ruled that it had jurisdiction, but declined to exercise it on the basis of forum non conveniens. Plaintiffs now appeal the award of summary disposition for defendants.
We need not decide whether MCR 2.116(C) is an improper vehicle for raising a claim of forum non conveniens, as plaintiffs initially maintain: Plaintiffs have failed to show any prejudice resulting from defendants’ use of a motion for summary disposition to present their forum non conveniens argument to the court. Plaintiffs were afforded an adequate opportunity to be heard regarding the matter and utilized it fully. Furthermore, we note that subrule 2.116(C) has previously served the very purpose that plaintiffs now question. Holme v Jason’s Lounge, 168 Mich App 132; 423 NW2d 585 (1988).
We find no merit to plaintiffs’ contention that the trial court abused its discretion in invoking the doctrine of forum non conveniens under these facts. In Cray v General Motors Corp, 389 Mich 382, 395; 207 NW2d 393 (1973), the Court stated:
The principle of forum non conveniens establishes the right of a court to resist imposition upon its jurisdiction although such jurisdiction could properly be invoked. It presupposes that there are at least two possible choices of forum.
The Court in Cray enunciated the factors that the trial court should consider in rejecting or accepting jurisdiction:
1. The private interest of the litigant.
a. Availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses;
b. Ease of access to sources of proof;
c. Distance from the situs of the accident or incident which gave rise to the litigation;
d. Enforcibility [sic] of any judgment obtained;
e. Possible harassment of either party;
f. Other practical problems which contribute to the ease, expense and expedition of the trial;
g. Possibility of viewing the premises.
2. Matters of public interest.
a. Administrative difficulties which may arise in an area which may not be present in the area of origin;
b. Consideration of the state law which must govern the case;
c. People who are concerned by the proceeding.
3. Reasonable promptness in raising the plea of forum non conveniens. [Id. at 396.]
The trial court’s decision whether to decline jurisdiction is a matter of discretion that "will not be overturned on appeal absent an abuse of discretion.” Holme v Jason’s Lounge, supra at 135.
Our review of the trial court’s findings discloses no abuse of discretion. Pursuant to Cray factor la, the court noted that although there would be some witnesses in Michigan, they were not critical to the action and all the significant witnesses were in Indiana. The court concluded that the significant documents and people were all in Indiana (factor lb) and observed that the situs giving rise to the litigation (factor lc) was a considerable distance from Kalamazoo. It was concerned about the enforceability of a Michigan judgment in Indiana (factor Id) if it was incompatible with the result of the pending Indiana case in which plaintiffs had already counterclaimed for relief. The court also recognized the possibility of harassment (factor le) if defendants were forced to litigate in Michigan after having already done so in Indiana; noted that because of the parties’ contractual choice of law provision, Indiana law would apply to a Michigan trial of plaintiffs’ fraud claim (factor 2b); found that the people affected by the proceeding were in Indiana (factor 2c); and held that defendants had raised the forum non conveniens issue promptly (factor 3).
We reject plaintiffs’ contention that the fil applies to the present facts. MCL 445.1504(1); MSA 19.854(4X1) provides in pertinent part that "[t]his act applies to all written or oral arrangements between a franchisor and franchisee in connection with the offer or sale of a franchise.” MCL 445.1504(2) and (3); MSA 19.854(4X2) and (3) define when an offer, sale, or acceptance is made in this state:
(2) An offer or sale of a franchise is made in this state when an offer to sell is made in this state, or an offer to buy is accepted in this state, or, if the franchisee is domiciled in this state, the franchised business is or will be operated in this state.
(3) An offer to sell is made in this state when the offer either originates from this state or is directed by the offeror to this state and received at the place to which it is directed. An offer to sell is accepted in this state when acceptance is communicated to the offeror in this state. An acceptance is communicated to the offeror in this state when the offeree directs it to the offeror in this state reasonably believing the offeror to be in this state and it is received at the place to which it is directed.
In this case, both the franchisor and the franchisee are Indiana corporations with their principal places of business in Indiana. The franchise agreement was negotiated and executed in Indiana. There was therefore no offer, sale, or acceptance made "in this state,” and the fil does not apply.
We note with interest the Michigan Attorney General’s belief that the fil is inapplicable to the facts of this case. In a document entitled "Assurance of Discontinuance,” summarizing the results of his investigation of defendant’s activities in Michigan, the Attorney General recognized "that the mfil does not apply to a nonresident franchisee such as the one sold to an Indiana Corporation to be operated in Kalamazoo County, Michigan.”
Plaintiffs’ reliance upon In re Dynamic Enterprises, Inc, 32 Bankr 509 (MD Tenn, 1983), is misplaced because that case is factually distinguishable. Unlike the case at bar, the defendants in Dynamic, including the franchisee, were Michigan residents. Id. at 514. Because the franchise was operated in Michigan, the Michigan residence of the franchisee would trigger application of the fil pursuant to MCL 445.1504(2); MSA 19.854(4)(2).
The court also observed thát "it is apparent that the parties intended that Michigan law be applied in enforcing and interpreting the contract.” Dynamic, supra at 514, n 2. By contrast, the franchise agreement in the present case contains a provision that the agreement “is to be construed according to the laws of the State of Indiana.”
The trial court did not abuse its discretion in declining jurisdiction on the ground that the balancing of interests favors an Indiana forum.
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Brooke, J.
Prior to the 13th day of March, 1913, 400 shares of stock of the Onaway-Alpena Telephone Co., a Michigan corporation, stood in the name of “Warren D. Baker or Martha E. Baker.” The par value of said stock was $25. This stock, or the stock of the Onaway Telephone Company, which was exchanged share for share for this stock, was purchased by Warren D. Baker from M. T. Streeter about the year 1911. Mr. Streeter was vice president of the telephone company and active in the management of its affairs. On said 13th day of March, 1913, Warren D. Baker died, and about six weeks later, on April 30, 1913, said Streeter went to the home of Martha E. Baker, the widow of Warren D. Baker, and, after some negotiations with her, secured possession of said stock certificates, giving her at the time the following papers:
$10,000.00 Union City, Mich., April 30,1913.
“On or before one year after date, I promise to pay to the order of Martha E. Baker, Ten Thousand Dollars, interest at seven per cent, paid each six months, at Mrs. Baker’s home. Value received.
“M. T. Streeter.”
“Union City, April 30th, 1913.
“This agreement made this day between M. T. Streeter of Lansing, Michigan, party of the first part and Martha E. Baker of Union City, Michigan, party of the second part,
“Witnesseth: the said first party has given his note for ten thousand dollars to be paid on or before one year for Onaway-Alpena Telephone stock, to be handled and sold and turned into cash to take care of said note bearing even date herewith.
“Morris T. Streeter.”
Of this stock, 180 shares of the par value of $4,500 were, by Streeter, turned over to the telephone company. The certificates of transfer being signed “Martha E. Baker, widow of Warren D. Baker,” and indorsed across the face: “Turned back and held as treasury stock.” Ninety-seven shares of such stock, said to be nonnegotiable, are outstanding in the name of Morris T. Streeter. The remaining 123 shares were disposed of by Streeter to persons who paid valuable consideration and purchased without notice. Prior to the commencement of this action Martha E. Baker assigned to John S. Nesbitt, plaintiff herein, as administrator of her husband’s estate, all the right, title, and interest in and to said certificates of stock. The bill was filed for the purpose of establishing the title to said stock in said Martha E. Baker. She testified that her husband had paid for said stock $10,000 in cash; that Streeter had on various occasions offered to sell said stock for her husband and herself if they desired to get their money back; that at the time she delivered said stock certificates to Streeter he represented to her that he would take the stock and have the certificates changed to certificates standing in her own name; that her understanding was that she was not making a sale of the stock to Streeter, but that she was turning it over to him as a representative of the company for the purpose indicated.
It is clear from the record that Streeter’s management of the telephone company was irregular in many respects; that he‘had illegally withdrawn from the treasury of the company considerable money and had sold stock of the corporation in excess of that allowed by the Michigan railroad commission. In July, 1913, he was ousted from the management of the affairs of the corporation and later appears to have absconded from the State. An action brought by the company to recover from him sums wrongfully taken by him from it could not be prosecuted because he could not be found within the State. A perusal of the record convinces us that Streeter by fraudulent artifice possessed himself of the certificates of stock here in question, knowing that he was dealing with a woman lately bereaved and of limited business experience. Under the facts as disclosed by this record there is no question but that Streeter could have been compelled to return the stock to the person from whom he secured it without consideration. As to the 97 shares that precise situation exists. Touching the 180 shares delivered by Streeter to the telephone company, the learned circuit judge held that as to these shares there was no evidence of any consideration having passed from the telephone company to Streeter; that the telephone company was not a bona fide holder for value without notice and that therefore the same should be issued to the plaintiff herein. The defendant introduced no testimony in the case, but Charles S. Davis, now president of the company, was called by plaintiff under the statute. The transaction between Streeter and the company occurred before Davis’s incumbency of the office of president. He testified:
“I think it (the stock), was received into the company’s hands to reimburse the company for money or stock that they had sold beyond what they had any right to sell.”
We can find no evidence in the record that the company parted with anything of value to Streeter at the time of the delivery to it of the 180 shares of the Baker stock or even that Streeter was credited for the value of the same upon his indebtedness to the company which it is said was considerable at that time. We have no doubt that under the authorities a constructive trust arose as to this stock in the hands of Streeter and that such trust follows the stock in the hands of any person not a bona fide holder for value without notice. Morris v. Vyse, 154 Mich. 253, and Weir v. Union Trust Co., 188 Mich. 452.
The claim is made on behalf of the appellant, the telephone company, that the failure of Mrs. Baker or her assignee, the administrator of her husband’s estate, to act earlier should bar them from the relief sought. Streeter was ousted from the management of the corporation in July, 1913, and the bill of complaint in this case was filed September 26, 1914. Mrs. Baker testified that in the meantime she had endeavored to correspond with Mr. Streeter, hut had failed to get into communication with him. The record does not disclose at what period she became aware of the fraud that had been practiced upon her. In any event the delay in starting the proceeding has apparently been of no disadvantage to the defendant telephone company. It has not changed its position in reliance upon her silence. While it is true that one defrauded must be active in disaffirming a contract obtained through fraud and must not sleep upon his rights, we are unable to find from this record that there was any unreasonable delay in action after the fraud was discovered.
The decree is affirmed.
Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Kuhn, J.
(dissenting). This is an action instituted by the plaintiffs as copartners doing business as Harmon & Brennan, but upon the trial of the case, on motion of plaintiffs’ attorneys, the allegation as to their being copartners was stricken from the declaration, so that the action proceeded with the plaintiffs as individuals against the defendant company.
George P. Harmon, acting as agent for the plaintiffs, went to the city of Kalamazoo on the 17th of September, 1915, and purchased an electric score board, to be used for the purpose of reproducing a game of ball which might be played at some distant city, play by play, showing every move made on the ball ground by having the same reproduced on this score board. It was a second-hand board, and after having purchased the same, Harmon took it to the defendant company’s freight office in the city of Kalamazoo and arranged to have it shipped to the city of Detroit. It is his claim that he talked with the defendant’s agent and was assured that the board, if shipped on that day, would be delivered in Detroit the next morning at 7 o’clock or thereabouts, and that he informed the agent at that time that he had leased a building in Detroit and wire service and also that he had heavily advertised the exhibition which he was to give, and that it was very important that the board should reach there on the morning of the 18th, and that if he could not be assured that the board would reach there at that time, he would ship it in some other manner. That' upon receiving assurance that the shipment would arrive in Detroit at the promised time, he left the board with the defendant, consigned to Harmon & Brennan in Detroit, and received the usual bill of lading, which he signed, and which was also signed by the representative of the defendant. That a triplicate thereof was executed and delivered to him, representing the shippers, at the time of the shipment. It further appears that after the score board was received by the defendant, defendant’s employees attempted to put it into the trailer car, which car usually went through to Detroit over the lines of the defendant company to Jackson and from there over the lines of the Detroit United Railway to its destination. It was found, however, that the score board was too large in size to put into the trailer car and it was put into the motor car, which did not go through to Detroit, but stopped at Jackson. Upon the arrival of this car at Jackson, the board was taken from the car and there was turned over to the Detroit United Railway, but on account of its size it was found impossible to place it in any car that the Detroit United Railway had in Jackson. It remained in Jackson all night, and on the following morning, upon instructions being received from the Detroit office of the Detroit United Railway, the score board was shipped from Jackson to Detroit by the American Express Company, leaving Jackson at about 10 o’clock in the morning of the 18th and due to arrive in Detroit about noon of that day. Mr. George Harmon, who had taken a train into Detroit the evening before, called at the office of the Detroit United Railway on the morning of the 18th, but the board not being there, he was informed by the agent of the Detroit United Railway that the board was at Jackson and would be sent at once by the American Express Company. Through some misunderstanding, however, he did not receive the board in time for the exhibition and in consequence claims to have suffered damages, for which this action was brought. The case was submitted to the jury and resulted in a verdict for the plaintiff in the sum of $1,677. After the trial, counsel for defendant renewed a motion which they had made for direction of a verdict, the final decision of which the court had held in abeyance, and at the same time also argued a motion for a new trial, the motion for new trial being made conditional in case the court did not grant the motion to enter a verdict for the defendant. The court set aside the verdict and entered a judgment for the defendant. Whether the court erred in doing this is the principal question now before us for consideration.
The declaration upon which this action is brought alleges the following:
“And being so desirous they entered into a specific contract with the said Michigan United Traction Company, defendant herein, through its agents and representatives, to receive the said score board, supplies and appurtenances aforesaid properly crated and boxed, in the city of Kalamazoo, Michigan, on, to wit, the 17th day of September, 1915, and to deliver the same to the order of the plaintiffs herein in the city of Detroit not later than the morning of the said 18th day of September, for a consideration to be paid to said defendant. * * *
“And relying upon the said promises and agreements of the said defendant to so transport the same to the said city of Detroit and have the same there on the morning of the said 18th day of September. * * *
“Plaintiffs further allege that relying upon its contract with the said defendant, * * *”
The trial judge, in the opinion filed in deciding the motion to direct a verdict, said:
“It appears that the bill of lading was signed by the witness, George Harmon, on behalf of the plaintiffs and the proper agents of the defendant company in its behalf. * * *
“He was allowed to testify over the objection of the defendant to an alleged conversation with the agents of the defendant prior to, and coincident with the delivery of the board for shipment and the signing of the bill of lading by defendant’s agent and himself as the agent of the plaintiffs, to the effect that the defendant’s agent absolutely guaranteed delivery of the board at Detroit at seven o’clock a. m. September 18th. * * *
“It is very apparent that the declaration was framed upon the theory of a specific, oral contract and that the bill of lading was then considered merely a receipt for the property. It is equally apparent that that position was untenable under the proofs which showed conclusively that the bill of lading constituted the contract between the parties.”
It. is the contention of counsel for plaintiffs and appellants that the case was tried and submitted to the jury upon the theory that the score board was not delivered in Detroit by the defendant within a reasonable time under the provisions of the bill of lading. Section 3 of the provisions printed on the back of the bill of lading provided in part as follows:
“No carrier is bound to transport said property by any particular train or vessel, or in time for any particular market or otherwise than with reasonable dispatch, unless by specific agreement indorsed hereon.”
The trial judge did submit to the jury the question of whether or not the carrier had transported the property in question with reasonable dispatch, in accordance with the terms of the bill of lading. It is contended that the conversation had between Harmon and the agent of the defendant company was admissible as bearing upon the question of what constituted reasonable dispatch under all the circumstances surrounding the transaction. In denying the motion for a new trial, the trial judge was of the opinion that the admission of this testimony was error and prejudicial, and with this we agree. It is clearly apparent from a reading of the declaration that the theory upon which this case was started is, as was indicated by the trial judge in his opinion passing on the question of directing a verdict, that a specific oral contract was entered into between the parties upon the 17th of September, providing that the goods should be delivered at destination on the 18th following, and it was not until the case came to trial that a different theory was insisted upon. The rule is well settled that parol evidence is not admissible to vary the terms of a bill of lading, and the conversation testified to by Harmon, if admitted, would be clearly an effort to establish a special agreement as to delivery of the property in addition to the agreement contained in the bill of lad ing. The rule is stated in 4 Ruling Case Law, p. 22, as follows:
“Where no time of performance is expressed in a bill of lading, the instrument is not on that account to be regarded as incomplete, so as to admit proof of a distinct and separate agreement as to time. In such case the parties are presumed to have intended that the carriers’ obligation as to the time of performance. shall not extend beyond that imposed on it in law in all undertakings for the transportation and delivery of goods, which requires no more than that the same be done without unreasonable delay. This implied agreement is as much a part of a bill of lading silent as to the time of performance, as if expressed in it in so many words; and the rule which forbids the introduction of parol proof to vary the terms of a written instrument excludes evidence of a prior or contemporaneous parol agreement that. the goods shall be delivered within a definite and specific time.”
See Central Railroad Co. v. Hasselkus, 91 Ga. 382; McElveen v. Railway Co., 109 Ga. 249. This rule has been approved in this State in Sloman v. National Express Co., 134 Mich. 16, which case is cited with approval in Sturges v. Railway Co., 166 Mich. 231. In a case properly brought the question of whether or not under the terms of the bill of lading the property had been transported with reasonable dispatch would unquestionably be a question of fact for the jury under all the circumstances of the case. See 10 Corpus Juris, p. 286. In the instant case, however, we agree with the trial judge, because under the declaration as filed and the proofs as submitted, plaintiffs sought to enforce a special contract of carriage outside of the bill of lading, which, under the authorities, we are of' the opinion cannot be done. Having accepted the bill of lading, the plaintiffs are bound by the terms thereof and cannot seek to vary its terms as to carriage unless the special agreement is indorsed thereon in accordance with the specific terms of the contract. Upon the case before us we think that the judge was clearly right in directing a judgment to be entered in favor of the defendant non obstante veredicto.
The judgment should therefore be affirmed.
Brooke, J., concurred with Kuhn, J.
Stone, J.
The conversation complained of was competent as bearing on defendant’s understanding of what was a reasonable time; and was not objectionable as varying the terms of the bill of lading. There was no variance between pleadings and proofs, it not being bad pleading to aver a time for performance where none is named in contract. The judgment should be reversed, and a new trial granted, with costs to appellants.
Ostrander, C. J., and Moore, Steere, and Fellows, JJ., concurred with Stone, J. Bird, J., did not sit. | [
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Fellows, J.
(after stating the facts). We have recently had occasion to consider a case brought for the same purpose as is the instant case, and in which some of the questions here involved were determined. Grand Rapids Trust Co. v. Nichols, 199 Mich. 126; we shall have occasion to refer to that case as we proceed.
It is insisted that the order of the referee above mentioned, having been made without personal service on defendant, is void and of no effect as to this defendant, and for that reason this or any other suit has not been validly authorized and may not be maintained. The authorities upon this question are not in harmony; the United States circuit court of appeals of this circuit having, set aside a somewhat similar order made upon similar notice by mail, in a direct proceeding for that purpose. In re Haley, 158 Fed. 74. We are impressed, however, from an examination of the authorities, that the making of such an order by the referee in a case of this character without personal service is recognized as the proper practice; that it is determinative of the amount of the indebtedness of the bankrupt and of the amount necessary, in addition to the other assets, to liquidate such indebtedness, but that it is not res adjudicata of any defenses personal to the defendant; that while it authorizes the bringing of a suit in the proper forum, it does not foreclose the defendant from such defenses as he may see fit to make.
The statute of limitations is pleaded, although not strenuously insisted upon. It is not available. The statute did not begin to run until the order of the referee. Scovill v. Thayer, 105 U. S. 143.
Before proceeding further it is well that wé consider the character of this litigation, the theory upon which the case was tried, and the theory under which defendant may be called upon to respond. This is necessary in order that we determine what rights the trustee in bankruptcy possesses, and under which provision of the bankruptcy law he seeks to exercise such rights, in order that we may determine the proper forum under our system of procedure in which such rights may be enforced. His powers and rights are prescribed by the act of congress and are very broad. He has the rights of the bankrupt; in addition he has the right not possessed by the bankrupt, that of pursuing property conveyed by the bankrupt in fraud of creditors, and by the recent amendment he has the rights of a creditor armed with process. In order to determine the proper forum in which he may exercise these respective rights, it is important that we understand which of these rights he is here seeking to enforce.' For that purpose we must consider the nature of the rights here asserted in order to judge the remedy adaptable.
This is not a suit to recover on a statutory liability, nor, strictly speaking, is it an action to recover an unpaid subscription; nor is it an action brought to recover property conveyed by the bankrupt in fraud of creditors and which conveyance of necessity operates as a fraud upon all creditors, and the recovery inures to the benefit of nil creditors. As we shall presently see, the recovery here does not inure to the benefit of all the creditors but only to those who have extended credit in reliance upon the capital stock of the corporation. The case was tried and submitted to the jury in the court -below upon the claim of the plaintiff that the Groveland Mining Company, acting through its officers and promoters, in fraud of the rights of creditors, had disposed of the property of the corporation, i. e., its shares of stock, at a grossly inadequate price, or without consideration; and that under such circumstances the contract for sale and sale of such stock was void, rendering the stockholders liable for the stock fraudulently obtained by them. Where creditors’ and' other stockholders’ rights are not invaded, a corporation, at the time this corporation was organized and before Act No. 46, Pub. Acts 1915. (3 Comp. Laws 1915, § 11945 et seq.), was passed, might dispose of its stock at such figure or for such property as it and the prospective stockholder might agree upon. Young v. Erie Iron Co., 65 Mich. 111; Rickerson Roller Mill Co. v. Machine Co., 75 Fed. 554; Old Dominion Copper Co. v. Lewisohn, 210 U. S. 206; Coit v. Gold Amalgamating Co., 119 U. S. 343. In the last cited case the court recognized the right of creditors, who had extended credit in the belief that the stock was fully paid, to proceed against the stockholders in case property was fraudulently exchanged for stock, but at the same time pointed out the distinction between such a case and one brought for unpaid. subscriptions, the court saying:
“The case is very different from that in which subscriptions to stock are payable in cash, and where only a part of the installments has been paid. In that case there is still a debt due to the corporation, which, if it become insolvent, may be sequestered in equity by the creditors, as a trust fund liable to the payment of their debts. But where full paid stock is issued for property received, there must be actual fraud in the transaction to enable creditors of the corporation to call the stockholders to account. A gross and obvious overvaluation of property would be strong evidence of fraud.”
In the recent case of Decke v. Baker, 201 Mich. 608, Decke, a stockholder, sought to liave set aside an issue of stock to Baker for Ms services; the company was made a defendant and filed a cross-bill also seeking to set aside such issue of stock to Baker. Mr. Justice Stone, speaking for the court, said:
“If the facts were conceded to be as claimed by the cross-plaintiff, Baker Clay Company, there would be no ground for equitable relief as to it, but the parties would be left in the position in which they have placed themselves. Walhier v. Weber, 142 Mich. 322, 325; Benson v. Bawden, 149 Mich. 584; 4 Thompson on Corporations (2d Ed.), § 3916; 9 Cyc. p. 546.”
The trustee in bankruptcy, suing in right of the bankrupt, and not basing his right upon a fraudulent disposition of property, which right could be exercised only for the benefit, of creditors, and not basing his right on the amendment to the bankruptcy law in 1910 referred to in the Nichols Case, is bound by the contracts of the bankrupt, and could not recover in right of the bankrupt, unless the bankrupt could recover. Wasey v. Whitcomb, 167 Mich. 58; Marine Savings Bank v. Norton, 160 Mich. 614; York Manfg. Co. v. Cassell, 201 U. S. 344; Zartman v. National Bank, 216 U. S. 134. The contract of the bankrupt must be gotten rid of, set aside, before the trustee can call upon the stockholder for anything other than his contract with the bankrupt required. This may be done in case of fraud upon the rights of creditors in a proceeding suitable for that purpose.
The theory upon which the action may be maintained by a trustee in bankruptcy against a stockholder who has paid an agreed price for stock in a corporation, is that the capital stock of a corporation is a trust fund for the benefit of its creditors, and its officers may not fraudulently convey it away, and that, if so fraudulently conveyed away, the fraudulent contract may be vacated and the property, i. e., the capital stock, may be recovered for. In a proceeding of this character the plaintiff’s (trustee’s) right to recover is and must be based on the following premises: (1) That the capital stock of a corporation is the property of the corporation, a trust fund for the benefit of the corporation and its creditors; (2) that creditors have a right to rely and do rely on such capital stock in extending credit to the corporation; and (3) that in disregard of the rights of such creditors the corporation has disposed of its capital stock either in actual fraud, or for such an inadequate con-' sideration as to work a constructive fraud.
If an individual creditor were seeking relief in the courts of the State upon the theory here advanced by the plaintiff, he would be required to proceed by creditors’ bills, having taken the necessary preliminary steps.
As stated, the theory upon which this suit may be maintained must be the trust fund theory; it must be that a trust fund existed, and that the trustee in bankruptcy is pursuing that trust fund for the benefit of such creditors (not necessarily all creditors) as may establish their right to participate. In pursuing this trust fund, therefore, the trustee’s right must come from the amendment to the bankruptcy law, to which we shall now refer, rather than his right under the original act.
The bill in the case of Grand Rapids Trust Co. v. Nichols, supra, was framed upon the theory here discussed, and we there sustained the right of the trustee to file such a bill on the ground that the amendment of 1910 to section 47 of the bankruptcy law (36 U. S. Stat. 838, 840), gave to the trustee all the rights, remedies, and power of a judgment creditor holding an execution duly returned unsatisfied; that he had the right to pursue property transferred by the bankrupt in fraud of his creditors; that he had the rights of a creditor “armed with process”; and that when pursuing such rights he could maintain a bill in the nature of a creditor’s bill. It will be noted that the amendment above- referred to not only gives to the trustee the rights of a creditor “armed with process,” but also gives him the 'remedies of such a creditor.
When this plaintiff sought to have set aside the contract between the company and the defendant, by which the option was- transferred to the company in consideration of the issuance of stock, upon the ground that such transaction was in fraud of creditors and their rights, and that he had the right to follow the trust fund, he was exercising a right given him by the amendment above referred to, the right of a judgment creditor with an execution returned unsatisfied, the right under our practice to file a creditor’s bill. We so held in the Nichols Case and- we are not persuaded that an incorrect result was there reached. We there pointed out that in an equitable proceeding the court may carefully guard the interests of each and every party. It was admitted in that case that some of the creditors would not be entitled to participate. It is quite probable that such is the case here, and that it will always be the case where the trustee is proceeding against stockholders who have exchanged property for stock. Under the broad power of a court of equity, what creditors, if any, are entitled to participate may be determined; what persons, if any, are liable to account may be decreed; sufficient to liquidate the claims of those entitled to participate, and no more, may be awarded against such persons, as may be liable. While the number of original stockholders here are few, cases will arise where they are numerous; a multiplicity of suits should be avoided. One bill in which all are made parties will suffice to determine the rights and liabilities of all.
We repeat that we are not here dealing with the collection of an unpaid stock subscription, strictly speaking; nor with the enforcement of a stockholder’s statutory liability; nor with a proceeding where the recovery of necessity inures to the benefit of all creditors; but considering solely the case before us, that of a bankrupt corporation, the theory upon which it was tried and the only theory upon'which recovery may be had, we hold that in such a proceeding the trustee is exercising the rights given him under the amendment to section 47, may pursue the remedies provided in our system of procedure incident to such rights, that the relief under our practice must be had in equity, and that this suit on the law side of the court may not be maintained.
As we have concluded that the case should be remanded for transfer to the equity side of the court to be there disposed of, it becomes necessary to consider one further assignment of error. We have adverted to the fact that only those creditors who extend credit in reliance upon the capital stock are entitled to relief in proceedings of this character. On the trial defendant sought to show knowledge of the Lake Erie Ore Company of the transaction. This he was not permitted to do. In this there was error. Those creditors who participate in a transaction involving the transfer of corporate property at fraudulent valuation, who deal with the company with actual knowledge of what its assets are, and who extend credit knowing fully that the capital stock has been exchanged for property, and know for what property it was exchanged, cannot, when the venture proves disastrous, call upon stockholders upon the theory that they extended credit in reliance upon the capital stock and its being fully paid. Ten Eyck v. Railroad Co., 114 Mich. 494; Rickerson Roller-Mills Co. v. Machine Co., supra. In the last cited case it was said by Judge Lurton:
“When credit is extended to a corporation with full knowledge of special arrangements between the cor poration and purchasers of the stock whereby non-assessable stock has been issued for less than its par value, it cannot be said that such credit has been extended in reliance that the stock has been fully paid, or is subject to further calls by the corporation.”
It will be competent for the defendant to show the relation, dealings, and knowledge of this creditor with the affairs- of the bankrupt company in order that the court may determine whether this creditor dealt with and extended credit to the company in reliance upon the capital stock. This will, of course, be true of other creditors; indeed, the burden will be upon such creditors to prove their right to call upon the stockholders.
It follows from what has-been said that the judgment must be reversed and the case remanded with instructions to transfer it to the equity side of the court, pursuant to section 2, chapter 11, Act No. '314, Pub. Acts 1915 (3 Comp. Laws 1915, § 12351). Defendant will recover costs of this court.
Bird, Moore, Brooke, and Stone, JJ., concurred with Fellows, J. | [
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Ostrander, C. J.
The information charges that respondent kept, stored and possessed certain liquor • — whisky—
“in a certain room in the rear of a certain room used and occupied by the said George Vail as a billiard and pool room,”
—not then and there the private residence of said respondent nor of any other person. That respondent was not a druggist nor a registered pharmacist, and that the manufacture and sale of such liquor is prohibited in yan Burén county, are other allegations. The' statute, the provisions of which are alleged to have been violated, is Act No. 381, Pub. Acts 1913 (2 Comp. Laws 1915, § 7118 et seq.).
It is not disputed that the sheriff found the liquor in a room used by respondent as a garage in the rear of his pool room, some of it in a motor car and some standing in the garage. That found in the car had just been brought in from Indiana, the other bottles were partly emptied, and there is no claim made that they had not for some time been standing in the garage where they were found. The pool room occupies the front of the building on the ground floor. In the rear are two rooms, one of them the garage, both of which open on an alley, and they open into each other. Between1 one of these rooms (not the garage) and the pool room is a door. People can and do enter the pool room from the alley. The second floor is occupied by respondent for living rooms and is used by himself and wife for housekeeping. A stairway leads from the rear room below — not the garage — to the second floor. There is some testimony tending to prove that' some kerosene oil was, or had been, stored in the garage for use in the living rooms and that coal for similar use had sometimes been kept in the garage.
It is claimed that the garage and the other rear room, also, are parts of respondent’s private residence, that in the statute “private residence” means what “dwelling house” meant at the common law, when crimes such as burglary and arson were charged. The court was asked to so interpret the law, and refused to do so. We have before this considered this statute and have denied this contention. People v. Labbe, ante, 513, and see People v. Wheeler, 185 Mich. 164,
Other alleged errors based upon exceptions to rulings admitting and rejecting testimony, the charge of the court and refusals to charge have been examined. All of them become unimportant in view of admitted facts and the view we take of the meaning of the law. It was the duty of the jury to return a verdict of guilty.
The exceptions are overruled, and the court below ordered to proceed to judgment.
Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Fellows, J.
The infant plaintiff had verdict and judgment against both defendants for $5,000, the ad damnum of the declaration, for being struck by an automobile owned and operated by defendant Gustav A. Rinz, Junior. The adult plaintiff, father of the infant, had like verdict and judgment for $445, which appears to slightly exceed the amount claimed to have been expended by him, including his own loss of time, growing out of the accident to said infant. Both defendants bring the case here. We shall have occasion to state the pertinent facts as we proceed.
The only evidence connecting the senior defendant with liability was that drawn from the junior defendant when on the stand as an adverse witness called for cross-examination under the statute. From his testimony it appears that he was slightly upwards of 21 years of age at the time of the accident. At that time and for some time prior thereto, he was and had been in the employ of his father. The automobile was owned by the son and the license was in his name. Upon such cross-examination he testified that on the occasion of the accident he was returning from taking his mother to the car line to go down town. He first stated that he took her to the car line at her request; subsequently he stated that he did so at the request of the senior defendant; and later stated that he did so at his mother’s request, that his father did not request him so to do, and that he was confused or misunderstood the questions when he stated his father asked him to take the mother to the car line. Defendant insists that there was no testimony connecting the senior defendant with the accident, and that the junior defendant fully explained his mistake in giving his testimony. The record discloses that the testimony of this witness on this subject was not consistent with itself. Such being the case, the question was for the jury, not for the court as to which of his statements was correct. Lonier v. Savings Bank, 153 Mich. 253; B. F. Goodrich Rubber Co. v. Sewell Cushion Wheel Co., 196 Mich. 600. If the junior defendant, while in the employ of the senior defendant, was directed by him to convey Mrs. Rinz to the car line, and he did so and while on his return to his father’s place of business, and the place of his employment, ran over the infant plaintiff, the accident occurred while the relations of master and servant existed and the master (senior defendant) was liable. Houseman v. Karicofe, 201 Mich. 420. We think the testimony most favorable to the plaintiff — and we must view it in that light on a motion for a directed verdict — is susceptible of this construction and there was no error in the ruling of the court in this regard.
The defendants moved for a new trial on the ground that the verdict was grossly against the weight of the evidence and grossly excessive. This motion was refused, and error is assigned on such refusal. A careful examination of this record convinces us that this motion should have been granted. The province of this court, in passing upon a motion for a new trial, is well understood. It is only in cases where the verdict is manifestly against the clear weight of the evidence that we are authorized to act. Such is the case at bar. The plaintiffs produced no eyewitnesses to the accident. Some of the testimony introduced by the plaintiff, showing the position in the street of the infant plaintiff and the automobile after the accident would indicate, if unexplained, that the machine was being driven on the wrong side of the street. One of plaintiff’s witnesses testified that the infant plaintiff was on the sidewalk after the accident, but her testimony does not clearly show whether she meant the sidewalk proper or the cross-walk; another, in her direct examination, testifies that the infant plaintiff was struck on the sidewalk, but upon her cross-examination she admits she did not see the accident, and it is apparent that she was testifying to her conclusion alone. No witness called by plaintiffs testified that the machine was exceeding the statutory or ordinance limit of speed. The junior defendant was called as an adverse witness for cross-examination under the statute. His testimony is to the effect that he was driving at from 10 to 12 miles per hour, that the infant plaintiff ran into the street ahead of the machine, that he turned his machine in attempting to avoid the collision but the child ran in the same direction and he was unable to do so. Two witnesses who saw the accident and who appear to be entirely disinterested, corroborate this testimony. The infant plaintiff was six years old at the time of the trial. He appears to be an exceptionally bright boy. He seems to have clearly understood all that he was asked about and intelligently answered the questions put to him. He was interrogated by both his attorney and the attorney for the defendants, and to both of them he stated that he ran into the street without looking either way, although he had been cautioned by both his parents not to do so. He also states that he was struck in the street and pointed out on an exhibit about where the accident occurred. One cannot read this record without being overwhelmingly convinced that this was a mishap pure and simple, and that there was nothing done by the driver which caused the accident and nothing he could have done to have prevented it.
We are constrained to reverse the case with a new trial. Defendants will recover costs of this court.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. | [
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Sullivan, J.
Plaintiff appeals as of right from a circuit court award of mediation sanctions under MCR 2.403(0) in this condemnation action. We reverse.
Defendants each owned one of the fourteen parcels of property condemned by the City of Detroit for the expansion of Cobo Hall in late 1985. The parties agree that these adjoining lots were nearly identical in all pertinent characteristics. Plaintiff’s appraisers established fair compensation for each of the lots at $361,950, and plaintiff offered that sum to each of the owners. Defendants’ appraisers valued the lots at $540,000 each, and defendants refused plaintiff’s offers. Plaintiff deposited $361,-950 for each parcel with the city treasurer and filed a complaint under § 5 of the Uniform Condemnation Procedures Act, MCL 213.55; MSA 8.265(5).
Defendants did not dispute the necessity of the taking; the sole issue was just compensation for the property. The case was submitted to mediation under MCR 2.403, and the mediation panel evaluated the parcels at $480,000 each. Defendants accepted the mediation evaluation; plaintiff rejected it. Following trial in the Wayne Circuit Court, the jury awarded defendants $450,000 for each parcel.
Defendants asked the court to award actual costs, including a reasonable attorney fee, as mediation sanctions under MCR 2.403(0). They contended that plaintiff was liable for sanctions because it did not improve its position by at least ten percent and that, in order to meet that threshold, the award would have to be less than $432,000, i.e., ten percent less than the mediation evaluation of $480,000.
Plaintiff responded that it did improve its position by more than ten percent, comparing only the amounts actually in dispute, that is, the additional compensation over the compensation paid before filing the complaint. Applying plaintiff’s reasoning, the jury’s total verdict had to be $468,195 or less for plaintiff to improve its position by at least ten percent: the true mediation award was $118,050 per parcel ($480,000 minus $361,950) and the verdict represents a true award of $88,050 ($450,000 minus $361,950), which is more than ten percent below the mediation evaluation.
The trial court agreed with defendants, ruling that the express terms of MCR 2.403(0) require comparison of the mediation evaluation with the jury’s verdict, without allowing for setoffs.
We hold that, in a condemnation action where the condemning authority has paid or deposited the estimated just compensation, mediation sanctions must be based on the amount actually in dispute. Where the condemning authority has rejected a mediation evaluation, it will be liable to the owner for sanctions under MCR 2.403(0) if the award of additional compensation is ninety percent or more of the mediation panel’s evaluation of additional compensation. Additional compensation means the amount in excess of the estimated just compensation paid or deposited.
The relevant parts of MCR 2.403(0) are as follows:
(1) If a party has rejected an evaluation and the action proceeds to trial, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the mediation evaluation.
(2) For the purpose of this rule "verdict” includes,
(a) a jury verdict,
(b) a judgment by the court after a nonjury trial,
(c) a judgment entered as a result of a ruling on a motion filed after mediation.
(3) For the purpose of subrule(0)(l), a verdict must be adjusted by adding to it assessable costs and interest on the amount of the verdict from the filing of the complaint to the date of the mediation evaluation. After this adjustment, the verdict is considered more favorable to a defendant if it is more than 10 percent below the evaluation, and is considered more favorable to the plaintiff if it is more than 10 percent above the evaluation.
Principles of statutory construction apply to determine the Supreme Court’s intent in promulgating rules of practice and procedure. Issa v Garlinghouse, 133 Mich App 579, 581; 349 NW2d 527 (1984). The mediation sanction rule is not to be interpreted with wooden literalness if such construction is inconsistent with its purpose. Commercial Union Ins Co v Liberty Mutual Ins Co, 137 Mich App 381, 394; 357 NW2d 861 (1984), aff'd 426 Mich 127; 393 NW2d 161 (1986); Issa, p 582. The overall purpose of the mediation rule is to encourage settlement and deter protracted litigation. Accordingly, the mediation sanction rule places the burden of litigation costs upon the party that requires a trial by rejecting a proposed mediation award. Warren v Pickering, 192 Mich App 153; 480 NW2d 306 (1991); Bien v Venticinque, 151 Mich App 229, 232; 390 NW2d 702 (1986).
Not all rejections of mediation evaluations are penalized by the rule. Issa, p 582. A party is not to be penalized for rejection of a mediation award when the rejection was reasonable, as evidenced by a jury verdict more than ten percent more favorable to the party. Bien, p 233.
Defendants contend, and the trial court ruled, that the clear language of the rule confines the comparison to the verdict, without regard to the reduction for the earlier payment. We disagree. This Court, in construing the language of the mediation rule, so as to achieve its intended purpose, and its predecessor, GCR 1963, 316.7, has not limited itself to a literal application of the rule’s terms.
In Commercial Union Ins Co, decided under the former rule, this Court held that sanctions were appropriate, even though a literal application of the rule would have denied relief. The rule at the time did not provide for an evaluation of no cause of action. The Court acknowledged that the ten percent improvement rule could not mathematically apply to such an award; it held, nonetheless, that a plaintiff must win "at least something” in order to avoid costs in the face of a no cause of action evaluation. Id., p 394.
More closely analogous to the case before us, in Wayne-Oakland Bank v Brown Valley Farms, Inc, 170 Mich App 16, 20; 428 NW2d 13 (1988), the claim against one defendant was dismissed during trial. At the time, the mediation rule did not include dispositive motions in its definition of "verdict” as subrule 0(2) now does. This Court held that, despite the language requiring comparison of the mediation evaluation with a "verdict,” the rule should not be read strictly to require a verdict in order to impose sanctions. Id., p 20. The Court relied on the committee comment to MCR 2.403, which states: "The rejecting party is liable for costs unless that party improves its position by at least 10 percent.” Id.
Literal application of the rule in the case before us would not serve the purpose of the mediation rule. We first note that literal application is not logically possible in a condemnation case. Under MCR 2.403(O)(3), a verdict "is considered more favorable to the plaintiff if it is more than 10 percent above the evaluation.” Literal application of this standard in a condemnation case produces an absurd result. The plaintiff is the payor; if the verdict is higher than the evaluation, the plaintiff obviously has not improved its position. In such a case, as in Commercial Union Ins Co and Wayne-Oakland Bank, we must look to the purpose of the rule and consider the standard of reasonableness in determining what constitutes a ten percent improvement in a party’s position.
Plaintiff’s rejection of the mediation evaluation in this case was reasonable. Plaintiff improved its position by more than ten percent, comparing the additional compensation it would have paid under the mediation evaluation and the additional compensation it must pay under the verdict.
It is clear from plaintiff’s mediation summary that this case was submitted to the mediation panel as a dispute over the additional compensation. Plaintiff stated the contested issue in the opening paragraph as follows: "The ultimate question before this panel is the fair market value of the Subject Properties. Is the City’s determination of just compensation fair and accurate, or is the property owner entitled to additional estimated just compensation?” The damages were stated in terms of the additional compensation sought by defendants. The conclusion requested a mediation award of $361,950 for each parcel, "including estimated just compensation already paid.”
Unlike cases involving setoffs of settlements or judgments paid by other tortfeasors, see Hall v Citizens Ins Co, 141 Mich App 676, 689; 368 NW2d 250 (1985), in a condemnation case, the estimated compensation is a part of the total fair compensation, paid by the same party, without questions of contribution, fault, or identity of injury inherent in such cases. The amount is never in dispute during the litigation because it must be paid to or for the benefit of the owner before the complaint is filed. It raises the base line of the dispute from zero to the sum deposited or paid. It is not, in that sense, a setoff.
Defendants argue that basing liability for mediation sanctions on additional compensation rather than on gross verdicts should be limited, if allowed at all, to cases in which the condemning authority asked the mediation panel to render its evaluation on that basis. The parties agree that this has been the practice in some cases. We see, however, no substantive difference between an evaluation that expressly excludes the estimated compensation and one in which that exclusion is necessarily implied.
There was no dispute or confusion in this case over what the panel’s evaluation meant; it does not require speculation to determine if the panel meant the award to include the estimated compensation already paid. Compare Maple Hill Apartment Co v Stine, 131 Mich App 371, 379-380; 346 NW2d 555 (1984), vacated and remanded 422 Mich 863 (1985). It would be arbitrary and unreasonable to base the award or denial of mediation sanctions on the fortuity of the particular way a panel makes the award, or on the way the condemning authority makes its request.
Plaintiffs rejection of the mediation evaluation was reasonable within the meaning of MCR 2.403(0), and defendants were not entitled to sanctions.
Reversed.
Plaintiff has represented that the deposited funds were paid to the owners before mediation. There is no evidence of that payment in the abbreviated record submitted on appeal. In any event, our decision is not affected by whether the funds were deposited in an account as required by the statute or in fact were paid to the owners.
The parties have based their arguments on the verdict amount of $450,000, without regard to the adjustments for interest and costs allowed under MCR 2.403(0X3). | [
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Jansen, J.
Defendant, a sixteen-year-old male, pleaded guilty before Detroit Recorder’s Court Judge Dalton A. Roberson of first-degree murder, MCL 750.316; MSA 28.548, and of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Thereafter, a juvenile sentencing hearing was conducted and the trial court concluded, in accordance with MCL 769.1(3); MSA 28.1072(3), that defendant should be sentenced as a juvenile instead of as an adult. Defendant was then committed to the care of the Michigan Department of Social Services in accordance with the Youth Rehabilitation Services Act, MCL 803.301 et seq.; MSA 25.399(51) et seq. The prosecution now appeals as of right, and we reverse.
We first address what we feel to be an inappropriate procedure utilized in the taking of defendant’s plea by the trial court. It appears, on the basis of our review of the record, that an obvious use of forum shopping was employed by defendant and sanctioned by the trial court. Defense counsel stated that offering a plea of guilty to the charge of first-degree murder was "an unusual situation,” and that defense counsel hoped to convince the trial court at sentencing to place defendant in the juvenile system, as opposed to the adult system. The case, originally assigned to Judge James E. Roberts by blind draw, was inexplicably transferred to Judge Roberson. We view this as forum shopping in order to obtain the leniency of a juvenile sentence from Judge Roberson. We cannot condone such a course of action, and we caution the trial court to refrain from approving the use of such forum shopping in the future;
The incidents leading to defendant’s conviction occured on November 27, 1989, at the home of the victim, Douglas Thomas, which is located in the City of Detroit. Defendant was selling crack cocaine out of Thomas’ house. On the night in question, defendant and Thomas were together at the house. At some point in the evening, defendant allegedly attempted to rob Thomas of his wallet. A struggle ensued, and defendant shot Thomas five times in the face. Thomas subsequently died. At the time of the shooting, defendant was sixteen years old.
The sole issue raised by the prosecution on appeal is whether the trial court erred in sentencing defendant as a juvenile offender instead of as an adult offender. Initially, we note that there have been no reported decisions discussing the appropriate standard of review of a trial court’s determination whether to sentence a minor as a juvenile or as an adult. It is our opinion that such a decision should be reviewed for an abuse of discretion under the customary sentence review standard. The judicial discretion involved in such a decision is so inextricable from the quantum sentence as to compel the same standard of review.
The sentencing of a criminal defendant rests exclusively within the province of the sentencing court, which sees and hears the defendant and is uniquely positioned to evaluate the defendant’s credibility, character, and potential for rehabilitation. People v Coles, 417 Mich 523, 536-538; 339 NW2d 440 (1983). Because a subjective evaluation of those traits is usually necessary, appellate courts generally agree that punishment is to be left to the trial court’s discretion. People v Howell, 168 Mich App 227, 232; 423 NW2d 629 (1988). Appellate review of sentencing is limited to determining whether an abuse of discretion has occurred. People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990); People v Poppa, 193 Mich App 184; 483 NW2d 667 (1992). In this case, the prosecution contends that it proved, by a preponderance of the evidence, that defendant should be sentenced as an adult, and that the trial court abused its discretion in sentencing defendant as a juvenile. We agree with the prosecution, and hold that the trial court abused its discretion in sentencing defendant as a juvenile.
Pursuant to MCL 769.1(3); MSA 28.1072(3), the trial court must conduct a juvenile sentencing hearing to determine if the best interests of the juvenile and the public would be better served by placing the minor in the custody of the juvenile offender system or by sentencing the minor as an adult. See also MCR 6.931(A). The trial court is required to consider the following factors in making its determination, giving weight to each as appropriate under the circumstances:
(a) The prior record and character of the juvenile, his or her physical and mental maturity, and his or her pattern of living.
(b) The seriousness and the circumstances of the offense.
(c) Whether the offense is part of a repetitive pattern of offenses which would lead to one of the following determinations:
(i) The juvenile is not amenable to treatment.
(ii) That despite the juvenile’s potential for treatment, the nature of the juvenile’s delinquent behavior is likely to disrupt the rehabilitation of other juveniles in the treatment program.
(d) Whether, despite the juvenile’s potential for treatment, the nature of the juvenile’s delinquent behavior is likely to render the juvenile dangerous to the public if released at the age of 21.
(e) Whether the juvenile is more likely to be rehabilitated by the services and facilities available in adult programs and procedures than in juvenile programs and procedures.
(f) What is in the best interests of the public welfare and the protection of the public security. [MCL 769.1(3); MSA 28.1072(3); see also MCR 6.931(E)(3).]
The prosecutor has the burden of proving, by a preponderance of the evidence, that the best interests of the juvenile and the public would be served by sentencing the juvenile as an adult offender. MCR 6.931(E)(2). The trial court must make findings of fact and conclusions of law in support of a decision for juvenile probation and commitment or for sentencing as an adult offender. MCL 769.1(5); MSA 28.1072(5); MCR 6.931(E)(4). The trial court’s findings of fact are reviewed under the clearly erroneous standard of review. MCR 2.613(C). Findings of fact are clearly erroneous if, after review of the entire record, this Court is left with a definite and firm conviction that a mistake has been made. People v Gistover, 189 Mich App 44, 46; 472 NW2d 27 (1991).
In this case, the trial court made the following pertinent findings of fact: (1) defendant was physically and mentally mature; (2) the offense committed by defendant was of a serious nature; (3) defendant’s behavior was not likely to disrupt the rehabilitation of other juveniles in the treatment program; (4) defendant’s behavior was not likely to render him more dangerous to the public at age twenty-one; (5) defendant was more likely to be rehabilitated by the services and facilities available in a maximum security juvenile program than by the services available in an adult program; (6) the best interests of defendant and the public would be served by placing defendant on probation and committing him to a juvenile facility; and (7) the prosecution had failed to prove, by a preponderance of the evidence, that the best interests of the juvenile and the public would be served by sentencing defendant as an adult.
After reviewing the testimony presented at the juvenile sentencing hearing, we are of the opinion that the trial court’s findings of fact were clearly erroneous and we are left with a definite and firm conviction. that a mistake has been made by the trial court. The trial court abused its discretion in placing defendant in the juvenile offender system rather than in the adult offender system.
The evidence elicited at the juvenile sentencing hearing indicates that defendant has a record of being troublesome. In June 1988, defendant was arrested and found guilty of possession of cocaine. He was placed in temporary custody of the juvenile court, and was placed on intensive probation. In November 1988, defendant violated the terms of his probation by being truant from the family home. During this time, defendant was living in various crack houses. Defendant was placed in the Flint Detention Center, a maximum security facility, where his adjustment was described as poor. Defendant was disruptive and given to attempts to impress and tease other detainees.
Subsequently, defendant was transferred to Boysville of Michigan, where his adjustment was described as fair. Defendant admitted drug use and he participated in group therapy. However, defendant escaped following an outing to a Detroit Tigers game. He was thereafter arrested for carrying a concealed weapon and for possessing cocaine, and was again placed in the Flint Detention Center. Defendant again escaped by jumping out of the dining room window with another juvenile.
Defendant was on escape status at the time he committed the present offense. Defendant was placed in the Wayne County Youth Home following his apprehension for the present offense, and he again escaped from the home in the company of two other youths.
Regarding defendant’s physical and mental maturity, defendant was characterized as being competent and aware of his surroundings. Defendant is intelligent, mature, and capable of performing adequately in an academic setting. However, defendant has been suspended from school six times for fighting, and has, by his own admission, engaged in drug dealing for some time. Defendant rented a car, at the age of fourteen or fifteen, to make drug deliveries, and he would flaunt his money and beeper in front of schoolmates. At the time of Thomas’ death, defendant was selling crack cocaine out of Thomas’ house.
Several of the witnesses indicated that, upon interviewing defendant, they found that he expressed no remorse for killing Thomas. One witness found defendant to be a "cold person,” while another stated that defendant "appeared that he was almost like proud of the fact that this happened,” and that defendant was "excited in talking about it.” Further testimony indicated that defendant had a need to exert power over others and had no regard for authority.
The seriousness of the offense, the shooting of Thomas five times in the face from close range, does not require extensive elaboration. The trial court noted that this was a serious offense, and we could not agree more.
Concerning whether defendant is amenable to treatment, we find, on the basis of our review of the record, that he is not. Emphasis was placed on the fact that defendant adjusted well to the treatment he received at Boysville. However, of more importance is the conduct of defendant after his stay at Boysville. Defendant escaped from Boys-ville, and was subsequently apprehended and charged with carrying a concealed weapon and with possessing cocaine. Defendant was returned to the Flint Detention Center, from which he escaped after a two-week stay. Defendant then shot Thomas while on escape status. Following his detention for the killing of Thomas, defendant escaped from the youth home.
These facts are consistent with the opinion of Firoza Van Horn, an employee of the Detroit Recorder’s Court Clinic and a holder of a master’s degree in social work and psychology, who testified that defendant "was not interested in any kind of program that would help him change.” It was Van Horn’s opinion that defendant would not be amenable to treatment and that he was resistant to therapy.
We also believe, contrary to the trial court’s finding, that defendant would disrupt the rehabilitation of other juveniles in the treatment program. During school, defendant would flaunt his money and beeper. Defendant, during a stay at the youth home, was overheard saying that when he got out of the home he was "going to be the big dope man. I’m going to have all you base heads working for me.” Defendant was also overheard saying how possessing a gun in the dope trade was a necessity.
Defendant’s behavior was described as disruptive, and he was given to attempts to impress and tease other juvenile detainees. Defendant preyed on those who were not knowledgeable about illicit drugs, and he projected blame for his actions onto others. Defendant has been suspended from school on six occasions for fighting, he has no regard for authority, and he provokes other juveniles into negative behavior. Defendant was characterized as being "very manipulative, impulsive,” and as being a leader, which would enable him to create disruption if placed within the juvenile system. Defendant has a low frustration level and, if subjected to too much stress, would rebel, attack, or fight.
In addition, we believe that defendant would be dangerous to the public if released at the age of twenty-one. Such a conclusion is supported by the testimony of various witnesses who indicated that defendant would pose a threat to the community upon his release at that age because of his lack of remorse over the killing of Thomas, his prior involvement in drug trafficking, his belief that a gun is necessary in the drug trade, his prior hostile and aggressive behavior, and his disinterest in attempting any type of personal change. This conclusion is further supported by the fact that after defendant showed modest improvement following his stay at Boysville, he again reverted to delinquent behavior. In fact, Van Horn testified that defendant would conform his behavior to the rules, but then would revert to his prior deviant behavior.
It is also unlikely that defendant could be reha bilitated by the services provided in the juvenile system as opposed to those of the adult system. Testimony indicated that defendant was not interested in receiving treatment or in being in any program that would help him change his behavior. Defendant is manipulative and impulsive, and has problems with authority figures and with following rules. Defendant has had several chances at reformation within the juvenile system, and on each occasion has escaped from the facility at which he was housed. This includes an escape from the Flint Detention Center, a maximum security facility. We simply cannot conclude, as did the trial court, that defendant is more likely to be rehabilitated within the juvenile system as opposed to the adult system.
It is our opinion, after reviewing the record, that the best interests of the public welfare and the protection of the public security would best be served by sentencing defendant within the adult system. We conclude that the trial court’s decision to place defendant in the custody of the juvenile offender system instead of sentencing him as an adult constituted an abuse of discretion.
Therefore, we vacate the trial court’s order of probation and commitment, and we remand the case to the trial court for sentencing as an adult. We do not retain jurisdiction.
T. J. Lesinski, J., concurred. | [
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Per Curiam.
In this action for declaratory relief, defendant appeals from the trial court’s order of summary disposition granted pursuant to MCR 2.116(C)(10). Defendant contends that the trial court erred in finding that it had defaulted on its contractual guarantees and that it had to specifically perform by making prompt and full payment of all of its workers’ disability compensation liability arising under the Workers’ Disability Compensation Act. MCL 418.101 et seq.; MSA 17.237(101) et seq. We affirm.
The director of the Bureau of Workers’ Disability Compensation agreed that Hamady Bros. Food Markets, Inc., defendant’s subsidiary, could be a self-insurer if defendant would act as a guarantor. Consequently, defendant executed a document guaranteeing the "prompt and full payment' of all liability of Hamady Bros. Food Markets, Inc., arising under and by virtue of 1969 PA 317 commonly known as the Michigan Workers’ Disability Compensation Act of 1969.” The document further provided that the "guarantee inures to the benefit of and may be enforced by any and all employees of said Hamady Bros. Food Markets, Inc. having a claim against it under said Act, or by the State of Michigan, Department of Labor, Bureau of Workers’ Disability Compensation, for the benefit of any such employee or employees of said Hamady Bros, Food Markets, Inc.”
In 1989, when Hamady stopped paying its disabled employees their benefits pursuant to a plan of reorganization approved by the United States Bankruptcy Court, the director requested that defendant honor its guarantee to pay such benefits. When the defendant declined, the director filed this lawsuit, alleging that defendant’s refusal to honor its guarantee was a breach of its contractual duty to promptly pay all workers’ compensation liability of Hamady.
While the suit was pending, payments of disability benefits to Hamady employees were made through the Self-Insurers’ Security Fund (sisf) under the provisions of MCL 418.537; MSA 17.237(537). The sisf is required by this statute to pay the disability benefits of insolvent employers.
On April 25, 1990, plaintiffs filed a motion for summary disposition, arguing that there was no genuine issue of fact and they were entitled to prevail because defendant had admitted during discovery the validity of the guaranty. In response, defendant claimed that a settlement agreement entered into between the sisf and the Hamady unsecured creditor’s committee had satisfied all of Hamady’s indebtedness under the act. On May 2, 1990, the trial court granted plaintiffs’ motion for summary disposition and ordered defendant to "make prompt and full payment of all workers’ compensation liability of Hamady Bros, arising under the Workers’ Disability Compensation Act.”
On appeal, defendant now argues that the trial court erred in ordering the prompt and full payment of all workers’ compensation liability without limiting, as did the guaranty, those entities or individuals who may enforce, and be benefited by, the guaranty. According to defendant, the part of the contract explaining that the "guarantee inures to the benefit of and may be enforced by any and all employees of said Hamady Bros. Food Markets, Inc. having a claim against it under said Act, or by the State of Michigan, Department of Labor, Bureau of Workers’ Disability Compensation, for the benefit of any such employee or employees of said Hamady Bros. Food Markets, Inc.,” is a limiting provision that was not addressed by the trial court. Apparently, defendant’s interpretation of this provision would block any recovery by the sisf because the sisf was not listed as an entity that could enforce or be benefited by the guaranty. We disagree.
When interpreting a contract, summary disposi tion is proper absent any offer of proof giving rise to issues of fact. Burroughs Corp v Detroit, 18 Mich App 668, 674-675; 171 NW2d 678 (1969). In this case, there are no issues of fact that would preclude the entry of summary judgment and there are no words of limitation in the contract that would conflict with the trial court’s interpretation. The defendant guaranteed the "prompt and full payment of all liability,” language that in our opinion is absolute and unqualified. The agreement then goes on to list the beneficiaries in a manner that we cannot interpret as restrictive or exclusive. For these reasons, we find no error.
Affirmed. | [
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Wahls, J.
Defendants appeal by leave granted from an opinion and order of the Workers’ Compensation Appeal Board. The issues on appeal concern the wcab’s calculation of plaintiff’s "average weekly wage” and benefits. We reverse.
Plaintiff had worked seven full weeks and two days of the eighth week when he suffered a heart attack that arose out of and in the course of his employment. During this period, plaintiff earned total gross wages in the amount of $2,772. The referee found that plaintiff’s injury was not work-related and denied benefits. Nonetheless, the referee calculated a gross weekly wage of $346.50, an amount reached by dividing plaintiffs total gross wages by eight weeks. The wcab concluded that plaintiff had been disabled by a work-related event, but also modified the referee’s conclusion regarding plaintiffs average weekly wage:
Regarding plaintiff’s second contention on appeal, we agree with plaintiff that apparently the administrative law judge counted plaintiff’s last two workdays as a full week. Therefore, the administrative law judge listed plaintiff [sic] average weekly wage of $346.50 is less [sic] than the statutorily-based (MCL 418.371 [MSA 17.237(371)]) weeks "actually worked,” or 7.4 weeks ($375.00).
The wcab subsequently ordered that plaintiff be awarded weekly benefits in an amount equal to eighty percent of $375, or $300. On appeal to this Court, defendants do not dispute plaintiffs disability, but take issue with the wcab’s calculation of plaintiffs average weekly wage, arguing that an average weekly wage should not be calculated by use of a partial week. We agree.
MCL 418.371(3); MSA 17.237(371X3) provides:
If the employee worked less than 39 weeks in the employment in which the employee was in jured, the average weekly wage shall be based upon the total wages earned by the employee divided by the total number of weeks actually worked. For purposes of this subsection, only those weeks in which work is performed shall be considered in computing the total wages earned and the number of weeks actually worked.
This case is factually indistinguishable from Tagliavia v Barton Malow Co, 185 Mich App 556; 463 NW2d 116 (1990). The panel in Tagliavia held that a week in which any work is performed must be considered a week "actually worked” under subsection 371(3). Thus, the average weekly wage of the plaintiff in Tagliavia who had worked six weeks and two days should have been calculated by dividing his total wages by seven weeks, rather than 6.4 weeks. Id. at 560. We agree with the reasoning of Tagliavia and adopt it as our own. Subsection 371(3) does not allow an employee’s average weekly wage to be calculated by resort to fractional weeks. Our decision shall be binding precedent pursuant to Administrative Order No. 1990-6, 436 Mich lxxxiv. The wcab also erred when it awarded plaintiff benefits equal to eighty percent of his gross average weekly wage, rather than eighty percent of his after-tax average weekly wage. MCL 418.351(1); MSA 17.237(351)(1). We therefore reverse the opinion and order of the wcab and remand the case for a redetermination of benefits that is consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction._
Plaintiff claims that his average weekly wage should be calculated pursuant to subsection 371(6), rather than subsection 371(3). We reject this argument for the same reasons expressed by the wcab in Tagliavia, supra, and quoted in that opinion. | [
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Griffin, P.J.
This is a divorce case in which the sole issue is the value of an employee stock ownership plan (esop) defendant had with his employer, Copper Range Company. Plaintiff was awarded half of the value of the esop pursuant to a default judgment of divorce entered on May 21, 1987. In an order dated January 2, 1991, the circuit court granted plaintiffs motion to enforce the judgment and awarded plaintiff $22,999.34 as her share of the esop. Defendant’s subsequent motions for relief from this order were denied, and he now appeals as of right. We affirm the decision of the trial court, but modify its award to plaintiff.
i
The facts of this case are relatively straightforward. On October 1, 1986, plaintiff Joann Applekamp (now Strancel), filed for divorce from her husband, defendant William Applekamp. Defendant failed to plead or otherwise defend the action, and a default judgment of divorce was entered on May 21, 1987. The judgment, prepared by plaintiff’s attorney, contained the following provision regarding distribution of the esop:
It is further ordered and adjudged that the parties shall split the 1986 state and federal tax refunds, the anticipated Copper Range Profit Sharing or Escrow Payment, and the anticipated Copper Range Stock Disbursement, with each party to receive one-half (Vi) of each of the above items. Further, the defendant shall provide to the plaintiff proof as to the amounts received from each payment at the time of paying to the plaintiff her share. [Emphasis added.]
At the time of the divorce defendant had 188.23024 vested shares of Copper Range stock in his esop, at $24.40 a share. Thereafter, sometime in 1989, Copper Range Company was bought out by another company, and Copper Range employees voted to terminate the esop. Defendant’s holdings in the esop at the time of the buy out were as follows:
188.23024 shares credit as of 12/31/86;
154.85511 shares credit as of 12/31/87;
152.65909 shares credit as of 12/31/88;
291.98244 shares of unallocated stock.
Pursuant to the purchase agreement, each employee received $84.38 a share. As a result, defendant received a payment of $66,468.40 for 767.72688 shares of Copper Range Company stock.
On August 15, 1989, plaintiff filed a motion to enforce the judgment, seeking to recover half of the $66,468.40 payment to defendant. Plaintiff claimed that she was entitled to this amount pursuant to the judgment of divorce, which awarded her half of the "anticipated Copper Range stock disbursement.” In response, defendant argued that plaintiff was entitled to only half of $4,592.81, the value of the vested stock in the esop at the time of the divorce.
Following a hearing, the trial court agreed in part with plaintiff and purported to award her half the value of the stock that had accrued by the date of the divorce, at the increased value of $84.38 a share. In pertinent part, the court’s opinion reads as follows:
The defendant argues that the plaintiff only should be entitled to one-half of the shares already issued by the defendant as of the date the divorce became final, at the then very low value placed upon the stock by the company as reflected on defendant’s Exhibit 501-H and mentioned by the witness, Charles Lempke [sic]. The plaintiff contends consideration should be given to awarding her one-half of all of the stock eventually purchased at the much higher value as set forth on plaintiff’s Exhibit 2-H.
Based upon the evidence received by the court at the time of the hearing on the motion, and bearing in mind that a divorce action is equitable in nature, this court concludes the plaintiff is entitled to 50 percent of all stock issued to the defendant in 1986, 50 percent of all stock issued to the defendant in 1987 to the date the divorce became final, and with no indication as to exactly when the stock was received by the defendant and also bearing in mind the hearing was in late April and the judgment not signed until late May and by law a request could have been made for a new trial or other relief from the judgment an additional period of time into the month of June, the court concludes for computation purposes the plaintiff is entitled to one-half of the stock issued the defendant in 1987 but she is not entitled to any of the stock issued the defendant in 1988. As to the unallocated shares, the court further concludes the plaintiff is entitled to the percentage of shares already awarded to her, which would be 34.6 percent of the unallocated shares. The court also concludes that she should be entitled to the amount per share eventually realized by the defendant since ñuctuations in value previously were only speculative and in equity the ñnal figure actually paid per share result in a fair and equitable distribution of the stock in accordance with the judgment. Again for the sake of brevity, the court adopts and incorporates by reference the figure set forth on plaintiff’s Exhibit 4-H, and awards the plaintiff the sum of $22,999.34 together with interest thereon at the allowable legal rate provided for judgments from the date the funds actually were received by the defendant until paid to the plaintiff. [Emphasis added.]
II
On appeal, defendant claims that the valuation of the esop was in error. Specifically, defendant contends that the trial court committed an error of law when it failed to determine plaintiff’s award solely on the basis of the value of the stock at the time of the divorce. In support of his position, defendant relies heavily on Burkey v Burkey (On Rehearing), 189 Mich App 72; 471 NW2d 631 (1991). In Burkey, this Court held that it was error for the trial court in a divorce action to refuse to value an esop account and include it as part of the marital estate. In so holding, the panel in Burkey, id. at 76, stated:
. . . The present value of an esop plan can be readily determined at any given time by looking at the value of the stock or other investments made by the plan. All that must be done to determine present value is to determine the number of shares in the employee’s account and multiply that figure by the value of those shares. Defendant in the case at bar was annually notified what number of shares were owned by her, their value, and, therefore, the value of the esop account itself.
The trial court correctly determined that the valuation reached by the trial court could not be dependent upon the happening of future events after the divorce. Kilbride v Kilbride, 172 Mich App 421, 435-436; 432 NW2d 324 (1988). Accordingly, the trial court ignored any changes which might occur to the esop after divorce, such as additional contributions and fluctuation in the price of the stock.
Upon review, we find the present case distinguishable from Burkey. Burkey controls where the valuation of an esop is contested. Additionally, we agree with Burkey that in the context of a contested proceeding, it is unwise public policy to order a property distribution that is based upon the occurrence of speculative future events. Where the trial court is called upon to distribute the property of the parties, the court must employ its equitable powers to fashion an award that is "fair and just.” Sparks v Sparks, 440 Mich 141; 485 NW2d 893 (1992). Property distributions that are contingent upon the occurrence of uncertain future events call into question the fairness and equity of court-ordered decrees. Such concerns, however, are less salient when the property is distributed pursuant to the consent of the parties or by default. Keyser v Keyser, 182 Mich App 268; 451 NW2d 587 (1990), Van Wagoner v Van Wagoner, 131 Mich App 204; 346 NW2d 77 (1983), Kline v Kline, 92 Mich App 62; 284 NW2d 488 (1979), and Tinkle v Tinkle, 106 Mich App 423; 308 NW2d 241 (1981). As we have stated in the context of a property settlement:
The validity of property settlements reached through negotiations is generally upheld in the absence of fraud, duress, or mutual mistake. Consent judgments reached by agreement of the parties differ from litigated judgments reached after trial on the merits. The former primarily rest on the consent of the parties, rather than upon the judgment of the court, and generally cannot be set aside without the approval of the parties thereto. [Madden v Madden, 125 Mich App 54, 58-59; 336 NW2d 231 (1983), rev’d on other grounds 419 Mich 858 (1984).]
If the trial court had ordered the present award in a contested divorce, we might be constrained to find error. Here, however, the judgment was entered by default. As noted by the trial court, defendant never obtained relief from the default.
Default judgments in divorce cases are governed by MCR 3.208(B)(1), MCR 2.603, and MCR 2.612. A party in default generally may not proceed with the action until the default has been set aside. Michigan Bank-Midwest v D J Reynaert, Inc, 165 Mich App 630, 648; 419 NW2d 439 (1988). By not obtaining relief from the judgment in this case, defendant was bound by its terms. In short, we agree with the trial court’s observation that the postjudgment proceedings were limited solely to interpreting the "anticipated” language incorporated in the previous judgment of divorce. Furthermore, we are not persuaded by defendant’s argument that the court’s interpretation of the judg ment ignored the plain meaning of the word "anticipated.”
The lower court’s award, however, must be modified. The court awarded plaintiff half the value of the stock for the entire year of 1987. The parties were married for only the first four months and three weeks of 1987. This error, in turn, affects the proportion of the unallocated shares to which plaintiff is entitled. Accounting for this error, the breakdown should have been as follows:
Plaintiff Defendant
12/31/86 Stock Layer (total 188.23024 shares) 94.11512 94.11512
12/31/87 Stock Layer (total 154.85511 shares) plaintiff entitled to half of unvested shares through 5/21/87 29.91035 124.94476
12/31/88 Stock Layer (total 152.65909 shares) 0 152.65909
Total Vested Shares 124.02547 shares 371.71897 shares
Percent of Total 25.01803% 74.98197%
Proportionate Share of Unallocated Stock (291.98244) shares) 73.04825 shares 218.93419 shares
Total Shares 197.07372 shares 590.65316 shares
Value Per Share $ 84.38 $ 84.38
Total Award $16,629.08 $49,839.32
In accordance with these calculations, we modify plaintiff’s esop award from $22,999.34 to $16,629.08. In all other respects, the decision of the lower court is affirmed.
Affirmed as modified. No costs to either party.
We note, however, that there is language in Burkey that would appear to allow the esop to be valued at a future date:
The actual date to be used for valuation of an asset is within the discretion of the trial court. Curylo v Curylo, 104 Mich App 340, 351; 304 NW2d 575 (1981). In this case, the court used December 31, 1987, since neither party presented information to enable valuation of the stock in the esop as of a different date. [Burkey, supra at 76-77.] | [
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Levin, J.
After the prosecution had examined some, but not all, of its witnesses in a murder case, the trial judge, over vigorous prosecutorial objection, accepted Anderson’s plea of guilty to the charge of manslaughter, dismissed the murder charge and discharged the jury. The prosecution seeks, by this appeal, the opportunity to retry Anderson on a charge of first-degree murder. The issue is whether retrial is barred by the Double Jeopardy Clause.
We hold:
The trial judge’s action represented a resolution of "some or all of the factual elements” of the murder charge and was therefore an acquittal for double jeopardy purposes, barring reprosecution. It is irrelevant that the acquittal
a) was not so denominated by the trial judge,
b) may have been erroneous both procedurally and in terms of the questions of law on which it was founded, and
c) came about with defendant’s cooperation and consent.
I
Elva Jean Anderson was charged with first-degree murder. Willie Young testified that he saw her shoot and kill Willie Ray Russell.
Young, a doorman at a hotel, testified that Barbara Golden and Russell came to the hotel and went to the front desk. Golden kept looking "funny” at Young. She talked with the desk clerk and with Young. After Young said, "You turn around and go on back out the door. I don’t want no trouble in here”, Russell left the hotel. Golden made a telephone call, and then waited with Young in the hallway of the hotel.
About 20 minutes later, a taxicab pulled up and two passengers stepped out; Anderson was one of them. Golden ran up to Anderson, who slapped her. Anderson, Golden and the other person who had arrived in the cab walked around the side of the hotel. About two to three minutes later, Young saw Anderson pull a shotgun out of her "britches” and open the door to the car in which Russell was now sitting. A brief conversation ensued, Young heard Golden say "don’t shoot him”, and then he heard a shot. After the shot, Young heard Anderson say "[m]otherfucker, I bet you won’t try to rape nobody else”.
Anderson was bound over on a charge of first-degree murder. A pretrial motion to quash was denied.
At trial, the prosecution had presented its first five witnesses, but had not yet completed presenting its case, when the judge entertained a motion for reduction of bond. Over the prosecutor’s objection the judge granted Anderson’s release on personal bond, stating that "the proofs [of murder] in this case are not strong”.
Thereupon, an off-the-record side bar conversation was held with counsel. Immediately thereafter, following an apparently brief conversation between Anderson and her counsel, she offered to plead guilty to a charge of manslaughter.
Over the prosecutor’s objection, the judge proceeded to take Anderson’s guilty plea, advising her of her rights and establishing a factual basis for her plea. She said that Golden was her lover and had called her saying that a man was waiting outside the hotel with a gun and was trying to rape her and asked Anderson to come pick her up. Anderson said that she brought her shotgun because she believed Golden when she said that a man with a gun was waiting outside the hotel and was trying to rape her. Anderson said that she approached the car in which Russell was sitting because she believed that he had attempted and still intended to rape Golden. She asked Russell to get out of the car, "because I didn’t want to shoot him”, and repeated the request several times. Anderson thought that Russell "was digging for a gun or something” and when he didn’t come out she shot him.
The judge accepted Anderson’s plea to the charge of manslaughter, said he was dismissing the "charges of murder in the first degree and murder in the second degree” and discharged the jury.
The Court of Appeals reversed and remanded for trial on first-degree murder. It held that the judge was not. authorized to accept a plea to a lesser offense and dismiss the murder charge over the prosecutor’s objection, and declared that "no double jeopardy question arises”.
n
The people contend, relying on Genesee Prosecutor I and Genesee Prosecutor II, that the Court of Appeals correctly found that the judge erred in dismissing the murder charge. Anderson claims that the Double Jeopardy Clause bars further prosecution for murder whether the judge erred or not. We agree that reprosecution is constitutionally impermissible.
In Genesee Prosecutor I this Court held that a judge is not authorized, over the prosecutor’s objection, to accept a plea of guilty of an offense not charged or included in the information or indictment. Genesee Prosecutor II enlarged this holding and declared that a judge cannot, over the prosecutor’s objection, accept a plea of guilty of a lesser included offense and dismiss the charge of the greater offense; we set aside a plea of guilty of manslaughter and remanded for trial on the charged offense of murder. In those cases, however, the plea was offered and the charge dismissed before trial and impaneling of a jury. We noted that there was no double jeopardy issue in Genesee Prosecutor II because the defendant "has not been tried for murder”.
The judge’s actions in accepting a plea of guilty of the lesser offense of manslaughter and dismissing the murder charge appear to have been violative of Genesee Prosecutor II. It is, however, a separate question, one controlled by the decisions of the United States Supreme Court, whether the Double Jeopardy Clause would be violated by a retrial of Anderson for murder after jeopardy had attached in respect to that charge. We conclude (Part III, infra) that the Double Jeopardy Clause would be violated by retrial because the judge made a factual determination upon the prosecutor’s proofs that one or more elements of murder could not be established. This is true notwithstanding that the judge’s acceptance of a plea to a lesser offense over the prosecutor’s objection appears to have violated the specific dictates of Genesee Prosecutor II.
A
The constitutional protections of the Double Jeopardy Clause are implicated only when jeopardy has "attached”. Jeopardy attaches in a jury trial when the jury has been impaneled and sworn.
The Clause secures the defendant’s interests in (1) the finality of judgments, and (2) protection against multiple prosecutions.
If a trial ends in a judgment of acquittal, both interests are implicated, and there can be no retrial. This has been called "the most fundamental rule in the history of double jeopardy jurisprudence”,* and is absolute. It applies whether the acquittal is based on findings of a judge or the verdict of a jury, and whether it is erroneously based or brought about with the defendant’s voluntary participation.
Where, however, the trial or proceeding does not end in a judgment of acquittal or conviction, only the second interest is implicated, and the constitutional protections are not absolute. The defendant has an interest in avoiding harassment from repeated proceedings and in having his guilt de cided by the jury impaneled to try him. The people, however, have a competing interest in having one complete opportunity to try those accused of breaking the law. Where there is no judgment of conviction or acquittal, these interests are balanced.
If the trial or proceeding ends without the defendant’s consent, further prosecution is generally barred; the defendant’s "valued right to have his trial completed by a particular tribunal” was taken from him, and reprosecution smacks of harassment. An exception is recognized, and retrial permitted, where "manifest necessity” compelled the termination of the first trial or proceeding.
Where the defendant himself brings about the termination of the proceeding on a basis unrelated to factual guilt or innocence, retrial is generally permitted. The defendant, having deliberately chosen to take the case from the jury cannot complain of the loss of the first trier of fact or of prosecutorial harassment through multiple prosecutions; he must live with "the consequences of his voluntary choice”. An exception is made, and retrial barred, when the defendant’s motion is induced by bad-faith conduct of the prosecutor or judge.
B
The prosecution contends that it is apparent from statements by the judge following acceptance of the guilty plea and dismissal of the murder charge that he merely found an abuse of discretion in the pretrial charging process. From this it argues that the trial did not end in an acquittal on the murder charges — there was no "final judgment” that Anderson has an interest in preserving; because the trial was terminated on a basis unrelated to factual guilt or innocence, with Anderson’s cooperation and over prosecutorial objection, her interests are subordinate to those of the people; she cannot complain of harassment by multiple prosecution; the people seek only "one fair opportunity” to convict, which was wrongfully taken from it by the judge.
We reject the premise of the people’s argument. We conclude that the judge’s action was an acquittal of the murder charges for double jeopardy purposes. No balancing of interests is required; reprosecution is barred.
Ill
To be sure, the judge did not say that he was directing a verdict, and no formal judgment of acquittal was entered. The determination of what the judge did, however, does not turn on how the judge characterizes his actions. "[T]he trial judge’s characterization of his own actions cannot control the classification of the action.” What constitutes an "acquittal” is not controlled by the form of the judge’s action.
To decide how a trial judge’s action should be characterized, the reviewing court "must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged”. There is an acquittal and retrial is impermissible when the judge "evaluated the Government’s evidence and determined that it was legally insufficient to sustain a conviction”.
We conclude that the judge’s decision to accept Anderson’s mid-trial plea and to dismiss the murder charge involved a resolution of factual elements of the offense charged, and was based on his belief, correct or incorrect, prematurely formed or not, that the evidence was insufficient to support a conviction of murder.
A
In accepting Anderson’s plea to manslaughter, the judge considered her factual guilt or innocence of that lesser offense. The judge examined Anderson to determine whether there was a factual basis for her plea. The judge found that she had committed manslaughter.
The transcript convinces us that the judge chose to accept this plea to manslaughter because he concluded that Anderson had not committed murder.
The prosecution emphasizes the judge’s statements that he was merely granting Anderson’s pretrial motion to quash the information charging murder. But those statements were made only as an afterthought in response to the prosecutor’s arguments and objections.
The judge expressed his belief that there is an exception to the Genesee Prosecutor cases when the prosecutor has abused his charging discretion and said that the exception "does not apply” "to this case except to the following extent”:
"The court would find in this case after hearing the testimony up to this time, that the charge of murder should not have been made in this case; that the judge who conducted the examination in this case, if she had heard the testimony that has been given in this court, would not have bound the defendant over on the charge of murder in the first degree and that this court, prior to the trial of the case, when considering a motion made by the defense to dismiss the case, would have dismissed the charges of murder in the first degree and murder in the second degree if the court had been in possession of the facts which this court has heard in this case.” (Emphasis supplied.)
The judge proceeded to explain his understanding of the law of homicide, particularly the defenses of excuse and justification. On the basis of this understanding, he expressed his belief that the prosecution had not and could not overcome Anderson’s assertion of a justification defense.
"The people, nevertheless, in a case have the burden of proving that it was not a case of justiñcation, or excuse — this has been held in a number of recent cases and the people must also prove a number of other exceptions to the law — that it was not an accident, for instance, and, in this particular case, we are dealing with the situation of a private citizen who took the law into her hands and killed another person — as she says —enforcing the law.
"In determining whether the defendant was justified under these circumstances the matter must be determined from the standpoint of the defendant in the case, not from the standpoint of the officers — the officer in charge of the case, nor from the standpoint of the prosecutor, or the judge, but from her own honest intentions in a matter of this kind, and the court feels that there was — under these definitions, if the defendant had only used reasonable force in the case, she would have been justified under the circumstances of this case.
"The reason that this court has accepted the plea of manslaughter in the ease is the fact that the court concludes that she did not limit herself to reasonable force in this case but that she went beyond reasonable force in the case, and, therefore, committed the offense of manslaughter in this case, which is the crime as, for instance, where a policeman, in making an arrest, uses excessive force and commits a homicide — the crime is manslaughter and the same rule would apply to a citizen as in this case and, accordingly, this court dismisses the — court grants Mr. Roth’s motion ñled prior to the trial of this case to dismiss to the extent that it applies to the charges of murder in the ñrst degree and murder in the second degree, leaving the charge of manslaughter to which the defendant has just pled guilty in this case.” (Emphasis supplied.)
After the prosecutor objected that there was sufficient evidence to sustain a conviction and that he had two more res gestae witnesses that the court had not allowed to testify, the judge responded:
"[T]he court concluded that the people simply had not overcome their burden of proving that there was no excuse or provocation as to murder in the ñrst and second degree and, accordingly, the court would have had to eventually direct a verdict of not guilty on those two counts.
"You are overlooking the fact that the law — it is clearly established that in determining matters of this kind, it must be looked at from the belief and position of the defendant, not the beliefs or position of the officers in the case or any other person, and that the court, having heard witnesses called by the people in the case, was convinced that she was well justified in believing that there was an attempted rape in the case."(Emphasis supplied.)
Another prosecutor then appeared to add his protest to that previously made. He also inquired whether "by proffering this plea, and by the court accepting it, that the defense would waive any question of jeopardy that may arise in the substantive case?” Defense counsel responded negatively. The judge then said "that is a question that would properly have to be determined by the United States Supreme Court”. He indicated that his decision was not based on an examination of the preliminary examination transcript, saying that he had felt that "based on the testimony taken at the examination, that the prosecution was justified in taking the matter to trial without any reduced plea”. He then added somewhat gratuitously that "if the examining magistrate had heard the testimony that has been heard in this court that the defendant would not have been bound over for trial on the charge of first-degree murder in this case”.
The . judge did not determine that there was a defective information or dismiss the murder charges on a ground unrelated to Anderson’s guilt or innocence; he did not find an abuse of discretion by the examining magistrate or prosecutor. He determined, rather, that Anderson could assert a defense of excuse, that its merits must be assessed from the standpoint of her reasonable belief, and that, based on what he had heard at trial, the prosecution had not proved and could not prove beyond a reasonable doubt that she did not believe the killing was necessary to prevent the commission of a felony. The witnesses up to that point had not given testimony disproving excuse "from the belief and position of the defendant” and the judge was convinced that testimony of the remaining witnesses would, for the same reason, be insufficient.
That ruling was a determination of Anderson’s factual innocence of murder, although rested on questions of law.
The United States Supreme Court has held that an appellate ruling that there was insufficient evidence to rebut an insanity defense was "a resolution, correct or not, of some or all of the factual elements of the offense charged,” and thus an acquittal barring reprosecution. Subsequently, commenting on that holding, the Court elaborated:
"The defense of insanity, like the defense of entrapment, arises from 'the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense’ * * * where other facts established to the satisfaction of the trier of fact provide a legally adequate justification for otherwise criminal acts. Such a factual finding does 'necessarily establish the defendant’s lack of criminal culpability’ * * *. By contrast, the dismissal of an indictment for preindictment delay represents a legal judgment that a defendant, although criminally culpable, may not be punished because of a supposed constitutional violation.” (Emphasis in original.)
A defense of excuse or justification, like defenses of insanity or entrapment, "necessarily establishes lack of culpability” within the meaning of the passage just quoted, because it goes to the central issue of criminal intent. It is irrelevant that the resolution of the factual issue depended on rulings of law concerning the defense of excuse and justification.
B
Once it is determined that the judge resolved factual questions dispositive of elements of murder in Anderson’s favor, it follows that retrial for murder is barred.
Fong Foo v United States highlights that the rule prohibiting retrial after acquittal is absolute. After three government witnesses had testified, and while a fourth was in the process of testifying, the trial judge directed verdicts of acquittal and entered formal judgments accordingly. He advanced two reasons for doing so: there was improper conduct on the part of the prosecutor and the witnesses lacked credibility. The Court of Appeals set aside the acquittals and ordered retrial. The Supreme Court reversed in a brief opinion, holding that because the trial terminated in final judgments of acquittal, government appeal was barred even though "[t]he Court of Appeals thought, not without reason, that the acquittal was based upon an egregiously erroneous founda tion. Nevertheless, '[t]he verdict of acquittal was final, and could not be reviewed * * * without putting [the petitioners] twice in jeopardy, and thereby violating the Constitution.’ United States v Ball 163 US 662, 671 [16 S Ct 1192; 41 L Ed 300 (1896)]”.
In Sanabria v United States, 437 US 54; 98 S Ct 2170; 57 L Ed 2d 43 (1978), where the judge excluded certain evidence and acquitted the defendant for evidentiary insufficiency, the Court, on the basis of Fong Foo, held that retrial was impermissible and observed that "when a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous”.
In the instant case, the judge should have allowed the prosecution to present all of its witnesses. He could then have entertained a motion for a directed verdict. Fong Foo demonstrates, however, that a procedural error, even of this magnitude, does not change the finality of an acquittal, any more than would an erroneous determination on the elements of the crime charged.
Citing United States v Scott, 437 US 82; 98 S Ct 2187; 57 L Ed 2d 65 (1978); Lee v United States, and United States v Dinitz, the people argue that retrial is permitted after a defendant causes or participates in termination of trial on a basis unrelated to factual guilt or innocence. That argument, however, falls with its premise that the first trial was brought to a close "on a basis unrelated to factual guilt or innocence”.
The trial in Dinitz ended in a mistrial after the judge expelled one of the defendant’s lawyers. In Scott, the indictment was dismissed because of preindictment delay. In Lee, the information failed to list all the elements of the offense charged. In none of those cases was the termination of proceedings related to factual guilt or innocence. Since the dismissal here was related to Anderson’s factual guilt or innocence, it is irrelevant that she consented to, or even requested, the judge’s action terminating the trial.
Although a judge should not rule on the sufficiency of the evidence until the prosecutor has had an opportunity to present his entire case and while the principle underlying the Genesee Prosecutor cases is of considerable importance, these precepts must yield to the rights secured by the Double Jeopardy Clause.
We reverse the judgment of the Court of Appeals.
Coleman, C.J., and Kavanagh, Williams, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Levin, J.
US Const, Am V; Const 1963, art 1, § 15.
The facts are taken from the transcript of the preliminary examination. The stenographic notes of the three-day trial have not been transcribed except for the colloquy concerning Anderson’s plea of guilty of manslaughter.
Anderson was sentenced to three years’ probation on the manslaughter charge.
Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972).
Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115; 215 NW2d 145 (1974).
Id., p 123.
Crist v Bretz, 437 US 28; 98 S Ct 2156; 57 L Ed 2d 24 (1978).
Id., p 33; Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977); United States v Jorn, 400 US 470, 479; 91 S Ct 547; 27 L Ed 2d 543 (1971) (plurality opinion).
United States v Scott, 437 US 82, 92; 98 S Ct 2187; 57 L Ed 2d 65 (1978); Arizona v Washington, 434 US 497, 503-505; 98 S Ct 824; 54 L Ed 2d 717 (1978); Green v United States, 355 US 184; 78 S Ct 221; 2 L Ed 2d 199; 61 ALR2d 1119 (1957).
Sanabria v United States, 437 US 54, 64; 98 S Ct 2170; 57 L Ed 2d 43 (1978); United States v Scott, supra, pp 91, 96; United States v Martin Linen Supply Co, 430 US 564, 571; 97 S Ct 1349; 51 L Ed 2d 642 (1977); Fong Foo v United States, 369 US 141, 143; 82 S Ct 671; 7 L Ed 2d 629 (1962).
Although retrial following an acquittal is barred, the government may appeal if reinstatement of a jury’s verdict of conviction, rather than retrial, is sought, e.g., where the judge enters an acquittal on a post-trial motion. United States v Wilson, 420 US 332; 95 S Ct 1013; 43 L Ed 2d 232 (1975).
United States v Martin Linen Supply Co, supra, p 571.
Sanabria v United States, supra, p 64, fn 18; United States v Scott, supra, p 91; United States v Martin Linen Supply Co, supra; Fong Foo v United States, supra.
Sanabria v United States, supra, p 64; United States v Scott, supra, p 98; Fong Foo v United States, supra.
Sanabria v United States, supra; cf. United States v Scott, supra, pp 98-101.
'[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ ” United States v Scott, supra, p 87, quoting Green v United States, supra.
"There are a number of reasons a retrial enhances the risk that 'even though innocent, [the criminal defendant] may be found guilty.’ * ** * A retrial affords the Government the opportunity to re-examine the weaknesses of its first presentation in order to strengthen the second. And, as would any litigant, the Government has been known to take advantage of this opportunity. It is not uncommon to find that prosecution witnesses change their testimony, not always subtly, at second trials. See Arizona v Washington, 434 US 497, 504, fn 14 [98 S Ct 824; 54 L Ed 2d 717] (1978), quoting Carsey v United States, 129 US App DC 205, 208-209; 392 F2d 810, 813-814 (1967).” United States v Scott, supra, p 105, fh 4 (Brennan, J., dissenting).
Downum v United States, 372 US 734, 736; 83 S Ct 1033; 10 L Ed 2d 100 (1963).
United States v Scott, supra, p 100; Arizona v Washington, supra, p 509.
United States v Scott, supra, p 92; see, also, United States v Jorn, supra, pp 480-482 (plurality opinion); Wade v Hunter, 336 US 684, 689; 69 S Ct 834; 93 L Ed 974 (1949).
Wade v Hunter, supra, p 689.
"Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate 'manifest necessity’ for any mistrial declared over the objection of the defendant.” Arizona v Washington, supra, p 505. See, also, e.g., United States v Scott, supra, pp 92-93.
United States v Scott, supra, p 100. See United States v Dinitz, 424 US 600, 607-608; 96 S Ct 1075; 47 L Ed 2d 267 (1976); United States v Jorn, supra, pp 484-485 (plurality opinion).
United States v Scott, supra, p 99.
Lee v United States, 432 US 23, 33-34; 97 S Ct 2141; 53 L Ed 2d 80 (1977); United States v Jorn, supra, p 485 (plurality opinion).
United States v Scott, supra, p 96, quoting United States v Jorn, supra, p 478, fn 7 (plurality opinion). See United States v Martin Linen Supply Co, supra.
In the following cases the trial judge’s characterization was held not to be controlling in determining whether there had been an acquittal: United States v Appawoo, 553 F2d 1242 (CA 10, 1977) (trial judge’s "acquittal” held not an acquittal for double jeopardy purposes); United States v Hill, 473 F2d 759 (CA 9, 1973) (dismissal of indictment held to be an acquittal for double jeopardy purposes). See, also, United States v Sisson, 399 US 267; 90 S Ct 2117; 26 L Ed 2d 608 (1970) (post-trial order in arrest of judgment held to be an acquittal, based on now repudiated definition of double jeopardy "acquittal”).
United States v Martin Linen Supply Co, supra, p 571.
Id.
Id., p 572. See People v Hampton, 407 Mich 354, 385-386; 285 NW2d 284 (1979) (Ryan, J.).
The judge expressed his belief that it was justifiable homicide for a person to kill another so as to prevent "atrocious felonies, accompanied with violence and personal danger to others * * * the person making the attempt may, by the common law, if he cannot be otherwise prevented, be killed on the spot and the law will not recognize the act as a crime. In cases of this sort, in order to justify the homicide, it must appear that there were good grounds for a suspicion that the person killed had a felonious intent”.
See United States v Scott, supra, p 98 (allowing retrial where the dismissal was for preindictment delay).
Burks v United States, 437 US 1, 10; 98 S Ct 2141; 57 L Ed 2d 1 (1978).
United States v Scott, supra, pp 97-98.
See, also, Comment, The 1978 Double Jeopardy Cases — Mistrials, Dismissals, and Acquittals, 83 Dickinson L Rev 291, 311-312 (1979):
“An example of a legal-factual defense, not mentioned in Scott, that should be unappealable is lack of specific intent to commit the crime because of the defendant’s belief at the time of the act that the underlying statute was unconstitutional. This defense must be distinguished from the strictly legal defense that the statute is unconstitutional. A favorable ruling on the former is a ruling on one of the factual elements of any crime — intent. A favorable ruling on the latter, on the other hand, does not go to culpability or insufficiency of the evidence but, rather, indicates that the defendant, though criminally culpable, cannot be convicted.”
It makes no difference that those rulings may have been erroneous: "[T]he fact that 'the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles,’ * * * affects the accuracy of that determination, but it does not alter its essential character.” United States v Scott, supra, p 98.
Fong Foo v United States, supra.
Id., p 143.
Sanabria v United States, supra, p 64.
Lee v United States, 432 US 23; 97 S Ct 2141; 53 L Ed 2d 80 (1977).
United States v Dinitz, 424 US 600; 96 S Ct 1075; 47 L Ed 2d 267 (1976).
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Kavanagh, J.
We granted leave to appeal to determine the effect of the doctrine of res judicata upon these workers’ compensation claims.
Justice Williams has stated the facts in both cases.
I
The parties do not question that the doctrine of res judicata applies to workers’ compensation proceedings; they differ only as to its scope. Plaintiffs assert that only those claims actually litigated in a prior proceeding are barred from relitigation. Defendants argue that res judicata bars those claims actually litigated and also those arising out of the same transaction which plaintiff could have brought in the first action, but did not.
The concerns behind the res judicata principle— economy of judicial resources and finality of litigation — apply equally to workers’ compensation proceedings and other actions. 3 Larson, Workmen’s Compensation Law, § 79.71, p 15-307. While this Court has always maintained that the scope of the doctrine should be the same in each area, we have not been consistent in defining that scope.
Our opinions have endorsed both a narrow and a broad application of the rule. Narrow application bars a second action only if the same question was actually litigated in the first proceeding. Broad application bars as well those claims arising out of the same transaction which plaintiff could have brought, but did not. In recent opinions, we have acknowledged the conflicting language and opted for the broad rule. Gursten v Kenney, 375 Mich 330, 334-335; 134 NW2d 764 (1965) (order of dismissal); Curry v Detroit, 394 Mich 327, 332; 231 NW2d 57 (1975) (order of summary dismissal).
Our workers’ compensation cases also contain conflicting language. Once again, we endorsed the broad rule in our most recent pronouncement:
"This Court has cited with approval the rule set forth in 58 Am Jur, Workmen’s Compensation, § 508. See White v Michigan Consolidated Gas Co, 352 Mich 201; 89 NW2d 439 (1958). This section states:
" 'The general rule with respect to the effect upon the application of the principles of res judicata to decisions under workmen’s compensation acts, of a provision authorizing the modification of an award upon a showing of a change in the employee’s condition, is that a compensation award is an adjudication as to the condition of the injured workman at the time it is entered, and conclusive of all matters adjudicable at that time, but it is not an adjudication as to the claimant’s future condition and does not preclude subsequent awards or subsequent modifications of the original award upon a showing that the employee’s physical condition has changed. * * Hlady v Wolverine Bolt Co, 393 Mich 368, 375-376; 224 NW2d 856 (1975) (emphasis supplied in Hlady).
I do not share the view expressed in Justice Williams’ opinion that we applied a "narrow rule” in Hlady.
There was no disagreement there that res judicata barred all facts adjudicated or adjudicable at the time of the first hearing. There was also no disagreement that the law applied to those facts at such hearing if unchanged would also preclude subsequent redetermination.
We disagreed only over whether a change in the law — as would a change in facts — permits a subsequent redetermination of an issue.
Thus while we disagreed over whether the rule of res judicata should be applied, there was no dispute over the scope of its coverage if applicable.
The expression in Hlady:
"the doctrine of res judicata applies not only to facts previously litigated, but also to points of law which were necessarily adjudicated in determining and deciding the subject matter of the litigation”, Hlady, supra, 376,
is no expression of a "narrow” rule but a simple affirmation that the rule of res judicata, whatever its breadth, applies equally to facts and law. Barring a change, under the doctrine we all agree neither can be relitigated.
I am not persuaded that the scope of the rule should be narrowed, as plaintiffs urge. A compensation award represents " 'an adjudication as to the condition of the injured workman at the time it is entered.’ ” Theodore v Packing Materials, Inc, 396 Mich 152, 158; 240 NW2d 255 (1976), citing 58 Am Jur, supra. Disability benefits "are a form of income maintenance for persons whose wage-earning capacity has been suspended or terminated. A claimant’s entitlement to such benefits depends on the circumstances at the time of application and payment”. Hlady, supra, 391 (Levin, J., concurring).
The requirement that he present all of his available claims in a single proceeding is consistent with this purpose of adjudicating the worker’s needs. The remedial character of the legislation, if affected at all by this rubric, would scarcely be enhanced by a construction which would authorize piecemeal compensation for an injury.
II
Central to any application of the res judicata rule — narrow or broad — is the principle that one may not relitigate the identical question once determined. The adjudicative process would fail to serve its social function if it did not have this effect. James & Hazard, Civil Procedure (Boston: Little, Brown & Co, 1977), ch 11, p 530.
I agree with Justice Williams that plaintiff Sanders’ second petition is barred because she is asserting the same claim.
I disagree with his conclusion that plaintiff Gose’s claim should not be barred for the same reason.
There can be but one claim for total and permanent disability. Although the statute recognizes seven alternative bases for it, evidence establishing more than one basis would occasion only one award.
Gose’s second petition, although upon a different basis (insanity instead of industrial loss of use of both legs), nonetheless seeks compensation for the same claim of total and permanent disability arising from injury to his left ankle. He was obligated to advance in a single proceeding every alternative basis which could support this claim. Failure to do so bars relitigation of the claim previously resolved against him. Restatement Judgments, 2d (Tentative Draft No 5, 1978), § 61, comment c, p 144.
We reverse and remand in both cases for entry of an order denying benefits based on res judicata.
Coleman, C.J., and Fitzgerald and Ryan, JJ., concurred with Kavanagh, J.
Williams, J.
We are asked in these two cases to revisit and more explicitly define the application of the doctrine of res judicata to workers’ compensation law. This Court most recently faced this task in Hlady v Wolverine Bolt Co, 393 Mich 368; 224 NW2d 856 (1975), in which res judicata was found to control, and Morgan v Freedman Artcraft, 401 Mich 54; 257 NW2d 85 (1977), in which it was not.
In Gose, the issue is whether a claim based on insanity which was withdrawn before adjudication can be re-petitioned in a subsequent case without being barred by res judicata. In Sanders the issues are of fact as to whether determinations had been made in the prior case. Based on the facts of each case and the rule set forth by this Court in Hlady, supra, we find the doctrine of res judicata does not bar the claim of plaintiff Gose but does bar the claim of plaintiff Sanders.
I. Facts
A. Gose
Plaintiff, Tipton G. Gose, commenced employment with defendant Monroe Auto Equipment in 1945. In 1946, plaintiff cut his left ankle; on August 3, 1953, he reinjured the same area. Both incidents occurred while at work.
The 1953 incident developed into an ulcerated skin condition which caused intermittent absences from work while plaintiff received treatment. Workers’ compensation benefits were voluntarily paid during these absences.
By 1960, plaintiff was apparently totally unable to continue employment and on February 19, 1962, plaintiff underwent a below-the-knee amputation of his left leg.
Compensation benefits were paid voluntarily through the expiration of a 500-week period. Ten days subsequent to the expiration of that benefit period, March 14, 1963, plaintiff filed a petition for hearing with the Workers’ Compensation Bureau indicating personal injury dates of August 3, 1953, and the summer of 1960 (presumably the last day of work). The disability was described as "ankle, leg amputation thereof, permanent and total disability, and related injuries”. The petition was withdrawn August 12, 1963, however, when the defendant-employer agreed to pay compensation on a voluntary basis. This payment continued for 250 more weeks and terminated December 4, 1967.
Plaintiff testified that after his amputation he was depressed and felt like killing himself. As a result, in August, 1963, plaintiff was admitted to the Ypsilanti State Hospital and was an intermittent patient at that facility until 1968. Since his release, plaintiff has been on medication and in the care of his brother.
On March 14, 1968, plaintiff again filed a claim for workers’ compensation benefits. This claim was brought against both his employer and the Second Injury Fund. Plaintiff listed the same disability dates (1953 and 1960) and claimed "industrial loss of use of both legs, insanity, total and permanent disability and related injuries”.
Hearing commenced on November 3, 1969, during which Raymond F. Lipton, M.D., who testified that he was a specialist in the treatment of injury cases, was deposed with regard to plaintiff’s physical and mental status. As to his physical status, Dr. Lipton found plaintiff suffered from arterial circulatory disease of the right leg. He diagnosed plaintiff’s mental problem as "chronic psychosis”. This diagnosis was partially based on the fact that the social worker who accompanied plaintiff from Ypsilanti State Hospital to Dr. Lipton’s office had told the doctor that plaintiff had been diagnosed as psychotic. No other medical testimony was presented, and the testimony of Dr. Lipton at no time related the claimant’s psychosis to his employment, although, as stated above, the claimant’s own testimony related his mental problems to his amputation.
On December 1, 1969, the matter came before the hearing referee for a closing of the record. At that time, plaintiff’s attorney officially withdrew from consideration plaintiff’s claim of insanity:
"Well, if your Honor please, I would like to complete it from my standpoint by withdrawing that part of the claim which relates to the claim of insanity. We did not offer proofs in that regard, and we do not want a decision made in that regard. We would like instead for the case to proceed on the allegation of loss of both legs * * * »
No objection to the withdrawal was lodged by defendant.
On April 29, 1970, the hearing referee found that plaintiff had suffered industrial loss of the use of both legs and ordered the defendant-employer to pay benefits for 750 weeks; the referee further ordered the Second Injury Fund to pay benefits beyond the 750-week period. The Second Injury Fund appealed this decision to the Workers’ Compensation Appeal Board (hereinafter WCAB).
The WCAB modified the referee’s order by denying plaintiff the benefits ordered due from the Second Injury Fund. Apparently no appeal was taken from this modification.
In April, 1972, plaintiff again applied for benefits from his former employer and the Second Injury Fund. Plaintiff recited the same injury dates and the same disabilities as previously claimed in the 1968 petition, including insanity. No change in condition was alleged, but testimony pursuant to this claim included that of a psychiatrist. Defendants, employer and Second Injury Fund, filed a motion to dismiss, claiming that plaintiff’s present claim was barred by res judicata. A hearing was held on January 26, 1973, which resulted in a finding that plaintiff was "incurably insane as determined by court decisions and is permanently and totally disabled”. Further compensation, however, was found to be barred by application of res judicata. The WCAB affirmed, finding that plaintiff’s contention of insanity was a triable issue at the earlier 1969 hearing, and was therefore barred by res judicata.
Plaintiff filed an application for leave to appeal with the Court of Appeals. That Court, in a peremptory order issued November 21, 1977, ruled:
"It is ordered, pursuant to GCR 1963, 806.7, that this cause be, and the same is hereby remanded to the Workmen’s Compensation Appeal Board for consideration, on the merits of the evidence and without invoking res judicata, of the question whether plaintiff is totally and permanently disabled as a result of incurable insanity under the act. Morgan v Freedman Artcraft, 401 Mich 54 (1977).
"This Court retains no further jurisdiction.”
Both defendants sought leave to appeal to this Court. Leave was granted June 1, 1978.
B. Sanders
Plaintiff, Louise Sanders, commenced employment with defendant Genera] Motors Corporation in October, 1952. From that date until November, 1960, plaintiff worked in various capacities includ ing packing bumpers, working on a press, working on the production line and inspecting.
At the end of plaintiffs shift on November 10, 1960, while working as an inspector, plaintiff tripped and fell over several pieces of wire which had been discarded in an aisle. The fall resulted in injuries to plaintiffs back.
Plaintiff first consulted with her own physician, Dr. John Benson, who recommended that she cease work for a 30-day period. The plant physician, Dr. Clark, however, did not agree that the injuries to plaintiffs back necessitated total cessation of work. Rather, Dr. Clark had plaintiff transferred to sedentary work for a 30-day period. Plaintiff returned to her prior duties at the conclusion of the 30-day period and subsequently transferred to several other positions. For approximately a three-year period between plaintiffs November, 1960 fall and April, 1963, plaintiff continued to work while she received treatment for back and leg problems occasioned by her fall. In April, 1963, however, plaintiffs medical problems necessitated cessation of work.
From termination of employment through 1966, plaintiff underwent several surgeries and periods of hospitalization and was able to perform only limited activities. Plaintiff testified that in 1966, following her third laminectomy, she was unable to do almost all household chores, be mobile for more than a short time, prepare meals or drive or ride in an automobile.
Plaintiff received workers’ compensation benefits during much of the period between April, 1963 and October, 1965.
On September 27, 1967, plaintiff filed a petition for hearing with the Workers’ Compensation Bureau alleging total and permanent disability to her back, legs and nervous system. A hearing was held December 5, 1968, which resulted in a finding that, as of April 15, 1963, plaintiff had sustained an occupational disease disability and was therefore entitled to receive compensation for total disability from her employer for the maximum statutory period of 500 weeks (i.e., until November 11, 1972). The hearing referee simultaneously determined, however, that defendant Second Injury Fund, unlike defendant employer, was not liable because plaintiff had "failed to sustain the burden of proof to establish total and permanent disability as defined by the statute” (emphasis added). No appeal was taken from this determination.
On December 6, 1972, plaintiff again filed a petition for hearing with the Workers’ Compensation Bureau alleging total and permanent disability due to loss of industrial use of both legs. Pursuant to this second hearing, the Administrative Law Judge concluded that plaintiff was "totally and permanently disabled through the industrial loss of use of both legs”.
Appeal was taken to the WCAB. The WCAB determined that, because there had been no change in plaintiff’s condition since the first hearing, the doctrine of res judicata as set forth by this Court in Hlady v Wolverine Bolt Co, 393 Mich 368; 224 NW2d 856 (1975), precluded a redetermination of the issue of plaintiff’s total and permanent disability.
Plaintiff appealed to the Court of Appeals which found that, despite the doctrine of res judicata, there were two possible approaches under which total and permanent disability could now be found.
The first possible approach was explained as follows:
"[I]t is possible that the referee who entered the first award in 1968 found that the plaintiff was then suffering a total loss of industrial use of her legs but that it was impossible at that time to determine whether or not the loss was permanent.” Sanders v General Motors Corp, 80 Mich App 190, 194; 263 NW2d 329 (1977).
The second possible approach centered on a change in the legal standard:
"Whether or not the referee believed that the plaintiffs condition was permanent, he may have found no 'total and permanent disability’ because he found no 'loss of industrial use of both legs’. While the statutory phrase has remained the same, the case law interpretation of that phrase has undergone a considerable evolution beginning shortly after the plaintiffs 1960 injury date. Paulson v Muskegon Heights Tile Co, 371 Mich 312; 123 NW2d 715 (1963), Lockwood v Continental Motors Corp, 27 Mich App 597; 183 NW2d 807 (1970), Burke v Ontonagon County Road Comm, 391 Mich 103; 214 NW2d 797 (1974).” Sanders, supra, 195.
Based on these alternative possibilities, the Court of Appeals vacated the decision of the WCAB and remanded to that board for further proceedings.
Appeal was taken from this decision. On June 1, 1978, this Court granted the applications for leave to appeal of the employer and the Second Injury Fund and the cross-application for leave to appeal of plaintiff.
II. Issue
Because of the differing factual aspects of Gose and Sanders, this Court phrased in different language the issues on which leave to appeal was granted.
The issue on which this Court granted leave to appeal in Gose is as follows: "[D]oes the doctrine of res judicata bar plaintiff’s second total and permanent disability claim based on insanity” when, in the prior case, the claim based on insanity was withdrawn before adjudication? 402 Mich 950p.
In Sanders the issue is: "[D]oes the doctrine of res judicata apply to bar plaintiff’s total and permanent disability claim when the issue of total and permanent disability was litigated and decided against the plaintiff at a previous hearing before a referee?” 402 Mich 950i.
The order in each case indicated the two cases were to be argued and submitted together.
III. Workers’ Compensation Res Judicata
A. Hlady
Our point of departure in deciding these two cases is the longstanding rule in this jurisdiction that, absent a change in the claimant’s physical condition, the doctrine of res judicata applies to workers’ compensation law. Hlady v Wolverine Bolt Co, 393 Mich 368; 224 NW2d 856 (1975); Besonen v Campbell, 243 Mich 209; 220 NW 301 (1928); 24 Michigan Law & Practice, Workmen’s Compensation, § 234. There is a distinction, however, between the scope of the doctrine’s application to workers’ compensation and the scope of its application to other areas of the law. As noted by the Court of Appeals in Stokes v Lakey Foundry Corp, 20 Mich App 217, 219; 173 NW2d 832 (1969):
"Except for workmen’s compensation cases, Michigan has held that the doctrine of res judicata applies not only to issues which were determined on the merits, but also to matters which the parties had the opportunity to present for adjudication on the merits. Strech v Blissfield Community Schools District, 357 Mich 620 [99 NW2d 545 (1959)]; Gursten v Kenney, 375 Mich 330 [134 NW2d 764 (1965)].” (Emphasis added.)
That case then went on to correctly set forth the scope of res judicata’s application to the law of workers’ compensation as of its 1969 decisional date, as follows:
"While the doctrine of res judicata does apply to workmen’s compensation cases (Willis v Michigan Stan dard Alloy Casting, 367 Mich 140 [116 NW2d 222 (1962)]), in Michigan it has been limited to issues that were actually litigated as a matter of fact. Hebert v Ford Motor Co, 285 Mich 607 [281 NW 374 (1938)]; White v Michigan Consolidated Gas Co, 352 Mich 201 [89 NW2d 439 (1958)].” Stokes, supra, 219.
Subsequent to Stokes, in Hlady v Wolverine Bolt Co, 393 Mich 368, 376; 224 NW2d 856 (1975), a case which was twice before this Court for resolution of differing issues, this Court slightly broadened the scope of application of res judicata in workers’ compensation cases.
In Hlady the plaintiff lost four fingers in 1945 when her hand got caught in a punch press. In 1947, upon expiration of benefits under the statutory 100-week specific loss schedule, plaintiff filed an application for further benefits alleging industrial loss of use of her right hand and/or general disability. The employer appealed a WCAB award of compensation alleging there was no entitlement to benefits under the test existing at the time. We agreed with the appellant and reversed the award of compensation stating;
"The record is devoid of testimony tending to prove that plaintiff has suffered any different or greater loss than normally results from the amputation of 4 Angers of a hand. Notwithstanding plaintiff claimed that the amputation of her fingers resulted in disabling 'sequelae’ and 'general disability,’ the commission found none except disability which normally follows such amputations.” (Emphasis added.) Hlady v Wolverine Bolt Co, 325 Mich 23, 25; 37 NW2d 576 (1949).
Approximately eight years later, this Court in another case reconsidered the test under which Ms. Hlady had been denied benefits. In an evenly divided vote, four Justices would have adopted a more liberal test under which Ms. Hlady could have recovered, Van Dorpel v Haven-Busch Co, 350 Mich 135; 85 NW2d 97 (1957).
In light of Van Dorpel, in 1967 plaintiff Hlady repetitioned for benefits. Plaintiff therein subsequently appealed to this Court from a Court of Appeals decision affirming the WCAB’s denial of benefits based on res judicata. On appeal, this Court adopted the more liberal test set forth in Van Dorpel, but affirmed the application of res judicata to deny plaintiff benefits. The rule utilized to resolve the res judicata dispute in Hlady, however, added another dimension to the doctrine not articulated in the more recent case law, e.g., White v Michigan Consolidated Gas Co, 352 Mich 201, 211; 89 NW2d 439 (1958), and Hebert v Ford Motor Co, 285 Mich 607, 613; 281 NW 374 (1938). Instead of merely limiting res judicata to questions which were litigated in fact, this Court went further, stating
"that the doctrine of res judicata applies not only to facts previously litigated, but also to points of law which were necessarily adjudicated in determining and deciding the subject matter of the litigation. ” (Emphasis added.) Hlady, supra, 376. This expanded rule, enunciated in Hlady, constitutes this Court’s most recent application of the doctrine to workers’ compensation law in Michigan, and is the rule which necessarily controls the cases at bar.
This limited scope is consistent with the nature of workers’ compensation. Although the general policy rationale for the doctrine of res judicata is to ensure finality in litigation, 46 Am Jur 2d, Judgments, § 395, p 559, workers’ compensation is remedial legislation which is to be liberally construed. Given the remedial nature of the legislation, the policy favoring finality is not always consistent with the purpose behind workers’ compensation, which is to maintain the fiscal integrity of persons whose wage-earning capacity has been suspended or terminated. See Hlady, supra, 390-391 (opinion of Levin, J.); see, generally, Lahti v Fosterling, 357 Mich 578, 589; 99 NW2d 490 (1959). It is for this reason that res judicata is narrowly applied in workers’ compensation cases. It is for this same reason we today reaffirm the Hlady limited application of res judicata vis-a-vis workers’ compensation.
B. Morgan
Prior to analyzing the cases at bar under the Hlady rule, however, it is beneficial to discuss Morgan v Freedman Artcraft, 401 Mich 54; 257 NW2d 85 (1977), the case cited by the Court of Appeals panel in reversing the WCAB’s denial of benefits in Gose.
In Morgan, the claimant was injured in a June 16, 1970 accident involving a forklift truck. He filed a claim for benefits, but at the hearing held May 26, 1971, the claimant expressed the intention to return to favored work offered by the employer to commence on June 7, 1971. Under this circumstance, it was unnecessary for any fact finding to be made as to whether the claimant was totally or permanently disabled or whether the favored work was within the claimant’s capacity to perform. The first hearing was resolved with an award of benefits to terminate as of the June 7, 1971 date when the claimant was scheduled to begin favored work. Subsequently, however, fa vored work was not commenced for reasons in dispute. Plaintiff Morgan, on September 28, 1972, brought a second claim pursuant to which further benefits were ordered. The second claim was brought for disability benefits from the period beginning June 7, 1971, the termination date of the prior benefits, until September 19, 1972, at which time the claimant commenced other employment at wages greater than his pre-injury wages. The award of benefits was reversed by the WCAB based on res judicata. Appeal was taken to this Court and, in lieu of granting leave to appeal, a per curiam opinion was issued which reversed the WCAB. Our reversal was based on this Court’s unanimous view that res judicata did not bar plaintiffs second claim. We stated the following:
"We disagree with the WCAB’s application of res judicata in this case. We perceive the issue at the second hearing before the referee to have been twofold: whether claimant was disabled, and the significance and effect of plaintiffs declining of an apparent offer of favored work. The evidence available to the referee prior to his first decision was incomplete on these issues. Evidence at the second hearing, considered on its merits, led the referee to conclude that claimant should receive a second award.” Morgan, supra, 55-56.
The facts of Morgan demonstrate that the scope of the first hearing was of a limited nature due to an assumption, later proved erroneous, that favored work would be commenced by the claimant as of a specified date. The issue of claimant’s post-June 7, 1971 disability and refusing to perform favored work had clearly never been considered at the original hearing and was not to be accorded res judicata significance under the dictates of Hlady.
Given the rule espoused in Hlady, and the basis for the nonapplicability of res judicata in Morgan, we now turn to an analysis of the cases at bar.
IV. Gose
As discussed in Part I A, supra, plaintiff Gose filed a claim for benefits in 1968 against defendant employer and defendant Second Injury Fund based on the claim that plaintiff had suffered "industrial loss of use of both legs, insanity, total and permanent disability, and related injuries”. As earlier indicated, some testimony was presented in the deposition of plaintiff’s witness, Dr. Lipton, as to the existence of plaintiff’s psychosis. At the December 1, 1969 hearing for closing of the record, however, plaintiff’s attorney withdrew the insanity claim prior to any determination thereof by the hearing referee. Given this background, we must decide whether these circumstances are sufficient, under the doctrine of res judicata, to bar reassertion of the insanity claim. We find, within the context of a worker’s compensation claim, they are not.
In Laichalk v Chicago Pneumatic Tool Co, 308 Mich 298; 13 NW2d 826 (1944), this Court discussed the impact of a worker’s compensation claim that had been filed and withdrawn prior to determination. This Court stated: "[bjecause plaintiff’s petition * * * was withdrawn, nothing was adjudicated in that proceeding, and it has no effect on plaintiff’s present petition”, Laichalk, supra, 301. It is irrelevant that in Gose only the insanity portion of the claim was withdrawn unlike Laichalk in which the whole claim was withdrawn. The two claims in Gose, one for insanity and one for disability due to industrial loss of use of both legs, were totally separate and no point of law involving the insanity claim was "necessarily adju dicated” in determining the leg disability claim. Therefore, under the rule announced in Hlady, plaintiff’s insanity claim is not barred by res judicata. It is not the raising of a matter, but the adjudication or decision of the matter which requires application of the bar. See Tucker v Rohrback, 13 Mich 73, 75 (1864); Morgan, supra. As was stated in Machen v Budd Wheel Co, 265 Mich 530, 535-536; 251 NW 580 (1933):
"The doctrine of 'res judicata’ rests upon the principle that a question once determined by a court of competent jurisdiction by a judgment on the merits is forever settled so far as litigants * * * are concerned.” (Emphasis added.)
We do not question the finding of the Administrative Law Judge that plaintiff’s insanity claim was a "triable issue” at the prior hearing. However, the fact that a claim could have been adjudicated at an earlier hearing is not a basis for invocation of res judicata within the context of workers’ compensation, see Stokes, supra, 219.
V. Sanders
As discussed in Part I B, supra, on September 27, 1967, plaintiff filed a workers’ compensation claim against her employer and the Second Injury Fund alleging total and permanent disability to her back, legs and nervous system. Benefits were awarded for the 500-week maximum statutory period from the employer but the Second Injury Fund was not held liable based on the finding that plaintiff had "failed to sustain the burden of proof to establish total and permanent disability as defined by the statute”. Plaintiff did not appeal this finding.
Plaintiff filed a second petition on December 6, 1972. This petition alleged total and permanent disability due to loss of industrial use of both legs. On appeal from an award of compensation, the WCAB determined that there was no change in the claimant’s physical condition, and that plaintiff was therefore barred from recovery by res judicata as set forth in Hlady.
This finding was reversed by the Court of Appeals, Sanders v General Motors Corp, 80 Mich App 190; 263 NW2d 329 (1977). The panel found two possibilities for excepting this case from the bar of res judicata. The first theory postulated by the Court of Appeals was that the first hearing took place at a time when the referee could not yet determine the permanency of the claimant’s disability, Sanders, supra, 194. The second concerned the fact that, since the legal standard affecting the claimant’s rights had evolved by judicial pronouncements between the first and second hearing, claimant might now be entitled to benefits if the finding in the first hearing could be read as merely postponing or deferring final determination. Sanders, supra, 195-196.
We do not agree that the first "possibility” can be reasonably gleaned from the original determination. Complete evidence as to plaintiffs leg disability was presented and the hearing referee made specific findings thereon. Absent a change in claimant’s physical condition, these findings are res judicata.
Similarly, we do not find the second "possibility” can be reasonably gleaned from the original determination. There is nothing in the record of the first hearing to indicate an intention to postpone or defer final determination. And, as the majority of this Court stated in Hlady in regard to a subsequent change in the law:
"Plaintiff may not concede an issue, necessarily determinative of and included in the judgment * * * and then, after another has successfully raised the issue she did not wish to contest, ask * * * for relief. The doctrine of res judicata bars this from happening.” Hlady, supra, 380.
Although plaintiff asserts to this Court that her physical condition had, in fact, changed between the time of the first and second hearings, the WCAB specifically found as a matter of fact that no such change occurred. Because there exists a basis in the record for this finding of fact of the WCAB, it is conclusive and not reviewable by this Court, Dressler v Grand Rapids Die Casting Corp, 402 Mich 243, 250; 262 NW2d 629 (1978).
Plaintiff finally asserts that the first hearing solely determined her disability as of the November, 1960 injury date, and, therefore, there is no bar to a second hearing to establish an occupational disease disability date as of the last day of work, April, 1963. The record belies this contention. The decision of the referee at the first hearing designates April 15, 1963, the last day of work, as the date of disability.
In light of the fact that there was a prior determination of all issues now asserted, plaintiff’s present claim is barred by application of res judicata.
VI. Conclusion
The rule of res judicata within the context of workers’ compensation in Michigan is as follows:
"[T]he doctrine of res judicata applies not only to facts previously litigated, but also to points of law which were necessarily adjudicated in determining and deciding the subject matter of the litigation.” Hlady, supra, 376.
In light of this rule, we affirm the Court of Appeals reversal in Gose as we conclude that plaintiff’s insanity claim was withdrawn and was not previously adjudicated and points of law pertaining thereto were not necessarily adjudicated in determining and deciding the subject matter (leg disability) of the prior hearing. Laichalk, supra.
As to Sanders, we reverse the Court of Appeals because we find that plaintiff Sanders’ claim involves facts previously litigated and necessarily determined in the first hearing. Because plaintiff has not established a change in physical condition, she is now barred by the doctrine of res judicata as interpreted in Hlady.
Affirmed and remanded to the WCAB in Gose for consideration without regard to the doctrine of res judicata; reversed and remanded in Sanders for entry of an order denying benefits based on res judicata.
Blair Moody, Jr., J., concurred with Williams, J.
The Court of Appeals held otherwise in Stokes v Lakey Foundry Corp, 20 Mich App 217, 219; 173 NW2d 832 (1969):
"Except for workmen’s compensation cases, Michigan has held that the doctrine of res judicata applies not only to issues which were determined on the merits, but also to matters which the parties had the opportunity to present for adjudication on the merits. [Citations omitted.]
"While the doctrine of res judicata does apply to workmen’s compensation cases (Willis v Michigan Standard Alloy Casting, 367 Mich 140 [116 NW2d 222 (1962)]), in Michigan it has been limited to issues that were actually litigated as a matter of fact. Hebert v Ford Motor Co, 285 Mich 607 [281 NW 374 (1938)]; White v Michigan Consolidated Gas Co, 352 Mich 201 [89 NW2d 439 (1958)].”
A close reading of both Hebert and White shows that neither opinion delineated a rule unique to workers’ compensation proceedings; they merely recited a narrow application of the rule, as opposed to a broad version, discussed infra. Moreover, in each case, res judicata was inapplicable: two separate injuries involving two separate transactions were at issue in Hebert, and in White a final determination on the merits had not been made in the first proceeding.
MacKenzie v Union Guardian Trust Co, 262 Mich 563; 247 NW 914 (1933); Meister v Dillon, 324 Mich 389; 37 NW2d 146 (1949), and Detroit Trust Co v Furbeck, 324 Mich 401; 37 NW2d 151 (1949).
Harrington v Huff & Mitchell Co, 155 Mich 139; 118 NW 924 (1908); McDannel v Black, 270 Mich 305; 259 NW 40 (1935); Strech v Blissfield Community Schools Dist, 357 Mich 620; 99 NW2d 545 (1959).
Compare Hebert v Ford Motor Co, 285 Mich 607, 613; 281 NW 374 (1938), and White v Michigan Consolidated Gas Co, 352 Mich 201, 211; 89 NW2d 439 (1958), with Kubiak v Briggs Manufacturing Co, 286 Mich 329, 333-334; 282 NW 427 (1938), Boyich v J A Utley Co, 306 Mich 625, 629; 11 NW2d 267 (1943), and Theodore v Packing Materials, Inc, 396 Mich 152, 158; 240 NW2d 255 (1976).
Plaintiffs original claim was for total and permanent disablement. The referee allowed the claim for total but not permanent disablement. The proofs of permanency were inadequate. Plaintiff seeks to avoid this adjudication by claiming it was premature and therefore ineffective on the theory that a determination of permanency could only be sought after 496 weeks had elapsed from the date of injury. This is a misreading and misinterpretation of the statutory language: "such permanency shall be determined not less than 30 days before the expiration of 500 weeks from the date of injury”. MCL 418.361(2)(g); MSA 17.237(361)(2)(g). This provision is not a statute of limitation determining when a claim can be asserted, but rather a requirement that the permanency of the disability must be determined at a date within about 496 weeks of the date of injury.
"(2) Total and permanent disability, compensation for which is provided in section 351 means:
"(a) Total and permanent loss of sight of both eyes.
"(b) Loss of both legs or both feet at or above the ankle.
"(c) Loss of both arms or both hands at or above the wrist.
“(d) Loss of any 2 of the members or faculties enumerated in (a), (b) or (c).
"(e) Permanent and complete paralysis of both legs or both arms or of 1 leg and 1 arm.
"(f) Incurable insanity or imbecility.
"(g) Permanent and total loss of industrial use of both legs or both hands or both arms or 1 leg and 1 arm; for the purpose of this subdivision such permanency shall be determined not less than 30 days before the expiration of 500 weeks from the date of injury.” MCL 418.361(2); MSA 17.237(361X2).
In 1965 plaintiff returned to work for a four-day period but was unable to continue. This incident of employment was apparently found to be insignificant because there was a subsequent determination that plaintiff’s last day of work occurred in 1963.
The 500-week limit was subsequently legislatively changed. As discussed by the Court of Appeals in the instant case:
"The statute in effect at the time of the plaintiff’s injury limited benefits for total disability to 500 weeks. 1948 CL 412.9(a) [since repealed and replaced by MCL 418.351(1); MSA 17.237(351X1)]. This limit did not apply to persons found to have a 'total and permanent disability’. The 500-week limitation was removed by 1965 PA 44, but it nevertheless applied to the plaintiff’s case because — absent a clear legislative expression of contrary intent — compensation rights are determined under the law in effect on the date of injury. Briggs v Campbell, Wyant & Cannon Foundry Co, 379 Mich 160; 150 NW2d 752 (1967). But cf. Lahti v Fosterling, 357 Mich 578; 99 NW2d 490 (1959).” 80 Mich App 190, 192; 263 NW2d 329 (1977).
As to plaintiff-cross-appellant in Sanders, the grant was limited to the question:
"Has the Court of Appeals correctly, in this case, enunciated the doctrine of res judicata as it is to be applied in workers’ compensation cases?”
As demonstrated in the quoted portion, Stokes notes the distinction between res judicata vis-á-vis workers’ compensation law and res judicata vis-á-vis other areas of law. However, solely in regard to the general civil law, there has existed some further conflict as to the proper scope of application of res judicata. See Rogers v Colonial Federal Savings & Loan Ass’n of Grosse Pointe Woods, 405 Mich 607, 615-617; 275 NW2d 499 (1979).
In Rogers, GCR 1963, 203.1 was discussed as a limitation on res judicata in Michigan. The GCR now limits merger and bar under res judicata, but as a general court rule it has no specific applicability to workers’ compensation proceedings.
The authority cited for the broader statement of the rule was Justice Cooley’s opinion in the early case, Jacobson v Miller, 41 Mich 90; 1 NW 1013 (1879).
Defendants in both Gose and Sanders assert that Michigan adheres to the broad rule of res judicata in workers’ compensation cases. The broad rule includes not only all claims adjudicated but also all claims adjudicable at the time of the first hearing.
While citation to this broad rule does exist in certain cases, we have not found a workers’ compensation case in which res judicata was actually applied to an injury adjudicable but not adjudicated at the time of the first hearing.
Boyich v J A Utley Co, 306 Mich 625; 11 NW2d 267 (1943), is cited by defendants but it is inapposite. As correctly noted by this Court in a subsequent case discussing Boyich, the later asserted neurosis disability had actually been adjudicated as not work-related at a prior hearing, Laichalk v Chicago Pneumatic Tool Co, 308 Mich 298, 303; 13 NW2d 826 (1944), and, therefore, was barred by res judicata.
Similarly, although the broad rule is mentioned in Theodore v Packing Materials, Inc, 396 Mich 152, 158; 240 NW2d 255 (1976), res judicata was found totally inapplicable.
In White v Michigan Consolidated Gas Co, 352 Mich 201, 211; 89 NW2d 439 (1958), citation is made to 58 Am Jur, Workmen’s Compensation, § 508, now found at 82 Am Jur 2d, Workmen’s Compensation, § 584, which iterates the broad rule, but the rule actually set forth in the opinion and utilized by this Court was as follows:
"[F]or the doctrine of res judicata to bar a subsequent proceeding, the precise issue of fact or law must have been at issue and decided in the preceding adjudication.” White, supra, 211.
In Hlady, both White, supra, and prior § 508 of American Jurisprudence were cited for the broad rule. Hlady, supra, 375-376. However, subsequently the narrower rule was articulated:
"[T]he doctrine of res judicata applies not only to facts previously litigated, but also to points of law which were necessarily adjudicated in determining and deciding the subject matter of the litigation.” Hlady, supra, 376.
It was this narrower rule that was then applied by this Court in resolving the issue in Hlady, supra, 380.
Finally, in Kubiak v Briggs Manufacturing Co, 286 Mich 329; 282 NW 427 (1938), the broad rule and the narrow rule are both quoted, Kubiak, supra, 333-334. However, it was again the narrow rule which was applied to preclude the bar of res judicata and thereby affirm an award of compensation for an injury which existed prior to the first compensation award but was not therein adjudicated.
What has occurred is citing a broad and a narrow rule, each alongside the other, but actually applying only the narrow rule.
In Hlady, the decision of the Court, authored by Justice Thomas Matthew Kavanagh, was signed by four Justices. A concurring opinion authored by Justice Levin and signed by then Chief Justice Thomas Giles Kavanagh agreed that Ms. Hlady was not entitled to benefits but would not have based the denial on res judicata, pp 386-387. As to res judicata, Justice Levin expressed the rule common to the law in general as opposed to workers’ compensation, "that all issues which were or could have been raised in an action are barred under the doctrine” (Emphasis added), pp 385-386. However, he stated his view that "a change in the law, like a change of fact, eliminates the bar of res judicata where the claimant seeks continuing benefits under a statute providing 'income maintenance’ ”, p 387.
As to plaintiffs total and permanent disability claim for injuries to her back, legs and nervous system, the referee at the first hearing stated as follows:
"It is further ordered that defendant State of Michigan Second Injury Fund has no liability hereunder, plaintiff having failed to sustain the burden of proof to establish total permanent disability as defined by the statute.” (Emphasis added.)
As a finding of fact supported by the record, it cannot be disturbed by this Court. Dressler v Grand Rapids Die Casting Corp, 402 Mich 243, 250; 262 NW2d 629 (1978).
This finding was based upon the testimony of plaintiffs medical expert, Thomas C. Baker, M.D., who had begun treating plaintiff in 1966 prior to the first hearing and had last examined her in 1974. | [
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McDonald, J.
This action was brought to recover payments made on the purchase price and improvements on property bought on a land contract which the plaintiff claims was afterwards repudiated and rescinded by the defendants. The plaintiff had a verdict and judgment. The defendants have appealed.
The record shows the. following material facts: The .defendants sold to the plaintiff on land contract their equity in premises known as the Olmstead street property in Kalamazoo county. The consideration was $4,500. As an initial payment, the plaintiff gave them an equity in a farm with certain stock and tools at an agreed value of $1,400. The balance was to be paid in monthly instalments. She went into possession of the Olmsted property and made improvements thereon as required by the contract. Soon thereafter she defaulted in her monthly payments. The defendants served notice on her by registered mail that they intended to declare a forfeiture unless she paid all amounts in arrears. She did not pay. The defendants claim that they then personally served a declaration of forfeiture on her. This she denies. Summary proceedings were begun but were discontinued. Acting on their claim that the contract had been terminated by notice of forfeiture and that the plaintiff had abandoned the premises, the defendants took possession and removed certain goods which they found in the house. The plaintiff then brought this suit on the theory that the defendants had not lawfully terminated the contract, but by their conduct had repudiated and rescinded it and wrongfully dispossessed her of the premises. The following instruction of the court is a plain statement of the issue submitted to the jury:
“Under this contract, it was the duty of the defendants to give this second notice before taking possession. If they gave the second notice, the notice of forfeiture, actual forfeiture, then they had a right to repossess themselves of the premises, either in a proceeding before the circuit court commissioner, or in the manner in which the premises were repossessed. * * * And so it is on that disputed * * * question of fact that this controversy hinges. The first notice was served by registered mail admittedly. Was the second notice served as claimed by the defendants and denied by the plaintiff? If the second notice was served, as claimed by the defendants, your verdict should be for the defendants, no cause of action. If the second notice was not served, if the contract was not forfeited, then the plaintiff is entitled to a verdict in some amount. It is for you to say.”
In this instruction the court stated all there was to the case. No error is assigned on it. By verdict of the jury there was no forfeiture. Without a forfeiture the act of defendants in dispossessing the plaintiff was a repudiation and rescission of the contract and entitles her to a restoration of the status quo.
In submitting the question of damages to the jury, the plaintiff was allowed to recover the fair market value of her equity in the farm which she gave as the initial payment on the contract, the value pf the stock and tools, and the market value of the goods removed from the house when defendants took possession. No fault is found with the instruction in respect to damages, but the defendants contend that, as to them and the question of forfeiture, the verdict of the jury was against the great weight of the evidence. On this ground and on the claim of newly-discovered- evidence the defendants moved for a new trial. -
The defendant Harold B. Lawrence and the plaintiff were the only witnesses on the question of service of a declaration of forfeiture. Mr. Lawrence’s testimony as to what took place when he made the service was so evasive and contradictory that the jury was justified in discrediting it. Testimony as to the damages' was conflicting. If the values found by the jury were against the great weight of the evidence, it was the duty of the trial court to correct them. He has approved the finding of the jury. Having-seen the witnesses and listened to their testimony, he is in a better position than we are to judge of their credibility. We shall not disturb his conclusion on the weight of the evidence.
The newly-discovered evidence is set forth in an affidavit of an attorney, William Holbrook. He recites in his affidavit that he was retained by the plaintiff to represent her in this case; that she gave him some papers pertaining to the case which he subsequently returned; that among’ these papers was a notice of forfeiture from the defendants. If a new trial were granted and Mr. Holbrook were presented as a witness, he would not be allowed to tes tify to the contents of papers entrusted to him by the plaintiff while he was acting as her attorney. He is bound by the privilege of professional secrecy to remain silent. His affidavit is in itself a breach of privilege and ought not to be considered. The motion for a new trial on the ground of newly-discovered evidence was properly denied.
We have considered all of the other questions presented by the record, but find none of sufficient merit to require discussion. The issue involved only'questions of fact which the jury determined against the defendants. We see no reason to disturb the judgment. It is affirmed, with costs to the plaintiff.
Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Btttzel, JJ., concurred. | [
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Clark, C. J.
This is appeal from allowance of claim for services rendered by plaintiff, an aged man, to John MacMartin, now deceased.
The question is of sufficiency of evidence to take the case to the jury.
MacMartin requested plaintiff to come to his farm as he wanted and needed him. Plaintiff did farm work and housework for over three years and claims for it one dollar a day, which the jury allowed.
There is testimony that MacMartin said to plaintiff that he could collect one dollar a day, and, “If I didn’t want to pay you, I wouldn’t keep you,” and, “I am not going to pay you, I am going to keep your money and give it to you in a bunch so it will do you some good.”
This and other like evidence, together with that of circumstances of the parties, made the issue of whether the services were rendered with expectation of pay and with expectation to pay. In re Hamlin’s Estate, 223 Mich. 156; In re Knox’s Estate, 220 Mich. 469.
The verdict is easily within the evidence. No other question requires discussion. Affirmed.
McDonald, Potter, Sharpe, North, Fead, Wiest, and Btjtzel, J J., concurred. | [
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Potter, J.
Plaintiff sued defendants on the common counts in assumpsit. Defendants pleaded the general issue, and gave notice of three special defenses : That Sarah Friedman was a married woman; the lumber sued for was furnished by plaintiff to remodel a house owned by defendants; the lumber was not delivered to her, nor for the benefit of her separate estate; said Sarah Friedman never ordered any lumber, nor did she consent or authorize her husband or anyone else to purchase lumber and charge the same to her; it was furnished by plaintiff to defendants without intending to charge, it to her, but was charged to her husband, and plaintiff repossessed itself of the whole or a part of the lumber alleged to have been delivered. Upon trial there was judgment for plaintiff, and defendants appeal.
Appellants state that the questions involved are:
(1) Is a written instrument up on which recovery is sought admissible in evidence where the declaration contains only the common counts to which a copy of said written instrument was not attached?
(2) Is a married woman liable on a written instrument executed by her in 1927 without complying with the provisions of Act No. 158, Pub. Acts 1917? (See 3 Comp. Laws 1929, § 13062 et seq.)
Appellee contends that the questions involved are:
“(1), Is a signed order for materials admissible in evidence in an action brought on the common counts, and not brought on the contract?
“(2) Is the wife liable for building materials ordered by her jointly by her husband, where the order is signed by both and where the material is delivered and used in other than homestead property when sufficient appears in the record to establish conduct fraudulent on the part of the wife?”
Assumpsit “is the appropriate action for the recovery of damages arising from the breach' of a simple contract or undertaking, whether verbal or in writing. * * * In order to support an action of assumpsit there must be a contract, express or implied in law, between the parties to the action.” 1 Green’s Mich. Practice (3d Ed.), pp. 129, 130.
‘•There can be no doubt, I apprehend, but that assumpsit on -the common counts would lie for the plaintiff’s services and materials furnished, even though the contract existed between the parties for them, and they had been rendered and furnished under the contract; but in such case the value of such service would be limited to that specified in the contract, and the plaintiff would have a right to make any competent proof of the amount and value of such service.” Bush v. Brooks, 70 Mich. 446.
“Where there is a special contract, not under seal, which has been fully performed by the plaintiff and nothing remains to be done but the payment of money by the defendant, the liability of the defendant may be enforced under this count (for work and labor and materials furnished), and in such cases it is not necessary to set out or declare upon a special contract.” 2 Enc. Plead. & Prac. p. 1009.
It was not necessary for plaintiff to declare upon the written contract, or to set out a copy of it in its declaration, or attach a copy of it to its bill of particulars. The theory on which recovery is had on the count in assumpsit for materials furnished is that defendants have had the materials which they have converted to their own use and not paid for. The contract was the inducing cause of plaintiff’s furnishing to defendants the materials in question. All plaintiff seeks is compensation therefor. The suit not being upon a written contract, Act No. 158, Pub. Acts 1917 (see 3 Comp. Laws 1929, § 13062 et seq.), is not involved. Defendants have plaintiff’s property which they have not paid for. Plaintiff was entitled to a judgment for the value thereof. The trial court rendered such a judgment. It is affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, and Butzel, JJ., concurred with Potter, J. | [
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North, J.
On October 5,1949, plaintiff filed a bill for separate maintenance. Defendant answered and filed a cross bill, which was answered by plaintiff, but later (February 23, 1950) by stipulation the cross bill was withdrawn. On that date plaintiff filed an amended bill in which she prayed for an absolute divorce. Defendant answered. A somewhat lengthy hearing in the circuit court was had. A decree was filed April 14-, 1950, dismissing both the bill of complaint and the amended bill.
On April 28, 1950, the circuit judge heard plaintiff’s petition for a rehearing, based at least in part on plaintiff’s claim of newly-discovered evidence which she asserted would show that defendant had admitted he testified falsely on the original hearing. On testimony taken the circuit judge ordered a rehearing May 5,1950. Four days later (May 9,1950) plaintiff filed a “Supplemental and amended bill of complaint” and again prayed for a divorce from the bonds of matrimony. Defendant answered. Again on July 6,1950, plaintiff filed a further supplemental bill, to which defendant made answer. A rehearing was had, the record of which, including a concise finding by the circuit judge, covers 127 pages of the printed record on this appeal. There was the usual conflict in testimony in behalf of the respective par ties. On the ground of extreme and repeated cruelty the circuit judge granted plaintiff a decree of divorce which became effective February 10, 1951. (See CL 1948, §552.9 [Stat Ann 1949 Cum Supp § 25.89]). Defendant has appealed.
These parties were married in June, 1931. The bill alleges they lived and cohabited together as husband and wife until on or about October 5, 1949, at which time the bill of complaint was filed. Seemingly there was a previous separation which lasted only a short time. They have an adopted child, Marilyn Joyce Durham, born February 28, 1948. At the time the decree of divorce was granted this child was about 2-£ years of age and custody was given to plaintiff. In the original bill of complaint filed by plaintiff, as amended, numerous acts of extreme and repeatéd cruelty were charged and testimony was given relative to the same; and again in the finally amended bill and the supplemental bills charges .of like character were made. It would serve no purpose to repeat them here in detail, and in a general and limited way defendant’s type of misconduct appears in the final opinion of the trial judge, which we hereinafter quote in part. On the rehearing the trial judge found ample proof of extreme and repeated cruelty which he decided justified granting plaintiff a decree of divorce.
We are not in accord with appellant’s contention that the trial judge erred “in not dismissing plaintiff’s supplemental and amended bill of complaint and second supplemental bill of complaint,” nor with appellant’s further contention- that the trial court erred' “in granting plaintiff’s motion for rehearing.” ' The law is well settled that granting a rehearing is very largely within the discretion of the trial judge. Union Guardian Trust Co. v. Lundy, 274 Mich 487; Chapin v. Cullis, 299 Mich 101, 108. Further, in the instant case, in addition to affidavits supporting plaintiff’s petition, testimony of defendant was taken in open court. The trial judge saw and heard the witness, and upon consideration of the showing made granted a rehearing. In doing so there was no error.
Nor did the circuit judge err at the rehearing in permitting testimony to be taken as to defendant’s misconduct prior to a reconciliation in the latter part of 1948, incident to. which defendant asserts con-donation. At the rehearing the trial judge permitted the taking of such testimony subject to objection repeatedly made by defendant’s counsel. But from the testimony as a whole it became evident that acts of extreme and repeated cruelty upon which plaintiff in part relied and which occurred subsequently to the reconciliation, were of the same character as defendant’s misconduct in that respect which plaintiff had alleged in her bill of complaint, and as to which testimony was taken at the first hearing. The repetition of defendant’s misconduct was not only of the same general character as his former alleged misconduct, but was so continuously indulged in subsequently to the reconciliation that the inference is clearly justifiable that defendant did not act in good faith incident to the reconciliation and condonation asserted by him. Under the circumstances it was not error to take the testimony at the rehearing of this case of such earlier acts of extreme and repeated cruelty.
“Condonation, implying forgiveness for offensive conduct, is conditional on the nonrepetition of such conduct. * * * The fact that appellee continued to live with appellant in the marital relation, apparently in the hope that the parties might avoid a final separation, was not a bar to the granting of relief to him. Tackaberry v. Tackaberry, 101 Mich 102; Austin v. Austin, 172 Mich 620.” Bohlka v. Bohlka, 318 Mich 468, 473.
As indicating in part the character and proof of the extreme and repeated' cruelty alleged and relied upon by plaintiff, the following is quoted from the opinion filed by the circuit judge in accord with which he granted plaintiff the decree of divorce from which defendant has appealed:
“This matter is before the court on a petition for rehearing. The rehearing was granted for the reasons stated. I will not again state them, but one of the chief reasons, the basic reason why this rehearing was granted was the affidavit which concerned the incident at the home in which he (defendant) admitted he had testified falsely at the time of the original trial. It was a close case. It did depend a lot upon the truth and veracity of the witnesses, but a decree is going to be granted to the plaintiff in this case because I am satisfied that his conduct in respect to his attitude towards his wife, striking her, abusing her, vile language, I am satisfied it was the truth and the whole truth. It was shown by his attitude on the witness stand, his entire conduct through this case. * * * He was just doing anything and everything to devil her, and then expecting her to like it, so the conduct after the reconciliation continued, that is, such conduct of which she complained at the time she filed her bill of complaint. It did continue so far as the abuse of his wife was concerned. * * * But there have been so many little instances brought into this case which I have mentioned which satisfies the court that a decree should be granted to the plaintiff, based upon his abuse, physical abuse, vile language towards the wife, towards her relatives. * * * At the time of the original trial I thought he sincerely did want to get his wife back, but again I say, for a man that wanted to get his wife to come back to him, his conduct was most unusual. His conduct was vicious, so a decree will be granted to the plaintiff, based upon the bill of complaint, and amended bill of complaint, or supplemental bills of complaint which/ brought the charges down to date.”
The decree of divorce granted to plaintiff is affirmed, with costs.
Reid, C. J., and Boyles, Dethmers, Carr, Bushnell, and Sharpe, JJ., concurred. Butzel, J., did not sit. | [
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Sawyer, P.J.
Plaintiff is a Michigan corporation, owner in fee simple of certain real estate located in Hayes Township, Charlevoix County, commonly known as the "Camp Charlevoix” property and consisting of 338 acres of land, including 2800 feet of Lake Charlevoix frontage. This property is zoned R-l pursuant to the Hayes Township zoning ordinance, the most restrictive residential classification.
Plaintiff proposed to the township to develop a residential condominium development on the property pursuant to the "planned unit development” (pud) provision of the township zoning ordinance, being § 6.01 of the ordinance. The pud proposal was revised and presented to the township at several township meetings. At a special meeting of the township planning commission held on September 11, 1984, the proposal was rejected because it failed to comply with provisions of § 5.13(A) and (B) of the zoning ordinance. Those provisions of the zoning ordinance purport to regulate the building of structures near the shoreline and regulate the amount of dock space which may be installed.
On January 8, 1985, plaintiff filed a complaint in circuit court alleging, inter alia, that § 5.13(A) and (B) of the zoning ordinance is invalid and improperly enacted inasmuch as such regulations are not authorized under the provisions of the Township Rural Zoning Act, MCL 125.271 et seq.; MSA 5.2963(1) et seq.
Thereafter, plaintiff filed a motion for partial summary disposition pursuant to MCR 2.116(C)(9) and (10), on the grounds that § 5.13(A) and (B) is unconstitutional and invalid because it is not authorized under the trza, because it deprives plaintiff of due process and because it is contrary to the law set forth in OAG, 1981-1982, No. 6070, pp 652-655 (May 15, 1982).
The trial court issued a written opinion denying the motion for partial summary disposition. The trial court found that the restrictions in § 5.13 of the zoning ordinance were a reasonable exercise of the legislative authority granted by the trza as they regulate, but do not prohibit, development to achieve a valid public interest: namely, conservation of water, a natural resource. The trial court determined that the ordinance was constitutionally valid both on its face and as applied.
Plaintiff now appeals by leave granted and we reverse.
This Court is presented with two questions to address. First, we must determine whether defendant’s regulation by zoning ordinance of dock space along a lake is authorized by the trza. Second, we are asked to determine whether a township may regulate dock space, or whether regulation of dock space is preempted by the state pursuant to the Inland Lakes and Streams Act, MCL 281.951 et seq.; MSA 11.475(1) et seq. However, because of our resolution of the first issue, we decline to address the second.
i
Townships have no police power of their own. They may exercise such power only by virtue of a grant by the state. In the case of zoning, power is extended through zoning enabling acts. Davis v Imlay Twp Bd, 7 Mich App 231; 151 NW2d 370 (1967); Lake Twp v Sytsma, 21 Mich App 210; 175 NW2d 337 (1970); Brandon Twp v North-Oakland Residential Services, Inc, 110 Mich App 300; 312 NW2d 238 (1981). The trza, MCL 125.271 et seq.; MSA 5.2963(1) et seq., is the basic enabling act which grants townships the power to pass ordinances concerning zoning. Lake Twp, supra; The Detroit Edison Co v Richmond Twp, 150 Mich App 40; 388 NW2d 296 (1986). The trza is a broad grant of power and authority to townships to zone for the "public health, safety, and welfare.” Delta Charter Twp v Dinolfo, 419 Mich 253; 351 NW2d 831 (1984).
Generally, a zoning ordinance is presumed valid, and the burden is on the attacking party to show by competent evidence the lack of a substantial relationship between the restriction of the ordinance and public health, safety or general welfare of the community. Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 NW2d 166 (1957); Lutheran High School Ass’n v Farmington Hills, 146 Mich App 641; 381 NW2d 417 (1985).
The question before us appears to be one of first impression. Accordingly, our analysis must begin with the principles of statutory construction. The primary rule of statutory construction is to give effect to the intent of the Legislature that enacted the statute. Borkus v Michigan National Bank, 117 Mich App 662; 324 NW2d 123 (1982). The language of the statute is the best source for ascertaining this intent. Great Lakes Steel Division of National Steel Corp v Public Service Comm, 143 Mich App 761; 373 NW2d 212 (1985). Words should be given their ordinary meanings. If the language of the statute is clear, it is assumed that the Legislature intended the plainly expressed meaning and the statute must be enforced as written. Bailey v DAIIE, 143 Mich App 223; 371 NW2d 917 (1985). If a statute is clear and unambiguous on its face, there is no room for statutory construction or interpretation of that statute. Detroit v Redford Twp, 253 Mich 453; 235 NW 217 (1931); Todd v Textron, Inc, 140 Mich App 412; 364 NW2d 718 (1985).
Plaintiff contends that an analysis of the statutory construction of § 1 of the trza clearly reveals that the legislative grant of authority to a township is limited to the regulation of land development and does not extend to the regulation of the riparian rights of a landowner, especially when such regulation attempts to limit access to navigable waters or the number of dock slips a riparian landowner may build or possess. Plaintiff contends that the sections of the Hayes Township zoning ordinance which attempt to limit dockage and access are beyond the authority granted by the trza. We agree. MCL 125.271; MSA 5.2963(1) provides as follows:
The township board of an organized township in this state may provide by zoning ordinance for the regulation of land development and the establishment of districts in the portions of the township outside the limits of cities and villages which regulate the use of land and structures; to meet the needs of the state’s citizens for food, fiber, energy, and other natural resources, places of residence, recreation, industry, trade, service, and other uses of land; to insure that use of the land shall be situated in appropriate locations and relationships; to limit the inappropriate overcrowding of land and congestion of population, transportation systems, and other public facilities; to facilitate adequate and efficient provision for transportation systems, sewage disposal, water, energy, education, recreation, and other public service and facility requirements; and to promote public health, safety, and welfare. For these purposes, the township board may divide the township into districts of such number, shape, and area as it considers best suited to carry out this act. The township board of an organized township may use this act to provide by ordinance for the regulation of land development and the establishment of districts which apply only to land areas and activities which are involved in a special program to achieve specific land management objectives and avert or solve specific land use problems, including the regulation of land development and the establishment of districts in areas subject to damage from flooding or beach erosion, and for that purpose may divide the township into districts of a number, shape, and area considered best suited to accomplish those objectives. Ordinances regulating land development may also be adopted designating or limiting the location, the height, number of stories, and size of dwellings, buildings, and structures that may be erected or altered, including tents and trailer coaches, and the specific uses for which dwellings, buildings, and structures, including tents and trailer coaches, may be erected or altered; the area of yards, courts, and other open spaces, and the sanitary, safety, and protective measures that shall be required for the dwellings, buildings, and structures, including tents and trailer coaches; and the maximum number of families which may be housed in buildings, dwellings, and structures, including tents and trailer coaches, erected or altered. The provisions shall be uniform for each class of land or buildings, dwellings, and structures, including tents and trailer coaches, throughout each district, but the provisions in 1 district may differ from whose in other districts. A township board shall not regulate or control the drilling, completion, or operation of oil or gas wells, or other wells drilled for oil or gas exploration purposes and shall not have jurisdiction with reference to the issuance of permits for the location, drilling, completion, operation, or abandonment of those wells. The jurisdiction relative to wells shall be vested exclusively in the supervisor of wells of this state, as provided in Act No. 61 of the Public Acts of 1939, being sections 319.1 to 319.27 of the Michigan Compiled Laws.
It is a general rule of statutory construction that the inclusion of a thing by specific mention excludes that which is not mentioned. The very grant of specific powers under restrictions is an exclusion of other powers in reference to the same subject matter not granted by the Legislature. Sebewaing Industries, Inc v Village of Sebewaing, 337 Mich 530, 546; 60 NW2d 444 (1953); State Farm Mutual Automobile Ins Co v Ruuska, 90 Mich App 767, 783; 282 NW2d 472 (1979), aff'd 412 Mich 321; 314 NW2d 184 (1982). The trza expressly lists the specific subjects which a township may regulate. Section 1, as quoted above, states that townships may provide by zoning ordinance for the "regulation of land development,” "establishment of districts,” "regulate the use of land and structures,” "limit the inappropriate overcrowding of land,” etc. The only mention of "water” in § 1 is in the provision quoted above relevant to the "efficient provision for transportation systems, sewage disposal, water, energy, education, recreation, and other public service and facility requirements.”
The statute also states that special districts may be established which apply only to land areas subject to damage from flooding or beach erosion. The statute specifically mentions dwellings, buildings, structures, including tents and trailer coaches, yards, courts, open spaces, and number of families. There is no mention or reference to the regulation of waters, waterway access, dockage or boat usage. This Court is to assume that the express mention of any one thing in a statute implies the exclusion of other similar things. Mich Mutual Ins Co v Allstate Ins Co, 146 Mich 475, 481; 382 NW2d 169 (1985), aff'd 426 Mich 346; 395 NW2d 192 (1986).
In urging us to interpret the trza as permitting the zoning of water and other riparian rights, the township relies upon § 3 of the trza, MCL 125.273; MSA 5.2963(3), which states that a zoning ordinance shall be "based upon a plan designed ... to conserve natural resources and energy” and requires that reasonable consideration be given to natural resources. The township argues that Michigan’s lakes and streams are natural resources and, therefore, § 3 of the trza authorizes zoning ordinances which regulate lakes and streams. However, unlike the township, we do not read § 3 of the trza as being a grant of power to the townships. Rather, our reading of § 3 is that it is one of restriction upon the zoning powers of a township by specifically requiring the township to give consideration to various factors, such as the impact upon the natural resources, before enacting a zoning ordinance. Even accepting the township’s broad definition of "natural resources” to include lakes and streams, the fact that a township must consider the impact of a zoning ordinance upon lakes and streams does not necessitate the conclusion that townships have the authority to regulate lakes and streams by way of a zoning ordinance. For example, the zoning of land for industrial use may affect lakes and streams with respect to industrial pollution. Thus, consideration must be given to that affect by the township before zoning, a parcel of land for industrial use.
The township also relies upon Const 1963, art 7, § 34, which provides that provisions of the constitution and statutes concerning townships shall be liberally construed in favor of the township and that powers granted to townships by the constitu tion and statutes shall include those powers fairly implied and not prohibited by the constitution. While that constitutional rule of construction must be kept in mind while interpreting the trza, it obviously does not give carte blanche to the township.
Even with the liberal construction of the provisions of the constitution in mind, we do not believe that the trza grants authority to townships to regulate or limit boat dockage construction or riparian access rights. After consideration of all the applicable rules of statutory construction, we can only conclude that the Legislature, in enacting the trza, granted authority to townships to zone land use but not water use or to regulate riparian rights. Accordingly, the provisions in the Hayes Township zoning ordinance which limit boat dock-age and "funnel development,” § 5.13(A) and (B), are invalid. Accordingly, the trial court was incorrect in determining that the ordinance was valid.
ii
Plaintiffs second argument is that the subject matter of the Hayes Township zoning ordinance is preempted by the Michigan Inland Lakes and Streams Act, MCL 281.951 et seq.; MSA 11.475(1) et seq. While plaintiffs preemption argument appears at first blush to be valid, we note that this issue was not raised in the trial court. In light of our conclusion that the zoning ordinance is invalid under the trza, it is unnecessary to consider the preemption argument and we decline to do so.
iii
The decision of the trial court is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion. Costs to plaintiff.
D. E. Holbrook, Jr., J., concurred. | [
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] |
W. A. Porter, J.
The Southfield Police Officers Association appeals from the decision and order of the Michigan Employment Relations Commission dismissing a charge filed pursuant to the public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq. We affirm in part and reverse in part.
The association is the collective bargaining representative for police officers employed by the City of Southfield. The association alleged in its charge various unfair labor practices committed by the city. Pertinent to this appeal are the following: (1) refusal to bargain over the proposed transfer of job responsibilities in the crime prevention section and the automobile pound to nonunit employees (personnel not represented by the association); (2) refusal to bargain over the proposed subcontracting of the policing of a shopping mall to private security guards; and (3) refusal to engage in grievance proceedings with the association’s designated representative. The first two allegations concern the reassignment of job tasks performed at least in part by association members prior to the hearing date in the instant case.
i
The association argues that the city committed an unfair labor practice pursuant to MCL 423.210(l)(e); MSA 17.455(10)(l)(e) by refusing to engage in collective bargaining over its proposed reassignment of job functions in the crime prevention section and the automobile pound. Although these functions were being performed by association members as of the date of the hearing in this case, the city proposed to assign nonunit employees to these functions in the future.
An employer subject to pera may not unilaterally alter the terms and conditions of employment without first exhausting its mandatory duty to bargain. See MCL 423.215; MSA 17.455(15). It is generally established that the duty to bargain extends to the employer’s diversion of work to nonunit employees or to the subcontracting of the work to nonemployees. Lansing Fire Fighters Union, Local 421 v Lansing, 133 Mich App 56; 349 NW2d 253 (1984); Plymouth Fire Fighters Ass'n Local 1811 v Plymouth, 156 Mich App 220; 401 NW2d 281 (1986). Job functions encompassed by the duty to bargain are commonly known as bargaining unit work.
The association here attacks merc’s determination that the job tasks designated to undergo reassignment were not bargaining unit work. Merc found that the job tasks in question had previously been filled by both unit and nonunit employees. Because these tasks were not "exclusively” the domain of association members, they were not bargaining unit work, and the city’s duty to bargain therefore did not attach. The association argues that the so-called rule of exclusivity has no basis in law. We agree.
At the outset, we note that the findings of merc are conclusive if supported by competent, material, and substantial evidence on the record. Const 1963, art 6, § 28; MCL 423.216(e); MSA 17.455(16)(e). If, however, the decision of merc is premised upon an error of law, we are not constrained to uphold that decision. West Ottawa Ed Ass’n v West Ottawa Public Schools Bd of Ed, 126 Mich App 306, 313; 337 NW2d 533 (1983), lv den 418 Mich 890 (1983). The question whether a particular subject matter affecting employment falls within the scope of the employer’s mandatory duty to bargain is decided on a case-by-case basis. Id., 315.
We are unaware of any published opinions rendered by this Court or by our Supreme Court construing pera that would govern the association’s contention. We note, however, that federal decisions construing the analogous National Labor Relations Act are persuasive authority in questions of the proper interpretation of pera. West Ottawa Ed Ass’n, supra, 314-315. We add the caveat that the provisions of pera are to be construed even more liberally in favor of the employees in compensation for the pera prohibition against striking. Id., 315.
The outer contours of what constitutes bargaining unit work were addressed in AMCAR Division, ACF Industries, Inc v NLRB, 596 F2d 1344, 1349 (CA 8, 1979), where the court adopted the following test from Westinghouse Electric Corp, 150 NLRB 1574; 58 LRRM 1257 (1965), with respect the National Labor Relations Act:
"[W]here the Board has found unilateral contracting out of unit work to be violative of Section 8(a)(5) and (1), it has invariably appeared that the contracting out involves a departure from previously established operating practices, effected [sic] a change in conditions of employment, or resulted [sic] in a significant impairment of job tenure, employment security, or reasonably anticipated work opportunities for those in the bargaining unit.”
The key question under this test is whether the proposed unilateral adjustment to work previously performed by the bargaining unit would impose an adverse impact on the unit members. See also Olinkraft, Inc v NLRB, 666 F2d 302, 305 (CA 5, 1982). The dispositive question is not whether the work was performed exclusively by union employees in the past, but rather whether the employer’s proposed reassignment would be inconsistent with previously established operating practices, would effect a change in conditions of employment, or result in a significant impairment of job tenure, employment security or reasonably anticipated work opportunities for those in the bargaining unit. This standard is certainly more favorable to the interests of the employees than that applied by merc in the instant case. Given our Court’s avowed adherence to the principle that pera should be construed more liberally than the National Labor Relations Act, it would be anomalous for us to uphold merc’s exclusivity rule. We conclude that a proper disposition of this case requires remand for further conclusions of law and, if necessary, further findings of fact consistent with the test applied in AMCAR.
ii
The association charged that the city had committed an unfair labor practice by refusing to bargain over its plan to permit private security guards to issue tickets for ordinance violations to juvenile offenders in a shopping mall. This work was performed in part by association members prior to the hearing. Merc dismissed this charge upon its finding that the plan was still tentative since no final decision regarding implementation had been made. Since this finding is supported by competent, material, and substantial evidence, we are bound by it.
The question presented is no different from the well-recognized rule that hypothetical cases should not be decided until such time that the case becomes ripe for adjudication. Eastern Michigan University Chapter of the American Ass’n of University Professors v Morgan, 100 Mich App 219, 231; 298 NW2d 886 (1980), lv den 411 Mich 955 (1981). Generally, a question is not justiciable when the complaining party seeks "a decision, in advance, about a right before it has been actually asserted and tested, or judgment upon some matter which, when rendered, for any reason cannot have practical legal effect upon the then existing controversy.” Menominee Co Taxpayers Alliance, Inc v Menominee Co Clerk, 139 Mich App 814, 819-820; 362 NW2d 871 (1984), lv den 422 Mich 977 (1985). This doctrine applies to questions arising in the context of pera. Morgan, supra, 231. Accordingly, we conclude that merc did not err in its dismissal on the ground that the charge was premature.
hi
The association charged that the city had wrongfully refused to conduct grievance procedures in the presence of a labor consultant, serving as the association’s duly appointed representative, who was not a member of the association. Merc concluded that the provisions of the collective bargaining agreement validly limited participation in grievance procedures to members of the association appointed to the grievance committee. We conclude that merc’s decision ignored the proper legal standard for evaluating a contractual waiver of rights protected under pera. Section 9 of pera grants public employees the right to negotiate with their employer "through representatives of their own free choice.” MCL 423.209; MSA 17.455(9). Interference with § 9 rights is an unfair labor practice. MCL 423.210(l)(a); MSA 17.455(10)(l)(a). A waiver of a right granted by pera can only be effected in clear and unmistakable terms. Kent Co Ed Ass’n/Cedar Springs Ed Ass’n v Cedar Springs Public Schools, 157 Mich App 59, 65-67; 403 NW2d 494 (1987); Mid-Michigan Ed Ass’n (MEA-NEA) v St Charles Community Schools, 150 Mich App 763, 770-771; 389 NW2d 482 (1986); Lansing Fire Fighters Union, supra, 65-67. Our review of the collective bargaining agreement convinces us that no waiver occurred. Those terms pertinent to the grievance procedure do no more than provide who may participate as members of the grievance committee. They do not exclude others, including the association’s designated representative. Thus, merc’s decision to dismiss this aspect of the association’s charge on the basis of waiver was erroneous.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
We note that the exclusivity rule finds support in decisions of merc. See, e.g., Schoolcraft Community College v Schoolcraft College Ass’n of Office Personnel/MESPA, 1985 MERC Lab Op 253, 258-259, aff'd 156 Mich App 754; 401 NW2d 915 (1986), lv den 428 Mich 895 (1987). Other decisions appear to follow the approach in Westinghouse Electric Corp, supra. See Clinton Co Intermediate School Dist v Clinton Intermediate Ed Ass’n, 1984 MERC Lab Op 529, 531-534. | [
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] |
Per Curiam.
Plaintiff appeals from an order granting summary disposition to defendant pursuant to MCR 2.116(C)(10). We affirm.
The issue presented is whether the Saginaw County Board of Commissioners properly subjected plaintiff to mandatory retirement pursuant to § 11 of the Municipal Employees’ Retirement Act of 1984 (mera), MCL 38.1511; MSA 5.4001(11). The uncontroverted facts, established by the parties’ averments, were that plaintiff was forced to retire prior to the December 31, 1986, expiration of his term of office as a commissioner of the Saginaw County Board of County Road Commissioners because he attained his seventieth birthday in 1985. Defendant was appointed in plaintiffs place by a majority vote of the county commissioners to serve the unexpired portion of the term of office.
MCL 38.1511(1); MSA 5.4001(11)(1) provided:
A member, except a member of the governing body or an elected official, shall be separated from employment by the participating municipality not later than the first day of the calendar month next following attainment of age 70 years. Service ren dered and compensation paid on account of service rendered after attainment of age 70 years shall be disregarded for the purposes of this act. A member shall not contribute to the retirement system after attainment of age 70 years.
The County of Saginaw elected to become a participating municipality within the meaning of the mera in accordance with the procedure now set forth in MCL 38.1541; MSA 5.4001(41). See also MCL 38.1502c(l); MSA 5.4001(2c)(l). In order to avoid the operation of the mandatory retirement provision, plaintiff argues that he falls within the statutory exception for "a member of the governing body.”
Our resolution of the question whether plaintiff is excepted from mandatory retirement is guided by the statutory definitions set forth in the mera. See MCL 38.1502; MSA 5.4001(2). A governing body is defined to include both "the representative legislative body of a municipality” and "the administrative board or commission” of an "instrumentality which does not have a representative legislative body.” MCL 38.1502a(5); MSA 5.4001(2a)(5). In turn, a "municipality” is defined to include, among other units of government, both a county and a county road commission. MCL 38.1502b(4); MSA 5.4001(2b)(4). Plaintiff argues that these definitions compel the conclusion that the Saginaw County Board of County Road Commissioners was a governing body and that he, as a member of that governing body, was not subject to mandatory retirement. We disagree.
The mandatory retirement statute indicates that the employee subject to retirement must be separated from employment by the "participating municipality.” MCL 38.1511(1); MSA 5.4001(11)(1). The mention of the participating municipality is significant because the mera is for the most part applicable only to participating municipalities, i.e., municipalities that elect to participate in the retirement plan provided by the mera. We hold that the reference in the statute to the governing body must be read to refer to the participating municipality, not to the governing body of any unit of government that would otherwise fit the mera definition of a municipality. In other words, the exception applies only to members of the governing body of a participating municipality. Our reading is in keeping with the principles of statutory construction that the statute should be construed as a whole, Oxford Twp v Dep’t of Social Services, 120 Mich App 103, 108; 327 NW2d 409 (1982), and that the scope of a statutory exception is to be narrowly construed, Rzepka v Farm Estates, Inc, 83 Mich App 702, 706-707; 269 NW2d 270 (1978).
In the instant case, the County of Saginaw was the participating municipality, and members of the board of county road commissioners realized their benefits under the mera through the county’s participation. The governing body of the County of Saginaw is the county board of commissioners, not the board of county road commissioners. See MCL 46.11; MSA 5.331. Hence, plaintiff does not qualify under the statutory exception to mandatory retirement as a member of the governing body of the participating municipality.
Plaintiff also argues that the procedure for removal of a road commissioner provided in MCL 224.6(1); MSA 9.106(1) is the exclusive means of ending a road commissioner’s period of service prior to the expiration of his term. We conclude that the Legislature’s enactment of statutes providing both for a removal procedure and for mandatory retirement under the mera are not incon sistent because the two provisions are applicable to different contexts. The former appears directed at situations where alleged misconduct might necessitate removal. The latter, a legislative judgment to require termination of office at a specified age, allows the county board of commissioners no discretion at all to decide whether to require retirement. The latter instance is applicable here.
Affirmed. | [
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Per Curiam.
Defendant, Mann Lewis, Jr., was convicted by a jury of first-degree criminal sexual conduct, contrary to MCL 750.520b; MSA 28.788(2). Defendant later pled guilty to being an habitual offender, fourth offense, contrary to MCL 769.12; MSA 28.1084. On May 4, 1983, he was sentenced to serve not less than fifteen nor more than thirty years in prison, the sentence to run consecutive to a recently imposed felony sentence in another county. Defendant made a delayed application for leave to appeal, which this Court denied. However, on application for leave to appeal, the Supreme Court remanded the case to this Court for consideration as on leave granted. Defendant raises six issues, each of which we address in turn.
Defendant’s first claim of error stems from the continuance of the preliminary examination. The original preliminary examination was held on November 24, 1982, within the twelve-day period required under MCL 766.4; MSA 28.922. The only witness at this examination was the twelve-year-old complainant, who stated that she did not recognize defendant as being the man who had sex with her and even went so far as to refuse to look around the courtroom to see if she saw the perpetrator there. She expressed her unwillingness to come to court, using profanity. She said that the perpetrator had different hair and a different complexion than did defendant, but did say that she knew the perpetrator as "Junior.” The prosecutor said that, "to put it mildly,” he was surprised by the complainant’s testimony and asked for a continuance so that he could bring in other witnesses. He also said that he believed that defendant and others had been intimidating and threatening the complainant to keep her from testifying. Defense counsel asked for a dismissal of the charge on the ground that there was no identification of defendant as the perpetrator. The magistrate said that there were other eyewitnesses who could testify and that this witness was "not about to testify very much about who the individual is.” The magistrate declined to dismiss the charge without hearing further testimony and continued the examination to December 7, 1982. The magistrate also substantially reduced defendant’s bond from $50,000 to $5,000.
On December 14, 1982, the magistrate informed defendant that his counsel and the prosecutor had agreed on another date for the continuation of the preliminary exam. The examination was resumed on January 14, 1983. There, the complainant identified defendant and stated that she had been intimidated and was tired of lying. Her friend, Angie Gettis, also twelve years of age, who was driving with the perpetrator and complainant prior to the incident, did not identify defendant. The magistrate concluded that complainant had been lying during her earlier testimony and was telling the truth at the later examination and, consequently, bound defendant over for trial.
Defendant argues that the magistrate abused his discretion in granting the continuation of the preliminary examination. MCL 766.7; MSA 28.925 provides that a magistrate may not grant a continuance of a preliminary examination except for good cause shown. The same statute provides that a magistrate may not continue an examination by consent of the prosecution and defense unless "it shall clearly appear by a sufficient showing to the magistrate to be entered upon the record that the reasons for such consent are founded upon strict necessity and that the examination of the cause cannot then be had, or a manifest injustice will be done.” "Good cause shown” has been interpreted to include the unavailability of prosecution witnesses because they were needed in federal court, because they were police officers on vacation, or because they were hospitalized. Further, the failure of the magistrate to place upon the record the reasons for delay establishing "good cause!’ is harmless error where the reasons and their sufficiency are self-evident from the record.
It is obvious from the record that the prosecutor expected to need to present only the complainant as a witness and was greatly surprised by complainant’s recalcitrance. While it probably would have been better for the prosecutor to have had his other witnesses available at the first preliminary examination, the unexpected change in complainant’s testimony constituted good cause for a continuance. The magistrate did not err in granting the continuance.
Defendant also complains that the continuance caused him undue hardship because of the long delay. The record discloses, however, that even the length of the original continuance, to December 7, 1982, from November 24, 1982, was due to defense counsel’s unavailability on an earlier date. The later extension of the continuance was agreed to by defense counsel as well. There was no error in denying defendant’s effort to take advantage of the court’s grant of the continuance to defense counsel__
Defendant’s second claim of error stems from four articles about the case appearing in local newspapers. The longest of these articles was only 150 words in length, and the most recent had been published on January 18, 1983, a full ten weeks prior to the start of trial. The trial court declined to grant defendant’s pretrial motion for a change of venue because of the articles, saying "We’ll see if we can get a proper jury.” The court noted that the articles were short and were not of such a nature that they would tend to inflame the community, although they did contain some material which the court felt was inappropriate for the jury. Defendant asserts both that he should have been granted a change of venue and that the trial judge erroneously refused to ask the jurors about the articles during voir dire.
Contrary to defendant’s latter assertion, the trial court did question the jury panel in more than a cursory fashion to determine whether they had seen the articles. He described the articles in sufficient detail for any prospective juror to know whether he had seen them before and then twice asked the panel whether any of them had seen the articles. There was no response. The court also noted that there were errors in the articles, particularly the use of the word "rape,” which was emotionally charged as well as legally inaccurate. Defense counsel expressed no dissatisfaction with the jury selected.
Venue of a criminal case may be changed upon good cause shown by either party. A motion for change of venue is addressed to the trial court’s discretion, the exercise of which will be overturned on appeal only on a finding of abuse. It is not an abuse of discretion to defer determination of a request for change of venue until jury selection has been attempted in the original county; on the contrary, it is considered to be a preferable practice. Further, the existence of pretrial publicity does not, standing alone, require a change of venue. If jurors are able to set aside their impressions or opinions and render a verdict based upon the evidence adduced at trial, a change of venue is not necessary. A change of venue is proper only where there is a finding of a strong community feeling or a bitter prejudice against the defendant.
Defendant urges upon us a standard under which a change of venue would be required if there were circumstances such that there was a reasonable likelihood that he would not receive a fair trial. Even under this standard, however, a change of venue is unnecessary here. The trial court asked the jurors whether they had seen the articles complained of and received no answer. The court went out of its way to point out that the articles may have contained unfair representations of the facts. The articles were very simple and straightforward and not sensationalistic. There were only four articles, the last of which was published ten weeks prior to trial. There simply is not a reasonable likelihood that defendant would not receive a fair trial on these facts.
Defendant asserts error in the following instruction given by the trial court during its pretrial remarks:
You decide what occurred. And having determined what occurred, then I will have given you the law that applies to those facts so that you will then be able to make a decision as to what the proper verdict is. Now, you have no right to inter fere in my function. For example, you have an obligation and you — your oath will obligate you to take the law as I give it to you, to follow the law. Now, that isn’t a contention on my part that I’m infallible, that I don’t make mistakes. But if I do, that mistake can be corrected. But if a jury doesn’t follow our instructions, there could be a miscarriage of justice that could result in something improper being done that could not be corrected. I have no right to interfere in your function, and that function being, for example, to determine what the facts are. And I make a studied effort not to do that. You decide that.
Defendant says that by telling the jury that his own mistakes of law could be corrected, but that the jury’s failure to follow his instructions could not, the trial judge was effectively telling the jury that they could allow an injustice to pass because it would be corrected. Defendant says that the instruction interfered with the jury’s fact-finding function.
This contention is without merit. The above-quoted remarks contain nothing to reduce the jury’s understanding of the gravity of its responsibility. It does not tell the jury that injustices will be corrected. It does not diminish the jury’s fact-finding capacity. The cases cited by defendant do not apply because this was not a "duty-lifting” instruction.
Defendant’s fourth claim of error stems from the introduction of the testimony of Robert Avery, a forensic serologist who had taken blood and body fluid samples from the defendant and compared them with samples of semen and vaginal fluids taken from complainant and her clothing following the incident. Avery determined that the assailant was of blood type a and secreted blood group substances into body fluids. Defendant was in- eluded in the forty percent of the population that were type a secreters. Avery said that the information obtained from this type of test could not determine whether two different samples came from the same person. Defendant now challenges the introduction of this evidence because it was allegedly unreliable, prejudicial and of no probative value.
Defendant made no objection at trial to the introduction of this evidence and admits as much in his brief. Specific objections to the admission of evidence cannot be raised for the first time on appeal absent a showing of manifest injustice. There was no manifest injustice here. The evidence went to prove the identity of the perpetrator, the major issue at trial. At trial, there was direct testimony from complainant that defendant was the perpetrator. Thus, the introduction of the blood-typing evidence, even if erroneous, was harmless beyond a reasonable doubt.
Defendant argues that it was improper for the prosecutor to cross-examine alibi witnesses concerning their failure to tell the police information which was exculpatory to defendant. Defendant presented five alibi witnesses. Pat Lewis, defendant’s fiancee at the time of the incident and his wife at the time of trial, corroborated defendant’s own testimony that he had left home at about 7:00 the evening of the incident and returned at about 8:30 p.m. O’Dell Abraham, Eve Horn, Sibina Giles and Jamés Giles all testified that defendant had been with them from about 7:00 p.m. until 8:00 p.m. the night of the incident. All five witnesses said that defendant was wearing different clothes than those described by the complainant as being worn by the perpetrator. The incident took place between 6:30 and 10:30 in the evening.
Contrary to defendant’s assertion, the prosecutor did not extensively question the witnesses concerning their failure to come forward with information before trial. Sibina Giles was asked three questions concerning her failure to contact the police and her reluctance to talk to them. James Giles and Pat Lewis were each asked one question about their failure to come forward, and James Giles was also asked one question about his failure to mention the alibi evidence during his preliminary examination testimony. Defense witness Earline Giles was asked two questions about her failure to talk to the police, but she was not an alibi witness.
Defendant relies upon People v Kraai for his argument that an alibi witness may not be cross-examined on his failure to inform the police of the alibi information. As this Court has pointed out before, however, that is not the holding of Kraai. Kraai stands for the proposition that an alibi witness may not be discredited by insinuating his failure to be a good citizen based on his failure to come forward. It does not forbid such cross-examination when good citizenship is not alluded to or suggested. In People v Lafayette, this Court reaffirmed the earlier holding of People v McClow that the credibility of an alibi witness may be attacked by showing that he failed to speak or act when it would have been natural to do so if the facts were in accordance with his testimony. A trial court may exercise its discretion under the particular facts of a case. Here, as in Lafayette, defendant did not object to the prosecutor’s questions and so failed to invoke the trial court’s discretion.
We do note that in People v Clifton Fuqua, 146 Mich App 250, 255-256; 379 NW2d 442 (1985), this Court adopted a rule that, before the prosecutor is allowed to impeach an alibi witness for failure to come forward and tell his story to the police before trial, there must be some showing on the record as to why it would have been natural for the alibi witness to relate his story to the police. No such foundation appears to have been laid in the trial court here. However, as there was no objection and no apparent prejudice from the failure to lay the foundation, we will not reverse on this basis.
Finally, defendant argues that he should have been sentenced as a third-offense habitual offender, rather than a fourth-offense offender, because two of his prior convictions arose out of a single transaction. That is, defendant’s prior convictions of pandering and running a house of ill fame seem to stem from a single incident. In that incident,, police officers entered a residence, were offered sex for an agreed price and observed defendant accepting the earnings of one of the prostitutes.
The habitual offender statute in question, MCL 769.12; MSA 28.1084, mandates enhanced sentencing if the defendant has been convicted of three or more felonies. The statute says "felonies,” not "felonious transactions.” In People v Stoudemire, this Court held that it was proper to try a defendant as a fourth-offense habitual offender when some of the prior offenses arose out of the same transaction. In doing so, the Stoudemire panel specifically disagreed with the holding of People v Ross that when two prior felony convictions arose out of the same transaction, were provable by the same testimony and involved only one time and place, they were only one felony for purposes of the habitual offender statute. More particularly, the Stoudemire panel believed that the two Supreme Court cases relied upon by Ross did not support the Ross holding.
We are inclined to agree with the Stoudemire reasoning on this issue. Stoudemire is currently before the Supreme Court and may possibly be reversed. Until and unless that happens, however, we will follow Stoudemire and hold that the language of the statute permits the sentencing of defendant as a fourth-offense habitual offender.
Affirmed.
Circuit judge, sitting on the Court of Appeals by assignment,
People v Lewis, 425 Mich 854; 385 NW2d 267 (1986).
If defendant had any objection to the proceeding in district court, he might have moved to quash.
People v Horne, 147 Mich App 375; 383 NW2d 208 (1985), lv den 425 Mich 877 (1986).
People v Buckner, 144 Mich App 691, 694; 375 NW2d 794 (1985).
Id. at 694-695.
MCL 762.7; MSA 28.850.
People v Jancar, 140 Mich App 222, 229-230; 363 NW2d 455 (1985).
People v Federico, 146 Mich App 776, 791; 381 NW2d 819 (1985).
People v Swinford, 150 Mich App 507, 521; 389 NW2d 462 (1986).
92 Mich App 398, 410-411; 285 NW2d 309 (1979).
People v Clifton Fuqua, 146 Mich App 250, 256; 379 NW2d 442 (1985).
138 Mich App 380, 388-389; 360 NW2d 891 (1984).
40 Mich App 185, 193; 198 NW2d 707 (1972).
140 Mich App 687; 365 NW2d 214 (1985), lv gtd 422 Mich 974 (1985).
84 Mich App 218, 223; 269 NW2d 532 (1978).
People v Lowenstein, 309 Mich 94, 100-101; 14 NW2d 794 (1944); People v Podsiad, 295 Mich 541, 546; 295 NW 257 (1940). | [
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Per Curiam.
Plaintiff appeals as of right from a decision and order of the Wayne Circuit Court dismissing plaintiffs complaint and motion for entry of judgment.
Plaintiff was injured while in the course of her employment with defendant employer, The Hearthside, Inc. Following her injury, she filed a petition for penalties pursuant to the Workers’ Disability Compensation Act, alleging that, in paying workers’ compensation, defendant had not selected the highest thirty-nine weeks of earnings of the fifty-two weeks preceding the injury, as required by MCL 418.371(2); MSA 17.237(371)(2). In an opinion and order dated December 30, 1985, a hearing referee awarded penalties to plaintiff. Plaintiff and defendants appealed to the Workers’ Compensation Appeal Board. The appeal is pending.
In the meantime, plaintiff filed a complaint and motion for entry of judgment in the trial court pursuant to § 863 of the Workers’ Disability Compensation Act, MCL 418.863; MSA 17.237(863), seeking the entry of a judgment in accordance with the decision of the hearing referee. Because the referee’s award had been appealed to the wcab, the trial court denied the motion and dismissed plaintiffs complaint.
On appeal, plaintiff argues that, under § 863, she is entitled to entry of judgment by the circuit court in accordance with the referee’s order awarding plaintiff penalties, despite the pending appeal. Plaintiff states that the sole reason she wishes entry of judgment is to start the accumulation of interest. Plaintiff states that she will not execute on the judgment and, if the wcab reverses, will have the judgment vacated. We affirm.
Section 863 states:
Any party may present a certified copy of an order of á hearing referee, the director or the board in any compensation proceeding to the circuit court of the circuit in which the injury occurred, or to the circuit court of the county of Ingham if the injury was sustained outside this state. The court, after 7 days’ notice to the opposite party or parties, shall render judgment in accordance therewith unless proof of payment is made. The judgment shall have the same effect as though rendered in an action tried and determined in the court and shall be entered and docketed with like effect.
In Simm v City of Dearborn, 54 Mich App 263, 265; 220 NW2d 768 (1974), lv den 392 Mich 818 (1974), this Court held that § 863 "leaves the trial court with no discretion absent proof of payment.”
We have addressed in two recent cases the issue of whether, under § 863, the trial court must enter judgment on a referee’s decision while an appeal is pending. In Holcomb v Ford Motor Co, 108 Mich App 61; 310 NW2d 275 (1981), the plaintiff was awarded workers’ compensation benefits by a referee. The defendant appealed the referee’s decision to the wcab. Pursuant to MCL 418.862; MSA 17.237(862), the defendant commenced paying seventy percent of the benefits during the pendency of the appeal process. MCL 418.862; MSA 17.237(862) states:
A claim for review filed pursuant to section 859 or 861 shall not operate as a stay of payment to the claimant of 70% of the weekly benefit required by the terms of the hearing referee’s award. Payment shall commence as of the date of the hearing referee’s award and shall continue until final determination of the appeal or for a shorter period if specified in the award. Benefits accruing prior to the referee’s award shall be withheld until final determination of the appeal. If the weekly benefit is reduced or rescinded by a final determination, the carrier shall be entitled to reimbursement in a sum equal to the compensation paid pending the appeal in excess of the amount finally determined. Reimbursement shall be paid upon audit and proper voucher from the second injury fund established in chapter 5. If the award is affirmed by final determination, the carrier shall pay all compensation which has become due under the provisions of the award, less any compensation already paid.
The wcab affirmed, and the defendant appealed to this Court and the Supreme Court. While the defendant’s application for leave to appeal was pending in this Court, the plaintiff filed in the trial court a petition for entry of judgment pursuant to § 863. The petition was granted, and the judgment awarded plaintiff full weekly benefits from the date on which compensation was ordered to be paid until the date of the referee’s decision, and thirty percent of weekly benefits from the date of the referee’s decision until the date of the judgment. Holcomb, supra, 62-63. Although the defendant complied with § 862 by paying the plaintiff seventy percent of the payment awarded by the referee, the plaintiff attempted to receive one hundred percent by entry of a judgment in accordance with the referee’s decision. We held that entry of the judgment improperly circumvented the appeal process for workers’ compensation awards set forth in the Workers’ Disability Compensation Act. Holcomb, supra, 64-68. We stated:
If a plaintiff were allowed to circumvent § 862 by obtaining a judgment for 100% of the referee’s award, as plaintiff did in this case, the protection of the employer’s due process rights as well as the incentives to expedite appeals would be eliminated. In effect, § 862 would be rendered meaningless since it could be circumvented completely by the claimant.
This Court has emphasized that resolution of all disputes relating to workers’ compensation is vested exclusively in the Bureau of Workers’ Disability Compensation and that remedies for failure to follow statutorily established procedures are to be determined by the bureau, rather than the circuit court. . . . For example, if a defendant employer fails to pay 70% of the plaintiff’s benefits pending an administrative appeal, it may result in the dismissal of the appeal by the Workers’ Compensation Appeal Board; but, a plaintiff should not begin suit in circuit court for failure to pay benefits. ... In light of the exclusivity of the bureau’s control over remedies and appeals dealing with compensation awards, it is clear that plaintiff’s interpretation would constitute an unintended deviation from the statutorily established procedure. Rather than to involve the circuit court in determining the merits of an appeal and entering judgment for the entire compensation award where an appeal is considered frivolous, the Supreme Court has emphasized that the act provides for a check against specious appeals in §862. The 70% "no-stay” provision itself has as one of its ancillary goals, "to discourage marginal or frivolous appeals.” [Holcomb, supra, 66-67. Citations omitted.]
In Collins v Waterford School Dist, 149 Mich App 16; 385 NW2d 712 (1986), we were faced with another version of this issue. The plaintiffs hus band was injured in 1972. The plaintiff rendered nursing services to her husband and sought reimbursement. The referee awarded reimbursement, but the wcab reversed on the ground that the plaintiff’s husband had not notified the employer that he intended to seek such reimbursement. We reversed and remanded for a determination of the need for and value of the nursing services. Collins v Waterford Twp School Dist, 118 Mich App 798; 325 NW2d 585 (1982), lv den 417 Mich 998 (1983). Upon remand, the wcab found that the nursing services were necessary and directed the parties to attempt to agree on an appropriate rate of payment, with the wcab determining the rate if the parties failed to agree. The plaintiff subsequently filed a motion to compel payment, which motion was granted by the referee. The defendant appealed to the wcab, claiming that the plaintiff’s motion was not in accordance with MCL 418.847; MSA 17.237(847) and an administrative rule. Pending disposition of the appeal, the plaintiff sought enforcement of the referee’s decision pursuant to § 863. Collins, supra, 149 Mich App 18-19. The trial court granted the judgment, but we reversed. Although we noted that the facts were distinguishable from Holcomb in that the "seventy percent” statute was not involved and that the underlying appeal was not substantive, but, rather, involved a procedural question, we held that an appeal barred application of § 863. 149 Mich App 20. We stated:
[T]his Court has emphasized that resolution of all disputes relating to workers’ compensation is vested exclusively in the Bureau of Workers’ Disability Compensation and that remedies for failure to follow statutorily established procedures are to be determined by the bureau, rather than the circuit court. To give due deference to the exclusiv ity of the bureau’s control over remedies and appeals, we conclude that the circuit court is without authority to enter judgment under § 863 during the pendency of an appeal to the wcab. [149 Mich App 20-21.]
We feel that Holcomb and Collins govern the instant case. To enter judgment prior to the decision of the wcab would undermine the procedure set forth in the act for appeal of workers’ compensation decisions. We do not feel that a different result is warranted merely because the award in the instant case was an award of penalties rather than of workers’ compensation benefits. Although plaintiff argues that the trial court has no discretion under § 863, in that the statute says that "the court . . . shall render judgment” (emphasis added), we have already rejected this contention in Holcomb and Collins. To hold that § 863 requires that nonfinal orders of a referee must be made into a judgment would encourage havoc in the workers’ compensation appellate system. We believe that a sounder practice is to require, before § 863 may be invoked, that the decision on which judgment is sought be a final one.
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Sawyer, J.
The instant case arises out of an automobile accident which occurred in 1983 in which plaintiff was a passenger in the front seat of a vehicle driven by defendant Chou Yu-Feng Wong and owned by defendant Chu-Fen Wong, who was a passenger in the back seat at the time of the accident. According to plaintiff’s complaint, defendant Chou Yu-Feng Wong drove through a red light at the intersection of Pontiac Trail and Barton Drive in Ann Arbor, striking the vehicle driven by defendant Becky J. Belknap. Apparently, defendant Wong saw the light change but decided it would be unsafe to attempt to stop and, according to plaintiff, negligently attempted to proceed through the intersection.
Plaintiff commenced this action on March 11, 1986, alleging, inter alia, negligence on the part of defendants City of Ann Arbor, John Robbins, the city’s transportation director, and Kenneth Feldt, the city’s operations engineer, in the maintenance and repair of the traffic signal located at the intersection. Plaintiff further cláimed that defendant city had created and maintained a nuisance by improperly timing the light.
Defendants city, Robbins, and Feldt moved for summary disposition on the grounds that plaintiff’s suit, filed two years and ten months after the accident, was barred by the applicable two-year statute of limitations and that plaintiff had not given the city a verified notice of her injuries pursuant to MCL 691.1404; MSA 3.996(104). Thereafter, by leave of the court, plaintiff amended her complaint and alleged that her injuries were caused in part by the city’s deliberate and intentional acts of setting the timing of the signal, which constituted an intentional nuisance. The trial court thereafter heard defendants’ motion for summary disposition and ruled that plaintiff’s negligence action was barred by the applicable statute of limitations and that plaintiff’s pleadings did not constitute a nuisance claim, but were a mere restatement of her negligence cause of action.
Plaintiff now appeals and we reverse with respect to the intentional nuisance claim.
Plaintiff first argues that her negligence claim is not barred by the two-year statute of limitations set forth in MCL 691.1411(2); MSA 3.996(111)(2) because the statutory period was tolled until she discovered her cause of action. We disagree.
The period of limitations for claims arising under the statutory defective-highways exception to governmental immunity is two years. MCL 691.1411(2); MSA 3.996(111)(2). The statute does not provide for a discovery rule. However, case law has created a so-called discovery rule which provides that a claim does not accrue until the plaintiff knows or should have known that he has a possible cause of action. Bonney v The Upjohn Co, 129 Mich App 18; 342 NW2d 551 (1983).
We are not aware of any decision which has extended the discovery rule to defective-highway cases. However, we do not believe it necessary to determine whether it is appropriate to extend the discovery rule to this class of cases as we believe that, even if the discovery rule were applicable to the case at bar, plaintiff’s suit would nevertheless be barred under the statute of limitations. More specifically, we believe that plaintiff knew or should have known that she had a cause of action based upon the defective signal light at the time of or soon after the accident itself.
Plaintiff’s theory of a defective highway is based upon the signal light’s being improperly timed. Plaintiff claims that she did not discover that the light was improperly timed until reading an article concerning the problem in the local newspaper. However, we believe that plaintiff could have discovered the improper timing of the light prior to reading the newspaper article inasmuch as the timing of the light could not be regarded as a closely held secret. Indeed, by the very nature of a signal light, the timing of the light would be displayed for all the world to see merely by passing through or near the intersection. Thus, plaintiff could have returned to the intersection later on the day of the accident and observed the functioning of the signal light and discovered whether the light was improperly timed. While the local newspaper article may have brought to public attention a fact which the public had previously ignored, the article did not bring to the public awareness a fact previously held secret.
Accordingly, even if the discovery rule were to be applied to this case, since plaintiff could have discovered the timing of the light immediately after the accident, plaintiff’s claim accrued even under the discovery rule at the time of the accident. Accordingly, the trial court correctly concluded that plaintiff’s suit based upon the defective-highways statute was barred by the statute of limitations.
Plaintiff’s next argument, however, is meritorious. Plaintiff claims that she properly pled an action of intentional nuisance and pled facts in avoidance of immunity. We agree. In plaintiff’s amended complaint, she charged that the city created an intentional nuisance by programming and maintaining a traffic signal at the intersection of Pontiac Trail and Barton Drive. Her well-pled allegations of intentional nuisance read as follows:
57. That the City of Ann Arbor maintains a traffic signal at the intersection of Pontiac Trail and Barton Drive in the City of Ann Arbor which is programmed by employees of the City to cycle the traffic signals in a certain manner, that the programming is an intentional act and this act creates a condition at that intersection which is hazardous to those who used [sic] the intersection anfl to Plaintiff in particular, and as such creates a nuisance;
58. That the programming to set the cycle is a deliberate intentional act on the part of the city that causes hazardous condititions [sic] for users of the highway including the plaintiff passenger in that it does not allow adequete [sic] time for drivers to traverse the intersection.
59. That the Defendants created and continued that condition causing a nuisance with the full knowledge that harm to plaintiff’s interests was substantially certain to follow, and refused to correct said condition; and refused to warn the users of the highway that the condtion [sic] existed.
60. That the City of Ann Arbor intentionally maintianed [sic] a nuisance at the above described intersection;
The trial court incorrectly dismissed plaintiffs intentional nuisance claim as being a mere restatement of her negligence claim. The trial court erred in failing to recognize that a given factual scenario may give rise to more than one cause of action. Freiburger v Dep’t of Mental Health, 161 Mich App 316; 409 NW2d 821 (1987). As the Freiburger Court noted, just because a particular case may primarily sound in one cause of action does not exclude the possibility that there also exists a less obvious cause of action. Id. at 319. Thus, where a plaintiff may plead more than one cause of action, one of which avoids governmental immunity and the other does not, or, for that matter, where one avoids the period of limitations and the other does not, the plaintiff is entitled to plead all causes of action and proceed on those which survive statutory or procedural bars. It is not sufficient for the trial court to dismiss all claims merely because they resemble one of the claims which is barred. Simply put, the trial court erred by stating that plaintiffs intentional nuisance claim was a mere restatement of her negligence claim and dismissing the suit because the negligence claim was barred by the statute of limitations. Rather, the court’s duty once it determined that the negligence claim was not viable was to proceed to determine whether plaintiff had, in fact, stated a viable intentional nuisance claim. See Freiburger, supra at 319-320. For the reasons that follow, we conclude that plaintiff did, in fact, state a viable intentional nuisance claim.
The Supreme Court has recognized that an intentional nuisance constitutes an exception to the doctrine of governmental immunity. Rosario v Lansing, 403 Mich App 124; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978). Furthermore, this Court has determined that the intentional nuisance exception to governmental immunity survived the Supreme Court’s decision in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). Garcia v City of Jackson, 152 Mich App 254, 259; 393 NW2d 599 (1986). To establish an intentional nuisance, the plaintiff must show that (1) the condition is a nuisance and (2) the government intended to create the condition. Garcia, supra at 260.
Plaintiffs amended complaint pleads both elements of an intentional nuisance. The complaint alleges that the programming of the traffic light constitutes a nuisance and that defendants intentionally created and continued the light as programed. Thus, plaintiff did, in fact, plead the existence of an intentional nuisance. Therefore, summary disposition on this issue was inappropriate. Accordingly, the matter must be remanded to the trial court to proceed to trial on the intentional nuisance claim.
Affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained. No costs, neither party having prevailed in full._
To the extent that Garcia notes a possible conflict on what constitutes an intentional nuisance, id. at n 1, we align ourselves with Garcia as being the correct interpretation of Supreme Court precedent. | [
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Shepherd, J.
After a jury trial, defendant Richard Jensen was convicted of making a false application for an automobile title, MCL 257.254; MSA 9.1954. Defendant appeals as of right. We reverse and remand for a new trial.
The prosecutor alleged in his opening statement that defendant made two misrepresentations to the Secretary of State in his April 29, 1985, application for transfer of title of a 1984 Chevrolet Camaro. The first alleged misrepresentation was that the title had no lien on it, when in fact there was an outstanding security interest to the General Motors Acceptance Corporation. The second alleged misrepresentation was that the owner of the car intended to transfer title to defendant on April 29, 1985, when in fact he did not.
Leora Doty, of the Secretary of State’s office in Windsor Township, Eaton County, Michigan, testified that defendant applied for transfer of title on the car on April 29, 1985. Doty’s office was authorized to give a quick title for a car after checking the relevant information. After reviewing the existing title on the car, however, she went to her supervisor because she felt that the gmac termination information on the face of the title looked unusual. On cross-examination, Doty stated that defendant readily gave her his driver’s license when she asked him for identification.
Robert Hodges, Doty’s supervisor, testified that his office could only issue a quick title if all liens on the existing title had been validly terminated. He was suspicious of the discharge of gmac’s lien on the face of the title because gmac usually used a stamp and this discharge appeared to be typed. Hodges called gmac and was told that the lien on the car had not been discharged. Hodges then called the police. Hodges did not recall if defendant had a certificate of insurance with him. He stated that defendant offered no explanation about the lien. On cross-examination, however, Hodges acknowledged that defendant appeared surprised when he was questioned about the lien discharge. Defendant was cooperative and gave Hodges no difficulty.
Michael Gotshall, a Michigan State Police trooper, responded to Hodges’ call. According to Officer Gotshall, defendant told him that he purchased the car on March 22, 1985. Officer Gotshall stated that defendant said there must have been a mistake made by gmac or by the prior owner of the car, and that defendant did not appear to be very concerned about the situation. Officer Gotshall confiscated the title. He did not recall defendant asking for a copy of the title or for a receipt for the confiscated title.
David Bart testified that he was the titleholder of the 1984 Camaro. He purchased the car in 1984 and financed it through payroll deductions from his job with General Motors. As of April, 1985, he owed about $9,800 on the car.
Bart testified that he agreed to sell the car to defendant on April 12, 1985. Bart acknowledged that at the preliminary examination he had stated that the date of the agreement was April 26. He then asserted that the 12th was the correct date. He had known defendant for eight or nine months, having met him in a bar that Bart frequented. According to Bart, the agreement was made at defendant’s house with only the two of them present. The terms were a purchase price of $10,000, payable at $2,000 a month for five months. Defen dant was also to give Bart a 1971 Plymouth that he owned. Bart stated that he received no money on April 12, but that they exchanged the two cars. Later that day, he went to defendant’s insurance agent for a copy of defendant’s insurance certificate on the Camaro.
Bart testified that on April 28 he dropped off the Camaro title in defendant’s mailbox. He stated that he and defendant had talked over the situation and that he had agreed to give defendant the title as a showing of good faith. Bart stated that he had not typed anything on the title before giving it to defendant. He denied writing a sales price of $8,000 or a sales date of March 22 on the title. He acknowledged signing the title in August, 1984, when he had previously tried to sell the car, but denied putting any writing on the title other than his signature.
According to Bart, defendant called him on May 1 and told him the police had taken the title. He met defendant that day. Defendant told him they could both get into a lot of trouble and that if he was questioned by the police he should tell them that someone else had discharged the lien on the title before he gave it to defendant. Bart admitted telling the police that a man he met in a bar had agreed to sign that the lien had been discharged. He stated that he was afraid that he would get into trouble, so he lied to the police. Bart testified that the car was eventually repossessed and sold. He still owed $2,100 to $2,400 on the car. Bart acknowledged that he had been charged with forging a title and knowingly possessing a forged title and that the charges had been reduced to a misdemeanor in a plea bargain exchange for his testimony against defendant. He had not yet been sentenced.
On cross-examination, Bart testified that he had told the police that the car’s selling price was $10,000. He denied that defendant had in fact paid him $8,000 for the car. At the time of the preliminary examination, Bart had been suspended from his job for disciplinary reasons. He was not current on his car payments as of April 12. He stated that he returned the 1971 Plymouth to defendant in August because he could not afford insurance on the car. He also told defendant that he had a bad driving record and could not afford the insurance on the Camaro. Bart indicated that he intended to file for bankruptcy in light of the remaining money that he owed on the car. When defense counsel asked about other reasons why he might be intending to file for bankruptcy, the prosecutor objected on grounds of relevancy. The trial court sustained the prosecutor’s objection to any further questions on Bart’s financial situation and on his intent to file for bankruptcy.
Jack Heeres, an insurance agent for Allstate, testified that on April 12, 1985, he spoke to defendant and discussed adding the Camaro to defendant’s insurance. Later that day he gave a copy of the proof of insurance to a man who came to his office. According to Heeres, defendant told him on April 12 that there was no lien on the car.
Philip Monterusso, from gmac, stated that his company normally discharges a lien by using a rubber stamp and a signature of a gmac agent. The Camaro title had not been discharged in this normal fashion. Monterusso could not identify the signature on the title, which appeared to read “Bob Woodward” or "Bob Wentworth,” as that of anyone who worked at the gmac Grand Rapids office which serviced Bart’s account. Monterusso testified that he spoke to Bart on May 28, 1985. At that time, Bart stated that he was in the process of selling the car, that the police had confiscated the title, that he intended to pay off the lien when the title was released, and that defendant had the car.
Michigan State Police Detective Robert Golm interviewed defendant at his home on May 8, 1985. Detective Golm testified that defendant said that he had agreed to pay Bart $8,000 for the car, but had not given him any cash yet. He told Golm he was going to pay Bart when he got clear title. Defendant also stated that he received the title from Bart personally on April 27. Defendant stated that he was not sure if he had filled out the information on the back of the title concerning the purchase price and mileage of the car. Defendant denied making the discharge of the lien, stating that it was already on the title when he received it.
On May 7, Detective Golm talked to Bart, who told him that a man he met in the bar who identified himself as a gmac employee had told him he could get a clear title if he paid off the lien within ten days. Bart told him that the car was sold for $8,000. On June 13, Bart told Detective Golm that he had agreed to sell the car to defendant for $10,000 and the Plymouth.
The first defense witness was John Koval, who stated that he worked the same shift as Bart and was somewhat acquainted with him. One night at a card game with other people from work, Bart mentioned that he wanted to sell the Camaro. Koval stated that Bart had mentioned a price in the range of $8,000 to $9,000. A few weeks later, Koval approached Bart about the car and was told that he had already sold it. When Koval asked Bart if he had already gotten the money for the car, Bart responded "Yeah, it’s gone.” At the preliminary examination, however, Koval had testified that defendant had not paid Bart. Koval indicated that he was an acquaintance of defendant and had known him for around one year.
Defendant testified that he had known David Bart for around one year. In early April, 1985, he was at a card game where Bart and John Koval were present and overheard them discuss Bart’s Camaro. About one week later, he told Bart that he would buy the car for $8,000. Defendant denied that he had ever agreed to pay $10,000 in monthly installments. Defendant testified that he reached an agreement with Bart on April 12. He took possession of the car and obtained insurance, but did not pay Bart the purchase price then as he needed more time to get the full $8,000. Defendant testified that he had sold a different car in February, 1985, for $5,800 and had used this money to purchase the Camaro. He gave Bart the money on April 26 and received the title from Bart.
Defendant testified that the lien had been discharged on the title when he received it from Bart but he did not know who had placed the discharge there. When the title was confiscated at the Secretary of State’s office on April 29, he asked for and received a copy of it as a receipt.
On cross-examination defendant stated that he has bought and sold cars for profit and as a hobby. He denied telling Officer Gotshall that he bought the car on March 22. He also denied telling Detective Golm on May 8 that he would pay Bart only when he got clear title, telling Golm instead that he paid Bart when he received the title. He acknowledged telling the insurance agent on April 12 that there were no liens on the car.
Defendant raises three issues. We agree with defendant that the trial judge abused his discretion in sustaining the prosecutor’s objection to defense counsel’s cross-examination of David Bart. The foreclosure of testimony concerning Bart’s financial status denied defendant his right to confrontation. This error was not harmless, given the critical nature of Bart’s testimony and the importance of his credibility to the prosecution’s case.
The defense theory at trial was that David Bart, anticipating receiving $8,000 in cash from selling the Camaro, failed to pay off the outstanding balance of the gmac loan and instead either personally or through an accomplice falsified the discharge on the face of the title before delivering the title to defendant. During the prosecution’s case, evidence came out that even with the eventual repossession and sale of the car by gmac, Bart still owed approximately $2,400 on his loan. During cross-examination of Bart, he was asked how he was going to repay that loan. He indicated that he was intending to file for bankruptcy. Later, defense counsel sought more information about Bart’s intention to file for bankruptcy.
Generally, evidence of poverty or unemployment is inadmissible to prove a motive for a larceny offense. People v Johnson, 393 Mich 488, 496-497; 227 NW2d 523 (1975). The Supreme Court recognized an exception to this‘general rule, however, in People v Henderson, 408 Mich 56, 66-68; 289 NW2d 376 (1980). In Henderson, the defendant was a gas station manager who was prosecuted for arson of and embezzlement from the station he managed. During trial, the prosecution was permitted to question the defendant about his financial condition around the time of the fire and embezzlement. This Court reversed, but the Supreme Court reinstated the conviction, holding that evidence of temporary or unusual financial conditions which might lead a person to engage in an economic crime could be admissible in the circumstances of a particular case.
In the instant case, the court’s decision to fore close inquiry into the possible reasons for Bart’s declaration of bankruptcy was error. Bart testified that he had worked for gm for seven years and was still employed by them. This was not a case where the defense was trying to show poverty or unemployment as a motive for Bart to have kept the $8,000 which defendant alleged that he paid Bart. As in Henderson, the inquiry was about a temporary or unusual shortage of funds that might have caused an otherwise gainfully employed person to resort to an economic crime. Bart acknowledged that he had been suspended by gm for disciplinary problems and that he had encountered trouble paying for insurance on the Camaro. The gmac records indicated that he was eight weeks in arrears on his loan payments before the agreement with defendant. All of this suggests that Bart could have had other problems which would lead him to declare bankruptcy. The existence of other financial difficulties would have strongly supported the defense theory that Bart kept the $8,000 and falsified the title.
The scope of cross-examination is a matter left to the trial court’s discretion, which must be exercised with due regard for a defendant’s constitutional rights. If cross-examination of a prosecution witness has been unreasonably limited, amounting to an abuse of discretion and a denial of the right to confrontation, a conviction based on that witness’ testimony should not be sustained. Reversal is not required, however, where the error is harmless or no prejudice results. People v Holliday, 144 Mich App 560, 566-567; 376 NW2d 154 (1985). The error in the instant case cannot be considered harmless. While defense counsel argued in his closing argument that Bart was two months behind in payments at the time of the offense and that Bart later declared bankruptcy, he was un able to introduce by another method Bart’s other financial difficulties at the time of the offense. These difficulties would have bolstered a crucial element of the defense theory. Since Bart’s testimony was, realistically, the only evidence against defendant, its importance should not be underrated. Accordingly, reversal is required.
With regard to defendant’s second issue, we agree with the prosecutor that the trial judge did not err by failing to include intent to fraudulently pass title as an element of making a false application for title, MCL 257.254; MSA 9.1954. Intent is not included as an element in the statute, but can be inferred from the other necessary elements. Moreover, the statute is distinguishable from MCL 257.222(6); MSA 9.1922(6), another provision of the Michigan Vehicle Code involving forged certificates of title. Therefore, defendant was properly charged under MCL 257.254; MSA 9.1954, and the proper elements were read to the jury.
MCL 257.254; MSA 9.1954 provides:
Any person who shall knowingly make any false statement of a material fact, either in his application for the certificate of title herein provided for, or in any assignment thereof, or who, with intent to procure or pass title to a motor vehicle which he knows or has reason to believe has been stolen, shall receive or transfer possession of the same from or to another, or who shall have in his possession any motor vehicle which he knows or has reason to believe has been stolen, and who is not an officer of the law engaged at the time in the performance of his duty as such officer, shall be deemed guilty of a felony and upon conviction shall be punished by a fine of not more than $5,000.00 or by imprisonment in any penal institution within the state for not more than 10 years, or both, in the discretion of the court. This provision shall not be exclusive of any other penalties prescribed by any law for the larceny of the unauthorized taking of a motor vehicle.
Defendant was charged under the first clause of the statute with making false statements of material fact in an application for a certificate of title. The prosecution alleged that defendant falsified the lien discharge on the title and falsely represented to the Secretary of State that David Bart intended, at that time, to transfer the vehicle to defendant.
The trial judge instructed the jury:
The Defendant is charged with the crime of making a false statement about the title on a motor vehicle. Any person who knowingly makes a false statement of a material fact in applying for or in the assignment of a Certificate of Title on a motor vehicle is guilty of this crime.
The Defendant pleads not guilty to this charge. To establish this charge the Prosecution must prove each of the following elements beyond a reasonable doubt: First, that the Defendant applied for a Certificate of Title to a motor vehicle.
Second, that in so doing the Defendant made a false statement of a material fact. A material fact means an essential matter required for a valid transfer.
And, third, that the Defendant made the statement knowing it to be false.
The court gave no instruction on intent in regard to the charged offense. The trial court also instructed the jury on the lesser included offense of attempted false application for title, however, indicating that the prosecution must prove that the defendant had the specific intent to falsely apply for title.
Defendant argues that the element of intent to fraudulently pass title should be read into the offense of making application for false title, and therefore that the jury should have been instructed on it. Defendant cites People v Morton, 384 Mich 38; 179 NW2d 379 (1970), in support of his proposition. In Morton, the Supreme Court considered a challenge to the third clause of MCL 257.254; MSA 9.1954, which on its face makes the knowing possession of a stolen motor vehicle a violation of the statute. The Morton Court ruled that, since the Michigan Vehicle Code concerns the validity of transfers of title, mere possession of a stolen car without an intent to fraudulently transfer title of that car would not validly fall within the Michigan constitutional requirement that legislation cannot embrace more than one object. Const 1963, art 4, § 24. The Morton Court concluded that the third section of the statute must be treated as surplusage, or deleted from the legislation as inconsistent with the statute’s intent. 384 Mich 41. The statute has not been amended, and later courts have required that an intent to fraudulently pass title be shown in addition to the requirement of possession of a stolen car.
Defendant argues that, while the Morton ruling reached only the clause concerning possession of a stolen car, its reasoning should apply equally to the first clause. We do not agree. While intent to fraudulently pass title cannot be inferred from mere possession of an automobile, intent is almost always the necessary inference when a defendant knowingly makes a false statement of a material fact in an application for certificate of title. As indicated in the instructions, a material fact means "an essential matter required for a valid transfer.” Failure to include intent as a necessary element of the first clause of MCL 257.254; MSA 9.1954 would not make that clause unconstitu tional as embracing more than one object, unlike Morton. Since intent is not, and need not be, a separate element of the clause, the court did not err by failing to include it in the jury instructions.
Defendant also argues that, if the element of specific intent to fraudulently pass title is not read into MCL 257.254; MSA 9.1954, that statute will be indistinguishable from another section of the Vehicle Code, MCL 257.222(6); MSA 9.1922(6), which reads:
(6) A person who intentionally reproduces, alters, counterfeits, forges, or duplicates a certificate of title or who uses a reproduced, altered, counterfeited, forged, or duplicated certificate of title shall be punished as follows:
(a) If the intent of reproduction, alteration, counterfeiting, forging, duplication, or use was to commit or aid in the commission of an offense punishable by imprisonment for 1 or more years, the person committing the reproduction, alteration, counterfeiting, forging, duplication, or use is guilty of a misdemeanor, punishable by imprisonment for a period equal to that which could be imposed for the commission of the offense the person had the intent to aid or commit. The court may also assess a fine of not more than $10,000.00 against the person.
(b) If the intent of the reproduction, alteration, counterfeiting, forging, duplication, or use was to commit or aid in the commission of an offense punishable by imprisonment for not more than 1 year, the person committing the reproduction, alteration, counterfeiting, forging, duplication, or use is guilty of a misdemeanor, punishable by imprisonment for not more than 1 year, or a fine of not more than $1,000.00, or both.
We find the statutes distinguishable. Defendant argues that his alleged conduct also falls within the confines of this statute, however, which would punish his conduct as a misdemeanor. Defendant contends that, when two statutes appear to conflict, the specific statute enacted after the more general statute applies, and his crime should have been charged under MCL 257.222(6); MSA 9.1922(6), which is the more recently enacted statute.
Defendant’s argument must fail. Generally a prosecutor has broad discretion in choosing under which of two applicable statutes to prosecute. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683; 194 NW2d 693 (1972). When two statutes appear to conflict, the more specific statute enacted after the more general statute prevails. People v McFadden, 73 Mich App 232, 235; 251 NW2d 297 (1977). However, where the more general statute contains an element not found in the more specific statute, the prosecutor can properly proceed under the more general statute. In People v Ford, 417 Mich 66, 82-83; 331 NW2d 878 (1982), the Supreme Court found that the defendant could properly be charged with uttering and publishing, although the facts of his case also showed that he could have been charged with misuse of a credit card. Uttering and publishing requires a forgery which could be done through misusing a credit card; however, misuse of a credit card does not necessarily require a forgery. In the instant case, to show the crime of false application for title under MCL 257.254; MSA 9.1954, the prosecutor must show that defendant applied for a certificate of title and that he knowingly made a false statement of a material fact. A violation of MCL 257.222(6); MSA 9.1922(6) does not necessarily require any of these elements. Therefore, the prosecutor could properly proceed under MCL 257.254; MSA 9.1954.
Finally, with regard to defendant’s third issue, we hold that the trial court erred in failing to give the proper instruction on accomplice testimony. Since David Bart pled guilty to possession of an altered title in exchange for his testimony, the trial court should have instructed the jury that he was an accomplice. Instead, the trial court allowed the jury to determine whether or not Bart was an accomplice. Defendant’s failure to request the proper instruction, or to object to the instruction given, does not preclude reversal, as the factual issue in the instant case was closely drawn.
In the instant case, the trial court instructed the jury based on CJI 5:2:02, entitled "Witness a Disputed Accomplice”:
I wish to caution you concerning the testimony of David A Bart. First, you must decide whether or not David A Bart himself had a part in committing the crime with which the Defendant is charged. Although David A Bart did not admit his own involvement, other evidence could lead you to believe otherwise. A person who knowingly and voluntarily cooperates or aids another in committing a crime is called an accomplice.
An accomplice is someone who knowingly, voluntarily, and purposely joins with another in performing an illegal act. You must first determine whether David A Bart is an accomplice.
If after considering all the evidence you conclude that David A Bart did not participate in the crime, then you should consider his testimony the same as any other witness. But, if you conclude that David A Bart did act as an accomplice, then you must consider the testimony in the light of the following instruction.
The court then instructed the jury using CJI 5:2:03 ("Cautionary Instruction Regarding Accomplice Testimony”) that it should treat the testimony of an accomplice with care and caution, taking into account, among other factors, whether the accomplice has been offered any reward or inducement for his testimony. The court specifically mentioned the plea agreement for Bart’s testimony:
Now, as I remember, in Kent County Mr. Bart was charged with a crime which was reduced to a misdemeanor if he testified against Mr. Jensen in this case.
The trial court erred in instructing the jurors that they were to make a factual determination of whether Bart was an accomplice. Bart admitted on direct examination that he was originally charged with forging a certificate of title and knowingly possessing a forged title. He also testified that he pled guilty to possession of a false or altered title in exchange for his testimony against defendant, but had not yet been sentenced. Through Bart’s own admissions and his guilty plea to a reduced charge arising from the incident, his status as an accomplice was beyond dispute. Accordingly, the jury should not have been given the opportunity to find that he was not an accomplice, with the result that his testimony would be treated with no greater care or caution than that of any other witness. Proper instruction was especially necessary in the instant case, since Bart testified that the title was falsified only after he gave it to defendant. Bart’s guilty plea to possession of a false title, in addition to undermining his credibility, directly contradicted his trial testimony.
The trial court should have instructed the jury using CJI 5:2:01 ("Witness an Undisputed Accomplice”) which together with its use note reads:
Note: Use CJI 5:2:02 if accomplice status is disputed.
[Name witness] claims that he took part in committing the crime with which the defendant is charged. [(Name witness) has already been convicted of charges arising out of the commission of that crime.] [The evidence clearly indicates that (name witness) is himself guilty of the same crime with which the defendant is charged (and/or) has been granted immunity.] Such a witness is called an accomplice.
Use Note: This instruction is to be followed by the instruction on weighing testimony of an accomplice, CJI 5:2:03.
This charge should be given automatically where the witness has admitted his guilt or has been convicted of the crime, or where the evidence clearly indicates his complicity. Strike out whichever of the parenthesized statements is inapplicable. Of course, more than one may apply.
In certain classes of cases (e.g., consensual statutory rape), the victim as a matter of law is not considered to be an accomplice. In those cases, the defendant is not entitled to the charge on accomplice testimony.
This instruction would have informed the jury that Bart was an accomplice and that his testimony should be treated accordingly.
In People v McCoy, 392 Mich 231, 236-238; 220 NW2d 456 (1974), the Supreme Court discussed the inherent unreliability of accomplice testimony and a defendant’s right to a cautionary instruction regarding such testimony. The Court ruled that, after the publication of McCoy, it would be error requiring reversal to fail to give such a cautionary instruction if requested and may be error requiring reversal even without a request "if the issue is closely drawn.” Id., p 240. The issue is "closely drawn” if the trial is essentially a credibility contest between the defendant and the accomplice. People v Fredericks, 125 Mich App 114, 120-121; 335 NW2d 919 (1983). In the instant case, the factual issues were "closely drawn” as the testimony boiled down to a credibility contest between defendant and David Bart. Therefore, failure to give any accomplice instruction would have been error requiring reversal even absent a request. In the instant case, the trial court did not fail to give any accomplice instructions; rather, it gave the wrong one. It is not clear whether defendant requested the incorrect instruction, although he did not object to it once it was given. The question therefore becomes: if the issue is closely drawn, does it require reversal where the trial judge failed to give the correct accomplice instruction and no objection was made to the incorrect one?
We hold that failure to give the correct accomplice instruction sua sponte under the circumstances of this case, where the issue was closely drawn, was error requiring reversal. If accomplice testimony is inherently suspect, and if it is the only real evidence which directly contradicts the defendant’s testimony, it is extremely important that the jury weigh it properly. Allowing the jury to find that the witness was not an accomplice, when in fact he was, should not be permitted. Proper weighing of accomplice testimony in close situations is so important that the trial court should be required sua sponte to give correct instructions under circumstances such as these.
As defendant notes, failing to give proper accomplice instructions where a credibility contest exists is similar to giving a factually incorrect instruction on a material matter, People v Townes, 391 Mich 578, 592-594; 218 NW2d 136 (1974), or failing to instruct adequately on the defense theory where the theory is an essential ingredient of the case, People v Ora Jones, 395 Mich 379, 394; 236 NW2d 461 (1975); People v St Cyr, 392 Mich 605, 609-610; 221 NW2d 389 (1974). Neither of these situations requires an objection for error requiring reversal to be found. Since the trial court improperly instructed the jury on accomplice testimony, this Court must reverse.
In summary, the trial court erred in foreclosing questioning about David Bart’s financial status. The trial court did not err by failing to instruct the jury that defendant had to have a specific intent in order to fraudulently pass title. The trial court erred by submitting to the jury the issue whether witness David Bart was an accomplice, where Bart had pled guilty to a lesser included offense.
Reversed and remanded for a new trial. | [
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Per Curiam.
Respondent Goodwill Industries of Muskegon County, Inc., appeals as of right from a decision of the Michigan Employment Relations Commission, Labor Relations Division. We remand for clarification of the commission’s findings of fact.
I
In September of 1985, Local Union 1106, International Brotherhood of Electrical Workers filed a petition with the commission. The petition asserted that thirty percent or more of the full- and part-time janitors and laborers employed by West-port Janitorial Service wished to be represented for purposes of collective bargaining and sought an election and certification of a union representative pursuant to MCL 423.27; MSA 17.454(29). Goodwill responded that the workers were not "employees” within the meaning of the Michigan labor mediation act, since the primary objective of the program in which they were working was rehabilitation and placement in competitive employment.
The parties stipulated that Westport, a nonprofit organization, is part of Goodwill’s program to prepare "clients . . . for competitive employment elsewhere by rehabilitating them in regard to mental, physical, emotional and social disabilities.” Before qualifying for the Westport program, the "clients” receive some type of rehabilitation training; they are referred to the Westport program by public schools, Michigan Rehabilitation, community mental health offices, and Job Training Partnership Act programs.
Prior to assuming their duties as Westport workers, the clients also undergo an additional twelve-week state-paid training program. After their training, however, the clients are supervised by Goodwill staff and are paid a minimum wage and perform labor and janitorial services pursuant to Goodwill’s contracts with churches, public schools, state buildings, and commercial (e.g. doctors’) offices. Goodwill reports in its budget any Westport revenues in the same manner as it reports other sources of revenue such as United Way contributions.
As part of the Westport rehabilitation program, Goodwill job placement officers, professional counselors and work adjustment counselors evaluate the clients and prepare reports on their physiological, psychological and psychiatric condition. The clients are allowed to stay in the program as long as required by their individual needs, but may be removed from the program or otherwise disciplined if necessary.
Following a hearing held in December of 1985, the commission in its opinion and order recognized that the relationship between Goodwill and its clients was unlike that of traditional competitive employment, since the relationship existed to serve the clients. However, the commission further stated that the existence of an employer/employee relationship was not precluded by a rehabilitative relationship and concluded that the "clients” were "employees” within the meaning of § 2(e) of the Michigan labor mediation act, MCL 423.2(e); MSA 17.454(2)(e). The commission then ordered a vote among Westport’s full- and part-time janitors and laborers. From this decision Goodwill appeals as of right. Goodwill’s motion to stay the commission’s order was denied by this Court, as was its motion for rehearing.
ii
The Michigan labor mediation act, MCL 423.1 et seq.; MSA 17.454(1) et seq., allows employees to organize, join or assist in organizing in order to collectively negotiate or bargain. MCL 423.8; MSA 17.454(8). Collective bargaining representatives are designated or selected by the majority of employees of a collective bargaining unit. MCL 423.26; MSA 17.454(28). An employer has an affirmative duty to bargain collectively with its employees’ representative. MCL 423.30; MSA 17.454(32).
We find that the statutory language of MCL 423.2(e); MSA 17.454(2)(e) provides an ambiguous definition of "employee.” Therefore we turn for guidance to the federal courts and to the National Labor Relations Act, 29 USC 151 et seq., after which the Michigan act was modeled. Rockwell v Crestwood School Dist, 393 Mich 616, 635-636; 227 NW2d 736 (1975), reh den 394 Mich 944 (1975), motion to set aside judgment den 399 Mich 1045 (1977), app dis 427 US 901; 96 S Ct 3184; 49 L Ed 2d 1195 (1976).
The nlra’s definition of "employee” is almost identical to Michigan’s definition. See 29 USC 152. However, the federal courts have held that handicapped workers in a workshop setting are not excluded as a matter of law from being "employees” unless the "guiding purpose” of the workshop operation is "rehabilitative” as opposed to "typically industrial.” Cincinnati Ass’n for the Blind v NLRB, 672 F2d 567, 571 (CA 6, 1982), cert den 459 US 835; 103 S Ct 78; 74 L Ed 2d 75 (1982). In conformity with the practice of the nlrb, a determination that the "guiding purpose” is "rehabilitative” or "typically industrial” is made on a case-by-case basis. Id. Where the "guiding purpose” is "rehabilitative” (i.e., primarily oriented toward providing social services to workers), the workers are not "employees” within the nlra’s definition. However, where the "guiding purpose” is "typically industrial” (i.e., where the rehabilitative purpose is subordinate to routine business considerations), the workers are "employees.” Id. at 571-572.
Common factors noted by the nlrb and the federal courts in finding the "guiding purpose” of workshop operations to be "typically industrial” include: whether the workshop was conducted for profit, whether workers are suspended or terminated for poor job performance, and whether workers are compensated based on work performance. A common factor in finding the purpose to be "rehabilitative” is whether placement of a worker in the workshop operation is temporary, as a means of training, pending placement in private industry. The focus is on factors which indicate that the workshop is operating to benefit the "workers,” as opposed to such benefit being incidental. Id.; NLRB v Lighthouse for the Blind of Houston, 696 F2d 399 (CA 5, 1983), reh den 703 F2d 557 (CA 5, 1983); Key Opportunities, Inc, 265 NLRB 1371 (1982); Goodwill Industries of Southern California, 231 NLRB 536 (1977).
The goal of statutory construction is to identify and give effect to the intent of the Legislature. Ballenger v Cahalan, 145 Mich App 811, 822; 378 NW2d 607 (1985). We believe that the above-described case-by-case approach, adopted by the nlrb and the federal courts, effectuates the legislative intent of the Michigan labor mediation act. Therefore we hold that handicapped or disabled workers in a Michigan workshop operation are not excluded as a matter of law from the Michigan labor mediation act’s definition of "employee,” but that they may be excluded if, on a case-by-case finding, the "guiding purpose” of the workshop is "rehabilitative” as opposed to "typically industrial.”
Although the commission correctly held that the existence of an employer/employee relationship does not necessarily preclude a rehabilitative relationship, it made no finding on the critical question of Westport’s "guiding purpose.” Therefore we remand to the commission for a finding on this issue.
Remanded. We do not retain jurisdiction._
MCL 423.27; MSA 17.454(29) provides in pertinent part:
When a petition is filed . . . [b]y an employee or group of employees, or . . . [a] labor organization acting in their behalf, alleging that 30% or more of the employees within a unit . . . wish to be represented for collective bargaining and that their employer declines to recognize their representative . . ., the commission shall investigate the petition and . . . provide an appropriate hearing after due notice. If the commission finds upon the record of the hearing that a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.
The Michigan labor mediation act, MCL 423.2(e); MSA 17.454(2)(e), provides the following definition of "employee”:
"Employee” includes any employee, and shall not be limited to the employees of a particular employer, unless the act explicitly provides otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any act which is illegal hereunder, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or any person at his home, or any individual employed by his parent or spouse, or any individual employed as an executive or supervisor, or any individual employed by an employer subject to the railway labor act, as amended, or by any other person who is not an employer as defined in this act.
This conclusion is consistent with the approach utilized by Michigan courts in determining whether workers are "employees” under the public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq. See Regents of the University of Michigan v Employment Relations Comm, 389 Mich 96, 107-110; 204 NW2d 218 (1973); Prisoners’ Labor Union v Dep’t of Corrections, 61 Mich App 328; 232 NW2d 699 (1975), lv den 394 Mich 843 (1975). Although neither of these cases involved handicapped employees in a workshop setting, they did focus on whether the employer/employee relationship was a traditional one in determining whether the workers involved were "employees.” | [
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ON REMAND
Before: R. M. Maher, P.J., and J. H. Gillis and Wahls, JJ.
Per Curiam.
This case is before us for a second time, on remand by the Supreme Court, to consider an issue that was not raised in the prior appeal and which was only recently addressed by an appellate court of this state for the first time in People v Fernandez (On Remand), 164 Mich App 485; 417 NW2d 540 (1987). 428 Mich 888 (1987). That issue is whether a person convicted of conspiracy to commit first-degree murder, MCL 750.157a and 750.316; MSA 28.354(1) and 28.548, may be, unlike a person convicted of the substantive crime, eligible for parole. In Fernandez, a two-member majority answered that issue in the affir mative. One member, Judge Gillis, dissented. For many of the reasons expressed by Judge Gillis in his dissent, we hold that a person convicted of the offense in question is not eligible for parole and, therefore, certify this case as being in conflict with Fernandez.
In finding that a person convicted of conspiracy to commit first-degree murder was parolable, the Fernandez majority principally relied on the fact that the offense was not expressly mentioned as being one for which there could be no parole in the "lifer law,” MCL 791.234(4); MSA 28.2304(4). 164 Mich App 487-488. The lifer law basically provides that persons sentenced to life imprisonment for first-degree murder or for a major controlled substance offense are not eligible for parole. All other prisoners may be eligible for parole after serving ten years of their sentences. Thus, except for first-degree murder and major controlled substance violations, the lifer law does not expressly exclude persons convicted of any other offenses from parole eligibility. Regardless of this, though, we cannot assign the same import to the Legislature’s silence as did the Fernandez majority.
A fundamental rule of statutory construction is that the Legislature is presumed to have knowledge of existing laws upon the same subject. People v Buckley, 302 Mich 12, 21; 4 NW2d 448 (1942). At the time the conspiracy statute was enacted, the lifer law had been in existence for many years. See Fernandez, supra, p 489 (Gillis, J., dissenting). Thus, the Legislature is presumed to have known that a person convicted of first-degree murder was not eligible for parole at the time it proclaimed that a "person convicted [of a conspiracy offense] shall be punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit . . . MCL 750.157a(a); MSA 28.354(1)(a). Because of this presumption of legislative knowledge — which was not rebutted in this case — we believe the Fernandez majority incorrectly interpreted the lifer law’s silence regarding parole eligibility for persons convicted of conspiracy to commit first-degree murder. Since the Legislature presumptively knew that conspiracy to commit first-degree murder was punishable by the same penalty as first-degree murder (including not being eligible for parole), we must conclude that had it intended otherwise it would have stated so expressly. Because the Legislature did not state that a person convicted of the conspiracy offense could be eligible for parole, we must infer that it did not intend such.
The language of the conspiracy statute itself, which speaks in terms of being punished by the same penalty as the substantive crime, supports our conclusion. While one may argue that parole eligibility is not appurtenant to a sentence imposed for a particular conviction, the same cannot be said for the penalty imposed. The lack of parole eligibility is undoubtedly a "penalty” imposed upon a person sentenced to life imprisonment for first-degree murder. Hence, the conspiracy statute mandates a like penalty for a person sentenced to life imprisonment for conspiracy to commit first-degree murder.
In closing, we emphasize that, as an appellate court, it is not our function to set the punishment parameters for the numerous criminal statutes. The Legislature, not the judiciary, has the exclusive power to designate both the grade of and the punishment for specific criminal offenses. See Const 1963, art 4, § 45; Attorney General v Recorder’s Court Judge, 341 Mich 461, 474-475; 67 NW2d 708 (1954); People v Rosecrants, 88 Mich App 667, 669; 278 NW2d 713 (1979); People v Shirley Johnson, 74 Mich App 652, 653; 255 NW2d 4 (1977). We must be careful not to substitute our judgment for that of the Legislature and disturb the proper exercise of its power. Here, the Legislature has proclaimed — if only by implication — that a person convicted of conspiracy to commit first-degree murder is a not eligible for parole. We are therefore bound by that proclamation.
Accordingly, defendant is held to be ineligible for parole. This case is certified as conflicting with the majority decision in Fernandez, supra. | [
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T. E. Jackson, J.
Plaintiff appeals as of right from an order of the Genesee Circuit Court granting defendants’ motion for summary disposition on the basis that plaintiff had no cause of action for money damages resulting from the unconstitutional zoning of plaintiffs land. We reverse.
Plaintiff owns a mobile home park in Grand Blanc, Michigan. He purchased additional acreage adjacent to the park for expansion purposes which was zoned R-3. This classification permitted single-family residences, but not a mobile home park. Plaintiff applied to the Grand Blanc Township Board of Trustees for rezoning to classification mh to allow for the expansion of the existing mobile home park. The defendant township board voted unanimously to rezone the acreage as requested. However, a subsequent referendum vote overturned the defendant’s decision and returned the acreage to its original R-3 zoning classification.
Plaintiff filed a complaint seeking injunctive relief and a declaratory judgment that the R-3 zoning classification was unconstitutional. Following a bench trial, the circuit court found that the zoning of plaintiffs property had resulted in an unconstitutional taking of private property without compensation and issued an order to rezone. The land has been rezoned. Defendants have not appealed the finding that an unconstitutional taking occurred.
Subsequent to the order, plaintiff was allowed to file a second amended complaint with regard to his claim for damages resulting from the taking. The circuit court granted defendants’ motion for summary disposition, dismissing with prejudice plaintiffs claims for money damages. In dismissing the claim, the circuit court held that plaintiff had no right to damages in tort or for compensation for an unconstitutional taking. The court rejected the constitutional claim because there was no showing of actual trespass by the defendants or that the defendants intended to use the property for governmental purposes. The court held that the town ship had been acting under its police powers without any intent to ultimately condemn the plaintiffs property for public use and, therefore, there could be no cause of action for money damages.
We agree with the circuit court that damages in tort are not available in the present action. Armstrong v Ross Twp, 82 Mich App 77; 266 NW2d 674 (1978). However, we hold that a claim for damages can be made where a court has found an unconstitutional taking of private property without compensation.
Michigan recognizes that the application of a zoning law to a particular property can constitute a taking. Spanich v Livonia, 355 Mich 252, 259-260, 265; 94 NW2d 62 (1959). Under the Michigan and United States Constitutions, a taking of private property entitles the owner to just compensation for the value of the property taken. Const 1963, art 10, § 2; US Const, Am V.
The lower court having found that the denial of rezoning was an unconstitutional taking of private property without compensation, and there being no appeal of that finding, the sole question before this Court is whether compensation is appropriate in these circumstances. Plaintiffs claim of entitlement to compensation is not the typical case where a plaintiff seeks recovery in a condemnation or inverse condemnation action or seeks damages for a permanent taking. Plaintiff seeks to recover damages for defendants’ temporary taking of his property which was accomplished through defendants’ police power of zoning. While there is abundant Michigan law on compensation for a permanent taking, plaintiff has presented a question not yet resolved by a Michigan court.
The United States Supreme Court, however, recently held that a governmental entity can be required under the Fifth Amendment to pay for "temporary” regulatory takings in First English Evangelical Lutheran Church of Glendale v County of Los Angeles, 482 US —; 107 S Ct 2378; 96 L Ed 2d 250 (1987).
In First English, the county used its police powers to pass an ordinance which prohibited building in an interim flood protection area which included Lutherglen, land owned and operated by plaintiff as a retreat arid recreational area. Plaintiff alleged .that the ordinance denied it all use of the land and sought damages for this deprivation. The California courts rejected the claim for damages and maintained that the only remedy available was to challenge the regulation.
The Supreme Court rejected this position. It restated the established doctrine that regulation that goes too far will be recognized as a taking. 107 S Ct 2386. Where government action works a taking, that necessarily implies the constitutional obligation to pay just compensation. Id. That the regulation was an interim one or could be invalidated did not preclude an award for damages. The Court held that " 'temporary’ takings . . . are not different in kind from permanent takings, for which the Constitution clearly requires compensation.” 107 S Ct 2388. Where government activities effect a taking, the mere invalidation of the offending ordinance does not relieve the government of its duty to provide compensation for the period during which the taking was effective. 107 S Ct 2389. The Court did not distinguish between takings accomplished by the use of police power or by eminent domain. The key consideration was whether there had been a taking.
In First English, the Court relied in significant part upon the dissenting opinion of Justice Brennan in San Diego Gas & Electric Co v City of San Diego, 450 US 621; 101 S Ct 1287; 67 L Ed 2d 551 (1981). In his dissent Justice Brennan accepted that a temporary taking could require compensation for reasons consistent with those adopted in First English.
While compensation for a temporary taking has not been addressed by the Michigan courts, our Supreme Court considered the concept of awarding damages for a temporary taking caused by zoning as set forth in San Diego to be "intriguing” and "appealing.” Schwartz v City of Flint, 426 Mich 295, 315, 324; 395 NW2d 678 (1986). We note that other states have relied on San Diego in holding that temporary takings are compensable in the zoning context. See Corrigan v City of Scottsdale, 149 Ariz 538; 720 P2d 513 (1986); Rippley v City of Lincoln, 330 NW2d 505 (ND, 1983); Sheerr v Evesham Twp, 184 NJ Super 11; 445 A2d 46 (1982).
The Schwartz Court discussed Justice Brennan’s San Diego dissent at some length but declined to fully consider or endorse the concept since plaintiff had not asked for temporary damages. However, the Court stated that if the temporary taking doctrine were to be accepted, "there must be no critical distinction between takings for obviously public purposes and those effected through normal zoning, assuming that a taking has been found.” Id. at 316, n 14 (emphasis in original).
We note that this Court in Kethman v Oceola Twp, 88 Mich App 94, 104-105; 276 NW2d 529 (1979), apparently would have been willing to sustain an award of damages for a temporary taking if a taking had been found. Kethman’s claim of damages was apparently for losses incurred while a zoning variance was illegally withheld. This Court affirmed the validity of the variance but rejected the damage claims based on contract and tort theories and because no taking had been found. However, on the taking claim, the Court observed:
[T]he trial court’s award of damages may be upheld, at least in part, if the facts of this case indicate that the defendant township has unconstitutionally taken private property for its own use. [Id. at 104.]
As in First English, and as noted in Schwartz, the controlling issue is whether a taking can be found.
The Genesee Circuit Court distinguished government interference through the power of eminent domain, which gives rise to a duty to compensate, from interference through police power, with no duty to compensate, relying on Charles v Diamond, 41 NY2d 318; 360 NE2d 1295 (1977), and 16A Am Jur 2d, Constitutional Law, §§365 and 408. The trial court held that no compensation is due for an unconstitutional taking by police power unless the government intends to eventually acquire ownership or the government has already intruded on the property. The sole remedy, according to the trial court, is to declare the regulation unconstitutional.
The First English Court rejected the argument that the only remedy is to challenge the regulation. That the right to compensation should not depend on whether the taking was accomplished by police power or by eminent domain is supported by the following language in Schwartz:
Police power regulations such as zoning ordinances and other land-use restrictions can destroy the use and enjoyment of property in order to promote the public good just as effectively as formal, condemnation or physical invasion of property .... "[T]he Constitution measures a taking of property not by what a State says, or by what it intends, but by what it does.” [Schwartz, supra at 315, n 14, quoting San Diego, supra (Brennan, J., dissenting).]
We hold that where there has been a finding of an unconstitutional taking of private property without compensation, the property owner is entitled under the Michigan Constitution to compensation for the period during which the taking was effective. That the township acted under its police power without any intent to ultimately condemn or acquire the property does not preclude a claim for compensation.
As to defendants’ argument that the referendum vote justifies denying damages, a referendum vote may not sanction and legitimize an unconstitutional zoning classification. Mohave Plantations, Inc v Rose Twp, 23 Mich App 232; 178 NW2d 499 (1970). The referendum vote does not preclude a finding that the resulting zoning classification was unconstitutional and resulted in a taking requiring compensation.
Defendants’ request for relief asks this Court to remand this case for reconsideration of the taking issue. If defendants disputed the lower court’s finding that the zoning was unconstitutional or resulted in a taking, they should have appealed the order to rezone and properly briefed the issue. We deny their request.
As to the compensation required, Justice Brennan proposed the following:
Ordinary principles determining the proper measure of just compensation, regularly applied in cases of permanent and temporary "takings” involving formal condemnation proceedings, occupations, and physical invasions, should provide guidance to the courts in the award of compensation for a regulatory "taking.” [San Diego, supra, 450 US 658-659.]
The proper measure of compensation and proof of damages are to be resolved by the circuit court upon remand.
The lower court’s dismissal of plaintiffs claim for damages is reversed. This case is remanded for a determination of damages for defendants’ taking of plaintiffs property.
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Per Curiam.
Petitioner appeals as of right from the Michigan Tax Tribunal’s judgment on remand from the Court of Appeals affirming respondent’s 1982 and 1983 tax assessments of petitioner’s twenty-eight-unit apartment building. We affirm.
This action arose out of a dispute concerning the 1982 and 1983 assessments of petitioner’s apartment building located at 1302 East Miller Road in the City of Lansing, Michigan, known as South-wind Apartments. The property was assessed at $210,800 for the 1982 and 1983 tax years, representing fifty percent of the true cash value (tcv). Petitioner contended that the tcv for the property should be $290,000 for each year, meaning that the assessment should have been based on $145,000 rather than the $210,800 figure.
At the hearing, petitioner offered the testimony of Kenneth Fowler, who purchased the property for petitioner in 1974 for approximately $267,000. Although the location of the building was not bad, Fowler stated that it had numerous deficiencies which decreased the property’s value. The property was built in 1973 on a very small lot with virtually no green area. The parking lot was in poor condition and the apartments were small. The heating system made the apartments difficult to heat, they had very little or no insulation, and the sewer clogged continuously and backed up into the apartments. The appliances were worn out, particularly the dishwashers, which leaked and caused severe problems. In 1979, the last year in which petitioner was directly involved in rentals at the building, there was a strong rental market, but the building had less then ninety percent average occupancy rate. Fowler called the property "a classic example of a building that is functionally obsolescent,” the "bottom of the barrel” in relation to neighboring apartment buildings.
In December, 1979, petitioner sold the property to Paul and Gloria Robbins under a land contract for $355,000. The amount of the down payment, $35,000, was low because petitioner encountered a difficult time in selling the property. The contract required monthly payments and periodic principal payments. The Robbinses made monthly payments until December, 1982, but failed to make two periodic payments of $8,200 on January 15, 1981, and January 15, 1982. The Robbinses and petitioner tried selling the property in 1981 and 1982. An offer of $250,000 was rejected by both.
In January, 1983, petitioner foreclosed on the property. A receiver was appointed to manage the property. The receiver listed the property with various real estate brokers. On July 31, 1983, the property was sold on a land contract for $305,000 to William Lockwood. Fowler regarded both land contract prices as having been too high, but the buyers presumably paid those prices because they thought they could "turn the property around” through good management.
On April 15, 1983, the city’s board of review assessed the property for tax year 1982 at $210,800, representing fifty percent of the tcv. This was also the assessed value for the 1983 tax year. On June 3, 1984, petitioner filed a petition with the Tax Tribunal for a review of the assessments. Petitioner requested that the assessments be reduced to reflect fifty percent of the property’s TCV.
At the hearing, petitioner contended that the city’s assessment level exceeded fifty percent of the tcv because it failed to consider the actual income of the property and other appropriate market data. Robbins had provided petitioner with an unverified 1981 total income from the building of $60,950, a figure which appeared reasonable to Fowler. Fowler, however, did not verify this figure. Robbins had written this figure on a legal pad and sent it to petitioner. Petitioner determined the present value of the property to be $230,766, utilizing the income method of valuation with a capitalization rate of twelve percent and net income of $27,692. Petitioner ultimately conceded that the tcv was $290,000.
The Lansing City Assessor appraised the property for 1982, and indicated the same value also applied to the 1983 tax year based on his subsequent appraisal. He considered all three traditional approaches to valuation, i.e., market, cost and income, but thought the market approach was the most useful, given a strong market for similar properties in Lansing.
The cost approach to valuation, made using the Marshall Valuation Service Manual, resulted in a value of $499,000 when land value was added. The assessor took this as an upper limit. He never used the cost approach alone to value a property.
In using the income approach, the assessor considered "economic rent,” essentially the rent that comparable units produced elsewhere in Lansing at the same time. He had no idea what rents were actually charged at Southwind Apartments, but based on his market assumptions, including a five percent allowance for vacancy and operating expenses lower than those testified to by petitioner, the assessor determined a net economic income value of $50,754. Applying a twelve percent capitalization rate, he valued the property at $423,000.
The assessor also considered the market approach. He examined several comparable sales to determine selling price per unit. He felt that the property is located in the Lansing "hot spot,” the only area of rapid development in the city. He visited all the comparables, and regarded most as very similar to Southwind Apartments in terms of their lack of amenities. After making the necessary adjustments to five comparables, the assessor concluded that the property’s value was $440,000. He made no adjustments for unit size, apparently concluding that the comparable apartments were the same. Two of the comparable sales were not within Lansing city limits.
The assessor visited the property in the summer of 1982, but did not look at the inside of the property until December 29, 1982, after he completed his appraisal report. He examined a one-bedroom and a two-bedroom apartment, both vacant. They appeared to be in a "little better condition” than the building’s exterior, which he described as "in need of attention.” He did not examine the appliances. Both units were smaller than the average equivalent apartment in Lansing.
The assessor’s visit did not change his mind about the tcv he had determined. The assessor knew of the 1979 land contract sale. He suggested that, as far as he knew, the $355,000 may have been fair market value at the time the property was first sold in 1979.
The Tax Tribunal ruled that the second land contract sale, which occurred seven months after the 1982 tax day, should be considered to. support the tribunal’s valuation conclusion. On February 6, 1985, the tribunal issued an opinion and judgment in which it affirmed the 1982 and 1983 assessments and the tcv of $421,600.
Subsequently, petitioner appealed from the tribunal’s decision to this Court. This Court issued an opinion in which it reversed and remanded to the tribunal for further consideration in light of this Court’s opinion. First City Corp v Lansing, unpublished opinion per curiam of the Court of Appeals, decided April 29, 1986 (Docket No. 83224). The Court held that remand was necessary because the tribunal failed to set forth the basis for its conclu sions of law which precluded this Court from determining whether the tribunal’s decision was supported by competent, material and substantial evidence and free of error of law or the adoption of wrong principles. This Court directed the following matters to be addressed on remand:
(1) What evidence has been reviewed?
(2) A finding as to the most appropriate method of valuation under the circumstances. The tribunal must make its own finding of true cash value in arriving at its determination of a lawful property assessment.
(3) Specifically, what weight, if any, was given to the two land contract sales?
(4) Whether the income approach is more suitable than the market approach under the facts of this case.
(5) What effect, if any, the city assessor’s post-inspection appraisal had upon his true cash value determination under the market approach.
(6) The possible effect of functional obsolescence upon the valuation approach which the Tax Tribunal ultimately adopts.
On January 12, 1987, the tribunal issued its decision on remand. On remand, the tribunal affirmed the original assessments. From this decision, petitioner appeals raising three issues.
First, petitioner contends that the tribunal did not comply with this Court’s April 29, 1986, opinion directing it to inquire whether there was competent, material and substantial evidence to support its decision. We disagree.
The standard of review for Tax Tribunal decisions in property tax valuation cases is limited. When fraud is not alleged, the question is whether the Tax Tribunal committed an error of law or adopted a wrong principle. This Court accepts the factual findings of the tribunal as final, provided that they are supported by competent, material and substantial evidence. Const 1963, art 6, § 28; Antisdale v Galesburg, 420 Mich 265, 277; 362 NW2d 632 (1984); Xerox Corp v Oakland Co, 157 Mich App 640, 647; 403 NW2d 188 (1987). A proceeding before the Tax Tribunal is de novo. MCL 205.735(1); MSA 7.650(35)(1). The burden of proof is on the taxpayer to establish the tcv of his property. MCL 205.737(3); MSA 7.650(37(3).
Petitioner contends that the tribunal’s decision on remand does not comport with this Court’s April 29, 1986, opinion. We do not agree. In order to facilitate appellate review, MCL 205.751; MSA 7.650(51) and MCL 205.726; MSA 7.650(26), the latter of which incorporates MCL 24.285; MSA 3.560(185) of the Administrative Procedures Act, require the tribunal to provide a concise statement of facts and conclusions of law. Plymouth Twp v Wayne Co Bd of Comm’rs, 137 Mich App 738, 756; 359 NW2d 547 (1984).
On remand, the tribunal set forth supplemental findings of fact and conclusions of law. In arriving at its conclusions of law, the tribunal set forth the evidence which it reviewed in rendering its decision. The tribunal reviewed the 1979 land contract sale and the contract price, the 1983 land contract and the contract price, the 1983 settlement agreement whereby the Robbinses quitclaimed the property to the Fowlers with a promissory note in the amount of $21,000, petitioner’s income approach statement, which included the actual income and expenses for the property for 1981 with a tcv figure of $230,766, and respondent’s December 31, 1981, and December 31, 1982, appraisal reports.
In addition, the tribunal considered all three methods of valuation. The tribunal concluded that the market approach was the most appropriate method under the circumstances to measure the present value of the future benefits of the ownership of the property due to the availability of sales data of similar properties. Petitioner’s income approach was considered to be flawed because it used actual income versus economic income. Petitioner’s income approach considered property taxes as an expense item as opposed to inclusion in the capitalization rate. Potential gross income is usually estimated at comparable market rent levels when the occupancy terms consist of short-term leases of five years or less. The tribunal also indicated that it considered the two land contracts, the postinspection appraisal and petitioner’s income approach and stated its reasons for ascribing little weight to these items in reaching its conclusions. Based on the foregoing, the tribunal’s decision was supported by competent, material and substantial evidence and it complied with this Court’s April 29, 1986, opinion.
Next, petitioner alleges that the tribunal adopted the wrong method of valuation and thereby committed an error of law. Specifically, petitioner complains of the tribunal’s use of the market rather than the income approach in determining the property’s tcv.
It is the duty of the tribunal to make an independent determination of tcv, utilizing an approach which provides the most accurate valuation under the circumstances of the individual case. Antisdale, supra, p 277. "Cash value” means "usual selling price,” meaning the price which would be obtained at a private sale rather than at a forced sale. MCL 211.27; MSA 7.27. "True cash value” and "fair market value” are synonymous. CAF Investment Co v State Tax Comm, 392 Mich 442, 450; 221 NW2d 588 (1974).
Generally, there are three accepted methods of valuation: the capitalization-of-income approach (income method), the cost-less-depreciation approach (cost method), and the market approach. Antisdale, supra, pp 276-277. In the instant case, we believe the Tax Tribunal properly selected the market approach as the most accurate method. This method was utilized due to the availability of sales data of similar properties. If the appraisal method is acceptable and reasonably related to fair market valuation, the method is an acceptable indicator of the tcv of the real property. CAF, supra, p 450, n 2. In this case, petitioner’s proofs did not establish the tcv since it offered two land contracts and unverified income and expense information for 1981 and only estimates for 1982. Thus, the tribunal’s method was appropriate under these circumstances.
Finally, petitioner alleges that the tribunal erred by not considering functional obsolescence in the valuation of the property. We disagree. Our careful review of the tribunal’s decision indicates that the tribunal specifically addressed this matter. The tribunal indicated that the comparable properties, from the sale of which a valuation had been reached, were constructed from 1966 to 1973. The tribunal stated that this comparability of age and quality inherently has recognized functional obsolescence with the sales comparison method and further supports the market approach as the proper method of valuation. Thus, we find no error.
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Per Curiam.
Plaintiff, Industrial Steel Stamping, Inc. (iss), appeals as of right from the trial court’s grant of summary disposition under MCR 2.116(C)(7) in favor of defendant, Erie State Bank. We reverse.
The parties’ dispute stemmed from iss’s discovery that its controller, Debra Carattoni, diverted corporate funds on deposit with defendant to her personal use. Iss’s amended complaint, filed in March, 1981, sought in excess of $300,000 from defendant for its alleged negligence, breach of contract, and breach of statutory warranties in allowing Carattoni to withdraw the corporate funds. Defendant filed a third-party complaint against Carattoni alleging fraud and seeking indemnity or contribution.
In 1985, defendant moved for summary disposition under MCR 2.116(C)(7), alleging that iss’s claims were barred by an agreement executed by Carattoni and George Berbynuk on August 2, 1980, because it constituted an accord and satisfaction as to all funds withdrawn by Carattoni. The agreement was executed at a time when Berbynuk was suing iss’s officers and directors for ownership and control of iss. The agreement provided that Berbynuk, as the sole owner of iss, agreed not to institute any criminal, civil or other actions against Carattoni, and that "any and all corporate funds that have been diverted by Carattoni for non-corporate uses will be treated as a non-interest bearing loan to be repaid over a period of ten years.” By comparison, Carattoni agreed to the following:_
1. That she will actively and aggressively participate in the litigation by Berbynuk, et al against Industrial Steel Stamping, Klh Industries, Howard Harmon, et al, including but not limited to affidavits of facts and court appearances, as well as production of documents in her possession.
2. That she will assist in the structuring of corporate books and records, cooperating with whomever Berbynuk elects to act as his representative or Certified Public Accountant.
It is undisputed that Berbynuk eventually obtained full control of iss.
In an opinion dated February 19, 1986, the trial court granted defendant’s motion based on its determination that, upon being executed, the agreement constituted a valid accord and satisfaction. Applying the contribution-release statute for joint tortfeasors, MCL 600.2925d(b); MSA 27A.2925(4)(b), to the agreement, the trial court concluded that iss’s negligence claim against defendant had been reduced to zero.
On appeal, iss challenges the trial court’s grant of summary disposition under MCR 2.116(C)(7) in favor of defendant on various grounds. MCR 2.116(C)(7) provides for the dismissal of a claim where barred because of "release, payment, ... or other disposition of the claim before commencement of the action.” The affidavits, together with the pleadings and proofs then filed or submitted by the parties, must be considered. MCR 2.116(G)(5). Summary disposition is appropriate if the pleadings show that a party is entitled to a judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact. MCR 2.116(I)(1).
First, iss argues that the agreement was not binding on it. The trial court found that Berbynuk, as the owner of iss, had authority to bind iss and that the text of the agreement reflected such an intention.
In this state, the law treats a corporation as entirely separate from its shareholders, even where one person owns all the corporate stock. Kline v Kline, 104 Mich App 700, 702; 305 NW2d 297 (1981). The general view taken is that a contract made by a sole shareholder or controlling shareholder is not ordinarily binding on the corporation. 18A Am Jur 2d, Corporations, § 746, pp 615-616. However, the complete identity of interest between the sole shareholder and the corporation may lead the court to treat them as one for certain purposes. Each case should be decided on its own underlying facts. Williams v American Title Ins Co, 83 Mich App 686; 269 NW2d 481 (1978). One justification for looking beyond a corporate entity is to accomplish a just result. Om-El Export Co, Inc v Newcor, Inc, 154 Mich App 471, 480; 398 NW2d 440 (1986), lv den 426 Mich 878 (1986).
Here, Berbynuk and Carattoni executed the agreement at a time when Berbynuk and iss’s officers and directors were in the midst of litigation over who had a right to control and own iss. A primary purpose of the agreement, as manifested from its unambiguous language, was that Carattoni assist Berbynuk in his lawsuit. The agreement plainly states Berbynuk’s intent, as sole shareholder, to bind iss to the agreement in order to accomplish that purpose. It is well settled that a contract which is unambiguous must be enforced as written. Zinchook v Turkewycz, 128 Mich App 513, 521; 340 NW2d 844 (1983), and Shaffner v Riverview, 154 Mich App 514, 520; 397 NW2d 835 (1986). For these reasons, and because no genuine issue of fact has been shown, we conclude that the trial court correctly treated Berbynuk as having the authority and intent to bind iss to the agreement. The peculiar facts of this case justify looking beyond the corporate entity and treating Berbynuk and iss as one for purposes of the agreement.
The principal claim made by iss is that the trial court incorrectly characterized the agreement as containing an accord and satisfaction which became enforceable upon being executed. Iss argues that the agreement was too vague to enforce and, at best, contained a covenant not to sue which did not bar its claim. Although we disagree with iss’s precise argument, we find that the trial court misconstrued the agreement.
A covenant not to sue is an agreement where one party pays agreed damages or buys his peace of mind against a cause of action asserted by the other, positively or tentatively. Weast v Duffie, 272 Mich 534, 540; 262 NW 401 (1935). It is distinguishable from a release in that the covenant not to sue does not extinguish the cause of action. As between the parties to the agreement, the result is the same. The difference is its effect on third parties. 66 Am Jur 2d, Release, §2, p 679. At common law, the determination of whether a contract contained a mere covenant not to sue or a release was significant because the covenant did not release a party’s claims against other joint wrongdoers while the release did. See Boucher v Thomsen, 328 Mich 312; 43 NW2d 866 (1950), and Lincoln v Gupta, 142 Mich App 615, 621; 370 NW2d 312 (1985), lv den 424 Mich 874 (1986). Under present Michigan law, the distinction is not significant. A release of one tortfeasor no longer releases the others unless the terms of the release so provide. MCL 600.2925d(a); MSA 27A.2925(4)(a). Under either characterization, a party’s claim against other tortfeasors is reduced by the amount stipulated to in the release or covenant. MCL 600.2925d(b); MSA 27A.2925(4)(b).
An accord and satisfaction is more than a release of a claim. An accord and satisfaction requires that the claim be disputed and the substituted performance be agreed upon and accomplished. Gitre v Kessler Products Co, Inc, 387 Mich 619, 624; 198 NW2d 405 (1972). An essential requirement is a "meeting of the minds.” Grettenberger Pharmacy, Inc v Blue Cross-Blue Shield of Michigan, 98 Mich App 1, 13; 296 NW2d 589 (1980), lv den 410 Mich 910 (1981). A claim founded on a tort may be the subject of an accord and satisfaction and may be discharged thereby. Belrose v Kanitz, 284 Mich 497, 502; 280 NW 33 (1938).
Applying these principles to this case, it is clear that the agreement contained a covenant not to sue. Berbynuk, as owner of iss, agreed not to institute any criminal, civil or other actions against Carattoni. This covenant not to sue, however, was only one part of the agreement. The agreement also contained an accord, meaning a meeting of the minds upon the proposition that something new would be substituted for existing claims, and a satisfaction or at least some legal excuse for not performing and carrying out the accord. See Stadler v Ciprian, 265 Mich 252, 262; 251 NW 404 (1933). The accord is manifested by the parties’ clear intent to extinguish Carattoni’s obligation to make immediate restitution and to substitute a new obligation in the form of a ten-year loan. All that remains is to ascertain the amount of diverted funds from business and bank records. Since the amount was capable of ascertainment, we reject iss’s argument that the agreement was too vague to enforce. See Linnen v Ken Brown Leasing Corp, 5 Mich App 394, 397; 146 NW2d 719 (1966).
Our above conclusions do not, however, end the inquiry for there are two recognized types of accord and satisfaction agreements:
"1. Where the agreement of the creditor is to accept the performance of the debtor’s new promise or agreement in satisfaction of the demand.
"2. Where such promise or agreement itself, based upon sufficient consideration, is accepted in satisfaction of the demand. 2 Chitty on Contracts (11th Am Ed), p 1124.
"And in this class of cases it must clearly appear that the intention of the party was to accept such promise, and not the performance, in satisfaction of the original demand. In the first class of cases the accord must be fully executed to bar an action on the original demand. 1 Cyc p 312, and cases cited. In the second class the original demand is extinguished, and cannot be the foundation of an action.” [Fricke v Forbes, 294 Mich 375, 381; 293 NW 686 (1940), quoting Henderson v McRae, 148 Mich 324, 327-328; 111 NW 1057 (1907).]
Here, the trial court’s characterization of the agreement as creating enforceable promises upon being executed comes within the second class of agreements, qualified only by the trial court’s determination that MCL 566.1; MSA 26.978(1) obviates the need for consideration. While the trial court’s interpretation of this statute may be correct, we find that the trial court’s determination that the accord and satisfaction contained in the agreement was enforceable upon being executed is contrary to the parties’ "meeting of the minds” as expressed in the agreement.
The accord and satisfaction contained in the agreement is found in Berbynuk’s promise, as owner of iss, to convert Carattoni’s immediate obligation to make restitution to a ten-year loan. However, other covenants in the agreement pertaining to Berbynuk’s litigation for ownership and control of iss make it clear that Berbynuk’s promise was dependent on Carattoni’s performing her obligation to assist him. The significance of characterizing the covenant as "dependent” was explained in 17A CJS, Contracts, § 344, p 330, as follows:
Agreements are dependent where performance by one party is conditioned on, and subject to, performance by the other. Covenants or stipulations are independent when the consideration of the stipulation on one side is a mutual promise on the other, and an actual performance or tender is not required, the remedy on both sides being by action.
Pertinent guidelines for determining whether covenants within a contract are dependent or independent are as follows:
(1) The intention of the parties, as evidenced by the contract language, subject matter and object to be attained; (2) the inherent justice of the situation; (3) the relative materiality of the breached covenant; (4) order of time of performance of the respective covenants; (5) whether the breached covenant was only part of the consideration to be given and was compensable in damages and was incidental to the main purpose of the contract. [Bobenal Investment, Inc v Giant Super Markets, Inc, 79 Mich App 31, 42; 260 NW2d 915 (1977), lv den 402 Mich 870 (1978).]
Our application of these guidelines to the agreement persuades us that the covenants were dependent in nature. Because the factual issue whether Carattoni. performed as obligated by the agree ment was not resolved below, we reverse the trial court’s grant of summary disposition in favor of defendant.
As one final point, we note that the trial court limited its application of the contribution-release statute, MCL 600.2925d(b); MSA 27A.2925(4)(b), to iss’s separate "negligence” claim against defendant. The trial court did not expressly address iss’s contractual and statutory claims, although the order appealed from decrees a judgment of no cause of action against iss. The contribution-release statute applies only to tortfeasors sharing a common burden of liability in tort. See O'Dowd v General Motors Corp, 419 Mich 597; 358 NW2d 553 (1984). Accordingly, on remand, the setoff provisions of the statute should only be applied to iss’s negligence claim. We express no opinion on whether iss has sufficiently set forth claims that do not sound in tort.
Reversed and remanded. Jurisdiction is not retained. | [
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Per Curiam.
Appellant, the Second Injury Fund (SIF), appeals by leave granted the reversal by the Worker’s Compensation Appellate Commission of a magistrate’s dismissal of the SIF from the proceedings below. We reverse and remand.
Plaintiff was a certified vocationally disabled employee hired by TPM, Inc., in 1991 as a maintenance worker. TPM was the management company running a housing project known as West Highland Limited Housing Association. In 1992, plaintiff was diagnosed with and underwent surgery for caipal tunnel syndrome. While plaintiff was off work, TPM, through its carrier, Continental Casualty Company, voluntarily paid worker’s compensation benefits to plaintiff.
Plaintiff returned to work in January 1993, but suffered recurrent carpal tunnel syndrome complications. As a result, in June 1994, plaintiff was no longer able to work. TPM, through Continental Casualty, continued to voluntarily pay benefits to plaintiff.
In 1998, plaintiff filed the instant petition seeking an upward adjustment in the amount of benefits he was receiving. Plaintiff alleged two injury dates, June 1992 and June 1994. During the course of the proceedings below, it was determined that another insurance company, Accident Fund Company, not Continental Casualty, was TPM’s carrier after September 15, 1992. As a result, Continental Casualty sought reimbursement from Accident Fund for benefits it paid plaintiff after that date. Continental Casualty also sought to join the SIF in the matter. Pursuant to MCL 418.921, an employer who employs a certified vocationally disabled employee is liable for benefits accruing during the first fifty-two weeks after the injury, and, as long as specified certification and notice requirements are met, the sif is liable for benefits after the first fifty-two weeks.
The magistrate found an injury date of June 7, 1994. Accident Fund was ordered to pay wage-loss benefits to plaintiff and to reimburse Continental Casualty for the benefits it paid to plaintiff after September 15, 1992. In addition, the magistrate dismissed the SIF from the action because the certification sent to the SIF upon plaintiffs hire listed West Highland, not TPM, as plaintiffs employer and because the sif was not timely notified of plaintiffs injury and the sif’s potential liability.
The magistrate’s decision was appealed to the WCAC. The WCAC affirmed the injury date and award of benefits, but reversed the magistrate’s decision regarding the sif’s liability. According to the WCAC, the error on the certification form sent to the sif upon plaintiff’s hire was inadvertent and did not prejudice the SIF, and the failure to timely notify the SIF of its potential liability was not fatal to a claim for reimbursement. As a result, the WCAC ordered the sif to reimburse Continental Casualty and Accident Fund for benefits paid after the first fifty-two weeks. The SIF sought leave to appeal the wcac’s decision. We granted leave.
First, the sif claims that the wcac’s decision is incorrect because TPM failed to comply with the certification requirement of MCL 418.911. We disagree.
As mentioned, pursuant to MCL 418.921, an employer who employs a certified vocationally disabled employee is hable for benefits accruing during the fifty-two weeks after the date of a personal injury suffered by such an employee where that injury arises out of, and in the course of, the employment. After the first fifty-two weeks, the sif is liable. However, under MCL 418.911, if the employer does not file certification forms with the sif upon the commencement of employment of a certified vocationally disabled employee or before an injury occurs, the employer is precluded from the protection of MCL 418.921.
In the case at bar, there is no dispute that plaintiff is a certified vocationally disabled employee. The issue is whether plaintiff’s employer complied with the requirement of filing the certification forms.
Upon hiring plaintiff, a certification form was submitted. However, the employer on the form was listed as West Highland, not TPM. The magistrate concluded that this fact precluded the SIF from liability. However, the wcac reversed this finding. According to the WCAC:
In this case the failure to list the correct employer was an inadvertent error, with neither any intent to deceive or prejudice the fund nor with any resulting actual prejudice. First, the employer representative Ms. Anzalone, testified that the names were used interchangeably. Second, communication directed to Ms. Anzalone at West Highland was received and processed. Third, there is no claim nor any evidence in support of the notion that plaintiff would not have been certified had the proper employer been listed. Fourth, the fund became a participant in the proceedings and was fully able to protect its interests on the questions of work-related injury and disability. Thus, we reverse the determination of the magistrate that the fund was not liable for reimbursement of benefits pursuant to section 921.
The WCAC’s finding that the names West Highland and TPM were used interchangeably was one of fact and is supported by the record. As a result, that finding is conclusive. See Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 701; 614 NW2d 607 (2000).
The question then becomes whether, even assuming the names are used interchangeably, the mistake renders the filing of the certification form ineffective as a matter of law and precludes the SIF from becom ing liable for the payment of plaintiffs benefits. We answer that question in the negative.
The sif cites Robinson v General Motors Corp, 242 Mich App 331; 619 NW2d 411 (2000), in support of its claim. However, Robinson is of little value in this regard because it deals with notice under MCL 418.925(1), not MCL 418.911.
The sif cites the case, by analogy, for the proposition that the certification forms are mandatory. We agree that the certification forms are mandatory. However, the precise issue presented here is whether the certification form that was submitted in the instant case was sufficient to satisfy that mandatory requirement. Robinson offers no assistance in the resolution of this issue. In our opinion, in light of the fact that the names West Highland and TPM are used interchangeably, and in the absence of any authority that renders the wcac’s decision an error of law, we are simply not persuaded that the sif is entitled to any relief on this issue.
Next, the sif claims that TPM failed to comply with MCL 418.925(1), which states, in part:
Not less than 90 nor more than 150 days before the expiration of 52 weeks after the date of injury, the carrier shall notify the fund whether it is likely that compensation may be payable beyond a period of 52 weeks after the date of injury.
In the case at bar, the magistrate concluded that TPM failed to comply with the above notice provision. The wcac reversed the magistrate’s decision, stating:
[Defendants were not paying benefits nor did plaintiff even seek benefits from them until more than four years after the new date of ipjury. As a result, appellants [TPM and Accident Fund] were neither paying benefits nor were they even aware of a claim against them. Section 925(1) presumes not only an awareness of a claim but also actual payment of benefits.
MCL 418.925(1) specifically places the burden of notifying the SIF on the “carrier.” In this case, the “carrier” for a June 1994 injury was Accident Fund, and Accident Fund was unaware of the injury until 1998, well outside the notice period set forth in MCL 418.925(1). The question then becomes whether the wcac committed an error of law in concluding that, in light of the fact that Accident Fund was unaware of plaintiffs claim for benefits until after the notice period set forth in MCL 418.925(1) expired, the failure to comply with the notice provision did not preclude the sif’s liability. In support of its claim that the wcac did err, the SIF again cites Robinson, supra.
We do find Robinson instructive on this issue. In Robinson, supra at 334-335, this Court held that MCL 418.925(1) imposes a “mandatory notice requirement” and that failure to comply with that requirement precludes the sif’s liability. Therefore, compliance with the notice provisions of 418.925(1) is “mandatory,” and in the case at bar, it is undisputed that notice was not given within the period set forth in that subsection. In light of Robinson and the wcac’s failure to cite any authority for its conclusion that this “mandatory” notice requirement can be waived, we conclude that the wcac’s decision amounted to an error of law.
The WCAC also appeared to support its decision by relying on MCL 418.931(1), which states:
If an employee was employed under the provisions of this chapter and a dispute or controversy arises as to payment of compensation or the liability therefor, the employee shall give notice to, and make claim upon, the employer as provided in chapters 3 and 4 and apply for a hearing. On motion made in writing by the employer, the director, or the worker’s compensation magistrate to whom the case is assigned, [sic] shall join the fund as a party defendant.
According to the wcac, MCL 418.931 specifically covers situations, such as the instant case, where there is a dispute or controversy regarding the payment of compensation, whereas MCL 418.925(1) applies to voluntary payment cases. While it did not clearly say so, the wcac seemed to indicate that MCL 418.931, not MCL 418.925(1), applied to the instant case.
To the extent the wcac did arrive at such a conclusion, we disagree. MCL 418.925(1) states that when a vocationally disabled person receives an injury, “the procedure and practice provided in this act applies to all proceedings under this chapter, except where specifically otherwise provided herein.” We find nothing in the rest of MCL 418.925(1) that specifically limits the notice requirement therein to situations where the benefits are voluntarily paid, nor anything in MCL 418.931 that specifically limits its application to situations where there is a dispute concerning the payment of benefits. Therefore, to the extent the wcac concluded that MCL 418.925(1) was inapplicable to the instant case, it committed an error of law.
We reverse and remand to the wcac for further proceedings consistent with this opinion. We do not retain jurisdiction. | [
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Griffin, P.J.
Defendant wife, Dale Stoudemire, appeals and plaintiff husband, Robert Stoudemire, cross appeals a judgment of divorce entered by the Oakland Circuit Court, Family Division. We affirm.
i
The parties were married in 1983 in Detroit. Plaintiff was forty-one years old at the time of the marriage and was employed as a laborer at Chrysler Corporation. Defendant, who was twenty-eight years old when the parties married, was employed as a nursing assistant. The parties had no biological children together. After the marriage and until 1991, both parties worked and contributed to the payment of marital expenses. In September 1991, the plaintiff was driving his vehicle when it was struck by a disposal truck, causing plaintiff to suffer a severe closed head injury requiring brain surgery. Plaintiffs recovery was prolonged; defendant quit her job to assist in his recovery. Defendant obtained training in physical therapy in order to aid her husband, and she took care of his daily needs.
In February 1992, defendant was appointed plaintiff’s guardian and conservator of his estate by Judge Martin Maher of the Wayne County Probate Court. A lawsuit was then filed against the disposal company in the Wayne Circuit Court (by defendant individually and as guardian and conservator) and the case was settled in June 1993 for $3.5 million. In her capacity as conservator, defendant stipulated a Wayne Circuit Court order that awarded her $1,330,492.88 for her loss of consortium claim, awarded a one-third attorney fee of approximately $1,166,666 to her personal injury attorney, and awarded plaintiff $1,000,000 in a structured settlement for his severe closed head injury. Contrary to the directions of Judge Maher, defendant did not obtain the approval of the Wayne County Probate Court before acceptance of the settlement.
A spending spree followed and the parties used the settlement monies to purchase expensive consumer items such as cars, jewelry, furs, and clothing. Defendant used a portion of the settlement proceeds to make a large “loan” to her church without plaintiff’s consent or authorization. Although both parties participated in spending, plaintiff remained legally incapacitated until February 1995, when the probate court issued an order restoring his competency. Defendant continued to act as conservator until that time. Plaintiff evidently engaged in extramarital affairs during this period.
In March 1995, plaintiff filed for divorce in the Oakland Circuit Court and also filed an action in the Wayne County Probate Court seeking an accounting by defendant as conservator of his estate. The divorce action was held in abeyance by the circuit court until an accurate determination of the marital assets could be made. The probate court case was litigated over the course of the next fflz years, resulting in findings of fact and conclusions of law, as well as a final order issued by Judge Maher on December 17, 1998. The probate court found in pertinent part that defendant, as guardian and conservator, had breached her fiduciary duty to plaintiff as ward, that the settlement entered into by defendant as guardian and conservator “shocked the conscience” of the probate court, and that if defendant had proceeded properly in the personal injury action and sought damages for a loss of consortium claim, the proper measure of her dam ages for that claim would have been twenty-five percent of the total settlement award. The probate court accordingly reduced the award for loss of consortium to $557,623 and imposed a surcharge. The probate court further held that defendant was not entitled to any fiduciary fees for assisting plaintiff in pursuing his claim or fees for performance of caretaking duties. The net balance of the personal injury proceeds were awarded to plaintiff. No allocation was made for pain or suffering or lost wages in either the personal injury action or the probate litigation. Neither the circuit court personal injury settlement nor the probate court decision was ever appealed.
In May 1999, plaintiff brought a motion for partial summary disposition pursuant to MCR 2.116(C)(10) in the divorce action, alleging that Judge Maher’s findings were res judicata regarding the separate assets of the parties and the issues regarding defendant’s surcharge as conservator of plaintiff’s estate. In June 1999, Judge Linda S. Hallmark of the circuit court family division granted plaintiff’s motion, ruling that the probate court’s findings regarding the distribution of the settlement proceeds and the accountings of the conservator were res judicata with respect to those issues. However, the court also held that the probate court lacked jurisdiction to apportion the marital estate or to determine whether the separate estate of either party should be invaded in the context of the divorce proceedings, either for an additional award of property or for spousal support. The parties were ordered to proceed to trial on the issue of division of joint property, including the marital home, its contents, a pension plan, and the issue whether the parties’ separate property should be invaded.
A five-day trial ensued in June 1999. The circuit court found that both parties were equally at fault regarding the marital breakdown: plaintiffs affairs contributed to the breakdown of the marriage, and defendant’s mishandling of the conservatorship also served to destroy the relationship between the parties. The primary issue in dispute was the distribution of proceeds from the personal injury action filed diming the marriage. The circuit court determined that plaintiff had separate property consisting of proceeds for his pain and suffering, defendant had separate property consisting of proceeds for loss of consortium, and the lost wages portion of the settlement, determined to be approximately $17,000, was split evenly between the parties. In her twenty-eight page written opinion and order, Judge Hallmark made extensive findings regarding the circumstances of the marriage and the division of other assets. A judgment of divorce was entered on September 22, 1999.
n
On appeal, defendant first contends that the trial court erred in granting partial summary disposition in favor of plaintiff on the basis of its conclusion that res judicata applied with regard to the probate court judgment. Defendant maintains that the subject matter of the probate court proceedings was different from, and therefore not conclusive of, the issues raised in the divorce action; the probate court dealt only with a fiduciary’s duties to the ward, and the breach thereof, and not with matters of divorce. Citing York v Wayne Co Sheriff, 157 Mich App 417, 424-425; 403 NW2d 152 (1987), defendant further argues that the doctrine of res judicata is inapplicable where one action is brought in a party’s representative capacity and another, subsequent action is brought in a party’s individual right.
This Court reviews a trial court’s decision on a motion for summary disposition pursuant to MCR 2.116(C)(7) de novo to determine whether the moving party was entitled to judgment as a matter of law. Limbach v Oakland Co Bd of Co Rd Comm’rs, 226 Mich App 389, 395; 573 NW2d 336 (1997). The applicability of the doctrine of res judicata is a question of law that is also reviewed de novo. Ditmore v Michalik, 244 Mich App 569, 574; 625 NW2d 462 (2001).
Judge Hallmark granted plaintiff’s motion for partial summary disposition, holding, in pertinent part, that (1) the findings of fact and conclusions of law in the Wayne County Probate Court’s final order of December 17, 1998, were binding on the parties as res judicata, (2) the property awarded to plaintiff by the probate court judgment was his sole and separate property, the property awarded to defendant was her sole and separate property, and the joint and separate property was part of the marital estate, (3) the parties were to proceed to trial on the division of joint prop: erty, including the marital home, its contents, and a Chrysler pension plan, and (4) the parties were to proceed to trial to determine the necessity of invading the separate property under MCL 552.23, including distribution of the future lost wages portion of the personal injury award of plaintiff and spousal support. In her subsequent opinion and order resolving the divorce action, Judge Hallmark further explained with regard to plaintiff’s motion for partial summary disposition:
Counsel for plaintiff brought a Motion for Partial Summary Disposition in the divorce action on May 26, 1999, urging this court to adopt Judge Maher’s findings as res judicata regarding the separate assets of the parties and the issues regarding surcharge of Mrs. Stoudemire as conservator of Mr. Stoudemire’s estate. This court determined that Judge Maher’s findings regarding the distribution of the settlement proceeds and the accountings of the conservator were res judicata as to those issues. See Howell v Vito’s Trucking & Excavating, 386 Mich 37; 191 NW2d 313 (1971) .... The Probate Judge lacked jurisdiction, however, to apportion the marital estate or to determine whether the sole and separate property of either party should be invaded pursuant to MCLA 552.23 or MCLA 552.401. See McCormick v McCormick, 221 Mich App 672, [681]; 562 NW2d 504 (1997). The issue of future spousal support was also reserved for decision by the Family Division Judge.
* * *
Neither the June 17, 1993 Circuit Court settlement or [sic] Judge Maher’s December 17, 1998 decision in the probate action were [sic] ever appealed.
Judge Maher was the only judge to hear and carefully review the award of the personal injury claim. He had jurisdiction to determine the issues relating to the conservator-ship, including the amount of property each party should have been awarded in the personal injury action and whether Mrs. Stoudemire breached her fiduciary duty as conservator in approving the personal injury settlement. He also had jurisdiction to decide whether expenditures made by the conservator were allowed and whether a surcharge should be imposed. This court has ruled pursuant to an order dated June 17, 1999 that Judge Maher’s decisions regarding the appropriation of the personal injury award and the separate property awarded to each of the parties as personal injury proceeds is res judicata. It is, however, for this court to determine the marital estate of the parties and whether the separate estate of either party must be invaded in the context of the divorce proceedings either for an additional award of property (MCLA 552.23 or MCLA 552.401) or for spousal support.
A review of the record leads to the conclusion that the trial court did not err in granting partial summary disposition in favor of plaintiff. Res judicata bars re-litigation of claims that are based on the same transaction or events as a prior suit. Ditmore, supra at 577. Res judicata applies when (1) the prior action was decided on the merits, (2) the decree in the prior decision was a final decision, (3) both actions involved the same parties or their privies, and (4) the matter in the second case was or could have been resolved in the first. Id. On the basis of these principles and for the sound reasons stated by the trial court, Judge Hallmark was correct in determining that the prior judgment rendered in the accounting action brought by plaintiff against defendant for her breach of duties as conservator of his estate is res judicata regarding the issues decided. While the probate court lacked authority to apportion the marital estate, McCormick v McCormick, 221 Mich App 672, 681; 562 NW2d 504 (1997), it was within its authority to determine the separate assets of the parties arising out of the personal injury settlement. Moreover, contrary to defendant’s argument, the fact that she was acting in a representative capacity in the probate court action does not preclude the operation of res judicata in the divorce action. As recognized by the trial court in its citation of Howell v Vito’s Trucking & Excavating, 386 Mich 37, 45; 191 NW2d 313 (1971), where a party to one action in his individual capacity and to another action in his representative capacity is in each case asserting or protecting his individual rights, res judicata may still be applied. See also York, supra at 424-425. In the probate court accounting action, in light of defendant’s very large loss of consortium award, it is readily apparent that defendant was protecting and defending the challenge to her individual rights. Thus, res judicata applies.
Finally, in granting plaintiff’s motion for partial summary disposition, the trial court gave plaintiff precisely the relief he requested. Thus, his current contention in his cross appeal that the trial court did not go far enough and should have ruled that res judicata applied to all matters decided by the probate court is disingenuous and has no basis in the record. As the trial court astutely noted, the probate court did not have jurisdiction to delve into the divorce issues. McCormick, supra. Plaintiff’s argument is also based on the faulty presumption that all the settlement proceeds awarded to him by the probate court represented damages for pain and suffering, not lost wages. See text, part IV.
m
Defendant next contends that the trial court abused its discretion by disregarding the actions of plaintiff, who allegedly dissipated assets during the pendency of the divorce action contrary to the terms of a mutual restraining order. Defendant claims that in addition to the unauthorized spending of $32,000 on attorney fees, plaintiff also violated the mutual restraining order by spending monies from certain accounts, totaling over $220,000. Defendant maintains that the trial court abused its discretion in refusing to forfeit any of these assets wrongfully taken and concealed by plaintiff. We disagree.
The trial court addressed this issue in its opinion, stating:
A lump sum payment of $100,000 on November 16, 1996, was received by Mr. Stoudemire during the pendency of this action. Mr. Stoudemire testified that $32,000 was paid to his attorney for fees and the balance was used for living expenses and to attend court appearances from his home in Alabama. Mrs. Stoudemire has argued that the $32,000 expenditure for attorney fees was in violation of the court’s mutual marital asset restraining order dated April 6, 1995. Mr. Stoudemire argued that the expenditure for attorney fees was made “in the ordinary course of business” and does not constitute a violation of the restraining order. Mrs. Stoudemire is also seeking reimbursement to the estate for the . . . amounts [totaling approximately $220,000]:
•1: * *
The court recognizes that this action was filed on March 22, 1995. Both parties have spent substantial assets since that time for which they have not accounted. Mr. Stoudemire was obligated to pay substantial spousal support and had expenses for travel and attorney fees in connection with the litigation. Given the long period of separation and ongoing litigation, the court finds that neither party violated the Mutual Restraining Order and neither party will be required to return assets to the estate.
The standard of review in divorce proceedings has been stated in Sands v Sands, 442 Mich 30, 34; 497 NW2d 493 (1993):
In deciding a divorce action, the circuit court must make findings of fact and dispositional rulings. On appeal, the factual findings are to be upheld unless they are clearly erro neous. Beason v Beason, 435 Mich 791; 460 NW2d 207 (1990). A dispositional ruling, however, “should be affirmed unless the appellate court is left with the firm conviction that [it] was inequitable.” Sparks v Sparks, 440 Mich 141, 152; 485 NW2d 893 (1992).
See also McDougal v McDougal, 451 Mich 80, 87; 545 NW2d 357 (1996).
In the instant case, which is overflowing with evidence of unbridled and unaccounted for spending by both parties, the trial court did not clearly err in finding that neither party violated the mutual restraining order and that neither party would be required to return assets to the estate. This was a fair and equitable response to the circumstances of the case. Sands, supra.
IV
Defendant next maintains that the trial court abused its discretion in disregarding testimony from defendant’s expert concerning economic damages attributed to the structured personal injury settlement and the valuation of plaintiff’s pension. Defendant’s expert testified that plaintiff’s annuity had a present value of over $1 million and represented an economic component of the settlement and should be included in the marital assets to be divided between the parties. The trial court nonetheless ruled that the structured settlement was the sole and separate property of plaintiff and only the lost wages portion of the settlement would be subject to distribution.
Our review of the record indicates that the trial court considered this issue in detail, weighed the competing testimony of the parties’ experts, and rejected defendant’s expert’s testimony that all of plaintiff’s settlement proceeds represented economic losses as opposed to pain and suffering. Instead, the court expressly adopted the reasoning of plaintiff’s expert, stating in pertinent part:
In making a determination regarding separate property, it is necessary to establish whether the personal injury proceeds paid to Mr. Stoudemire represented compensation for pain and suffering, lost wages or both. Bywater v Bywater, 128 Mich App 396; 340 NW2d 102 (1983). Neither the Wayne County Circuit Court nor the Wayne County Probate Court orders set forth any allocation of damages regarding Mrs. Stoudemire’s portion of the personal injury settlement....
* * *
While it is impossible to know what analysis was used in reaching the settlement of the personal injury action, it is clear that at the time of settlement negotiations, Mr. Stoudemire was receiving long term compensation for lost wages and was permanently disabled. It was known that he had sufficient years of service to retire at age 55 and begin receiving his pension. His injuries were extremely severe and justified a considerable award for pain and suffering. We adopt the reasoning set forth by Mr. Kabacinski [plaintiff’s expert] which based the lost wage award on the actual circumstances and find that the lost wage portion of the damage award was in the amount of $17,012 as of the date of filing of the divorce action. Each party is entitled to one half of the lost wages in the amount of $8,506.
The balance of Mr. Stoudemire’s personal injury award is attributed to pain and suffering. It is, therefore, Mr. Stoudemire’s separate property.
Judge Hallmark did not clearly err in her findings of fact with regard to the division of the personal injury settlement proceeds. In cases where marital assets are valued between divergent estimates given by expert witnesses, the trial court has great latitude in arriving at a final figure. Pelton v Pelton, 167 Mich App 22, 26; 421 NW2d 560 (1988). The trial court has the best opportunity to view the demeanor of the witnesses and weigh their credibility. Id. Moreover, as Judge Hallmark recognized, while a right of action or an award of damages for pain and suffering in a personal injury action is the injured party’s separate property, it is, at the trial court’s discretion, available for distribution as a marital asset in a divorce proceeding in order to make a fair and equitable division of property. Bywater v Bywater, 128 Mich App 396, 398-400; 340 NW2d 102 (1983). See also Lee v Lee, 191 Mich App 73, 79; 477 NW2d 429 (1991).
In this instance, defendant’s expert testified that in light of plaintiff’s income of $41,372 in 1991 and using a cost of living adjustment [cola] factor of four percent a year to age sixty-five, all of plaintiff’s settlement proceeds represented economic losses as opposed to pain and suffering. He also calculated a factor for the loss of plaintiff’s “household services” resulting from his disability. He calculated damages on the basis of plaintiff’s capacity to earn income up to the maximum retirement age even if the individual did not intend to work the maximum number of years.
By contrast, plaintiff’s expert stated that his calculation for lost wages was based on plaintiff’s actual 1991 income of $30,327. He did not include a factor for household services because these generally decrease over time, and he used a three percent rather than four percent inflation factor. He also used a retirement age of fifty-five instead of sixty-five because plaintiff stated that he intended to retire at age fifty-five even before the accident and did in fact retire at age fifty-five after the accident. He likewise considered that plaintiff received lost wages as an insurance benefit from September 1991 to August 1993, his actual retirement date. Using the divorce filing date as the valuation date, plaintiffs expert calculated plaintiffs lost wages at $17,012.
A review of the record leads to the conclusion that the trial court did not clearly err in accepting and adopting the expert testimony of plaintiff’s witness, which was based on more credible calculations than those of defendant’s expert. Zecchin v Zecchin, 149 Mich App 723, 730-732; 386 NW2d 652 (1986).
v
Defendant next contends that the property settlement devised by the trial court constituted neither a fair nor an equitable division of assets in light of all the circumstances. Defendant complains that the trial court awarded a substantial portion of the marital assets to plaintiff, ignoring plaintiff’s fault in causing the divorce and defendant’s limited employment skills and abilities. Defendant maintains that although she was awarded the marital home, the court also gave her the mortgage note and the attendant maintenance and upkeep responsibilities and, in light of her needs and plaintiff’s more ample monetary resources, her monthly support should have been $3,500 rather than the $2,000 monthly spousal support awarded by the court.
Conversely, in his cross appeal, plaintiff argues that the trial court’s award of spousal support in gross was actually an unjustified award of a portion of plaintiff’s separate property to defendant, rather than an award of spousal support. Plaintiff contends this was a short-term marriage, and defendant had already received, during the pendency of these proceedings, four years of spousal support at a rate of $3,500 a month, as well as a $10,000 advance on the property division. Thus, according to plaintiff, the trial court did not give sufficient justification for the invasion of plaintiffs separate assets.
Addressing these opposing arguments, our review of the record indicates that in her thorough opinion, the trial judge considered the appropriate factors pursuant to Sparks, supra at 159-160, in dividing the assets of the parties. We conclude that the distribution of marital assets is fair and equitable under the circumstances. It is undisputed that defendant, in her capacity as guardian and conservator, mishandled the proceeds from the personal injury settlement. Indeed, the trial court, finding that defendant is still capable of employment, also noted that “Mrs. Stoudemire was awarded $600,000, most of which has been spent or awarded by the Wayne County Probate Court in the form of attorney fees and surcharges. Mrs. Stoudemire must take full responsibility for the dissipation of her assets.” Defendant still received sufficient assets and funds, including $2,000 monthly support, the marital home, one-half of the Chrysler pension, one-half of the Chrysler stock, a loan receivable from her church, and other miscellaneous sums. We therefore find defendant’s complaints regarding the distribution of assets to be without merit.
Plaintiff’s related arguments raised in his cross appeal are likewise invalidated by Judge Hallmark’s well-written opinion. The judge aptly noted that defendant had to become reestablished in the job market and in order to do so, she would require ongoing counseling and training to obtain job skills. The trial court held:
In order to meet her monthly expenses while she reenters the job market, the court will award her $2,000 per month for a period of ten years, commencing on the date of judgment. This amount is nonmodifiable and should terminate upon Mrs. Stoudemire’s death or remarriage ....
Mr. Stoudemire is well able to afford the award of spousal support. Given the significant sacrifices made by Mrs. Stoudemire in the care of her husband, the award of spousal support is reasonable and necessary. It will enable her to meet her living expenses and resume employment. The court finds that the property awarded to Mrs. Stoudemire will be insufficient for her support and maintenance while she becomes reemployed. The award of spousal support will adequately provide for Mrs. Stoudemire so that a farther invasion of Mr. Stoudemire’s separate property will not be required pursuant to MCL 552.23 or 552.40.
Given the fact that defendant was awarded fewer liquid assets than plaintiff, for legitimate reasons noted by the trial court, the award of monthly support in the amount of $2,000 for ten years is reasonable and equitable, and the trial court did not err in this regard.
Plaintiff’s tangential argument raised in his cross appeal — that the trial court erred in awarding all the equity in the marital home to defendant, failed to give plaintiff credit for improvements made to the home, and thereby unjustifiably awarded eighty percent of the marital estate to defendant — is for similar reasons without merit. Although defendant was awarded the marital home, valued by the court at $65,000, defen dant also assumed responsibility for the mortgage. Judge Hallmark explained in pertinent part:
The court finds that the value of the marital home is $65,069 ($80,500 [stipulated value]$ — 15,431 [mortgage balance]). No credit is given to Mr. Stoudemire for the improvements. Although they were made from his money during the pendency of the conservatorship, they served to increase the value of the joint marital asset. Further, both parties had the use and enjoyment of the home prior to their move to Southfield.
The court finds that the marital home should be awarded to Mrs. Stoudemire. She is currently living in the home with her “grandchildren” Danielle and Denzel. She has paid the mortgage and taxes on the property since 1995. Further, Mr. Stoudemire is in a better position than Mrs. Stoudemire to maintain alternative housing at this time. Although Mr. Stoudemire has paid spousal support, he has not lived in the marital home or contributed directly to its maintenance or upkeep since 1994.
Plaintiff was awarded the Alabama property where he was living during the pendency of the divorce proceedings. His claim that defendant was unfairly awarded eighty percent of the marital estate does not take into account the distribution of property as a whole. The trial court’s distribution of the marital estate was fair and equitable. Sparks, supra.
VI
Defendant lastly argues the trial court abused its discretion in refusing to award her expert fees and more than $5,000 in attorney fees. Defendant states that she should not be required to pay her attorney fees and expert fees out of her spousal support or nominal property settlement. We disagree.
MCL 552.13 provides for attorney fees in actions for divorce or separation. This Court reviews for abuse of discretion a trial court’s decision to award attorney fees and expert witness fees. Rickwalt v Richfield Lakes Corp, 246 Mich App 450, 466; 633 NW2d 418 (2001); Kosch v Kosch, 233 Mich App 346, 354; 592 NW2d 434 (1999). Attorney fees in a divorce action are not recoverable as of right. Kurz v Kurz, 178 Mich App 284, 297; 443 NW2d 782 (1989). Attorney fees and costs are to be awarded only where necessary to preserve the party’s ability to carry on or defend the action. Id.
The trial court in the instant case ruled:
Due to the protracted nature of these proceedings, each party has incurred substantial attorney fees. Mrs. Stoudemire is awarded fewer liquid assets than Mr. Stoudemire. He has the ability to contribute to Mrs. Stoudemire’s attorney fees and the court will order than [sic] he make a contribution of $5000 toward her fees. Each party will then be responsible for the balance of their own attorney fees.
A review of the record indicates no abuse of discretion on the part of Judge Hallmark in the award of attorney fees. Although the trial court did not address the issue of expert witness fees, it appears that neither party was awarded funds for this purpose. Such a result does not constitute an abuse of discretion under the described circumstances.
vn
In sum, the trial court did not err in granting partial summary disposition in favor of plaintiff pursuant to MCR 2.116(C)(7). The prior judgment rendered in the probate court accounting action brought by plaintiff against defendant for her breach of duties as conservator of his estate is res judicata regarding the issues decided therein. While the probate court lacked authority to apportion the marital estate, McCormick, supra, it did have authority to determine the separate assets of the parties arising out of the personal injury settlement.
Having considered the parties’ respective claims raised in this appeal, we conclude that the judgment of divorce entered by the circuit court should be affirmed without modification. Defendant’s appellate claims, and the issues raised by plaintiff in his cross appeal, lack merit. In the context of this acrimonious divorce, the trial judge’s findings of fact incorporated in her comprehensive opinion are not clearly erroneous and the division of property and award of spousal support are fair and equitable under Sparks, supra.
Affirmed.
Plaintiff has three adult children from his first marriage and defendant testified that, although this was her first marriage, she was the biological mother of two adult children.
Plaintiff moved for partial summary disposition pursuant to MCR 2.116(C)(10), not MCR 2.116(C)(7), in claiming that res judicata was the proper ground in support of its motion. However, an order granting summary disposition under the wrong subrule may be reviewed under the correct rule. Limbach v Oakland Co Bd of Co Rd Comm’rs, 226 Mich App 389, 395, n 3; 573 NW2d 336 (1997). | [
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Whitbeck, J.
A jury convicted defendant of second-degree murder and delivering a controlled substance. The trial court sentenced him to concurrent prison terms of ten to twenty-five years for the murder conviction and seven years for the controlled substance conviction. Defendant appeals as of right and we affirm.
1. OVERVIEW
This case is about death; in particular, the death of former racecar driver Thomas Youk in September 1998. Youk was fifty-two years old and had amyotrophic lateral sclerosis (als), also known as Lou Gehrig’s disease. Defendant twice videotaped himself interacting with Youk. In the first videotape, defendant went to Youk’s home to discuss his condition. In the second videotape, defendant administered a lethal drug to Youk. Defendant later was a guest on the television news show 60 Minutes, during which segments from both videotapes were shown. The jury saw the videotapes and the 60 Minutes interview at defendant’s trial. Nevertheless, defendant attempted to persuade the jury not to convict him because the murder he was charged with committing was, in his view, a “mercy killing.”
Given this factual setting, this appeal presents a fascinating paradox. Though he made an impassioned plea to the jury to adopt his views on euthanasia, in this appeal defendant has given almost no attention to his claim that this homicide had a legal justification or excuse. Indeed, exactly seven of the fifty pages in his brief to this Court address euthanasia. Even during oral arguments, defendant’s appellate counsel made not a single reference to this issue.
Nevertheless, euthanasia is at the core of this case. But for defendant’s self-described zealotry, Thomas Youk’s death would, in all probability, not have been the subject of national attention, much less a murder trial. Defendant, in what is now apparently something of an afterthought, asks us to conclude that euthanasia is legal and, therefore, to reverse his conviction on constitutional grounds. We refuse. Such a holding would be the first step down a very steep and very slippery slope. To paraphrase the United States Supreme Court in Washington v Glucksberg, it would expand the right to privacy to include a right to commit euthanasia and thus place the issue outside the arenas of public debate and legislative action. Such a holding would also involve the judiciary in deciding questions that are simply beyond our capacity. Succinctly put, there is no principled basis for us to legalize euthanasia.
Defendant’s other issues are more mundane and we describe the relevant facts in more detail in the appropriate discussion sections. First, defendant asserts that his trial attorney, David Gorosh, did not provide him with his constitutional right to effective representation. However, defendant has failed to demonstrate that Gorosh performed deficiently at any time he actually acted as counsel. Defendant also failed to prove that Gorosh, while acting as standby counsel, took control of the case or did anything to destroy the jury’s perception that defendant was representing himself. Even assuming for the sake of argument that a claim alleging ineffective assistance of standby counsel is legally cognizable, defendant still has not proved that Gorosh acted deficiently and prejudicially. Defendant chose — almost certainly unwisely but nevertheless knowingly, intelligently, voluntarily, and unequivocally — to represent himself. He cannot now assign the blame for his conviction to someone who did not act as his trial counsel.
Second, defendant claims that the prosecutor improperly referred to defendant’s decision to exercise his right to remain silent, thereby denying him his rights under the Fifth Amendment. The remarks at issue were the prosecutor’s proper objections to defendant’s repeated and improper attempts to inject into his closing argument facts that were not in evidence. As such, the prosecutor’s remarks were not direct and unequivocal references to defendant’s failure to testify, and therefore, the making of those remarks did not constitute misconduct.
Third, defendant claims that the trial court erred in excluding the testimony of Terrence and Melody Youk, Thomas’ brother and sister-in-law. However, defendant misreads the applicable standards with respect to res gestae witnesses and then fails entirely to demonstrate how the proposed testimony would have been relevant. Thus, even on this narrow evidentiary issue, defendant’s arguments have no merit.
n. THE DEATH OF THOMAS YOUK
A. THE SEPTEMBER 15, 1998, VIDEOTAPE
On September 15, 1998, at 9:55 P.M., defendant went to Youk’s home to discuss Youk’s condition. As the videotape of this discussion revealed, defendant stated that he was recording their interaction in “connection with a request from Thomas [Youk] for help in . . . ending his suffering.” Youk then described his condition. He recalled that his symptoms of als first became obvious to him in 1994 and that he had been confined to a wheelchair since 1997. By September 1998, Youk said, he could not move his left arm or his legs, he had minimal use of his right arm, he had difficulty swallowing and breathing, he was fed through a tube, and he was forced to use a machine to help him breathe. Youk stated that, at the time, he could not do anything for himself, that he had discussed “his wishes” with his mother, brothers, and wife, and that they “understand why. It’s my decision.”
Defendant then told Youk that he needed to sign a form indicating that he was consenting to a “direct injection instead of using the device, the machine.” Defendant asked Youk if he wished to donate his organs, and Youk declined. Defendant then read the consent form, which stated in part:
I, Thomas Youk, the undersigned, entirely voluntarily, without any reservation, external persuasion, pressure, or duress, and after prolonged and thorough deliberation, hereby consent to the following medical procedure of my own choosing, and that you have chosen direct injection, or what they call active euthanasia, to be administered by a competent medical professional, in order to end with certainty my intolerable and hopelessly incurable suffering.
The meeting ended at 10:15 P.M.
B. THE SEPTEMBER 16, 1998, VIDEOTAPE
On September 16, 1998, at 9:49 P.M., defendant again videotaped himself and Youk at Youk’s home. Youk stated that he “wanted to go through with this” and signed the consent form. Defendant remarked that he would inject Youk in the vein because “it’s quicker,” and stated, “now I’m going to put on a cardiogram so we know when your heart is stopped, okay.” Defendant established a connection between Youk and the electrocardiogram. Defendant injected Youk with Anectine and Seconal before injecting Youk with potassium chloride. During this time, defendant provided a commentary on what was occurring:
Sleepy Tom? Tom are you asleep? And now we’ll inject the Anectine. You asleep Tom? Tom? You asleep? He’s asleep. Now the Potassium Chloride. This machine is recording for some reason so I’m pulling it by hand until the heart stops. It’s been, it’s been about two minutes since I injected the, ah, seconal, and one minute since I injected the — . Now we’re getting agonal complexes and that’s about the, the Potassium Chloride will stop the heart, so. Now there’s a straight line. A straight line and the cardiogram will be turned off. His heart is stopped.
C. CAUSE OF DEATH
The police were dispatched to Youk’s house on September 17, 1998, at 1:30 A.M. They found Youk lying on his bed, dead. The police also found a Federal Express receipt with defendant’s name at the scene. Officials conducted Youk’s autopsy at 10:00 A.M. the same day. The medical examiner listed the manner of death as homicide and the cause of death as intravenous injection of substances. Dining the autopsy, the medical examiner found two “fresh” needle marks on Youk’s left and right wrists that had been covered with makeup. The autopsy protocol stated that the cause of death was “poisoning by intravenous injection of substances.”
Oakland County Medical Examiner Ljubisa J. Dragovic, ah expert in neuropathology and pathology who later testified for the prosecution at defendant’s trial, witnessed the autopsy. Dr. Dragovic found three significant drugs in Youk’s bodily fluids. First, Youk had a high level of the barbiturate Seconal, also known as Secobarbital, in his blood. Seconal is a Schedule 2 controlled substance typically used to induce sleep. Dr. Dragovic believed that the amount of Seconal in Youk’s blood would have killed him in a few hours. Second, Dr. Dragovic found Anectine, a paralyzing muscle relaxant, present in Youk’s body in an amount that could have killed Youk within five to eight minutes by causing brain death. However, Dr. Dragovic determined that it was the third drug, potassium chloride, that defendant injected into Youk that caused his death. As Dr. Dragovic explained, when potassium chloride is injected into the body in a concentrated form at once, rather than in small amounts over time, it stops the heart from beating within a matter of seconds. According to Dr. Dragovic, the toxicology reports did not reveal the presence of potassium chloride in Youk’s body because that substance is naturally present in the body after red blood cells die.
Dr. Dragovic also confirmed that Youk had als. However, in Dr. Dragovic’s opinion, Youk did not die from als, als was not an underlying cause of Youk’s death, and als did not contribute to Youk’s death in any way. Rather, Dr. Dragovic firmly reiterated that the poisons injected into Youk killed him, constituting a homicide.
D. THE 60 MINUTES INTERVIEW
News correspondent Mike Wallace interviewed defendant for 60 Minutes. In the first clip from the interview shown to the jury, Wallace stated at the outset, “You killed him.” Defendant responded: “I did, but it could be Manslaughter not Murder. It’s not necessarily Murder. But it doesn’t bother me what you call it. I know what it is. This could never be a crime in any society which deems itself enlightened.” Defendant indicated that he was making an example of Youk. Wallace then suggested that Youk was initially a little reluctant because Youk “thought he was getting assisted suicide.” Defendant replied that “this is better than assisted suicide, I explained that to him. It’s better control.”
Defendant also explained to Wallace the process leading to Youk’s death. According to defendant, the first injection paralyzed Youk’s muscles and slowed his ability to take in oxygen. When the oxygen was “cut off” and Youk could not breathe, defendant injected the “potassium chloride to stop the heart.” Defendant then told Wallace that “[e]ither they go or I go,” apparently meaning that he would be acquitted for killing Youk or, if convicted, he would starve to death in prison. As defendant put it: “I’ve got to force them to act. They must charge me. Because if they do not, that means they don’t think it’s a crime. Because they don’t need any more evidence do they? Do you have to dust for fingerprints on this[?]”
Wallace suggested that defendant was “engaged in a political, medical, macabre . . . publicity venture,” and had a “ghoulish . . . desire to see the deed done.” Defendant did not disagree with those assertions, stating: “Well, it could be, I, I can’t argue with that. Maybe it is ghoulish. I don’t know. It appears that way to you. I can’t criticize you for that.” In fact, defendant agreed with Wallace, emphasizing that “the main point is . . . that the deed be done.” Evidently in response to the argument that legalizing euthanasia could be problematic in practice, defendant commented that “[e]verything can be abused. You learn from abuse, you punish the abuser, and then ... if you want to control, you say that only certain doctors can do this in certain areas, nobody else. . . . That’s the way to control it.”
Defendant then returned to one of his main themes, saying:
If you don’t have liberty and self-determination, you got nothing. That’s what this country’s built on and this is the ultimate self-determination to determine when and how you’re gonna die when you’re suffering.
[Wallace]: And those who say that [defendant], Dr. Death, is a fanatic?
[Defendant]: Zealot. No, not if, sure, you try to take a liberty away and I turn fanatic. . . . I’m fighting for me, Mike, me. This is a right I want when I, I’m 71, I’ll be 71. You don’t know what’ll happen when you get older. I may end up terribly suffering. I want some colleague to be free to come and help me when I say the time has come. That’s why I’m fighting for, me. Now that sounds selfish. And if it helps everybody else, so be it.
m. EUTHANASIA AND THE CONSTITUTION
A. FACTS AND ARGUMENT
Before trial, defendant, relying on the Ninth Amendment, filed a motion asking the trial court to dismiss the charges against him. Evidently, defendant intended to argue that the people had retained the right to active euthanasia. The trial court denied the motion on the grounds that it was untimely and that defendant had failed to cite any support for his argument. Defendant then filed an emergency application for leave to appeal the trial court’s order with this Court. In addition to challenging the trial court’s ruling, he also claimed that the prosecution violated the Michigan constitutional counterpart to the Ninth Amendment. This Court ultimately determined that defendant failed to articulate the need for immediate appellate review.
On appeal, defendant makes two related, but separate, constitutional arguments. First, he argues that the unenumerated rights protected by the Ninth Amendment and its Michigan constitutional counter part include a patient’s right to be free from unbearable pain and suffering. Second, he maintains that the Fourteenth Amendment and its Michigan constitutional counterpart also include this right by proscribing state deprivation of liberty without due process of law either under constitutional privacy concepts or as a “necessary and direct corollary of this position . . . that a person should not be forced to suffer unbearably.” Defendant claims that he has standing to raise these due process arguments. Defendant thus contends that he is entitled to have his murder conviction reversed and no further criminal proceedings instituted against him for “aiding in Thomas Youk’s assertion of his constitutional right to be free from intolerable pain and suffering.”
B. STANDARD OF REVIEW
We review a trial court’s decision to grant or deny a motion to dismiss charges for an abuse of discretion. However, review de novo is appropriate for the core constitutional questions that underlie the trial court’s ruling on the motion to dismiss the charges.
C. CONSTITUTIONAL PROVISIONS
The Ninth Amendment of the United States Constitution states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The counterpart provision in the Michigan Constitution states that “[t]he enumeration in this constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
The Fourteenth Amendment of the United States Constitution states, in relevant part, that no state shall “deprive any person of life, liberty, or property, without due process of law.” The counterpart provision in the Michigan Constitution states, in relevant part, that “[n]o person shall be . . . deprived of life, liberty or property, without due process of law.”
D. THE NATURE OF DEFENDANT’S ARGUMENTS
At the outset it is important to understand the nature of defendant’s constitutional claims. The best way to do this is to state clearly the constitutional arguments that defendant does not raise.
First, defendant does not ask us to hold that he acted properly in furtherance of the right to refuse life-sustaining medical treatment. In Cruzan v Director, Missouri Dep’t of Health, the United States Supreme Court “assume[d] that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition,” likely under a Fourteenth Amendment due process liberty interest analysis. More recently, in Glucksberg, the Court strengthened the constitutional basis for the Cruzan decision, interpreting Cruzan as holding that “the right to refuse unwanted medical treatment was so rooted in our history, tradition, and practice as to require special protection under the Fourteenth Amendment.” Here, defendant does not, and could not, rely on Cruzan-, factually, this case does not involve removing life support. Further, though not resting their decisions precisely on the Fourteenth Amendment, Michigan courts have arrived at the same conclusion regarding a patient’s right to refuse life-sustaining medical care. The limited scope of these cases does not establish a right to be free from unbearable pain and suffering that would make euthanasia legal. There is, of course, a substantial factual distinction between refusing care, even if doing so hastens death, and purposefully ending a life.
Second, defendant does not make any claim that this case concerns medical efforts to relieve pain or discomfort, though these medical efforts may hasten death. Michigan exempts such medical efforts from criminal penalties. Importantly, however, the exemption does not apply to medical efforts designed to cause death. Factually, there is not a scintilla of evidence that defendant administered potassium chloride to Youk to relieve Youk’s pain or discomfort. Defendant admits as much in his brief on appeal:
The only medical relief for Thomas Youk’s conditions was the relief that he sought from [defendant]. The injection [defendant] gave to Thomas Youk was the only effective medical way to alleviate Thomas Youk’s unbearable suffering. No pain medication would suffice, and there was no other beneficial medical alternative that would have aided Thomas Youk.[ ]
Third, defendant does not ask us to find that his actions in this matter constituted some form of permissible assisted suicide. In Michigan, assisting in a suicide — that is, providing the physical means by which another person attempts or commits suicide or participating in a physical act by which another person attempts or commits suicide — is illegal. The Michigan Supreme Court has upheld the statute in question against both a Title-Object Clause challenge under the Michigan Constitution and a Due Process Clause challenge under the United States Constitution. In reaching its decision on the due process challenge, a majority of the Court observed:
' Presently, a substantial number of jurisdictions have specific statutes that criminalize assisted suicide and the Model Penal Code also provides for criminal penalties. Further, nearly all states expressly disapprove of suicide and assisted suicide either in statutes dealing with durable powers of attorney in health-care situations, or in “living will” statutes. In addition, all states provide for the involuntary commitment of persons who may harm themselves as the result of mental illness, and a number of states allow the use of nondeadly force to thwart suicide attempts. [ ]
Referring to Cruzan, the majority observed:
Indeed, the United States Supreme Court repeatedly and unequivocally has affirmed the sanctity of human life and rejected the notion that there is a right of self-destruction inherent in any common-law doctrine or constitutional phrase.[ ]
Several years after the Michigan Supreme Court decision in Kevorkian I, the United States Supreme Court in Glucksberg upheld a similar Washington statute against a similar Due Process Clause challenge under the United States Constitution. The Glucksberg majority held that the prohibition in the Washington statute against “ ‘caus[ing]’ ” or “ ‘aid[ing]’ ” a suicide did not offend the Fourteenth Amendment of the United States Constitution.
Here, defendant makes no attempt to assert that he was engaged in assisted suicide when he injected Youk with potassium chloride, causing his death. Rather, he asserts that if the Ninth Amendment “is to have any substantive meaning,” the right to be free from inexorable pain and suffering must be among the unenumerated rights protected by that amendment and its Michigan counterpart. Further, defendant asserts that the right to be free from unbearable pain and suffering caused by a medical condition is inherently part of the liberty interests secured by the Fourteenth Amendment and its Michigan counterpart. Defendant then contends that he cannot be prosecuted for “aiding in Thomas Youk’s assertion of his constitutional right to be free from intolerable pain and suffering.” Although defendant’s appellate counsel has carefully avoided using the words, as we have already noted, the record indicates that defendant was quite specific when describing his actions; he said he was engaged in “active euthanasia” and the consent form that Youk signed directly refers to such active euthanasia.
In summary, defendant does not, nor could he, ask us to hold that his actions were legally justifiable because he simply helped Youk exercise his right to refuse medical care. Defendant does not, nor could he, ask us to hold that he was lawfully attempting to alleviate Youk’s pain and suffering by any means other than causing his death. Defendant does not, nor could he, ask us to hold that his actions constituted a legal form of assisted suicide. In a nutshell, and using his own terminology, defendant asks us to legalize euthanasia.
E. RESERVED RIGHTS
Defendant’s argument that the people have reserved the right to euthanasia under the Ninth Amendment and its Michigan counterpart is basically formless. He states that a right to be free from inexorable pain and suffering “must be among” the rights protected by these two constitutional provisions. Further, he argues that states “should recognize such a right and give it force.” Defendant does not cite a single case for this extraordinary request. As the Supreme Court said in Mitcham v Detroit,
It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position. The appellant himself must first adequately prime the pump; only then does the appellate well begin to flow. Failure to brief a question on appeal is tantamount to abandoning it.[ ]
We conclude, therefore, that defendant has abandoned this argument on appeal.
F. EUTHANASIA AS A DUE PROCESS RIGHT TO PRIVACY
(1) DEFENDANTS ARGUMENT
Defendant starts with the proposition that there is a right to privacy that is part of the liberty interest protected by the Fourteenth Amendment and its Michigan counterpart. He then asserts that the “intensely personal and private right of a patient to be free from intolerable and irremediable suffering” is either part of or similar to this privacy right. Citing Vacco, he argues that if the administration of aggressive painkilling drugs is acceptable even if this may hasten death, then the “necessary and direct corollary of this position is that a person should not be forced to suffer unbearably.”
Defendant then reviews the positions of Justices O’Connor, Breyer, Souter, and Stevens in Glucksberg to reach the conclusion that “Justices on the Supreme Court have suggested allowing for interpretation of the Fourteenth Amendment’s guarantee of liberty to apply to various privacy rights, including those related to personal and private medical procedures.” Finally, defendant argues that he has standing to assert Youk’s constitutional right to be free from intolerable pain, claiming that Justice Stevens in Glucksberg, “recognized the possibility that an individual who provides assistance to a patient who was suffering interminably could prevail on a Constitutional challenge” and that, if we agree that there is a constitutionally protected right to be free from unbearable suffering, then the charges against him must be dismissed. We do not agree.
(2) ENCOMPASSING EUTHANASIA WITHIN THE RIGHT TO PRIVACY
It is one thing to assert, as defendant does, that there is a large body of case law suggesting that due process sometimes relies on the right to privacy to protect fundamental liberty interests. It is quite another thing, however, to conclude that the right to privacy encompasses euthanasia. As Justice Jackson once pointedly noted, the enduring nature of precedent gives judicial opinions a force all their own.
The principle then lies about like a loaded weapon .... Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.”[ ]
Defendant urges us to pick up the loaded weapon of the right to privacy cases. He asks us to use this weapon to resolve the situation faced by a person who suffers from literally unbearable pain and who wishes to end that pain by dying. As Justice O’Connor described it: “Death will be different for each of us. For many, the last days will be spent in physical pain and perhaps the despair that accompanies physical deterioration and a loss of control of basic bodily and mental functions.”
We decline, however, to pick up this loaded weapon for three basic reasons. First, we can find no meaningful precedent for expanding the right to privacy to include a right to commit euthanasia so that an individual can be free from intolerable and irremediable suffering. To our knowledge, no court of last resort in this country has ever recognized such a right. Even in the assisted suicide cases dealing with an asserted “right to die,” courts have steadfastly refused to expand the right to privacy to include the right to commit or receive euthanasia. As Chief Justice Cavanagh and Justices Brickley and Griffin explained while describing the boundaries of the right to privacy in end-of-life cases:
We do not discern in Cruzan and its historic roots an indication that the federal constitution protects a right more expansive than the right to refuse to begin or to continue life-sustaining medical treatment. Neither do we find in [Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833; 112 S Ct 2791; 120 L Ed 2d 674 (1992)] or in the precedent from which it evolved an intent to expand the liberty interests identified by the Court in such a manner.[ ]
Similarly, in Glucksberg, a majority of the United States Supreme Court concluded that the asserted “right” to assistance in committing suicide “is not a fundamental liberty interest protected by the Due Process Clause.” Instead, the Court determined that a state has legitimate and countervailing interests in preserving life, preventing suicide, protecting the integrity and ethics of the medical profession, protecting vulnerable groups from abuse, neglect, and mistakes, and acknowledging the equal value of all people. Most importantly, the Glucksberg majority noted that states “may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia.” In commenting on the Ninth Circuit Court of Appeals decision in the underlying case, the majority of the Court said:
The Court of Appeals’ decision, and its expansive reasoning, provide ample support for the [state of Washington’s] concerns. The court noted, for example, that the “decision of a duly appointed surrogate decision maker is for all legal purposes the decision of the patient himself;” that “in some instances, the patient may be unable to seli-administer the drugs and . . . administration by the physician . . . may be the only way the patient may be able to receive them;” and that not only physicians, but also family members and loved ones, will inevitably participate in assisting suicide. Thus, it turns out that what is couched as a limited right to “physician-assisted suicide” is likely, in effect, a much broader license, which could prove extremely difficult to police and contain. [The state of] Washington’s ban on assisting suicide prevents such erosion.[ ]
The majority then turned, directly, to the “slippery slope” argument. The majority cited United States v 12 200-ft Reels of Super 8 MM Film, for the proposition that “ ‘[e]ach step, when taken, appear[s] a reasonable step in relation to that which preceded it, although the aggregate or end result is one that would never have been seriously considered in the first instance.’ ” The majority referred to Physician-Assisted Suicide and Euthanasia in the Netherlands as suggesting that
despite the existence of various reporting procedures, euthanasia in the Netherlands has not been limited to com petent, terminally ill adults who are enduring physical suffering, and that regulation of the practice may not have prevented abuses in cases involving vulnerable persons, including severely disabled neonates and elderly persons suffering from dementia.
Here, expanding the right to privacy would begin, as the steps in the progression of defendant’s argument supporting voluntary euthanasia clearly indicate, the slide down the slippery slope toward euthanasia. No court of final jurisdiction has so expanded the right to privacy. As a state court of intermediate appellate jurisdiction, neither will we.
Second, we conclude that by expanding the right to privacy as defendant suggests, we would, to a great extent, place the matter outside the arenas of public debate and legislative action. Whatever the life experiences or the policy preferences of the members of this Court might be, we must exercise the utmost care to assure, when asked to break new ground, that the liberty protected by the Due Process Clause of the Fourteenth Amendment not be subtly transformed into an expression of personal belief rather than an adherence to the rule of law. If society is to recognize a right to be free from intolerable and irremediable suffering, it should do so through the action of the majority of the legislature, whose role it is to set social policy, or by action of the people through ballot initiative. As the Michigan Supreme Court observed when analyzing the constitutionality of the prohibition of assisted suicide:
We are keenly aware of the intense emotions and competing moral philosophies that characterize the present debate about suicide in general, and assisted suicide in particular. The issues do not lend themselves to simple answers. However, while the complexity of the matter does not permit us to avoid the critical constitutional questions, neither does it, under the guise of constitutional interpretation, permit us to expand the judicial powers of this Court, especially where the question clearly is a policy one that is appropriately left to the citizenry for resolution, either through its elected representatives or through a ballot initiative under Const 1963, art 2, § 9 [ ]
Third, we observe that by expanding the right of privacy to include a right to commit euthanasia in order to end intolerable and irremediable suffering we would inevitably involve the judiciary in deciding questions that are simply beyond its capacity. There is no court that can answer the question of how much pain, or perception of pain by a third party, is necessary before the suffering becomes intolerable and irremediable. The role of the courts is to serve neither as physicians nor as theologians. In Glucksberg, Justice Stevens briefly discussed the United States Supreme Court’s changing attitude toward the death penalty, noting that “there is no absolute requirement that a State treat all human life as having an equal right to preservation.” Though other jurisdictions may not value all life equally, that is not true in Michigan. In a state that constitutionally prohibits putting to death the convicted perpetrator of even the most heinous of crimes, courts are simply unsuited to make that decision with respect to the innocent. No judge, no matter how learned, can assess the quality of human life and determine, as a matter of law, that putting an end to suffering is justifiable in one case while in another case it is not. This sort of subjective determination would be unavoidable if we begin, through judicial intervention, to decide who shall live and who shall die.
Rather, the role of the courts is to apply the rule of law. As Chief Justice Burger once eloquently explained:
It is often observed that hard cases make bad law. I suspect there is some truth to that adage, for the “hard” cases always tempt judges to exceed the limits of their authority ... to reach a “desirable” result. Cardozo no doubt had this type of case in mind when he wrote:
“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains.” The Nature of the Judicial Process, 141 (1921).
What Cardozo tells us is beware the “good result,” achieved by judicially unauthorized or intellectually dishonest means on the appealing notion that the desirable ends justify the improper judicial means. For there is always the danger that the seeds of precedent sown by good men for the best of motives will yield a rich harvest of unprincipled acts of others also aiming at “good ends.”[ ]
Simply put, the courts are not free to create new rights out of whole cloth. We will not do so here.
(3) “A MORE PARTICULARIZED CHALLENGE”
The structure of the Glucksberg opinion reflects the complexity of the assisted suicide issue, an issue certainly less complex than euthanasia. In Glucksberg, Chief Justice Rehnquist wrote the opinion announcing the Court’s decision. Justices O’Connor, Scalia, Kennedy, and Thomas joined this opinion, constituting a solid five-person majority. Nevertheless, Glucksberg consists of more than the majority opinion. Justice O’Connor wrote a concurrence, which Justices Ginsburg and Breyer joined. At the same time, Justices Stevens, Souter, Ginsburg, and Breyer each wrote their own concurring opinions. Thus, while the majority opinion in Glucksberg is plainly identifiable, the nine individual justices’ views on the assisted suicide issue are far from uniform.
Defendant seizes on these concurrences in Glucksberg as evidence that the United States Supreme Court would find a constitutional basis for assisted suicide if presented with “a more particularized challenge.” Defendant’s assumption is that this is the perfect test case; this is the “more particularized challenge” that will bring sweeping changes to constitutional law affecting not only assisted suicide, but creating a right to commit euthanasia. As we have already outlined, assisted suicide is not at issue here; rather, the fundamental question here is whether there is a right to commit euthanasia. Defendant’s observation that the concurring justices in Glucksberg each expressed, in varying degrees, their reservations about the sweep of the majority opinion is accurate. However, as is profoundly clear from each of their concurring opinions, there is not a hint in any of the language that any of the concurring justices used that any of them would recognize a right to commit euthanasia.
Justice O’Connor attempted to avoid dealing directly with the limits on a patient’s right to avoid suffering, writing:
[T]here is no need to address the question whether suffering patients have a constitutionally cognizable interest in obtaining relief from the suffering that they may experience in the last days of their lives. There is no dispute that dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths. The difficulty in defining terminal illness and the risk that a dying patient’s request for assistance in ending his or her life might not be truly voluntary justifies the prohibitions on assisted suicide we uphold here.[ ]
However, she also agreed with the majority that “there is no generalized right to ‘commit suicide,’ ” and that the “State’s interests in protecting those who are not truly competent or facing imminent death, or those whose decisions to hasten death would not truly be voluntary, are sufficiently weighty to justify a prohibition against physician-assisted suicide.”
Justice Ginsburg’s concurrence consisted of the single statement that she “concur[red] in the Court’s judgments . . . substantially for the reasons stated by Justice O’Connor . . .
Justice Breyer disagreed with the way the majority framed the issue on appeal as the right to assisted suicide, instead preferring to examine whether a “ ‘right to die with dignity’ ” existed. Despite reframing this issue, as “rough” as it was, Justice Breyer ultimately adopted a tack quite close to that of Justice O’Connor, stating:
I do not believe . . . that this Court need or now should decide whether or not such a right [to die with dignity] is “fundamental.” That is because, in my view, the avoidance of severe physical pain (connected with death) would have to constitute an essential part of any successful claim and because . . .the laws before us do not force a dying person to undergo that kind of pain. .. .
Were the legal circumstances different — for example, were state law to prevent the provision of palliative care, including the administration of drugs as needed to avoid pain at the end of life — then the law’s impact upon serious and otherwise unavoidable physical pain (accompanying death) would be more directly at issue. And . . . the Court might have to revisit its conclusions in these cases.[ ]
Thus, Justice Breyer’s concurrence implies that he, too, believes that the state has a legally cognizable interest in preventing death, even when it is desired, as long as the state does not bar other efforts to alleviate suffering.
Justice Souter’s concerns were somewhat different. He drew parallels between the right to “bodily integrity” and patients’ insistence that they not merely be drugged into a “stupor” to make them unaware of their pain, but that they had a right to exercise their autonomy by dying, in the process avoiding “helplessness” and “dependency.” In this regard, he noted that a physician is not just a “mechanic of the human body,” but one who “ministers” to patients as whole individuals. Justice Souter reflected on the complexity and necessity of the patient-physician relationship in times of great suffering, refusing to minimize the individual interests at stake. Justice Souter did not close forever the doors to the Court regarding the assisted suicide issue. However, in the end, he concluded that the legislature, not the Court, had the “institutional competence” to address this issue.
Nevertheless, Justice Souter emphasized time and again the risk that acknowledging a right to assisted suicide would lead to legalized euthanasia. He clearly saw euthanasia as having “dangers [that] are concededly within the State’s authority to address.” Justice Souter, in a telling statement, also noted that “the barrier between assisted suicide and euthanasia could become porous [if there were a right to assisted suicide], and the line between voluntary and involuntary euthanasia as well.” Thus, while Justice Souter was able to see many shades of gray in the assisted suicide issue, he saw euthanasia as pure darkness.
Justice Stevens distinguished between challenging a statute as facially unconstitutional and challenging the constitutionality of its application when framing the issues in the appeal, stating:
[J]ust as our conclusion that capital punishment is not' always unconstitutional did not preclude later decisions holding that it is sometimes impermissibly cruel, so is it equally clear that a decision upholding a general statutory prohibition of assisted'suicide does not mean that every possible application of the statute would be valid. A State, like Washington, that has authorized the death penalty,- and thereby has concluded that the sanctity of human life does not require that it always be preserved, must acknowledge that there are situations in which an interest in hastening death is legitimate. Indeed, not only is that interest sometimes legitimate, I am also convinced that there are times when it is entitled to constitutional protection.[ ]
Of all. the justices, Justice Stevens’ view in this and other passages came the closest to reflecting on the notion that a possible constitutional right to commit euthanasia might exist. However, we cannot forget that Justice Stevens, in fact, concurred in the majority’s opinion. He readily acknowledged the majority’s conclusion that there were principled reasons for “refusing to recognize an open-ended constitutional right to commit suicide,” including assistance in committing suicide. He also found persuasive John Donne’s famous statement that “ ‘No man is an island,’ ” commenting:
The State has an interest in preserving and fostering the benefits that every human being may provide to the com munity — a community that thrives on the exchange of ideas, expressions of affection, shared memories, and humorous incidents, as well as on the material contributions that its members create and support. The value to others of a person’s life is far too precious to allow the individual to claim a constitutional entitlement to complete autonomy in making a decision to end that life.[ ]
Further, Justice Stevens clearly expressed his views in the context of the right to end the life of a person for whom death is relatively imminent. In fact, after delineating the state’s legitimate interests in preventing assisted suicide, Justice Stevens not only declined to say “as a categorical matter that these state interests are invalid,” he made the statement with respect to “the entire class of terminally ill, mentally competent patients.” More importantly, nowhere in his concurrence did Justice Stevens consider whether a right to commit euthanasia exists. Even if in the future Justice Stevens would hold that the United States Constitution grants a right to physician-assisted suicide, it appears that he would limit the right to the terminally ill and would not extend it to euthanasia.
These five concurring justices held in common a concern that the states neither bar adequate treatment for pain and suffering in the name of prohibiting assisted suicide nor force patients to receive unwanted medical treatment. Here, defendant asserts that “no pain medication would suffice” and that “there was no other beneficial medical alternative that would have aided Thomas Youk.” Defendant’s own words take him well beyond the possible purview of the concurring justices in Glucksberg.
(4) THE “DUTCH CURE”
Finally, defendant urges us to recognize that his prosecution “for helping Thomas Youk put an end to his suffering at the request of Mr. Youk" is unconstitutional on its face. He arrives at this position by asserting, first, that Youk had a constitutional right to be free from intolerable pain and, second, that defendant’s provision of “Constitutionally guaranteed medical services” allows him to assert Youk’s rights.
There is no authority whatsoever for the proposition that a right to be free from intolerable and irremediable suffering, if it exists, somehow migrates to an “individual,” such as defendant, who provides assistance to a patient who is suffering interminably. The thin reed on which defendant apparently relies is Justice Stevens’ concurrence in Glucksberg-.
There may be little distinction between the intent of a terminally ill patient who decides to remove her life support and one who seeks the assistance of a doctor in ending her life; in both situations, the patient is seeking to hasten a certain, impending death. The doctor’s intent might also be the same in prescribing lethal medication as it is in terminating life support. A doctor who fails to administer medical treatment to one who is dying from a disease could be doing so with an intent to harm or kill that patient. Conversely, a doctor who prescribes lethal medication does not necessarily intend the patient’s death — rather that doctor may seek simply to ease the patient’s suffering and to comply with her wishes. The illusory character of any differences in intent or causation is confirmed by the fact that the American Medical Association unequivocally endorses the practice of terminal sedation — the administration of sufficient dosages of pain-killing medication to terminally ill patients to protect them from excruciating pain even when it is clear that the time of death will be advanced. The purpose of terminal sedation is to ease the suffering of the patient and comply with her wishes, and the actual cause of death is the administration of heavy doses of lethal sedatives. The same intent and causation may exist when a doctor complies with a patient’s request for lethal medication to hasten her death.[ ]
We first note Justice Stevens’ equivocal language: “[t]here may be little distinction” between the intent of a terminally ill patient who decides to remove life support and one who seeks the assistance of a doctor to end her life; a doctor “may seek simply to ease the patient’s suffering;” “[t]he same intent and causation may exist when a doctor complies with a patient’s request for lethal medication . . . .” Such language is worlds away from a justification for euthanasia.
Second, we note that Justice Stevens’ references are entirely within the context of a doctor treating a patient. Defendant is not licensed to practice medicine in Michigan. Therefore there was not, and could not be, a doctor-patient relationship between defendant and Youk. Defendant’s argument can only be construed to mean that an individual can, if requested by another person, kill that person.
This is the mercy killing argument — the argument for the “Dutch cure” — taken beyond the position of even its most extreme advocates. Under defendant’s theory, if one who is not a doctor became convinced that one’s dear friend was suffering from a painful, incurable disease and that the friend wished to die, one could at the request of that friend shoot him between the eyes with a .45 caliber pistol and not be guilty of murder. Indeed, under defendant’s theoiy, the same result might well be obtained if one’s friend were severely depressed, or perhaps simply unhappy with his lot in life. This is the slippery slope with a vengeance and we will not take a single step down it, into the abyss.
G. CONCLUSION
We conclude by noting that the jury, no doubt influenced by the gritty realism of the videotapes defendant made as well as his flat statement of culpability in the 60 Minutes interview, convicted defendant of second-degree murder as well as delivery of a controlled substance. Defendant has on the record before us compared himself to Margaret Sanger, Susan B. Anthony, and Dr. Martin Luther King, Jr., all of whom risked imprisonment for their beliefs. How history will view defendant is a matter this Court can neither predict nor decide. Perhaps in the brave new world of defendant’s “enlightened” society, acts such as the one he committed in this case will be excused. Still, we find it difficult to hypothesize a rule of law under which this might be so.
We deal here, however, with the application of the law as it currently exists to the facts of this case. While defendant has carefully skirted the label of murder in his past actions, he cannot do so now. Justice Levin once stated that “[defendant] is not a murderer.” Here, defendant in essence convicted himself of a murder he surely committed. We will not now reverse that conviction on due process grounds. The trial court did not abuse its discretion in refusing to dismiss the charges.
IV. DEFENSE COUNSEL
A. FACTS AND ARGUMENTS
Before trial, defendant retained Gorosh to serve as his defense attorney. However, at the December 9, 1998, preliminary examination, defendant indicated that he was waiving his right to represent himself “[a]t this hearing[.]” Consequently, Gorosh and attorney Lisa Dwyer entered their appearances in the trial court on defendant’s behalf. Later, however, at a proceeding in the trial court’s chambers, there was some indication that defendant might seek to proceed in propria persona. Indeed, on March 19, 1999, Gorosh informed the trial court that he believed defendant intended to “say he’s going to conduct the trial in its entirety on his own in pro per.”
In any event, while defendant did file one motion on his own behalf, it is apparent that Gorosh and Dwyer represented defendant at all times through the first day of trial on March 22, 1999. On that day, both Gorosh and Dwyer placed their appearances on the record on behalf of defendant. However, Gorosh then stated to the trial court that defendant “does want to represent himself in the trial in its entirety.” In response to the trial court’s questioning, defendant first stated that he was dissatisfied with Gorosh and Dwyer, prompting a colloquy in which he completely revised this statement:
The Court: And do you have any reason for this dissatisfaction?
[Defendant]: There’s no dissatisfaction. This is what I planned all along.
The Court: You planned all along to represent yourself?
[Defendant]: To represent myself, yes.
The Court: And so you have no independent dissatisfaction with your attorney?
[Defendant]: None.
After clearing up this point, the trial court explained to defendant that he could spend the rest of his life in prison and that a criminal trial is a formal, complex, and dynamic proceeding. Further, the trial court noted, the rules of evidence applied, as well as “certain decorum and certain ways in which there are presentations made to the jury and certain things that you can say and you can’t say.” The trial court asked defendant whether there was a specific reason that he wished to represent himself and he answered, “Yes.”
The Court: What is that, sir?
[Defendant]: There are certain points I could bring out better than any attorney. Certain questions I can ask that are more pertinent.
The trial court informed defendant that, with respect to jury selection, opening statements, and closing statements, he would be bound by the rules of the court and that there would be a permanent record that might be used in other proceedings. The trial court stated that counsel could be present at the table with defendant in order to consult with, but that such advisors “can’t get up and speak.”
[Defendant]: No, I said as advisors, consultation and advice. That’s what I meant.
The Court: And that’s what you wish to do?
[Defendant]: Yes.
The Court: You’re aware of all of these dangers?
[Defendant]: Very much so.
The Court: You understand we’re talking about something that could carry a sentence of life imprisonment without any possibility of parole?
[Defendant]: Yes.
The Court: And do you -understand that you may not disrupt or inconvenience the Court?
[Defendant]: I’m here by my own invitation. I’ll act like the guest I am.
The Court: And that means you will follow my orders and procedures?
[Defendant]: As a guest.
The Court: Well, it’s more than a guest. You’re here as a defendant, sir.
[Defendant]: But as a guest, propriety will be observed.
The Court: Has anyone promised you or threatened you in any way that makes you want to do this?
[Defendant]: No, not at all. It’s my own free will.
In light of this exchange, the trial court determined that defendant had unequivocally, knowingly, intelligently, and voluntarily waived his right to counsel. Defendant then represented himself during jury voir dire and gave his own opening statement. On March 23, 1999, the second day of trial, before any witnesses were presented, the trial court again asked defendant if he still wished to proceed in propria persona. Defendant indicated that he still wished to represent himself, and did so by examining and cross-examining the witnesses. During a conference on the record in chambers on that day, the trial court again pointed out the difficulties of self-representation, to which defendant replied:
I don’t want you to agonize, I really don’t. Do what you know is right, do it forcefully and definitely. It won’t offend me and if you think I’m making mistakes or I don’t know what I’m doing, I’ll do the best I can with my advisers here. I made this choice. I don’t blame anybody else, and I don’t want you to agonize over it. And I don’t want you to jeopardize your position.
The trial court again raised the specter of punishment with defendant:
The Court: ... I just want you to understand that if you’re convicted of this offense it’s the rest of your life.
[Defendant]: I go to jail. I go to jail, yes. I go to jail.
The Court: Mandatory.
[Defendant]: If I’m convicted, Your Honor, we get a shot at the Supreme Court. Not that they’ll accept it, but we get a shot at it with what they want, a particularized case. They said that, we got their quotes. They want a particularized case. Four of them said we want to revisit this issue again. Now two or three years may be too quick, but when you’ve got someone starving to death in prison who you know is not a criminal and you know what he’s doing is not a crime, maybe they’ll look at it — maybe.
But if not, who cares. In 15, 20 years, they’ll say well, he was right. He’s dead now, but he was right. I’ve got to do what I know now is right and I can’t let the law, which is often immoral, block me. If Margaret Sanger did that, if Susan B. Anthony did that — look at Martin — look at all these people. I’m not saying I’m like them, but they certainly — I’m certainly going to act like them. I mean, I know this is not a crime. So do you. Everybody with sense does. Your religion may say it’s a sin, but that doesn’t make it a crime. All these people broke the law and went to jail. I am willing to do the same.
But the Supreme Court has got to decide this on- the Ninth Amendment where there is no equivocation, there is no stretching due process. They’ve got to do that. And if they do and break all these laws down, then we can have a better society, an honest society. I’m willing to risk that. Because at age of 71, I cannot go on living a hypocritical life when I can’t do what I know is right, and the world knows I’m right. Everybody does. Every nation the majority is for what I’m doing. How come it’s illegal? That’s why I’m doing this.
On March 25, 1999, the third day of trial, defendant rested and gave his closing argument, during which he stated several times that he was acting as his own attorney. The trial court instructed the jury that defendant had a constitutional right to represent himself and that they, the jurors, must not give any negative consideration to defendant’s decision to do so.
The following morning, while the jury was deliberating, defendant told the trial court that he would “take your well-advised comments and withdraw in favor of my two attorneys’ advice.” Gorosh, Dwyer, and defendant’s appellate counsel represented him at sentencing. Subsequently, defendant moved for a new trial, alleging that he had been denied the effective assistance of counsel. The trial court denied this motion.
On appeal, defendant asserts that the trial court erred in denying his motion for a new trial because the assistance that Gorosh provided fell below the constitutional standards required for effective assistance of counsel. Defendant also asserts that the trial court erred in denying his motion for a new trial based on the doctrine of “serious mistake of counsel.”
B. STANDARD OF REVIEW AND LEGAL STANDARD
We review a trial court’s decision regarding a motion for a new trial for an abuse of discretion. However, with respect to the underlying question whether Gorosh was ineffective, our review is de novo.
As this Court explained in People v Knapp:
To establish a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance fell below an objective standard of reasonableness and that, but for defense counsel’s errors, there was a reasonable probability that the result of the proceeding would have been different. People v Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994). A defendant must affirmatively demonstrate that counsel’s performance was objectively unreasonable and so prejudicial as to deprive him of a fair trial. People v Pickens, 446 Mich 298, 303; 521 NW2d 797 (1994). The defendant must also overcome the presumption that the challenged action might be considered sound trial strategy. People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991), citing Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
C. GOROSH’S REPRESENTATION BEFORE MARCH 22, 1999
(1) OVERVIEW
Defendant’s briefs on appeal contain a litany of complaints aimed at Gorosh. At various places, defendant argues that Gorosh did not provide him with “appropriate advice or advocacy;” that Gorosh was “not qualified” to handle his defense; that Gorosh lacked “personal competence to handle the case;” that Gorosh “completely shut out” Dwyer; that Gorosh “prepared no defense;” that Gorosh “withheld advice during the trial in hope of causing [defendant] to feel helpless and turn over all aspects of the case to Gorosh;” that Gorosh “put his own interests ahead of those of his client;” that Gorosh “sat idly by as inappropriate comments were made in the presence of the jury;” that Gorosh “allowed the relationships among co-counsel to deteriorate to such a point that it was impossible for them to provide effective assistance to [defendant];” that Gorosh “allowed his relationship with his client ... to deteriorate to such a point that it was impossible to provide effective assistance;” that Gorosh “did not maintain adequate communication” with defendant; and that Gorosh’s behavior in the courtroom was “totally inappropriate.” Indeed, at one point, defendant actually suggests that Gorosh did not allow Dwyer to sit next to defendant at trial “so that she could provide advice.” Further, defendant alleges that Gorosh threatened to tell the trial court that Dwyer’s pretrial motion to quash the murder count was “ridiculous.”
Lost in this corrosive barrage of verbiage is the simple fact that on March 22, 1999, the relationship between defendant and Gorosh changed completely. Before March 22, Gorosh and Dwyer represented defendant as trial counsel; from March 22 through March 25, defendant represented himself with Gorosh and Dwyer serving as standby counsel. With respect to the period before March 22, as nearly as we are able to determine, defendant claims that Gorosh was ineffective because he moved to quash the assisted suicide charge and because he was unqualified and incompetent.
(2) THE MOTION TO QUASH THE ASSISTED SUICIDE CHARGE
There is no question that Gorosh represented defendant when the defense filed a pretrial motion to dismiss the assisted suicide charge. Had the jury been presented with the assisted suicide charge and decided to convict him of that charge rather then murder, then defendant would have had a prison term no longer than four years and a fíne not exceeding $2,000. By removing this charge, the jury was forced to consider convicting him of first-or second-degree murder, both of which carry much stiffer prison terms.
In denying defendant’s motion for a new trial regarding this claim, the trial court stated:
Defendant argues ineffective assistance of counsel due to trial counsel’s alleged error in moving to dismiss the assisted suicide charge despite the urgings from co-counsel as well as others, to refrain from making such a motion. Defendant’s argument is without merit, evidencing neither harm to Defendant nor a claim for ineffective assistance of counsel. The Court, in fact, denied counsel’s motion to dismiss the assisted suicide charge in the Court’s Opinion and Order dated March 9, 1999 and further, the People dismissed said charge on their own motion.
We fully agree with the trial court. Even if Gorosh performed deficiently by bringing the motion, defendant cannot demonstrate that doing so caused him any prejudice. The trial court itself protected what defendant now contends was an essential component of his defense by denying the motion. Moreover, on March 12, 1999, the prosecutor declined to proceed on the assisted suicide charge, pursuing only the charges of first-degree murder and delivering a controlled substance. Gorosh had no influence over the prosecutor’s decision to take this action. There is no possibility that, but for Gorosh’s decision to move to dismiss the assisted suicide charge, the outcome would have been different in this case.
Further, Gorosh’s decision to seek dismissal of the assisted suicide charge may have been a matter of trial strategy. Dining the motion hearing, Gorosh argued for dismissal of the first-degree murder charge and, in the alternative, the assisted suicide charge. Gorosh presented a lengthy and coherent argument that the first-degree murder charge should be dismissed because defendant’s conduct fell within the “participation language” in the assisted suicide statute. In the alternative, he explained that if the participation language did not encompass the facts of this case, the assisted suicide charge should be dismissed. Gorosh pursued dismissal of the murder charge, which clearly was a good strategy that would have benefited defendant had it succeeded. The request to dismiss the assisted suicide charge was merely an alternative Gorosh crafted, at least in part, because of the possibility that the trial court would allow the prosecutor to proceed on the murder charge; in fact, Gorosh stated as much during the motion hearing. This Court does not substitute its judgment for counsel’s judgment regarding trial strategy. That the strat egy Gorosh chose ultimately failed does not constitute ineffective assistance of counsel.
Although defendant relies on Dwyer’s affidavit averring that she urged Gorosh not to file the motion, Dwyer herself signed the pleading immediately below Gorosh’s signature. Defendant also filed his own motion to dismiss all the charges against him, including the assisted suicide charge. This was, evidently, a strategy to which every member of the defense acceded. Defendant cannot now claim that this strategy denied him his right to effective assistance of counsel. To allow him to do so, to use the well-worn adage, would permit him to “harbor error as an appellate parachute.”
(3) GOROSH’S QUALIFICATIONS AND COMPETENCE
Defendant also claims that Gorosh was not qualified to handle his defense. In making this argument, defendant relies on the affidavits from Dwyer and Michael Schwartz, a former partner at the law firm where Gorosh was employed. According to Schwartz, Gorosh had been practicing for only three years, had limited experience, and had never tried a homicide case. As defendant put it, “Gorosh was running the show, despite his lack of competence to do so alone.”
This claim does not warrant a new trial on the basis of ineffective assistance of counsel. Inexperience alone is not enough to conclude that a defense counsel acted deficiently or in a manner that prejudiced the defendant. As the comment following MRPC 1.1 notes:
A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience .... Competent representation can also be provided through the association of a lawyer of established competence in the field in question.
Indeed, Gorosh was, before this trial, associated with a law firm and lawyers who had substantial experience with this defendant and the similar prosecutions instituted against him. Further, defendant never brought any dissatisfaction with Gorosh to the trial court’s attention, nor did he seek to end his relationship with Gorosh until after his sentencing. On the first day of trial after defendant indicated that he wished to represent himself, the trial court asked him whether he was dissatisfied with counsel. Defendant stated, “There’s no dissatisfaction.” In fact, defendant said that he had “planned” to proceed in propria persona “all along.” The trial court again asked defendant whether he was dissatisfied with counsel and he responded that he was not, but that there were certain points that he could bring out better than an attorney. Further, during jury deliberations, defendant again chose to have Gorosh represent him during sentencing. Moreover, defendant has failed to demonstrate that, but for Gorosh’s alleged deficiencies, the outcome of the trial would have been different.
D. GOROSH’S REPRESENTATION AFTER MARCH 22, 1999
(1) OVERVIEW
Defendant argues that Gorosh’s performance during the trial itself was so deficient and prejudicial that it constituted ineffective assistance of counsel, assert ing that Gorosh was unprepared, withheld advice, ignored his wishes, “shut out” Dwyer, and was concerned only with his own reputation. Inherent in this argument is the assumption that we should evaluate Gorosh’s performance as standby counsel in accordance with the same legal standards that we would use in connection with the evaluation of full-blown trial counsel. This assumption is unwarranted. However, even if we were to apply the standards in the line of cases following Pickens to evaluate Gorosh’s performance as standby counsel, we would still conclude that defendant was afforded the representation the constitution guarantees.
(2) THE RIGHT TO SELF-REPRESENTATION
The United States Constitution, the Michigan Constitution, and MCL 763.1 each guarantee a criminal defendant the right to represent himself. As the United States Supreme Court noted in Faretta v California, the right of self-representation is deeply rooted in English legal history:
In the long history of British criminal jurisprudence, there was only one tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant in a criminal proceeding. The tribunal was the Star Chamber. That curious institution, which flourished in the late 16th and early 17th centuries, was of mixed executive and judicial character, and characteristically departed from common-law tradi tions. For those reasons, and because it specialized in trying “political” offenses, the Star Chamber has for centuries symbolized disregard of basic individual rights. The Star Chamber Court not merely allowed but required defendants to have counsel. The defendant’s answer to an indictment was not accepted unless it was signed by counsel. When counsel refused to sign the answer, for whatever reason, the defendant was considered to have confessed. Stephen commented on this procedure: “There is something specially repugnant to justice in using rules of practice in such a manner as to debar a prisoner from defending himself, especially when the professed object of the rules so used is to provide for his defense.” The Star Chamber was swept away in 1641 by the revolutionary fever of the Long Parliament. The notion of obligatory counsel disappeared with it. [ ]
In upholding a criminal defendant’s right to represent himself, the Court recognized that there was a tension between the right to self-representation and the right to assistance of counsel:
There can be no blinking the fact that the right of an accused to conduct his own defense seems to cut against the grain of this Court’s decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accorded the right to the assistance of counsel. For it is surely true that the basic thesis of those decisions is that the help of a lawyer is essential to assure the defendant a fair trial. And a strong argument can surely be made that the whole thrust of those decisions must inevitably lead to the conclusion that a State may constitutionally impose a lawyer upon even an unwilling defendant.
But it is one thing to hold that every defendant, rich or poor, has the right to the assistance of counsel, and quite another to say that a State may compel a defendant to accept a lawyer he does not want. The value of state- appointed counsel was not unappreciated by the Founders, yet the notion of compulsory counsel was utterly foreign to them. And whatever else may be said of those who wrote the Bill of Rights, surely there can be no doubt that they understood the inestimable worth of free choice.[ ]
Here, defendant made a free choice to represent himself. He clearly and unequivocally waived his right to counsel. Indeed, defendant does not claim that he somehow retained his right to counsel at trial or that the trial court failed to comply with the necessary requirements regarding a proper waiver. As the Court also noted in Faretta, a defendant who exercises the free choice to represent himself faces certain consequences:
The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law. Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of “effective assistance of counsel.” [ ]
Therefore, defendant cannot now suggest that his free choice to represent himself, standing alone, denied him effective assistance of counsel. As the trial court accurately put it, defendant cannot use his waiver of trial counsel as both a sword and a shield in order to achieve the outcome he desires.
(3) “HYBRID” REPRESENTATION
Defendant suggests, however, that he actually proceeded with a type of “hybrid” representation. This argument is wholly unconvincing. In denying defendant’s motion for a new trial, the trial court stated that it had denied defendant’s request to proceed with a hybrid defense. In his brief, defendant even acknowledges that the trial court denied this request. Further, contrary to defendant’s suggestion, there is no constitutional right to a hybrid defense and, thus, a trial court is not required to order hybrid representation.
Defendant, however, argues that “hybrid representation can be and has been allowed in appropriate situations.” In support of this assertion, he cites two Michigan cases, People v Ramsey and People v Griffen In Ramsey, this Court cited Faretta for the proposition that “ ‘standby counsel’ may be appropriate to assist a defendant who represents himself.” Again referring to Faretta, as well as Chief Justice Burger’s concurrence in Mayberry v Pennsylvania, this Court went on to say that “these cases do not stand for the proposition that a defendant has a right to share trial defense responsibilities with an attorney.” Only in a footnote did this Court suggest that hybrid representation “might be appropriate in some cases[.]” Even then, this Court still noted that “the administrative difficulties inherent in such a scheme are apparent.” Though making this vague and definitely hedged statement, this Court in Ramsey still affirmed the trial court’s decision to deny the defendant a form of hybrid representation. This dictum in Ramsey provides no basis for us to conclude that the trial court erred here in denying defendant’s request for hybrid representation.
The very short discussion of representation in Griffen provides no more support for defendant’s argument. In Griffen, the
[defendant requested that his assigned counsel be dismissed. This request was granted but at the judge’s request, counsel remained to help defendant, if needed. Counsel conducted the voir dire examination of the jury and cross-examined some witnesses. Defendant’s claim of reversible error because he was denied his right to proceed in propria persona is not sustained on this record.[ ]
Thus, Griffen stands for the negative proposition that allowing hybrid representation does not compromise a defendant’s right to proceed in propria persona. It certainly does not stand for the affirmative proposition that a failure to allow hybrid representation constitutes error requiring reversal.
Defendant fares no better in citing federal precedent. He refers us to United States v Hill and to United States v Tutino. In Hill, the United States Court of Appeals for the Tenth Circuit interpreted numerous federal opinions as “not foreclos[ing] a trial judge from allowing hybrid representation in appropriate cases; rather, they indicate no right to hybrid representation exists.” In Tutino, the court wrote that “[t]he decision to grant or deny ‘hybrid representation’ lies solely within the discretion of the trial court.” Tutino, which explicitly noted “that a criminal defendant has no constitutional or statutory right to represent himself as co-counsel with his own attorney,” plainly did not reach the holding defendant wishes us to reach in this case. Whatever “appropriate” circumstances might explain a trial court’s decision to allow a defendant to proceed with hybrid representation, defendant has failed to demonstrate that they existed here.
(4) STANDBY COUNSEL
Defendant also claims that he was denied the effective assistance of counsel when Gorosh functioned as standby counsel. A defendant who asserts his right to self-representation has no absolute entitlement to standby counsel. As the Michigan Supreme Court explained in People v Dennany, “[A] defendant has a constitutional entitlement to represent himself or to be represented by counsel — but not both.” Consequently, the Court held in Dennany that Const 1963, art 1, § 13 “permits the use of standby counsel as a matter of grace, but not as a matter of right.”
The defendant in McKaskle v Wiggins placed the proper role of standby counsel squarely in front of the United States Supreme Court. In McKaskle, defen dant Carl Wiggins vacillated between asserting his right to represent himself and his right to assistance of counsel at both of his trials. On appeal, Wiggins claimed that his standby counsel impinged on his right to present his own defense, as Faretta guaranteed. As Justice O’Connor put it, Wiggins contended that his right to represent himself “was impaired by the distracting, intrusive, and unsolicited participation of counsel throughout the trial.”
The Court agreed with Wiggins’ underlying premise that a defendant who represents himself “must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.” However, the Court concluded that Wiggins had been “accorded all of these rights.” Further, the Court noted that the right to self-representation “must impose some limits on the extent of standby counsel’s unsolicited participation.” Consequently, the Court held that a defendant who represents himself “is entitled to preserve actual control over the case he chooses to present to the jury” and that “participation by standby counsel without the defendant’s consent should not be allowed to destroy the jury’s perception that the defendant is representing himself.”
Applying its holding to the facts of the case, the Court noted that the performance of Wiggins’ standby counsel “should not serve as a model for future trials,” but the Court nevertheless determined that standby counsel's participation at trial “fell short of infringing on Wiggins’ [Faretta] rights.” In essence, the Court held that while the standby counsel may have been rather assertive and somewhat obnoxious, he did not do too much.
Here, defendant asserts the opposite. He claims that Gorosh did too little. Defendant placed himself in the unenviable position of suggesting that, in light of his own inadequacies in representing himself at trial, Gorosh should have done more to help him. McKaskle stands for the proposition that a defendant who represents himself is entitled to maintain actual control over the case, which standby counsel cannot destroy by altering the jury’s perception that the defendant is representing himself. In other words, “the right to appear pro se can lose much of its importance if only the lawyers in the courtroom know that the right is being exercised.” Conceptually, it is difficult to conceive of a situation in which a reticent, rather than an assertive, standby counsel could wander into either of these two protected areas. In the absence of a right to standby counsel or even a right to hybrid representation, McKaskle provides an intellectual foundation for the proposition that a defendant who chooses to represent himself does so at his own peril. With no constitutional right to an attorney, a defendant proceeding in propria persona has no basis to claim that the attorney must abide by constitutional standards.
Two federal opinions support this view. In United States v Schmidt, the defendant claimed that the attorney appointed to serve as standby counsel at trial was “so deficient and prejudicial to her that it constituted ineffective assistance of counsel.” This was a mirror image of the argument in McKaskle; the defendant in Schmidt asserted that her attorney did too little rather than too much. The Schmidt court rejected this argument for three reasons. First, the defendant had waived her right to counsel when she asserted her right to represent herself. Second, the defendant did not have the right to hybrid counsel. Rather, “[ajbsent a constitutional right to standby counsel, a defendant generally cannot prove standby counsel was ineffective.” As the court remarked:
As might be expected, a standby counsel’s duties are considerably more limited than the obligations of retained or appointed counsel. . . . Although [the defendant’s standby counsel’s] role expanded as the case continued, he did not play the same role that defense counsel normally would in preparing the strategy for a criminal defense. Perhaps in a case where standby counsel held that title in name only and, in fact, acted as the defendant’s lawyer throughout the proceedings, we would consider a claim of ineffective assistance of standby counsel. This is not such case. Because [the defendant] proceeded pro se, she may not now assign blame for her conviction to standby counsel[ ]
Third, the court concluded that even if the traditional test for evaluating ineffective assistance of counsel claims was applied, the defendant’s standby attorney passed the constitutional threshold for performance and there was no evidence of prejudice.
The more recent decision in United States v Morrison interpreted Schmidt-.
As we held in Schmidt, without a constitutional right to standby counsel, a defendant is not entitled to relief for the ineffectiveness of standby counsel. While we stated in Schmidt that we might entertain a claim for ineffective assistance of standby counsel if standby counsel “held that title in name only and, in fact, acted as the defendant’s lawyer throughout the proceedings,” the record indicates that Morrison retained control of his own defense throughout the proceedings, so that his standby counsel was in reality, as well as in name, only that.
Going one small step beyond Schmidt, the court in Morrison concluded that this rule of law did not require the additional, and therefore superfluous, process of determining whether standby counsel was effective.
We find this reasoning in Schmidt and Morrison persuasive. From March 22 through March 25, defendant represented himself. During this time, Gorosh was his standby counsel in reality as well as in name. Because defendant chose to represent himself during this period, he may not now assign blame for his conviction to Gorosh. Further, Gorosh did nothing to interfere with defendant’s right to control the case or to alter the jury’s perception that defendant was rep resenting himself. In short, during this period, Gorosh was not acting as counsel within the meaning of the Sixth Amendment or Const 1963, art 1, § 13 and, therefore, cannot be held to the standards of effective assistance required of trial counsel. In any event, Gorosh’s performance as standby counsel did not fall below an objective standard of reasonableness and defendant has made no showing that, but for Gorosh’s alleged errors, the result of the proceedings would have been different.
E. THE “SERIOUS MISTAKE” DOCTRINE
Defendant claims that he is entitled to a new trial under the common-law “serious mistake” standard for evaluating ineffective assistance of counsel claims. Substantively, he claims that Gorosh’s failures, described in his traditional ineffective assistance of counsel argument, also constituted a violation of this serious mistake doctrine. The cases defendant cites as announcing this serious mistake doctrine rely on People v Garcia. In Garcia, the Michigan Supreme Court relied on the statement in People v Degraffenreid, that
“[a] claim that an adequate lawyer made a serious mistake does not raise the constitutional issue of the right to counsel; it does not involve the concept of ‘effective assistance of counsel,’ it should not be measured against the sham trial standard which circumscribes the constitutional right.”
Thus, the Court in Garcia held that
even where assistance of counsel satisfies the constitutional requirements, defendant is still entitled to a fair trial. Defendant can be denied this right if his attorney makes a serious mistake. But a court should not grant a new trial unless it finds that but for this mistake defendant would have had a reasonably likely chance of acquittal.[ ]
Subsequently, the United States Supreme Court set forth the federal standard for determining whether a defendant received the effective assistance of counsel in Strickland, supra, which the Michigan Supreme Court adopted in Pickens. Having moved away from the “sham trial” test previously used to analyze effective assistance of counsel claims, which was the basis for the comment in Degraffenreid regarding an attorney’s serious mistake, the Pickens Court reexamined Garcia:
Our Court of Appeals . . . has interpreted this Court’s decision in Garcia as requiring the reversal of a conviction even if defense counsel's ineffective assistance did not prejudice the defendant. While we recognize that the opinion is less than a model of clarity and might be so interpreted, such a procedure is not mandated by federal law. Garcia essentially relied on Sixth and Fourteenth Amendment jurisprudence, and did not formulate the standard from the intentions, history, or common law undergirding the Michigan Constitution. Garcia, therefore, does not stand for the proposition that the Michigan Constitution was intended to grant stronger protections than federal authority with regard to the standards applied to the issue of ineffective assistance of counsel.[ ]
Thus, in Pickens, the Michigan Supreme Court put to rest any notion that there is an alternative, common-law test for effective assistance of counsel. Again, defendant has failed to provide any persuasive authority to disprove this clear decision in Pickens, which excuses us from engaging in an exhaustive search of our own. As the First Circuit Court of Appeals so aptly put it, “It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” Moreover, even if there were such a standard for an attorney’s conduct, the same flaws in defendant’s reasoning concerning Gorosh’s performance apply in this context, especially because he wholly relies on his arguments concerning ineffective assistance to outline what he considers serious mistakes. Thus, there is no merit to this issue.
V. DEFENDANT’S CLOSING STATEMENT
A. FACTS AND ARGUMENT
Defendant gave his own closing argument to the jury on March 25, 1999. Although he did not testify at the trial, at several points in his closing argument defendant injected what would appear to be first-person testimony:
[Defendant]: Next time he [the prosecutor] uses the word “kiU” or “murder” please ask yourselves, please — why? Did you ever ask him why I did that, why I did this act he calls killing? He says just to murder Thomas Youk that’s all, to kill him .... Next time he [sic] you hear him utter kill, say why, and when.
Why then? Why on the 17th of September? Why not a month earlier or three years earlier? Ask him why not earlier didn’t he call me to kill him. Those are unanswerable questions. He can’t answer those. Why did Tom Youk call name [sic] on the 15th of [sic] 16th? Why did he call me? Because he had—
[The Prosecutor]: Well, objection, Judge. He can’t testify now. He can’t tell the facts now. That portion’s over.
The Court: You have something in evidence. We don’t know whether he’s going to talk about what’s in evidence.
* *
[The Defendant]: I staged the whole thing. Really. I’m not much of a producer or a director in movies. We — I wanted to protect the family from possible charges—
[The Prosecutor]: Objection, objection. Again, he’s testifying. He can’t put facts into—
[The Defendant]: I’m trying to show why I did it.
[The Prosecutor]: He cannot put facts before the jury which might not have been proven before or through testimony or other evidence. He cannot testify now.
[The Defendant]: There were no witnesses there. Now can I say why?
[The Prosecutor]: I’m objecting.
The Court: Well, sir, it depends on how you phrase it.
[The Defendant]: There were no witnesses there because I didn’t want anyone else—
[The Prosecutor]: Objection.
[The Defendant]: — implicated.
[The Prosecutor]: Objection.
[The Defendant]: Well, that’s — can I say why?
[The Prosecutor]: Judge, you know, he could have gotten on — you know, he didn’t—
[The Prosecutor]: — He didn’t — he can’t testify now. He cannot testify now.
[The Defendant]: Why — why I took so much time with the needle down here. Can I say that?
The Court: You can comment about what is in evidence. You can comment about what is on the tape.
[The Defendant]: I took my time down here in this one vein, trying to get a small vein, trying to keep—
[The Prosecutor]: Your Honor, I’m going to object again. He’s now testifying. He’s putting new facts before the jury. He can’t do that
[The Defendant]: Okay. The covering up of the needle sticks was to try to keep this—
[The Prosecutor]: Objection.
[The Defendant]: Well, you talked about the needle sticks.
[The Prosecutor]: You can’t say — Judge, he’s giving reasons for these things. That has to come through testimony. It can’t be presented through his closing argument to the jury.
The Court: You may make argument about what they saw, but you can’t introduce something new. Okay?
[The Defendant]: After they saw the slip of paper on the floor with my name on it, this became known. It became known. Why didn’t I come forward immediately after I did it? It became known only after they discovered my name on it and then I know — everyone knew it would become known. It wasn’t done for staging, it wasn’t done to show. It wasn’t videotaped for that purpose. And why was a narration, which he brings up? Can I give reasons for the narration?
[The Prosecutor]: I object.
[The Defendant]: That’s the implication given by the prosecutors and other — other antagonists, implying that it’s very cursory, that I don’t really know these patients, I don’t know anything about them. No doctor who’s got integrity and is competent would proceed without definitive medical information on the patient. The only point is they don’t have that information. I do.
[The Prosecutor]: Well, objection. The jury doesn’t have that, either. Again, I’m going to object to him putting in facts that didn’t come in during trial.
The Court: Let’s see if we can break this down. You may comment about anything that’s in evidence. You may not comment about anything he said. You just can’t introduce something.
The next day, while the jury was deliberating, defendant moved for a mistrial on the basis of the prosecutor’s comments. The trial court denied the motion.
Defendant now contends that the prosecutor, while objecting to his closing arguments, several times improperly referred to defendant’s decision to exercise his right to remain silent. Although defendant later moved for a mistrial, he failed to object to the prosecutor’s comments at the time the prosecutor made them. According to Gorosh, this was a calculated decision not “to disrupt the flow of closing” and an effort “to get a copy of the transcript” of the prosecutor’s comments to be used for the motion for a mistrial.
B. PRESERVATION AND STANDARD OF REVIEW
Defendant failed to preserve this issue for appeal by objecting to the prosecutor’s allegedly improper comments in a timely fashion. Accordingly, our review is limited to determining whether the comments were plain error that affected defendant’s substantial rights.
C. RIGHT NOT TO TESTIFY
Neither a prosecutor nor a trial court may comment on a defendant’s decision to exercise his constitutional right not to testify. Published state precedent does not address the precise situation presented in this case. The cases that defendant cites are distinguishable because they do not involve a defendant who proceeded in propria persona. However, People v Marcus Jones is instructive.
In Marcus Jones, while the prosecutor was giving his closing argument to the jury, the prosecutor described a piece of trial testimony, prompting the defendant to interject, “ ‘They didn’t say that.’ ” The trial court admonished the defendant, stating, “ ‘If you want to testify, sir, your chance to do that is over with you [sic]. You can’t sit there — listen Mister — you had an opportunity to testify. You can’t testify now.’ ” Defense counsel then objected, prompting the trial court to ask: “ ‘Objection to what? He’s out now speaking, [defense counsel] [sic]. He had that opportunity. The jury knows that. He can’t have it both ways, sir.’ ”
Though this Court reversed the defendant’s conviction in an unpublished opinion per curiam, issued July 10, 1992 (Docket No. 127207), the Michigan Supreme Court, in lieu of granting leave to appeal, peremptorily vacated the judgment of this Court and remanded the matter to this Court for reconsidera tion. After acknowledging that “neither the prosecutor nor the trial court may comment on the defendant’s exercise of his constitutional right not to testify,” the Supreme Court nevertheless concluded that the trial court’s remarks were a proper response to the defendant’s interruption. Further, the Court noted, “[t] hough awkwardly phrased, the judge’s statements were consistent with his obligation to maintain orderly proceedings and proper decorum in the courtroom.” Finally, the Court concluded that the defendant was not entitled to a new trial, having not been denied a fair trial in the first instance.
The Mississippi Supreme Court reached a similar conclusion in Larry Jones v State. The defendant in Larry Jones did not testify during trial, but chose to argue the sentencing phase of his capital murder prosecution. During his argument, the defendant referred to facts that were not in evidence. Consequently, the prosecutor objected in the presence of the jury:
That’s testifying and there’s no way to contradict that and it’s not fair, Judge, if he doesn’t take the stand and let the State cross examine him on this but to stand up here and to be able to do something that the State does not have a right to cross examine him on is not proper .... The State didn’t have a right to call him, Judge. We couldn’t put him on the stand [ ]
The Mississippi Supreme Court acknowledged that defendants must make a difficult choice between arguing their own case and invoking the right not to testify. However, the court remarked that
[a] criminal defendant who takes advantage of his right to argue his case to the jury must not be permitted to say all the things he might have testified to had he chosen to call himself as a witness. When he does so, he will be deemed to have waived the right not to have his failure to take the stand commented upon.[ ]
Though the court noted that a defendant representing himself still had to follow the court rules, it nevertheless indicated that trial courts should give these defendants some “leeway” in arguing their case. However, the court cautioned:
[I]n those instances where a defendant, arguing pro se, clearly goes beyond the evidence in the record on a material point, as he did in this case, he must accept as a consequence the prosecution’s comment on his failure to swear to the testimony. The defendant’s remarks in this case cannot be dismissed as a failure to grasp “legal niceties.” They are unsworn testimony, and as such, constitute a partial waiver of the constitutional privilege against self-incrimination and the prohibition against a district attorney from commenting on his not taking the stand.
We do not say that every defendant who argues pro se loses the privilege against prosecutorial comment on his failure to testify. Only when the defendant’s remarks go beyond the evidence does he waive this privilege.[ ]
Thus, as did the Michigan Supreme Court in Marcus Jones, the Mississippi Supreme Court in Larry Jones concluded that there was no error requiring reversal because the “defendant’s own statements which were exculpatory and self-serving in nature, not under oath and not supported by the record,” prompted the prosecutor to make the comment at issue.
The Missouri Supreme Court used a variation of this “proper response” rationale in State v Brannson to reject the defendant’s contention that the prosecutor’s objections and remarks improperly referred to his decision not to testify though proceeding in propria persona. Describing the context in which the references to the defendant’s decision not to testify arose, the Brannson court explained:
This is not a case in which a defendant sits mute at counsel table and the prosecution points up the defendant’s failure to testify. On the contrary, this is a case in which defendant undertook his own defense and during his protracted trial participation effectively injected himself into the mainstream of the evidence. He attempted not only to argue the various points in issue but in the presentation of evidence through his lengthy interrogation of the State’s witnesses, sought repeatedly to state as facts items not otherwise in evidence and in certain instances to establish as fact matters of which the witnesses had no knowledge. Clearly these were points which defendant considered vital to his case and on which he was apparently otherwise unable or unwilling to obtain proof. In effect he was attempting in that manner to testify to these otherwise unproved “facts.” The objections of the prosecutor to those attempts of defendant, some of which were successful, some not, accurately pointed out what defendant was trying to do — and lodged the objections in those terms (e.g., defendant “is attempting to testily to that.” “He’s trying to testify.” “Defendant is again trying to testify.”). The objections went to the form of the questions and in several instances were sustained. .. . [T]his is not a case in which defendant failed or refused to testify and in which comment was made on that fact. Indeed it is the opposite. Defendant sought in the jury’s presence to state as evidence matters not in proof and in so doing he sought to testify without having been sworn and the prosecutor objected for that reason in those terms [ ]
The Brannson court then described a rule that was easy to apply:
The orthodox standard prohibiting comment by the prosecution on the failure of the accused to testify is applicable when the accused is silent, but when the accused conducts his own defense and attempts — innocently or otherwise — to testify or to inject facts not in evidence into the case, a different problem arises. For then it is defendant’s “attempt to testify” to which objection is made [ ]
In the absence of a “direct and unequivocal” reference to the defendant’s right not to testify, the court held that there was no error requiring reversal.
Here, the prosecutor’s objection to defendant’s failure to testify fits squarely within the reasoning of both Jones cases and Brannson. Defendant’s decision to testify to the jury during closing arguments rather than commenting on the evidence admitted at trial prompted the prosecutor’s response. Defendant’s comments can only be characterized as repeated and improper attempts to present the jury with facts not in evidence. The prosecutor’s comments were properly focused on preventing defendant from continuing down this wrong path. The prosecutor’s comments certainly were not the sort of “direct and unequivocal” reference the court in Brannson would have found plain error requiring reversal. To defendant’s benefit, the trial court also instructed the jury that every defendant has an absolute right not to testify, that the jurors must not consider the fact that defendant did not testify, and that this fact must not affect their verdict in any way. In sum, given the circumstances of this case, we conclude that defendant has failed to demonstrate a plain error requiring reversal. We note that our conclusion does not hinge, as did the Mississippi Supreme Court’s decision in Larry Jones, on the notion that the defendant partially waived his constitutional privilege against self-incrimination when his remarks went beyond the evidence. We simply conclude that the prosecutor’s objections and comments did not constitute direct and unequivocal references to defendant’s failure to testify. Rather, they merely amounted to objections to defendant’s repeated and improper attempts to inject facts not in evidence into his closing statement.
VI. TESTIMONY OF TERRENCE AND MELODY YOUK
A. FACTS AND ARGUMENT
Before trial, the prosecutor moved to preclude defendant from asserting the defenses of consent and euthanasia and from introducing any irrelevant testimony regarding Youk’s medical condition, pain and suffering, and quality of life and to prevent a jury nullification argument. In its opinion and order, the trial court granted the prosecutor’s motions, but allowed evidence of Youk’s pain and suffering and quality of life where such evidence related to the assisted suicide charge that was still pending at that time. When the prosecutor decided not to pursue the assisted suicide charge, defendant asked the trial court to reconsider its decision to exclude evidence of Youk’s pain and suffering, among other things. The trial court denied this motion.
When defendant submitted his witness list, however, it included Melody and Terrence Youk. The trial court instructed defendant that he needed to make an offer of proof concerning the two witnesses. On the second day of trial, defendant made an offer of proof indicating that Terrence Youk would testify that defendant did not intend to murder Thomas Youk. With regard to Melody Youk, defendant indicated that her testimony was relevant to Thomas Youk’s background and his own intent.
The trial court made a special record regarding defendant’s offer of proof. Melody Youk testified that when she met with defendant, she explained Youk’s condition and she indicated that they understood that defendant may be able to “assist [them] in relieving his pain and suffering.” According to Melody Youk, in a subsequent conversation, she, Terrence Youk, and defendant discussed what defendant could do “to bring an end to this situation.”
Defendant argued that Melody Youk’s testimony was relevant to establish Thomas Youk’s state of mind and defendant’s perception. In response, the prosecutor argued that Melody Youk’s testimony related to consent and euthanasia, which were not recognized defenses to murder, and that Melody Youk’s testimony did not concern defendant’s state of mind. The trial court then allowed defendant to question Melody Youk further. She testified that she never told defen dant that her intent was to have defendant kill Youk and that they never discussed the words “kill or murder.” Defendant again argued that Melody Youk’s testimony was relevant to show that he did not intend to kill Youk.
Following arguments of the parties, the trial court ruled that Melody Youk’s testimony was not appropriate. The trial court stated that defendant was attempting to introduce evidence of a mercy killing, which is not cognizable under state laws, and that his proffered evidence related to the law and a legal argument or debate, which do not go before a jury. The trial court also stated that the fact that Melody Youk did not want defendant to “do something” was not relevant to defendant’s state of mind. The trial court reiterated that any consent to defendant’s action was irrelevant.
With regard to Terrence Youk’s testimony, defendant argued that he had a constitutional right to kill a patient. The trial court ultimately ruled that Terrence Youk’s proposed testimony was hearsay and irrelevant. The issue was again raised during defendant’s motion for bond pending appeal and the trial court again ruled that the offer of proofs indicated that the witnesses would only testify concerning euthanasia and consent, which were not legally cognizable defenses.
Defendant now argues that the trial court erred in barring him from calling Terrence and Melody Youk to testify at trial. Defendant contends that Terrence and Melody Youk were res gestae witnesses because they were listed on the police report and were familiar with certain circumstances surrounding Youk’s death. Further, defendant asserts, Terrence and Melody Youk could have testified about Youk’s death, the effect of his disease, his daily life conditions, and his consent, as well as rebutting the prosecutor’s argument that defendant’s purpose was to seek publicity and to advance his own agenda.
B. STANDARD OF REVIEW
The trial court has discretion when considering whether to admit evidence. Thus, we review the trial court’s decision to exclude this evidence for an abuse of that discretion.
C. RES GESTAE WITNESSES
Defendant states that because Terrence and Melody Youk were res gestae witnesses, “the Prosecutor himself was obligated to call [them] to the stand.” In making this claim, defendant apparently relies on MCL 767.40a as it appeared before the Legislature amended it in 1986, as well as the cases interpreting that former version of the statute. However, under the current version of the statute, the prosecutor no longer has a duty to produce res gestae witnesses. Instead, the prosecutor has a continuing duty to advise the defense of all res gestae witnesses that the prosecution intends to produce at trial. “Put in other terms, the prosecutor’s duty to produce res gestae witnesses was replaced with the duty to provide notice of known witnesses and to give reasonable assistance in the locating of witnesses if a defendant requests such assistance.” Thus, even if Terrence and Melody Youk could be considered res gestae witnesses, the prosecutor had no duty to produce them to testify.
D. RELEVANCE
We have a separate, and further, rationale for affirming the trial court’s decision to exclude this evidence. As the trial court noted repeatedly, the two witnesses simply had no relevant testimony to offer to the jury. “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” A variety of factors, including the elements of the charged crimes, the theories of admissibility, and the defenses asserted all help determine whether any particular piece of evidence is relevant.
The testimony Terrence and Melody Youk would have provided to the jury concerned Youk’s medical condition, pain, suffering, and the conditions of his daily life, as well as his consent. By proffering such evidence, defendant sought to justify killing Youk. In fact, although defendant claims that he proffered their testimony for other reasons, the crux of his claims consistently relate to consent and euthanasia. Simply put, consent and euthanasia are not recognized defenses to murder. As the trial court noted, “[a] trial court may exclude from the jury testimony concerning a defense that has not been recognized by the Legislature as a defense to the charged crime.” Thus, Terrence and Melody Youk’s testimony was inconsequential to the determination of this case.
Within this issue, defendant also suggests that he was prejudiced because the prosecutor discussed “lack of consent” and defendant’s political and personal agenda. Defendant asserts that the testimony of Terrence and Melody Youk could have contradicted those claims. This argument is entirely unpersuasive. The trial court allowed defendant to argue that Youk consented to defendant’s actions. Further, the jury saw the videotape of Youk consenting to defendant’s actions. Similarly, defendant himself stated on the videotape and during his closing argument to the jury that his motive in killing Youk was to relieve Youk’s pain and suffering and to bring the issue of euthanasia to the forefront. Accordingly, we conclude that the trial court did not abuse its discretion in precluding Terrence and Melody Youk from testifying.
Affirmed.
MCL 750.317.
MCL 333.7401(2)(b).
Washington v Glucksberg, 521 US 702, 721; 117 S Ct 2258; 138 L Ed 2d 772 (1997).
Dr. Dragovic explained that the Board of Pharmacy and the Federal Drug Enforcement Agency must license a physician to prescribe Seconal.
US Const, Am IX.
Const 1963, art 1, § 23.
People v Kevorkian, unpublished order of the Court of Appeals, entered March 16, 1999 (Docket No. 218077).
Const 1963, art 1, § 23.
US Const, Am XIV.
Const 1963, art 1, § 17.
See People v Adams, 232 Mich App 128, 132; 591 NW2d 44 (1998).
See People v Houstina, 216 Mich App 70, 73; 549 NW2d 11 (1996).
US Const, Am IX.
Const 1963, art 1, § 23.
US Const, Am XIV.
Const 1963, art 1, § 17.
Cruzan v Director, Missouri Dep’t of Health, 497 US 261, 279; 110 S Ct 2841; 111 L Ed 2d 224 (1990).
Id. at 279, n 7.
Glucksberg, supra at 721, n 17.
See In re Martin, 450 Mich 204, 215-216; 538 NW2d 399 (1995), discussing In re Rosebush, 195 Mich App 675; 491 NW2d 633 (1992).
See MCL 752.1027(b)(3) (“[P]rescribing, dispensing, or administering medications or procedures if the intent is to relieve pain or discomfort and not to cause death, even if the medication or procedure may hasten or increase the risk of death” is not the felony of assisted suicide.) (emphasis added).
Id.
Emphasis supplied.
See MCL 752.1027.
People v Kevorkian, 447 Mich 436, 445-446; 527 NW2d 714 (1994) (Kevorkian I).
Id. at 478-479; Justices Cavanagh, Brickley, and Griffin, joined by Justices Boyle and Riley.
Id. at 480-481.
In Vacco v Quill, 521 US 793; 117 S Ct 2293; 138 L Ed 2d 834 (1997), decided the same day, the Court upheld New York’s assisted suicide ban against an Equal Protection Clause challenge.
Glucksberg, supra at 705-706.
Mitcham, v Detroit, 355 Mich 182; 94 NW2d 388 (1959).
Id. at 203 (citations omitted).
This argument reflects defendant’s remarks on the second day of trial in which he asserted that justices of the United States Supreme Court want a particularized case and that “Four of them said we want to revisit this issue again.”
Glucksberg, supra at 750.
We need not address the question whether there is, in fact, a right to privacy under the United States and Michigan Constitutions; for the purposes of dealing with defendant’s arguments here, we have assumed the existence of such a right.
Korematsu v United States, 323 US 214, 246; 65 S Ct 193; 89 L Ed 194 (1944) (Jackson, J., dissenting).
Id., quoting Cardozo, Nature of the Judicial Process (1932), p 51.
Glucksberg, supra at 736.
Kevorkian I, supra at 465 (Cavanagh, C.J., and Brickley and Griffin, JJ.).
Glucksberg, supra at 728.
Id., noting that the Model Penal Code, § 210.5, Comment 5, p 100 states that “ ‘[T]he interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of another.’ ”
Glucksberg, supra at 730, citing H. Hendin, Seduced by Death: Doctors, Patients and the Dutch Cure, 24-25 (1997) (“Research indicates, however, that many people who request physician-assisted suicide withdraw that request if their depression and pain are treated.”).
Glucksberg, supra at 731, quoting the Council on Ethical and Judicial Affairs, Decisions Near the End of Life, 267 JAMA 2229, 2233 (1992) (“ ‘[T]he societal risk of involving physicians in medical interventions to cause patients’ deaths is too great.’ ”).
Glucksberg, supra at 728-732.
Id. at 732.
Compassion in Dying v Washington, 79 F3d 790 (CA 9, 1996).
Glucksberg, supra at 733 (citations omitted).
United States v 12 200-ft Reels of Super 8 MM Film, 413 US 123, 127; 93 S Ct 2665; 37 L Ed 2d 500 (1973).
Glucksberg, supra at 735. The Court also referred to Justice Cardozo’s observation in The Nature of the Judicial Process, 51 (1932) of “ ‘[t]he tendency of a principle to expand itself to the limit of its logic.’ ” Glucksberg, supra at 733, n 23.
A Report of Chairman Charles T. Canady to the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong, 2d Sess (Comm Print, 1966), pp 16-21.
Glucksberg, supra at 734.
Id. at 720.
See Moore v East Cleveland, Ohio, 431 US 494, 502; 97 S Ct 1932; 52 L Ed 2d 531 (1977) (plurality opinion).
See Taylor v Kurapati, 236 Mich App 315, 355; 600 NW2d 670 (1999).
Kevorkian I, supra at 481-482; see also In re Certified Question (Marlinga v Kevorkian), 456 Mich 1223; 575 NW2d 550 (1998); Kevorkian v American Medical Ass’n, 237 Mich App 1; 602 NW2d 233 (1999); People ex rel Oakland Co Prosecuting Attorney v Kevorkian, 210 Mich App 601; 534 NW2d 172 (1995).
Glucksberg, supra at 738.
See, generally, Taylor, supra.
See Const 1963, art 4, § 46; Glucksberg, supra at 741 (Stevens, J., concurring) (emphasizing the incompatibility of Washington’s argument that life must be saved with the fact that it has the death penalty).
See United Steelworkers of America, AFL-CIO-CLC v Weber, 443 US 193, 218-219; 99 S Ct 2721; 61 L Ed 2d 480 (1979) (Burger, C.J., dissenting).
Glucksberg, supra at 750 (Stevens, J., concurring).
Id. at 737-738 (O’Connor, J., concurring).
Id. at 736.
Id. at 737.
Id. at 790 (Breyer, J., concurring).
Id.
Id. at 791-792.
See id. at 777-779 (Souter, J., concurring).
Id. at 779.
Id. at 782.
Id. at 789.
Id. at 755.
Id. at 785.
Id. at 739-740 (Stevens, J., concurring).
Id. at 741-742.
Id. at 740, 741.
Id. at 741 (emphasis added).
Id. at 750 (emphasis added).
Glucksberg, supra at 750-751.
See Kevorkian I, supra at 514 (Levin, J., concurring in part and dissenting in part).
How or why Dwyer also became defendant’s attorney is not clear from the record.
People v Leonard, 224 Mich App 569, 580; 569 NW2d 663 (1997).
People v Toma, 462 Mich 281, 310; 613 NW2d 694 (2000).
People v Knapp, 244 Mich App 361, 385-386; 624 NW2d 227 (2001).
Defendant relies on Dwyer’s affidavit as support for this allegation. We have reviewed that affidavit and can find no such support.
See MCL 750.316 (mandatory life imprisonment for first-degree murder); MCL 750.317 (life in prison or any term of years for second-degree murder).
See People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996).
Id.
People v Carter, 462 Mich 206, 214; 612 NW2d 144 (2000).
US Const, Am VI.
Const 1963, art 1, § 13.
See Martinez v Court of Appeal of California, Fourth Appellate Dist, 528 US 152, 154; 120 S Ct 684; 145 L Ed 2d 597 (2000); People v Adkins (After Remand), 452 Mich 702, 720; 551 NW2d 108 (1996).
Faretta v California, 422 US 806, 821-823; 95 S Ct 2525; 45 L Ed 2d 562 (1975).
Citation omitted.
Id. at 832-834 (citations omitted).
Id. at 835, n 46.
See McKaskle v Wiggins, 465 US 168, 183; 104 S Ct 944; 79 L Ed 2d 122 (1984).
People v Ramsey, 89 Mich App 260; 280 NW2d 840 (1979).
People v Griffen, 36 Mich App 368; 194 NW2d 104 (1971), overruled on other grounds in People v Reed, 393 Mich 342, 351; 224 NW2d 867 (1975).
Ramsey, supra at 263.
Mayberry v Pennsylvania, 400 US 455, 467-468; 91 S Ct 499; 27 L Ed 2d 532 (1971).
Ramsey, supra at 263.
Id. at 263, n 1 (emphasis added).
Id.
Griffen, supra at 372.
United States v Hill, 526 F2d 1019 (CA 10, 1975).
United States v Tutino, 883 F2d 1125, 1141 (CA 2, 1989).
Hill, supra at 1024 (emphasis added).
Tutino, supra at 1141.
See People v Davis, 216 Mich App 47, 55-56; 549 NW2d 1 (1996).
See People v Dennany, 445 Mich 412, 442; 519 NW2d 128 (1994).
Id. at 443.
McKaskle, supra.
Id. at 170-173.
Id. at 173.
Id. at 176.
Id. at 174.
Id.
Id. at 177.
Id. at 178.
Id. at 186.
Id. at 179.
United, States v Schmidt, 105 F3d 82 (CA 2, 1997).
Id. at 89.
Id. at 90.
Id., citing United States v Cochrane, 985 F2d 1027, 1029 & n 1 (CA 9, 1993), and United States v Windsor, 981 F2d 943, 947 (CA 7, 1992).
Schmidt, supra at 90.
Id. (emphasis added).
Id. at 90-91.
United States v Morrison, 153 F3d 34, 55 (CA 2, 1998) (citations omitted).
See People v Sealy, 136 Mich App 168, 175-176; 356 NW2d 614 (1984), People v Smith, 108 Mich App 338, 343; 310 NW2d 235 (1981), and People v Lotter, 103 Mich App 386, 389; 302 NW2d 879 (1981).
People v Garcia, 398 Mich 250, 266; 247 NW2d 547 (1976).
Id.
People v Degraffenreid, 19 Mich App 702, 717; 173 NW2d 317 (1969).
Garcia, supra at 266.
Pickens, supra at 326-327.
Degraffenreid, supra at 717.
Pickens, supra at 312-313.
See Mitcham, supra.
United States v Zannino, 895 F2d 1, 17 (CA 1, 1990).
See People v Schutte, 240 Mich App 713, 720; 613 NW2d 370 (2000).
See People v Carines, 460 Mich 750, 761-762; 597 NW2d 130 (1999).
See Griffin v California, 380 US 609, 615; 85 S Ct 1229; 14 L Ed 2d 106 (1965); People v Fields, 450 Mich 94, 108-109; 538 NW2d 356 (1995).
People v Marcus Jones, 442 Mich 893; 499 NW2d 344 (1993).
Id. at 893.
Id.
Id. at 894.
Id. at 893.
Id.
Id.
Larry Jones v State, 381 So 2d 983 (Miss, 1980).
See id. at 993.
Id. at 997.
Id. at 998.
Id. at 993.
Id.
Id. at 993-994.
Id. at 994.
Id. at 993.
State v Brannson, 679 SW2d 246 (Mo, 1984).
Id. at 249 (citations omitted).
Id. at 250.
People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998).
Id.
1941 PA 336.
1986 PA 46.
See People v Burwick, 450 Mich 281, 298; 537 NW2d 813 (1995).
See People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000).
Id.
MRE 401.
People v Brooks, 453 Mich 511, 517-518; 557 NW2d 106 (1996), quoting People v Mills, 450 Mich 61, 67-68; 537 NW2d 909 (1995).
People v Demers, 195 Mich App 205, 207; 489 NW2d 173 (1992). | [
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] |
Montgomeby, J.
John Wall, the complainant, on March 3, 1892, owned in fee simple the south 50 acres of the E. \ of the S. E. £ of section 25 in Eaton township, Eaton county, Mich. He was a married man, but he and his wife had separated, and at such time did not live together. The premises were worth $2,000. A mortgage had been foreclosed, and at such date the equity of redemption was about to expire. The amount required to redeem aggregated $950. The wife refused to execute either a deed or a mortgage, and the complainant was compelled to pay her $500 for so doing. The complainant negotiated a sale of the entire premises to one Joel P. Britten for $2,000; but subsequently a different arrange ment was effected, whereby Britten took the south 35 acres, and Ruth F. Wall, a maiden sister of complainant, took the north 35 acres. The deed to Britten was executed by complainant and wife March 3, 1893; Britten paying $1,000 for such south 35 acres. The deed to Ruth F. Wall of the north 35 acres was executed at the same time, John and his wife joining in the execution of such deed. The complainant paid his wife the $500 he had agreed to pay her.
- The contract entered into between complainant and his sister was oral, and substantially as follows: Ruth was to furnish John with $450, — the amount lacking to redeem from the mortgage; — and John was to give her a deed of the 35 acres, and Ruth was to have possession and all of the rents and avails thereof. She was to pay the taxes and meet the necessary expenses, and when the land paid her back, or when she got her money back out of it, she was to redeed to John. Ruth, not having the money, made arrangements to, and did, borrow the $450 from one Frank Rose. She immediately assumed possession, and from that time until her death, which occurred April 31, 1899, she had and received all the avails of said 35 acres; and complainant claims that she received therefrom the amount loaned, together with the interest and expenses, before her death, and was equitably bound to reconvey the 35 acres back to him. Ruth Wall died without having redeeded the property, and this bill is filed for the purpose of having this deed declared a mortgage, and redeeming from the same. The circuit judge made a decree in favor of the complainant, and the defendant the Albion College appeals.
The evidence is overwhelming and convincing that it was intended that complainant retain an interest in this land, and it is manifestly inequitable that he should be deprived of it. But it is contended by defendants that certain testimony given by complainant in a certain probate proceeding shows that this was not technically a mortgage, for the reason that there was no agreement on his part to repay the monejr, and no debt created. It is true that complainant testified in the probate proceeding:
“ I do not claim that there was any obligation on me to pay her any of this $450. The deed paid her, and she got her pay, and when she got her pay she would deed it back to me.”
An argument may be built up from this, it is true, that there was no understanding that there was any obligation upon the part of complainant to repay this money. It is altogether likely that neither party expected that he would be under the necessity of doing so, as it was evidently expected that the money should be realized from the land itself. But, in our view of the case, the whole transaction indicates that security was intended, and that it was complainant’s obligation which was being paid from the proceeds of the land, and that equity, at least, would raise a promise on his part to repay within a reasonable time. We also think the testimony supports the finding that the deceased was repaid her advances, interest, and taxes. We think the case falls within Sowles v. Wilcox, 127 Mich. 166 (86 N. W. 689), and that the decree should be affirmed, with costs of this court to complainant.
Hooker, C. J., and Moore, J., concurred with Montgomery, J. | [
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] |
Hooker, C. J.
The plaintiff was insured in the defendant company, and has brought an action upon the policy to recover for a loss by fire. His policy was a Michigan standard policy, and contained the following provisions:
“All while contained in the two-story, shingle-roof, frame building and additions, adjoining and communicating, occupied only as a dwelling, and not elsewhere, and situated at number 140, north side of Willis avenue, between Second and Third avenues, Detroit, Michigan.
“This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto; and, as to such provisions and conditions, no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”
On the 2d day of May the plaintiff had a talk by telephone with the local agent of the defendant company with reference to the transfer of the insurance to a different locality to which he had removed or was removing. They do not agree about this conversation. The plaintiff testified that he then informed the agent that he had moved or was moving his stock to another location, and wanted him then and there to transfer the insurance to the new locality, and was assured that he would do so, and would make a memorandum of the transfer at that time. The witness stated that he said to the agent:
“ ‘ I want you particularly to make this transfer today,’ and I was very emphatic that he transfer it today; and he said he would do so, and that I could have the permit at any time that I would bring over the policy.”
It is admitted that plaintiff had the policy in his possession. The policy was brought to the agent on the 21st day of May, the property having burned on May 19th; and the agent stepped into the next room and brought the permit, which he attached to the policy. On cross-examination he testified that: “I asked him if he would do it at that time, and he said he would. He said, ‘ It is transferred now,”’ — and that the agent afterwards told him that he entered it on his books at that time, and that he did not know, of his own knowledge, whether the transfer was made on the books at that time or not.
The jury found from the testimony that the permit was-made and held for the plaintiff before the fire. This they might do from the statements made by the agent at the-time the transfer was agreed upon, which was part of a. transaction within the power of the agent, i. e., to consent to the transfer, and plaintiff’s version of what occurred when the permit was attached to the policy. If it is tfue that the agent and the plaintiff agreed upon a written permit, and the same was actually made at the time in consideration of the promise to pay an additional-premium, and the permit was held for the plaintiff, who-was to call for it, although the policy itself was not present, and the permit was therefore not attached to it, the company cannot escape liability upon the ground that the-consent had not been given in technical compliance with the contract. It was a substantial compliance, and not dissimilar from a case where the permit is filled out and signed by the agent, and given to the policy holder to-attach. Presumptively, these permits are printed and furnished by the company to be used in place of formal writings upon the policies. The case is within the rule of Pollock v. Insurance Co., 127 Mich. 460 (86 N. W. 1017). We consider the other questions raised technical and unimportant.
The j udgment is affirmed.
Moore and Montgomery, J J., concurred with Hooker, C. J. ' | [
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Hooker, C. J.
The defendant was convicted of the offense of embezzlement. He and a copartner named Ambler owned and conducted a bank at Pentwater. Peterson, a cousin of the defendant, had some negotiations with him in relation to the former’s taking Ambler’s interest in the bank by purchase, and Nielsen, the defendant, made a proposition, the substance of which was that Peterson should borrow a sum of money in Europe, that it should be delivered to Nielsen or the bank, and that the same should draw interest, and Peterson should be employed in the bank, until an arrangement for partnership could be made between Nielsen and himself. Peterson procured the money from friends in Europe, and delivered it to Nielsen at the bank, and he in turn delivered the draft to an employe, with directions to him to enter it for collection, and it was sent to the bank’s correspondent at Chicago, and the credit exhausted by being drawn against. Subsequently the Pentwater bank failed, and Peterson never recovered his money.
The defendant’s counsel insist that the uncontradicted testimony shows that the understanding was that the money should be deposited in the bank by Peterson until it should be needed, while the prosecution claims that the money was left by Peterson with Nielsen, to be kept for him until the arrangement could be made with Ambler for his interest, when it was to be used to pay him. It is only upon the latter theory that the verdict can be sustained. We have examined the testimony bearing upon the subject, and are of the opinion that it leaves no room for doubt that the arrangement was as claimed by defendant’s counsel. The testimony of Peterson, taken as a whole, is consistent with no other theory.
The conviction is reversed, and a new trial ordered.
Moore and Grant, JJ., concurred. Long and Montgomery, JJ., did not sit. | [
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Montgomery, J.
The sole question presented in this case is whether, in a proceeding for a partition of lands, the circuit court in chancery having jurisdiction of the subject may, where the lands in question are situated in different counties, direct a sale of all the land in the county where the court sits. The statutes hearing upon this subject are 3 Comp. Laws, §§ 11014, 11045, 11063, and 11068. Section 11014 provides, among other things, that:
‘ ‘ In case such lands are situated in different counties, the suit may be instituted in the circuit court for any one of the counties in which any part of such lands may be situated, and such court shall "have complete jurisdiction in the premises, as fully and effectually as if the whole of such lands were situated in the county in which the suit is instituted.”
Section 11045 provides that:
“ If the commissioner to whom reference shall be made * * * shall report to the court that all the lands or tenements of which division and partition is sought are so situated, or that any district, tract, lot, or portion thereof is so situated, that a partition and division thereof amongst the persons interested therein cannot be made without great prejudice to the owners, and if the court shall be satisfied that such report is just and correct, the court may thereupon make an order that the commissioner sell the premises so situated at public • auction to the highest bidder. ”
Section 11068 provides that “ such conveyances, so executed, shall be recorded in the pounty where the premises are situated.”
It will be seen that there is no express provision as to where these lands shall be sold; but the provisions quoted would seem, by clear implication, to authorize the sale in the county where the proceeding is launched; and this is not against the policy of the law, for in foreclosure cases, where lands are situated in different counties, the sale takes place in the county where the decree is rendered. 1 Comp. Laws, § 522.
It is insisted by relator, however, that section 11063 requires the sale to be had in the same manner as is required by law on sales of real estate by sheriffs on execution. This section reads as follows:
“ The master shall give notice of any sale to be made by him for the same time and in the same manner as is required by law on sales of real estate by sheriffs on execution.”
This section cannot be construed as providing a place where the sale may take place, or as affecting in any way the manner of sale. It distinctly relates to the subject of notice, and requires such notice as is required to be given by sheriffs on execution sales.
We think the statute as a whole, and by clear implication, authorizes the sale that was made in this case, and the writ will be denied, with costs.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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Moore. J.
The petitioner is now detained by the sheriff of the county of Wayne, pending an indictment ■charging him with the murder of Valmore C. Nichols. The petition filed in this cause for his discharge shows that said charge is still pending and undetermined in the recorder’s court of the city of Detroit. Petitioner claims he has once been in jeopardy, within the meaning of the Constitution of the State and of the United States, and cannot again be tried, but is entitled to his discharge. '
After the jury was obtained and a portion of the witnesses for the people were sworn, information came to the trial judge in relation to some of the jurors and the officers having charge of the jury, which led him to make an investigation. In his return to the writ of certiorari the trial judge returned that this investigation was made by him with no one present except .the court stenographer and the person he was then examining.
“ The investigation and inquiries so made are supplemented by my observation of the conduct of juror Henry Gr. Poupard in open court in his seat in the jury-box during the progress of this trial, the fiagrancy of which led me to make a statement to him in the presence of all the jurors herein in the court-room upon the adjournment of court at noon upon Tuesday, the 12th day of November, 1901. The said investigation and inquiries were made for the purpose of determining whether or not the jurors herein, or any of them, were, when impaneled herein, unbiased and unprejudiced jurors, and otherwise qualified to sit herein; and also for the purpose of determining whether or not, since the impaneling of the jurors herein, the said jurors, or any of them, have, by their conduct or statements, so conducted themselves as to interfere with the due and orderly administration of justice to that extent where the rights of the people or the defendant herein were imperiled or endangered. The further purpose of such investigation and inquiries was to ascertain whether or not the officers, or any of them, in charge of the jurors herein had been guilty of any misconduct, and, if so, whether such misconduct would, in the event of a conviction herein, be such as to nullify the proceedings had. From such investigation, inquiries, and from the personal observation of the court, I do specifically find and determine the facts to be:
“That juror Henry G. Poupard, upon his voir dire examination herein, purposely and willfully concealed a material fact when asked about it. Upon his voir dire examination said juror Henry G. Poupard stated that he did not know any member of the family of this defendant, other than Mr. Simon Ascher. His voluntary statement to me under oath, upon Thursday, the 14th day of November, 1901, is that, while engaged as a saloon keeper in the city of Detroit, he had business dealings with Louis Ascher, the brother of said defendant, and that said dealings covered a considerable period of time, and that he now is a debtor of the said Louis Ascher in a small sum of money as the result of said dealings. In the light of the subsequent conduct and statements made by the said juror Henry G. Poupard during the progress of this trial, as ascertained by me from the said investigation and inquiries, and from personal observation of him, I am led to the conclusion, and do conclusively find, that, at the time he was impaneled herein, he was not an impartial and unbiased juror, and I do conclusively find that, in order to be accepted as a juror herein, he fraudulently and willfully concealed from the court and counsel his bias and prejudice, which so existed both at the time and before he was sworn and impaneled herein as a juror.
“Ifurther find and determine that, from the inception of this trial, the said juror Henry G. Poupard has frequently, by his statements and by his manner in making such statements, expressed to his colleagues disbelief in the testimony given by the witnesses herein; that he has expressed his belief in the innocence of the said defendant to his fellow jurors; that he has said, in the presence of some of his fellow jurors, that the officials were persecuting the defendant herein, and that the police officers in this case were endeavoring to procure a conviction of defendant herein, whether guilty or innocent; that he has repeatedly endeavored to influence some of his colleagues by criticising, ridiculing, and belittling the testimony of the witnesses sworn herein. I further specifically find and determine that upon the night of Saturday, the 9th day of November, 1901, at the Hotel Normandie, in this city, the said Henry G. Poupard was guilty of gross misconduct in purchasing and furnishing to some of his fellow jurors herein an excessive quantity of intoxicating liquor, and in then and there procuring the intoxication of Patrolman Daniel O’Keefe, who was then in charge of the said jurors. I further specifically find and determine that upon the night of Saturday, the 9th day of November, 1901, at said Hotel Normandie, the said juror Henry G. Poupard did hold communications with Charles Lewis and Edward W. Harmeyer, who were not jurors herein, without receiving permission from the court, and that such •communications were had in the presence of no officers in charge of the jurors herein! I find and determine that at the inception of this case, and before the taking of testimony had begun, the said juror Henry G. Poupard was biased and prejudiced against the people, and in favor of the defendant herein, to such an extent as to disqualify him serving as a juror herein; that his conduct and statements following the taking of testimony grew out of the bias so held by him; and that he has made a studied and persistent effort to create a like .bias in the minds of the other jurors herein.
“I find and determine that juror John E. Sauer, throughout this trial, and from its inception, has exhibited a strong and studied bias and prejudice; that at no time since he was impaneled herein has he been an impartial juror. I further find and determine that he has studiously shown his bias and prejudice for the purpose of influencing other jurors herein, and that he has ridiculed ánd belittled the testimony of witnesses sworn, herein in the presence of his fellow jurors. I further find and determine that, for the purpose of discrediting the testimony of one of the witnesses herein, the said John E. Sauer willfully misstated the reasons for the reversal of this case by the Supreme Court of this State. I further conclusively find and determine that upon the night of Saturday, the 9th day of November, 1901, at the Hotel Normandie, the said John E. Sauer was guilty of gross misconduct in being a party towards the procurement of the intoxication of Patrolman Daniel O’Keefe, and that his misconduct in that regard was of such a character as would, in the event of the conviction of the defendant herein, nullify the proceedings here had and require a new trial of the issue herein involved.
“I further find and determine that upon the night of Saturday, the 9th day of November, -1901, while in charge alone of the jurors herein at the Hotel Normandie, in this city, Patrolman Daniel O’Keefe became and was intoxicated, and that his intoxication incapacitated him from discharging the duty then and there devolving upon him, and that, by reason of such intoxication, unauthorized communication was had by juror Henry G. Poupard with Charles Lewis and Edward W. Harmeyer, they not being jurors herein, and that there was then and there opportunity given the jurors herein for other unauthorized and improper communications with persons with whom communication was then and there improper. I further find and determine that, in my opinion, the misconduct of the said officer was of such a character that, in the event of a conviction of the defendant herein, the facts being disclosed to the court, a new trial of this cause would be required.
“From the foregoing findings of fact I have concluded that it is within my power, and that it is my imperative duty, to discharge the jury herein impaneled from further consideration of this case, and formally do declare this trial to be a mistrial.”
The findings of fact were duly entered upon the court journal. In the presence of counsel for the respondent and the respondent himself, the court then made an order in which the findings of fact were recited, and that the trial was a mistrial, and discharging the jury from further consideration of the case, and remanding the respondent to the custody of the sheriff pending a new trial. Counsel for the respondent moved the court for his discharge, which motion was overruled, and this proceeding is brought.
It is claimed the question is one of greater importance than the personal rights of the respondent, and involves the integrity of the right of trial by jury. It is said that no person shall be placed twice in jeopardy for the same offense; nor shall he be deprived of life, liberty, or property without due process of law. Const. U. S. Amend, art. 5. No one will question this right of a person accused of crime. ■ The trouble arises in determining when one is placed twice in jeopardy.
It is claimed the proceedings heretofore had in this case show the respondent has been placed in jeopardy, and that he should now be discharged; citing Cooley, Const. Lim. 327; People v. Harding, 53 Mich. 485 (19 N. W. 155); People v. Taylor, 117 Mich. 585 (76 N. W. 158). The - courts of the English-speaking people have for centuries been exceedingly jealous of the right of persons accused of crime to a fair and impartial trial. This has been provided for, not only by the action of the courts, but, in this country, by making provisions in the written constitutions intended to bring about this result. Section 29, art. 6, of the Constitution of Michigan provides, “No person, after acquittal upon the merits, shall be tried for the same offense.” While this language differs from that used in the United States Constitution, the law of jeopardy is doubtless the same under both provisions. Village of Northville v. Westfall, 75 Mich. 603 (42 N. W. 1068).
At one time, the doctrine of placing the accused in jeopardy but once was invoked as a bar to a second trial where a jury had disagreed, or a member of the panel had been taken so ill the trial could not proceed, or had died; but such a claim would no longer be made. In People v. Harding, 53 Mich. 481 (19 N. W. 155), where the jury had disagreed, it was contended the respondent had been placed in jeopardy, and, as the record did not show it had been judicially determined the jury were unable to agree, nor any necessity for their discharge, that the respondent could not again be put upon trial. In disposing of the case Justice Cooley said:
‘ ‘ This case is therefore to be determined on common-law rules; and the respondent relies upon People v. Jones, 48 Mich. 554 (12 N. W. 848), as ruling it. That case is not very fully reported. The record showed that the respondent was put on trial before a jury duly impaneled and sworn; that the prosecution went into the proofs and rested; that thereupon the jury was discharged, and a new information filed against the respondent for the same offense, upon which he was tried and convicted. The proceedings on the first information were pleaded as a bar to the second, and this court sustained the bar. No reason appeared for discharging the jury, and the discharge stood upon the record as an act of the court, not shown to have been assented to or compelled by any necessity. On each of the trials appearing in the record before us, the jury reported to the court an inability to agree, and were immediately discharged by its order. It is conceded on behalf of respondent that, when it is found impossible for the jury to agree, the judge may lawfully discharge them for that reason, and the discharge is not an acquittal; but it is contended that the record must show that the judge found that a necessity for the discharge existed; and upon the validity of this contention the case must turn.
‘ ‘ There is no doubt the report of the jury that they cannot agree is the proper evidence upon which the judge should act in determining upon the impossibility of their reaching a verdict. But he may not be satisfied with their first report, and has a right to keep them together for further consultation as long as in his opinion there is reasonable ground for believing they may finally agree. The whole subject, however, is referred to his judgment; and when he decides, no one can question his conclusion. And if in this case he had directed an entry upon the journal of the court that, being satisfied the jury could not agree, he directed their discharge, no question could be made of the right to proceed to a new trial. But while it would be very proper to make such an entry, it has never been the practice in this State to do so. The fact that the judge, on receiving the report of the jury of their inability to agree, directs their discharge, is understood to be an assent on his part to their own conclusion, and a determination by him that the necessity for their discharge without a verdict has arisen. And we think this a proper view to take of his action. Any other would be technical, and tend in many cases to defeat justice.”
In People v. Taylor, 117 Mich. 583 (76 N. W. 158), the respondent having been once acquitted, it was held he could not be put upon trial again; but in disposing of the case Justice Hooker used the following language:
“This case should be distinguished from a class of cases where, after a jury is impaneled and charged with the defendant and his case, some intervening necessity compels the discharge of the jury, e. g., the death or sickness of a juror, the ending of the term, a disagreement, etc., and possibly a continuance, granted upon the motion of the defendant. The case of Stewart v. State, 15 Ohio St. 155, is such a case. After the jury was sworn, it was discovered that one of the jurors had been on the grand jury which found the indictment in the case. The defendant’s counsel objected to proceeding to trial with the jury thus impaneled, but declined to waive any of the defendant’s rights. The jury was discharged, and a conviction by another jury was sustained. Such a case was People v. Gardner, 62 Mich. 312 (29 N. W. 19). There a question arose over the regularity of the jury, and a new one was called up'on the defendant’s objection to the first. It was said by Mr. Justice Champlin that ‘he has no right to complain that his objection was sustained, and the discharge of the jury with his consent cannot be set up as an acquittal.’ ”
See People v. White, 68 Mich. 648 (37 N. W. 34).
These cases clearly recognize the doctrine that occasions' may arise after the trial is entered upon, making it necessary to stop the trial and discharge the jury, without it necessarily following that respondent has béen so placed in jeopardy that he cannot again be put upon trial. While the precise question involved in this case has not been before this court, it is not a new question. In U. S. v. Morris, 1 Curt. C. C. 23 (Fed. Cas. No. 15,815), after the trial was entered upon, a jury was discharged under circumstances very similar to the case at bar. In holding that the respondent might again be put upon trial the court said:
“ The rule of the common law, as shown by the authorities cited by the defendant’s counsel, is that neither party has a right of challenge, after the juror is sworn, for cause then existing. But it by no means follows that it is not in the power of the court, at the suggestion of one of- the parties, or upon its own motion, to interpose and withdraw from the panel a juror utterly unfit, in the apprehension of every honest man, to remain there. Suppose a prisoner on trial for his life should inform the court that a juror had been bribed to convict him, that the fact was unknown to him when the juror was sworn, and that he had just obtained plenary evidence of it, which he was ready to lay before the court, is the court compelled to go on with the trial? Suppose the judge, during the trial, obtains by accident personal knowledge that one of the jurors is determined to acquit or convict without any regard to the law or the evidence, is he bound to hold his peace F In my judgment, such a doctrine would be as wide of the common law as it would be of common sense and common honesty. The truth is that this rule, like a great many other rules, is for the orderly conduct of business. There must be some prescribed order for the parties to make their challenges, as well as to do almost everything else in the course of a trial. As matter of right, neither party can deviate from this order. And it is the duty of the court to enforce these rules, which are for the general good, even if they occasion inconvenience and loss in particular cases. But there goes along with all of them the great principle that, being designed to promote the ends of justice, they shall not be used utterly to subvert.and defeat it; being intended as a fence against disorder, they shall not be turned into a snare. They do not tie the hands of the court, so that when, in the sound discretion of the court, the public justice plainly requires its interposition, it may not interpose; and it would be as inconsistent with authority as with the great interests of the community to hold the court restrained.
“A very eminent English judge has treated this rule concerning challenges just as I believe it should be treated. Chief J ustice Abbott says:
‘“I have no doubt that if, from inadvertence or any other cause, the prisoner or his counsel should have omitted to make the challenge at the proper moment, the strictness of the rule which confines him to make his challenge before the officer begins to administer the oath would not be insisted on by the attorney general, or, if insisted upon by him, would not be allowed by the court.’ The Derby Case, Joy, Conf. 220.
“ That is, like other rules of procedure in trials, it is in the power of the court to dispense with it when justice requires.
“ But the interposition of the court may be placed on even higher ground, supported by authority which in this court is decisive. In U. S. v. Perez, 9 Wheat. 579, the question came before the Supreme Court whether it was in the power of the circuit court to discharge a jury in a capital case, and afterwards put the prisoner on trial by another jury. The distinction between capital cases and misdemeanor, under the provision of the Constitution of tbe United States, cited by tbe defendant’s counsel, is very plain; yet, speaking even of capital cases, the court say:
“‘We think that, in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, ■or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject, and it is impossible to define all the circumstances which would render it proper to interfere.’
“.That a court would interfere far more readily in a case of misdemeanor there can be no doubt, and it is so asserted in terms by Story, J., in U. S. v. Coolidge, 3 Gall. 364 (Fed. Cas. No. 14,858). In U. S. v. Shoemaker, 2 McLean, 114 (Fed. Cas. No. 16,279), and U. S. v. Gilbert, 3 Sumn. 19 (Fed. Cas. No. 15,304), it will be found that Justices Washington, Story, and McLean have all acted in their circuits upon these principles.
“Now, if the court has such a discretion, and if, as the Supreme Court say, it is to be' exercised even in capital cases, where the ends of public justice would otherwise be defeated, what case can be imagined more fit for its interposition than one where the court finds that a juror is so biased, either against the prisoner or the government, that he is unfit to sit in the cause ? The truth is that it is an entire mistake to confound this discretionary authority of the court, to protect one part of the tribunal from corruption or prejudice, with the right of challenge allowed to a party. And it is, at least, equally a mistake to suppose that, in a court of justice, either party can have a vested right to a corrupt or prejudiced juror, who is not fit to sit in judgment in the case. I hazard nothing in saying that no such right is known to the common law.”
The case of Simmons v. U. S., 142 U. S. 148 (12 Sup. Ct. 171), was a case very similar to this, The opinion is by Justice Gray, who said:
“The general rule of law upon the power of the court to discharge the jury in a criminal case before verdict was laid down by this court more than 60 years ago, in a case presenting the question whether a man charged with a capital crime was entitled to be discharged because the jury, being unable to agree, had been discharged, without his consent, from giving any verdict upon the indictment. The court, speaking by Mr. Justice Story, said:
“ ‘We are of opinion that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think that, in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion rests, in this as in other cases, upon the responsibility of the judges, under their oaths of office.’ U. S. v. Perez, 9 Wheat. 579.
“A recent decision of the court of queen’s bench, made upon a full review of the English authorities, and affirmed in the exchequer chamber, is to the same effect. Winsor v. Reg., L. R. 1 Q. B. 289, 390, 6 Best & S. 143, and 7 Best & S. 490.
“There can be no condition of things in which the necessity for the exercise of this power is more manifest, in order to prevent the defeat of. the ends of public justice, than when it is made to appear to the court that, either by reason of facts existing when the jurors were sworn, but not then disclosed or known to the court, or by reason of outside influences brought to bear on the jury pending the trial, the jurors, or any of them, are subject to such bias or prejudice as not to stand impartial between the government and the accused. As was well said by Mr. Justice Curtis in a case very like that now before us:
“ ‘ It is an entire mistake to confound tliis discretionary authority of the court, to protect one part of the tribunal from corruption or prejudice, with Jthe right of challenge allowed to a party. And it is, at least, equally a mistake to suppose that, in a court of justice, either party can have a vested right to a corrupt or prejudiced juror, who is hot fit to sit in judgment in the case.’ U. S. v. Morris, 1 Curt. C. C. 23, 37 (Fed. Cas. No. 15,815).
“Pending the first trial of the present case, there was brought to the notice of the counsel on both sides, and of the court, evidence on oath tending to show that one of the jurors had sworn falsely on his voir dire that he had no acquaintance with the defendant; and it was undisputed that a letter since written and published in the newspapers by the defendant’s counsel, commenting upon that evidence, had been read by that juror and by others of the jury. It needs no argument to prove that the judge, upon receiving such information, was fully justified in concluding that such a publication,- under the peculiar circumstances attending it, made it impossible for that jury, in considering the case, to act with the independence and freedom on the part of each juror requisite to a fair trial of the issue between the parties. The judge having come to that conclusion, it was clearly within his authority to order the jury to be discharged, and to put the defendant on trial by another jury; and the defendant was not thereby twice put in jeopardy, within the meaning of the fifth amendment to the Constitution of the United States.”
Both of these cases were cited with approval in Thompson v. U. S., 155 U. S. 271 (15 Sup. Ct. 73).
In our effort to see that the rights of persons accused of crime are protected, we should not overlook the fact that thé people also have interests that should be safeguarded. It is a right of which the accused cannot be deprived to have his case tried by an impartial jury. The people have an equal right to have their case tried by a jury no member of which has obtained a place thereon for the purpose of preventing a righteous verdict. If, during the progress of the trial, the trial judge learns, or it is satisfactorily made to appear to him, that one or more jurors had obtained places on the jury intending to convict the accused whatever the evidence, can there be any doubt that it is not 'only his right, but his duty, to say there has been a mistrial? Can there be any doubt of the converse of this proposition ? The accused has a right to' a trial by a fair and impartial' jury; but he has no vested right to a trial by a jury some member of which is not impartial, but who obtained his place thereon for the purpose of acquitting the accused, whatever might be the evidence. The trial judge would not be justified in discharging a jury and declaring a mistrial for slight cause; but if the facts exist as found by the trial judge after a careful investigation made by him, it would be a reflection upon the administration of justice to say the trial must proceed. Thb conduct of the two jurors and of the court officer indicates a very strong probability that improper influences were at work which might affect the verdict of the jury, and justified the conclusions of the trial judge.
The other questions argued by counsel have been considered, but we do not deem it necessary to discuss them. The application for the discharge of the respondent is denied.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
(after stating the.facts). We concur in the conclusion of fact reached by the circuit judge that this deed was delivered by Wilder, Sr., to his daughter-in-law, to be by her delivered to her husband upon the death of his father; that upon delivery to her he parted with'all control over it; and that she promptly delivered it at his death to her husband. The evidence we regard as quite conclusive upon this point. The circuit judge discarded the evidence of the defendant’s wife as to conversations between her and the deceased, as within the prohibition of the statute, and did not consider it in reaching his conclusion. Several witnesses testified to statements made by Mr. Wilder, Sr., which can lead to no other conclusion. The judge, in his opinion, said that these witnesses were careful and truthful in their testimony..
The important question of law relates to the construction to be given to the following words: “This deed is to be delivered and recorded to the grantee on the death of both of the grantors.” It is the well-established rule in this State that the delivery of a deed by a grantor to a third party, to be by him delivered to the grantee after the grantor’s death, is valid. It conveys. the fee, and operates as a conveyance in prcesenti, though the enjoyment is postponed until the grantor’s death. Jenkinson v. Brooks, 119 Mich. 108 (77 N. W. 640); Fulton v. Priddy, 123 Mich. 298 (82 N. W. 65, 81 Am. St. Rep. 201). The question of the conveyance of an estate of freehold to commence in futuro is fully and ably discussed, and authorities cited, in Wyman v. Brown, 50 Me. 139, and Wilson v. Carrico, 140 Ind. 533 (40 N. E. 50, 49 Am. St. Rep. 213). Under the above authorities, if no such language had been used in the deed, and it had been delivered by the grantor to Mrs. Wilder with instruction to deliver it at his death to his son, the deed would be valid. Is it any less valid because of the language in the deed ? The delivery spoken of in the deed means evidently the actual delivery to the grantee therein named for recording. It does not refer to a delivery by the grantor to a third party to see that this provision of the grantor is carried out. The delivery to the third person as trustee or holder is entirely consistent with the language of the deed. When, therefore, the grantor deposited the deed with a third person, and placed it beyond his control or recall, the deed was delivered, under the numerous decisions of this court.
The authorities cited in behalf of the complainants are not in conflict with the rule as above stated. In Cook v. Brown, 34 N. H. 476, the deed was placed in the hands of a depositary, to be delivered to the grantee upon the death of the grantor, “provided it is not previously recalled, and the grantor reserves the right and power to recall at any time.” In Huey v. Huey, 65 Mo. 689, a father signed and acknowledged a deed to his son, intending it as a gift, and deposited it with his own papers in a chest, to which, however, the son, who lived with him, had access. It was held no delivery, because his father had not parted with his control over the deed. In Jackson v. Leek, 12 Wend. 107, a deed was signed and acknowledged, but not delivered until eight or nine years after the decease of the grantor. It was shown that the grantor said that he had made out a deed, but had told the grantee that it had better not be delivered, as there was a dispute about the land. In Stilwell v. Hubbard, 20 Wend. 44, the grantor retained possession of the deed until his death. The court said:
“ There were no formal words of delivery, and nothing was said at the time the deed was executed from which it can be inferred that Hubbard intended it should be a present, operative conveyance.”
In Wellborn v. Weaver, 17 Ga. 267 (63 Am. Dec. 235), the deed, which was one of gift, was given to one of the subscribing witnesses to hold as agent of the grantor until his death. It was held that the deed did not pass beyond his control during his lifetime.
The decree is affirmed, with costs.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
The estate of which the relator is administrator consists of personal property of the value of $8,000. The deceased left five children, who, as his heirs, are entitled to it. The respondent imposed the tax upon the entire estate. The relator insists that the exemption provided by the statute applies to each legacy, and not to the entire estate. The question arises under section 2 of Act No. 188, Pub. Acts 1899, which reads as follows:
“When the property, or any beneficial interest therein, passes by any such transfer to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of a son, or the husband of a daughter, or to or for the use of any child or children adopted as such in conformity with the laws of this State, of the decedent, grantor, donor, or vendor, or to any person to whom any such decedent, grantor, donor, or vendor, for not less than ten years prior to such transfer, stood in the mutually acknowledged relation of a parent, or to or for the use of any lineal descendant of such decedent, grantor, donor, or vendor born in lawful wedlock, such transfer of property shall not be taxable under this act, unless it is personal property of the value of five thousand dollars or more, in which case it shall be taxable under this act at the rate of one per centum upon the clear market value of all such property in excess of five thousand dollars.”
The title to the act is one providing “for the taxation of inheritances, transfers of property by will, * * * i by the intestate laws of this State, * * * or by deed, grant, bargain, sale, or gift made in contemplation of death, * * * or intended to take effect after death.”
The tax is not upon property, otherwise it would be void under the Constitution of Michigan. Chambe v. Wayne Probate Judge, 100 Mich. 112 (58 N. W. 661); Union Trust Co. v. Wayne Probate Judge, 125 Mich. 487 (84 N. W. 1101). The act consists of 21 sections. The first 20 sections are carefully drawn, and leave but one conclu sion possible, viz., that each transfer stands by itself, that the tax is imposed upon each transfer, and that no tax is imposed upon property. It recognizes the personal and individual right of each devisee, heir, grantee, or donee to receive and enjoy the property transferred to him upon the ■ payment of the tax imposed upon his right to receive it. Each devise, gift, conveyance, or right of inheritance is complete in itself, without any regard to the others. Each transferee is entitled to receive his property upon payment of the tax, or upon giving bond as provided in section 7. Section 3 gives a lien only upon the property of each transferee. This is conceded. But the sole claim is that under section 21,' — the last section of the act, — entitled “Definitions,” a definition has been given to the words “estate” and ‘ ‘ property ” which completely nullifies the language of the other sections of the act, overrules legal and popular definitions, and imposes the tax upon the entire estate of every decedent, grantor, donor, or vendor of property. The section attempts to declare that the words ‘£ transfer to or for the use of any father, mother, husband, wife, child, brother, sister,” etc., used in section 2, cover all transfers, and impose a tax upon the entire estate, and that any transferee desiring to receive his own must pay the tax upon all if the others do not pay.
The right of an heir or devisee vests in him upon the death of the testator. Davis v. Newton, 6 Metc. (Mass.) 537; Gelsthorpe v. Furnell, 20 Mont. 299 (51 Pac. 267, 39 L. R. A. 170). Under the first 20 sections of the act, there is no room for construction, interpretation, or definitions. Under them each devise, gift, or grant was a separate conveyance or transfer, entitled the devisee, grantee, or donee to receive his entire share upon paying the succession tax thereon, and the exception of section 2 of the act applied to his individual share, and not to the entire estate. Such was the .construction placed upon the act of the State of New York, nearly identical with ours, prior to the amendments made by the legislature of that State in 1892. In re Cager’s Will, 111 N. Y. 343 (18 N. E. 866); In re Howe, 112 N. Y. 100 (19 N. E. 513, 2 L. R. A. 825). Section 21 is as follows:
“ The words ‘ estate ’ and ‘ property,’ as used in this act, shall be taken to mean the property or interest therein of the testator, intestate, grantor, bargainor, or vendor passing or transferred to those not herein specifically exempted from the provisions of this act, and not as the property or interest therein passing or transferred to individual legatees, devisees, heirs, next of kin, grantees, donees, or vendees, and shall include all property or interest therein, whether situated within or without this State, oYer which this State has any jurisdiction for the purposes of taxation. The word ‘transfer,’ as used in this act, shall be taken to include the passing of property or any interest therein in possession or enjoyment, present or future, by inheritance, descent, devise, bequest, grant, deed, bargain, sale, or gift in the manner herein prescribed. The words ‘ county treasurer ’ and ‘ prosecuting attorney,’ as used in this act, shall be taken to mean treasurer or prosecuting attorney of the county having jurisdiction as provided in section ten of this act. ”
This section attempts to, and, if held controlling, does, take away from each devisee, grantee, or donee the right to pay the succession tax upon the property unequivocally transferred to him by the other sections, merges the taxes of all such devisees into one, and then makes such tax a lien upon the entire estate, contrary to section 3, which provides for a lien upon the share transferred to each person. Under it no such devisee, etc., can enter into the enjoyment of his share until the tax upon the whole property is paid. If the act had simply provided for a tax of a certain percentage upon the entire property of the estate before the estate should be distributed to the heirs or devisees, it would clearly have been a tax upon property, and wholly void under the Constitution. It would, in that event, have made no difference that the act was entitled “ An act for the taxation of inheritances,” etc. The character of a thing is to be determined, not by what a legislature may choose to call it, but by what.it actually is. To call a tax upon property by another name does not relieve it from its character as a tax upon property. “ If the tax is upon the property as such, it is illegal, by whatever name we may christen it.” ■
Section 21 expressly says that the terms used in the preceding sections of the act shall not be construed to mean what they say, but shall be construed to mean the entire property of a deceased person, or of a grantor or donor, and that the tax shall be deducted from the entire of said estate before any distribution is made. If this contention of the respondent be sustained, the entire act must fail, for the reason that it is a tax upon property, and not upon the right of succession. State v. Switzler, 143 Mo. 287, 328 (45 S. W. 245, 40 L. R. A. 280, 65 Am. St. Rep. 653); In re Cope’s Estate, 191 Pa. St. 1 (43 Atl. 79, 45 L. R. A. 316, 71 Am. St. Rep. 749); State v. Mann, 76 Wis. 469 (45 N. W. 526, 46 N. W. 51).
When the constitutionality of this act was assailed in Union Trust Co. v. Wayne Probate Judge, supra, it is significant that none of the learned counsel for the relator or for the State relied upon section 21 as changing in any respect the plain language of the previous sections. Section 21 Was not mentioned either in the briefs or upon the' argument. It was not relied upon. All the learned counsel seemed to concede that the validity of the act must depend upon the construction to be placed upon the first 20 sections, regardless of the definitions provided for in section 21. Upon the construction to be placed upon those sections we decided the validity of the act, and based our decision upon the express ground that it was not a tax upon property, — 'particularly the property of the estate, — but. that it was a tax upon each transfer. If the position had there been taken that section 21 entirely changed the language and meaning of the previous sections, and treated the estate as entire, the tax as entire, and the entire estate subject to a lien for the whole tax, the question would then have been presented whether this court should have held statutory definitions binding where no definitions were needed, the result of which holding might be to hold the act unconstitutional.
Until an estate vests, the power to tax does not exist. In re Roosevelt’s Estate, 143 N. Y. 120 (38 N. E. 281, 25 L. R. A. 695); State v. Switzler, supra. In that case it is said:
“It is obvious that the tax is upon the transfer by will or devolution by inheritance, and, in the absence of a transfer and a transferee, there is no basis for a succession tax in its true sense, as it comes to us in the history of jurisprudence and of nations.”
In that case it is also held that, where the tax is upon a succession, it must be computed on the value of the separate interest, and not upon the aggregate valuation of the whole estate; and that it is a charge only against each share or interest, according to its value, and against each person entitled thereto. If this be the law, — and I see not how it can be doubted, — it would hardly be in the power of the legislature to impose upon a devisee, grantee, donee, or heir a condition that he pay taxes upon others in order to take and enjoy his own.
A law of the United States provided that ‘ ‘ any person or persons having in charge or trust, as administrators, executors, or trustees, any legacies or distributive shares arising from personal property, where the whole amount of such personal property shall exceed the sum of ten thousand dollars,” shall be subject to certain taxes, varying according to the amount of the personal property of the estate and the degree of relationship of the beneficiary. This statute was construed in Knowlton v. Moore, 178 U. S. 41 (20 Sup. Ct. 747), decided May 14, 1900. At page 65, the opinion reads:
“On the very threshold, the theory that the tax is not on particular legacies or distributive shares passing upon a death, but is on the whole amount of the personal property of the deceased, is rebutted by the heading, which describes what is taxed, not as the estates of deceased persons, but as ‘ legacies and distributive shares of personal property.’”
After quoting from section 29 of the act (30 Stat. 464), the opinion further states :
“The statute clearly imposes the duty on the particular legacies or distributive shares, and not on the whole personal estate. It does not say that the tax is levied on the personal estate left by the deceased person, but it is imposed on legacies or distributive shares arising from such property.”
The reasoning of that case is equally applicable in this.
Our statute is adopted mainly from that of New York. Section 22 of the New York act, which is section 21 of this act, was enacted in 1892. That act came before the court of appeals in Re Hoffman’s Estate, 143 N. Y. 327 (38 N. E. 311), in 1894. The court in that case said that the act of 1892, which was a revision of the whole law, was passed with the knowledge of the decisions of that court upon the subject, and was obviously intended in some respects to compel, on the part of the court, different conclusions. Commenting upon these definitions of “estate” and “property,” the court said:
“I recall that I have somewhere spoken of the danger of legal definitions, because almost always certain to prove incomplete and inaccurate, and those referred to are now relied upon and used to overturn and utterly reverse the whole scope and theory of the act as described in our decisions; for the appellant claims that, by force of those definitions, the tax is no longer upon the shares of individuals or their right of succession, but upon the property of the decedent in the hands of his executors or administrators. It would have been easy to have said that if such a- reversal of our theory of the tax had been intended; but all through the act it is persistently declared that the tax is imposed, not upon the property of the decedent, but upon the transfer of that property to persons not exempt from taxation. It was useless, upon this point, to define the word ‘ estate,’ for it does not appear at all in the first two sections, which impose the tax. But the definition of the word ‘ property ’ as being the aggregate transfer to the aggregated taxable transferees cannot be applied to those sections generally without involving the statute in contradictions and utter confusion, for the aggregate transfer is clearly not taxed as such. It is constantly distributed into the separate transfers bearing different rates of taxation, chargeable severally against the several transferees, each made personally liable for his own tax, and that to be collected by executors and administrators severally and in due proportions out of the shares of each. The whole law is full of this distinction, provides for it in every direction, and would be a discord of difficult explanation if we applied the definition generally. Nothing, therefore, in these definitions, can be permitted to touch our general doctrine of the nature of the tax.
“But what, then, do they touch, and what purpose do they subserve? We must look for some place in the act where the word ‘ property ’ is used by itself, and to some extent ambiguously, and therefore needs the help of a definition. We find such a possible place in section 2, where the phrase is, ‘ unless it is personal property of the value of ten thousand dollars or more.’ That may mean the aggregate value of all the property transferred to taxable persons, or the separate value of each several transfer. We had said that it meant the latter, but now comes, the legislature declaring that the word ‘property’ shall mean what passes to those not exempted, and not what passes to individual transferees. While the prohibition cannot apply to the general theory of the tax, it can apply to this description of a specific limitation. We had said it related to the property of individual transferees, but that construction section 22 was intended to forbid and to prevent. If it does not mean that, J am unable to perceive any office it can perform, or any useful purpose it can subserve. That effect, I think, we are bound to give it, since we can do so without disturbing the scope of the act, and in view of the legal situation which existed, and the possible evil which it was thought prudent to prevent.”
The court of appeals of New York seems to have held that, under the constitution of that State, it was immaterial whether the tax was one upon property or upon the right of inheritance. In re McPherson, 104 N. Y. 318 (10 N. E. 685, 58 Am. Rep. 502). In Re Westurn’s Estate, 152 N. Y. 93 (46 N. E. 315), decided in 1897, in a unanimous opinion, the court said:
“It has been steadily maintained that the tax, while, in a general sense, a tax on the property of a decedent, is, in its essential nature, under the legislation on the subject, a tax on the right to succession to the property, imposed upon and collectible out of each specific share or interest given by will or derived under the statutes of descent or distribution, and limited, as to each share or interest, to its value, with a superadded personal liability for the payment of the tax by the person taking the interest. The tax is computed, not on the aggregate valuation of the whole estate of the decedent considered as the unit for taxation, but on the value of the separate interests into which it is divided by the will or by the statute laws of the State, and is a charge against each share or interest according to its value, and against the person entitled thereto.”
It is strenuously urged on the part of the attorney general that our own statute, enacted after the decision in Re Hoffman’s Estate, is binding upon this court, upon the' theory that, when a statute is adopted by one State from that of another, it also adopts the construction placed upon it by the courts of that State. This is the general rule, but such construction is not absolutely controlling upon the courts. The court in that case held that the definition of the word “ property ” given by the statute had no application, except possibly in one place. Such a decision does not, in my judgment, constitute that well-established construction which is controlling in the State subsequently enacting the law. Such an apologetic opinion I am not willing to follow. Neither is it controlling if its adoption results in defeating the validity of the act.
Section 21 changes the tax upon each transfer, and merges all the taxes into one upon the entire property. Thus, as already stated, one must pay the taxes belonging to others in order that he may receive and enjoy his own. If this be so, the constitutionality of the act is very doubt- ' ful. A testator devises his property to five persons. Upon what theory of the law can one be compelled to pay the inheritance tax of the other four,? The difficulties in adopting the views of the attorney general are great. The rate of taxation upon the succession differs according to the degree of relationship. A discount of five per cent. is allowed if the tax is paid within six months. If not paid within 18 months, interest is chargeable. One beneficially interested, but not entitled to present possession of his devise, may give a bond not to pay it until he comes into possession. In case of a devise to executors or trustees in lieu of commissions or allowances, the amount of such devise over and above commissions prescribed by law is taxable. By section 11 the appraiser is authorized to appraise, not the estate of the deceased as a whole, but to fix the fair market value of the estate of the person who is subject to the payment of the tax imposed. These provisions not only show the clear intent to treat each devise by itself, but show the difficulty of any attempt to transfer the tax from the specific shares to the entire estate in the hands of the executor, administrator, or trustee.
If, in anticipation of death, a person divides his property equally among his five children, and conveys and delivers to each an equal share, four of the parties take their shares, squander them, or take themselves and their possessions beyond the jurisdiction of the court, can the one remaining be sued for the entire tax, which, by section 21, in connection with section 3, is made a lien upon the entire property conveyed? Can such lien for the whole be enforced against his share ? Can each be sued to, recover his share of the tax imposed upon the entire estate as a whole, or can they be sued jointly ? These questions, and others which readily suggest themselves, show the difficulty in enforcing this act if we adopt the construction placed upon it by the respondent. Where no interpretation is needed, none will be applied. Newell v. People, 7 N. Y. 97; End. Interp. Stat. § 4.
The words “estate” and “property,” as used in the first 20 sections of this act, do not require or admit of any definition. They are susceptible of, and are used with, hut one meaning. The definition of these words, as given in section 21, if adopted, would lead to difficulty and confusion, would tie up the estate, would prevent a devisee or heir from taking possession of his own in accordance with the will of his testator or grantor, and would, in my judgment, change the tax imposed from a succession or inheritance tax into a tax upon the property of the estate.
The order of the court below should be reversed, and the case remanded to the probate court, with instruction to proceed with the division of the estate in accordance with this opinion. No costs should be allowed.
Hooker, C. J.
The statute under discussion is a substantial copy of a pre-existing statute of the State of New York, of which section 21 was a component part, being-numbered 22. In the case of In re Hoffman's Estate, 143 N. Y. 327 (38 N. E. 311), this section was construed, and it was there held to have been enacted for the express purpose of making plain an intent that the exemption should be taken from the estate of the decedent as a whole, and notfrom each interest transferred. Undoubtedly, this might have been more clearly expressed, and, if it were here raised for the first time, we should hesitate to give it this construction if any other could be found which would give any effect to the section. The history of the legislation upon the subject in this State shows that some difficulty was experienced in enacting a valid law, and we may, therefore, attach more than ordinary weight to the fact that the legislature copied the act of a sister State, which had been repeatedly passed upon by her courts, and can have little doubt that those decisions were considered and understood. We conceive it improbable that section 22 of the New York act was copied for another purpose without excluding the construction which had been given it in this particular, if the legislature intended that the exemption should apply to the transfer to each beneficiary.
We recognize a limitation upon the general rule that the construction of the law goes with the law when adopted. It is not an unyielding rule, and we do not lose sight of the fact that it may be an extension of the general rule of adoption of previous construction of domestic statutes by re-enactment, and that it is subject to qualifications ; yet it must be admitted that only strong reasons will warrant its disregard. Such reasons we 'do not find in the present case.
The order is affirmed.
Moore and Montgomery, JJ., concurred with Hooker, C. J. Long, J., did not sit. | [
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